taking judicial notice of Texas’s execution protocol
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- taking judicial notice of Texas’s execution protocol
Written by the judges who cited it.
The opinion
Case: 23-30116 Document: 83-1 Page: 1 Date Filed: 10/29/2024
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-30116
____________ FILED
October 29, 2024
Nicholas Buchicchio, Lyle W. Cayce
Clerk
Plaintiff—Appellee,
versus
James M. LeBlanc,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:22-CV-147
______________________________
Before Davis, Southwick, and Ho, Circuit Judges.
Per Curiam: *†
Plaintiff-Appellee, Nicholas Buchicchio, filed a complaint against
Defendant-Appellant, James M. LeBlanc, Secretary of the Louisiana
Department of Public Safety and Corrections (“DPSC”), under 42 U.S.C.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
†
Judge Ho concurs in the judgment only.
Case: 23-30116 Document: 83-1 Page: 2 Date Filed: 10/29/2024
No. 23-30116
§ 1983 for overdetaining 1 him for eighty-four days. The district court denied
LeBlanc’s motion to dismiss premised on qualified and sovereign immunity.
Following our precedent, we AFFIRM.
I. BACKGROUND
In 2017, Buchicchio was living in Rapides Parish, Louisiana, while
serving a term of probation for a Florida conviction. On March 13, 2017, he
was arrested for theft, initially booked at the Rapides Parish jail, and then
remanded to Florida, where he pleaded guilty to violating the terms of his
probation. Upon completing his sentence for the probation violation, and
because Louisiana authorities had placed a detainer on him for the theft
charges, Buchicchio was returned to the Rapides Parish jail on May 6, 2019.
On January 16, 2020, Buchicchio appeared before a Louisiana district
court and pleaded guilty to ten counts of theft between $5,000 and $25,000.
The court sentenced him to seven years in prison on each count, to run
concurrently, with credit for the time he had served in both Louisiana and
Florida prisons. As a result, Buchicchio was entitled to immediate release.
He was released about three weeks later, on February 11, 2020.
After his release from the Rapides Parish jail, Buchicchio returned to
Florida. In June 2020, he flew out of the country for a job interview, but upon
his return, airport authorities in Miami arrested him based on an outstanding
warrant issued by the Louisiana DPSC. Buchicchio alleges that the warrant
was mistakenly issued by DPSC as a result of its failure to properly calculate
his release date under the state district court’s order, even though DPSC had
already released him pursuant to that order.
_____________________
1
A claim of overdetention is “now a euphemism for prisoners illegally incarcerated
beyond the terms of their sentence.” McNeal v. LeBlanc, 90 F.4th 425, 428 (5th Cir. 2024)
(quoting Hicks v. LeBlanc, 81 F.4th 497, 500 (5th Cir. 2023)).
2
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No. 23-30116
After his arrest at the Miami airport, Buchicchio was taken to Elayn
Hunt Correctional Center in St. Gabriel, Louisiana. When he arrived, he
immediately informed prison officials of the mistake and filed an
administrative grievance explaining that he was entitled to immediate release
under the state district court’s order and had already been released under
that order, but his grievance was denied. He then filed a pro se motion in
state district court, seeking a hearing to correct the error.
After missing the hearing dates three times because the prison failed
to provide transportation or access to Zoom conferencing, Buchicchio finally
appeared before the state district court via Zoom on March 3, 2021,
approximately eight months after he was arrested at the Miami airport. The
court agreed to amend the minutes from its last order to delineate that
Buchicchio was to “receive credit for time served specifically while on
detainer since the time of 10.6.2017 until 5.7.2019.” Even though Buchicchio
again was entitled to immediate release, he was not released by DPSC until
approximately eighty-four days later on May 25, 2021, after his family
contacted an attorney for help.
Buchicchio subsequently filed this action against DPSC Secretary
LeBlanc (in his individual and official capacities), as well as other state
officials, under 42 U.S.C. § 1983 and state law, for violating his due process
rights by overdetaining him. He seeks damages as well as equitable relief.
Although Buchicchio’s complaint alleged more than one period of
overdetention, the only time period for which he seeks damages is for the
eighty-four days between the state district court’s last order (March 3, 2021)
and the date he was finally released (May 25, 2021). He contends that the
3
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No. 23-30116
prior periods of overdetention, however, support his right to seek equitable
relief. 2
In response, LeBlanc filed a motion to dismiss under Rule 12(b)(1) and
12(b)(6), arguing that he was entitled to qualified immunity from
Buchicchio’s § 1983 claim against him in his individual capacity for monetary
damages; that sovereign immunity barred the official capacity claims against
him for equitable relief; and that Buchicchio also lacked standing to seek
equitable relief. The district court denied the motion, and LeBlanc timely
filed a notice of appeal.
II. DISCUSSION
On appeal, LeBlanc argues that the district court erred in denying his
motion to dismiss because (1) he is entitled to qualified immunity from
Buchicchio’s § 1983 claim against him in his individual capacity;
(2) Buchicchio cannot seek equitable relief because he lacks standing, and
such claims are barred by sovereign immunity; (3) LeBlanc additionally
argues that Buchicchio’s overdetention claim is barred by Heck v. Humphrey,
512 U.S. 477 (1994). 3
_____________________
2
In a subsequent pleading in the district court, Buchicchio alleged that he was
detained again after his May 25, 2021, release for one week in Florida because DPSC has
failed to update a national database to show that he served his sentence and was lawfully
released.
3
LeBlanc’s only mention of Heck was in a footnote in his memorandum in support
of his motion to dismiss where he states: “That the Plaintiff is not specifically challenging
the fact of his conviction, or the general terms of his sentence does not end the Heck
inquiry.” As we said in Crittindon v. LeBlanc, “our task is not to come up with arguments
the parties should have made, but to decide the ones they make. When it comes to Heck in
particular, our court and others have recognized that it is a defense a party must assert[,]”
rather than “some sort of jurisdictional bar.” 37 F.4th 177, 190 (5th Cir. 2022) (citing
United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020)), cert. denied, 144 S. Ct. 90 (2023)
(mem.). This mention of Heck without making any argument for its application is not
sufficient to preserve the argument on appeal. Templeton v. Jarmillo, 28 F.4th 618, 622 (5th
4
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No. 23-30116
A.
This Court reviews actions on Rule 12(b)(6) motions de novo,
“accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiffs.” 4 Under the collateral-order doctrine, we
have appellate jurisdiction to review the denial of a motion to dismiss on the
basis of qualified immunity when the resolution turns on an issue of law. 5
Although § 1983 does not create supervisory liability, “[s]upervisory
officials may be liable under § 1983 for their failure to adopt policies if that
failure causally results in a constitutional injury.” 6 “Liability only arises
when the officials act, or fail to act, with ‘deliberate indifference,’ a
‘disregard [for] a known or obvious consequence of [their] action[s].’” 7
“[A] plaintiff must show either the supervisor personally was involved in the
constitutional violation or that there is a sufficient causal connection between
the supervisor’s conduct and the constitutional violation.” 8 To show a
causal connection between the wrongful conduct of a supervisor and a
constitutional violation, the plaintiff “must introduce evidence that each
_____________________
Cir. 2022) (“[I]n order to preserve an argument for appeal, the argument (or issue) not
only must have been presented in the district court, a litigant also ‘must press and not
merely intimate the argument during proceedings before the district court.’” (quoting
FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994))).
4
Morris v. Livingston, 739 F.3d 740, 745 (5th Cir. 2014) (internal quotation marks
and citation omitted).
5
Behrens v. Pelletier, 516 U.S. 299, 307-08 (1996).
6
Crittindon v. LeBlanc, 37 F.4th 177, 186 (5th Cir. 2022).
7
Id. (quoting Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (alterations in
original)).
8
Evett v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 330 F.3d 681, 689 (5th
Cir. 2003) (internal quotation marks and citation omitted).
5
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No. 23-30116
Defendant had ‘actual or constructive notice’ that their failure to adopt
policies would result in constitutional violations.” 9
In this case, Buchicchio has alleged the violation of his Fourteenth
Amendment due process right to timely release from prison and that this
right was violated by Louisiana DPSC Secretary LeBlanc, a supervisor acting
under color of state law. Buchicchio alleged that he endured approximately
eighty-four days of incarceration beyond his lawful release date as a direct
result of DPSC officials’ actions and inactions under LeBlanc’s leadership.
He alleged that LeBlanc “has presided over and been aware of a pattern of
overdetention.” Buchicchio further asserted that despite knowing about the
problem, LeBlanc failed to take any steps to fix it. He also contended that
DPSC staff were not trained regarding the proper guidelines for sentence
computations such that they calculated release dates inconsistently.
In support of his allegations, Buchicchio cited to (1) an October 2017
legislative audit report on the DPSC that found that the DPSC “process for
calculating offender release dates is inconsistent, which can result in errors”;
(2) the DPSC’s own investigation showing that in 2017, there was “an
average of 200 cases per month considered an ‘immediate release’ due to
the[] deficiencies” in the process for calculating release dates; (3) an August
2018 Excel spreadsheet created by DPSC staffers indicating that on average,
prisoners were overdetained 38.6 days; (4) LeBlanc’s 2019 deposition
testimony admitting that the fact that it could take up to twelve weeks to
calculate an offender’s release date was “ridiculous” and “something we
need to address”; (5) testimony by numerous DPSC employees in a similar
suit in state court (Chowns v. LeBlanc, 37th Judicial District Court (“JDC”)
of Louisiana, No. 26-932) describing consistent overdetention; (6) a 2018
_____________________
9
Crittindon, 37 F.4th at 186 (quoting Porter, 659 F.3d at 447).
6
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No. 23-30116
editorial opinion written by United States Senator John Kennedy and
Attorney General Jeff Landry, describing the “incompetence” of DPSC;
(7) a February 2019 letter to LeBlanc from Judge Edwards of Louisiana’s 15th
JDC informing him about a specific case of overdetention and adding that
“defense attorneys in Lafayette are also complaining about the failure to
timely release inmates”; and (8) 2022 deposition testimony by LeBlanc
admitting that “there’s not a system in place to get [prisoners eligible for
immediate release upon sentencing] quickly released.”
In this Court’s recent decision in Parker v. LeBlanc, the plaintiff cited
to three of the above documents, 10 specifically the 2017 legislative audit
report, the 2018 editorial, and the testimony by DPSC employees in Chowns
v. LeBlanc. This Court held that those three documents “supported
[Plaintiff’s] allegations that LeBlanc was aware of the deficiencies of
implemented policies that routinely led to error like the one that violated his
constitutional rights.” 11 In this case, Buchicchio has cited to even more
evidence supporting the requisite “pattern” of constitutional violations by
untrained employees to establish deliberate indifference for purposes of
supervisory liability. Accepting all of his “well-pleaded facts as true” and
viewing them “in the light most favorable to [him],” Buchicchio’s complaint
meets the facial plausibility standard under Rule 12(b)(6) for stating a clam
of supervisory liability against LeBlanc. 12
B.
Although Buchicchio has stated a claim for supervisory liability under
§ 1983, LeBlanc asserts that nonetheless he is entitled to qualified immunity.
_____________________
10
73 F.4th 400, 405 (5th Cir. 2023).
11
Id. at 406.
12
Id. (citation omitted).
7
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No. 23-30116
Qualified immunity involves answering two questions: (1) “whether the
officer violated a constitutional right,” and (2) “whether the ‘right at issue
was “clearly established” at the time of [the] alleged misconduct.’” 13 These
questions are easily answered in this case. First, detention of a prisoner thirty
days beyond the expiration of his sentence constitutes a deprivation of due
process. 14 Here, Buchicchio seeks damages for the last period of
overdetention, from March 3 until May 25, 2021, which lasted approximately
eighty-four days. Second, as this Court determined in Parker, this right was
clearly established at the time of LeBlanc’s alleged misconduct. Specifically,
in the 2011 case of Porter v. Epps, this Court acknowledged: “Our precedent
establishes that a jailer has a duty to ensure that inmates are timely released
from prison.” 15
As he has done in prior overdetention cases, LeBlanc argues that
Buchicchio has not pleaded facts establishing a pattern of “very similar”
constitutional violations and that his allegations are “too general” to support
deliberate indifference in this case. We have rejected these arguments,
holding that “[t]he standard for deliberate indifference requires only a
‘pattern of similar constitutional violations by untrained employees’ rather
than an exact duplication.” 16
LeBlanc additionally faults the district court for taking judicial notice
under Federal Rule of Evidence 201 of a report issued by the United States
Department of Justice (DOJ) in January 2023, as support for Buchicchio’s
_____________________
13
Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019) (citation omitted).
14
Douthit v. Jones, 619 F.2d 527, 532 (5th Cir. 1980).
15
659 F.3d 440, 445 (5th Cir. 2011).
16
Parker, 73 F.4th at 406 (quoting Connick v. Thompson, 563 U.S. 51, 62 (2011)); see
McNeal, 90 F.4th at 432.
8
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No. 23-30116
failure-to-train claim. The report followed a two-year investigation into
DPSC’s time-computation and release practices and detailed “multiple
policy failures resulting in overdetention at DPSC,” including failure to
adopt appropriate polices and time-computation processes, as well as failure
to train. The report described the unconstitutional overdetentions as
“severe, systemic, and are both caused and perpetuated by serious ongoing
deficiencies in [DPSC]’s policies and practices.”
Under Rule 201(b), the district court “may judicially notice a fact that
is not subject to reasonable dispute because it: (1) is generally known within
the trial court’s territorial jurisdiction; or (2) can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.” 17 This Court reviews the district court’s decision to take
judicial notice of a matter for abuse of discretion. 18 As Buchicchio points out,
the DOJ report was released after he submitted his opposition to LeBlanc’s
motion to dismiss and, thus, was not available for inclusion in his amended
complaint or his opposition to the motion (although he did state that a DOJ
investigation was pending in his opposition). Rather than require Buchicchio
to amend his complaint formally, the district court considered Buchicchio’s
invitation to take judicial notice of the DOJ report in deciding LeBlanc’s
motion. LeBlanc could have objected to this invitation under Rule 201(e), 19
but he did not do so. Furthermore, although LeBlanc disputes the findings
of the report, he cannot reasonably dispute that the DOJ made the findings,
_____________________
17
Fed. R. Evid. 201(b).
18
Petrobras Am., Inc. v. Samsung Heavy Indus. Co., Ltd., 9 F4th 247, 255 (5th Cir.
2021).
19
“On timely request, a party is entitled to be heard on the propriety of taking
judicial notice and the nature of the fact to be noticed. If the court takes judicial notice
before notifying a party, the party, on request, is still entitled to be heard.” Fed. R. Evid.
201(e).
9
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No. 23-30116
which is the purpose for which the district court considered the report.
Under these circumstances, there was no abuse of discretion. 20
Consistent with Parker and McNeal, we hold that Buchicchio’s
allegations are sufficient to survive LeBlanc’s assertion of qualified immunity
at the motion to dismiss stage. Based on the foregoing, the district court did
not err in denying LeBlanc’s Rule 12(b)(6) motion seeking qualified
immunity.
C.
We review the district court’s Rule 12(b)(1) “standing and sovereign-
immunity determinations de novo.” 21 A plaintiff has standing for injunctive
relief if he has a reasonable fear that it is likely that a recurrence of the
unlawful conduct will occur. 22 While it would seem far-fetched that
Buchicchio would be rearrested again after being released for the second
time, in his opposition to LeBlanc’s motion to dismiss, Buchicchio alleged
that he was actually detained again in Florida for one week after his second
release from a Louisiana prison. Buchicchio asserted that this was due to the
failure of DPSC to update a national database reflecting that he had in fact
satisfied his sentence for his prior convictions.
Buchicchio’s allegations reflect, as the district court noted, that the
“DPSC’s system for calculating release dates and processing release
paperwork is in utter disarray,” so much so it is plausible that Buchicchio
may still be subject to unlawful detention based on DPSC’s failure to properly
compute and process his release. Because Buchicchio has alleged that he has
_____________________
20
See Whitaker v. Collier, 862 F.3d 490, 496 n.10 (5th Cir. 2017) (taking judicial
notice of Texas’s execution protocol).
21
Book People, Inc. v. Wong, 91 F.4th 318, 327 (5th Cir. 2024) (citation omitted).
22
City of Los Angeles v. Lyons, 461 U.S. 95, 106-08 & nn.7-8 (1983).
10
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No. 23-30116
been detained after being released from prison twice, he has alleged a “real
and immediate threat of repeated injury” sufficient to establish standing for
prospective equitable relief. 23
Finally, Buchicchio’s equitable relief claims are not barred by
sovereign immunity, as they fall squarely within the exception to Eleventh
Amendment immunity established in Ex parte Young. 24 Under Ex parte
Young, a plaintiff may sue a state officer in his official capacity for an
injunction to stop ongoing violations of federal law. 25 Here, Buchicchio seeks
declaratory and injunctive relief to enjoin LeBlanc from violating his right to
be free from unlawful detention based on DPSC’s ongoing failure to properly
compute and process his release. Therefore, the district court did not err in
denying LeBlanc’s Rule 12(b)(1) motion to dismiss asserting lack of standing
and sovereign immunity.
III. CONCLUSION
Based on the foregoing, the district court’s order denying LeBlanc’s
12(b)(1) and 12(b)(6) motion to dismiss is AFFIRMED.
_____________________
23
Ghedi v. Mayorkas, 16 F.4th 456, 464 (5th Cir. 2021) (citation omitted).
24
209 U.S. 103 (1908).
25
Texas All. for Retired Ams. v. Scott, 28 F.4th 669, 671 (5th Cir. 2022).
11