Angie Waller v. City of Fort Worth Texas, e

Case: 18-10561 Document: 00514928890 Page: 1 Date Filed: 04/24/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

April 24, 2019

No. 18-10561

Lyle W. Cayce

Clerk

ANGIE WALLER, Individually and in her Capacity as Independent

Executrix of the Estate of Kathleen Margaret Waller; CHRIS WALLER,

Plaintiffs - Appellees

TERRY WAYNE SPRINGER; GAYLA WYNELL KIMBROUGH,

Intervenor Plaintiffs - Appellees

v.

BENJAMIN B. HANLON; RICHARD HOEPPNER; B. S. HARDIN,

Defendants - Appellants

Appeals from the United States District Court

for the Northern District of Texas

Before KING, SMITH, and WILLETT, Circuit Judges.

KING, Circuit Judge:

Fort Worth Police Officer Richard Hoeppner fatally shot 72-year old

Jerry Waller in Waller’s own garage. Hoeppner insists he did so only out of

reasonable fear for his life. Seeking recompense for Waller’s death, Waller’s

survivors came to the district court alleging that forensic evidence

substantially undermines Hoeppner’s version of events. The district court

concluded that the plaintiffs pleaded enough facts to plausibly allege that

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Hoeppner did not reasonably fear for his safety when he shot Waller. It

likewise concluded they pleaded enough facts to allege that defendant police

officers Benjamin Hanlon and B. S. Hardin conspired with Hoeppner to veil

the true circumstances of Waller’s death. It accordingly denied the defendants’

motions for a judgment on the pleadings.

The defendants appeal that ruling. Exercising appellate jurisdiction

under the collateral-order doctrine, we AFFIRM in part and REVERSE in part.

We agree with the district court that the plaintiffs plausibly allege Waller was

unarmed—and thus posed no reasonably perceivable threat—when Hoeppner

killed him. But we conclude the plaintiffs’ claims alleging the defendants

denied them access to the courts are currently unripe. We also conclude the

plaintiffs do not have standing to seek declaratory (as opposed to retrospective)

relief for the past injury to Waller.

I.

A.

We draw the following facts from the plaintiffs’ pleadings and the

attachments thereto.

Defendants Richard Hoeppner and Benjamin Hanlon, both Fort Worth

police officers on patrol during the early morning of May 28, 2013, were

dispatched to 409 Havenwood Lane North to investigate a residential burglary

alarm. Hoeppner and Hanlon arrived in separate vehicles and parked down

the street from 409 Havenwood Lane North, so they could approach

surreptitiously. The officers proceeded on foot to 404 Havenwood Lane North,

erroneously believing it was 409 Havenwood Lane North, which was across the

street. The officers looked around the outside of the house and noticed the

garage door was open. Hanlon then went to knock on the front door while

Hoeppner stayed by the open garage. Meanwhile, the officers’ flashlights

roused Jerry and Kathleen Waller, the residents of 404 Havenwood Lane

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North. Jerry Waller attributed the lights to his car alarm, so he went out to

the garage to investigate.

What happened next is the subject of dispute. Hoeppner and Hanlon, the

only surviving witnesses to the encounter, recounted the following version of

events in a series of statements to investigators. 1 Holding a small gun, Waller

entered the garage through a door that led in from the house. Hoeppner shined

his 600-lumen flashlight in Waller’s eyes specifically to conceal himself, drew

his service weapon, and repeatedly ordered Waller to drop the gun. Hoeppner

did not identify himself as a police officer, but Hanlon, upon hearing Hoeppner

shouting in the garage, rushed to the garage while yelling “Fort Worth PD.”

Waller ignored Hoeppner’s repeated commands to drop his gun. Instead,

Waller became combative and demanded that Hoeppner get the light out of his

eyes. Waller eventually did put the gun down on the back of a car parked in

the garage. Hoeppner moved toward the gun, but Waller suddenly lunged for

the gun, retrieved it, and pointed it at Hoeppner. Fearing for his life, Hoeppner

shot Waller five or six times, and Waller fell forward on top of the gun. Hanlon

did not fire his weapon.

The plaintiffs accuse Hoeppner and Hanlon of fabricating this story to

cover up an unjustified use of force. They allege that physical evidence shows

that Waller could not have been holding a gun when he was shot. Rather, they

say the autopsy report and blood-splatter patterns suggest that Waller was

holding both his hands over his face when he was shot.

The autopsy report, which the plaintiffs attach to their pleadings, shows

that one of Hoeppner’s bullets went through Waller’s left thumb and struck

several of his fingers on his left hand. The plaintiffs maintain that the bullet’s

path through Waller’s fingers and the blood on the palm of his left hand suggest

1 The plaintiffs attach these statements to their pleadings but disavow their accuracy.

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that he could not have been gripping a gun with his left hand when it was

struck. Further, they say that Waller’s gun was not damaged in the shooting

and crime-scene photographs do not reveal any blood on the gun’s handle,

making it unlikely it was in Waller’s left hand when he was struck.

Likewise, Waller had blood splatter on the palm of his right hand, which

the plaintiffs cite as evidence that when he was shot, he was not holding

anything in his right hand either. Waller also had blood splatter around his

left ear, which, the plaintiffs posit, means he must have been holding his left

hand above his face when the bullet hit it, likely because he was trying to shield

the light from his eyes. And if the blood splatter on his right hand also came

from the wound on his left hand, then his right hand must have also been at

eye level when he was shot.

The events that allegedly followed further animate the plaintiffs’

suspicions. They allege that defendant B. S. Hardin, another Fort Worth

officer, arrived at the scene a few minutes after the shooting and conspired

with Hoeppner and Hanlon to cover up Hoeppner’s culpability. Hardin told

investigators that he went to administer aid to Waller when he arrived on

scene because he had prior experience as an EMT. Hardin said that Hoeppner

told him there was a gun underneath Waller, so he lifted Waller’s body and

laid the gun off to the side before administering aid in case Waller could still

fire the weapon. It was not until after removing the gun, Hardin said, that he

discovered Waller did not have a pulse.

The plaintiffs allege that Hardin lied about finding a gun under Waller’s

body. The plaintiffs assert that Hardin had no legitimate reason to move the

gun from underneath Waller to about a foot from Waller’s head, where it is

later depicted in crime-scene photographs. They also point to inconsistent

statements about the positioning of Waller’s arms as evidence that Hardin

fabricated his story. Hardin told investigators that Waller’s arms were tucked

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underneath his chest when Hardin found him. But Kathleen Waller, who,

according to Hardin, entered the garage around the same time as he arrived

(and thus before he removed the gun), recalled that Jerry Waller’s hands were

at his sides in a “pushup”-like position. Subsequent crime-scene photographs

show Waller with his left arm stretched perpendicular to his body and his right

arm laying parallel at his side.

The plaintiffs additionally allege several procedural irregularities in the

early stages of the investigation, which they contend to be further evidence of

a conspiracy. They allege that the defendants took more than five hours to call

the medical examiner in violation of a state law that requires police officers to

report an unnatural death to the medical examiner “immediately” upon its

discovery. 2 Tex. Code Crim. Proc. Ann. art. 49.25 § 7(a). They likewise argue

that one of the officers violated state law by moving Waller’s body without

permission from the medical examiner. See id. § 8. And they allege someone

stepped in Waller’s blood and tracked it throughout the garage, further

contaminating the crime scene.

B.

Waller’s survivors 3 brought 42 U.S.C. § 1983 claims against Hoeppner,

Hanlon, Hardin, the City of Fort Worth, and several officers involved in the

investigation into Waller’s death. As relevant to this appeal, they alleged that

Hoeppner used excessive force against Waller in violation of his Fourth and

Fourteenth Amendment rights to be free from unreasonable seizures. They

also claimed that Hoeppner, Hanlon, and Hardin conspired to cover up

2 In contrast, the plaintiffs allege that a police-union attorney was “on the scene within

minutes” of Waller’s death.

3 The original plaintiffs consist of Waller’s two children, one of whom is acting in a

dual capacity as the executrix of Kathleen Waller’s estate, who died while this case was

pending below. Waller’s two additional children joined as intervenors. We refer to the

plaintiffs and intervenors collectively as the “plaintiffs” throughout this opinion.

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Hoeppner’s use of excessive force in violation of their constitutional right to

access the courts. And they sought declaratory relief for violations of analogous

rights under the Texas Constitution.

Hoeppner, Hanlon, and Hardin each answered with a qualified-

immunity defense to the § 1983 claims. On the district court’s order, the

plaintiffs then filed a reply addressing qualified immunity. Hoeppner, Hanlon,

and Hardin subsequently moved for judgment on the pleadings, arguing that

the plaintiffs’ pleadings were insufficient to overcome their qualified-immunity

defenses. The district court determined that the defendants were not entitled

to qualified immunity based on the plaintiffs’ well-pleaded allegations and thus

denied the defendants’ motions in relevant part. 4 Specifically, it concluded that

the plaintiffs’ allegations, taken as true, established that Waller was not

holding a weapon when Hoeppner shot him. Thus, it ruled that the plaintiffs

plausibly alleged Hoeppner did not reasonably perceive a threat when he shot

Waller in violation of clearly established law. The district court also concluded

that the plaintiffs plausibly alleged the defendants conspired to tamper with

the crime scene and give false statements in a manner that could prove fatally

detrimental to the plaintiffs’ claims against Hoeppner. These acts, the district

court explained, violated the plaintiffs’ clearly established rights to access the

courts. Lastly, the district court ruled that state law authorized the plaintiffs

to pursue declaratory relief for violations of the Texas Constitution. The

defendants appeal these rulings.

II.

Before turning to the merits of the defendants’ appeal, we must assure

ourselves of our appellate jurisdiction. Congress has granted us jurisdiction

The district court granted the motions as to several claims not at issue in this appeal

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and granted Officer A. Chambers’s motion in its entirety.

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over “final decisions of the district courts” within this circuit. 28 U.S.C. § 1291.

Under the collateral-order doctrine, the Supreme Court has interpreted “final

decisions” to include certain decisions that “finally determine claims of right

separable from, and collateral to, rights asserted in the action, too important

to be denied review and too independent of the cause itself to require that

appellate consideration be deferred until the whole case is adjudicated.” Cohen

v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). An order denying an

officer’s qualified-immunity defense is generally a collateral order subject to

immediate appeal. See Hinojosa v. Livingston, 807 F.3d 657, 663 (5th Cir.

2015).

Despite the general rule, the plaintiffs argue that we do not have

jurisdiction to review the district court’s order denying the defendants’ motions

for a judgment on the pleadings because, in denying those motions, the district

court determined that “genuine issues of material fact” precluded dismissal.

This argument confuses the procedural posture of this case. In hearing an

appeal from an order denying summary judgment on qualified-immunity

grounds, we have jurisdiction to “review the materiality of any factual

disputes, but not their genuineness.” Hogan v. Cunningham, 722 F.3d 725, 731

(5th Cir. 2013) (quoting Juarez v. Aguilar, 666 F.3d 325, 331 (5th Cir. 2011)).

But this appeal comes to us on the defendants’ motions for judgment on the

pleadings, not summary judgment. In reviewing the defendants’ motions for

judgment on the pleadings, the district court did not (and could not) consider

whether the evidence created a genuine factual dispute. See Bosarge v. Miss.

Bureau of Narcotics, 796 F.3d 435, 439 (5th Cir. 2015). We possess—and

routinely exercise—jurisdiction to review a district court’s determination at

the pleadings stage that a plaintiff has alleged sufficient facts to overcome a

qualified-immunity defense. Id. at 438-39; see also, e.g., Shaw v. Villanueva,

918 F.3d 414, 416 (5th Cir. 2019); Doe v. Robertson, 751 F.3d 383, 386-87 (5th

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Cir. 2014). Accordingly, we have jurisdiction to review the district court’s

rulings on the defendants’ qualified-immunity defenses to the plaintiffs’ § 1983

claims.

Whether we have jurisdiction to review the portion of the district court’s

order addressing the plaintiffs’ state-law declaratory-judgment claims is a

separate question. As the plaintiffs point out, the defendants do not assert

immunity from these claims—nor could they because qualified immunity

applies only to claims for money damages. See Morgan v. Swanson, 659 F.3d

359, 365 n.3 (5th Cir. 2011) (en banc). We thus agree with the plaintiffs that,

normally, the denial of a motion to dismiss a declaratory-judgment claim is not

immediately appealable. But we may exercise pendent jurisdiction over

interlocutory orders when, inter alia, “addressing the pendent claim will

further the purpose of officer-immunities by helping the officer avoid trial” or

“the claims involve precisely the same facts and elements.” Escobar v. Montee,

895 F.3d 387, 392-93 (5th Cir. 2018) (footnotes omitted). Both situations are

present here. It would undermine the purpose of qualified immunity if the

defendants here were subject to trial on the declaratory-judgment claims

despite immunity from the § 1983 claims. Cf. Melton v. Phillips, 875 F.3d 256,

265 n.9 (5th Cir. 2017) (en banc) (“[Q]ualified immunity is an immunity from

suit that ‘is effectively lost if a case is erroneously permitted to go to trial.’”

(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009))). Further, the

plaintiffs identify no differences between the facts or elements needed to prove

their declaratory-judgment claims and those needed to prove their § 1983

claims. Accordingly, we have jurisdiction to review the district court’s rulings

on the plaintiffs’ declaratory-judgment claims.

III.

We review the defendants’ motions for judgment on the pleadings de

novo. Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017). The standard for

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Rule 12(c) motions for judgment on the pleadings is identical to the standard

for Rule 12(b)(6) motions to dismiss for failure to state a claim. See Doe v.

MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). To survive a motion for a

judgment on the pleadings, “a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). This involves a two-step inquiry. See Robertson, 751

F.3d at 388, 390. First, we must identify the complaint’s well-pleaded factual

content. See id. at 388. In doing so, we set aside “any unsupported legal

conclusions,” the truth of which “we cannot assume.” Id.; see also Iqbal, 556

U.S. at 678-79. Second, we ask whether the remaining allegations “are

sufficient to nudge the [plaintiff’s] claim across the ‘plausibility’ threshold.”

Robertson, 751 F.3d at 390 (quoting Iqbal, 556 U.S. at 678). In other words, we

ask whether we can reasonably infer from the complaint’s well-pleaded factual

content “more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679.

This is “a context-specific task that requires the reviewing court to draw on its

judicial experience and common sense.” Id.

Section 1983 provides a cause of action to an individual harmed by a

state official’s violation of federal law. A state official sued under § 1983 is

entitled to qualified immunity from damages, which protects the official from

liability for any act that was not objectively unreasonable at the time of the

act. See Lincoln v. Turner, 874 F.3d 833, 847 (5th Cir. 2017). “The basic steps

of our qualified-immunity inquiry are well-known: a plaintiff seeking to defeat

qualified immunity must show: ‘(1) that the official violated a statutory or

constitutional right, and (2) that the right was “clearly established” at the time

of the challenged conduct.’” Id. at 847-48 (quoting Morgan, 659 F.3d at 371).

When confronted with a qualified-immunity defense at the pleadings stage, the

plaintiff must plead “facts which, if proved, would defeat [the] claim of

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immunity.” Westfall v. Luna, 903 F.3d 534, 542 (5th Cir. 2018) (quoting Brown

v. Glossip, 878 F.2d 871, 874 (5th Cir. 1989)).

A.

We first consider whether the plaintiffs allege sufficient facts to

overcome Hoeppner’s qualified-immunity defense to their excessive-force

claim. The parties appear to agree that that Hoeppner did not violate Waller’s

rights if Waller was holding the gun at the time he was shot but did violate

Waller’s clearly established rights if Waller was not holding the gun. Neither

party makes an argument under the second prong of the qualified-immunity

test. Thus, only the first prong is at issue here, and the sole question is whether

the plaintiffs’ pleadings plausibly allege that Waller was unarmed when

Hoeppner shot him.

We conclude the plaintiffs’ claim is plausible based on the specific and

detailed factual allegations they advance in support of their theory of events.

Most notably, the plaintiffs’ allegations about Waller’s left-hand wounds and

blood-spatter patterns support the reasonable inference that Waller was

unarmed when he was shot. The path of the bullet through Waller’s fingers

appears to suggest his hand was not clenched, as it would have been if he had

been holding a gun. Further, if Waller was holding a gun when the bullet

struck his left hand, it seems unlikely the bullet would have hit three of his

fingers without at all damaging the gun. Moreover, it is not clear how

unsmeared blood splatter could have ended up on Waller’s right palm if Waller

was holding a gun in his right hand.

Hoeppner raises two specific challenges to the sufficiency of these

allegations. First, he insists that the plaintiffs pleaded themselves out of court

by attaching the autopsy report to their pleadings. On the face of their

pleadings, the plaintiffs allege that the autopsy report shows Waller could not

have been holding a gun when he was shot. But Hoeppner observes that the

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autopsy report does not opine on whether Waller could have been holding a

gun when he was shot. Therefore, Hoeppner says, the autopsy report conflicts

with the plaintiffs’ pleadings and takes precedence over the pleadings. Cf. Smit

v. SXSW Holdings, Inc., 903 F.3d 522, 528 (5th Cir. 2018) (“[W]hen an

‘allegation is contradicted by the contents of an exhibit attached to the

pleading, then indeed the exhibit and not the allegation controls.’” (quoting

United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 377 (5th

Cir. 2004))).

We disagree. Hoeppner misunderstands the plaintiffs’ reliance on the

autopsy report. The plaintiffs do not allege that the autopsy report itself

concluded that Waller could not have been holding a gun at the time he was

shot. Rather, they allege that such an inference can be drawn from the

information contained within the autopsy report—specifically, the descriptions

of Waller’s left-hand wounds. The contents of the autopsy report are consistent

with the plaintiffs’ allegations, so at this stage of the litigation, we accept those

allegations as true.

Second, Hoeppner argues that these allegations raise only the possibility

that he was not justified in shooting Waller. He asserts the plaintiffs’

allegations about Waller’s left-hand wounds and right-hand unsmeared blood

spatter only show Waller was unarmed when he was hit by one of Hoeppner’s

five bullets. If Waller was armed when Hoeppner began to fire but dropped the

gun sometime between being struck by Hoeppner’s first and final shots, then

Hoeppner argues his use of force would have been reasonable. In making this

argument, Hoeppner ignores his own statement to investigators—attached to

and quoted verbatim in the plaintiffs’ pleadings—that he fired multiple shots

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specifically because Waller did not drop the gun and thus remained a threat.

He explained:

I know there was one delayed shot [be]cause I put rounds on him

at first I kind of noticed he kind of . . . I mean, like he was taking

them like that and then he kind . . . kind of hunched over. And I’m

not sure if he was falling over or if he was bending over [be]cause

it hurt so . . . and I saw he still had the gun in his hand and so I

. . . so I . . . I put . . . I put one more round on him and that’s when

he fell forward.

(ellipses in original) (emphasis added).

Furthermore, even if Waller might have dropped the gun at some point

during the shooting, this possibility, when weighed against the plaintiffs’

detailed and specific factual pleadings, does not render implausible their

allegation that Waller was unarmed when shot. Hoeppner demands too much

at the pleadings stage; allegations need “not conclusively establish” the

plaintiffs’ theory of the case. Robertson, 751 F.3d at 389. For now, it suffices

that the plaintiffs’ allegations “are not ‘naked assertions devoid of further

factual enhancement.’” Id. (quoting Iqbal, 556 U.S. at 678).

Hoeppner tries to compare the present facts to those in several police-

shooting cases in which we held for the officers because the plaintiffs’ evidence

only permitted us to speculate about whether the officers’ descriptions of

events leading up to the shootings were untruthful. None of these cases is an

apt comparison. In each case, the plaintiffs sought to rely on certain

circumstantial evidence to create a genuine factual dispute on summary

judgment, but the court in each instance found that the plaintiffs’ evidence was

consistent with the officers’ versions of events. See Small ex rel. R.G. v. City of

Alexandria, 622 F. App’x 378, 382-83 (5th Cir. 2015) (unpublished) (per

curiam) (affirming summary judgment for officer because “no record evidence

call[ed] into question [the officer’s] testimony about [the decedent’s] behavior

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immediately prior to the shooting”); Thomas v. Baldwin, 595 F. App’x 378, 382

(5th Cir. 2014) (unpublished) (explaining that autopsy report suggesting

decedent was shot in his side did not support plaintiffs’ “bare assertion that

[the decedent] was fleeing at the time he was shot”); Manis v. Lawson, 585 F.3d

839, 844 (5th Cir. 2009) (reversing denial of qualified immunity on summary

judgment because plaintiffs did “not dispute the only fact material to whether

[the officer] was justified in using deadly force: that [the decedent] reached

under the seat of his vehicle and then moved as if he had obtained the object

he sought”); Ontiveros v. City of Rosenberg, 564 F.3d 379, 383 (5th Cir. 2009)

(explaining that plaintiffs were “attempting to use . . . undisputed facts to

imply a speculative scenario that ha[d] no factual support”). Here, by contrast,

the hand wounds and blood splatter provide at least some support for the

plaintiffs’ allegation that Waller was not holding a gun, which, if true,

contradicts Hoeppner’s and Hanlon’s explanations for the shooting.

In sum, the plaintiffs’ specific and detailed factual pleadings about the

crime-scene evidence make plausible their allegation that Waller followed

Hoeppner’s commands, put down his weapon, and was unarmed when

Hoeppner shot him. If this allegation is true, then qualified immunity would

not shield Hoeppner from the plaintiffs’ excessive-force claim. See, e.g., Bazan

ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 493 (5th Cir. 2001). Accordingly,

we affirm the district court’s order denying Hoeppner’s motion for judgment on

the pleadings on the plaintiffs’ excessive-force claim.

B.

We next consider whether the plaintiffs sufficiently allege that

Hoeppner, Hanlon, and Hardin conspired to cover up the true circumstances

of Waller’s death in violation of the plaintiffs’ clearly established right to access

the courts. We have recognized a right of access to the courts, which is founded

in the Article IV Privileges and Immunities Clause, the First Amendment

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Petition Clause, and the Fifth and Fourteenth Amendment Due Process

Clauses. See Ryland v. Shapiro, 708 F.2d 967, 971-73 (5th Cir. 1983). Denial-

of-access claims take one of two forms: forward-looking claims alleging “that

systemic official action frustrates a plaintiff or plaintiff class in preparing and

filing suits at the present time,” and backward-looking claims alleging that an

official action has “caused the loss or inadequate settlement of a meritorious

case, the loss of an opportunity to sue, or the loss of an opportunity to seek

some particular order of relief.” Christopher v. Harbury, 536 U.S. 403, 413-14

(2002) (citations omitted). The plaintiffs alleged both forward- and backward-

looking denial-of-access claims against each of the defendants, but only the

backward-looking claims are at issue on this appeal.

“To maintain a backward-looking claim, a plaintiff must identify (1) a

nonfrivolous underlying claim; (2) an official act that frustrated the litigation

of that claim; and (3) a remedy that is not otherwise available in another suit

that may yet be brought.” United States v. McRae, 702 F.3d 806, 830-31 (5th

Cir. 2012). From our conclusion above that the plaintiffs state a claim against

Hoeppner for excessive force, it follows that the plaintiffs have satisfied the

first of these elements. For present purposes, although disputed, we will

assume the plaintiffs’ allegations satisfy the second element as well by alleging

that the defendants conspired to sabotage the crime scene and lie to

investigators to cover up the fact that Waller was unarmed when Hoeppner

shot him. Nevertheless, the plaintiffs’ claims fail on the third element: they

have not explained what relief the defendants’ alleged misdeeds have cost

them. The plaintiffs premise their backward-looking denial-of-access claims on

the theory that the defendants’ alleged coverup frustrated their excessive-force

claim against Hoeppner. Yet the plaintiffs are actively—and, so far,

successfully—litigating that claim. They filed hundreds of pages of pleadings

in the district court supported by dozens of exhibits containing detailed

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forensic evidence in support of their claim. They survived Hoeppner’s

pleadings-stage assertion of qualified immunity first in the district court and

now on appeal. In short, there is no reason to believe the remedy the plaintiffs

seek “is not otherwise available” in their active lawsuit against Hoeppner. Id.

at 831.

In reaching the contrary conclusion, the district court explained that the

plaintiffs’ “ability to prove their [excessive-force claim] may have been

permanently compromised.” That might turn out to be the case, but it is too

early to say. See Christopher, 536 U.S. at 414 (“These cases do not look forward

to a class of future litigation, but backward to a time when specific litigation

ended poorly, or could not have commenced, or could have produced a remedy

subsequently unobtainable.” (footnotes omitted)). Unless and until the

plaintiffs’ claim against Hoeppner suffers some concrete setback traceable to

the defendants’ alleged coverup, their allegation that the defendants impaired

their effort to bring that claim is no more than speculation about an event that

may or may not come to pass. See id. at 415 (“There is, after all, no point in

spending time and money to establish the facts constituting denial of access

when a plaintiff would end up just as well off after litigating a simpler case

without the denial-of-access element.”).

The plaintiffs argue that their delay in bringing this lawsuit can, on its

own, constitute the prejudice necessary to state their denial-of-access claims.

We disagree. True, we have suggested in dicta that “[c]onduct by state officers

which results in delay in the prosecution of an action in state court may cause

such prejudice.” Ryland, 708 F.2d at 974. But as we later clarified:

Ryland stands for the proposition that if state officials wrongfully

and intentionally conceal information crucial to a person’s ability

to obtain redress through the courts, and do so for the purpose of

frustrating that right, and that concealment and the delay

engendered by it substantially reduce the likelihood of one’s

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obtaining the relief to which one is otherwise entitled, they may

have committed a constitutional violation.

Crowder v. Sinyard, 884 F.2d 804, 812 (5th Cir. 1989) (emphasis added),

abrogated on other grounds by Horton v. California, 496 U.S. 128 (1990). Thus,

showing delay alone is not enough; the plaintiffs must likewise show the delay

caused some further harm to their cause of action. And here the plaintiffs run

into a familiar problem—any harm caused by the delay in filing their

excessive-force claim has yet to manifest.

Therefore, the plaintiffs are left with pleadings that do not adequately

allege a necessary element of their backward-looking denial-of-access claims.

But the possibility remains that they will be able to state such claims in the

future if their excessive-force claim goes south in later stages of this litigation.

Faced with similar facts, the Ninth Circuit has repeatedly ordered backward-

looking denial-of-access claims dismissed without prejudice as unripe. See

Delew v. Wagner, 143 F.3d 1219, 1222-23 (9th Cir. 1998) (“To prevail on their

claim, the Delews must demonstrate that the defendants’ cover-up violated

their right of access to the courts by rendering ‘any available state court

remedy ineffective.’ However, because the Delews’ wrongful death action

remains pending in state court, it is impossible to determine whether this has

in fact occurred.” (citation omitted) (quoting Swekel v. City of River Rouge, 119

F.3d 1259, 1264 (6th Cir. 1997))); Karim-Panahi v. L.A. Police Dep’t, 839 F.2d

621, 625 (9th Cir. 1988) (“Because the ultimate resolution of the present suit

remains in doubt, Karim-Panahi’s cover-up claim is not ripe for judicial

consideration.”); cf. Lynch v. Barrett, 703 F.3d 1153, 1157 (10th Cir. 2013)

(concluding denial-of-access claim ripened once plaintiff lost underlying

lawsuit). We agree this is the proper resolution. See Choice Inc. of Tex. v.

Greenstein, 691 F.3d 710, 715 (5th Cir 2012) (“[A] case is not ripe if further

factual development is required.” (quoting New Orleans Pub. Serv., Inc. v.

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Council, 833 F.2d 583, 587 (5th Cir. 1987))). Accordingly, we reverse the

district court’s order declining to dismiss the plaintiffs’ denial-of-access claims

and remand with instruction to dismiss those claims without prejudice. 5

IV.

Lastly, we conclude the plaintiffs do not have standing to seek

declaratory relief for violations of Waller’s rights under the Texas Constitution.

“‘In a case of actual controversy within its jurisdiction,’ the Declaratory

Judgment Act allows a federal court to ‘declare the rights and other legal

relations of any interested party seeking such declaration.’” Hosein v.

Gonzales, 452 F.3d 401, 403 (5th Cir. 2006) (quoting 28 U.S.C. § 2201). But the

Declaratory Judgment Act does not vest the federal courts with jurisdiction

broader than Article III’s “case or controversy” limitation. Id. “In order to

demonstrate that a case or controversy exists to meet the Article III standing

requirement when a plaintiff is seeking injunctive or declaratory relief, a

plaintiff must allege facts from which it appears there is a substantial

likelihood that he will suffer injury in the future.” Bauer v. Texas, 341 F.3d

352, 358 (5th Cir. 2003). “To obtain [declaratory] relief for past wrongs, a

plaintiff must demonstrate either continuing harm or a real and immediate

threat of repeated injury in the future.” Id.

The plaintiffs here allege only past injury to Waller. Faced with similar

circumstances, the Supreme Court ruled that a plaintiff had no standing to

seek declaratory relief finding his son was fatally shot by police in violation of

the Fourth Amendment. See Ashcroft v. Mattis, 431 U.S. 171, 172 (1977) (per

curiam). Accordingly, we reverse the portion of the district court’s order

5 The parties do not address this issue in terms of ripeness. But because ripeness

implicates the district court’s subject-matter jurisdiction, we raise it sua sponte. See Elam v.

Kan. City S. Ry. Co., 635 F.3d 796, 802 (5th Cir. 2011); Lopez v. City of Houston, 617 F.3d

336, 341 (5th Cir. 2010).

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declining to dismiss the plaintiffs’ claims for declaratory relief and remand

with instruction to dismiss those claims without prejudice.

V.

For the foregoing reasons, we AFFIRM the portion of the district court’s

order denying Hoeppner’s qualified-immunity defense against the plaintiffs’

excessive-force claim, but we otherwise REVERSE and REMAND with

instructions to dismiss the plaintiffs’ denial-of-access and declaratory-

judgment claims without prejudice.

18