concluding a state official’s role in promulgating a policy does not render the official “suable under Ex parte Young” because promulgation, “standing alone, is not the power to enforce that policy”
How later courts described this case
- concluding a state official’s role in promulgating a policy does not render the official “suable under Ex parte Young” because promulgation, “standing alone, is not the power to enforce that policy”
- stating that sovereign immunity bars suits against state actors in their official capacities that effectively are suits against a state
- “[A]bsent any allegations tying [the defendant] to the specific decisions at issue, it cannot be plausibly inferred that [the defendant] played any role in the decisions [the plaintiff] challenges as unconstitutional.”
- collecting cases declining to apply judicial estoppel to jurisdictional disputes
Written by the judges who cited it.
The opinion
Case: 20-40337 Document: 00515959032 Page: 1 Date Filed: 07/30/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
July 30, 2021
No. 20-40337 Lyle W. Cayce
Clerk
David Allen Haverkamp, also known as Bobbie Lee
Haverkamp,
Plaintiff—Appellee,
versus
Doctor Lannette Linthicum; Cynthia Jumper; F. Parker
Hudson; Phillip Keiser,
Defendants—Appellants,
consolidated with
_____________
No. 20-40683
_____________
David Allen Haverkamp, also known as Bobbie Lee
Haverkamp,
Plaintiff—Appellee,
versus
Preston Johnson, Jr.; John Burruss; Erin Wyrick;
Jeffrey Beeson; Dee Budgewater; Robert Greenberg,
Defendants—Appellants.
Case: 20-40337 Document: 00515959032 Page: 2 Date Filed: 07/30/2021
No. 20-40337
c/w No. 20-40683
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:17-CV-18
Before Dennis and Engelhardt, Circuit Judges, and Hicks, Chief
District Judge *
Per Curiam:
Texas state prisoner David Allen Haverkamp, also known as Bobbie
Lee Haverkamp, a biological male at birth who identifies as a transgender
woman, sued state officials (collectively, “Defendants” or “the State”),
alleging violations of the Equal Protection Clause of the United States
Constitution. Specifically, Plaintiff alleges that Defendants violated equal
protection by denying Plaintiff medically necessary sex-reassignment surgery
and by failing to provide certain female commissary items and a long-hair
pass. The district court denied the State’s motions to dismiss, concluding
that the State was not entitled to sovereign immunity and that Haverkamp
pled a plausible equal protection claim. The State appeals the denial of
sovereign immunity. For the reasons below, we VACATE and REMAND.
I.
A.
We begin with a brief overview of the structure of Texas’s health care
system for prisoners. The Texas Department of Criminal Justice (“TDCJ”)
contracts with the University of Texas Medical Branch (“UTMB”) to
provide medical and psychiatric services to inmates, including Plaintiff. The
general policies that govern medical care for TDCJ inmates are promulgated
by Texas’s Correctional Managed Healthcare Committee (“the
Committee”), a statutorily created arm of the State. Tex. Gov’t Code
*
Chief Judge of the Western District of Louisiana, sitting by designation.
2
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§ 501.148(a)(1). By statute, the Committee is composed of private physicians
appointed by the governor; an employee of TDCJ; physicians employed by,
inter alia, UTMB; and physicians employed by other medical schools. Id. §
501.133. Defendants in both appeals are all members of the Committee.
Defendant Dr. Lannette Linthicum, in addition to being a Committee
member, currently serves as Director of TDCJ’s Health Services Division.
The Committee is tasked with “develop[ing] and approv[ing] a
managed health plan” that “specifies the types and general level of care” for
inmates and “ensures continued access to needed care in the correctional
health care system.” Id. § 501.146(a). The Committee is also charged with
furnishing “advice,” “providing medical expertise,” and “assisting” TDCJ
in implementing its statewide health policies. Id. § 501.148(b). In addition,
the Committee has the statutory responsibility to resolve disputes between
TDCJ and “health care providers” or “contracting entities” in the “event
of a disagreement relating to inmate healthcare services.” Id.
§ 501.148(a)(2).
B.
Haverkamp, who identifies as a transgender woman, is incarcerated
by TDCJ in a men’s prison in Beaumont, Texas. 1 In 2017, Haverkamp filed
a pro se suit in federal court alleging that physicians who worked with and for
TDCJ violated the Eighth and Fourteenth Amendments by refusing to
provide Plaintiff with sex-reassignment surgery. Haverkamp named as
defendants Dr. Joseph Penn, who is no longer party to the case, and
Linthicum, an appellant in case number 20-40337. Plaintiff sought an
1
Haverkamp was convicted of two counts of aggravated sexual assault in 1994 and
sentenced to 45 years in prison. See Haferkamp [sic] v. State, No.19-94-00829-CR, 1996
WL 283902, at *1 (Tex. App.—Houston [14th Dist.] May 30, 1996, no writ).
3
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c/w No. 20-40683
injunction ordering the defendants to provide Plaintiff with sex-reassignment
surgery and a declaratory judgment affirming Plaintiff’s right to necessary
treatment and care.
The magistrate judge held a hearing with the parties and “raised the
issue as to whether the proper defendants have been named in this case.”
Counsel for Texas stated that “the appropriate defendants in this case hinge
on the type of relief sought” by Haverkamp. Counsel explained that “(1) in
the event Plaintiff only seeks gender reassignment surgery, the appropriate
defendant would be Dr. Owen Murray from . . . UTMB[]; and (2) if Plaintiff
seeks a policy change or a new policy regarding care for transgender inmates,
the appropriate defendants would be the principal members of the
Correctional Managed Health Care . . . committee.” Texas stated it would
file an advisory with the court with the names of the Committee members.
Based on the State’s representations, the magistrate judge ordered
Haverkamp to file an amended complaint and proposed that Haverkamp
“name Dr. Murray and each of the CMHC principal committee members in
their official capacities as Plaintiff only seeks injunctive relief in this case.”
The court permitted Plaintiff to name defendants as John and Jane Doe and
explained that it would be able to ascertain the identities of the precise parties
once the State filed its advisory.
In October 2017, Haverkamp filed a handwritten pro se amended
complaint (the operative complaint). According to the operative complaint,
Haverkamp was diagnosed with gender dysphoria in 2013, a condition which
“[t]he American Psychiatric Association defines . . . in its most recent
Diagnostic and Statistical Manual of Mental Disorders (DSM-5) as a ‘marked
incongruence between one’s experienced/expressed gender and assigned
gender, of at least 6 months duration[.]’” Gibson v. Collier, 920 F.3d 212, 217
(5th Cir. 2019). In October 2014, Haverkamp’s physician, Dr. Walter
4
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No. 20-40337
c/w No. 20-40683
Meyer, prescribed a 12-month course of hormone therapy consisting of the
hormone estradiol and a referral at the end of that period for sex-
reassignment surgery. During this appointment, Dr. Meyer “confirmed”
that gender reassignment surgery was available to Haverkamp. Several days
later, Haverkamp requested the surgery “at the earliest possible time.”
Three months into the 12-month hormone regimen, Dr. Meyer told
Haverkamp that UTMB, which provides medical care to TDCJ inmates, “is
going to have to face the inevitable that gender reassignment surgery is going
to happen.” (capitalization altered). In September 2015, near the end of the
year-long course of hormone treatment, Haverkamp met with Dr. Meyer and
a nurse and “was told very plainly that TDCJ would not pay for surgery.”
The operative complaint names John and Jane Doe as defendants and
asserts several claims under the Equal Protection Clause, all of which center
on the argument that Haverkamp is similarly situated to cisgendered female
prisoners and that the State violates equal protection by treating Haverkamp
in a dissimilar manner. In particular, the operative complaint alleges that the
State continues to deny Haverkamp adequate treatment, including sex-
reassignment surgery, while the State provides adequate care, including
medically necessary vaginoplasty to cisgendered women with serious medical
needs, including medically necessary vaginoplasty. The amended complaint
also claims, inter alia, that the State must provide Haverkamp with a pass to
grow long hair and access to the same kinds of clothing, cosmetics, and
hygiene items available to cisgendered female inmates.
The operative complaint references and attaches Policy G-51.11, a
policy promulgated by the Committee concerning the treatment of gender
disorders. 2 Haverkamp alleges that Policy G-51.11 constitutes a contract
2
Policy G-51.11 states in pertinent part:
5
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No. 20-40337
c/w No. 20-40683
guaranteeing the right to sex-reassignment surgery and that defendants have
breached this contract. Haverkamp also appears to allege that because the
Policy references a publication by the World Professional Association of
Transgender Health on the standards for care of transgender persons, the
State must comply with those standards. The operative complaint does not
assert the Eighth Amendment claim asserted in Haverkamp’s original
pleading, which, in any event, the Gibson panel later foreclosed. 920 F.3d at
215-16.
In March 2018, Texas filed an advisory listing the ten principal
members of the Committee, including Linthicum (who was named in the
III. When a diagnosis of Gender Identity Disorder is made –
A. Mental health counseling will be offered.
B. Current, accepted standards of care and the offenders
physical and mental health will determine if advancement
of therapy is indicated.
1. If hormone therapy is indicated, hormone therapy will
be requested through the non-formulary process.
Documentation of patient education and written
consent are required prior to submission of the non-
formulary request. . . .
2. If hormone therapy is prescribed, the offender will be
followed in chronic care clinic with regular
assessments for complications of hormone therapy
(e.g. hypertension, liver disease, heart disease, breast
cancer, etc.).
IV. The University Directors of Mental Health Services and
University Regional or Senior Medical Directors will be
the approving authorities for treatment plans and hor-
mone therapy related to GID.
V. Facility medical staff will assure the facility warden and
TDCJ Health Services Liaison are immediately notified of
all offenders alleging or presenting with signs or symp-
toms of a gender disorder.
6
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No. 20-40337
c/w No. 20-40683
original complaint), Dr. Cynthia Jumper, Dr. F. Parker Hudson,
(collectively, the “Appellants in case number 20-40337”), and several other
individuals no longer party to either appeal. Based on the State’s advisory,
the district court ordered service of Haverkamp’s operative complaint on Dr.
Murray, whom the State earlier identified as the proper defendant if
Haverkamp were seeking sex-reassignment surgery, and the nine Committee
members who had not yet been named as parties.
Subsequently, several of the Committee members filed a motion to
dismiss. 3 These Committee members, who are the Appellants in case
number 20-40337, contended that Haverkamp’s action was barred by
Eleventh Amendment sovereign immunity, and, alternatively, that
Haverkamp had failed to state a plausible equal protection claim. The district
court denied the State’s motion to dismiss without addressing the sovereign
immunity defense. Based on the operative complaint’s allegations, the court
determined that Haverkamp is “similarly situated to cis-gendered female
inmates” because Haverkamp has “undergo[ne] gender transition, including
chemical castration.” The district court further held that Haverkamp stated
a plausible claim that defendants denied Plaintiff equal protection when they
refused Haverkamp’s surgery request. Last, the court chose to exercise
supplemental jurisdiction over Haverkamp’s state-law contract claim. 4 On
3
The Committee members who filed the motion are Linthicum, who, in addition
to her role on the Committee, is the Director of TDCJ’s Health Services Division, and
Jumper, Hudson, Keiser.
4 Shortly thereafter, the State filed a notice to substitute parties under Federal Rule
of Civil Procedure 25(d) seeking to substitute out several individuals, including Dr.
Murray, who had been added as defendants but were no longer members of the Committee,
and replace them with individuals who had taken their place on the Committee, including
Dr. Philip Keiser, Appellant in 20-40337, and Preston Johnson, Jr., John Burruss, Erin
Wyrick, Jeffrey Beeson, and Dee Budgewater, Appellants in 20-40683.4 The court granted
the motion. It later noted, however, that, with respect to Dr. Murray of UTMB, whom the
7
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No. 20-40337
c/w No. 20-40683
May 4, 2020, the Committee members whose motion to dismiss was denied
filed an interlocutory appeal challenging the denial of their claim to sovereign
immunity (case number 20-40337).
Later that month, other Committee members filed a motion to
dismiss, contending that (1) Haverkamp lacked standing because they could
not redress Haverkamp’s alleged injuries; (2) the suit was barred by
sovereign immunity; and (3) the suit failed to allege a plausible equal
protection claim. 5 The district court denied the motion. First, the court
reasoned that Haverkamp plausibly alleged that Committee members
directly impacted Haverkamp’s treatment plan and that the State had
“provided vague and sometimes conflicting guidance as to the identity of the
proper defendants.” Second, the court held that Haverkamp’s claim met the
requirements of the Ex Parte Young exception to sovereign immunity. 209
U.S. 123 (1908). Last, the court held that Haverkamp stated an equal
protection claim for the reasons provided in its earlier order. In October
2020, this latter group of Committee members appealed the denial of
sovereign immunity (case number 20-40683). 6 We consolidated the two
appeals.
State had earlier identified as the appropriate defendant if Haverkamp sought sex-
reassignment surgery, it was “unclear whether any one of the” new Committee member
defendants “assumed [his] role on the [Committee] or has any current connection with
UTMB.” The court also dismissed Dr. Penn, whom Haverkamp had originally named as
a defendant.
5
Defendants Johnson, Burrus, Wyrick, Beeson, and Budgewater filed the motion.
They were joined by then-defendant Burrow.
6
These defendants are Johnson, Burrus, Wyrick, Beeson, and Robert Greenberg.
8
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No. 20-40337
c/w No. 20-40683
II.
“We review the district court’s jurisdictional determination of
sovereign immunity de novo.” City of Austin v. Paxton, 943 F.3d 993, 997
(5th Cir. 2019), cert. denied 141 S. Ct. 1047 (2021). “The burden of proof for
a [Federal] Rule [of Civil Procedure] 12(b)(1) motion to dismiss is on the
party asserting jurisdiction,” and, at the pleading stage, the plaintiff’s
“‘burden is to allege a plausible set of facts establishing jurisdiction.’”
Laufer v. Mann Hosp., L.L.C., 996 F.3d 269, 271 (5th Cir. 2021) (quoting
Physician Hosps. of Am. v. Sebelius, 691 F.3d 649, 652 (5th Cir. 2012)). On a
motion to dismiss for lack of jurisdiction, all well-pleaded facts are taken as
true and all reasonable inferences must be made in the plaintiff’s favor. See
id. at 271-72.
III.
Texas argues that Haverkamp’s suit is barred by sovereign immunity
because (1) the Committee members are not proper defendants under Ex
Parte Young, as Haverkamp fails to allege they have the requisite connection
to enforcing the policies Haverkamp challenges; (2) federal courts cannot
enjoin state officials to undertake the affirmative; discretionary acts that
would be required to provide the relief Haverkamp seeks, and (3) the doctrine
set forth in Pennhurst State School and Hospital v. Halderman, 456 U.S. 89
(1984), bars Haverkamp’s claims to the extent Haverkamp asserts that
Defendants are violating state law. Texas also contends that Haverkamp
lacks Article III standing. We conclude that Haverkamp’s operative
complaint fails to plausibly allege that Defendants are sufficiently connected
to enforcing any policies or decisions Haverkamp challenges as
unconstitutional. We decline as unnecessary to reach the State’s other
arguments.
9
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No. 20-40337
c/w No. 20-40683
A.
The denial of Eleventh Amendment sovereign immunity, though
interlocutory, is immediately appealable under the collateral order doctrine.
Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,
141 (1993). Sovereign immunity bars private suits against nonconsenting
states in federal court. Id. This bar applies not only to states but also to suits
against state actors in their official capacities that are effectively suits against
a state. Id. The Supreme Court, however, carved out an exception to state
sovereign immunity in Ex parte Young, 209 U.S. at 159-60, permitting suits
against state actors whose conduct violates federal law. “The rule is based
on the legal fiction that a sovereign state cannot act unconstitutionally,” and
therefore, when “a state actor enforces an unconstitutional law, he is
stripped of his official clothing and becomes a private person subject to suit.”
K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010).
In this case, “[i]t is undisputed that Texas has not consented to this
suit and that Congress has not abrogated the State’s immunity. The
question, then, is whether the defendants are subject to suit under the Ex
parte Young exception.” City of Austin, 943 F.3d at 998. For a plaintiff to
properly invoke Ex parte Young, the state official sued must have “some
connection with the enforcement of the [challenged] act, or else [the suit] is
merely making him a party as a representative of the state, and thereby
attempting to make the state a party.” Young, 209 U.S. at 157. In other
words, “[t]here are plenty of state actors. A plaintiff must show that the
defendant state actors have the requisite ‘connection’ to the statutory
scheme to remove the Eleventh Amendment barrier to suits brought in
federal court against the State.” K.P., 627 F.3d at 124 (internal quotation
marks omitted).
10
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c/w No. 20-40683
Moreover, whether a suit may proceed under Ex Parte Young does
“not require an analysis of the merits of the claim. Rather, a court need only
conduct a ‘straightforward inquiry into whether [the] complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as
prospective.’” Id. at 998 (cleaned up) (quoting Va. Office for Prot. & Advocacy
v. Stewart, 563 U.S. 247 (2011)).
B.
“In conducting our Ex parte Young analysis, we first consider whether
the plaintiff has named the proper . . . defendants.” City of Austin, 943 F.3d
at 998. To be amenable to suit under the doctrine, the state actor must both
possess “the authority to enforce the challenged law” and have a “‘sufficient
connection [to] the enforcement’ of the challenged act.” Id. (alterations in
original) (quoting Ex parte Young, 209 U.S. at 157).
First, the State argues that, to the extent Haverkamp challenges the
content of the policy, Defendants’ role in formulating and promulgating the
policy does not subject them to suit under Ex parte Young. As this court has
explained, a governor’s promulgation of an executive order alone is not
sufficient to make him suable under Ex parte Young because the “statutory
authority . . . to issue, amend, or rescind an Executive order is not the power
to enforce.” Mi Familia Vota v. Abbott, 977 F.3d 461, 477 (5th Cir. 2020)
(internal quotation marks omitted). Likewise, the Committee’s authority to
promulgate Policy G-51.11, standing alone, is not the power to enforce that
policy.
Second, the State contends that Defendants lack the particular duty
to enforce Policy G-51.11. Plaintiff disagrees, pointing out that the operative
complaint alleges a dispute between Plaintiff’s physician and TDCJ with
respect to providing sex-reassignment surgery. Given the Committee’s
statutory authority to “serve as a dispute resolution forum in the event of a
11
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No. 20-40337
c/w No. 20-40683
disagreement” between TDCJ and health care providers concerning
“inmate health care services,” Tex. Gov’t Code
§ 501.141(a)(2), Haverkamp asserts it is “entirely plausible” that the
Committee sided with TDCJ to reject Haverkamp’s physician’s referral for
sex-reassignment surgery. But the operative complaint merely alleges that
Haverkamp’s treating physician, Dr. Meyer, told Haverkamp during the
course of the hormone therapy that TDCJ “is going to have to face the
inevitable that gender reassignment surgery is going to happen” and that
several months later, during a meeting with Dr. Meyer and a nurse,
Haverkamp “was told very plainly that TDCJ would not pay for surgery.”
While these circumstances do suggest a disagreement between Dr.
Meyer and TDCJ concerning the provision of sex-reassignment surgery—
even though there is no clear allegation that Dr. Meyer continued to
recommend sex-reassignment surgery at the end of the year-long course of
hormone therapy—the amended complaint does not allege (1) which TDCJ
official, if any, decided that TDCJ would not pay for surgery; (2) whether Dr.
Meyer (or anyone else) challenged that decision and brought it before the
Committee; or (3) that the Committee adjudicated any dispute between
TDCJ and Haverkamp’s health care provider concerning sex-reassignment
or rendered a decision that aggrieved Haverkamp, perhaps by enforcing
Policy G-51.11 so as to deny surgery. Haverkamp has thus failed, at this point,
to plausibly allege that the Committee members enforced any policy or were
involved in enforcing any decision that Haverkamp challenges. See Laufer,
996 F.3d at 271-72.
Similarly, although the amended complaint states that Defendants
will not “honor[]” Dr. Meyer’s recommendation to permit Haverkamp to
have long-hair passes and wear feminine articles of clothing, there is no
allegation that there was ever a dispute between Dr. Meyer and TDCJ
12
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No. 20-40337
c/w No. 20-40683
regarding these issues that the Committee adjudicated. Therefore, even
though these items and privileges may be part of the treatment of gender
dysphoria, it is not plausible based on the facts pleaded that the Committee
has any connection to the enforcement of a policy that contributed to or
resulted in Haverkamp being denied these items and privileges. See Laufer,
996 F.3d at 271-72.
Haverkamp asserts that, at the very least, it is plausible that
Linthicum, in her capacity as TDCJ’s Director of Health Services, is
responsible for the decisions to deny sex-reassignment surgery, the long-hair
pass, and female commissary items. Texas responds that it is uncertain in
what capacity Linthicum appears in this case because the original complaint
named Linthicum as a defendant in her role as an employee of UTMB,
although she was and remains a TDCJ employee. Ultimately, however, this
point is immaterial because, assuming Linthicum is joined in her capacity as
the head of Health Services for TDCJ, the operative complaint contains no
allegation plausibly linking Linthicum with the challenged decisions. Put
simply, in a system with approximately 130,000 inmates in custody, 7and
absent any allegations tying Linthicum to the specific decisions at issue, it
cannot be plausibly inferred that Linthicum played any role in the decisions
Haverkamp challenges as unconstitutional. See Laufer, 996 F.3d at 271-72.
Last, Haverkamp appears to suggest that it is inequitable for Texas to
assert that these Defendants are entitled to sovereign immunity when the
State has not identified any other person or entity that would have
responsibility for enforcing Policy G-51.11 or actually made the decision to
deny surgery. This argument is ultimately unavailing because “[t]he burden
7
Tex. Dep’t of Crim. Just., 2019 Statistical Report (2019),
https://www.tdcj.texas.gov/documents/Statistical_Report_FY2019.pdf.
13
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No. 20-40337
c/w No. 20-40683
of proof . . . is on the party asserting jurisdiction[.]” Id. at 271. Texas has
identified the parties Haverkamp should sue, but it remains Haverkamp’s
burden to plead these parties’ connection to the enforcement of the decisions
Haverkamp challenges. 8
Because we conclude that Haverkamp’s operative complaint does not
adequately plead that Defendants have a “sufficient connection [to] the
enforcement of the challenged act,” we must vacate the district court’s
orders denying the State’s sovereign immunity defense. City of Austin, 943
F.3d at 998 (internal quotation marks omitted). We need not and do not
8
Plaintiff contends that we should apply judicial estoppel to preclude Texas from
now asserting that Plaintiff has sued the wrong defendants after the State expressly advised
the district court as to whom Plaintiff needed to sue depending on the relief sought.
“Judicial estoppel prevents a party from asserting a position in a legal proceeding that is
contrary to a position previously taken in the same or some earlier proceeding.” Hall v.
GE Plastic Pac. PTE Ltd., 327 F.3d 391, 396 (5th Cir. 2003) (quotation marks omitted). Two
elements “must be satisfied before a party can be estopped. First, it must be shown that
the position of the party to be estopped is clearly inconsistent with its previous one; and
second, that party must have convinced the court to accept that previous position.” Id.
(cleaned up). We note that we have previously stated that “‘principles of estoppel do not
apply’ to issues of subject matter jurisdiction.” Republic of Ecuador v. Connor, 708 F.3d 651,
655 (5th Cir. 2013) (quoting Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 702 (1982)); cf. Lara v. Trominski, 216 F.3d 487, 495 (5th Cir. 2000) (“We are
especially wary of applying judicial estoppel to create subject matter jurisdiction in the
federal courts.” (citing Lydon v. Boston Sand & Gravel Co., 175 F.3d 6, 14 (1st Cir. 1999)
(“[C]ourts have been cautioned to give careful consideration to the application of judicial
estoppel when subject matter jurisdiction is at stake.”)); In re Sw. Bell Tel. Co., 535 F.2d
859, 861 (5th Cir. 1976), rev’d on other grounds sub nom. Gravitt v. Sw. Bell Tel. Co., 430 U.S.
723 (1977)). Even assuming the doctrine does apply to issues of subject matter jurisdiction,
its requirements are not satisfied here. Although Texas did identify Defendants as the
proper parties to sue if Haverkamp seeks to change Policy G-51.11 or to receive surgery,
this is different from representing that the allegations in Haverkamp’s operative complaint
sufficiently allege that Defendants enforced the policy such that the Ex Parte Young
doctrine can be properly invoked in order to overcome sovereign immunity. In other
words, Texas’s position in the district court is not “clearly inconsistent” with its argument
on appeal. Hall, 327 F.3d at 396. Accordingly, Haverkamp’s judicial estoppel argument
fails.
14
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No. 20-40337
c/w No. 20-40683
reach the State’s other contentions respecting sovereign immunity. In light
of the State’s representations to the district court that these Defendants are
the proper state officials to sue, we do not, at this stage, dismiss Defendants
from the case.
IV.
For these reasons, we VACATE the district court’s orders denying
sovereign immunity and REMAND for further proceedings consistent with
this opinion. 9
9
All pending motions are denied as moot.
15
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No. 20-40337
c/w No. 20-40683
James L. Dennis, Circuit Judge, specially concurring:
I write briefly to offer two additional points. First, on remand, the
district court should consider granting leave to amend. Earlier in this
litigation, the State affirmatively represented to the district court that the
Defendants here are the proper ones for Plaintiff Bobbie Lee Haverkamp to
sue. Thus, the defect in Haverkamp’s pleading that results in today’s
judgment—her operative complaint’s failure to sufficiently connect these
Defendants with the enforcement of any assertedly unconstitutional polices
or decisions—could potentially be cured if she were permitted to re-plead.
Under these circumstances, the district court may conclude that “justice so
requires” that Haverkamp be granted leave to file a second amended
complaint. Fed. R. Civ. P. 15(a)(2).
Second, the conscientious district court may wish to reconsider its
previous orders denying Haverkamp’s requests for appointment of counsel.
In those orders, the district court took care to note that it would sua sponte
reexamine its decision as the case proceeds. Upon reassessing whether
appointment of counsel is warranted, the court should, just as it did before,
“make specific findings on each o[f] the Ulmer [v. Chancellor, 691 F.2d 209,
213 (5th Cir. 1982)] factors.” Williams v. Catoe, 946 F.3d 278, 279 n.1 (5th
Cir. 2020) (en banc) (quoting Jackson v. Dall. Police Dep’t, 811 F.2d 20, 262
(5th Cir. 1986)). Without presuming to dictate to the district court what its
decision should be, I observe that, given the apparent complexity of this case,
it would be wholly reasonable for the court to conclude that appointment of
counsel “would advance the proper administration of justice.” Ulmer, 691
F.2d at 213.
With these additional observations, I respectfully concur.
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