Petition for Writ of Certiorari — Stacy Williams, on Behalf of Her Minor Grandson, J. J., Petitioner v. Andrew Williams, et al.

Supreme Court briefJul 2, 2024

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No. 23In the

Supreme Court of the United States

STACY WILLIAMS, ON BEHALF

OF HER MINOR GRANDSON, J.J.,

Petitioner,

v.

ANDREW WILLIAMS, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Niles Illich

Counsel of Record

Scott H. Palmer

James Roberts

Palmer Perlstein

15455 Dallas Parkway,

Suite 540

Addison, TX 75001

(972) 204-5452

niles@palmerperlstein.com

Attorneys for Petitioner

116888

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

The legal doctrine of “state-created danger” has its

origin in DeShaney v. Winnebago County Department of

Soc. Services. 489 U.S. 189, 197 (1989).

Since DeShaney, ten federal circuits—but not the

Fifth Circuit—have recognized the doctrine of “statecreated danger.” See Irish v. Fowler, 979 F.3d 65, 73-75 (1st

Cir. 2020) (adopting the doctrine and collecting cases from

the Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth,

Tenth, and D.C. Circuits that reach the same result). Since

1996, the Fifth Circuit has been asked—almost annually—

to recognize or reject “state-created-danger” as a valid

legal doctrine; yet the court refuses to adopt or reject the

doctrine. Fisher v. Moore, 73 F.4th 367, 375 (5th Cir. 2023)

(Higginson, J., dissenting). (“Our indecision is a disservice

. . . if this circuit is inclined to disagree with all others, then

our delay is blocking percolation, which allows a period of

exploratory consideration and experimentation by lower

courts before the Supreme Court ends the process with a

nationally binding rule.’”). (internal quotations removed).

The question presented is:

Whether the Court should end the Fifth Circuit’s

decades-long refusal to rule on the viability of the “statecreated-danger” doctrine by recognizing the doctrine and

providing parameters for it.

ii

PARTIES TO THE PROCEEDINGS

Petitioner is Stacy Williams, on behalf of her minor

grandson, J.J.

Respondents are Andrew Williams and Joe Spradlin.

iii

RELATED PROCEEDINGS

United States District Court (S.D. Tex.):

Williams v. Williams and Spradlin, No. 4:23CV-289. There is no Westlaw or LexisNexis

citation to the district court’s minute entry.

Entered August 3, 2023.

United States Court of Appeals (5th Cir.):

Williams on behalf of J.J. v. Williams and

Spradlin, No. 23-20375, 2024 WL 811526,

at *1 (5th Cir. Feb. 27, 2024)

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . ii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONST I T U T IONA L A N D STAT U T ORY

PROVISIONS, AND RULES INVOLVED . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3

I.

Factual Background . . . . . . . . . . . . . . . . . . . . . . . 3

v

Table of Contents

Page

REASONS TO GRANT THE PETITION . . . . . . . . . . 16

I.

T he F if th C ircu it ’s decision no t to

recognize or reject the doctrine of

“state-created danger” intrudes on the

ability of the issue to percolate in the

lower courts. Ten circuits recognize the

theory. The Fifth Circuit has had ample

opportunity to adopt a position but refuses

to do so. This refusal leaves the forty

million citizens of Texas, Louisiana, and

Mississippi with no recourse other than to

petition this Court to resolve the question

by formally recognizing the doctrine of

the “State-Created Danger” . . . . . . . . . . . . . . 16

II. This is an apt case to decide and define the

doctrine of “State-Created Danger” . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

vi

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

FEBRUARY 27, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A PPENDI X B — J U DGMENT OF THE

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

FEBRUARY 27, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . 4a

A PPENDI X C — CI V IL DOCK ET FOR

CASE # 4:23-cv- 00289, U.S. DISTRICT

C OU RT, S OU T H ER N DI S T R IC T OF

TEXAS (HOUSTON) . . . . . . . . . . . . . . . . . . . . . . . . . 6a

APPENDIX D — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT,

FILED MARCH 19, 2024 . . . . . . . . . . . . . . . . . . . . . . 7a

vii

TABLE OF CITED AUTHORITIES

Page

CASES

Avila v. Harlingen Indep. Consol. Sch. Dist.,

No. 1:21-CV-111, 2021 WL 5921458

(S.D. Tex. Nov. 22, 2021), report and

recommendation adopted sub nom.

Avila v. Harlingen Consol. Indep. Sch. Dist.,

No. 1:21-CV-111, 2021 WL 5919331

(S.D. Tex. Dec. 15, 2021) . . . . . . . . . . . . . . . . . . . . . . . 13

Bowers v. DeVito,

686 F.2d 616 (7th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . 9

Calvert v. Tex.,

141 S. Ct. 1605, 209 L. Ed. 2d 748 (2021) . . . . . . . . . 16

Cancino v. Cameron Cnty., Tex.,

794 F. App’x 414 (5th Cir. 2019) . . . . . . . . . . . . 4, 17, 19

Chaney v. E. Cent. Indep. Sch. Dist.,

No. SA-21-CV-01082-FB, 2022 WL 1540592

(W.D. Tex. May 16, 2022), report and

recommendation adopted,

No. CV SA-21-CA-1082-FB,

2022 WL 22835373 (W.D. Tex. June 15, 2022) . . . . 12

Chavis v. Borden,

621 F. App’x 283 (5th Cir. 2015) . . . . . . . . . . . . . . . . . 18

Commonwealth Bank & Tr. Co., N.A. v. Russell,

825 F.2d 12 (3d Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . 8

viii

Cited Authorities

Page

Dep’t of Homeland Sec. v. New York,

140 S. Ct. 599, 206 L. Ed. 2d 115 (2020) . . . . . . . . . . 16

DeShaney v.

Winnebago County Department of Soc. Services.

489 U.S. 189 (1989) . . . . . . . . . . . . . . . . . . . . . 3, 4, 6-10

Doe ex rel. Magee v.

Covington Cty. Sch. Dist. ex rel. Keys,

675 F.3d 849 (5th Cir. 2012) . . . . . . . . . . . . . . . . . . 4, 18

Doe v. New York City Dep’t of Social Services,

649 F.2d 134 (2d Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . 9

Escamilla v. City of Santa Ana,

796 F.2d 266 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . 9

Est. of Gilmore v. Buckley,

787 F.2d 714 (1st Cir. 1986) . . . . . . . . . . . . . . . . . . . .8, 9

Fisher v. Moore,

73 F.4th 367 (5th Cir. 2023) . . . . . . . . . . . 3-5, 13, 17, 19

Fisher v. Moore,

144 S. Ct. 569, 217 L. Ed. 2d 303 (2024) . . . . . . . . . . 11

Fort v. Dallas Indep. Sch. Dist.,

82 F.3d 414 (5th Cir. 1996) . . . . . . . . . . . . . . . . . . . 3, 19

ix

Cited Authorities

Page

Gonzales v. Sanchez,

No. SA-23-CV-00694-XR,

2024 WL 1283822 (W.D. Tex. Mar. 25, 2024) . . . . . 13

Home Tel. & Tel. Co. v. City of Los Angeles,

227 U.S. 278 (1913) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Humann v. Wilson,

696 F.2d 783 (10th Cir. 1983) . . . . . . . . . . . . . . . . . . . . 8

Irish v. Fowler,

979 F.3d 65 (1st Cir. 2020) . . . . . . . . . . . . . . . . . 4-6, 10

J.W. by & through Williams v.

City of Jackson, Mississippi,

663 F. Supp. 3d 624 (S.D. Miss. 2023) . . . . . . . . . . . . 11

Jackson v. City of Houston,

No. 4:23-CV-00052,

2023 WL 7093031 (S.D. Tex. Oct. 26, 2023) . . . . . . . 12

Jaramillo v. Tex.,

No. 6:21CV253, 2023 WL 5123456

(E.D. Tex. June 6, 2023), report and

recommendation adopted sub nom.

Jaramillo v. Tex., TDCJ-CID,

No. 6:21-CV-00253, 2023 WL 5098706

(E.D. Tex. Aug. 9, 2023) . . . . . . . . . . . . . . . . . . . . . . . 12

Kovacic v. Villarreal,

628 F.3d 209 (5th Cir. 2010) . . . . . . . . . . . . . . . . . 17, 19

x

Cited Authorities

Page

Labrador v. Poe by & through Poe,

144 S. Ct. 921 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Martinez v. California,

444 U.S. 277 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Monroe v. Pape,

365 U.S. 167 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Nishiyama v. Dickson Cnty.,

814 F.2d 277 (6th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . 8

Paraza v. Sessions,

680 F. App’x 345 (5th Cir. 2017) . . . . . . . . . . . . . . . . . 18

Pena v. DePrisco,

432 F.3d 98 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . 8

Robinson v. Webster Cnty., Mississippi,

825 F. App’x 192 (5th Cir. 2020) . . . . . . . . . . . . . . 17, 19

Salinas v. City of Houston,

No. 4:22-CV-04120, 2023 WL 8283636

(S.D. Tex. Nov. 30, 2023) . . . . . . . . . . . . . . . . . . . . . . . 12

Shumpert v. City of Tupelo,

905 F.3d 310 (5th Cir. 2018),

as revised (Sept. 25, 2018) . . . . . . . . . . . . . . . . . . . 6, 18

xi

Cited Authorities

Page

Smith v. Comal Indep. Sch. Dist.,

No. SA22CV1051FBHJB, 2023 WL 5535656

(W.D. Tex. Aug. 4, 2023), report and

recommendation adopted,

No. SA-22-CV-1051-FB, 2023 WL 5540154

(W.D. Tex. Aug. 27, 2023) . . . . . . . . . . . . . . . . . . . . . . 12

Sterling v. City of Jackson, Mississippi,

No. 3:22-CV-531-KHJ-MTP,

2024 WL 420884 (S.D. Miss. Feb. 5, 2024) . . . . . . . 12

Taylor ex rel. Walker v. Ledbetter,

818 F.2d 791 (11th Cir. 1987) . . . . . . . . . . . . . . . . . . . . 9

Thompson as Next Friends of ACD v.

Pass Christian Pub. Sch. Dist.,

No. 1:22CV125-LG-RPM,

2023 WL 2577232 (S.D. Miss. Mar. 20, 2023) . . . . . 12

Trump v. Hawaii,

585 U.S. 667, 138 S. Ct. 2392,

201 L. Ed. 2d 775 (2018) . . . . . . . . . . . . . . . . . . . . . . . 16

Villalon v. City of McAllen,

No. 7:20-CV-0264, 2022 WL 1547759

(S.D. Tex. Apr. 7, 2022), report and

recommendation adopted, No. 7:20-CV-0264,

2022 WL 1540425 (S.D. Tex. May 16, 2022) . . . . . . 13

xii

Cited Authorities

Page

Walton v. City of Verona,

82 F.4th 314 (5th Cir. 2023) . . . . . . . . . . . . . . . . . 11, 13

Washington v. District of Columbia,

802 F.2d 1478 (D.C. Cir. 1986) . . . . . . . . . . . . . . . . . . . 9

Watts v. Northside Indep. Sch. Dist.,

37 F.4th 1094 (5th Cir. 2022) . . . . . . . . . . . . . 10, 11, 17

Wells v. Walker,

852 F.2d 368 (8th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . 8

Wideman v. Shallowford Cmty. Hosp., Inc.,

826 F.2d 1030 (11th Cir. 1987) . . . . . . . . . . . . . . . . . . . 9

Williams on behalf of J.J. v. Williams,

No. 23-20375, 2024 WL 811526

(5th Cir. Feb. 27, 2024) . . . . . . . . . . . . . 13-15, 17, 19, 20

Yarbrough v. Sante Fe Indep. Sch. Dist.,

No. 21-40519,

2022 WL 885093 (5th Cir. Mar. 25, 2022) . . . . . . . . 11

Zinsou v. Fort Bend Cnty.,

No. 22-20423,

2023 WL 4559365 (5th Cir. July 17, 2023) . . . . . . . . 11

xiii

Cited Authorities

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend XIV, § 1 . . . . . . . . . . . . . . . . . . . . 1, 2, 7

STATUTES

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 5, 8, 13

1

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The Fifth Circuit’s opinion is not reported. Pet. App.

6a. The order from the Southern District of Texas is also

unreported. Pet. App. 1a.

JURISDICTION

The court of appeals entered its opinion affirming the

district court’s judgment on February 27, 2024. Pet. App.

4a. On June 7, 2024, due to a federally-declared-natural

disaster, Justice Alito granted Petitioner an extension of

time to file this petition up to July 2, 2024.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS, AND RULES INVOLVED

are:

The relevant constitutional and statutory provisions

• The Fourteenth Amendment to the Constitution

of the United States. U.S. Const. amend. XIV, § 1;

and,

• 42 U.S.C. § 1983.

The Fourteenth Amendment to the Constitution of

the United States provides:

2

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

U.S. Const. amend. XIV, § 1.

42 U.S.C. § 1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress, except

that in any action brought against a judicial

officer for an act or omission taken in such

officer’s judicial capacity, injunctive relief shall

not be granted unless a declaratory decree was

violated or declaratory relief was unavailable.

For the purposes of this section, any Act of

Congress applicable exclusively to the District

of Columbia shall be considered to be a statute

of the District of Columbia.

42 U.S.C. § 1983.

3

STATEMENT OF THE CASE

I.

Factual Background

This case presents an important and recurring

question the Fifth Circuit refuses to answer: Whether the

Due Process Clause bars state officials from knowingly

placing a specific person at an unjustifiably high risk of

harm.

Appellants have asked the Fifth Circuit to answer

this question, almost annually, since at least 1996, yet the

Fifth Circuit refuses to adopt or reject the “state-createddanger” doctrine. Fisher, 73 F.4th at 375; Fort v. Dallas

Indep. Sch. Dist., 82 F.3d 414 (5th Cir. 1996) (“Without

deciding whether the state-created-danger theory is

constitutionally sound, we hold that the pleadings in this

case do not meet the requirements for stating a claim

under this theory.”).

Thirty-five years ago, in DeShaney v. Winnebago

County Department of Soc. Services, this Court, in an

opinion by Chief Justice Rehnquist (joined by Justices

W hite, Stevens, O’Connor, Scalia, and Kennedy),

recognized a distinction between state inaction and the

creation of a danger by the state. 489 U.S. at 201.

In DeShaney, the Court found the state did not create

a danger when social workers did not petition a state court

to remove a child from his abusive father because the state

“played no part in [the] creation” of the danger the child

faced (his abusive father). Id. (“While the state may have

been aware of the dangers that Joshua faced . . . it played

no part in their creation, nor did it do anything to render

him any more vulnerable to them.”).

4

Notwithstanding DeShaney’s recognition that state

action that knowingly places a person at an unjustifiably

high risk of harm violates the Due Process Clause, the

Fifth Circuit refuses to accept or reject the question.

Fowler, 979 F.3d at 73-75 (First Circuit opinion adopting

doctrine and collecting cases from Second, Third, Fourth,

Sixth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits

that reach same result.).

At least ten circuits agree the Due Process Clause

prohibits state officials from conduct that creates a new

danger—the so-called “state-created-danger” doctrine.

Id. Yet the Fifth Circuit refuses to adopt or reject the

doctrine even when presented with apt cases. Cancino v.

Cameron Cnty., Tex., 794 F. App’x 414, 416 (5th Cir. 2019)

(“ . . . we have never adopted [the doctrine of the “statecreated danger”] even where the question of the theory’s

viability has been squarely presented.”) (emphasis added).

Further percolation is futile. Fisher, 73 F.4th at 375

(Higginson, J., dissenting). (“Our indecision is a disservice

. . . if this circuit is inclined to disagree with all others,

then our delay is blocking percolation, . . . .”). As shown

below, the Fifth Circuit has been presented with this

question almost annually for more than a decade but the

Court refuses to adopt or reject the doctrine. Doe ex rel.

Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d

849, 864 (5th Cir. 2012) (Court “never explicitly adopted

the state-created-danger theory.”).

In 2023, the Fifth Circuit denied en banc reconsideration

on the issue even when, as Senior Judge Wiener explained,

the case created “an excellent opportunity” to address the

5

“state-created-danger” doctrine. Fisher, 73 F.4th at 375

(Weiner, J., concurring) (“The extreme and uncontested

facts of this case presented an excellent opportunity for

us to join those other circuits. . . . The horrific facts of

this case, as reported by Judge Willett in his opinion for

this panel, presented an ideal vehicle for this circuit’s

consideration of joining the ten other circuits that have

unanimously recognized the state-created-danger cause

of action. . . . I saw this case as the perfect vehicle for

our circuit to rehear this case en banc and join the other

ten circuits that have now recognized the state-createddanger cause of action in § 1983 claims against state

actors.”).

While minor variation exists between the circuits

in the application of the doctrine, all circuits would

recognize that Respondents’ actions (responding to the

9-1-1 call for a cardiac event, calling off other emergency

medical technicians (EMTs), and refusing to provide

medical care) violated J.J.’s liberty interest under the Due

Process Clause. “The circuits that recognize the doctrine

uniformly require that the defendant affirmatively acted

to create or exacerbate a danger to a specific individual or

class of people.” Fowler, 979 F.3d at 73-74. “Each circuit

requires that the defendant’s acts be highly culpable

and go beyond mere negligence”: the defendant must

knowingly place the injured person at an unjustifiably

high risk of serious harm. Id. at 74 & n.4. And the circuits

all require a “causal connection between the defendant’s

acts and the harm.” Id. This case satisfies these shared,

common-sense standards.

The Fifth Circuit’s refusal to adopt or reject the

“state-created-danger” doctrine is stark in a case like

6

J.J.’s. Here, J.J. suffered a cardiac emergency, received

a response from EMTs, the EMTs “called off ” other

EMTs who were responding, and then when the EMTs

arrived they refused to help J.J. After allowing J.J. to

suffer for nearly twenty-five minutes, the EMTs took J.J.

to the hospital, where hospital personnel saved J.J.’s life.

J.J. suffered a series of permanent disabilities (such as a

requirement to be fed out of a tube) due to Respondents’

action.

Yet the Fifth Circuit refuses to adopt a position on

whether the Due Process Clause applies in cases like

this. Shumpert v. City of Tupelo, 905 F.3d 310, 324 (5th

Cir. 2018), as revised (Sept. 25, 2018) (“Unlike our sister

Circuits, we have repeatedly declined to decide whether

[a state-created-danger] cause of action is viable in the

Fifth Circuit.”).

The Fifth Circuit’s refusal to adopt a position on the

doctrine conflicts with DeShaney and precedent from ten

other circuits. Fowler, 979 F.3d at 73-75 (First Circuit

opinion adopting doctrine and collecting cases from

Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth,

Tenth, and D.C. Circuits that reach same result.).

The consequence of the Fifth Circuit’s refusal to

rule on the viability of the doctrine allows state officials

in Texas, Louisiana, and Mississippi to knowingly place

the more than forty million citizens in these three states

in unjustifiably dangerous situations, thus curtailing the

Constitution’s protections in three of the fifty states.

This case offers an apt opportunity to establish

the “state-created-danger” doctrine and define its core

7

application. The Court should grant this petition, end the

Fifth Circuit’s decades-long refusal to rule on the viability

of the doctrine, recognize the doctrine, and define the

parameters of the doctrine in this important and recurrent

category of constitutional cases. The petition for certiorari

should be granted.

*

*

*

1. The Due Process Clause provides that “[n]o State

shall . . . deprive any person of life, liberty, or property,

without due process of law.” U.S. Const. amend. XIV, § 1.

While often associated with the fairness of procedures, the

Clause of course also bars state officials from depriving

individuals of life, liberty, or property without process.

a. The Court has worked to define the parameters

of the Due Process Clause for more than a century. See

Monroe v. Pape, 365 U.S. 167, 171-72 (1961) (citing Home

Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278, 287-96

(1913)). In such cases, this Court has been asked to decide

how much involvement state officials must have in the

deprivation of a person’s life, liberty, or property for the

state to be responsible for the deprivation. Id.; DeShaney,

489 U.S. at 197.

b. Even before DeShaney, lower courts have

recognized that the principal question was one of

proximate cause. See Martinez v. California. 444 U.S.

277 (1980). In Martinez, state officials released a parolee

who subsequently killed a member of the community. Id.

at 279. The victim’s legal heir argued that, in releasing

the parolee, the defendant state officials “subjected [the]

decedent to a deprivation of her life without due process

8

of law.” Id. at 283. This Court rejected the argument and

held the “death [wa]s too remote a consequence of the

parole officers’ action to hold them responsible under the

federal civil rights law.” Id. at 285. After Martinez, “it

[was] clear . . . that § 1983 [wa]s not limited to cases of

direct harm inflicted by state officials.” Commonwealth

Bank & Tr. Co., N.A. v. Russell, 825 F.2d 12, 16 (3d Cir.

1987). Rather, constitutional liability turned on proximate

causation. See, e.g., id. (“We read Martinez as holding that

the key element . . . was a causal nexus.”); Nishiyama v.

Dickson Cnty., 814 F.2d 277, 280 (6th Cir. 1987) (en banc)

(explaining factors that Martinez considered in evaluating

“issue of proximate cause” for “liability of government

officials . . . for a murder committed by” private actor);

Humann v. Wilson, 696 F.2d 783, 784 (10th Cir. 1983)

(per curiam) (upholding dismissal of § 1983 claim because

deprivation of life was “too remote from state action”

under Martinez).

Under the proximate-causation framework, statecreated danger became one way to satisfy the requirement

to establish constitutional liability. See Est. of Gilmore

v. Buckley, 787 F.2d 714 (1st Cir. 1986); Wells v. Walker,

852 F.2d 368 (8th Cir. 1988). “‘[S]tate created danger’

liability,” the Second Circuit later explained, “arises

from the relationship between the state and the private

assailant”: when state officials create the danger, they

“d[o] not bring the victim to the snakes; they let loose the

snakes upon the victim.” Pena v. DePrisco, 432 F.3d 98,

109 (2d Cir. 2005).

c. In its brief in DeShaney, the United States

explained that many federal courts of appeals had

recognized that a state action that creates an unjustified

risk of serious harm to a specific individual violates the

9

Due Process Clause. See DeShaney U.S. Br. 15-16 &

n.5. “The lesson that most of the courts of appeals have

correctly drawn from the Constitution itself and from

this Court’s cases,” the United States explained, “is that

a tort, in order to rise to the level of a violation of the Due

Process Clause, must at a minimum involve some action

of the state that creates the victim’s predicament, and not

just inaction in the face of a predicament that is not of the

state’s making.” DeShaney U.S. Br. 15. “Only if the state

has placed the individual in a position of danger can it be

said to have deprived him of life, liberty, or property.”

Id. The United States contended that all the relevant

circuit cases were “at least arguably consistent with the

rule that the state violates the Due Process Clause only

by acting so as to deprive a person of liberty, and not

merely by passively allowing a third party to deprive

someone of liberty.” Id. (citing Doe v. New York City Dep’t

of Social Services, 649 F.2d 134 (2d Cir. 1981) and Taylor

ex rel. Walker v. Ledbetter, 818 F.2d 791 (11th Cir. 1987)

(en banc)). “[N]umerous courts of appeals,” the United

States explained, “have endorsed the principle, stated

repeatedly by the Seventh Circuit, that duties to protect

a person arise under the Due Process Clause only when

‘the state itself has put [that] person in danger.’” Id. at 16

& n.5 (quoting Escamilla v. City of Santa Ana, 796 F.2d

266, 269 (9th Cir. 1986); citing, inter alia, Wideman v.

Shallowford Cmty. Hosp., Inc., 826 F.2d 1030, 1035, 1037

(11th Cir. 1987); Washington v. District of Columbia,

802 F.2d 1478, 1481-82 (D.C. Cir. 1986); Est. of Gilmore

v. Buckley, 787 F.2d 714, 722 (1st Cir. 1986); Bowers v.

DeVito, 686 F.2d 616, 618 (7th Cir. 1982)).

d. In a footnote to its brief in DeShaney, the United

States cited Seventh Circuit cases that recognized

10

the “state-created-danger” doctrine. See id. at 16 n.5.

Seventh Circuit law was significant in DeShaney because

DeShaney percolated out of the Seventh Circuit in a

decision by Judge Posner. See 812 F.2d 298 (7th Cir. 1987).

Judge Posner’s opinion held: “The botched rescue must

be distinguished from the case where the state places the

victim in a situation of high risk, thus markedly increasing

the probability of harm and by doing so becoming a cause

of the harm.” Id. “If the state, having arrested a child’s

parents, leaves the child alone in a situation where he is

quite likely to come to grief because no one is watching

over him, and he is injured, the state is a cause of the

injury.” Id.

e. In DeShaney, this Court affirmed Judge Posner

and limited the holding to cases involving state action. 489

U.S. at 197-202. Thus, the inaction of not petitioning to

remove a child from an abusive father did not implicate the

Due Process Clause because, “[w]hile the State may have

been aware of the dangers [the child] faced . . . , [the State]

played no part in their creation, nor did it do anything to

render [the child] any more vulnerable. . . .” Id. at 201. In

the years since DeShaney, ten circuits—but not the Fifth

Circuit—have recognized the doctrine of “state-created

danger.” Fowler, 979 F.3d at 73-75.

By contrast, the Fifth Circuit refuses to accept or reject

the doctrine. Watts v. Northside Indep. Sch. Dist., 37 F.4th

1094, 1096 (5th Cir. 2022) (“We have ‘repeatedly declined

to recognize the state-created-danger doctrine.’”).

This Court has not provided direction on this question

since DeShaney, and this case provides an apt set of facts

to establish the doctrine and its parameters.

11

f. This Court recently denied a petition to hear

a substantively identical request. Fisher v. Moore, 144

S. Ct. 569, 217 L. Ed. 2d 303 (2024). This case presents a

clean case on which to address the “state-created-danger”

doctrine because the court can do so without addressing

qualified immunity. But even if this Court decides to

address qualified immunity, then this case differs from

Fisher in that, here, Petitioner relied on Hope v. Pelzer

to show the law is clearly established.

g. The Fifth Circuit’s refusal to provide an opinion

on the doctrine is a recurring issue. Since 2021, including

this case and Fisher, the Fifth Circuit has had at least

six opportunities to address the issue but has declined

every time.

• Watts v. Northside Indep. Sch. Dist., 37 F.4th

1094, 1097 (5th Cir. 2022)

• Yarbrough v. Sante Fe Indep. Sch. Dist., No. 2140519, 2022 WL 885093, at *2 (5th Cir. Mar. 25,

2022)

• Zinsou v. Fort Bend Cnty., No. 22-20423, 2023

WL 4559365, at *2 (5th Cir. July 17, 2023)

• Walton v. City of Verona, 82 F.4th 314, 320 (5th

Cir. 2023)

The failure to resolve whether the doctrine is viable

continues to resonate in district courts:

• J.W. by & through Williams v. City of Jackson,

Mississippi, 663 F. Supp. 3d 624, 647 (S.D. Miss.

12

2023) (“And just last week, the Circuit Court

again refused to recognize a state-created

danger cause of action for a disabled student who

was routinely sexually assaulted at school.”)

• Smi th v. Co m a l In d e p . Sch . D i s t ., No.

SA 2 2C V10 51FBHJ B, 2 0 2 3 W L 5 5 3 5 6 5 6 ,

at *5 (W.D. Tex. Aug. 4, 2023), report and

recommendation adopted, No. SA-22-CV-1051FB, 2023 WL 5540154 (W.D. Tex. Aug. 27, 2023)

(“The Fifth Circuit has neither adopted nor

rejected the state-created-danger theory of

liability.”)

• Salinas v. City of Houston, No. 4:22-CV-04120,

2023 WL 8283636, at *3 (S.D. Tex. Nov. 30, 2023)

(“The problem is that this Circuit has never

adopted the state-created-danger theory.”).1

1.  See also Sterling v. City of Jackson, Mississippi, No.

3:22-CV-531-KHJ-MTP, 2024 WL 420884, at *10 (S.D. Miss. Feb.

5, 2024) (“ . . . the state-created-danger theory has never been

adopted by this circuit); Chaney v. E. Cent. Indep. Sch. Dist., No.

SA-21-CV-01082-FB, 2022 WL 1540592, at *10 (W.D. Tex. May

16, 2022), report and recommendation adopted, No. CV SA-21-CA1082-FB, 2022 WL 22835373 (W.D. Tex. June 15, 2022); Thompson

as Next Friends of ACD v. Pass Christian Pub. Sch. Dist., No.

1:22CV125-LG-RPM, 2023 WL 2577232, at *3 (S.D. Miss. Mar.

20, 2023) (“Neither the Supreme Court nor the Fifth Circuit have

adopted the ‘state-created-danger’ theory, but the Fifth Circuit

has left open the possibility of doing so.”); Jackson v. City of

Houston, No. 4:23-CV-00052, 2023 WL 7093031, at *6 (S.D. Tex.

Oct. 26, 2023) (“Second, the theory has never been adopted by this

circuit.”); Jaramillo v. Tex., No. 6:21CV253, 2023 WL 5123456, at

*8 (E.D. Tex. June 6, 2023), report and recommendation adopted

sub nom. Jaramillo v. Tex., TDCJ-CID, No. 6:21-CV-00253, 2023

WL 5098706 (E.D. Tex. Aug. 9, 2023) (“The Fifth Circuit has never

13

As Judge Higginson of the Fifth Circuit explained, “[The

Fifth Circuit’s continued] indecision is a disservice . . .

if this circuit is inclined to disagree with all others [on

whether to recognize the doctrine of state-crated danger],

then our delay is blocking percolation, which ‘allows a

period of exploratory consideration and experimentation

by lower courts before the Supreme Court ends the

process with a nationally binding rule.’” Fisher, 73 F.4th

at 375. (Higginson, J., dissenting).

Because the majority of the Fifth Circuit is satisfied

not to adopt a position on the “state-created-danger”

doctrine, Petitioner asks this Court to resolve the question,

to recognize the doctrine, and to establish parameters.

2. The Fifth Circuit explained the facts of this case

by quoting Petitioner’s brief. Williams on behalf of J.J. v.

Williams, No. 23-20375, 2024 WL 811526, at *1 (5th Cir.

Feb. 27, 2024). The Court wrote:

Here, Appel lees (pa ra med ics) ca me t o

Appellant’s home after Appellant called 9-11 because [her grandson] J.J. was in cardiac

sustained a Section 1983 claim predicated upon the state-createddanger theory.”); Walton v. City of Verona, 82 F.4th 314, 319 (5th

Cir. 2023); Villalon v. City of McAllen, No. 7:20-CV-0264, 2022 WL

1547759, at *9 (S.D. Tex. Apr. 7, 2022), report and recommendation

adopted, No. 7:20-CV-0264, 2022 WL 1540425 (S.D. Tex. May 16,

2022); Gonzales v. Sanchez, No. SA-23-CV-00694-XR, 2024 WL

1283822, at *12 (W.D. Tex. Mar. 25, 2024); Avila v. Harlingen

Indep. Consol. Sch. Dist., No. 1:21-CV-111, 2021 WL 5921458, at

*5 (S.D. Tex. Nov. 22, 2021), report and recommendation adopted

sub nom. Avila v. Harlingen Consol. Indep. Sch. Dist., No. 1:21CV-111, 2021 WL 5919331 (S.D. Tex. Dec. 15, 2021).

14

distress. J.J. was a survivor of “shaken baby

syndrome” and he had cerebral palsy. When

Appellees responded they “called off ” other

emergency units that were responding to the

9-1-1 call. Yet when Appellees arrived at J.J.’s

home, they refused to provide essential medical

services. Although J.J. was unresponsive,

Appellees disregarded their departmental

policies and did not provide the required

medical aid (such as CPR). After twenty-four

minutes (and a threat by Appellant to take J.J.

to the hospital on her own) Appellees provided

emergency care and then transported J.J. to

the hospital. J.J. arrived at the hospital at 1:52

a.m. and hospital staff revived him at 2:04 a.m.

J.J. must now be “fed through a tube.”

Id.

3. Petitioner filed suit on January 26, 2023. Petitioner

asserted her claim under the “state-created-danger”

doctrine on the ground that Respondents committed to

treat J.J., called off other EMTs, and did not then treat J.J.

On April 18, 2023, Respondents moved to dismiss

J.J.’s claims under Rule 12(b)(6) of the Federal Rules of

Civil Procedure. The district court granted the motion

with a docket entry that reads: “Minute Entry for

proceedings held before Judge Keith P. Ellison. MOTION

HEARING held on 8/3/2023 on Defendants Motion to

Dismiss (ECF No. 17). The Court GRANTED WITHOUT

PREJUDICE.”

15

Petitioner appealed to the Fifth Circuit and conceded

that the Fifth Circuit had never recognized the doctrine.

Williams, 2024 WL 811526, at *1. The Fifth Circuit

concluded:

The appellant recognizes that she cannot prevail

under this court’s longstanding jurisprudence

whereunder we do not recognize “state-created

danger” as a theory of liability for a claimed

constitutional violation. Appellant asks the

court to use this case as a vehicle to adopt, for

the first time, that theory.

We decline the invitation. It is a stretch to say

that state actors “created” the danger, given

that the appellant’s grandson was in medical

distress, not caused by them, when they

arrived. As alleged, any failure to act sounds

more in medical malpractice or negligence than

in deliberate indifference.

It is possible that, at some point, this court will

adopt the appellant’s theory. Concluding that

this is not the case for such a jurisprudential

venture, we AFFIRM the judgment of dismissal.

Id.

Petitioner did not file for en banc reconsideration.

16

REASONS TO GRANT THE PETITION

I.

The Fifth Circuit’s decision not to recognize or

reject the doctrine of “ state - created danger”

intrudes on the ability of the issue to percolate

in the low er cou rts .

T en circuits recognize

the theory. T he F ifth C ircuit has had ample

opportunity to adopt a position but refuses to do

so. This refusal leaves the forty million citizens of

Texas, Louisiana, and Mississippi with no recourse

other than to petition this Court to resolve the

question by formally recognizing the doctrine of

the “State-Created Danger .”

This Court favors issues “percolating” in the

lower courts. Calvert v. Tex., 141 S. Ct. 1605, 1606,

209 L. Ed. 2d 748 (2021) (statement of Sotomayor, J.,

regarding denial of petition for writ of certiorari) (“The

legal question Calvert presents is complex and would

benefit from further percolation in the lower courts prior

to this Court granting review.”); Labrador v. Poe by

& through Poe, 144 S. Ct. 921, 934 (2024) (Kavanaugh,

J., concurring) (“Which can thereby predetermine the

case’s outcome in the proceedings in the lower courts

and hamper percolation across other lower courts on the

underlying merits question.”); Dep’t of Homeland Sec. v.

New York, 140 S. Ct. 599, 600, 206 L. Ed. 2d 115 (2020)

(Gorsuch, J., concurring in the grant of stay) (nationwide

relief preempts “the airing of competing views that aids

this Court’s own decisionmaking process”); Trump v.

Hawaii, 585 U.S. 667, 713, 138 S. Ct. 2392, 2425, 201

L. Ed. 2d 775 (2018)138 S. Ct. 2392, 2425 (2018) (Thomas,

J., concurring) (expressing concern that nationwide

injunctions “prevent[ ] legal questions from percolating

through the federal courts”).

17

The Fifth Circuit has refused to accept or reject the

doctrine almost every year since 2012.

• 2024: Williams on behalf of J.J. v. Williams,

No. 23-20375, 2024 WL 811526, at *1 (5th Cir.

Feb. 27, 2024)

• 2023: Fisher v. Moore, 73 F.4th 367, 369 (5th

Cir. 2023) (“This circuit has never adopted a

state-created danger exception to the sweeping

‘no duty to protect’ rule.”)

• 2022: Watts v. Northside Indep. Sch. Dist.,

37 F.4th 1094, 1096 (5th Cir. 2022) (“We have

‘repeatedly declined to recognize the statecreated-danger doctrine.’”)

• 2021: No opinion on state-created danger in the

Fifth Circuit.

• 2020: Robinson v. Webster Cnty., Mississippi,

825 F. App’x 192, 195 (5th Cir. 2020) (“Several

other circuits have also adopted a second

exception known as the ‘state-created-danger’

theory, applicable when the state affirmatively

created or exacerbated a dangerous situation

that led to a person’s injury. See Kovacic v.

Villarreal, 628 F.3d 209, 214 (5th Cir. 2010). But

this Court has declined to join our sister circuits

in recognizing that theory on several occasions.”)

• 2019: Cancino v. Cameron Cnty., Tex., 794

F. App’x 414, 416 (5th Cir. 2019) (“Under the

state-created-danger doctrine, which has

18

been accepted by some of our sister circuits,

‘when state actors knowingly place a person in

danger, the Due Process Clause renders them

accountable for the foreseeable injuries resulting

from their conduct.’ However, our decisions ‘have

consistently confirmed that ‘[t]he Fifth Circuit has

not adopted the “state-created-danger” theory of

liability.’ Although we have outlined the contours

of the state-created-danger theory in numerous

cases, we have never adopted that theory even

where the question of the theory’s viability has

been squarely presented.”) (emphasis added,

footnotes removed)

• 2018: Shumpert v. City of Tupelo, 905 F.3d 310,

324 (5th Cir. 2018), as revised (Sept. 25, 2018)

(“Unlike our sister Circuits, we have repeatedly

declined to decide whether [a state-created

danger] cause of action is viable in the Fifth

Circuit.”)

• 2017: Paraza v. Sessions, 680 F. App’x 345, 347

(5th Cir. 2017) (“We have ‘never explicitly adopted

the state-created-danger theory.’”)

• 2015: Chavis v. Borden, 621 F. App’x 283, 286

(5th Cir. 2015) (“Unlike our sister Circuits, we

have repeatedly declined to decide whether [a

state-created-danger] cause of action is viable

in the Fifth Circuit.”)

• 2012: Doe ex rel. Magee v. Covington Cty. Sch.

Dist. ex rel. Keys, 675 F.3d 849, 864 (5th Cir.

2012) (Court “never explicitly adopted the statecreated danger theory.”).

19

Many other such opinions exist, and the argument

extends to at least 1996. See Fort v. Dallas Indep. Sch.

Dist., 82 F.3d 414 (5th Cir. 1996) (“Without deciding whether

the state-created-danger theory is constitutionally sound,

we hold that the pleadings in this case do not meet the

requirements for stating a claim under this theory.”).

Thus, whether this Court should recognize the

doctrine of “state-created danger” requires no further

“percolation.” Ten circuits have recognized the doctrine,

and the Fifth Circuit refuses to recognize or reject the

doctrine. Robinson v. Webster Cnty., Mississippi, 825

F. App’x 192, 195 (5th Cir. 2020) (“Several other circuits

have also adopted a second exception known as the

‘state-created-danger’ theory, applicable when the state

affirmatively created or exacerbated a dangerous situation

that led to a person’s injury. See Kovacic v. Villarreal, 628

F.3d 209, 214 (5th Cir. 2010). But this Court has declined

to join our sister circuits in recognizing that theory on

several occasions.”).

The question has “percolated” for thirty-five years

and the Fifth Circuit has had excellent opportunities to

address the issue. Cancino, 794 F. App’x at 416 (“Although

we have outlined the contours of the state-created-danger

theory in numerous cases, we have never adopted that

theory even where the question of the theory’s viability

has been squarely presented.”). (emphasis added, footnotes

removed.). Yet the Fifth Circuit refuses to offer an opinion

on the doctrine. Williams on behalf of J.J. v. Williams, No.

23-20375, 2024 WL 811526, at *1 (5th Cir. Feb. 27, 2024);

Fisher, 73 F.4th at 369. (“This circuit has never adopted a

state-created-danger exception to the sweeping ‘no duty

to protect’ rule.”).

20

The data establish that the Fifth Circuit refuses

to rule on the viability of the “state-created-danger”

doctrine. Until this Court intervenes, parties will continue

to face different standards depending on the circuit.

Review is warranted.

*

*

*

II. This is an apt case to decide and define the doctrine

of “State-Created Danger .”

Petitioner’s claim is: 1) he suffered a cardiac emergency;

2) his grandmother called 9-1-1; 3) Respondents, EMTs

and state officials, responded to the emergency call; 4)

Respondents affirmatively told other EMTs not to respond

to the 9-1-1 call because they would provide emergency

medical treatment to J.J.; 5) Respondents did not provide

treatment to J.J. for nearly twenty-five minutes; 6) J.J.’s

grandmother eventually convinced Respondents to take

J.J. to the hospital; 7) hospital personnel saved J.J.’s life;

and, 8) as a result, J.J. suffered life-long disabilities such

as a requirement that he be fed through a tube. Williams,

2024 WL 811526, at *1.

The Fifth Circuit, in refusing to adopt a position on the

“state-created-danger” doctrine wrote: “it is a stretch to

say that state actors ‘created’ the danger, given that the

appellant’s grandson was in medical distress, not caused

by them, when they arrived. As alleged, any failure to act

sounds more in medical malpractice or negligence than in

deliberate indifference.” Id.

Petitioner’s claim, however, is that the doctrine applies

because Respondents “called off ” other EMTs and then

21

refused to provide medical care. Petitioner does not claim

that the doctrine applies because he was in “medical

distress.”

The facts here fall soundly within the doctrine

and the Fifth Circuit (and presumably Respondents)

disagree. Accordingly, this case provides the Court a

clean opportunity to both recognize the doctrine and

to establish its parameters without having to address

qualified immunity.

Accordingly, this is an apt case in which to consider

the existence of and the parameters around the “statecreated-danger” doctrine. Review is warranted.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Niles Illich

Counsel of Record

Scott H. Palmer

James Roberts

Palmer Perlstein

15455 Dallas Parkway,

Suite 540

Addison, TX 75001

(972) 204-5452

niles@palmerperlstein.com

Attorneys for Petitioner

July 2, 2024

APPENDIX

i

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

FEBRUARY 27, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A PPENDI X B — J U DGMENT OF THE

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

FEBRUARY 27, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . 4a

A PPENDI X C — CI V IL DOCK ET FOR

CASE # 4:23-cv- 00289, U.S. DISTRICT

C OU RT, S OU T H ER N DI S T R IC T OF

TEXAS (HOUSTON) . . . . . . . . . . . . . . . . . . . . . . . . . 6a

APPENDIX D — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT,

FILED MARCH 19, 2024 . . . . . . . . . . . . . . . . . . . . . . 7a

1a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT, FILED FEBRUARY 27, 2024

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 23-20375

Summary Calendar

STACY WILLIAMS, ON BEHALF

OF HER MINOR GRANDSON, J.J.,

Plaintiff—Appellant,

versus

ANDREW WILLIAMS; JOE SPRADLIN,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:23-CV-289

Before Smith, Higginson, and Engelhardt, Circuit Judges.

Per Curiam:*

Stacy Williams sued two paramedics under 42 U.S.C.

§ 1983 for an allegedly inadequate response to her

* This opinion is not designated for publication. See 5th Cir.

R. 47.5.

2a

Appendix A

grandson’s medical emergency, resulting in his death. The

district court dismissed on the basis of qualified immunity.

Finding no error, we affirm.

We recount the facts as stated in plaintiff’s brief,

assuming, for present purposes, that they are true:

Here, Appellees (paramedics) came to

Appellant’s home after Appellant called 9-11 because [her grandson] J.J. was in cardiac

distress. J.J. was a survivor of “shaken baby

syndrome” and he had cerebral palsy. When

Appellees responded they “called off” other

emergency units that were responding to the

9-1-1 call. Yet when Appellees arrived at J.J.’s

home, they refused to provide essential medical

services. Although J.J. was unresponsive,

Appellees disregarded their departmental

policies and did not provide the required

medical aid (such as CPR). After twenty-four

minutes (and a threat by Appellant to take J.J.

to the hospital on her own) Appellees provided

emergency care and then transported J.J. to

the hospital. J.J. arrived at the hospital at 1:52

a.m. and hospital staff revived him at 2:04 a.m.

JJ. must now be “fed through a tube.”

Appellant’s Opening Brief at 18-19.

The appellant recognizes that she cannot prevail

under this court’s longstanding jurisprudence whereunder

we do not recognize “state-created danger” as a theory of

3a

Appendix A

liability for a claimed constitutional violation. Appellant

asks the court to use this case as a vehicle to adopt, for

the first time, that theory.

We decline the invitation. It is a stretch to say

that state actors “created” the danger, given that the

appellant’s grandson was in medical distress, not caused

by them, when they arrived. As alleged, any failure to act

sounds more in medical malpractice or negligence than in

deliberate indifference.

It is possible that, at some point, this court will adopt

the appellant’s theory. Concluding that this is not the

case for such a jurisprudential venture, we AFFIRM the

judgment of dismissal.

4a

Appendix B OF THE UNITED

APPENDIX B — JUDGMENT

STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT, FILED FEBRUARY 27, 2024

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 23-20375

STACY WILLIAMS, ON BEHALF OF HER MINOR

GRANDSON, J.J.,

Plaintiff—Appellant,

versus

ANDREW WILLIAMS; JOE SPRADLIN,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:23-CV-289

Before SMITH, HIGGINSON, and ENGELHARDT,

Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal

and the briefs on file.

5a

Appendix B

IT IS ORDERED and ADJUDGED that the judgment

of the District Court is AFFIRMED.

IT IS FURTHER ORDERED that Appellant pay to

Appellees the costs on appeal to be taxed by the Clerk of

this Court.

The judgment or mandate of the court shall issue 7

days after the time to file a petition for rehearing expires,

or 7 days after entry of an order denying a timely petition

for panel rehearing, petition for rehearing en banc, or

motion for stay of mandate, whichever is later. See Fed.

R. A pp. P. 41(b). The court may shorten or extend the time

by order. See 5th Cir. R. 41 I.O.P.

6a

Appendix

C

APPENDIX C — CIVIL

DOCKET

FOR CASE #

4:23-cv-00289, U.S. DISTRICT COURT, SOUTHERN

DISTRICT OF TEXAS (HOUSTON)

U.S. District Court

SOUTHERN DISTRICT OF TEXAS (HOUSTON)

CIVIL DOCKET FOR CASE #: 4:23-CV-00289

Williams, o/b/o her minor grandson, J.J. v. Williams et al

Assigned to: Judge Keith P Ellison

***

08/03/2023

Minute Entry for proceedings held before Judge Keith

P Ellison. MOTION HEARING held on 8/3/2023 on

Defendants Motion to Dismiss (ECF No. 17). The Court

GRANTED WITHOUT PREJUDICE Defendants

Motion to Dismiss. Appearances: Christy L Martin,

Niles Stefan Illich.(Court Reporter: M. Malone)(Law

Clerk: IS), filed.(arrivera, 4)

(Entered: 08/04/2023)

***

7a

AppendixOF

D REHEARING OF

APPENDIX D — DENIAL

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT, FILED MARCH 19, 2024

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 23-20375

STACY WILLIAMS, ON BEHALF OF HER

MINOR GRANDSON, J.J.,

Plaintiff-Appellant,

versus

ANDREW WILLIAMS; JOE SPRADLIN,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:23-CV-289

ON PETITION FOR REHEARING EN BANC

Before Smith, Higginson, and Engelhardt, Circuit Judges.

Per Curiam:

Treating the petition for rehearing en banc as a

petition for panel rehearing (5th Cir. R. 35 I.O.P.), the

petition for panel rehearing is DENIED. Because no

member of the panel or judge in regular active service

requested that the court be polled on rehearing en banc

(Fed. R. A pp. P. 35 and 5th Cir. R. 35), the petition for

rehearing en banc is DENIED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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