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.