Morin v. Moore (2002)

May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir.1981)). ' Even “where the plaintiff appealed only a portion of the judgment,” we generously interpret the scope of the appeal, and require a showing of prejudice to preclude review of issues “fairly inferred” from the notice and subsequent filings. 9 Morin v. Moore, 309 F.3d 316, 321 (5th Cir.2002).

Dist., 309 F.3d 308, 312-15 (5th Cir.2002) (en banc); Morin v. Moore, 309 F.3d 316, 321-24 (5th Cir.2002); Randolph v. Cervantes, 130 F.3d 727, 731 (5th Cir.1997).

Pharm. v. Holder, 634 F.3d 830, 834 (5th Cir. 2011)). 17 Williams v. Henagan, 595 F.3d 610, 616 (5th Cir. 2010) (per curiam) (first quoting S.E.C. v. Van Waeyenberghe, 990 F.2d 845 , 847 n.3 (5th Cir. 1993); and then quoting Morin v. Moore, 309 F.3d 316, 321 (5th Cir. 2002)). 12 Case: 20-50750 Document: 00516803405 Page: 13 Date Filed: 06/28/2023 No. 20-50750 judgment awarding severance pay must be reversed and rendered against Mr. Buckley,” and requested in the “Summary of …

Morin v. Moore, 309 F.3d 316, 326 (5th Cir. 2002) (“To state a claim for negligence in Texas, a plaintiff must show duty, breach, causation, and damages.”).

See Warren v. Chesapeake Exploration, L.L.C., 759 F.3d 413, 420 (5th Cir. 2014); Morin v. Moore, 309 F.3d 316, 328 (5th Cir. 2002).

Morin v. Moore, 309 F.3d 316, 324 (5th Cir. 2002).

Likewise: “We review a Rule 12(b)(6) dismissal de novo, accepting all well-plead[ed] facts as true.” Morin v. Moore, 309 F.3d 316, 319 (5th Cir. 2002) (citation omitted). 4 Case: 17-11045 Document: 00515186975 Page: 5 Date Filed: 11/05/2019 No. 17-11045 A. Martinez’ pro se appellate brief does not contain any claim against TCCO.

However, because he raises this issue for the first time in his reply *231 brief, it, too, “must be waived.” Morin v. Moore, 309 F.3d 316, 328 (5th Cir.2002).

Morin v. Moore, 309 F.3d 316, 328 (5th Cir.2002).

Station, 103 Fed.Appx. 814 (5th Cir.2004)) (emphasis in original)); Morin v. Moore, 309 F.3d 316, 322-23 (5th Cir.2002); Saenz v. Heldenfels Bros., Inc., 183 F.3d 389, 391-92 (5th Cir.1999); Estate of C.A. v. Castro, 547 Fed.Appx. 621, 627 (5th Cir.2013); Dixon v. Alcorn Cnty.

Linbrugger v. Abercia, 363 F.3d 537 , 542 n. 1 (5th Cir. 2004) (citing Morin v. Moore, 309 F.3d 316, 328 (5th Cir.2002)). 27 .

Federal Rule of Appellate Procedure 3(c)(1)(B) requires that a notice of appeal must “designate the judgment, order, or part thereof being appealed.” However, we generously interpret the scope of the notice of appeal of a pro se plaintiff and “require a showing of prejudice to preclude review of issues ‘fairly inferred’ from the notice and subsequent filings.” Williams v. Henagan, 595 F.3d 610, 616 (5th Cir. 2010) (per curiam) (quoting Morin v. Moore, 309 F.3d 316, 321 (5th …

Federal Rule of Appellate Procedure 3(c)(1)(B) requires that a notice of appeal must "designate the judgment, order, or part thereof being appealed.” However, we generously interpret the scope of the notice of appeal of a pro se plaintiff and "require a showing of prejudice to preclude review of issues 'fairly inferred' from the notice and subsequent filings.” Williams v. Henagan, 595 F.3d 610, 616 (5th Cir.2010) (per curiam) (quoting Morin v. Moore, 309 F.3d 316, 321 (5th C…

Morin v. Moore, 309 F.3d 316, 319-20 (5th Cir.2002) (citing Douglass v. United Sens.

Morin v. Moore, 309 F.3d 316, 321 (5th Cir.2002).

Under our precedent, the state-created danger theory applies only when the state has "actual knowledge of a specific risk of harm to a known victim.” Morin v. Moore, 309 F.3d 316, 322 (5th Cir. 2002); see also Rios v. City of Del Rio, Tex., 444 F.3d 417, 424 (5th Cir.2006).

We have, however, many times refused to allow recovery sought to be predicated thereunder.”); see also Beltran v. City of El Paso, 367 F.3d 299, 307 (5th Cir.2004) (“This court has consistently refused to recognize a ‘state-created danger’ theory of § 1983 liability”); Morin v. Moore, 309 F.3d 316, 321-24 (5th Cir.2002); McKinney v. Irving Indep.

Morin v. Moore, 309 F.3d 316, 324 (5th Cir. 2002) (“In making an Erie determination, we are emphatically not permitted to do merely what we think best; we must do that which the Texas Supreme Court would deem best.").

Morin v. Moore, 309 F.3d 316, 321 (5th Cir.2002) (internal citations omitted).

Morin v. Moore, 309 F.3d 316, 319 (5th Cir.2002); Harper v. Showers, 174 F.3d 716, 718 (5th Cir.1999).

Morin v. Moore, 309 F.3d 316, 319 (5th Cir.2002); Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999).

Co., 389 F.3d 475 , 481 n. 3 (5th Cir.2004); Morin v. Moore, 309 F.3d 316, 328 (5th Cir.2002); Fed.

CASES CONSOLIDATED; AFFIRMED. 12 See Morin v. Moore, 309 F.3d 316, 328 (5th Cir.2002); Yohey, 985 F.2d at 224-25 . 13 See United States v. Mizell, 88 F.3d 288, 299-300 (5th Cir. 1996). -6-

CASES CONSOLIDATED; AFFIRMED. 12 See Morin v. Moore, 309 F.3d 316, 328 (5th Cir.2002); Yohey, 985 F.2d at 224-25 . 13 See United States v. Mizell, 88 F.3d 288, 299-300 (5th Cir. 1996). -6-

Morin v. Moore, 309 F.3d 316, 319 (5th Cir.2002).

Morin v. Moore, 309 F.3d 316, 319 (5th Cir.2002).

Morin v. Moore, 309 F.3d 316, 321 (5th Cir. 2002); see also McClendon v. City of Columbia, 305 F.3d 314 , passim, (5th Cir. 2002)(en banc).

See McClendon v. City of Columbia, 305 F.3d 314 (5th Cir.2002) (McClendon II); Morin v. Moore, 309 F.3d 316, 321 (5th Cir.2002).

Id. at *8. 43 . 309 F.3d 316, 325 (5th Cir.2002); see also Byers v. Hubbard, 107 Ohio App.3d 677 , 669 N.E.2d 320, 323 (1995) (holding that there was a triable issue of material fact as to whether plaintiff's injury was foreseeable where the defendant lent his wife a handgun after his wife had an argument with the plaintiff and the wife shot the plaintiff). 44 . - See Morin, 309 F.3d at 325 . 45 . 407 F.2d 1165 (7th Cir.1969). 46 .

See, e.g., Morin v. Moore, 309 F.3d 316, 327 (5th Cir. 2002) ("for purposes of a negligent entrustment claim, permission may be express or implied"); Armenta v. A.S.

Dist., 38 F.3d 198 , 201 (5th Cir. 1994) (refusing to decide whether a state-created danger theory was “constitu- tionally sound” in the context of a student being shot and killed at school); Morin v. Moore, 309 F.3d 316, 321 (5th Cir. 2002) (not “adopt[ing] or re- ject[ing] a state-created cause of danger in the context of a mass shooting by the mentally challenged son of a police officer); Dixon v. Alcorn County Sch.

See Morin v. Moore, 309 F.3d 316, 328 (5th Cir. 2002) (“[Plaintiffs] raise this issue for the first time in their reply brief, it must be waived.”); Gill v. Petro.

To ensure that Defendants prepare an adequate response to Plaintiff’s claims, Plaintiff shall file a superseding, amended complaint setting forth: (1) all causes of action asserted by each Plaintiff against each Defendant, (2) the specific factual basis for each cause of action against each Defendant, 40 See Morin v. Moore, 309 F.3d 316, 323 (5th Cir. 2002) (“This Court has held, that in the interest of justice a revised theory of the case set forth in the plaintiff’s opposi…

Doc. 24 at 1-2. 38 Id. at 2. 39 Id. 40 See Morin v. Moore, 309 F.3d 316, 323 (5th Cir. 2002) (“This Court has held, that in the interest of justice a revised theory of the case set forth in the plaintiff’s opposition should be construed as a motion to amend the pleadings filed out of time and granted by the district court pursuant to the permissive command of Rule 15.”) (citing Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972)); Stover v. Hattiesburg Pub.

Morin v. Moore, 309 F.3d 316, 321-22 (5th Cir. 2002) (“In order to recover under the state-created danger theory, we assume that a plaintiff would have to show, at a minimum, that: (1) the state actors created or increased the danger to the plaintiff and (2) the state actors acted with deliberate indifference.”).

Doc. 17, at 6. 27 See Morin v. Moore, 309 F.3d 316, 323 (5th Cir. 2002) (“This Court has held, that in the interest of justice a revised theory of the case set forth in the plaintiff’s opposition should be construed as a motion to amend the pleadings filed out of time and granted by the district court pursuant to the permissive command of Rule 15.”) (citing Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972)); Stover v. Hattiesburg Pub.

Therefore, “[i]f the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.” Lane v. Halliburton, 529 F.3d 548, 566 (5th Cir. 2008) (quoting Restatement (Second) Torts § 449) (citing Nixon, 690 S.W.2d at 549 ; Kimbriel Produce Co. v. Mayo, 180 S.W.2d 504, …

See, e.g., Coxe, 295 P.3d at 394-95 (state law permits negligent entrustment claim against a firearms seller); Rains v. Bend of the River, 124 S.W.3d 580, 596-97 (Tenn.Ct.App.2003) ("Tennessee law can accommodate a claim for 'negligent entrustment of handgun ammunition”); Morin v. Moore, 309 F.3d 316, 324 (5th Cir.2002) (Texas law w’ould recognize a negligent entrustment action against a defendant who permitted a "psychologically unstable” person to have an assault rifle); I…

Cf. Morin v. Moore, 309 F.3d 316, 325 (5th Cir.2002) (holding that the plaintiffs’ claims fell within the scope of section 101.021 when those claims alleged that an officer, who obtained a rifle from the police department, was allegedly acting within the scope of his employment when he negligently entrusted the rifle to his son). 13 *974 Nonetheless, the use of the property “must have actually caused the injury.” Tex. Dep’t of Crim.

We have, however, many times refused to allow recovery sought to be predicated thereunder.”); see also Beltran v. City of El Paso, 367 F.3d 299, 307 (5th Cir.2004) (“This court has consistently refused to recognize a ‘state-created danger’ theory of § 1983 liability”); Morin v. Moore, 309 F.3d 316, 321-24 (5th Cir.2002); McKinney v. Irving Indep.

Morin v. Moore, 309 F.3d 316, 328 (5th Cir.2002) (quoting Gonzales v. City of El Paso, 978 S.W.2d 619, 623 (Tex.App.-El Paso 1998, no pet.)).

The flip side of the analysis is that “the Due Process Clause of the Fourteenth Amendment does not, as a general matter, require the government to protect its citizens from the acts of private actors.” Morin v. Moore, 309 F.3d 316, 321 (5th Cir. 2002) (citing DeShaney v. Winnebago County Dep’t of Soc.

The Court’s own research has also discovered Knight v. Wal-Mart Stores, Inc., 889 F.Supp. 1532, 1541-42 (S.D.Ga.1995), in which the court found an issue of fact as to foreseeability based on what it described as a “special duty” imposed on firearms dealers, as well as factual evidence that could have been indicative of foreseeability (i.e., reports that the purchaser was looking “wild” or “rushed, upset, and ... was talking to himself,” the comment of an employee who assiste…

Morin v. Moore, 309 F.3d 316, 324-25 (5th Cir.2002); Ireland v. Jefferson County Sheriff’s Dep't, 193 F.Supp.2d 1201, 1229 (D.Colo.2002); Brown, 976 F.Supp. at 734-35 ; Flieger v. Barcia, 674 P.2d 299, 301 (Alaska 1983); Jacoves v. United Merch.

Morin v. Moore, 309 F.3d 316, 324-25 (5th Cir. 2002); Ireland v. Jefferson County Sheriff’s Dep’t, 193 F. Supp. 2d 1201, 1229 (D.

A state actor’s failure to alleviate ‘a state significant risk that he should have perceived but did not,’ while ‘no cause' for commendation,’ does not rise to the level of deliberate indifference.” Morin v. Moore, 309 F.3d 316, 322 (5th Cir.2002) (quoting McClendon II, 305 F.3d at 326 ) (citations omitted).

Morin v. Moore, 309 F.3d 316 324 (5th Cir. 2002) (assault rifle); Ireland v. Jefferson County -10- Sheriff's Dep't, 193 F. Supp.2d at 1227-28 (shotgun); Brown v. Wal-Mart Stores, Inc., 976 F. Supp. at 734 (ammunition); Knight v. Wal-Mart Stores, Inc., 889 F. Supp. at 1539 (firearms and ammunition); Hamilton v. Beretta U.S.A.

The court “must do that which [it] thinks the [California] Supreme Court would deem best.” Morin v. Moore, 309 F.3d 316, 324 (5th Cir.2002) (citation omitted).

Morin v. Moore, 309 F.3d 316, 324 (5th Cir.2002) (assault rifle); Ireland v. Jefferson County Sheriff’s Dep’t, 193 F.Supp.2d at 1227-28 (shotgun); Brown v. Wal-Mart Stores, Inc., 976 F.Supp. at 734 (ammunition); Knight v. Wal-Mart Stores, Inc., 889 F.Supp. at 1539 (firearms and ammunition); Hamilton v. Beretta U.S.A.

Morin v. Moore, 309 F.3d 316, 321-22 (5th Cir.2002), reh’g denied, 57 Fed.Appx. 213 (5th Cir.2003) (citing cases).