Salinas v. Nueces Cty Community

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-40865
Summary Calendar
NANCY SALINAS, also known as Shae,
Plaintiff-Appellant,
VERSUS
NUECES COUNTY COMMUNITY SUPERVISION
AND CORRECTIONS DEPARTMENT; et al.,
Defendants,
EDDIE GONZALEZ,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(C-00-CV-217)
April 23, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*

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Nancy Salinas sued her former employer, the Nueces County
Community Supervision & Corrections Department (“the Department”),
and her former supervisor, Eddie Gonzalez, claiming that she was
fired for criticizing alleged injustices and inefficiencies within
the Department in violation of the First Amendment and 42 U.S.C. §
1983. The district court granted summary judgment in favor of Mr.
Gonzalez on the grounds of qualified immunity. Because the
district court granted summary judgment in violation of a stay
issued by prior panel of this court, we vacate and remand for
further proceedings.
I.
On May 30, 2000, Salinas sued the Department and Mr. Gonzales
in his official and individual capacities under 42 U.S.C. § 1983,
alleging that she was terminated in retaliation for exercising her
First Amendment right to free speech. Shortly thereafter, the
Department filed a Rule 12(b)(6) motion to dismiss for failure to
state a claim. After the Department filed its motion to dismiss,
Ms. Salinas filed an amended complaint dismissing all charges
against the Department and proceeding solely against Mr. Gonzalez.
On September 25, 2000, Mr. Gonzalez filed a motion to dismiss
the claims filed against him in his official capacity, and on
January 5, 2001, he filed a motion for summary judgment on the
grounds of qualified immunity. On June 8, 2001, the district court

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granted Mr. Gonzalez’s motion to dismiss, but it did not rule on
his motion for summary judgment.
The parties were set to meet in court for a pretrial
conference on June 15, 2001, three days before their scheduled jury
trial. But on June 14, before attending the pretrial conference,
Mr. Gonzalez filed an interlocutory appeal with this court
regarding the district court’s failure to rule on his motion for
summary judgment. Mr. Gonzalez also petitioned this court for an
emergency stay of all proceedings in the district court pending his
interlocutory appeal. Mr. Gonzalez’s motion asked that we “stay
the trial of this case and all other proceedings until this Court
has an opportunity to review and rule upon this [interlocutory]
appeal.” (Def. Gonzalez’s Mot. to Stay All Proceedings and Trial
Set for June 18, 2001, at ¶ 4). On that same day, a panel of this
court ordered the district court to “stay all proceedings and the
trial set for June 18, 2001, pending appeal.” Salinas v. Nueces
County Cmty. Supervision & Corr. Dep’t, No. 01-40640 (5th Cir. June
14, 2001).
Despite the stay, the district court ordered the parties to
appear on June 27, 2001 for a hearing on Mr. Gonzalez’s motion for
summary judgment. Then, on June 29, 2001, while this court’s stay
was still in effect, the district court entered an order granting
Mr. Gonzalez’s motion for summary judgment. On July 24, having
procured a favorable summary judgment ruling, Mr. Gonzalez filed a
motion with this court to dismiss his interlocutory appeal as moot.

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The next day, the clerk of the Fifth Circuit filed an order
granting Mr. Gonzalez’s motion to dismiss the appeal.
Ms. Salinas has appealed the district court’s summary judgment
ruling arguing, among other things, that the court’s ruling
violated the stay. Although she was represented by counsel in the
district court, Ms. Salinas appeals her summary judgment dismissal
pro se.
II.
This court has the jurisdiction to stay proceedings in
district court under the All Writs Act, 28 U.S.C. § 1651 (1994).
See also Fed. R. App. P. 8(a)(2); 11 Charles A. Wright et al.,
Federal Practice and Procedure § 2908, at 528-29 (1995). The power
to stay is part a court’s inherent power to preserve the status quo
pending appeal. Pettway v. American Cast Iron Pipe Co., 411 F.2d
998, 1003 (5th Cir. 1969). The scope of the prior panel’s stay
order was clear: “It is ORDERED that Appellant’s motion to stay all
proceedings and the trial set for June 18, 2001, pending appeal is
GRANTED.” Salinas v. Nueces County Cmty. Supervision & Corr.
Dep’t, No. 01-40640 (5th Cir. June 14, 2001) (italics added).
Since the district court commenced proceedings in violation of this
court’s stay, we VACATE the district court’s summary judgment
ruling and REMAND for further proceedings.

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