     Case: 10-20035        Document: 00511506815         Page: 1     Date Filed: 06/13/2011




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                   FILED
                                                                              June 13, 2011

                                          No. 10-20035                        Lyle W. Cayce
                                                                                   Clerk

GEORGE RODRIGUEZ,

                                                      Plaintiff - Appellee
v.

CITY OF HOUSTON,

                                                      Defendant - Appellant




                      Appeals from the United States District Court
                           for the Southern District of Texas
                            Dist Ct. Docket No. 4:06-cv-2650


Before JOLLY and HAYNES, Circuit Judges, and RODRIGUEZ* , District Judge.
PER CURIAM:**
        George Rodriguez sued the City of Houston under 42 U.S.C. § 1983 after
his conviction for rape and kidnapping was set aside on habeas review as a
result of demonstrably false serology evidence presented by the chief of the City
of Houston crime lab’s serology section. Following a lengthy jury trial, the
district court entered judgment on the jury verdict for Rodriguez. At the time
judgment was entered, the state of the law on municipal liability for wrongfully

        *
            District Judge of the Western District of Texas, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-20035   Document: 00511506815     Page: 2   Date Filed: 06/13/2011



                                  No. 10-20035

proffered (or withheld) evidence in our circuit could be found in the affirmance
by an equally divided en banc court in Thompson v. Connick, 578 F.3d 293 (5th
Cir. 2009). Prior to the en banc affirmance, a panel of this court had likewise
affirmed the liability of the city in that case. Thompson v. Connick, 553 F.3d 836
(5th Cir. 2008). After this case was on appeal to our court, the United States
Supreme Court granted certiorari in Connick v. Thompson, 130 S. Ct. 1880
(2010), and we stayed this appeal pending the Supreme Court’s decision in that
case. Thereafter, the Court reversed our court in Connick v. Thompson, 131 S.
Ct. 1350 (2011).
       We conclude that the interests of justice counsel in favor of allowing the
district court in the first instance to consider that case and apply it as
appropriate to the extensive facts and evidence developed in the lengthy trial in
this case. Accordingly, without determining the merits at this time, we VACATE
the district court’s judgment and REMAND for consideration in light of Connick.
See Sabala v. Western Gillette, Inc., 559 F.2d 282, 283 (5th Cir. 1977); see also
Elizondo v. Parks, 254 F. App’x 329, 332 (5th Cir. 2007) (unpublished) (vacating
the district court’s order denying qualified immunity and remanding for
reconsideration in light of Garcetti v. Ceballos, 547 U.S. 410 (2006)).




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