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

                                                                        FILED
                                                                     April 24, 2019
                                 No. 18-10561
                                                                     Lyle W. Cayce
                                                                          Clerk

ANGIE WALLER, Individually and in her Capacity as Independent
Executrix of the Estate of Kathleen Margaret Waller; CHRIS WALLER,

             Plaintiffs - Appellees

TERRY WAYNE SPRINGER; GAYLA WYNELL KIMBROUGH,

             Intervenor Plaintiffs - Appellees

v.

BENJAMIN B. HANLON; RICHARD HOEPPNER; B. S. HARDIN,

             Defendants - Appellants



                Appeals from the United States District Court
                     for the Northern District of Texas




Before KING, SMITH, and WILLETT, Circuit Judges.
KING, Circuit Judge:
      Fort Worth Police Officer Richard Hoeppner fatally shot 72-year old
Jerry Waller in Waller’s own garage. Hoeppner insists he did so only out of
reasonable fear for his life. Seeking recompense for Waller’s death, Waller’s
survivors came to the district court alleging that forensic evidence
substantially undermines Hoeppner’s version of events. The district court
concluded that the plaintiffs pleaded enough facts to plausibly allege that
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                                  No. 18-10561
Hoeppner did not reasonably fear for his safety when he shot Waller. It
likewise concluded they pleaded enough facts to allege that defendant police
officers Benjamin Hanlon and B. S. Hardin conspired with Hoeppner to veil
the true circumstances of Waller’s death. It accordingly denied the defendants’
motions for a judgment on the pleadings.
      The defendants appeal that ruling. Exercising appellate jurisdiction
under the collateral-order doctrine, we AFFIRM in part and REVERSE in part.
We agree with the district court that the plaintiffs plausibly allege Waller was
unarmed—and thus posed no reasonably perceivable threat—when Hoeppner
killed him. But we conclude the plaintiffs’ claims alleging the defendants
denied them access to the courts are currently unripe. We also conclude the
plaintiffs do not have standing to seek declaratory (as opposed to retrospective)
relief for the past injury to Waller.
                                        I.
                                        A.
      We draw the following facts from the plaintiffs’ pleadings and the
attachments thereto.
      Defendants Richard Hoeppner and Benjamin Hanlon, both Fort Worth
police officers on patrol during the early morning of May 28, 2013, were
dispatched to 409 Havenwood Lane North to investigate a residential burglary
alarm. Hoeppner and Hanlon arrived in separate vehicles and parked down
the street from 409 Havenwood Lane North, so they could approach
surreptitiously. The officers proceeded on foot to 404 Havenwood Lane North,
erroneously believing it was 409 Havenwood Lane North, which was across the
street. The officers looked around the outside of the house and noticed the
garage door was open. Hanlon then went to knock on the front door while
Hoeppner stayed by the open garage. Meanwhile, the officers’ flashlights
roused Jerry and Kathleen Waller, the residents of 404 Havenwood Lane
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                                        No. 18-10561
North. Jerry Waller attributed the lights to his car alarm, so he went out to
the garage to investigate.
      What happened next is the subject of dispute. Hoeppner and Hanlon, the
only surviving witnesses to the encounter, recounted the following version of
events in a series of statements to investigators. 1 Holding a small gun, Waller
entered the garage through a door that led in from the house. Hoeppner shined
his 600-lumen flashlight in Waller’s eyes specifically to conceal himself, drew
his service weapon, and repeatedly ordered Waller to drop the gun. Hoeppner
did not identify himself as a police officer, but Hanlon, upon hearing Hoeppner
shouting in the garage, rushed to the garage while yelling “Fort Worth PD.”
      Waller ignored Hoeppner’s repeated commands to drop his gun. Instead,
Waller became combative and demanded that Hoeppner get the light out of his
eyes. Waller eventually did put the gun down on the back of a car parked in
the garage. Hoeppner moved toward the gun, but Waller suddenly lunged for
the gun, retrieved it, and pointed it at Hoeppner. Fearing for his life, Hoeppner
shot Waller five or six times, and Waller fell forward on top of the gun. Hanlon
did not fire his weapon.
      The plaintiffs accuse Hoeppner and Hanlon of fabricating this story to
cover up an unjustified use of force. They allege that physical evidence shows
that Waller could not have been holding a gun when he was shot. Rather, they
say the autopsy report and blood-splatter patterns suggest that Waller was
holding both his hands over his face when he was shot.
      The autopsy report, which the plaintiffs attach to their pleadings, shows
that one of Hoeppner’s bullets went through Waller’s left thumb and struck
several of his fingers on his left hand. The plaintiffs maintain that the bullet’s
path through Waller’s fingers and the blood on the palm of his left hand suggest


      1   The plaintiffs attach these statements to their pleadings but disavow their accuracy.
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                                  No. 18-10561
that he could not have been gripping a gun with his left hand when it was
struck. Further, they say that Waller’s gun was not damaged in the shooting
and crime-scene photographs do not reveal any blood on the gun’s handle,
making it unlikely it was in Waller’s left hand when he was struck.
      Likewise, Waller had blood splatter on the palm of his right hand, which
the plaintiffs cite as evidence that when he was shot, he was not holding
anything in his right hand either. Waller also had blood splatter around his
left ear, which, the plaintiffs posit, means he must have been holding his left
hand above his face when the bullet hit it, likely because he was trying to shield
the light from his eyes. And if the blood splatter on his right hand also came
from the wound on his left hand, then his right hand must have also been at
eye level when he was shot.
      The events that allegedly followed further animate the plaintiffs’
suspicions. They allege that defendant B. S. Hardin, another Fort Worth
officer, arrived at the scene a few minutes after the shooting and conspired
with Hoeppner and Hanlon to cover up Hoeppner’s culpability. Hardin told
investigators that he went to administer aid to Waller when he arrived on
scene because he had prior experience as an EMT. Hardin said that Hoeppner
told him there was a gun underneath Waller, so he lifted Waller’s body and
laid the gun off to the side before administering aid in case Waller could still
fire the weapon. It was not until after removing the gun, Hardin said, that he
discovered Waller did not have a pulse.
      The plaintiffs allege that Hardin lied about finding a gun under Waller’s
body. The plaintiffs assert that Hardin had no legitimate reason to move the
gun from underneath Waller to about a foot from Waller’s head, where it is
later depicted in crime-scene photographs. They also point to inconsistent
statements about the positioning of Waller’s arms as evidence that Hardin
fabricated his story. Hardin told investigators that Waller’s arms were tucked
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                                        No. 18-10561
underneath his chest when Hardin found him. But Kathleen Waller, who,
according to Hardin, entered the garage around the same time as he arrived
(and thus before he removed the gun), recalled that Jerry Waller’s hands were
at his sides in a “pushup”-like position. Subsequent crime-scene photographs
show Waller with his left arm stretched perpendicular to his body and his right
arm laying parallel at his side.
       The plaintiffs additionally allege several procedural irregularities in the
early stages of the investigation, which they contend to be further evidence of
a conspiracy. They allege that the defendants took more than five hours to call
the medical examiner in violation of a state law that requires police officers to
report an unnatural death to the medical examiner “immediately” upon its
discovery. 2 Tex. Code Crim. Proc. Ann. art. 49.25 § 7(a). They likewise argue
that one of the officers violated state law by moving Waller’s body without
permission from the medical examiner. See id. § 8. And they allege someone
stepped in Waller’s blood and tracked it throughout the garage, further
contaminating the crime scene.
                                               B.
       Waller’s survivors 3 brought 42 U.S.C. § 1983 claims against Hoeppner,
Hanlon, Hardin, the City of Fort Worth, and several officers involved in the
investigation into Waller’s death. As relevant to this appeal, they alleged that
Hoeppner used excessive force against Waller in violation of his Fourth and
Fourteenth Amendment rights to be free from unreasonable seizures. They
also claimed that Hoeppner, Hanlon, and Hardin conspired to cover up



       2  In contrast, the plaintiffs allege that a police-union attorney was “on the scene within
minutes” of Waller’s death.
        3 The original plaintiffs consist of Waller’s two children, one of whom is acting in a

dual capacity as the executrix of Kathleen Waller’s estate, who died while this case was
pending below. Waller’s two additional children joined as intervenors. We refer to the
plaintiffs and intervenors collectively as the “plaintiffs” throughout this opinion.
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                                       No. 18-10561
Hoeppner’s use of excessive force in violation of their constitutional right to
access the courts. And they sought declaratory relief for violations of analogous
rights under the Texas Constitution.
       Hoeppner, Hanlon, and Hardin each answered with a qualified-
immunity defense to the § 1983 claims. On the district court’s order, the
plaintiffs then filed a reply addressing qualified immunity. Hoeppner, Hanlon,
and Hardin subsequently moved for judgment on the pleadings, arguing that
the plaintiffs’ pleadings were insufficient to overcome their qualified-immunity
defenses. The district court determined that the defendants were not entitled
to qualified immunity based on the plaintiffs’ well-pleaded allegations and thus
denied the defendants’ motions in relevant part. 4 Specifically, it concluded that
the plaintiffs’ allegations, taken as true, established that Waller was not
holding a weapon when Hoeppner shot him. Thus, it ruled that the plaintiffs
plausibly alleged Hoeppner did not reasonably perceive a threat when he shot
Waller in violation of clearly established law. The district court also concluded
that the plaintiffs plausibly alleged the defendants conspired to tamper with
the crime scene and give false statements in a manner that could prove fatally
detrimental to the plaintiffs’ claims against Hoeppner. These acts, the district
court explained, violated the plaintiffs’ clearly established rights to access the
courts. Lastly, the district court ruled that state law authorized the plaintiffs
to pursue declaratory relief for violations of the Texas Constitution. The
defendants appeal these rulings.
                                             II.
       Before turning to the merits of the defendants’ appeal, we must assure
ourselves of our appellate jurisdiction. Congress has granted us jurisdiction



       The district court granted the motions as to several claims not at issue in this appeal
       4

and granted Officer A. Chambers’s motion in its entirety.
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                                  No. 18-10561
over “final decisions of the district courts” within this circuit. 28 U.S.C. § 1291.
Under the collateral-order doctrine, the Supreme Court has interpreted “final
decisions” to include certain decisions that “finally determine claims of right
separable from, and collateral to, rights asserted in the action, too important
to be denied review and too independent of the cause itself to require that
appellate consideration be deferred until the whole case is adjudicated.” Cohen
v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). An order denying an
officer’s qualified-immunity defense is generally a collateral order subject to
immediate appeal. See Hinojosa v. Livingston, 807 F.3d 657, 663 (5th Cir.
2015).
      Despite the general rule, the plaintiffs argue that we do not have
jurisdiction to review the district court’s order denying the defendants’ motions
for a judgment on the pleadings because, in denying those motions, the district
court determined that “genuine issues of material fact” precluded dismissal.
This argument confuses the procedural posture of this case. In hearing an
appeal from an order denying summary judgment on qualified-immunity
grounds, we have jurisdiction to “review the materiality of any factual
disputes, but not their genuineness.” Hogan v. Cunningham, 722 F.3d 725, 731
(5th Cir. 2013) (quoting Juarez v. Aguilar, 666 F.3d 325, 331 (5th Cir. 2011)).
But this appeal comes to us on the defendants’ motions for judgment on the
pleadings, not summary judgment. In reviewing the defendants’ motions for
judgment on the pleadings, the district court did not (and could not) consider
whether the evidence created a genuine factual dispute. See Bosarge v. Miss.
Bureau of Narcotics, 796 F.3d 435, 439 (5th Cir. 2015). We possess—and
routinely exercise—jurisdiction to review a district court’s determination at
the pleadings stage that a plaintiff has alleged sufficient facts to overcome a
qualified-immunity defense. Id. at 438-39; see also, e.g., Shaw v. Villanueva,
918 F.3d 414, 416 (5th Cir. 2019); Doe v. Robertson, 751 F.3d 383, 386-87 (5th
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                                  No. 18-10561
Cir. 2014). Accordingly, we have jurisdiction to review the district court’s
rulings on the defendants’ qualified-immunity defenses to the plaintiffs’ § 1983
claims.
      Whether we have jurisdiction to review the portion of the district court’s
order addressing the plaintiffs’ state-law declaratory-judgment claims is a
separate question. As the plaintiffs point out, the defendants do not assert
immunity from these claims—nor could they because qualified immunity
applies only to claims for money damages. See Morgan v. Swanson, 659 F.3d
359, 365 n.3 (5th Cir. 2011) (en banc). We thus agree with the plaintiffs that,
normally, the denial of a motion to dismiss a declaratory-judgment claim is not
immediately appealable. But we may exercise pendent jurisdiction over
interlocutory orders when, inter alia, “addressing the pendent claim will
further the purpose of officer-immunities by helping the officer avoid trial” or
“the claims involve precisely the same facts and elements.” Escobar v. Montee,
895 F.3d 387, 392-93 (5th Cir. 2018) (footnotes omitted). Both situations are
present here. It would undermine the purpose of qualified immunity if the
defendants here were subject to trial on the declaratory-judgment claims
despite immunity from the § 1983 claims. Cf. Melton v. Phillips, 875 F.3d 256,
265 n.9 (5th Cir. 2017) (en banc) (“[Q]ualified immunity is an immunity from
suit that ‘is effectively lost if a case is erroneously permitted to go to trial.’”
(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009))). Further, the
plaintiffs identify no differences between the facts or elements needed to prove
their declaratory-judgment claims and those needed to prove their § 1983
claims. Accordingly, we have jurisdiction to review the district court’s rulings
on the plaintiffs’ declaratory-judgment claims.
                                       III.
      We review the defendants’ motions for judgment on the pleadings de
novo. Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017). The standard for
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Rule 12(c) motions for judgment on the pleadings is identical to the standard
for Rule 12(b)(6) motions to dismiss for failure to state a claim. See Doe v.
MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). To survive a motion for a
judgment on the pleadings, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). This involves a two-step inquiry. See Robertson, 751
F.3d at 388, 390. First, we must identify the complaint’s well-pleaded factual
content. See id. at 388. In doing so, we set aside “any unsupported legal
conclusions,” the truth of which “we cannot assume.” Id.; see also Iqbal, 556
U.S. at 678-79. Second, we ask whether the remaining allegations “are
sufficient to nudge the [plaintiff’s] claim across the ‘plausibility’ threshold.”
Robertson, 751 F.3d at 390 (quoting Iqbal, 556 U.S. at 678). In other words, we
ask whether we can reasonably infer from the complaint’s well-pleaded factual
content “more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679.
This is “a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id.
      Section 1983 provides a cause of action to an individual harmed by a
state official’s violation of federal law. A state official sued under § 1983 is
entitled to qualified immunity from damages, which protects the official from
liability for any act that was not objectively unreasonable at the time of the
act. See Lincoln v. Turner, 874 F.3d 833, 847 (5th Cir. 2017). “The basic steps
of our qualified-immunity inquiry are well-known: a plaintiff seeking to defeat
qualified immunity must show: ‘(1) that the official violated a statutory or
constitutional right, and (2) that the right was “clearly established” at the time
of the challenged conduct.’” Id. at 847-48 (quoting Morgan, 659 F.3d at 371).
When confronted with a qualified-immunity defense at the pleadings stage, the
plaintiff must plead “facts which, if proved, would defeat [the] claim of
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                                  No. 18-10561
immunity.” Westfall v. Luna, 903 F.3d 534, 542 (5th Cir. 2018) (quoting Brown
v. Glossip, 878 F.2d 871, 874 (5th Cir. 1989)).
                                        A.
      We first consider whether the plaintiffs allege sufficient facts to
overcome Hoeppner’s qualified-immunity defense to their excessive-force
claim. The parties appear to agree that that Hoeppner did not violate Waller’s
rights if Waller was holding the gun at the time he was shot but did violate
Waller’s clearly established rights if Waller was not holding the gun. Neither
party makes an argument under the second prong of the qualified-immunity
test. Thus, only the first prong is at issue here, and the sole question is whether
the plaintiffs’ pleadings plausibly allege that Waller was unarmed when
Hoeppner shot him.
      We conclude the plaintiffs’ claim is plausible based on the specific and
detailed factual allegations they advance in support of their theory of events.
Most notably, the plaintiffs’ allegations about Waller’s left-hand wounds and
blood-spatter patterns support the reasonable inference that Waller was
unarmed when he was shot. The path of the bullet through Waller’s fingers
appears to suggest his hand was not clenched, as it would have been if he had
been holding a gun. Further, if Waller was holding a gun when the bullet
struck his left hand, it seems unlikely the bullet would have hit three of his
fingers without at all damaging the gun. Moreover, it is not clear how
unsmeared blood splatter could have ended up on Waller’s right palm if Waller
was holding a gun in his right hand.
      Hoeppner raises two specific challenges to the sufficiency of these
allegations. First, he insists that the plaintiffs pleaded themselves out of court
by attaching the autopsy report to their pleadings. On the face of their
pleadings, the plaintiffs allege that the autopsy report shows Waller could not
have been holding a gun when he was shot. But Hoeppner observes that the
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                                   No. 18-10561
autopsy report does not opine on whether Waller could have been holding a
gun when he was shot. Therefore, Hoeppner says, the autopsy report conflicts
with the plaintiffs’ pleadings and takes precedence over the pleadings. Cf. Smit
v. SXSW Holdings, Inc., 903 F.3d 522, 528 (5th Cir. 2018) (“[W]hen an
‘allegation is contradicted by the contents of an exhibit attached to the
pleading, then indeed the exhibit and not the allegation controls.’” (quoting
United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 377 (5th
Cir. 2004))).
      We disagree. Hoeppner misunderstands the plaintiffs’ reliance on the
autopsy report. The plaintiffs do not allege that the autopsy report itself
concluded that Waller could not have been holding a gun at the time he was
shot. Rather, they allege that such an inference can be drawn from the
information contained within the autopsy report—specifically, the descriptions
of Waller’s left-hand wounds. The contents of the autopsy report are consistent
with the plaintiffs’ allegations, so at this stage of the litigation, we accept those
allegations as true.
      Second, Hoeppner argues that these allegations raise only the possibility
that he was not justified in shooting Waller. He asserts the plaintiffs’
allegations about Waller’s left-hand wounds and right-hand unsmeared blood
spatter only show Waller was unarmed when he was hit by one of Hoeppner’s
five bullets. If Waller was armed when Hoeppner began to fire but dropped the
gun sometime between being struck by Hoeppner’s first and final shots, then
Hoeppner argues his use of force would have been reasonable. In making this
argument, Hoeppner ignores his own statement to investigators—attached to
and quoted verbatim in the plaintiffs’ pleadings—that he fired multiple shots




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specifically because Waller did not drop the gun and thus remained a threat.
He explained:
      I know there was one delayed shot [be]cause I put rounds on him
      at first I kind of noticed he kind of . . . I mean, like he was taking
      them like that and then he kind . . . kind of hunched over. And I’m
      not sure if he was falling over or if he was bending over [be]cause
      it hurt so . . . and I saw he still had the gun in his hand and so I
      . . . so I . . . I put . . . I put one more round on him and that’s when
      he fell forward.

(ellipses in original) (emphasis added).
      Furthermore, even if Waller might have dropped the gun at some point
during the shooting, this possibility, when weighed against the plaintiffs’
detailed and specific factual pleadings, does not render implausible their
allegation that Waller was unarmed when shot. Hoeppner demands too much
at the pleadings stage; allegations need “not conclusively establish” the
plaintiffs’ theory of the case. Robertson, 751 F.3d at 389. For now, it suffices
that the plaintiffs’ allegations “are not ‘naked assertions devoid of further
factual enhancement.’” Id. (quoting Iqbal, 556 U.S. at 678).
      Hoeppner tries to compare the present facts to those in several police-
shooting cases in which we held for the officers because the plaintiffs’ evidence
only permitted us to speculate about whether the officers’ descriptions of
events leading up to the shootings were untruthful. None of these cases is an
apt comparison. In each case, the plaintiffs sought to rely on certain
circumstantial evidence to create a genuine factual dispute on summary
judgment, but the court in each instance found that the plaintiffs’ evidence was
consistent with the officers’ versions of events. See Small ex rel. R.G. v. City of
Alexandria, 622 F. App’x 378, 382-83 (5th Cir. 2015) (unpublished) (per
curiam) (affirming summary judgment for officer because “no record evidence
call[ed] into question [the officer’s] testimony about [the decedent’s] behavior

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                                   No. 18-10561
immediately prior to the shooting”); Thomas v. Baldwin, 595 F. App’x 378, 382
(5th Cir. 2014) (unpublished) (explaining that autopsy report suggesting
decedent was shot in his side did not support plaintiffs’ “bare assertion that
[the decedent] was fleeing at the time he was shot”); Manis v. Lawson, 585 F.3d
839, 844 (5th Cir. 2009) (reversing denial of qualified immunity on summary
judgment because plaintiffs did “not dispute the only fact material to whether
[the officer] was justified in using deadly force: that [the decedent] reached
under the seat of his vehicle and then moved as if he had obtained the object
he sought”); Ontiveros v. City of Rosenberg, 564 F.3d 379, 383 (5th Cir. 2009)
(explaining that plaintiffs were “attempting to use . . . undisputed facts to
imply a speculative scenario that ha[d] no factual support”). Here, by contrast,
the hand wounds and blood splatter provide at least some support for the
plaintiffs’ allegation that Waller was not holding a gun, which, if true,
contradicts Hoeppner’s and Hanlon’s explanations for the shooting.
      In sum, the plaintiffs’ specific and detailed factual pleadings about the
crime-scene evidence make plausible their allegation that Waller followed
Hoeppner’s commands, put down his weapon, and was unarmed when
Hoeppner shot him. If this allegation is true, then qualified immunity would
not shield Hoeppner from the plaintiffs’ excessive-force claim. See, e.g., Bazan
ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 493 (5th Cir. 2001). Accordingly,
we affirm the district court’s order denying Hoeppner’s motion for judgment on
the pleadings on the plaintiffs’ excessive-force claim.
                                         B.
      We next consider whether the plaintiffs sufficiently allege that
Hoeppner, Hanlon, and Hardin conspired to cover up the true circumstances
of Waller’s death in violation of the plaintiffs’ clearly established right to access
the courts. We have recognized a right of access to the courts, which is founded
in the Article IV Privileges and Immunities Clause, the First Amendment
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Petition Clause, and the Fifth and Fourteenth Amendment Due Process
Clauses. See Ryland v. Shapiro, 708 F.2d 967, 971-73 (5th Cir. 1983). Denial-
of-access claims take one of two forms: forward-looking claims alleging “that
systemic official action frustrates a plaintiff or plaintiff class in preparing and
filing suits at the present time,” and backward-looking claims alleging that an
official action has “caused the loss or inadequate settlement of a meritorious
case, the loss of an opportunity to sue, or the loss of an opportunity to seek
some particular order of relief.” Christopher v. Harbury, 536 U.S. 403, 413-14
(2002) (citations omitted). The plaintiffs alleged both forward- and backward-
looking denial-of-access claims against each of the defendants, but only the
backward-looking claims are at issue on this appeal.
      “To maintain a backward-looking claim, a plaintiff must identify (1) a
nonfrivolous underlying claim; (2) an official act that frustrated the litigation
of that claim; and (3) a remedy that is not otherwise available in another suit
that may yet be brought.” United States v. McRae, 702 F.3d 806, 830-31 (5th
Cir. 2012). From our conclusion above that the plaintiffs state a claim against
Hoeppner for excessive force, it follows that the plaintiffs have satisfied the
first of these elements. For present purposes, although disputed, we will
assume the plaintiffs’ allegations satisfy the second element as well by alleging
that the defendants conspired to sabotage the crime scene and lie to
investigators to cover up the fact that Waller was unarmed when Hoeppner
shot him. Nevertheless, the plaintiffs’ claims fail on the third element: they
have not explained what relief the defendants’ alleged misdeeds have cost
them. The plaintiffs premise their backward-looking denial-of-access claims on
the theory that the defendants’ alleged coverup frustrated their excessive-force
claim against Hoeppner. Yet the plaintiffs are actively—and, so far,
successfully—litigating that claim. They filed hundreds of pages of pleadings
in the district court supported by dozens of exhibits containing detailed
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forensic evidence in support of their claim. They survived Hoeppner’s
pleadings-stage assertion of qualified immunity first in the district court and
now on appeal. In short, there is no reason to believe the remedy the plaintiffs
seek “is not otherwise available” in their active lawsuit against Hoeppner. Id.
at 831.
      In reaching the contrary conclusion, the district court explained that the
plaintiffs’ “ability to prove their [excessive-force claim] may have been
permanently compromised.” That might turn out to be the case, but it is too
early to say. See Christopher, 536 U.S. at 414 (“These cases do not look forward
to a class of future litigation, but backward to a time when specific litigation
ended poorly, or could not have commenced, or could have produced a remedy
subsequently unobtainable.” (footnotes omitted)). Unless and until the
plaintiffs’ claim against Hoeppner suffers some concrete setback traceable to
the defendants’ alleged coverup, their allegation that the defendants impaired
their effort to bring that claim is no more than speculation about an event that
may or may not come to pass. See id. at 415 (“There is, after all, no point in
spending time and money to establish the facts constituting denial of access
when a plaintiff would end up just as well off after litigating a simpler case
without the denial-of-access element.”).
      The plaintiffs argue that their delay in bringing this lawsuit can, on its
own, constitute the prejudice necessary to state their denial-of-access claims.
We disagree. True, we have suggested in dicta that “[c]onduct by state officers
which results in delay in the prosecution of an action in state court may cause
such prejudice.” Ryland, 708 F.2d at 974. But as we later clarified:
      Ryland stands for the proposition that if state officials wrongfully
      and intentionally conceal information crucial to a person’s ability
      to obtain redress through the courts, and do so for the purpose of
      frustrating that right, and that concealment and the delay
      engendered by it substantially reduce the likelihood of one’s

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                                  No. 18-10561
      obtaining the relief to which one is otherwise entitled, they may
      have committed a constitutional violation.

Crowder v. Sinyard, 884 F.2d 804, 812 (5th Cir. 1989) (emphasis added),
abrogated on other grounds by Horton v. California, 496 U.S. 128 (1990). Thus,
showing delay alone is not enough; the plaintiffs must likewise show the delay
caused some further harm to their cause of action. And here the plaintiffs run
into a familiar problem—any harm caused by the delay in filing their
excessive-force claim has yet to manifest.
      Therefore, the plaintiffs are left with pleadings that do not adequately
allege a necessary element of their backward-looking denial-of-access claims.
But the possibility remains that they will be able to state such claims in the
future if their excessive-force claim goes south in later stages of this litigation.
Faced with similar facts, the Ninth Circuit has repeatedly ordered backward-
looking denial-of-access claims dismissed without prejudice as unripe. See
Delew v. Wagner, 143 F.3d 1219, 1222-23 (9th Cir. 1998) (“To prevail on their
claim, the Delews must demonstrate that the defendants’ cover-up violated
their right of access to the courts by rendering ‘any available state court
remedy ineffective.’ However, because the Delews’ wrongful death action
remains pending in state court, it is impossible to determine whether this has
in fact occurred.” (citation omitted) (quoting Swekel v. City of River Rouge, 119
F.3d 1259, 1264 (6th Cir. 1997))); Karim-Panahi v. L.A. Police Dep’t, 839 F.2d
621, 625 (9th Cir. 1988) (“Because the ultimate resolution of the present suit
remains in doubt, Karim-Panahi’s cover-up claim is not ripe for judicial
consideration.”); cf. Lynch v. Barrett, 703 F.3d 1153, 1157 (10th Cir. 2013)
(concluding denial-of-access claim ripened once plaintiff lost underlying
lawsuit). We agree this is the proper resolution. See Choice Inc. of Tex. v.
Greenstein, 691 F.3d 710, 715 (5th Cir 2012) (“[A] case is not ripe if further
factual development is required.” (quoting New Orleans Pub. Serv., Inc. v.
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                                       No. 18-10561
Council, 833 F.2d 583, 587 (5th Cir. 1987))). Accordingly, we reverse the
district court’s order declining to dismiss the plaintiffs’ denial-of-access claims
and remand with instruction to dismiss those claims without prejudice. 5
                                              IV.
       Lastly, we conclude the plaintiffs do not have standing to seek
declaratory relief for violations of Waller’s rights under the Texas Constitution.
“‘In a case of actual controversy within its jurisdiction,’ the Declaratory
Judgment Act allows a federal court to ‘declare the rights and other legal
relations of any interested party seeking such declaration.’” Hosein v.
Gonzales, 452 F.3d 401, 403 (5th Cir. 2006) (quoting 28 U.S.C. § 2201). But the
Declaratory Judgment Act does not vest the federal courts with jurisdiction
broader than Article III’s “case or controversy” limitation. Id. “In order to
demonstrate that a case or controversy exists to meet the Article III standing
requirement when a plaintiff is seeking injunctive or declaratory relief, a
plaintiff must allege facts from which it appears there is a substantial
likelihood that he will suffer injury in the future.” Bauer v. Texas, 341 F.3d
352, 358 (5th Cir. 2003). “To obtain [declaratory] relief for past wrongs, a
plaintiff must demonstrate either continuing harm or a real and immediate
threat of repeated injury in the future.” Id.
       The plaintiffs here allege only past injury to Waller. Faced with similar
circumstances, the Supreme Court ruled that a plaintiff had no standing to
seek declaratory relief finding his son was fatally shot by police in violation of
the Fourth Amendment. See Ashcroft v. Mattis, 431 U.S. 171, 172 (1977) (per
curiam). Accordingly, we reverse the portion of the district court’s order



       5 The parties do not address this issue in terms of ripeness. But because ripeness
implicates the district court’s subject-matter jurisdiction, we raise it sua sponte. See Elam v.
Kan. City S. Ry. Co., 635 F.3d 796, 802 (5th Cir. 2011); Lopez v. City of Houston, 617 F.3d
336, 341 (5th Cir. 2010).
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                                No. 18-10561
declining to dismiss the plaintiffs’ claims for declaratory relief and remand
with instruction to dismiss those claims without prejudice.
                                      V.
      For the foregoing reasons, we AFFIRM the portion of the district court’s
order denying Hoeppner’s qualified-immunity defense against the plaintiffs’
excessive-force claim, but we otherwise REVERSE and REMAND with
instructions to dismiss the plaintiffs’ denial-of-access and declaratory-
judgment claims without prejudice.




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