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

                                                             FILED
                                                           March 29, 2011

                              No. 10-40384                  Lyle W. Cayce
                                                                 Clerk


MIGUEL HERNANDEZ, as Guardian of David P. Hernandez, an
incapacitated individual; INEZ BALTAZAR HERNANDEZ, as Guardian of
Armando Hernandez, Jr., an incapacitated individual; MICHELLE
CRAYTON; ALICIA MATA; DEANN TORRES, as Guardian of Christoper
Norris, an incapacitated individual,

                      Plaintiffs-Appellees

v.

ADELAIDE HORN, Commissioner of the Department of Aging and Disability
Services; BARRY WALLER, Assistant Commissioner Provider Services;
DENISE GEREDINE, State Schools; IVA BENSON, Superintendent of the
Corpus Christi State School,

                      Defendants - Appellants




           Appeal from the United States District Court for the
               Southern District of Texas, Corpus Christi


                   ON PETITION FOR REHEARING

Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:
                                         No. 10-40384

      IT IS ORDERED that the appellants’ Motion for Panel Rehearing
regarding their contention that inadequate staffing is not actionable under
Youngberg v. Romeo,1 is GRANTED.
      IT IS FURTHER ORDERED that panel rehearing is DENIED as to all
other issues on which appellants request reconsideration because, as we held in
our original panel opinion, those issues have been waived.
      We have reviewed the one issue on which we grant rehearing, and now
hold that it does not affect our original holding. Appellants’ brief makes the
narrow claim that “inadequate staffing” is an action which is properly brought
against the State rather than against appellants. Even assuming this is true,
it is no basis on which we should reverse the district court’s denial of appellants’
Motion to Dismiss/Summary Judgment. Appellees asserted, and the district
court based its denial of that motion on, numerous alleged departures from
professional standards, many of which do not involve staffing shortages. We do
not decide how appellants may proceed on remand or whether they may make
any broader “budgetary constraints” arguments than the narrow one made on
appeal concerning the issue of inadequate staffing.
      After reviewing the only issue on which we grant panel rehearing, we
confirm our original affirmation of the district court’s denial of appellants’
Motion to Dismiss/Summary Judgment.




      1
          457 U.S. 307, 315-16 (1982).

                                              2
