Whether the Fifth Circuit improperly applied a 'deemed credible' approach to viewing a movant's credibility and arbitrarily excluded admissions of discrimination as 'outlier' evidence

QUESTIONS PRESENTED After making dozens of 911 calls concerning her abusive ex-husband during 2009-2012, and being promised assistance by police, in August 2012, Deanna Cook made one final 911 call, along with bloodcurdling screams to the operator, as her perpetrator slowly murdered her. Fifty minutes and one stop to a 7-Eleven store later, officers finally arrive to Deanna’s house but never enter. Petitioners brought suit for violations of their Fourteenth Amendment rights to due process and equal protection with respect to two 911 calls. Despite concluding that Plaintiffs “produce[d] evidence sufficient to [raise a material-fact dispute] that the City, at the time of the incident at hand, had a custom of providing less protection in 911 call taking on the bases of ...[gender] and status as a domestic violence victim,” the Fifth Circuit adopted a new “deemed credible” approach to viewing a movant’s credibility. The Fifth Circuit also arbitrarily excluded admissions of discrimination as “outlier” evidence. Further, regarding her due process claims, the Fifth Circuit’s acknowledgment that “Deanna might have a viable claim for violation of her due process rights if this circuit recognized the state-created danger theory,” and refusal to allow it, illuminates an irreconcilable conflict with virtually every other circuit court of appeals that allow this due process claim. Thus, the questions presented are: I. Whether the requirements that “credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury ii functions, not those of a judge” can be evaded by the simple expedient of the Fifth Circuit concluding, without evidence disputing the veracity of that employee’s statement, that confessed discrimination testimony from one of the City’s 911 employees is “outlier” evidence or that a movant’s testimony can now be “deemed credible,” thereby now imposing an insurmountable burden on the nonmovant. Il. Whether the district court’s and Fifth Circuit’s clear disregard of some of Petitioners’ evidence creates anew and heightened standard for Plaintiffs to clear in summary judgment proceedings by which courts need not draw all justifiable inferences in favor of nonmovants, and nonmovants must now present sufficient evidence that is decidedly “more credible” than defendants’ facial denials. Il. Whether the Fifth Circuit Court of Appeals erred in diverging from this Court’s ruling in DeShaney v. Winnebago Cty. Dep't. of Soc. Serv., 489 U.S. 189 (1989) and holding that the acknowledged violation of Deanna Cook’s Fourteenth Amendment due process rights is not actionable simply because the Fifth Circuit has now stated that it does not recognize state-created danger due process claims, although virtually every other circuit court of appeals would recognize these due process claims.