Breen, et al v. TX A & M University, et al

United States Court of Appeals
Fifth Circuit
F I L E D
July 26, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 04-40712
SEAN BREEN, as Administrator of the Estate of
Christopher Breen; CHRISTOPHER BREEN; JOHN E. BREEN;
MARIAN K. BREEN,
Plaintiffs-Appellants,
VERSUS
TEXAS A&M UNIVERSITY; ET AL.,
Defendants,
TEXAS A&M UNIVERSITY; J. MALON SOUTHERLAND, in his
individual capacity; RUSSELL THOMPSON, in his
individual capacity; RAY BOWEN,
Defendants-Appellees.
Consolidated with
No. 04-40713
JAMES KIMMEL, as representative of the Estate of Lucas
Kimmel (deceased); JAMES KIMMEL; WALIETA KIMMEL,
Plaintiffs-Appellants,
VERSUS
TEXAS A&M UNIVERSITY; ET AL.,
Defendants,
TEXAS A&M UNIVERSITY; J. MALON SOUTHERLAND, in his
individual capacity; RUSSELL J. THOMPSON, in his
individual capacity; RAY BOWEN, in his individual
capacity; WILLIAM L. KIBLER, in his individual
capacity, JOHN J. KOLDUS, III, in his individual
capacity,
Defendants-Appellees.

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Consolidated with
04-40714
BILL DAVIS,
Plaintiff-Appellant,
VERSUS
TEXAS A&M UNIVERSITY; ET AL.,
Defendants,
TEXAS A&M UNIVERSITY; J. MALON SOUTHERLAND, in his
individual capacity; RUSSELL THOMPSON, in his
individual capacity; RAY BOWEN, in his individual
capacity; WILLIAM L. KIBLER, in his individual
capacity, JOHN J. KOLDUS, III, in his individual
capacity,
Defendants-Appellees.
Consolidated with
04-40715
HOWARD SCANLAN; DENISE SCANLAN; LAUREN N. T. SCANLAN,
Plaintiffs-Appellants,
VERSUS
TEXAS A&M UNIVERSITY; ET AL.,
Defendants,
TEXAS A&M UNIVERSITY; J. MALON SOUTHERLAND, in his
individual capacity; RUSSELL THOMPSON, in his
individual capacity; RAY BOWEN, in his individual
capacity; WILLIAM L. KIBLER, in his individual
capacity, JOHN J. KOLDUS, III, in his individual
capacity,
Defendants-Appellees.
Consolidated with
04-40780
JOHN ANDREW COMSTOCK; DIXIE ANN ZINNEKER,

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Plaintiffs-Appellants,
VERSUS
TEXAS A&M UNIVERSITY; ET AL.,
Defendants,
TEXAS A&M UNIVERSITY; J. MALON SOUTHERLAND, in his
individual capacity; RUSSELL THOMPSON, in his
individual capacity; RAY BOWEN; WILLIAM L. KIBLER, in
his individual capacity, JOHN J. KOLDUS, III, in his
individual capacity,
Defendants-Appellees.
Consolidated with
04-40812
JAQUELYNN KAY SELF, Individually and as Administratrix
of the estate of Jerry Don Self, Deceased; KATHY
MCCLAIN ESCAMILLA, Individually and as Administratrix
of the Estate of Bryan A. McClain, Deceased; PHILLIP
MCCLAIN, ANDREA HEARD, Individually and as
Administratrix of the Estate of Christopher Lee Heard,
Deceased; LESLIE G. HEARD; GREGORY ANTHONY POWELL,
Individually and as Administrator of the Estate of Chad
A. Powell, Deceased; BEVERLY JILL POWELL, MATTHEW LYNN
ROBBINS; DOMINIC M. V. BRAUS; NANCY BRAUS,
Plaintiffs-Appellants,
VERSUS
RAY M. BOWEN; J. MALON SOUTHERLAND; WILLIAM KIBLER;
RUSSELL W. THOMPSON; JOHN J. KOLDUS, III; M. T.
HOPGOOD, JR., Major General; DONALD J. JOHNSON; ZACK
COAPLAND; KEVIN JACKSON; JAMES R. REYNOLDS; ROBERT
HARRY STITELER, JR.; MICHAEL DAVID KRENZ,
Defendants-Appellees.

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Appeals from the United States District Court
For the Southern District of Texas
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit
Judges.
PER CURIAM:
A majority of the panel having voted sua sponte to
grant rehearing, in part, the opinion of the court in
disposing of this appeal is as follows:
Section III. A, including its subsections 1
through 3, of the panel opinion, found at 485
F.3d 325, 332-38 (5th Cir. 2007), along with
footnote 14, is hereby withdrawn and deleted
from the opinion. Other than these withdrawals
and deletions, the original panel opinion is
reinstated.
DENNIS, Circuit Judge, concurs in the result for the
reasons assigned by him in the original panel opinion.

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