Skinner et al v. Bordages et al

Filing 84

ORDER denying Plaintiffs' 81 82 Motions for Reconsideration. Signed by District Judge Halil S. Ozerden on October 3, 2014. (NM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JESSE M. SKINNER and MANUEL
E. SKINNER JR.
v.
JOHN BORDAGES JR., CRAIG
SHOWS, JOHN HAWKINS, MARY
FORETICH, TERRY DAVIS, KEITH
DAVIS, CARLO ROBOTTI, BRIAN
MACCARTHY, TOM DEICHMANN,
BURNELL DEDEAUX, LUIS
HAWKINS, CHARLES BRANDON
MOORE, KARL WINTER, GPCH-GP,
INC., JOHN B. METCALF, ROBERT
HILLIER, TOM WHEELER, ROY
HUGH FLEMING, and JOHN/JANE
DOES 1-4

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PLAINTIFFS
CIVIL NO.: 1:13cv314-HSO-RHW
DEFENDANTS

ORDER DENYING PLAINTIFFS’ MOTIONS FOR RECONSIDERATION
BEFORE THE COURT are Plaintiffs Jesse M. Skinner and Manuel E.
Skinner Jr.’s “Motion for Reconsideration of Order [76] Pursuant to Fed. R. Civ. P.
56(e) and Pursuant to Justice” [81] and “Motion for Reconsideration of Order [77]
Pursuant to Fed. R. Civ. P. 56(e) and Pursuant to Fed. R. Civ. P. 4(i)(4)(B)” [82].
Having considered the Motions [81] [82], the record, and relevant legal authorities,
the Court concludes Plaintiffs’ Motions should be denied.
The primary issue raised by Plaintiffs Jesse M. Skinner and Manuel E.
Skinner Jr.’s (“Plaintiffs”) “Motion for Reconsideration of Order [76] Pursuant to
Fed. R. Civ. P. 56(e) and Pursuant to Justice” centers on Plaintiffs’ insistence
regarding the necessity of the medical records related to treatment received by law

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enforcement personnel involved in a raid of Plaintiff Jesse M. Skinner’s trailer.
Mot. for Reconsideration of Order [76] Pursuant to Fed. R. Civ. P. 56(e) and
Pursuant to Justice 1-6 [81]. Plaintiffs believe the medical records are relevant and
necessary to Plaintiffs’ current claim that Defendants have engaged in a conspiracy
to cover up the fact that neither law enforcement officer was actually injured. Id. at
2. Because Plaintiffs are proceeding pro se, the Court addresses this argument one
final time.
“[W]hen an indictment alleges non-essential facts, the government need not
prove them in order to sustain a conviction . . . .” United States v. Robinson, 974
F.2d 575, 578 (5th Cir. 1992). What matters is that the Government proves “facts
charged in the indictment which do satisfy the essential elements of the crime.” Id.
(quoting United States v. England, 480 F.2d 1266, 1269 (5th Cir. 1973)). Jesse
Skinner was charged with and convicted of assault with a deadly weapon in
violation of 18 U.S.C. §§ 111(a)(1) and -111(b). Order on Mot. to Vacate 8-9 [181],
Case No. 1:02-cr-93-DCB-JMR-1. Conviction under those sections only requires
proof of the use of a deadly weapon; it does not require proof of a physical injury.
United States v. Hazlewood, 526 F.3d 862, 865 (5th Cir. 2008) (citing United States
v. Ramirez, 233 F.3d 318 (5th Cir. 2000)). Insofar as the indictment may have
stated that the use of a dangerous weapon also inflicted bodily injuries upon the law
enforcement officers, the Government was not required to prove that non-essential
fact. Consequently, Plaintiffs’ Motion [81] has no merit and will be denied.

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With respect to Plaintiffs’ “Motion for Reconsideration of Order [77] Pursuant
to Fed. R. Civ. P. 56(e) and Pursuant to Fed. R. Civ. P. 4(i)(4)(B),” Plaintiffs contend
that they must be allowed “reasonable time” to serve the United States of America
because they have already served Defendant Keith Davis. Mot. for Reconsideration
of Order [77] Pursuant to Fed. R. Civ. P. 56(e) and Pursuant to Fed. R. Civ. P.
4(i)(4)(B) 1-2 [82].1 Without providing any substantiating documentation, Plaintiffs
claim that the Clerk of Court “will not issue the Summonses when she receives
things” and appear to ask the Court to guide them in drafting Summons directed to
the United States of America. Id. at 3.
On February 28, 2014, Keith Davis moved to set aside the Clerk’s Entry of
Default on the basis that Plaintiffs failed to properly serve Davis. Mem. in Supp. of
Mot. to Set Aside Entry of Default and Mot. to Dismiss 1-2 [55]. Davis reasoned
that because he was an officer or employee of the United States, Plaintiffs were
required pursuant to Rule 4(i)(3) of the Federal Rules of Civil Procedure to serve the
United States of America. Id. at 4-5 [77]. Davis quoted Rule 4(i)(3) which sets out
the applicable requirements. Id. Plaintiffs chose to quibble with, rather than
rectify, the errors raised by Davis despite having six months between the time
Davis put them on notice of those errors and the Court’s decision to set aside the
Clerk’s Entry of Default as to Davis. Having been on notice of their defective effort
to serve the United States since February 28, 2014, Plaintiffs have had more than a
reasonable amount of time to perfect service but have not done so. Plaintiffs’
Motion [82] will be denied. See Sys. Signs Supplies v. U.S. Dep’t of Justice,
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Plaintiffs obtained a Clerk’s Entry of Default [49] as to Keith Davis on February 19, 2014.

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Washington, D.C., 903 F.2d 1011, 1014 (5th Cir. 1990) (finding district court did not
abuse its discretion in dismissing case where assistant United States attorney
advised pro se plaintiff nearly one month before the lapse of the 120-period for
service of process that service on the United States was defective and cited the
procedural rules governing service). Accordingly,
IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiffs’ [81]
“Motion for Reconsideration of Order [76] Pursuant to Fed. R. Civ. P. 56(e) and
Pursuant to Justice” is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiffs’ [82]
“Motion for Reconsideration of Order [77] Pursuant to Fed. R. Civ. P. 56(e) and
Pursuant to Fed. R. Civ. P. 4(i)(4)(B)” is DENIED.
SO ORDERED this the 3rd day of October, 2014.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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