Bourne v. Gunnels et al
Filing
105
MEMORANDUM OPINION AND ORDER denying 95 Opposed MOTION for Leave to File Amended Proposed Joint Pretrial Order, denying 99 Motion for Pretrial Conference (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MICHAEL BOURNE,
TDCJ #1567258,
Plaintiff,
v.
LIEUTENANT GUNNELS, et al.,
Defendants.
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October 29, 2019
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-0515
MEMORANDUM OPINION AND ORDER
This prisoner civil rights case is set for trial on December
16, 2019.
Pending before the court is Defendants' Motion for Leave
to File [an] Amended Proposed Joint Pretrial Order ("Defendants'
Motion")
(Docket Entry No. 95).
Also pending is Defendants'
Unopposed Motion for [a] Pretrial Conference Under Rule 16 ("Motion
for a
Pretrial Conference")
(Docket Entry No. 99),
regarding
whether an amendment to the Joint Pretrial Order is warranted. 1
Plaintiff Michael Bourne has filed a response (Docket Entry No.
103) and the defendants have filed a reply (Docket Entry No. 104).
The Defendants' Motion and the Motion for a Pretrial Conference
will be denied for the reasons set forth below.
The court reconsiders the Motion for a Pretrial Conference
here, which was initially denied on September 26, 2019, pending a
response from the plaintiff to Defendants' Motion for Leave to File
an Amended Joint Pretrial Order. See Docket Entry No. 100, p. 1.
1
I.
Background and Procedura1 History
In 2016, state inmate Michael Bourne filed this civil rights
lawsuit against the following defendants who were employed by Texas
Department of Criminal Justice ("TDCJ"} as correctional officers or
supervisory officials
at the
Estelle
High
Security
Unit:
(1)
Sergeant Carlos Applewhite;
(3)
Lieutenant Michael Gunnels;
(2)
Officer Anthony Howard;
Officer Ronald Weaver;
Robert LeBlanc;
(4)
(6) Officer Ernest Price;
(5)
Officer
(7) Officer Ajisefini;
and (8) Officer Sascha Ford.2 Bourne's primary claim was that
Officers Howard, Weaver, LeBlanc, Price, and Ajisefini violated his
rights under the Eighth Amendment during a planned use of force
that occurred on November 21,
2014,
extracting Bourne from his cell. 3
while these officers were
Bourne alleged further that
Lieutenant Gunnels, Sergeant Applewhite, and Officer Ford, who was
operating the video camera that recorded the use of force, were
liable for violating his Eighth Amendment rights as bystanders who
failed intervene and stop the use of excessive force by the other
defendants. 4
In a Memorandum Opinion and Order entered on June 7, 2017, the
Prisoner's Civil Rights Complaint under 42 U.S.C. § 1983
("Complaint") , Docket Entry No. 1, p. 3; [Supplemental] Complaint,
Docket Entry No. 28, pp. 1-2.
2
3
pp.
3-6;
Supplemental
4
pp.
3-4;
Supplemental
Complaint, Docket Entry No. 1,
Complaint, Docket Entry No. 28, pp. 1-3.
Complaint, Docket Entry No. 1,
Complaint, Docket Entry No. 28, p. 3.
-2-
court granted summary judgment in the defendants' favor after
concluding that the defendants were entitled to qualified immunity
because Bourne did not establish that excessive force was used in
violation of the Eighth Amendment. 5
that excessive force was used,
Because Bourne failed to show
the court also granted summary
judgment on Bourne's claim for bystander liability.6
Bourne filed a Notice of Appeal from the dismissal order
entered on June 7, 2017. 7
The Fifth Circuit considered briefing
from both sides and observed that Bourne challenged only the
summary judgment on his excessive-force
Gunnels, 921 F.3d 484,
490
(5th Cir. 2019)
claim.
8
See
Bourne v.
The Fifth Circuit
reversed the summary judgment on that claim and remanded the case
for further consideration of Bourne's allegation that excessive
force was used by the defendants.
Id. at 493. In reversing that
decision, the Fifth Circuit placed "no limits on what matters the
district court can consider, or what decisions it should make, on
remand."
5
Id.
Memorandum Opinion and Order, Docket Entry No. 61, pp. 17-30.
The court also granted summary judgment on
Id. at 30-31.
Bourne's claims related to the conditions of his cell following the
use of force and his claim of retaliation by one of the defendants.
Id. at 32-34. Because those claims are no longer at issue, the
court does not discuss them further.
6
7
Notice of Appeal, Docket Entry No. 63, p. 1.
The Fifth Circuit's opinion was entered on April 16, 2019,
See Docket Entry No. 74,
and the mandate issued on May 8, 2019.
pp. 1-2; Docket Entry No. 75, pp. 1-12.
8
-3-
On August 19, 2019, the parties submitted a Proposed Joint
Pretrial Order that described the contested issues for trial to
include Bourne's claims that Howard, Weaver, Price, Ajisefini, and
LeBlanc are liable for using excessive force against him and that
Gunnels, Applewhite, and Ford are liable as bystanders for failing
to intervene in the use of excessive force. 9
The court discussed
the Proposed Joint Pretrial Order with the parties at a pretrial
conference on August 30, 2019, and entered a scheduling order to
prepare for trial on December 16, 2019. 10
The defendants now seek leave to file an amended
Pretrial Order to
liability
claim
eliminate
for
failure
reference
to
to
intervene
Joint
Bourne's
bystander
against
Lieutenant
Gunnels, Sergeant Applewhite, and Officer Ford, citing "the law of
the case doctrine. " 11
conference
on
this
The defendants also request a pretrial
issue. 12
Invoking
the
mandate
rule,
the
defendants point to the Fifth Circuit's opinion and argue that only
the excessive-force claim remains for trial. 13
Therefore,
the
defendants seek clarification about whether Sergeant Applewhite and
Officer Ford must appear for trial on Bourne's claim that they
failed to intervene and stop the use of excessive force by the
9
Proposed Joint Pretrial Order, Docket Entry No. 91, pp. 1-2.
10
Hearing Minutes and Order, Docket Entry No. 93, pp. 1-2.
nDefendants' Motion, Docket Entry No. 95, pp. 1-3.
12
13
Motion for a Pretrial Conference, Docket Entry No. 99.
Id. at 1, 2.
other defendants. 14
II.
A.
Discussion
Law of the Case and the Mandate Rule
"Under the law of the case doctrine, an issue of fact or law
decided on appeal may not be reexamined either by the district
court on remand or by the appellate court on a subsequent appeal."
United States v. Matthews,
312 F.3d 652,
657
(5th Cir. 2002)
(quoting Tollett v. City of Kemah, 285 F.3d 357, 363 (5th Cir.
2002) (citation omitted)); see also Musacchio v. United States, 136
S. Ct. 709, 716 (2016)
("The law-of-the-case doctrine generally
provides that when a court decides upon a rule of law,
that
decision should continue to govern the same issues in subsequent
stages in the same case.") (citations and internal quotation marks
omitted).
"A corollary of the law of [the] case doctrine" is the mandate
rule, which "provides that a lower court on remand must implement
both the letter and spirit of the [appellate court's] mandate, and
may not disregard the explicit directives of that court". Tollett,
285 F.3d at 364 (citation and internal quotation marks omitted;
alteration in original; emphasis omitted).
The Fifth Circuit has
recognized "several exceptions to the rule, including where the
district
court
considers
intervening change in law,
14
new
evidence,
or where
Id. at 4.
-5-
where
there
is
an
'the earlier decision is
clearly erroneous and would work a manifest injustice.'"
Davis, - F.3d -,
2019 WL 5205899,
*2
Webb v.
(5th Cir. Oct. 16,
2019)
(quoting United States v. Pineiro, 470 F.3d 200, 205-06 (5th Cir.
2006)). Thus, "it is a discretionary rule that can be set aside in
certain circumstances."
Id. (citing United States v. Teel, 691
F.3d 578, 583 (5th Cir. 2012)).
"When on remand the district court assays to implement the
mandate, it must proceed .
. by taking into account the appeals
court's opinion and the circumstances it embraces."
Pineiro, 470
F.3d at 205; � also Tollett, 285 F.3d at 364 (same).
of the above-referenced exceptions applies,
Unless one
the district court
"must comply 'with the dictates of a superior court' and cannot
allow 'relitigation of issues expressly or impliedly decided by the
appellate court.'"
Webb, - F.3d -, 2019 WL 5205899, *2 (quoting
Fisher v. Univ. of Texas at Austin, 758 F.3d 633, 639-40 (5th Cir.
2014)).
B.
The Bystander-Liability Claim is not Barred
As outlined above,
this court granted summary judgment on
Bourne's bystander-liability claim after it concluded that he
failed to show that excessive force was used during the incident
that forms the basis of his complaint.15
The court reasoned that
absent a showing that excessive force was used, Bourne could not
demonstrate that Gunnels, Applewhite, or Ford violated his rights
15
Memorandum Opinion and Order, Docket Entry No. 61, p. 30.
-6-
by failing to intervene.16
The Fifth Circuit reversed and remanded
the claim of excessive force, concluding that there was a genuine
issue of material fact on whether excessive force was used.
Bourne, 921 F.3d at 492-93.
Noting that Bourne did not appeal this court's decision to
grant summary
judgment on his bystander-liability claim,
the
defendants argue that he waived his claim of bystander liability by
not appealing the ruling on summary judgment. 17
The defendants note
that, as it relates to the law of the case, the waiver doctrine
"holds that an issue that could have been but was not raised on
appeal is forfeited and may not be revisited by the district court
on remand."
Med. Ctr. Pharm. v. Holder,
634 F.3d 830, 834 (5th
Cir. 2011) (emphasis in original) (citations omitted).
Bourne is a pro se litigant who also represented himself on
appeal.
Although Bourne did not appeal his bystander-liability
claim, the Fifth Circuit's conclusion that there were fact issues
remaining on the excessive-force claim implicates Bourne's related
claim for bystander liability based on the failure to intervene and
stop the use of excessive force.
The court is not persuaded that
the waiver doctrine applies or that the bystander liability claim
is precluded from reconsideration by the law of the case.
More importantly, there is no language in the Fifth Circuit's
16
Id. at 31.
17
Defendants' Motion, Docket Entry No. 95, p. 2.
-7-
opinion that precludes reconsidering Bourne's claim that Gunnels,
Applewhite,
and
Ford are liable as bystanders for failing to
intervene in the use of excessive force.
In that respect, the
Fifth Circuit expressly stated that it placed "no limits on what
matters" could be considered on remand.
Bourne, 921 F.3d at 493.
Based on this record, the court concludes that neither the law of
the case nor the mandate rule preclude consideration of Bourne's
bystander-liability claim at trial.
Therefore, Defendants' Motion
for Leave to File an Amended Proposed Joint Pretrial Order will be
denied.
III.
CONCLUSION AND ORDER
Based on the foregoing, the court ORDERS as follows:
1.
Defendants'
Motion
for
Leave
to
File
an
Amended Proposed Joint Pretrial Order (Docket
Entry No. 95) is DENIED.
2.
Defendants'
Unopposed
Motion
for
Pretrial
Conference Under Rule 16 (Docket Entry No. 99)
is DENIED.
The Clerk will provide a copy of this Memorandum O pinion and
Order to the parties.
SIGNED at Houston, Texas, on this'1f/4 day of Oclbl,a,.
UNITED
-8-
JUDGE
, 2019.
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