United States District Court, S.D. Texas, Houston Division
MARANDA LYNN ODONNELL, et al., On behalf of themselves and all others similarly situated, Plaintiffs,
HARRIS COUNTY, TEXAS, et al., Defendants.
ORDER GRANTING CONTINUANCE
Rosenthal Chief United States District Judge.
February 14, 2018, the Fifth Circuit affirmed in part,
reversed in part, vacated in part, and remanded this
court's preliminary injunction, (Docket Entry No. 302),
and memorandum and opinion, (Docket Entry No. 304).
ODonnell v. Harris Cty., Texas, No. 17-20333, 2018
WL 851776 (5th Cir. Feb. 14, 2018). In light of the Fifth
Circuit's opinion, the court set a status conference on
February 28 and ordered the parties to confer and submit
either an agreed proposed modified order or a redlined
version showing any disputed provisions by February 26.
(Docket Entry No. 383). The court granted a request to reset
the status conference and written submission deadline due to
scheduling conflicts, moving the written submission deadline
to March 2 and the status conference to March 6. (Docket
Entry No. 385).
February 22, Harris County and the Hearing Officers asked the
Fifth Circuit for a two-week extension to file a rehearing
petition. ODonnell, No. 17-20333, Doc. 514358620.
The Fifth Circuit granted the motion and extended the
deadline to March 14. Id., Doc. 514362384. On
February 28, the plaintiffs filed a petition for panel
rehearing on the issue of defendant Sheriff Ed Gonzalez's
dismissal. Id., Doc. 514367674.
plaintiffs move to continue the status conference and written
submission deadline until the Fifth Circuit rules on
petitions for panel rehearing or rehearing en banc. (Docket
Entry No. 389). Some of the defendants, Harris County
Criminal Courts at Law Judges 1-13 and 15,  oppose the
plaintiffs' motion and cross-moved to stay the
injunction, (Docket Entry No. 304), and enter a modified
injunction in light of the Fifth Circuit's ruling.
(Docket Entry No. 390). The plaintiffs have filed a reply
brief in support of their motion to continue. (Docket Entry
plaintiffs' motion to continue is granted. The
cross-motion to stay the injunction or promptly enter a
modified injunction is denied. The reasons for the rulings
are explained below.
The Parties' Contentions
plaintiffs argue that because the Fifth Circuit's rulings
on any rehearing petitions may affect the parties'
modified injunction order proposals, entering an interim
revised injunction that would likely be revised after
appellate proceedings conclude would “disrupt the
post-arrest system in Harris County and waste the
parties' and judicial resources.” (Docket Entry No.
389 at 2-3). The defendants respond that vacatur should not
be postponed because the plaintiffs do not seek further
review of the Fifth Circuit's holding that the injunction
must be vacated. (Docket Entry No. 390 at 2). The defendants
argue that rehearing on the issue of the defendant Sheriff Ed
Gonzalez's dismissal will not affect the Fifth
Circuit's holding that the current injunction must be
vacated and replaced. Id. According to the
defendants, they are “100 percent certain-not
simply ‘likely'-to succeed on the merits of their
claim that the injunction must be vacated and replaced with a
new injunction that tracks the Fifth Circuit's modified
injunction” because they “have already
prevailed on this issue before a unanimous panel of the
Fifth Circuit, ” and because the plaintiffs' panel
rehearing petition is limited to the narrow issue of the
defendant Sheriff Ed Gonzalez's dismissal. Id.
at 2, 5. The defendants ask this court to promptly enter
their proposed injunction. (Docket Entry No. 390 at 4-5);
(Docket Entry No. 390-1).
plaintiffs respond that the Fifth Circuit did not set a
revised injunction deadline and that its order staying
vacatur pending issuance of a revised injunction, “so
as to maintain a stable status quo, ”
ODonnell, No. 17-20333, 2018 WL 851776, at *13,
recognizes the risk of multiple revisions. (Docket Entry No.
391 at 1-2). The plaintiffs ask this court to wait until the
Fifth Circuit resolves the rehearing petitions before
requiring the parties to litigate, and this court to decide,
the precise language of the modified injunction. Id.
at 2. The plaintiffs point out that the Fifth Circuit
“expressly declined to impose [an] injunction itself,
” and that the parties dispute several aspects of the
Fifth Circuit's opinion that impact the careful drafting
required to modify the order. Id. at 3-8.
Fifth Circuit's opinion requires a modified preliminary
injunction order. But the Fifth Circuit's stay of vacatur
to maintain the “status quo” underscores the
caution and care modifying the injunction requires. The
defendants are correct that the plaintiffs' panel
rehearing petition does not challenge the vacatur of the
injunction. 5th Cir. R. 40.2 (“A petition for rehearing
is intended to bring to the attention of the panel claimed
errors of fact or law in the opinion. It is not used
for reargument of the issue previously presented . . .
.”); ODonnell, No. 17-20333, Doc. 514367674
(petitioning for panel rehearing on Sheriff Ed Gonzalez's
dismissal). The defendants incorrectly assume, however, that
this makes it important or wise for this court to act before
the Fifth Circuit decides the parties' rehearing
precise scope of the Fifth Circuit's decisions on the
rehearing petitions cannot be predicted with certainty. It
would be premature to issue a modified injunction or to stay
the current injunction at this point. The Fifth Circuit could
have ordered that result; instead, it stayed vacatur.
plaintiffs' motion to continue is granted. (Docket Entry
No. 389). The defendants' cross-motion for stay of the
preliminary injunction and entry of a modified injunction is
denied. (Docket Entry No. 390). The status conference and
written submission deadline will be continued until the Fifth
Circuit decides the rehearing petitions and the ...