United States District Court, E.D. Texas, Sherman Division
JERI LYNN RICH, as representative for GAVRILA COVACI DUPUIS-MAYS, an incapacitated person, Plaintiff,
MICHAEL PALKO, et al., Defendant.
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
L. MAZZANT, UNITED STATES DISTRICT JUDGE.
for consideration the Report of the United States Magistrate
Judge in this action, this matter having been referred to the
United States Magistrate Judge pursuant to 28 U.S.C. §
636. On September 4, 2019, the Report and Recommendation of
the Magistrate Judge was entered (the “Report”)
(see Dkt. #104) recommending that Opposed Rule 56(d)
Motion or Alternative Motion to Extend the Deadline to File
Plaintiff's Response to Defendant's Motion for
Summary Judgment (the “Motion”) (Dkt. #99) filed
by Plaintiff Jeri Lynn Rich (“Plaintiff”) be
Granted and Defendant City of McKinney's
(“Defendant”) Motion for Summary Judgment (Dkt.
#94) be Denied as Moot. See Dkt. #104 at 3.
filed objections to the Report (the
“Objections”). See Dkt. #106. Plaintiff
filed a response to Defendant's Objections. See Dkt.
#108. The Court has made a de novo review of the
Objections and is of the opinion that the findings and
conclusions of the Magistrate Judge are correct and the
Objections are without merit as to the ultimate findings of
the Magistrate Judge. The Court hereby adopts the findings
and conclusions of the Magistrate Judge as the findings and
conclusions of the Court.
in this case was previously stayed pending the determination
of the qualified immunity of Defendants Michael Palko and
Keith Duane Hudgens (the “Individual
Defendants”). See Dkts. #43, #68. During the
stay, only narrowly tailored discovery dealing with the
question of qualified immunity was permitted. See
Dkt. #34. On June 4, 2019, the claims against the Individual
Defendants were dismissed, and only Defendant remained in the
suit. See Dkt. #89. On July 17, 2019, Defendant
filed a Motion for Summary Judgment. Dkt. #94. The parties
were ordered to propose a new scheduling order, and the
parties' proposed scheduling order was entered for the
case on July 25, 2019, which set the deadline for completing
discovery on March 16, 2020 and filing dispositive motions on
February 13, 2020. See Dkts. #92, #96, #97. On
August 5, 2019, Plaintiff filed the Motion (Dkt. #99), and
Defendant filed a response (Dkt. #101). On August 29, 2019,
the Magistrate Judge conducted a hearing, wherein
Plaintiff's Motion was discussed. See Dkt. #103.
first objects that the Magistrate Judge should not have
recommended denying Defendant's Motion because “the
‘Law of the Case' doctrine” makes
Plaintiff's claims against Defendant “wholly fail
as a matter of law.” See Dkt. #106 at 6.
Defendant argues that the Fifth Circuit's findings of
fact as to the Individual Defendants control in this case.
See Id. (referring to Rich v. Palko, 920
F.3d 288 (5th Cir. 2019)). Defendant contends Plaintiff
“will not be able to present substantially different
evidence” from that presented to the Fifth Circuit, and
thus, Defendant argues it is entitled to Summary Judgment.
Dkt. #106 at 6.
Fifth Circuit stated in its opinion that it only had
jurisdiction “to decide whether the district court
erred in concluding as a matter of law that officials are not
entitled to [qualified immunity] on a given set of
facts.” Rich, 920 F.3d at 293. The Fifth
Circuit further noted that Defendant was not a party to the
appeal. See id. Plaintiff has alleged that Defendant
“employs a policy, practice, or custom that permits
police officers to use excessive force and file false police
reports, ” which differs from the claims brought
against the Individual Defendants. Id. at 293 n.2.
The law of the case doctrine only applies to “those
matters that were fully briefed to the appellate court and
were necessary predicates to the ability to address the issue
or issues specifically discussed.” Office of Thrift
Supervision v. Felt, 255 F.3d 220, 225 (5th Cir. 2001).
As the Fifth Circuit laid out in its opinion, it only
considered the question of the Individual Defendants'
qualified immunity, and not Plaintiff's claims against
Defendant. See Rich, 920 F.3d at 293.
reviewing the Magistrate Judge's Report, the Court finds
the law of the case doctrine does not require granting
Defendant's Motion before Plaintiff has the benefit of
discovery. Accordingly, this objection is
also objects to the Magistrate Judge's recommendation
that Plaintiff's Motion be granted because “the
lack of discovery can be attributed to the Plaintiff's
lack of diligence.” See Dkt. #106 at 7. To
support its assertion, Defendant argues that “Plaintiff
requests to depose the same individuals it could have under
the limited discovery allowed by the Court in 2017.”
narrowly tailored discovery pursuant to Backe v. Le
Blanc, 691 F.3d 645 (5th Cir. 2012), was permitted
during the stay. See Dkt. #34. Under Backe,
discovery was meant to “uncover only those facts needed
to rule on the immunity claim.” See id. at 7
(citing Backe, 691 F.3d at 648). Specifically, the
Magistrate Judge noted that fact questions remained as to the
Individual Defendants' “knowledge, actions,
omissions, and policies.” Id. at 9-10.
review, the Magistrate Judge's Report recommended
granting Plaintiff's Motion and denial of Defendant's
Motion because both parties would benefit from full
discovery. See Dkt. #104. At the hearing before the
Magistrate Judge on August 29, 2019, Defendant stated that it
intended to conduct further discovery if the Court granted
Plaintiffs Motion. See Dkt. #103. Further, since the
Magistrate Judge's Report has been pending for review,
Defendant has filed a Motion to Stay, or in the Alternative,
Motion to Compel with the Court, in which it seeks either a
stay until Plaintiffs appeal to the Supreme Court is resolved
or an order compelling Plaintiff to answer discovery and
provide dates for depositions. See Dkt. #105 at 9.
The Court finds the positions taken by Defendant in its
Objections (Dkt. #106) and its Motion to Stay Or in the
Alternative, Motion to Compel (Dkt. #105) are inconsistent
and show that summary judgment at this stage is premature.
Accordingly, this objection is OVERRULED.
on the foregoing, Plaintiff Jeri Lynn Rich's Opposed Rule
56(d) Motion or Alternative Motion to Extend the Deadline to
File Plaintiffs Response to Defendant's Motion for
Summary Judgment (Dkt. #99) is hereby
GRANTED, and Defendant City of
McKinney's Motion for Summary Judgment (Dkt. #94) is
hereby DENIED AS MOOT, as it is premature.