Bourne v. Gunnels

          MEMORANDUM OPINION AND ORDER

          SIM LAKE, UNITED STATES DISTRICT JUDGE.

         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.

         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) Lieutenant Michael Gunnels; (2) Sergeant Carlos Applewhite; (3) Officer Anthony Howard; (4) Officer Ronald Weaver; (5) Officer Robert LeBlanc; (6) Officer Ernest Price; (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, while these officers were extracting Bourne from his cell.^[3] 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 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] Because Bourne failed to show that excessive force was used, 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 claim. See Bourne v. Gunnels, 921 F.3d 484, 490 (5th Cir. 2019) .^[8] 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." Id.

         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 Joint Pretrial Order to eliminate reference to Bourne's bystander-liability claim for failure to intervene against Lieutenant Gunnels, Sergeant Applewhite, and Officer Ford, citing "the law of the case doctrine. "^[11] The defendants also request a pretrial conference on this 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 other defendants.^[14]

         II. Discussion

         A. 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 new evidence, where there is an intervening change in law, or where 'the earlier decision is clearly erroneous and would work a manifest injustice.'" Webb v. Davis, __ F.3d __, 2019 WL 5205899, *2 (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; see also Tollett, 285 F.3d at 364 (same). Unless one of the above-referenced exceptions applies, 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 ...