United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE, UNITED STATES DISTRICT JUDGE.
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.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.
Background and Procedura1 History
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. 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. 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.
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. Because Bourne failed to show that
excessive force was used, the court also granted summary
judgment on Bourne's claim for bystander
filed a Notice of Appeal from the dismissal order entered on
June 7, 2017. 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)
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.
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. 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.
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.
" The defendants also request a pretrial
conference on this issue. Invoking the mandate rule, the
defendants point to the Fifth Circuit's opinion and argue
that only the excessive-force claim remains for
trial. 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.
Law of the Case and the Mandate Rule
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).
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)).
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)) .
The Bystander-Liability ...