Magee v. Reed

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ROGER D. MAGEE CIVIL ACTION

VERSUS NO. 14-1986

WALTER P. REED, ET AL SECTION: "B"(1)

ORDER AND REASONS

For the reasons discussed below,

IT IS ORDERED that Defendants Walter Reed and Jerry Wayne

Cox’s opposed motions for summary judgment are DENIED. See Rec.

Docs. 192, 194, 202, 204, 215, 218, 220 and 223.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case arises out of the March 28, 2014 arrest of Roger D.

Magee (“Magee”). The facts are summarized in a previously issued

order (Rec. Doc. 234). However, the facts and procedural history

relevant to the instant motions are summarized here.

Magee filed suit on August 29, 2014 against several defendants

including Walter Reed (“Reed”), the former Washington Parish

District Attorney for the 22nd Judicial District, Jerry Wayne Cox

(“Cox”), a Pentecostal Minister in Franklinton, Louisiana, Randy

Seal, Sheriff of Washington Parish, and several Washington Parish

Sheriff Officers, alleging a free speech retaliation claim and

false imprisonment pursuant to 42 U.S.C. §1983.

On March 13, 2015, Reed filed a rule 12E Motion for More Definite

Statement. Rec. Doc. 14. Later, parties filed a joint motion for

entry of consent order on the motion for more definite statement.

Rec. Doc. 21. As a result, this court granted the joint motion and

dismissed the motion for a more definite statement. Rec. Doc. 22.

Magee filed a first amended complaint with jury demand on May 1,

2015. Rec. Doc. 23. On May 19, 2015, both Reed and Cox,

individually, filed and were granted an extension of time to answer

the amended complaint. Rec. Doc. 24,25,26. Cox answered the amended

complaint on June 9, 2015. Rec. Doc. 27.

On June 15, 2015, Reed filed a motion to dismiss for failure to

state a claim. Rec. Doc. 29. On August 19, 2015, this Court granted

the motion, dismissing all claims against Reed, finding (1) Magee’s

false arrest and First Amendment retaliation claims were barred by

Heck v. Humphrey, 512 U.S. 477 (1994), (2) Magee’s excessive force

claim failed to show that the actions of the arresting officers

were in some way caused by Reed and Magee failed to satisfy his

burden of showing that Reed was not entitled to qualified immunity,

(3) Magee’s due process claim related to bond failed to show that

Reed was “causally connected” to Magee’s bail problems, and (4)

Magee’s Monell claim failed to show that any of the supposedly

improperly-trained district attorneys participated in the claims

brought against Magee. Rec. Doc. 37. Magee appealed the Order and

Reasons. Rec. Doc. 40.

On July 22, 2015, defendant Officers and defendants Mike Haley,

Miller, and Seal filed a motion for partial judgment on the

pleadings or for partial summary judgment. Rec. Doc. 34. On August

31, 2015, the same defendants filed a motion for summary judgment.

Rec. Doc. 38. On October 19, 2015, this court granted both motions.

Rec. Doc. 49. Specifically, we found that the claims for false

arrest, false imprisonment, and free speech retaliation previously

dismissed against Reed must also be dismissed against these

defendants pursuant to Heck. Id. at 9-15. Similarly, Magee’s Monell

claims for false arrest and false imprisonment were found to be

Heck-barred and were accordingly dismissed. Id. at 18-20.

Nonetheless, we found that Magee’s excessive force claims,

including his Monell claims based on excessive force, were not

barred by Heck; therefore, the motion to dismiss/motion for summary

judgment was denied to the extent it sought to dismiss the

excessive force claims against these defendants. Id. at 15-17, 20.

The claims for battery and excessive force in violation of

Louisiana law were dismissed as duplicative with Magee’s § 1983

excessive force claims. Id. at 17-18. Finally, the procedural due

process claims for denial of bail were dismissed because there

was no evidence to suggest defendants were unduly involved

with the denial of bond/bail. Id. at 20-24.

On September 14, 2015, Cox filed a motion for judgment on the

pleadings or, alternatively, a motion for summary judgment. Rec.

Doc. 39. On October 28, 2015, this court granted the motion and

dismissed plaintiff’s claims against Cox with prejudice. Rec. Doc.

54. Specifically, we found that plaintiff’s claims for false arrest

and imprisonment and for free speech retaliation were barred by

Heck. Id. at 10-15. Magee’s claims for excessive force failed

because they did not show how Cox was “causally connected” to the

claim. Id. at 15-16. Finally, Magee’s claims for battery and

excessive force under Louisiana law were dismissed as duplicative.

Id. at 16-17. Magee appealed the Order and Reasons. Rec. Doc. 56.

On December 9, 2015, this court granted Magee’s motion to

stay pending the outcome of the appeals (Rec. Docs. 40, 56). Rec.

Doc. 58. On January 22, 2016, the Fifth Circuit found that it

lacked jurisdiction over the appeals, because this court had not

disposed of all claims and parties before the appeals were filed.

Rec. Doc. 59 at 2. On March 17, 2016, the stay was lifted, and

trial was set for March 17, 2017. Rec. Doc. 63.

On December 29, 2016, a second motion for summary judgment

was filed by defendant officers and defendants Haley, Miller, and

Seal. Rec. Doc. 76. On March 9, 2017, this court granted the second

motion for summary judgment in part by dismissing with prejudice

the claims for inadequate medical care because Magee failed to (1)

allege a proper claim for unconstitutional conditions of

confinement or a sufficiently serious injury; or (2) submit

material evidence of deliberate indifference. Rec. Doc. 88. This

court further ordered that the claim for excessive force survived.

Id.

On March 24, 2017, a joint stipulation of dismissal of claims

against Officers Brumfield, Nesmith, and Miller was filed. Rec.

Doc. 112. A jury trial begun on March 27, 2017 and ended on March

28, 2017. Rec. Doc. 115 and 116. This court entered a final

judgment in favor of all defendants dismissing all claims pursuant

to the jury verdict, Order and Reasons granting Reed’s motion to

dismiss, Order and Reasons granting Cox’s motion for judgment on

the pleading and the joint stipulation of dismissal against

Brumfield, Nesmith and Miller. Rec. Doc. 121.

On April 27, 2017, Magee appealed the Order and Reasons

granting Reed’s motion to dismiss for failure to state a claim,

the final judgment, and the Order and Reasons granting Cox’s motion

for judgment on the pleadings. Rec. Doc. 122. On January 30, 2019,

the Fifth Circuit reversed the judgment as to the claims against

Reed (in both his official and personal capacitates) for false

imprisonment, free speech retaliation and procedural due process

violations, and against Cox for free speech retaliation. Rec. Doc.

132. The Fifth Circuit remanded the case for further proceedings

and found that Heck did not bar the free speech retaliation claim

against Cox and the free speech retaliation and false imprisonment

claims against Reed. The Circuit reasoned that those claims stem

not from the arrest but from the denial of bail. Id. at 4. The

Fifth Circuit further found error in dismissing the procedural due

process claim against Reed by resolving a genuine dispute of

material fact at the summary judgment stage. Id. at 5. Jury trial

was set for November 11, 2019 but was later continued to March 5,

2020 by order granting a motion to continue. Rec. Doc. 136, 149,

and 150.

Defendant, Reed (in his official capacity), filed the instant

motion for summary judgment alleging that discovery completed

since remand shows there is no genuine issue of material fact.

Rec. Doc. 192-17. Defendants, Jerry Wayne Cox and Walter P. Reed,

in his individual capacity, adopted Walter P. Reed’s, in his

official capacity, motion for summary judgment. Rec. Doc. 204 and

205. Plaintiff filed a response in opposition arguing that there

is a genuine issue of material fact which requires the case to

proceed to trial. Rec. Doc. 202. Defendant Reed, in his official

capacity, filed a reply reasserting that there is no genuine issue

of material fact and alleging that plaintiff’s facts are not based

on established facts. Rec. Doc. 215. Defendant Cox filed a reply

adopting Reed’s , in his official capacity, reply memorandum and

asserting that there is no genuine issue of material fact based

upon the discovery completed. Rec. Doc. 218. Defendant Reed, in

his individual capacity, filed a reply adopting a prior reply

memorandum, asserting that there is no evidence that he made a

threat to Magee. Rec. Doc. 220. Reed’s reply further asserts that

Magee was not involved in his federal prosecution and that he is

entitled to absolute and qualified immunity. Id. Magee filed a

surreply arguing that the motion for summary judgment should be

denied based on the evidence submitted. Rec. Doc. 223.

LAW AND ANALYSIS

a. Summary Judgment standard

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine

issue of material fact exists if the evidence would allow a

reasonable jury to return a verdict for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When

the movant bears the burden of proof, it must “demonstrate the

absence of a genuine issue of material fact” using competent

summary judgment evidence. Celotex, 477 U.S. at 323. But “where

the non-movant bears the burden of proof at trial, the movant may

merely point to an absence of evidence.” Lindsey v. Sears Roebuck

& Co., 16 F.3d 616, 618 (5th Cir. 1994). When the movant meets its

burden, the burden shifts to the non-movant, who must show by

“competent summary judgment evidence” that there is a genuine issue

of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). All reasonable inferences

must be drawn in favor of the nonmovant, but “a party cannot defeat

summary judgment with conclusory allegations, unsubstantiated

assertions, or only a scintilla of evidence.” See Sec. & Exch.

Comm'n v. Arcturus Corp., 912 F.3d 786, 792 (5th Cir. 2019).

b. Review after Fifth Circuit Remand

The first issue concerns the standard to be applied to the

current motion because the Fifth Circuit has already reviewed and

remanded the case on specific claims. The parties disagree as to

the standard to be applied. The plaintiff asserts that the “law of

the case” doctrine applies because the present case was remanded

by the Fifth Circuit. Rec. Doc. 202 at 7. Defendants argue the

“law of the case” doctrine does not apply because the Fifth Circuit

made no findings as to the merits of the case. Doc. 215 at 2.

Defendants asserts that the Fifth Circuit only reversed this

court’s dismissal and remanded for further proceeding. Id.

Defendant, Cox, specifically argues that the “law of the case”

doctrine only applies to matters fully litigated and the matter

remanded was not fully litigated. Rec. Doc. 218 at 6.

In Cooper Tire & Rubber Co. v. Farese, the Fifth Circuit

explained the law of the case doctrine stating:

“The law of the case doctrine provides that a decision

of a factual or legal issue by an appellate court

establishes the law of the case and must be followed in

all subsequent proceedings in the same case in the trial

court....” Lyons v. Fisher, 888 F.2d 1071, 1074 (5th

Cir.1989) (internal quotation omitted); see also Knotts

v. United States, 893 F.2d 758, 761 (5th Cir.1990).

Courts have the discretion to ignore the law of the case

under certain narrow exceptions: “if substantially

different evidence has been presented, there has been an

intervening change in the law, or the prior decision was

clearly erroneous and it would work a manifest

injustice.” Browning v. Navarro, 887 F.2d 553, 556 (5th

Cir.1989). Absent such exceptions, the law of the case

doctrine applies not only to things decided explicitly

but also to matters settled “by necessary implication:”

“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 are

deemed to have been decided tacitly or implicitly, and

their disposition is law of the case.” Office of Thrift

Supervision v. Felt, 255 F.3d 220, 225 (5th Cir.2001).

Cooper Tire & Rubber Co. v. Farese, 248 F. App'x 555, 558 (5th

Cir. 2007).

Indeed, the Fifth Circuit has provided the law of the case

here, and as such, it must be followed. The appellate court

concluded that there are questions of fact as to whether a “DA

Hold” actually exist and whether it was used to deny the plaintiff

bail. Magee v. Reed, 912 F.3d 820, 823 (5th Cir. 2019). This court

does have the discretion to ignore the law of the case, but only

where an exception applies.

However, in this case none of the exceptions are

applicable. There has been no intervening change in the law; the

prior decision was not clearly erroneous that it would work a

manifest injustice; nor has substantially different evidence been

presented. The evidence defendants provide to support the present

motions for summary judgment is the same or similar to the evidence

they presented to the Fifth Circuit. The Fifth Circuit rejected

defendants’ approach, ultimately finding that Magee submitted

evidence to create a material factual dispute to Defendants’

evidence. This court will not second guess the Fifth Circuit’s

decision.

It is clear from a reading of the Fifth Circuit’s opinion

that it addressed the §1983 claims against Reed, in both his

official and individual capacity, for false imprisonment, free

speech retaliation, and procedural due process and against Cox for

free speech retaliation. Further, the Fifth Circuit’s opinion

explicitly addressed considerations of any additional evidence

the defendants produced on the existence or lack thereof of a “D.A.

Hold.” Implicit in the Fifth Circuit’s considerations were the

issues of absolute and qualified immunity. Defendants argue that

the only “holding” of the Fifth Circuit is with respect to Magee’s

claims not being Heck barred. However, there is adequate support

that the Fifth Circuit considered whether immunity barred present

claims. The issues of immunity were briefed by the parties to the

Fifth Circuit and the Fifth Circuit still remanded specific claims

against Reed in both his individual and official capacities, to

this court. Magee, 912 F.3d at 822.

In Knotts v. United States , a personal injury claim under

the Federal Tort Claims Act, the government asserted immunity as

a defense. Knotts v. United States, 893 F.2d 758, 759 (5th Cir.

1990). The district court rejected immunity, found both the

government and the plaintiff to be negligent, and apportioned 100%

of the fault to the victim. Id. On appeal, the government argued

the district court's error in rejecting immunity. Id. In its

decision, the Fifth Circuit did not expressly address the immunity

argument but went on to vacate the judgment on other grounds, and

it ordered reapportionment of fault. Id. In a second appeal, the

government tried again to raise its immunity defense, but the Fifth

Circuit held that the immunity defense was foreclosed by their

decision in the prior appeal. Id. at 761. In so doing, the Fifth

Circuit stated that although not expressly addressed in the prior

opinion, the immunity defense was briefed and

considered. Id. “[B]y remanding the case with instructions that

the district court apportion fault ... we indicated, albeit

tacitly, our rejection of the United States' claim of

immunity.” Id.

In this case, the Fifth Circuit reviewed the plaintiff’s § 1983

claims against Reed, in both his official and individual

capacities, for false imprisonment, free speech retaliation, and

procedural due process violations. The Fifth Circuit reversed the

dismissal and remanded for further proceeding. The Fifth Circuit

implicitly settled on issues of absolute and qualified immunity by

remanding the claims against Reed in both his official and

individual capacities. As such, this court will follow the law of

the case as provided by the Fifth Circuit. The Fifth Circuit found

summary judgment was inappropriate when the claims against Reed

and Cox were originally dismissed and summary judgment remains

inappropriate now.

New Orleans, Louisiana this 3rd day of March 2020

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE