Eddy Bailey v. Officer Moreno , 547 F. App'x 196 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1769
EDDY R. BAILEY,
Plaintiff – Appellant,
v.
OFFICER Y. MORENO,
Defendant – Appellee,
and
THE CHRISTIAN BROADCASTING NETWORK; CHIEF CHRIS MITCHELL,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:10-cv-00129-RAJ-TEM)
Submitted: October 31, 2013 Decided: November 22, 2013
Before DAVIS, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eddy R. Bailey, Appellant Pro Se. David Drake Hudgins, Juliane
Corroon Miller, HUDGINS LAW FIRM, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eddy Bailey filed claims under 42 U.S.C. § 1983 (2006)
against the Christian Broadcasting Network, Inc. (“CBN”), and
two officers on its police force, Chief Christopher Mitchell and
Officer Yahzin Moreno (collectively, “Defendants”). The
district court denied relief on these claims against all
Defendants, and Bailey appealed. In a prior appeal, we affirmed
the court’s judgment in favor of Defendants CBN and Mitchell, as
well as certain discovery orders. We vacated the judgment in
favor of Defendant Moreno and portions of the court’s pretrial
discovery order, and we remanded to the district court for
further consideration of those discovery issues. Bailey v.
Christian Broad. Network, 483 F. App’x 808 (4th Cir. 2012) (No.
11-2348) (unpublished).
On remand, the magistrate judge issued a clarification
order, explaining the basis for his prior discovery rulings and
reissuing those rulings. Over Bailey’s objections, the district
court adopted those rulings and reissued judgment in favor of
Moreno. Bailey now appeals the court’s remand orders and
judgment in favor of Moreno. For the reasons that follow, we
affirm.
As an initial matter, we address the scope of our
review in this appeal. “The mandate rule is a specific
application of the law of the case doctrine” to cases that have
2
been remanded on appeal. Volvo Trademark Holding
Aktiebolaget v. Clark Mach. Co. (“Volvo”), 510 F.3d 474, 481
(4th Cir. 2007). The rule generally binds a lower court to
carry out a higher court’s mandate, prohibiting the lower court
from considering on remand matters decided or laid to rest by
the higher court. United States v. Susi, 674 F.3d 278, 283 (4th
Cir. 2012) (internal quotation marks omitted); Doe v. Chao, 511
F.3d 461, 465 (4th Cir. 2007).
Generally, where an issue could have been — but was
not — raised in an initial appeal, that issue is waived in the
initial appeal and is “not remanded” to the district court.
Chao, 511 F.3d at 465. Because a waived issue does not fall
within the scope of the appellate court’s mandate, the mandate
rule generally provides that “it is inappropriate to consider
[such an issue] on a second appeal following remand.” Omni
Outdoor Adver., Inc. v. Columbia Outdoor Adver., Inc., 974 F.2d
502, 505 (4th Cir. 1992); see also Volvo, 510 F.3d at 481(“[U]nder the mandate rule[,] a remand proceeding is not the
occasion for raising new arguments or legal theories.”). We may
deviate from the mandate rule in limited, exceptional
circumstances. See United States v. Pileggi, 703 F.3d 675, 681-
82 (4th Cir. 2013) (describing exceptions to mandate rule).
On appeal, Bailey challenges the magistrate judge’s
order requiring a protective order as a condition for compelling
3
Defendants to provide Bailey with the address of a witness.
Because Bailey did not raise this specific challenge in his
original appeal, it falls outside the scope of the appellate
mandate. Bailey does not identify any circumstance warranting
deviation from the mandate rule, and we have identified none.
Accordingly, this issue is barred by the operation of the
mandate rule.
Bailey next challenges the district court’s judgment
in favor of Moreno. * He also challenges the district court’s
order on remand clarifying and reissuing the portions of the
discovery order (1) denying Bailey’s motion for an extension of
time to file requests for admission (“RFAs”) and deeming those
RFAs admitted, and (2) denying his request for specific
sanctions against Defendants Mitchell and Moreno for failure to
timely disclose a witness. Contrary to Bailey’s assertion, on
remand, the magistrate judge and the district court fully
complied with our mandate requiring further consideration of
these discovery rulings. We have reviewed the record with
regard to these rulings and the court’s judgment in favor of
*
Because we vacated the district court’s judgment in favor
of Moreno pending the resolution of the discovery disputes on
remand, the judgment was reissued by the district court on
remand, and Bailey challenged this judgment both in his initial
appeal and the instant appeal, the judgment in favor of Moreno
is properly before us at this juncture.
4
Moreno and find no reversible error. Accordingly, we affirm
these rulings substantially for the reasons stated by the
district court and the magistrate judge. (E.D. Va. filed
Nov. 3, 2011 & entered Nov. 4, 2011; Oct. 31, 2012; filed
June 4, 2013 & entered June 5, 2013).
Finally, Bailey challenges the district court’s order
on remand clarifying and reissuing the portions of the discovery
order limiting the scope of Dr. Reid’s testimony and striking
Bailey’s claims for financial damages. Because these issues
relate only to Bailey’s claims for damages, but the district
court properly concluded that none of the Defendants were liable
to Bailey, these remaining challenges are moot.
Accordingly, we affirm the district court’s judgment.
We deny Bailey’s motion for a deposition transcript at
government expense. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
5