Eddy Bailey v. Officer Moreno, No. 13-1769 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1769 EDDY R. BAILEY, Plaintiff Appellant, v. OFFICER Y. MORENO, Defendant Appellee, and THE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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 district court Moreno denied (collectively, relief on Defendants, and Bailey appealed. Defendants ). these claims The against all 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 further order, and we remanded consideration of those to the district discovery court Bailey issues. for 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 Network, 483 F. App x 808 (4th Cir. 2012) (No. 11-2348) (unpublished).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 judgment in favor of Moreno. the court s remand orders and For the reasons that follow, we affirm. As review in an this initial appeal. matter, The we address mandate the rule scope is a of our 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 Chao, 511 F.3d at 465. not remanded to the district court. 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. ). deviate from circumstances. the mandate rule in limited, We may exceptional 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 Because to provide Bailey did Bailey not with raise the this address specific of a witness. 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. remand, complied these the with magistrate our discovery judge mandate rulings. Contrary to Bailey s assertion, on and requiring We have the district further reviewed court fully consideration the record of 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. these rulings district Nov. 3, substantially court 2011 & and the entered for the magistrate Nov. 4, Accordingly, we affirm reasons judge. 2011; stated (E.D. Oct. 31, by the Va. filed 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 government expense. facts and materials legal before motion for a deposition transcript at We dispense with oral argument because the contentions are adequately this and argument court presented would not in the aid the decisional process. AFFIRMED 5

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