Goodman v. Harris County

• Decision Date: 21 March 2006
• Docket Number: No. 04-20859.,04-20859.
• Citation: 443 F.3d 464
• Parties: Jeanette GOODMAN, Individually and as administratrix of the estate of Michael W. Goodman, Deceased, Plaintiff-Appellee, v. HARRIS COUNTY; et al., Defendants, Harris County; Robert Eckels, Harris County Judge; El Franco Lee, Harris County Commissioner; Steve Radack, Harris County Commissioner; Jerry Eversole, Harris County Commissioner; Sylvia Garcia, Harris County Commissioner; Ron Hickman, Harris County Precinct 4 Constable; Terry Ashabranner, Deputy Constable, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

443 F.3d 464

Jeanette GOODMAN, Individually and as administratrix of the estate of Michael W. Goodman, Deceased, Plaintiff-Appellee, v. HARRIS COUNTY; et al., Defendants Harris County; Robert Eckels, Harris County Judge; El Franco Lee, Harris County Commissioner; Steve Radack, Harris County Commissioner; Jerry Eversole, Harris County Commissioner; Sylvia Garcia, Harris County Commissioner; Ron Hickman, Harris County Precinct 4 Constable; Terry Ashabranner, Deputy Constable, Defendants-Appellants.

No. 04-20859.

United States Court of Appeals, Fifth Circuit.

March 21, 2006.

Newton Boris Schwartz, Sr., Law Offices of Newton B. Schwartz, Houston, TX, for Goodman.

Frank Edward Sanders, Asst. County Atty., Houston, TX, for Defendants-Appellants.

Appeal from the United States District Court for the Southern District of Texas.

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

In this action, the defendants appeal the district court's order requiring one of the defendants to undergo a mental examination pursuant to FED. R. CIV. P. 35. Lacking jurisdiction, we dismiss the appeal.

I. FACTS AND PROCEEDINGS

Jeanette Goodman ("Goodman"), the mother of Michael Goodman ("Michael"), brought suit against Harris County and various county officials, including Deputy Constable Terry Ashabranner ("Deputy Ashabranner"). Goodman, both individually and in her capacity as the administratrix of Michael's estate, asserted claims under 42 U.S.C. § 1983 and Texas state law. Goodman originally brought this suit in Texas court; the defendants removed the case to federal court. Among other claims, Goodman maintains that her son's civil rights were violated because Deputy Ashabranner used excessive force.

A. The Underlying Incident

The incident that gave rise to the action happened just before midnight of April 14, 2002. According to Deputy Ashabranner, he stopped Michael after he observed Michael riding a bicycle, which lacked a headlight the wrong way down a road in Harris County, Texas. Deputy Ashabranner maintains that he observed a "shiny or metallic" object in Goodman's back pocket. Deputy Ashabranner claims that, after being stopped, Michael pushed Deputy Ashabranner down and fled on the bicycle. Thereafter, Deputy Ashabranner released a police dog and pursued Michael.

Deputy Ashabranner states that, when he reached Michael, Michael was holding the police dog's head under standing roadside water. Deputy Ashabranner and Michael came together in a physical struggle, and, according to Deputy Ashabranner, Michael pushed Deputy Ashabranner down and reached behind his back "as if to pull something from his back pocket or the back of his pants." Deputy Ashabranner shot Michael, and Michael died from his wounds.

B. The Proceedings Below

In the ensuing suit, in which final judgment has not been rendered, the district court ordered Deputy Ashabranner to submit to a mental examination, pursuant to FED. R. CIV. P. 35. In the order, the district court stated:

[T]he parties have indicated that it is the intent of the Defendants to try this case by presenting an expert to opine about the manner [in] which Mr. Goodman would have likely reacted back in 2002 based on his past history. Even though the Defendants submit ... that it is uncertain whether Deputy Ashabranner's mental state on [the date of the incident] could be determined at this date, they nonetheless proposed to do exactly that with respect to the decedent Michael Goodman .... [I]t appears to the Court that if [ ] the Defendants propose to try this case by establishing what likely happened based on psychiatric testimony [then] both sides should be able to avail themselves of that opportunity.

In the same order, the district court signified its doubt that any relevant and admissible evidence could result from this line of inquiry when it stated, "[I]t is this Court's belief that such expert testimony ... would probably not survive a Daubert challenge." Nevertheless, the district court ordered the examination.

Deputy Ashabranner filed a notice of appeal within thirty days of the order's filing. Deputy Ashabranner asserts that this court has jurisdiction, under the collateral order doctrine, to hear his appeal. On the merits, Deputy Ashabranner contends that the district court abused its discretion in ordering the mental examination because Deputy Ashabranner's mental state is not in controversy and Goodman failed to make a showing of good cause.

In the time following the filing of this appeal, the district court granted Goodman's motion to exclude the testimony of Deputy Ashabranner's expert psychiatrist. The testimony appears to have been the underlying basis for the district court's Rule 35 order. Later, Deputy Ashabranner filed a motion in limine to exclude "[a]ny reference to the alleged mental and/or physical condition of Deputy Ashabranner at the time of the incident on which the lawsuit is based." Following briefing, the district court entered an order granting summary judgment in favor of all other defendants and dismissing all claims, except the § 1983 excessive force claim against Deputy Ashabranner. Both parties filed appeals from the summary judgment order.¹ After the parties filed their respective notices of appeal, the district court announced that "[a] new scheduling order will be issued at the conclusion of the appeal" and denied both the plaintiff's and defendants' motions in limine without prejudice.²

II. JURISDICTION

"Before reaching the merits of this case, we must first satisfy ourselves that the appeal is properly before us." Steadman v. Texas Rangers, 179 F.3d 360, 365 (5th Cir.1999). See also Honeywell Int'l, Inc. v. Phillips Petroleum Co., 415 F.3d 429, 431 (5th Cir.2005). Generally, this court's jurisdiction is limited to review the district courts' final orders, qualified interlocutory orders, and collateral orders. See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 815 (5th Cir.2004); 28 U.S.C. §§ 1291, 1292. This circuit has held that discovery orders are generally not appealable because they (1) "do not constitute final decisions" for the purposes of § 1291 and (2) "are not appealable under the Cohen collateral order doctrine." Wiwa, 392 F.3d at 815 (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). See also A-Mark Auction Galleries, Inc. v. Am. Numismatic Ass'n, 233 F.3d 895, 897 (5th Cir.2000) (restating the general rule).

Deputy Ashabranner claims that this court has jurisdiction to hear this appeal under the collateral order doctrine. As Deputy Ashabranner correctly points out, in Acosta v. Tenneco Oil Co., this circuit specifically held that an order compelling a litigant to submit to an examination pursuant to Rule 35 was "appealable under the collateral order doctrine." 913 F.2d 205, 207 (5th Cir.1990).³ In response to Deputy Ashabranner's reliance on Acosta, Goodman refers to Texaco Inc. v. Louisiana Land & Exploration Co., 995 F.2d 43, 44 (5th Cir.1993), where this court declined to follow Acosta.⁴ The Texaco court considered its jurisdiction to hear an appeal of a discovery order. As here, the Texaco appellants urged the court to exercise jurisdiction under Acosta while the appellees argued in favor of the general rule against the appealability of discovery orders set out in Honig v. E.I. duPont de Nemours & Co., 404 F.2d 410, 410 (5th Cir.1968) (per curiam). See Texaco, 995 F.2d at 43-44. In deciding which precedent to follow, the Texaco court observed:

"In the event of conflicting panel opinions from this court, the earlier one controls, as one panel of this court may not overrule another." Accordingly, Honig, not Acosta, is the controlling precedent in this circuit, and the discovery order in question may not be appealed from at this time.

Id. at 44 (quoting Smith v. Penrod Drilling Corp., 960 F.2d 456, 459 n. 2 (5th Cir.1992)) (internal citation omitted).

While Deputy Ashabranner contends that Acosta provides that all Rule 35 orders are immediately appealable, Goodman argues that Acosta was a mere aberration from the general rule that discovery orders are not appealable. Neither argument is accurate; nor are the two cases irreconcilable. As a general rule, discovery orders are not appealable. See Texaco, 995 F.2d at 44. However, when such an order fits within the exception to that general rule, as did the order in Acosta, the court can and will exercise jurisdiction under the collateral order doctrine. The question, then, is not whether the court must follow Acosta or Texaco, but whether the order in question qualifies as a collateral order under Cohen.

Under the Cohen doctrine, as applied in this circuit, the court has jurisdiction over an otherwise unappealable order if the appellant demonstrates "that the order '(1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.'" Wiwa, 392 F.3d at 816 (quoting A-Mark, 233 F.3d at 898). "If the order at issue fails to satisfy any one of these requirements, it is not appealable under the collateral-order exception to § 1291." Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988) (listing the elements of the Cohen doctrine). The Rule 35 order in question fails to satisfy the Cohen requirements.

First, while the order conclusively determines whether Deputy Ashabranner will be required to submit to an examination, the same finality as to the specific issue can be found in all discovery orders. Further, the order's impact appears to have been overtaken by events at the trial level. The driving force behind the order—the testimony of Deputy Ashabranner's expert psychiatrist—has been excluded by the district court. Absent the expert testimony, the district court has not stated any reason for...