United States District Court, N.D. Mississippi, Oxford Division
Court currently has before it Plaintiff Summer Gorman's
motion and amended motion to set aside the judgment [41, 43].
Having considered the matter, the Court finds the motions
must be denied.
husband, John, was an agent with the Mississippi Gaming
Commission. In September 2016, the Commission put on a
firearms training exercise led by Robert Sharp, a firearms
instructor with the agency. During an exercise demonstration,
Sharp drew his actual firearm, rather than the dummy firearms
being used in the training, and shot John in the chest,
filed this 1983 action against the State of Mississippi, the
Mississippi Department of Public Safety, the Commission,
Tunica County, and Sharp, alleging they committed an
unreasonable seizure under the Fourth Amendment and deprived
him of his Fourteenth Amendment due process
motions from the Defendants, this Court dismissed the claims
against the State of Mississippi, the Mississippi Department
of Public Safety, the Mississippi Gaming Commission, and
Sharp in his official capacity because the State and its
agencies were immune from § 1983 liability under the
Eleventh Amendment. See Mem. Op. , The Court
also found that Sharp, in his individual capacity, was
entitled to qualified immunity on the Fourteenth Amendment
due process claim. However, the Court found that Sharp was
not entitled to qualified immunity on the Fourth Amendment
seizure claim at that stage of the case Sharp appealed. The
Fifth Circuit reversed, holding that because Sharp believed
he was using a dummy firearm rather than a real firearm, he
did not willfully and intentionally shoot John. Thus, under
the facts of the complaint, Sharp did not seize John under
the Fourth Amendment. Gorman v. Sharp, 892 F.3d 172,
175 (5th Cir. 2018) (citing Brower v. County of
Inyo, 489 U.S. 593, 596-97, S.Ct. 1378, 103 L.Ed.2d 628
remand, pursuant to the Fifth Circuit's opinion and
accompanying mandate, this Court ordered the remaining claims
against Sharp be dismissed.
appears that through discovery in a related state law case,
Gorman has obtained evidence that Sharp negligently
discharged his firearm in another incident several weeks
prior to shooting John. Thus, she now moves to aside the
Court's prior judgment pursuant to Fed.R.Civ.P. 60.
initial point of confusion is what order Gorman asks this
Court to revisit. The Court has issued two orders dismissing
claims in this case: the July 11, 2017, Order  that
dismissed all of the claims against the state entities and
the Fourteenth Amendment claim against Sharp; and the July
10, 2018, Order  dismissing the Fourth Amendment claim
against Sharp. Gorman's motion seeks to "set aside
the judgment of July 10, 2018," so that she can present
proof "that Robert Sharp and the Mississippi Gaming
Commission had previously knowledge of an unlawful discharge
of a fire arm by  Sharp." Pl.'s Am. Motion to Set
Aside Judgment,  at 4. However, the July 10, 2018, Order,
did not concern claims against the Mississippi Gaming
Commission, only the Fourth Amendment claim against Sharp.
Thus, it is unclear if Gorman asks this Court to set aside
just the July 10, 2018 Order, or the July 11, 2017, Order as
ultimately irrelevant which order Gorman seeks to set aside.
With respect to the July 10, 2018 Order and the Fourth
Amendment claim against Sharp, the mandate rule prevents this
Court from doing anything other dismissing those claims.
"The mandate rule requires a district court on remand to
effect our mandate and to do nothing else." Gen.
Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 453
(5th Cir. 2007) (quoting United States v. Castillo,
179 F.3d 321, 329 (5th Cir. 1999), rev 'd on other
grounds, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94
(2000). "Because the mandate rule is a corollary of the
law of the case doctrine, it 'compels compliance on
remand with the dictates of a superior court and forecloses
relitigation of issues expressly or impliedly decided by the
appellate court.'" Id. (quoting
Castillo, 179 F.3d at 329)).
Fifth Circuit's mandate remanded the case to this Court
"with instructions that the district court dismiss the
remaining Fourth Amendment claim against Sharp."
Gorman, 892 F.3d at 172. Dismissing that claim is
the only action this Court now has the authority to do. Thus,
the July 10, 2018, Order will not be set aside.
extent that Gorman seeks relief from July 11, 2017, Order,
she has not established she is entitled to that relief under
Rule 60. Rule 60(b) provides six avenues for relief from an
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for