King v. USA
ORDER denying pltf's 122 Motion for Reconsideration. Signed by Judge James M. Moody on 10/13/11. (vjt)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
ALAN R. KING, JR.
CASE NO. 2:09CV00163 JMM
UNITED STATES OF AMERICA
Plaintiff has filed a Motion to Reconsider the Court’s Order of September 15, 2011
(#122). For the reasons stated below, the motion is denied.
On January 6, 2011, the Court entered a Judgment dismissing Plaintiff’s case without
prejudice with respect to Plaintiff’s claims brought pursuant to Bivens v. Six Unknown Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for failure to exhaust, and with prejudice with
respect to Plaintiff’s claims brought pursuant to the Federal Tort Claims Act (“FTCA”). Plaintiff
filed an appeal of this Judgment on February 3, 2011.
On May 18, 2011, the Court of Appeals for the Eight Circuit affirmed the Judgment and
issued its Mandate on August 4, 2011. Plaintiff filed a timely Rule 60(b) Motion for
Reconsideration of the District Court’s dismissal based upon newly discovered evidence. The
Court denied the Motion to Reconsider focusing its analysis on Plaintiff’s Bivens claims.
In this Motion to Reconsider, Plaintiff contends that his argument regarding newly
discovered, and previously unavailable evidence, was applicable to his FTCA claims, not his
Bivens claims. After reviewing Plaintiff’s August 22, 2011, Rule 60(b) motion, it is clear that
Plaintiff sought to have this newly discovered evidence considered in relation to his FTCA claim.
In his first Motion to Reconsider, Plaintiff stated that he had very recently discovered a
copy of an informal resolution attempt in the Bureau of Prison’s file regarding Defendants
Outlaw and Thompson. He claimed that in response to this informal resolution attempt, he was
told that his complaint could not be resolved through the administrative remedy procedure
because it involved “alleged staff misconduct.” It is Plaintiff’s position that this document is
newly discovered evidence because it was not available to him during the pendency of the
Motion for Summary Judgment because it had been stolen by the prison staff. Plaintiff attached
as Exhibit “A” the December 4, 2008, copy of the informal resolution.
As previously stated, because the Eighth Circuit has issued its Mandate, this Court has
jurisdiction to consider Plaintiff’s motion. See United States v. Hessman, 493 F.3d 977, 981 (8th
Cir. 2007) (noting a district court is again vested with jurisdiction upon receipt of appellate
judgment); Carlson v. Hyundai Motor Co., 222 F.3d 1044, 1045 (8th Cir. 2000) (issuance of
mandate formally marks end of appellate jurisdiction; jurisdiction returns to tribunal to which
mandate is directed, for such proceedings as may be appropriate). However, under the
law-of-the-case doctrine, the decision by the Eighth Circuit that the District Court’s dismissal of
Plaintiff’s FTCA claims with prejudice was proper may not be reviewed by this Court unless
substantially different evidence is introduced or the prior decision is clearly erroneous and works
a manifest injustice. See United States v. Callaway, 972 F.2d 904, 905 (8th Cir. 1992) (per
curiam) (“[D]ecision in a prior appeal is followed in later proceedings unless a party introduces
substantially different evidence, or the prior decision is clearly erroneous and works a manifest
Rule 60(b)(2) permits the court to relieve a party from a final judgment for “newly
discovered evidence which by due diligence could not have been discovered in time to move for
a new trial under Rule 59(b).” The Court finds that Plaintiff’s December 2008 informal
resolution is not newly discovered evidence.
Regardless of whether prison officials concealed this document from Plaintiff, he knew,
or should have known, that the document existed because he created the document. Because he
knew the document existed, it is not newly discovered evidence.
Because the prior decision is not clearly erroneous or manifestly unjust and because
Plaintiff has failed to present newly discovered evidence that amounts to substantially different
evidence, there is no justification that would allow an exception to the law-of-the-case doctrine
or permit any relief under Rule 60(b).
IS SO ORDERED THIS 13
day of October , 2011.
James M. Moody
United States District Judge
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