Powell v. Madden, et al.

Filing 61

ORDER DENYING Motion at Docket 60 signed by Chief Judge Ralph R. Beistline on 4/11/2014. (Sant Agata, S)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
TONY EDWARD POWELL,
Case No. 1:13-cv-00057-RRB
Plaintiff,
ORDER DENYING
MOTION AT DOCKET 60

vs.
MADDEN, et al.,
Defendants.

At Docket 60 Plaintiff Tony Edward Powell, a federal prisoner appearing pro se,
filed a document entitled “Consolidated, Alternative Petition for Summary Judgment
Alternatively Moves to Show How Defendants are Divested of Jurisdiction.” Although it is
not entirely clear from that document just what relief Powell seeks as against which
Defendant, the language of the motion appears to address the question of whether Powell
properly exhausted his medical deliberate indifference claim against Defendants Jon
Franco, M.D., Lourdes Mettry and Rodrigo Ogues.
The Court, after fully considering the motion of Defendants Jon Franco, M.D.,
Lourdes Mettry, and Rodrigo Ogues and the opposition by Powell, dismissed the complaint
as against them, with prejudice, for failure to properly exhaust administrative remedies.1

1

Docket 59. The Court notes that this is an interlocutory, not a final,
appealable order. The Court further notes that Defendants brought their motion under
“unenumerated Rule 12(b),” and the Ninth Circuit recently held that the appropriate
(continued...)
ORDER DENYING MOTION AT DOCKET 60
Powell v. Madden, 1:13-cv-00057-RRB – 1

It appears that Powell’s pending motion, dated April 2, 2014, was mailed to the Clerk of the
Court the same day as the Order of the Court was entered and mailed to Powell. Thus, the
two crossed in the mail.
Under the law of the case doctrine, a court is generally precluded from reconsidering
an issue that has already been decided by the same or a higher court in the same case.2
However, the law of the case doctrine is not a shackle without a key. In the interests of
justice and efficient judicial efficiency, the Court will consider the motion as a motion for
reconsideration under the inherent power of the Court to reconsider its interlocutory
orders.3 That inherent power is not, however, unfettered: a court may depart from the law
of the case doctrine where: “(1) the decision is clearly erroneous and its enforcement would
work a manifest injustice; (2) intervening controlling authority makes reconsideration

1

(...continued)
procedure is a motion for summary judgment under Rule 56. Albino v. Baca, __ F3d ___,
___, 2014 WL 1317141 (9th Cir. April 3, 2014) (en banc) (overruling in part Wyatt v.
Terhune, 315 F.3d 1108 (9th Cir. 2003)). Although the Ninth Circuit eschewed the use of
Rule 12(b) in Albino, it did not materially alter the standard applied under Wyatt.
Accordingly, notwithstanding that it was decided under an improper rule, in the interests
of efficient judicial administration, the Court will nonetheless review Defendants’ motion as
if it had been brought under Rule 56 and, in reconsidering the prior Order in light of the
current motion, do so applying the appropriate standards. That is, the Court will sua sponte
review its prior decision to determine if it was correctly decided applying summary
judgment standards.
2

Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993).

3

City of Los Angeles, Harbor Div. v. Santa Monica, 254 F.3d 882, 885 (9th Cir.

2001).
ORDER DENYING MOTION AT DOCKET 60
Powell v. Madden, 1:13-cv-00057-RRB – 2

appropriate; or (3) substantially different evidence was adduced at a subsequent trial.”4
With respect to the pending motion, only the first ground, “clearly erroneous,” applies.
The Court agrees that, under the applicable Regulations for the purpose of
determining whether the administrative remedies have been exhausted, a grievance that
is not ruled upon within the specified period is deemed denied; and, therefore, in that
respect also deemed exhausted. That does not, however, affect the Court’s decision in this
case. The basis underlying the Court’s decision was that Powell did not raise his medical
deliberate indifference claim until the third-level, thereby improperly by-passing the first and
second levels. Consequently, as the Court explained, Powell failed to properly exhaust his
available administrative remedy. Nothing in the motion pending before this Court changes
that analysis.
Finally, viewing Defendants’ motion to dismiss in light of the requirements for
summary judgment, the Court finds no basis upon which to modify or rescind its Order at
Docket 59 dismissing the medical deliberate indifference claim for failing to properly
exhaust his administrative remedies. That is, whether decided under the standards for an
“unenumerated motion” under Rule 12(b) (Wyatt) or for summary judgment (Albino), the
result is the same, i.e., there is not “sufficient evidence favoring the nonmoving party for

4

Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (en banc) (footnote and
internal quotes omitted); see Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir.
1995); School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263
(9th Cir. 1993).
ORDER DENYING MOTION AT DOCKET 60
Powell v. Madden, 1:13-cv-00057-RRB – 3

a jury to return a verdict for that party.”5 Powell has provided no basis upon which this
Court may amend or alter its decision to dismiss the medical deliberate indifference claim.
Accordingly, the document entitled “Consolidated, Alternative Petition for Summary
Judgment Alternatively Moves to Show How Defendants are Divested of Jurisdiction” at
Docket 60, treated as a motion to reconsider the Court’s Order at Docket 59, is DENIED.
IT IS SO ORDERED this 11th day of April, 2014.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

5

Anderson v. Liberty Lobby, Inc., 470 U.S. 242, 249 (1986).

ORDER DENYING MOTION AT DOCKET 60
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