Funtanilla v. Kelly, et al

Filing 231

ORDER signed by Chief Circuit Judge Alex Kozinski on 4/9/13 GRANTING 207 Amended Motion for Joinder; DENYING 222 and 227 Motions for Reconsideration. The Clerk of the Court is DIRECTED to issue and send to Funtanilla a summons for Linda L. Melching. Funtanilla shall complete service of process on Melching within 60 days from the date of this order. Melching shall reply to the complaint within the time provided by the applicable provisions of FRCP 12(a). (Meuleman, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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GREGORIO C. FUNTANILLA, JR., *
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Plaintiff,
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v.
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KAREN KELLY, et al.,
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Defendants.
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No. 2:02-cv-01157-AK

ORDER

Funtanilla’s amended motion for joinder (docket entry 207) is granted.1
Funtanilla seeks to add Linda L. Melching because he recently learned that he sued
the wrong Lebowski. Linda L. Melching—not Linda L. Rianda—is the former
Chief of the Inmate Appeals Board who he claims violated the Eighth Amendment
by failing to grant him single-cell status. Rianda became the chief shortly before
Funtanilla filed his complaint. Leave to amend the pleadings and join a new party

1

The procedural history of this case has been discussed at length in
Magistrate Judge Hollows’s well-reasoned orders. See Funtanilla v. Kelly, No.
CIV S-02-1157 LKK GGH P., 2009 WL 735389 (E.D. Cal. Mar. 19, 2009);
Funtanilla v. Kelly, No. CIV S-02-1157 LKK GGH P., 2006 WL 2583668 (E.D.
Cal. Sept. 7, 2006).

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is routinely granted “when a pro se litigant alleges a cause of action which omits an
obvious defendant.” Wilborn v. Escalderon, 789 F.2d 1328, 1332 (9th Cir. 1986).
In such cases, “the district court should direct or advise amendment of the
pleadings to bring that defendant before the court.” Id. Funtanilla’s error in this
case was obvious. And, contrary to defendants’ argument, they should suffer no
prejudice from the joinder since they knew from Funtanilla’s complaint that he was
suing in part based on actions taken by the Chief of the Inmate Appeals Board in
2000.
Funtanilla’s two motions for reconsideration of the order granting partial
summary judgment to defendants Kalvelage, L’Etoile and Lankford (docket entries
222 and 227) are denied. Funtanilla argues in his first motion that the court
violated the law of the case doctrine by granting the three defendants’ motion for
summary judgment after denying his motion for partial summary judgment against
them three years earlier. Even were there some inconsistency between the two
rulings, Funtanilla’s argument misapplies the law of the case doctrine. The
doctrine generally precludes a court “from reconsidering an issue that has already
been decided by the same court, or a higher court in the identical case.” United
States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (internal quotation marks
omitted). But it doesn’t apply to interlocutory orders denying summary judgment

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because those are “subject to reconsideration by the court at any time.” Preaseau v.
Prudential Ins. Co. of Am., 591 F.2d 74, 79–80 (9th Cir. 1979) (internal quotation
marks omitted); see City of L.A., Harbor Div. v. Santa Monica Baykeeper, 254
F.3d 882, 888 (9th Cir. 2001). Therefore, the order denying Funtanilla’s motion
for partial summary judgment wasn’t law of the case.
Funtanilla’s second motion for reconsideration is equally meritless. He
claims that Kalvelage, L’Etoile and Lankford never moved for summary judgment
on the due process claim against them. This is patently untrue. Their motion for
partial summary judgment (docket entry 170) states that “Funtanilla was not . . .
deprived of due process of law.” Their supporting memorandum presented legal
and factual arguments supporting their contention that “Kalvelage, L’Etoile, and
Lankford did not violate Funtanilla’s rights to due process of law.” Defendants
therefore carried out their “initial responsibility” of informing the court of the basis
for their motion and identifying those portions of the pleadings and record which
they believe demonstrate the absence of a genuine issue of material fact. Celotex
v. Catrett, 477 U.S. 317, 323 (1986).

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Funtanilla’s amended motion for joinder is GRANTED. His motions for

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reconsideration of the order granting partial summary judgment to Kalvelage,
L’Etoile and Lankford are DENIED.
The Clerk of Court is directed to issue and send to Funtanilla a summons for
Linda L. Melching. Funtanilla shall complete service of process on Melching
within sixty days from the date of this order. Melching shall reply to the complaint
within the time provided by the applicable provisions of Fed. R. Civ. P. 12(a).

April 9, 2013

A
ALEX KOZINSKI
Chief Circuit Judge
Sitting by designation
28 U.S.C. § 291(b)