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Cohea v. Tucker

United States District Court, D. Alaska

July 16, 2015

H. TUCKER, et al., Defendants.


RALPH R. BEISTLINE, District Judge.

At Docket 9 Danny James Cohea, a California state prisoner appearing pro se, has moved this Court to reconsider its Order Vacating Order Granting In Forma Pauperis. [1]

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. Federal Rule Civil Procedure 59 governs post-judgment motions to amend judgment or for new trial, not interlocutory orders. If the court enters an interlocutory order without entering a final judgment, e.g., an order granting summary judgment but no final judgment is entered under Federal Rule Civil Procedure 54, Rule 59 does not apply.[3] Likewise, Rule 60(b) by its very terms applies solely to final judgments.[4] However, as long as a district court retains jurisdiction over a case, it has inherent power to reconsider and modify an interlocutory order for sufficient cause.[5]

That inherent power is not 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 appropriate, or (3) substantially different evidence was adduced at a subsequent trial."[6] In this case, only the first ground, that the order was clearly erroneous, has any application.

In his 39-page motion Cohea raises essentially four points:[7] (1) that the Court erred in relying on Cohea v. Melo, 1:15-cv-00353-AWI-DLB (E.D. Calif); (2) that the Court should disregard his prior strikes because there is a conspiracy among the courts in the Ninth Circuit to deny Cohea his rights to judicial review; (3) error in finding the lack of "imminent danger of physical injury"; and (4) that some of the strikes were improperly considered because they were on appeal.

Initially, the Court summarily rejects Cohea's first, second, and fourth points. Whether or not the adverse decisions of either the District Court or the Ninth Circuit were properly decided, irrespective of the basis for the challenge to those decisions, the principles of res judicata preclude this Court from disregarding them. As to Cohea's fourth point, the Supreme Court recently held that the fact that a dismissal was on appeal did not preclude its being consider a "strike."[8]

With respect to Chohea's "imminent danger" allegation, as the Court noted its earlier Order, how the conditions of the nature of his incarceration places him in any imminent danger is unexplained and inexplicable. In his Complaint Cohea contends in purely conclusory terms that the application of the security measures and precautions by California Department of Corrections and Rehabilitation personnel somehow placed him at risk of serious physical injury.[9] It appears that, with respect to his "imminent danger" allegation, Cohea challenges his being outwardly labeled, i.e., viewable by the general prison populace, a "sex offender/exhibitionist." The insurmountable problem Cohea faces is that the gravamen of his Complaint challenges the disciplinary action taken against him in a Rules Violation Report ("RVR") proceeding under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Cohea alleges that the RVR was filed in retaliation for his filing of grievances against one or more of the named Defendants. The remainder of Cohea's Complaint attacks the RVR process itself, alleging that at all stages it was based upon false and fraudulent information, in a procedural manner that violated his constitutional due process rights. Even if the Court were to find in Cohea's favor on the allegations of his Complaint, i.e., invalidate the disciplinary action, [10] it would not alleviate his unsubstantiated, speculative threat of imminent danger of physical injury. Consequently, the Court has no basis upon which to reconsider its prior Order revoking Cohea's in forma pauperis status.


Accordingly, Plaintiff's request that the Court reconsider its order at Docket 8 directing Cohea to pay the filing fee is DENIED.

The Court extends the time within which Cohea must pay the filing fee through and including August 7, 2015. In all other respects the order Revoking In Forma Pauperis Status at Docket 8 is affirmed.

In the event Plaintiff fails to comply with this Order within the time specified, or such additional time as the Court in its discretion may allow, the Complaint may be ...

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