Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Pending before the court is defendants Robinson and Pierce's motion for reconsideration of the order, filed on September 26, 2007, denying their motion for summary judgment and granting plaintiff's motion for summary judgment on liability. Defendants contend that their motion should be granted because the court's order, and the findings and recommendations that it adopted in full, were based on the court's interpretation of California Rules of Court that were not in effect at the time of the incident giving rise to this action.
Plaintiff initiated this action by filing a verified complaint on July 23, 2002. The complaint alleges that in November and December of 1999, defendants violated his First Amendment right of access to the courts by denying him photocopies of documents he sought to attach as exhibits to a habeas petition he filed in state court. Defendants moved to dismiss the complaint for failure to state a claim and based on qualified immunity. The court denied that motion on March 22, 2004. Defendants subsequently moved for summary judgment on May 10, 2005. On March 1, 2006, the previously assigned magistrate judge issued findings and recommendations recommending that defendants' motion for summary judgment be granted. Plaintiff filed objections. On March 31, 2006, the court declined to adopt those findings and recommendations, stating:
The magistrate judge found that a pro se habeas corpus petitioner is not required to provide exhibits or other supporting documents with his initial petition and thus that defendants' refusal to copy the exhibits did not cause "actual injury" to plaintiff's constitutional right to access the court. Findings and Recommendations filed on March 1, 2006 at 6-7.
The court cannot agree with this conclusion at this time. First, it is not clear to the court that the relevant question is whether the prisoner was required to provide the exhibits. Rather, the appropriate question appears to be whether the failure to allow the plaintiff to provide additional evidence in support of his habeas petition resulted in the state court denying the petition on the grounds that petitioner "made no offer of proof by way of additional evidence" to support his argument that the findings of the jury were unreasonable. It does not follow that because the prisoner was not required to attach supporting documents that he did not have such a right. This becomes significant in light of the finding by the Superior Court which denied the habeas on the ground that no additional evidence was proffered.
For the reasons set forth above, the court DECLINES to adopt the magistrate judge's March 1, 2006 findings and recommendations and REMANDS the case to the magistrate judge for further proceedings consistent with this order. Order, Mar. 31, 2006 (second emphasis added).
Following this order, the magistrate judge denied defendants' motion for summary judgment, and granted the parties leave to file new motions for summary judgment. Thereafter, the parties filed cross-motions for summary judgment. On August 20, 2007, the magistrate judge recommended that defendants' motion for summary judgment, including their request for qualified immunity, be denied, and that plaintiff's motion for summary judgment be granted as to liability, thereby leaving damages as the only outstanding issue. The court adopted the recommendations in an order issued on September 26, 2007. On October 4, 2007, defendants filed a notice of appeal based on the court's determination that defendants were not entitled to qualified immunity. The Court of Appeals for the Ninth Circuit, however, dismissed the appeal by order filed January 22, 2008, based on the parties' voluntary dismissal of the appeal.
The magistrate judge subsequently ordered the parties to brief the issue of how damages should be determined and, specifically, whether the issue of damages could be resolved on cross motions for summary judgment. Based upon this briefing, on February 12, 2008, the magistrate judge concluded that damages could not be resolved based on cross motions for summary judgment and ordered the parties to file pretrial statements. Defendants moved the court for reconsideration of the magistrate judge's order, which the court denied. Order, Feb. 29, 2008. Thereafter, defendants moved for certification for interlocutory appeal and to stay the proceedings, which the court also denied. Order, May 5, 2008.
On June 15, 2009, the magistrate judge issued a pretrial order, setting a trial confirmation hearing for August 17, 2009 (continued by separate order to September 28, 2009), and setting trial for November 17, 2009.
On June 19, 2009, defendants moved for reconsideration of the order, filed on September 26, 2007, denying their motion for summary judgment and granting plaintiff's motion for summary judgment on liability. On June 30, 2009, plaintiff opposed defendants' motion.
Defendants seek relief pursuant to Federal Rule of Civil Procedure 60(b)(6), which provides that the court may relieve a party from a final judgment, order, or proceeding for any reason that justifies relief. Fed. R. Civ. P. 60(b)(6). However, Rule 60(b) does not provide relief from judgments, orders or proceedings that are not final. United States v. Martin, 226 F.3d 1042, 1048 n. 8 (9th Cir. 2000) ("Rule 60(b) . . . applies only to motions attacking, final, appealable orders . . . ."). A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233 (1945).
Therefore, an order that determines liability but not damages is not a final decision. Cal. ex rel. Cal. Dep't of Toxic Substances Control v. Campbell, 138 F.3d 772, 776 (9th Cir. 1998); see also Fed. R. Civ. P. 60(b) advisory committee's note (1946) ("The addition of the qualifying word 'final' emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires.").
Nevertheless, the trial court has the inherent power to reconsider, set aside, or amend interlocutory orders at any time prior to entry of a final judgment. School Dist. v. Lundgren, 259 F.2d 101, 105 (9th Cir. 1958). Local Rule 78-230(k) requires that a party seeking reconsideration of a district court's order must brief the "new or different facts or circumstances . . . [which] were not shown upon such prior motion, or what other grounds exist for the motion." E.D. Local Rule 78-230(k)(3). The party seeking reconsideration must also show "why the facts or circumstances were not shown at the time of the prior motion." Id.at 78-230(k)(4). The rule derives from the "law of the case" doctrine which provides that the decisions on legal issues made in a case "should be followed unless there is substantially different evidence . . . new controlling authority, or the prior decision was ...