The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER OVERRULING PLAINTIFF'S OBJECTIONS AND DENYING RECONSIDERATION (Doc. 146)
Plaintiff Gust Marion Janis ("Plaintiff") is a federal prisoner proceeding pro se in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors, and pursuant to 28 U.S.C. § 1346(b) (the Federal Tort Claims Act), which provides a limited remedy for torts committed by federal employees.
On August 26, 2011, an order issued granting Defendants' motion to dismiss for failure to state a claim upon which relief may be granted, counting the dismissal as a strike under 28 U.S.C. § 1915, and ordering entry of judgment in Defendants' favor and against Plaintiff resulting in closure of the case ("MTD Order"). (Doc. 144.) On September 9, 2011, Plaintiff filed a document objecting to the MTD Order on two grounds: (1) it was issued via direct order by the undersigned (a magistrate judge) rather than via findings and recommendation to District Court Chief Judge Anthony W. Ishii for later adoption; and (2) it found uncognizable, a claim which Judge Ishii had previously found cognizable. (Doc. 146.) Though titled "Plaintiff Objects to Magistrate Judge's Order Granting Defendant's [sic] Motion to Dismiss; and Order for this Dismissal to Court [sic] as a Strike Pursuant to [sic] U.S.C. § 1915(g); and Appeal the Determination to District Court Judge Anthony W. Ishii for His Determination and Findings," this document can be construed as a motion for reconsideration of the MTD Order.
For the reasons set forth below, Plaintiff's objections are overruled and any intended request for reconsideration is denied.
II. Consent to Magistrate Judge Jurisdiction
In this case, orders were issued requiring the parties to advise whether they consented to a magistrate judge conducting all proceedings in accordance with 28 U.S.C. § 636(c). (Docs. 81, 86.) All parties consented to jurisdiction by a magistrate judge in this action. (Docs. 82, 88.) Magistrate judges issue findings and recommendations for adoption by a district judge when the parties have not consented to magistrate judge jurisdiction. 28 U.S.C. § 636(b)(1)(A). Where the parties consent, magistrate judges conduct all proceedings and issue orders --including orders on dispositive motions and entry of judgment. See 28 U.S.C. § 636(c)(1). Since this is a consent case, Plaintiff's objection that the undersigned "did not make these orders under findings and recommendations" is without merit and is overruled.
III. Law of the Case Doctrine
Plaintiff's second objection states that "Judge Anthony W. Ishii already determined that Janis did state the claim, exactly as stated in his prior complaints; Therefore [sic] Magistrate Judge [sic] cannot change his conclusions after his orders." (Doc. 146, p. 1.) This appears to be an objection that the undersigned's ruling on the motion to dismiss violated the law of the case doctrine. Plaintiff's objection in essence argues that Judge Ishii's prior order (adopting a findings and recommendation on screening of the Third Amended Complaint that a claim had been stated) established the law of this case and that the MTD Order (which dismissed the Fifth Amended Complaint for failure to state a claim) was in error.
"The law of the case doctrine is a judicial invention designed to aid in the efficient operation of court affairs." Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir.1990). Under this doctrine, a court is generally precluded from reconsidering an issue previously decided by the same court, or a higher court in the identical case. See id. A trial judge's decision to apply the doctrine is thus reviewed for an abuse of discretion. See Milgard Tempering, 902 F.2d at 715; United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000). A court abuses its discretion in applying the law of the case doctrine only if: (1) the first decision was clearly erroneous; (2) an intervening change in the law occurred; (3) the evidence on remand was substantially different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise result. Lummi Indian Tribe, 235 F.3d at 452-53 (citing United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998)).
Here, it would have been an abuse of discretion to deny Defendant's motion to dismiss based on the law of the case having been established by Judge Ishii's prior orders since an intervening change in law regarding the sufficiency of allegations to state a cognizable claim had occurred. Judge Ishii's most recent order which addressed whether Plaintiff's allegations stated a cognizable claim was issued on May 11, 2007. (Doc. 43.) Subsequent to that order and prior to the MTD Order, the United States Supreme Court issued its ruling in Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009). As noted in both the MTD Order (Doc. 144, at 9:13-23) and an order on a prior motion to dismiss (Doc. 135, at 15:6-9), since Iqbal, "plaintiffs face a higher burden of pleadings facts . . . ," Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009) (reversed and remanded on other grounds), and while a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
Further, as Plaintiff has been repeatedly advised (see Docs. 19, 32, 35, 135), an amended complaint must be "complete in itself without reference to the prior or superceded pleading," Local Rule 15-220, as it supercedes the original complaint and all previously filed amended forms thereof, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Plaintiff has also been repeatedly advised that once he filed an amended complaint, prior pleadings no longer serve any function in the case. (Docs. 19, 32, 35.)
The MTD Order addressed Plaintiff's allegations in the Fifth Amended Complaint. Judge Ishii's 2007 order addressed whether Plaintiff's allegations in the Third Amended Complaint stated a cognizable claim. (Doc. 43.) Plaintiff's filing of the Fourth and Fifth Amended Complaints necessarily mooted both his allegations in the Third Amended Complaint and any rulings as to whether, under the standards then applicable, a cognizable claim had been stated. There has been no ...