KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding in forma pauperis and without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant Dr. Arya's September 20, 2018 motion to require plaintiff to post security of $25,500 or, in the alternative, dismiss this action because plaintiff is a vexatious litigant under California Code of Civil Procedure § 391. (ECF No. 69.) Defendant also requests that the court issue a pre-filing order preventing plaintiff from filing further lawsuits without leave of court. (ECF No. 69.) For the reasons stated herein, the undersigned recommends that defendant's motion be denied.
On October 14, 2016, plaintiff filed the original complaint naming defendant Dr. Arya as a defendant. (ECF No. 1.) Plaintiff alleged that defendant Arya failed to provide him with adequate medical care for cervical spondylosis and hepatitis C. On January 12, 2017, the court ordered the U.S. Marshal to serve defendant Arya with the original complaint. (ECF No. 10.)
On February 27, 2017, defendant filed an answer to the original complaint. (ECF 12.)
On May 19, 2017, defendant filed a motion to compel. (ECF No. 24.) On June 15, 2017, plaintiff filed a motion to compel. (ECF No. 27.)
On June 15, 2017, plaintiff filed a motion to file an amended complaint. (ECF No. 26.) The amended complaint named as defendants Dr. Arya, California State Prison-Sacramento ("CSP-Sac") Chief Executive Officer Felder and California Correctional Health Care Facilities Deputy Director Lewis. (
Defendant Arya opposed plaintiff's motion to amend on grounds that plaintiff failed to administratively exhaust the claims made against defendant Arya in the original complaint. (ECF No. 30.) Thus, defendant Arya argued that the motion to amend was futile. (
On August 23, 2017, the undersigned denied defendant's motion to compel, but for interrogatory no. 7. (ECF No. 39.) The undersigned also denied plaintiff's motion to compel. (
On August 23, 2017, the undersigned recommended that plaintiff's motion to amend be granted. (ECF No. 38.) The undersigned found that the issue of exhaustion of administrative remedies was not appropriately raised, or considered, by the court in an opposition to a motion to amend. (
On December 12, 2017, the Honorable Morrison C. England adopted the August 23, 2017 findings and recommendations. (ECF No. 54.)
On September 29, 2017, defendant Arya filed a motion for summary judgment on the grounds that plaintiff failed to exhaust administrative remedies and as to the merits of plaintiff's claims. (ECF No. 46.)
Pursuant to the mailbox rule, plaintiff filed a proposed second amended complaint and motion for leave to amend on October 2, 2017. (ECF No. 47.)
On May 17, 2018, the undersigned issued twenty-five pages long findings and recommendations addressing defendant Arya's summary judgment motion and plaintiff's motion for leave to file a second amended complaint. (ECF No. 60.) The undersigned recommended that defendant Arya's summary judgment motion, asserting that plaintiff failed to exhaust administrative remedies as to his claims regarding hepatitis C and Celebrex, be granted. (
The undersigned recommended that plaintiff's motion to file a second amended complaint raising new claims regarding treatment for hepatitis C and denial of adequate pain medication be denied. (
On September 20, 2018, defendant filed the pending motion. (ECF No. 69.)
On September 21, 2018, the Honorable Troy L. Nunley adopted the May 17, 2018 findings and recommendations in full. (ECF No. 70.)
Local Rule 151(b) provides:
L.R. 151(b) (emphasis added).
California Code of Civil Procedure Title 3A, part 2, includes the following relevant portion:
Cal. Civ. Proc. Code § 391.1.
California law defines a vexatious litigant as a person who, in the seven years immediately preceding the motion, has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been finally determined adversely to the person. Cal. Civ. Proc. Code § 391(b)(1). To order the posting of a security under § 391.1, the court must additionally conclude, after hearing evidence, "that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant." Cal. Civ. Proc. Code § 391.3(a). Nevertheless, Local Rule 151(b) specifies that "the power of the Court shall not be limited [by Title 3A, part 2, of the California Code of Civil Procedure]." E.D. Cal. L.R. 151(b).
To establish the first prong of the motion for security, defendant Arya requests that the court declare plaintiff a vexatious litigant pursuant to California Code of Civil Procedure § 391(b)(1). The statute defines, in relevant part, a vexatious litigant as one who "in the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations . . . that have been . . . finally determined adversely to the person." Cal. Civ. Proc. Code § 391(b)(1)(i). The filing of the motion determines when the seven years period is measured.
Under California law, "litigation" is any civil action or proceeding, commenced, maintained or pending in any state or federal court. Cal. Civ. Proc. Code § 391(a). It includes an appeal or civil writ proceeding filed in an appellate court.
In the pending motion, defendant cites the following actions as adversely decided against plaintiff:
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The five actions cited above which plaintiff voluntarily dismissed qualify as actions adversely decided against plaintiff.
Appeal No. 13-17343 affirmed summary judgment in favor of defendants in 12-2207. (ECF No. 69-4 at 6-61.) Accordingly, this appeal constitutes an adverse determination under California's vexatious litigant statute.
In appeal no. 12-17313, on February 27, 2013, the Ninth Circuit affirmed the district court's order in 12-2207 denying preliminary injunctive relief. (ECF No. 69-4 at 56.) The order appealed was not a final order in 12-2207. (
Defendant cites two district court actions and one appeal which were dismissed after plaintiff failed to pay the filing fee. Defendant cites no authority for the claim that actions dismissed, without prejudice, for failure to pay the filing fee, qualify as actions that were resolved adversely to the plaintiff. The undersigned need not reach the issue of whether these dismissals count as actions that were resolved adversely to plaintiff because defendant has cited at least five other cases that qualify as determined adversely to plaintiff.
Defendant has shown that plaintiff had ten actions decided adversely against him during the relevant seven year time period. Thus, defendant has satisfied the vexatious litigant prong of the motion for security under § 391(b)(1).
Defendant next argues that there is no reasonable probability of success on the merits of this case.
In determining whether there is no reasonable probability of success, a court may determine whether a claim is foreclosed as a matter of law, but it may also weigh the evidence.
To meet this prong, defendant cites his own declaration (ECF No. 69-2) and the declaration of Dr. Bennett (ECF No. 69-3).
The application of California's vexatious litigant statute is wholly permissive.
First, a grant of defendant's security motion would require plaintiff to pay the $25,5000 prior to proceeding with his case or risk having his case dismissed for failure to comply with the court's order to post security.
Second, dismissal is the "ultimate sanction."
As discussed above, plaintiff filed this action approximately two years before defendant filed the pending motion. Defendant filed the pending motion approximately 1 ½ years after filing an answer. Before filing the pending motion, defendant filed a motion to compel and a summary judgment motion based on plaintiff's alleged failure to exhaust administrative remedies. Defendant also filed oppositions to plaintiff's two motions to amend. The court spent considerable time evaluating these pleadings. Time and resources have been spent on this action which cannot be retrieved. To possibly dismiss this action based on plaintiff's financial resources, rather than reaching the merits, would be inappropriate.
For the reasons discussed above, the undersigned recommends that defendant's motion to require plaintiff to post security of $25,500, made pursuant to California law, be denied.
The district courts have the power to issue pre-filing orders that restrict a litigant's ability to initiate court proceedings, but "such pre-filing orders are an extreme remedy that should rarely be used."
"In `applying the two substantive factors,' [the Ninth Circuit has] held that a separate set of considerations employed by the Second Circuit Court of Appeals `provides a helpful framework.'"
"Absent "explicit substantive findings as to the frivolous or harassing nature of the plaintiff's filings," a district court may not issue a pre-filing order.
Alternatively, "the district court may make [a] finding that the litigant's filings `show a pattern of harassment.'"
The undersigned begins by summarizing the thirteen actions cited by defendant in the pending motion.
With regard to the five actions plaintiff voluntarily dismissed, defendant has not shown that these actions were frivolous. Plaintiff voluntarily dismissed four of these cases relatively early in the litigation when no defendants had appeared.
Plaintiff had three district court actions and one appeal dismissed for failure to pay the filing fee. While these actions may not have been adversely decided against plaintiff, the undersigned may consider these actions in determining whether plaintiff engaged in harassing litigation.
Defendant has identified three district court cases and two appeals dismissed on the merits. One of these appeals affirmed one of the district court orders granting defendants' summary judgment motion. The other appeal denied plaintiff's interlocutory appeal of an order denying a request for injunctive relief.
The record above identifies only three actions filed by plaintiff (containing two appeals) which were dismissed on the merits over a seven years period. Based on this record, the undersigned does not find that plaintiff has a pattern of filing frivolous actions.
The undersigned further finds that, considering the thirteen actions cited above, defendant has not shown that plaintiff has a pattern of pursuing harassing litigation. As discussed above, the five actions plaintiff voluntarily dismissed were not dismissed to avoid the adverse consequences of dispositive motions. The undersigned also finds that the dismissal of three actions and one appeal, over a seven years period, based on plaintiff's failure to pay the filing fee does not demonstrate a pattern of harassing litigation.
Defendant also argues that the Northern, Southern, Central and Eastern District Courts have all revoked plaintiff's in forma pauperis status under the "three strikes rule" of 28 U.S.C. § 1915(g). Based on this "three strikes status," defendant argues that there "can be no doubt" that plaintiff's actions are frivolous and harassing. In support of this argument, defendant cites cases from each of these districts which allegedly found plaintiff to be a three strikes litigant, i.e.,
Other than citing the cases finding plaintiff to be a three strikes litigant, defendant provides no additional evidence that these cases support a finding that plaintiff is a vexatious litigant. For example, defendant does not discuss the cases relied on by the district courts to find plaintiff a three strikes litigant. The undersigned is not willing to review the dockets from these actions, and the cases cited in the three strikes orders, on defendant's behalf. For these reasons, the undersigned does not find that plaintiff's three strikes status, as reflected in the current record, demonstrates that plaintiff has a pattern of engaging in harassing or frivolous litigation.
Finally, defendant cites plaintiff's September 3, 2018 letter to defense counsel threatening more litigation as further evidence of plaintiff's harassing motives. A copy of this letter is attached to defense counsel's declaration filed in support of the pending motion. (ECF No. 69-1.) This letter states,
Dear Ms. Woodbridge;
(Id. at 6.)
The undersigned is not sure of the grounds of the state breach of contract and fraud action plaintiff references in this letter. While somewhat harassing, this letter is not sufficient grounds on which to declare plaintiff a vexatious litigant, even combined with the litigation history described above.
In summary, the undersigned finds that the record does not contain sufficient evidence that plaintiff engaged in frivolous or harassing litigation to justify issuance of a pre-filing order. Accordingly, defendant's motion for plaintiff to be declared a vexatious litigant and for issuance of a pre-filing order should be denied.
Accordingly, IT IS HEREBY RECOMMENDED that defendant's motion for plaintiff to post-security and for a pre-filing order (ECF No. 69) be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
