ANTHONY ISHII, District Judge.
Carlos Hendon ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Defendants filed a motion under Local Rule 151(b) to declare Plaintiff a vexatious litigant, to require Plaintiff to post a security, and for the court to enter a pre-filing order against Plaintiff. The Magistrate Judge granted Defendants' motion to declare Plaintiff a vexatious litigant, but he denied Defendants' motion to require a security and Defendants' motion for a pre-filing order.
On July 19, 2011, Defendants filed a motion for reconsideration by the undersigned, pursuant to Rule 72(a), of the portions of the Magistrate Judge's order that denied requiring Plaintiff to file a security and denied creating a pre-filing order.
Rule 72(a) of the Federal Rules of Civil Procedure provides:
Fed. R. Civ. P. 72(a). Motions to reconsider are committed to the discretion of the trial court.
The court reviews a motion to reconsider a Magistrate Judge's ruling under the "clearly erroneous or contrary to law" standard set forth in 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."
Defendants seeks reconsideration of the Magistrate Judge's order that denied Defendants request that Plaintiff be required to file a security and entry of a pre-filing order. In accordance with the provisions of Rule 72(a), the undersigned has reviewed the motion. The court finds that the Magistrate Judge's order denying Defendants' motion to require Plaintiff to file a security and require Plaintiff to be subject to a pre-filing order was neither clearly erroneous nor contrary to law.
In order for a federal district court to enter a pre-filing order against a vexatious litigant: (1) the litigant must be given notice and chance to be heard before the order is entered, as required by Due Process Clause; (2) the district court must compile an adequate record for review; (3) the district court must make substantive findings about the frivolous or harassing nature of the plaintiff's litigation; and (4) any pre-filing requirements must be narrowly tailored to closely fit the specific vice encountered.
Defendants' reconsideration motion provides new legal arguments, submits new evidence, and cites to where supporting evidence can be found in lengthy exhibits. This new material was not presented to the Magistrate Judge. For example, Defendants now cite to specific cases Plaintiff has brought against these particular Defendants in response to the Magistrate Judge's finding that Defendants had not submitted evidence of "similar types of actions filed by Plaintiff with the intent to harass the defendant or the court."
Preliminarily, the court notes that Plaintiff has been found to have "three strikes."
The Ninth Circuit has explained that "orders restricting a persons's access to the courts must be based on adequate justification supported in the record and
As stated by the Magistrate Judge, Plaintiff has brought at least 21 lawsuits. While some of these lawsuits have been against these Defendants, there is no evidence another court has found Plaintiff to be vexatious or a judicial finding that Plaintiff's other filings were found to be frivolous or harassing. Plaintiff's other cases have been dismissed for failing to state a claim, failing to exhaust administrative remedies, and failing to pay the filing fee, not for being frivolous.
In addition, the current "three strikes" restriction on Plaintiff prohibits the conditions of confinement claims alleged in the present action. Thus, Defendants appear to already be protected from the specific vice they have encountered in this and other cases. The court agrees with the Magistrate Judge that no other remedy is justified at this time by the record.
The court briefly notes that Defendants have provided evidence in their motion that shows the conditions of Plaintiff's cell did not violate the Eighth Amendment and any unsanitary conditions were created by Plaintiff. This evidence, of course, is contrary to the evidence provided previously by Plaintiff in this action. Defendants cite no binding authority for the proposition that the court can require a security and/or enter a pre-filing order based on disputed factual issues. While a trier of fact may very well find Defendants' evidence convincing and Plaintiff's evidence incredible, the court declines to issue Defendants' proposed additional orders on a basis that requires the court to believe Defendants' evidence and disregard Plaintiff's evidence.
Defendants' motion for reconsideration does not contain any new evidence, intervening change in the controlling law, and/or a showing that the court committed clear error or made a decision that was manifestly unjust. When a district court encounters a vexatious litigant, such as Plaintiff, the court is under no obligation to issue a pre-filing order.
Based on the foregoing, IT IS HEREBY ORDERED that Defendants' motion for reconsideration, filed on July 19, 2011, is DENIED. This action is REFERRED to the Magistrate Judge for further proceedings.