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Andrews v. Guzman

March 9, 2009

ANTOLIN ANDREWS, PLAINTIFF,
v.
THERESA GUZMAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

I. Introduction

Plaintiff is proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is currently awaiting deportation at the Northwest Detention Center in Tacoma, Washington. Pending before the court is defendants' motion requesting that plaintiff be declared a vexatious litigant and for a pre-filing order.*fn1

For the following reasons, the court orders that defendants' motion requesting that plaintiff be declared a vexatious litigant is granted. The court will defer ruling on the motion for the pre-filing order until the conclusion of this action.

II. Discussion

The All Writs Act, 28 U.S.C. § 1651, vests federal courts with the discretion to enjoin certain litigants from engaging in frivolous litigation. Clinton v. United States, 297 F.2d 899 (9th Cir. 1961). Under the statute, a court may restrict litigants with abusive and lengthy histories from submitting future filings of actions or papers provided that it: 1) gives the litigant an opportunity to oppose the order before it is entered, i.e. notice; 2) creates an adequate record for review; 3) makes substantive findings as to the frivolous or harassing nature of the litigant's actions; and 4) drafts a sufficiently detailed order. De Long v. Hennessey, 912 F.2d 1144, 1145-48 (9th Cir. 1990).

Several sources also permit the court to order a plaintiff to post security. Simunet East Associates v. Ramada Hotel Operating Company, 37 F.3d 573, 574 (9th Cir. 1994); In re Merrill Lynch Relocation Management, Inc., 812 F.2d 1116, 1121 (9th. Cir. 1987). One purpose of authorizing security is to allow the court to have some control over the administration of a lawsuit. See Ilro Productions Ltd. v. Music Fair Enterprises, 94 F.R. D. 76, 78 (S.D.N.Y. 1982) (citing Leighton v. Paramount Pictures Corp., 340 F.2d 859, 861 (2d Cir. 1965)). In determining whether to impose a bond, the court may "take all the pertinent circumstances into account including the conduct of the litigants and the background and purpose of the litigation." Leighton, 340 F.2d at 861.

Additionally, "[w]hile no federal statute authorizes security for costs, the District Courts may make their own rules not inconsistent with the Federal Rules of Civil Procedure." Russell v. Cunningham, 233 F.2d 806, 811 (9th Cir. 1956) (citing Fed. R. Civ. P. 83). See also Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 1025 (2002). Local Rule 65.1-151(b) permits the court at any time, on its own motion or that of party, to order a party to give security, bond, or undertaking in such amount as the court may at any time determine to be appropriate. Local Rule 65.1-151(b) provides: "The provisions of Title 3A, part 2, of the California Code of Civil Procedure, relating to vexatious litigants, are hereby adopted as a procedural rule of this Court on the basis of which the Court may order the giving of security, bond or undertaking, although the power of the court shall not be limited thereby."

Cal. Code Civ. P., Title 3A, part 2, commences with § 391. Cal. Code Civ. P. § 391.1 requires a party to furnish security on a showing that (1) the party is a vexatious litigant and (2) there is no reasonable probability that she will prevail in the instant litigation. Cal. Code Civ. P. § 391 defines a vexatious litigant as follows:

b) "Vexatious litigant" means a person who does any of the following:

(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.

(2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.

(3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.

(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.

Cal. Code Civ. P. § 391 defines "security" as "an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party's reasonable expenses including attorney's fees and not limited to taxable costs incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant." Cal. Code Civ. P. § 391(c).

In Moran v. Murtaugh, Miller, Meyer & Nelson, LLP, 40 Cal. 4th 780, 55 Cal. Rptr. 3d 112 (2007), the California Supreme Court recently held that in vexatious litigant proceedings, courts may weigh the evidence in determining whether there is a reasonable probability that a party will prevail.

A. Vexatious Litigant

The court first considers whether plaintiff is a vexatious litigant as defined by Cal. Code Civ. P. § 391.

Defendants argue that plaintiff has commenced, prosecuted or maintained in propria persona at least five cases in the seven years prior to the filing of the instant action that have been dismissed as legally frivolous or for failing to state a claim upon which relief may be granted. The following cases fall into that category:

1. On July 31, 2006, Andrews v. Cortez, 01-5783 REC DLB P was dismissed for failing to state a claim upon which relief can be granted.*fn2

2. On August 12, 2002, Andrews v. Hafey, 01-2018 FCD JFM P was dismissed for failing to state a claim upon which relief may be granted. On June 18, 2003, the Ninth Circuit affirmed this judgment.

3. On March 11, 2003, Andrews v. Carey, 02-2395 FCD DAD P was dismissed for failing to state a claim upon which relief may be granted.

4. On March 4, 2003, Antolin Patrick Wayne*fn3 v. Supervisors of San Francisco County, et al., No. C-03-0799 MMC (PR), 2003 WL 926715 (N.D. Cal. March 4, 2003) was dismissed for failing to state a colorable claim for relief) (cited in the September 4, 2003, findings and recommendations filed in Andrews v. Grannis, 03-1785 EJG DAD P recommending that the action be dismissed pursuant to 28 U.S.C. § 1915(g).

5. On April 22, 2004, Andrews v. County of Los Angeles, 01-4319, was dismissed for failing to state a claim upon which relief may be granted. See Defendants' Exhibit D. 6. On January 25, 2005, Andrews v. Nakazato, 04-8034 ABC, was dismissed for failing to state a claim upon which relief may be granted. See Defendants' Exhibit L.

In the pending motion, defendants also observe that on February 12, 2002, the Los Angeles Superior Court declared plaintiff to be a vexatious litigant. See Motion, Exhibit M. On May 28, 2003, the California Court of Appeal also declared plaintiff to be a vexatious litigant.

Id., Exhibits M-N.

This court also observes that the District Court for the Western District of Washington has recently declared plaintiff to be a vexatious litigant. See Marks v. U.S., No. C07-5679 FDB, 2008 WL 803150 (W.D.Wash. 2008). The Western District cited 24 cases filed by plaintiff demonstrating his improper filings and repetitive, abusive litigation practices. 2008 WL 803150 at *7-*19. In this opinion, the Western District noted that the Ninth Circuit Court of Appeals has entered a pre-filing order regarding plaintiff. Id. at * 7. This court cannot rely on Marks v. U.S. to find plaintiff vexatious in the instant action because the order declaring plaintiff vexatious by the Western District was issued after plaintiff filed this action. In addition, the claims litigated by plaintiff in the Western District are not the same or substantially similar to the facts litigated in the instant case.

The cases cited above adequately demonstrate that in the seven years preceding the filing of this action, plaintiff has commenced, prosecuted or maintained at least five actions that were determined adversely to plaintiff.*fn4 Accordingly, the court finds that plaintiff is a ...


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