ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. Plaintiff has paid the filing fee in full. This matter is before the court on a motion to declare plaintiff a vexatious litigant brought on behalf of defendants Andreason, Bick, Khoury, and Thomas. Plaintiff has filed an opposition to the motion and defendants have filed a reply.
Plaintiff is proceeding on an amended complaint against defendants
Bick, Donahue, Andreason, Khoury, Thomas, and Moreno.*fn1
Therein, he alleges that the defendants have violated his
rights under the Eighth Amendment and the Americans with Disabilities
Act in connection with his transfer from a cell with tinted windows on
the first floor of his institution of incarceration to a dorm on the
third floor of that institution without tinted windows. According to
plaintiff, he is not able to tolerate light for prolonged periods, he
suffers from a bowel and bladder condition requiring immediate access
to a toilet at all times, and he is mobility impaired. In terms of
relief, plaintiff requests monetary damages. (Am. Compl. at 1-22.)
DEFENDANTS' MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT
Defense counsel argues that plaintiff is a vexatious litigant and is not likely to succeed on the merits of this case, so the court should require him to post security before allowing him to proceed with this action. Specifically, counsel argues that plaintiff has commenced, prosecuted, or maintained more than five unsuccessful lawsuits in the past seven years and has wasted the time and resources of the federal courts. Counsel lists seven causes of action that plaintiff has unsuccessfully pursued.*fn2 Defense counsel also argues that, based on plaintiff's conclusory allegations and the exhibits attached to his amended complaint, he is unlikely to prevail in this lawsuit because his claims fail on the merits and are likely time-barred.
Finally, defense counsel argues that the court should require plaintiff to post security in an amount not less than $2,550.00, and if he fails to do so the court should dismiss this action. (Defs.' Mot. to Declare Pl. a Vexatious Litigant at 4-11.)
II. Plaintiff's Opposition
In opposition to defendants' motion, plaintiff argues that his litigation history is not of a "frivolous or harassing nature." Being a constant litigator without more, plaintiff contends, is not proof that he has abused the judicial system. Rather, plaintiff argues that such actions merely proves he is active in seeking redress of his grievances in federal court. In addition, plaintiff argues that he is likely to prevail on the merits of this action because he did not diagnose himself but received his diagnoses from his attending physicians. According to plaintiff, defendants placed themselves between his proper and effective treatment and the administrative needs of California Medical Facility ("CMF"). Moreover, plaintiff notes that when he first pursued this claim by filing a civil action, the court dismissed it without prejudice due to his failure to exhaust administrative remedies. Since that dismissal, plaintiff contends, he has been exhausting his claims. In this regard, plaintiff contends that he should not be deemed in violation of the applicable statute of limitations. Finally, plaintiff argues that the court should not order him to post security because that would effectively result in dismissal of this action because he cannot afford to pay such an amount at this time. (Pl.'s Opp'n to Defs.' Mot. to Declare Pl. a Vexatious Litigant at 1-18.)
In reply, defense counsel argues that it is undisputed that plaintiff has maintained more than five unsuccessful lawsuits within the last seven years. Counsel also reiterates that plaintiff is not likely to succeed on his claims against any of the defendants, and his claims are time-barred. Finally, counsel notes that there is precedent in this district for finding that a prisoner is a vexatious litigant and requiring him to post security or face dismissal of his action. (Defs.' Reply at 2-8.)
I. Vexatious Litigants & Posting Security
Rule 151 of the Local Rules of Court for the Eastern District of ...