IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 25, 2011
GUY T. STRINGHAM, PLAINTIFF,
J. BICK, ET AL.,
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
I. Defendants' Motion
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.)
III. Defendants' Reply
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 California provides:
On its own motion or on motion of a party, the Court may at any time order a party to give a security, bond, or undertaking in such amount as the Court may determine to be appropriate. 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 a security, bond, or undertaking, although the power of the Court shall not be limited thereby.
In turn, Section 391(b) of the California Code of Civil Procedure provides:
(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 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.
Finally, Section 391.1 of the California Code of Civil Procedure provides: In any litigation pending in any court of this state, at any time until final judgment is entered, a defendant may move the court, upon notice and hearing, for an order requiring the plaintiff to furnish security. The motion must be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he will prevail in the litigation against the moving defendant.
The Ninth Circuit has counseled caution in declaring plaintiffs vexatious litigants. That court has explained that "orders restricting a persons's access to the courts must be based on adequate justification supported in the record and narrowly tailored to address the abuse perceived." DeLong v. Hennessey, 912 F.2d 1144, 1149 (9th Cir. 1990). Strictly speaking, plaintiff has brought more than five unsuccessful lawsuits in the past seven years. However, based on defendants' motion, this court cannot say that plaintiff's filings have been so "numerous or abusive" or "inordinate" to warrant a vexatious litigant order. Id. at 1147-48 (examples of "numerous or abusive" filings include plaintiffs who have filed 35 related complaints, more than 50 frivolous cases, or more than 600 complaints). Nor can this court say that plaintiff's litigation activity reflects a "pattern of harassment." Id. at 1140.*fn3
Moreover, based on defendants' motion, it is not at all clear that plaintiff has no reasonable probability of succeeding on the merits of this case. In fact, in screening plaintiff's amended complaint, the court determined that it appeared to state cognizable claims for relief pursuant to 42 U.S.C. § 1983. In that screening order the court also noted that if plaintiff proved the allegations in his amended complaint, he had a reasonable opportunity to prevail on the merits of this action. See Screening Order, Apr. 26, 2010 (Doc. No. 11). See also Hollis v. Dezember, No. CIV S-08-2810 KJN P, 2010 WL 4220535 (E.D. Cal. Oct. 20, 2010) (denying defendants' motion to declare plaintiff a vexatious litigant because the court could not determine at that juncture that there was no reasonable probability that plaintiff would not prevail against any defendant). Accordingly, the court will deny defendants' motion to declare plaintiff a vexatious litigant.
Also pending before the court are two motions from plaintiff. First, plaintiff has filed a motion to strike defendants' reply in support of their motion to declare him a vexatious litigant as untimely. Defendants have filed an opposition to the motion. After reviewing the docket in this case, the court finds that defendants timely filed their reply within seven days of receiving electronic notice that plaintiff had filed an opposition to their motion. See Local Rule 230(l). Accordingly, the court will deny plaintiff's motion to strike.
Plaintiff has also filed a motion for a court order requiring B.C. Williams, the Litigation Coordinator at CMF, to supply him with information necessary to serve his amended complaint on the executor of defendant Murray's estate. According to plaintiff, the Litigation Coordinator will not provide him with information about defendant Murray's executor or family without a court order.
Plaintiff is advised that this court is unable to issue an order against individuals who are not parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). Moreover, as plaintiff acknowledges, the court previously informed him that if he wished to proceed with his claims against defendant Murray, he would have to provide the court with additional information that would enable the United States Marshal to serve the estate of this deceased defendant. The court instructed plaintiff to promptly seek such information through any means available to him and cautioned him that if service of the complaint was not made within 120 days of the filing of his complaint the court may be required to dismiss his claims. Here, plaintiff has not shown good cause for the failure to effect service on the estate of defendant Murray. Although plaintiff has had more than sufficient time to provide the court with the additional information necessary to effect service, he has failed to do so. Accordingly, the court concludes that defendant Murray should be dismissed from this action. See Fed. R. Civ. P. 4(m).
IT IS HEREBY ORDERED that:
1. Defendants' motion to declare plaintiff a vexatious litigant and require security (Doc. No. 17) is denied;
2. Defendants' request for judicial notice (Doc. No. 18) is granted;
3. Plaintiff's motion to strike (Doc. No. 24) is denied; and
4. Plaintiff's motion for a court order (Doc. No. 28) is denied.
IT IS HEREBY RECOMMENDED that defendant Murray be dismissed from this action without prejudice. See Fed. R. Civ. P. 4(m) and 41(b).
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 twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).