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Brian Cruz v. James E. Tilton

August 26, 2011


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge




I. Background

Plaintiff Brian Cruz ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants Cobbs and Ahlin for retaliation in violation of the First Amendment. Pending before the Court is Defendants' motion to declare Plaintiff a vexatious litigant, filed February 7, 2011. Defs.' Mot., Doc. 65. Plaintiff filed his opposition on March 30, 2011. Pl.'s Opp'n, Doc. 68. Defendants filed their reply on April 11, 2011. Defs.' Reply, Doc. 71. The matter is submitted pursuant to Local Rule 230(l). On April 22, 2011, Plaintiff subsequently filed supplemental objections to Defendants' motion. Doc. 72. On April 29, 2011, Defendants filed a motion to strike Plaintiff's objections. Doc. 73.

II. Motion To Strike Supplemental Objections

Defendants move to strike Plaintiff's objections, contending that such filings are not permitted by the Court's Local Rules. Defs.' Mot. 3, Doc. 73. Plaintiff's objections are in effect a surreply. Pursuant to the Court's Local Rules, a surreply is not permitted. See L.R. 230(l) (allowing for filings of motions, oppositions, and replies and deeming the motion submitted when reply is filed). The Court did not request a surreply to be filed. Accordingly, Defendants' motion to strike Plaintiff's surreply is HEREBY GRANTED, and Plaintiff's supplemental objections are stricken.

III. Motion To Declare Plaintiff Vexatious Litigant

A. Legal Standard

A District Court is empowered to enjoin litigants who have abusive histories of litigation or who file frivolous lawsuits from continuing to do so. See, e.g., 28 U.S.C. § 1651(a) ("The Supreme Court and all courts established by Act of Congress may issue writs necessary and appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."). "'A District Court not only may, but should, protect its ability to carry out its constitutional functions against the threat of onerous, multiplicitous, and baseless litigation.'" Safir v. United States Lines, Inc.,729 F.2d 19, 24 (2d Cir. 1986) (quoting Abdullah v. Gatton, 773 F.2d 487, 488 (2d Cir. 1985)). Federal courts possess the inherent power "to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances." Delong v. Hennesey, 912 F.2d 1144, 1147 (9th Cir. 1990). "Frivolous claims by a litigious plaintiff may be extremely costly to defendants and can waste valuable court time." DeNardo v. Murphy, 781 F.2d 1345, 1348 (9th Cir. 1986). Enjoining litigants from filing new actions under 28 U.S.C. § 1651(a) is one such restriction that the District Court may take. DeLong, 912 F.2d at 1147.

The Court may issue an order declaring a litigant to be a vexatious litigant and require a litigant to seek permission from the Court prior to filing any future suits. Weissman v. Quail Lodge Inc., 179 F.3d 1194, 1197 (9th Cir. 1999); see DeLong, 912 F.2d at 1146-47. Federal courts have been cautious in declaring plaintiffs vexatious litigants. To issue such an order, Ninth Circuit case law requires that the District Court ensure that: (1) the Plaintiff is given adequate notice to oppose a restrictive pre-filing order; (2) the record of the case filings reflects "in some manner, that the litigant's activities were numerous and abusive;" (3) there are substantive findings as to the frivolousness or harassing nature of plaintiff's filings; and (4) the order is narrowly tailored to remedy only the plaintiff's particular abuses. O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990); DeLong, 912 F.2d at 1147-49. "An order limiting a prisoner's access to the courts must be designed to preserve his right to adequate, effective and meaningful access [to the courts] . . . while preserving the court from abuse." Franklin v. Murphy, 745 F.2d 1221, 1231-32 (9th Cir. 1984). A pre-filing order cannot issue merely upon a showing of litigiousness. Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990). A review of the plaintiff's claims must establish that they were both numerous and without merit. Id.

This Court has also adopted Title 3A, part 2, of the California Code of Civil Procedure relating to vexatious litigants, as a procedural rule to allow ordering of a security for costs. See L.R. 151. Rule 151(b) states,

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.

Under California Code of Civil Procedure section 391(b), a vexatious litigant is defined as one who, while acting pro ...

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