The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF BE DECLARED A VEXATIOUS LITIGANT AND PRE-FILING RESTRICTIONS BE IMPOSED
John Frederick Wheeler ("Plaintiff") commenced this action on April 23, 2012 by filing a complaint against the United States, John Van Boening, Clinica Sierra Vista, Kern Family Health Care, Dr. Hao Bui, and Dr. Kumar Vinoid for racial discrimination, violation of civil rights, and medical malpractice. (Doc. 1). In addition, Plaintiff seeks to proceed in forma pauperis in this action. (Doc. 2). For the following reasons, the Court recommends Plaintiff be declared a vexatious litigant and prefiling restrictions be imposed.
I. Procedural and Factual Background
Plaintiff has filed a number of non-meritorious lawsuits in this district, and has been warned "repeated filing of cases lacking merit may result in the Court ordering Plaintiff to show cause why he should not be declared a vexatious litigant and pre-filing restrictions be imposed." See, e.g., Wheeler v. Clincia Sierra Vista, 2012 U.S. Dist. LEXIS 38832 at *3, n.1 (E.D. Cal. Mar. 19, 2012) (citing De Long v. Hennessey, 912 F.2d 1144 (9th Cir. 1990) (emphasis in original). Nevertheless, Plaintiff seeks to proceed in a fourth action filed based upon treatment received at Clinica Sierra Vista 2 and Memorial Hospital.*fn1 3
On May 4, 2012, the Court ordered Plaintiff to show cause why he should not be declared a 4 vexatious litigant and pre-filing restrictions be imposed. (Doc. 4). Plaintiff filed a motion for an 5 extension of time to file a response to the order to show cause (Doc. 5), which was granted by the Court 6 on May 22, 2012. (Doc. 6). Plaintiff was ordered to file a response to the Court's order "on or before 7 June 8, 2012." Id. at 1 (emphasis omitted). Plaintiff failed to comply with the deadline, and filed an 8 untimely response on June 11, 2012. (Docs. 7-8). 9
II. Vexatious Litigant Status
Pursuant to Local Rule 151(b), the Eastern District of California has adopted the provisions of Title 3A, part 2 of the California Code of Civil Procedure regarding vexatious litigants. Under California law, a vexatious litigant is defined as a person who:
(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 . . . finally determined adversely to the person . . . [or]
(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.
Cal. Code Civ. Pro. § 391(b).
Under federal law, the Court is instructed to consider "both the number and content of the filings as indicia of the frivolousness of the litigant's claims." De Long, 912 F.2d at 1148. "The plaintiff's claims must not only be numerous, but also be patently without merit." Moy v. United 2 States, 906 F.2d 467, 470 (9th Cir. 1990). Accordingly, prior to declaring litigant "vexatious," the 3 Court must (1) provide the litigant notice and a chance to be heard, (2) create an adequate record for 4 review, (3) make substantive findings as to the frivolous or harassing nature of the litigant's actions, 5 and (4) ensure any pre-filing order is "narrowly tailored to closely fit the specific vice encountered." 6 De Long, 912 F.2d at1147-48; Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 7 2007). Notably, the All Writs Acts as set forth in 28 U.S.C. § 1651(a) "provides district courts with the 8 inherent power to enter pre-filing orders against vexatious litigants." Molski, 500 F.3d at 1057. 9
III. Plaintiff's Prior Litigation
Plaintiff has filed more than a dozen lawsuits in this Court for civil rights violations since 2009, including six complaints since the beginning of 2012. In each, Plaintiff sought to proceed pro se and in forma pauperis. Accordingly, the Court was required to screen each of the complaints for cognizable claims, pursuant to 28 U.S.C. § 1915(e)(2). Significantly, fourteen of Plaintiff's actions have been dismissed for failure to state a cognizable claim, lack of jurisdiction, or failure to comply with the Court's orders.
A. Wheeler v. U.S. Dep't of Education, Case No. 1:09-cv-01631-LJO-SMS
On August 15, 2012, Plaintiff initiated an action by filling a complaint pursuant to 42 U.S.C. § 1983 ("Section 1983") against the United States Department of Education and its agents, and alleging the defendants violated his civil rights by "attempting to extort" various sums of money from him by collecting funds due on a loan. According to Plaintiff, the defendants' collection attempts caused him mental anguish, embarrassment, and humiliation. The Court noted that Section 1983 was not applicable because the United States Department of Education is a federal agency, rather than a state actor. In addition, the Court found Plaintiff was unable to bring an action pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), because a Bivens action may not be filed against a federal agency and Plaintiff never alleged he was deprived of a right, privilege, or immunity. See Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 486 (1994); Van Strum v. Lawn, 940 F.2d 406,409 (9th Cir. 1991). Therefore, the Magistrate Judge recommended the complaint be dismissed, and the action was dismissed on July 19, 2010.
B. Wheeler v. Healthy Smiles, Case No. 1:09-cv-01772-OWW-SKO
Plaintiff commenced an action against Healthy Smiles and several of its employees on October 8, 2009. Plaintiff alleged his federal civil rights were violated under Section1983 because the 4 defendants made a poor set of dentures for him, which caused physical pain and embarrassment, and 5 then charged Plaintiff additional money to repair the dentures. The Court found Plaintiff failed to state 6 a claim under Section 1983 because he failed to plead the defendants acted under the color of state law, 7 or that the defendants deprived him of rights, privileges or immunities secured by the Constitution or 8 laws of the United States. See Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). In 9 addition, the Court explained that, generally, private parties do not act under the color of state law. See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). Rather, Plaintiff's claims appeared to be grounded in state law. Although given leave to amend the complaint, Plaintiff failed to plead facts indicating the defendants acted under the color of state law. The Court granted Plaintiff a ...