The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING (1) DEFENDANTS' MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT, FOR THE ISSUANCE OF A PRE-FILING ORDER, AND FOR AN ORDER REQUIRING THE FURNISHMENT OF SECURITY BE DENIED, AND (2) DEFENDANTS' MOTION TO STRIKE BE DENIED AS MOOT (Docs. 92 and 97) THIRTY-DAY OBJECTION DEADLINE
Finding and Recommendations Recommending Defendants' Motion be Denied
Plaintiff Floyd Scott, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 29, 2009. This action is presently proceeding against Defendants Palmer, Rivera, and Lopez on Plaintiff's Eighth Amendment excessive force claim arising out of an incident in which Plaintiff was allegedly kicked and stomped after he had been handcuffed.*fn1
On June 22, 2012, Defendants filed a motion for an order declaring Plaintiff a vexatious litigant, for the issuance of a pre-filing order requiring Plaintiff to seek leave of the presiding judge before filing any new actions, and for an order requiring Plaintiff to post security in an amount of no less than $79,330.00 before this matter proceeds to trial. 28 U.S.C. § 1651(a); Local Rule 151(b); Cal. Civ. Proc. § 391.1. Plaintiff filed an opposition on July 5, 2012, Defendants filed a reply on July 12, 2012, and the matter has been submitted upon the record.*fn2 Local Rule 230(l). For the reasons which follow, the Court recommends that Defendants' motion be denied in its entirety.
A. Declaration of Vexatiousness and Issuance of Pre-filing Order
Local Rule 151(b) of the Eastern District of California authorizes the Court to issue an order requiring a litigant to post security and in doing so, the Court looks to the procedures under California law relating to vexatious litigants. Local Rule 151(b); Cal. Civ. Proc. §§ 391, 391.1, 391.3. The furnishment of security and Plaintiff's qualification as a vexatious litigant under California law are discussed in subsection B.
In moving for an order declaring Plaintiff vexatious and for the issuance of a pre-filing order, Defendants identify cases and conduct which they argue support a finding of vexatiousness as defined in section 391(b) of the California Code of Civil Procedure. The Court will address the arguments in the order and on the basis articulated by Defendants, but under federal law, the standard which must be met to declare a litigant vexatious and issue a pre-filing order is much more stringent than the state statutory standard.
The Court has inherent power under the All Writs Act, 28 U.S.C. § 1651(a), to enter a pre-filing order against a vexatious litigant, but a pre-filing order is "an extreme remedy that should rarely be used." Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007), cert. denied, 555 U.S. 1031 (2008) (citation omitted). A pre-filing order "can tread on a litigant's due process right of access to the courts" and it should not be entered "with undue haste" or without "a cautious review of the pertinent circumstances." Molski, 500 F.3d at 1057 (citation omitted).
The focus under federal law is on the number of suits that were frivolous or harassing in nature rather than on the number of suits that were simply adversely decided. Molski, 500 F.3d at 1061; De Long v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir. 1990). Prior to entering a pre-filing order against a litigant, (1) the litigant must be given notice and an opportunity to be heard, (2) the Court must compile an adequate record, (3) the Court must make substantive findings about the frivolous or harassing nature of Plaintiff's litigation, and (4) the pre-filing order must be narrowly tailored to closely fit the specific vice encountered. Molski, 500 F.3d at 1057 (citing De Long, 912 F.2d at 1147-48) (quotation marks omitted).
Plaintiff has had notice and an opportunity to be heard via Defendants' motion and his written opposition. Molski, 500 F.3d at 1058-59. The "heart" of the inquiry in this case is the third factor: the frivolous or harassing nature of Plaintiff's actions. Id. at 1059. The Court "must look at both the number and content of the filings as indicia of the frivolousness of the litigant's claims." Id. (quoting De Long, 912 F.2d at 1148) (internal quotation marks omitted). A showing of litigiousness is not enough; the claims must not only be numerous but patently without merit. Id. Frivolous litigation includes not only those cases in which a legal claim is entirely without merit but also those cases in which a claimant has some measure of a legitimate claim but makes false factual assertions. Id. at 1060-61 (quotation marks omitted).
3. Final Adverse Determinations
In support of their argument that Plaintiff is a vexatious litigant, Defendants first identify eight cases filed in the past seven years which were decided against Plaintiff. See Cal. Civ. Proc. § 391(b)(1).*fn3 The eight cases are as follows, in chronological order.
In Scott v. Superior Court, case number H028918, the Sixth Appellate District summarily denied Plaintiff's appeal on July 7, 2005. (Ex. 11.)
In Scott v. Gutierrez, case number H028524, Plaintiff appealed (1) the dismissal of his amended complaint, without leave to amend, for failure to comply with the Government Claims Act and (2) the denial of his motion for entry of default. (Ex. 8.) On December 5, 2005, the Sixth Appellate District affirmed the judgment of the trial court, and on February 8, 2006, the California Supreme Court, in case number S140116, denied Plaintiff's petition for review. (Exs. 8, 9.)
In Scott v. Lauber, case number 4:05-cv-04355-PJH (PR), the district court dismissed the case on April 13, 2006, without prejudice, as duplicative and it is clear from the order that it was filed as a result of the erroneous dismissal of the earlier action and not based on abusive litigation tactics. (Ex. 6.)
In Scott v. Lauber, case number 4:05-cv-00111-PJH, the district court dismissed the action, without prejudice, on July 3, 2008, for failure to keep the court apprised of a current address, following returned mail in the case. (Ex. 5.)
On July 6, 2009, in Scott v. Belmares, case number 08-56192, the Ninth Circuit Court of Appeals affirmed the dismissal of Plaintiff's case for failure to prosecute and failure to obey the court's orders. (Ex. 3.)
While four of these six cases were "finally adversely determined" against Plaintiff under California law, as discussed in subsection B, Cal. Civ. Proc. § 391(b)(1), there is no evidence that they were frivolous or harassing in nature and as a result, they do not support a determination that Plaintiff is a vexatious litigant under federal law,*fn4 Molski, 500 F.3d at 1059; De Long, 912 F.2d at 1147-48. The final two cases, Scott v. Belmares, case number ...