The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH PREJUDICE; DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS AND PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL AS MOOT; AND DECLARING PLAINTIFF BRUCE D. CALHOUN TO BE A VEXATIOUS LITIGANT
Pending are Plaintiff's Request for Appointment of Counsel (Doc. No. 2) and Plaintiff's Motion to Proceed In Forma Pauperis (hereinafter referred to as "IFP") (Doc. No. 3). Also pending is the Court's Order to show cause why the Court should not find Plaintiff vexatious (hereinafter referred to as the "OSC")(Doc. No. 4) and Plaintiff's Response to the Court's OSC (Doc. No. 10).
On October 24, 2012, Plaintiff Bruce Derrick Calhoun, proceeding pro se, filed a Complaint against Defendants, alleging multiple counts of attempted murder and the murder of his family and friends. (Doc. No. 1.) To date, Plaintiff has filed twenty-six separate complaints in this court against San Diego County and various other defendants containing the same allegations of attempted murder and corruption. All but one of Plaintiff's complaints*fn1 have been dismissed for failure to state a claim upon which relief may be granted.*fn2 Although the named defendants differ slightly in each complaint, Plaintiff's allegations in the instant action are nearly identical to those in all of his other complaints.
A. PLAINTIFF'S MOTION TO PROCEED IFP
The Court first considers Plaintiff's Motion to Proceed IFP. The Ninth Circuit has indicated that leave to proceed IFP pursuant to 28 U.S.C. § 1915(a) is properly granted only when the plaintiff has both demonstrated poverty and presented a claim that is not factually or legally frivolous within the definition of § 1915(e)(2)(B). See Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir.1987). Thus, the Court "may deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit." Tripati, 821 F.3d at citing Reece v. Washington, 310 F.2d 139, 140 (9th Cir.1962); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.), cert. denied, 382 U.S. 896, 86 S.Ct. 192, 15 L.Ed.2d 153 (1965)). "It is the duty of the District Court to examine any application for leave to proceed in forma pauperis to determine whether the proposed proceeding has merit[,] and if it appears that the proceeding is without merit, the court is bound to deny a motion seeking leave to proceed in forma pauperis." Smart, 347 F.2d at 116 (citations omitted); accord Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir.1998); Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987).
As discussed in further detail below, Plaintiff's Complaint claims that Defendants have attempted to murder him on numerous occasions since 2008 and have murdered all of his family and friends. (Doc. No. 1). He seeks relief in the form of "(1) 2.7 billion dollars (2) a beach house and Bugatti, (3) Calhoun fortune." Id. Plaintiff has pled versions of these claims in numerous other cases and they have been found frivolous under 28 U.S.C. § 1915(e)(2). In those cases and in this one, Plaintiff has simply failed to state a claim upon which relief may be granted. Accordingly, Plaintiff's Complaint is dismissed with prejudice and Plaintiff's IFP Motion is DENIED as moot.
B. PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL
In light of the dismissal of Plaintiff's Complaint, Plaintiff's Request for Appointment of Counsel is DENIED as moot.
C. PLAINTIFF'S RESPONSE TO THE COURT'S VEXATIOUS LITIGANT OSC
The All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the inherent power to enter prefiling orders against vexatious litigants. Weissman v. Quail Lodge Inc., 179 F.3d 1194, 1197 (9th Cir. 1999). A district court may enter a prefiling order barring a litigant from commencing any new actions without first obtaining permission from the court. See, e.g., O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990) (requiring pro se inmate deemed a vexatious litigant to show good cause before being permitted to file future actions); De Long v. Hennessey, 912 F.2d 1144, 1146-47 (9th Cir. 1990) (prohibiting filings of pro se litigant proceeding IFP without leave of the district court); Moy v. United States, 906 F.2d 467, 469 (9th Cir. 1990) (forbidding pro se plaintiff from filing further complaints without prior approval of district court). However, such prefiling orders are an extreme remedy that should rarely be used. De Long, 912 F.2d at 1147. Courts should not enter prefiling orders with undue haste because such sanctions can tread on a litigant's due process right of access to the courts. Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 817 (4th Cir. 2004); Moy, 906 F.2d at 470; see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 429 (1982) (noting that the Supreme Court traditionally has held that the Due Process Clause protects civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs attempting to redress grievances); 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1336.3 at 698 (3d ed. 2004).
Nevertheless, flagrant abuse of the judicial process cannot be tolerated because it enables one person to preempt the use of judicial time that properly could be used to consider the meritorious claims of other litigants. De Long, 912 F.2d at 1148; see O'Loughlin, 920 F.2d at 618. Thus, in De Long, the Ninth Circuit outlined four factors for district courts to examine before entering prefiling orders. First, the litigant must be given notice and a chance to be heard before the order is entered. De Long, 912 F.2d at 1147. Second, the district court must compile an adequate record for review. Id. at 1148. Third, the district court must make substantive findings about the frivolous or harsassing nature of the plaintiff's litigation. Id. An adequate record for review should include a listing of all the cases and motions that led the district court to conclude that a vexatious litigant order was needed. See In re Martin-Trigona, 737 F.2d 1254, 1270-74 (2d Cir. 1984). The record must demonstrate that the litigant's activities were numerous or abusive. See, e.g. Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1523, 1526 (35 related complaints filed); In re Oliver, 682 F.2d 443, 444 (3d Cir. 1982) (over 50 frivolous cases filed); In re Green, 669 F.2d 779, 781 (D.C. Cir. 1981) (per curiam) (over 600 complaints filed). Finally, the vexatious litigant order must be narrowly tailored to closely fit the specific vice encountered. De Long, 912 F.2d at 1147.
a. Notice and Opportunity to ...