FINDINGS AND RECOMMENDATIONS
Plaintiff, proceeding pro se, commenced this action on September 20, 2012, by filing a complaint and a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. Nos. 1 & 2.) This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
On November 20, 2012, the undersigned reviewed plaintiff's complaint, found it to be frivolous and recommended that it be dismissed without leave to amend. (Doc. No. 3.) The undersigned also noted plaintiff's lengthy history of filing civil actions in this court which have been subject to dismissal. Accordingly, a hearing was set to consider imposing on plaintiff a pre-filing review order. Plaintiff was also appointed counsel for the limited purpose of representing plaintiff with respect to this issue.
On January 11, 2013, plaintiff and his counsel, Joanna Mendoza, Esq., appeared before the court for hearing on consideration of imposing on plaintiff a pre-filing review order. Plaintiff's counsel informed the court that plaintiff's excessive filings stemmed from periods when his mental illness was unmedicated, that the court's orders generated in response to plaintiff's filings further exacerbated his mental state, that plaintiff was currently medicated, that plaintiff's counsel explained the implications of a pre-filing review order to plaintiff and that plaintiff and his counsel were requesting that the court enter an order subjecting any future civil action plaintiff files while proceeding pro se to pre-filing review. In this regard, plaintiff's counsel noted that plaintiff had previously been declared incompetent and unrestorable, and thus could not proceed under any circumstances without counsel.*fn1
The Ninth Circuit has acknowledged the "inherent power of federal courts to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances." De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990) (discussing requirements, pursuant to the All Writs Act, 28 U.S.C. § 1651(a), for issuing an order requiring a litigant to seek permission from the court prior to filing any future suits). See also Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057-62 (9th Cir. 2007).
Local Rule 151(b) provides that "[t]he 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 security, bond, or undertaking, although the power of the court shall not be limited thereby." California Code of Civil Procedure, Title 3A, part 2, commences with § 391 and defines a "vexatious litigant" as including those persons acting in propria persona who "repeatedly files unmeritorious motions, pleadings, or other papers . . . or engages in other tactics that are frivolous or solely intended to cause unnecessary delay." CAL. CODE CIV. PRO. § 391(b)(3).*fn2
Pre-filing review orders, in which a complainant is required to obtain approval from a United States Magistrate Judge or District Judge prior to filing a complaint, can appropriately be imposed in certain circumstances but "should rarely be filed." DeLong, 912 F.2d at 1147. See also Molski, 500 F.3d at 1057. The Ninth Circuit has articulated that the following four conditions must be met before the court enters a pre-filing review order: (1) plaintiff must be given adequate notice to oppose the order; (2) the court must provide an adequate record for review, listing the pleadings that led the court to conclude that a vexatious litigant order was warranted; (3) the court must make substantive findings as to the frivolous or harassing nature of the litigant's actions; and (4) the order must be narrowly tailored. See DeLong, 912 F.2d at 1147-48; Molski, 500 F.3d at 1057-58.
To make substantive findings of frivolousness, the district court must look at "both the number and content of the filings as indicia" of the frivolousness of the litigant's claims. In re Powell, 851 F.2d 427, 431 (9th Cir. 1988). See also Moy v United States, 906 F.2d 467, 470 (9th Cir. 1990) (a pre-filing "injunction cannot issue merely upon a showing of litigiousness."). Absent "explicit substantive findings as to the frivolous or harassing nature of the plaintiff's findings," a district court may not issue a pre-filing order. O'Loughlin v. Doe, 920 F.2d 614, 618 (9th Cir. 1990).
Here, plaintiff was given adequate notice and opportunity to oppose the pre-filing review order. Plaintiff and his counsel do not oppose the imposition of a pre-filing review order, and instead have in fact requested that the court enter such an order requiring that any civil action brought by plaintiff while proceeding pro se be subject to pre-filing review.
Morever, the court's records reflect that in the past year alone plaintiff has brought roughly two dozen civil actions before this court, many raising allegations quite similar to those made in the complaint he filed in this action.*fn3 In fact, the undersigned has recommended the dismissal of several of plaintiff's complaints without leave to amend, specifically finding that those actions were frivolous. See Chaderick Ingram v. City of Sacramento, et al., No. CIV S-12-1787 MCE DAD PS; Chaderick A. Ingram v. City of Sacramento, et al., No. CIV S-12-1898 GEB DAD PS; and Chaderick A. Ingram v. City of Sacramento, et al., No. CIV S-12-2034 MCE DAD PS. As noted above, the undersigned has also found that this action is frivolous. (Doc. No. 5.)
While mindful that such orders are to be used only as a last resort in rare instances, for the reasons stated above, plaintiff's filing of civil actions on his own behalf which are subject to dismissal has become so extreme that it has become clear that there is no possibility that actions filed by plaintiff on his own behalf could support the granting of judicial relief. Moreover, the court is very concerned that plaintiff's repetitive filing of such frivolous actions has become a severe burden on an already resource-strapped court.*fn4 Finally, the court notes that plaintiff's counsel has indicated that plaintiff's frivolous filings not only burden the court but, in fact, ultimately have a deleterious impact on plaintiff as well.
With respect to the narrow tailoring of the order, because plaintiff has been declared incompetent and unrestorable, and therefore cannot proceed without counsel, the undersigned adopts plaintiff's request and will recommend that any civil action brought by plaintiff while proceeding pro se be subject to pre-filing review.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Plaintiff be declared a vexatious litigant; and
2. A pre-filing review order be entered requiring plaintiff to submit a pre-filing request to the duty judge of this court to consider plaintiff's filing of any new civil ...