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Quezada v. Cate

United States District Court, E.D. California

March 8, 2017

ALVARO QUEZADA, Plaintiff,
v.
MATTHEW CATE, et al., Defendants.

         ORDER GRANTING MOTION TO CORRECT RECORD (ECF No. 64)

         ORDER ADOPTING IN PART FINDINGS AND RECOMMENDATIONS (ECF No. 62)

         ORDER ADOPTING IN PART FINDINGS AND RECOMMENDATIONS (ECF No. 56)

         ORDER GRANTING IN PART DEFENDANT'S MOTION FOR ORDER DECLARING PLAINTIFF A VEXATIOUS LITIGANT AND REQUIRING SECURITY (ECF No. 32)

         ORDER DECLARING PLAINTIFF A VEXATIOUS LITIGANT

         ORDER GRANTING LEAVE TO FILE THE LODGED FIRST AMENDED COMPLAINT

         ORDER DISMISSING PLAINTIFF'S RLUIPA CLAIM WITH PREJUDICE AND FIRST AMENDMENT CLAIM WITHOUT PREJUDICE

         ORDER GRANTING LEAVE TO FILE AN AMENDED COMPLAINT

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United States District Court for the Eastern District of California.

         On November 2, 2016, the Magistrate Judge issued findings and recommendations to grant Defendant Smith's motion for an order declaring Plaintiff a vexatious litigant and requiring that he post security before proceeding further with this litigation. (ECF No. 56.) Plaintiff filed objections. (ECF No. 63.) He also filed a motion to correct the record, which the Court construes as a notice of errata. (ECF No. 64.) Defendants filed no response. Plaintiff's objections and the corrections thereto are considered herein.

         In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case. Plaintiff's objections regarding his status as a vexatious litigant do not raise an issue of fact or law under the findings and recommendations. His objection that the Magistrate Judge refused to rule on his motion to amend the complaint is without merit, as that motion is the subject of separate findings and recommendations. (ECF No. 62.) Having carefully reviewed the entire file, the Court finds the findings and recommendations (ECF No. 56) to be only partially supported by the record and proper analysis. The Court will adopt that findings and recommendations in part as explained below.

         The Court agrees that the Magistrate Judge correctly concluded pursuant to Local Rule 151(b), incorporating Title 3A, part 2, of the California Code of Civil Procedure relating to vexatious litigants, that Plaintiff is a vexatious litigant within the meaning of Section 391 of the California Code of Civil Procedure because he has filed at least five litigations that have been finally determined adversely to him. See Cal. Code Civ. P. § 391(b)(1). However, as discussed below, because the Court will dismiss with prejudice Plaintiff's RLUIPA claim for prospective relief as moot, the request for posting of a security for that claim is also moot. Next, a s discussed below, Plaintiff has stated an Equal Protection claim and may be able to state a Free Expression claim against Defendant Smith, the Court will deny Defendant's request for posting of a security for those claims. As a result, Plaintiff is determined to be a vexatious litigant but the Court will not require posting of any security to proceed forward on the two remaining claims against Defendant Smith because the Court cannot determine that Plaintiff does not have a reasonable probability of prevailing.

         As to the second findings and recommendations (ECF No. 62), issued December 29, 2016, recommending granting Plaintiff leave to file the lodged first amended complaint (ECF No. 38) and dismissing all but Plaintiff's Equal Protection claim against defendants Smith and Carron. This court has conducted a de novo review, considering Plaintiff's objections (ECF No. 66). Again, that findings and recommendations is supported in part by the record and proper analysis. The Court will adopt that findings and recommendations in part as set forth below.

         The Magistrate Judge recommended dismissal of Plaintiff's RLUIPA claim because the injunctive relief he seeks-admission into the Jewish Kosher Diet Program-has already been granted as a result of an amendment to CDCR regulations and Plaintiff is no longer ...


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