United States District Court, E.D. California
IF ANY, DUE WITHIN TWENTY-ONE DAYS
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT
DEFENDANTS' MOTION FOR ORDER REQUIRING PLAINTIFF TO POST
SECURITY UNDER LOCAL RULE 151(b) BE DENIED (ECF NO.
Trujillo (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis
with this civil rights action filed pursuant to 42 U.S.C.
§ 1983. This case now proceeds on Plaintiff's Third
Amended Complaint (ECF No. 17) against defendants Gomez,
Juarez, and Fernandez for excessive force in violation of the
Eighth Amendment. (ECF Nos. 19, 20, & 21).
February 13, 2017, defendants Gomez and Fernandez filed a
motion for order requiring Plaintiff to post security on the
ground that Plaintiff qualifies as a vexatious litigant under
California rules (“the Motion”). (ECF No. 58).
Defendants ask the Court to declare Plaintiff a vexatious
litigant under California Code of Civil Procedure section
391(b)(1) and require him to post security. (ECF No. 58-1).
Defendants acknowledge that the federal standard is different
than the California state standard for vexatious litigants
(Id. at p. 2), but argue that this District's
local rules allow the Court to follow California, rather than
federal, law. Defendants do not make any argument that
Plaintiff is a vexatious litigant under the federal standard.
Plaintiff did not file a response.
Writs Act, 28 U.S.C. § 1651, gives the Court the
inherent power to enter pre-filing orders against vexatious
litigants. De Long v. Hennessey, 912 F.2d 1144, 1147
(9th Cir. 1990); Molski v. Evergreen Dynasty Corp.,
500 F.3d 1047, 1057 (9th Cir. 2007). The Court has inherent
power to sanction parties or their attorneys for improper
conduct. Chambers v. Nasco, Inc., 501 U.S. 32, 43-46
(1991); Roadway Express, Inc. v. Piper, 447 U.S.
752, 766 (1980); Fink v. Gomez, 239 F.3d 989, 991
(9th Cir. 2001). The imposition of sanctions under the
court's inherent authority is discretionary. Air
Separation, Inc. v. Underwriters at Lloyd's of
London, 45 F.3d 288, 291 (9th Cir. 1995). The
Court's “inherent power ‘extends to a full
range of litigation abuses.'” Fink, 239
F.3d at 992 (quoting Chambers, 501 U.S. at 46-47).
However, such pre-filing orders are an extreme remedy and
should rarely be used since such sanctions can tread on a
litigant's due process right of access to the courts.
Molski, 500 F.3d at 1057.
Ninth Circuit precedent, in order to sanction a litigant
under the court's inherent powers, the court must make a
specific finding of “bad faith or conduct tantamount to
bad faith.” Fink, 239 F.3d at 994. Although
mere recklessness is insufficient to support sanctions under
the court's inherent powers, “recklessness when
combined with an additional factor such as frivolousness,
harassment, or an improper purpose” is sufficient.
Id. at 993-94. A litigant may be sanctioned for
acting for an improper purpose, even if the act was “a
truthful statement or non-frivolous argument or
objection.” Id. at 992. “[I]nherent
powers must be exercised with restraint and
discretion.” Chambers, 501 U.S. at 44.
federal law, litigiousness alone is insufficient to support a
finding of vexatiousness. See Moy v. United States,
906 F.2d 467, 470 (9th Cir. 1990) (the plaintiff's claims
must not only be numerous, but also be patently without
merit). The focus 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. See De
Long, 912 F.2d at 1147-48 (before a district court
issues a pre-filing injunction against a pro se litigant, it
is incumbent on the court to make substantive findings as to
the frivolous or harassing nature of the litigant's
actions). The Ninth Circuit has defined vexatious litigation
as “without reasonable or probable cause or excuse,
harassing, or annoying.” Microsoft Corp. v.
Motorola, Inc., 696 F.3d 872, 886 (9th Cir. 2012). For
these reasons, the mere fact that a plaintiff has had
numerous suits dismissed against him is an insufficient
ground upon which to make a finding of vexatiousness under
Ninth Circuit precedent.
California law, in contrast, a vexatious litigant is one who
“[i]n the immediately preceding seven-year period has
commenced, prosecuted, or maintained in propria persona at
least five litigations other than in small claims court that
have been . . . finally determined adversely to the
person….” Cal. Civ. Proc. Code § 391(b)(1).
Under the law of the State of California, “a defendant
may move the court, upon notice and hearing, for an order
requiring the plaintiff to furnish security….”
Cal. Civ. Proc. Code § 391.1.
District of California Local Rule 151(b) states: “On
its own motion or on motion of a party, the Court may at any
time order a party to give a security, bond, or undertaking
in such amount as the Court may determine to be appropriate.
The 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 a security, bond, or
undertaking, although the power of the Court shall not be
limited thereby.” It is not clear to this Court to what
extent Local Rule 151(b) is an attempt to alter the federal
standard as set forth in Ninth Circuit precedent. The Court
notes that it is expressly a procedural rule, and does not
purport to change substantive law regarding the determination
of vexatiousness. As one Court in this jurisdiction
explained, federal substantive law regarding who is a
vexatious litigant is still binding on this Court:
Both this court's local rule and Ninth Circuit decisions
demonstrate that the court looks to federal law, not state
law, to define a vexatious litigant. “The All Writs
Act, 28 U.S.C. § 1651(a), provides district courts with
the inherent power to enter pre-filing orders against
vexatious litigants. However, such pre-filing orders are an
extreme remedy that should rarely be used.” Molski
v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th
Local Rule 151(b) prescribes that the procedure in
California's vexatious litigant law is considered when
determining whether to require a party to provide security
before proceeding with an action.
. . .
The Ninth Circuit has held that “orders restricting a
person's access to the courts must be based on adequate
justification supported in the record and narrowly tailored
to address the abuse perceived.” DeLong v.
Hennessey, 912 F.2d 1144, 1149 (9th Cir. 1990). Before
issuing such an order, a court must “make
‘substantive findings as to the frivolous or harassing
nature of the litigant's actions.' ”
Id. at 1148 (quoting In re Powell, 851 F.2d
427, 441 (D.C. Cir. 1988)); see also Moy v. United
States, 906 F.2d 467, 470 (9th Cir. 1990)
(“plaintiff's claims must not only be numerous, but
also be patently without merit”). “To make such a
finding, the district court needs to look at ‘both the
number and content of the filings as indicia' of the