United States District Court, E.D. California
DEVONTE B. HARRIS, Plaintiff,
T. QUILLEN, et al., Defendants.
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS' MOTION TO REQUIRE PLAINTIFF TO POST SECURITY
AS A VEXATIOUS LITIGANT [ECF NO. 33]
Devonte B. Harris is appearing pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. §
before the Court is Defendants' motion to require
Plaintiff to post security as a vexatious litigant, filed
April 8, 2019.
action is proceeding against Defendants Sandor, Molina,
Thomas and Bugarin for retaliation, and against defendants
Quillen, Carranza, Alvarado, Hurtado, Perez and Magana for
filed an answer to the complaint on June 29, 2018. On July 2,
2018, the Court issued the discovery and scheduling order.
previously stated, on April 8, 2019, Defendants filed a
motion to require Plaintiff to post security as a vexatious
litigant. Plaintiff filed an opposition on May 28, 2019, and
Defendants filed a reply on June 3, 2019. Accordingly, the
motion is deemed submitted for review without oral argument.
Local Rule 230(1).
seek to have Plaintiff declared a vexatious litigant, post
security in the amount of $50, 000, and issue a pre-filing
order prohibiting him from filing any new litigation without
first obtaining leave of Court to do so. Local Rule 151(b) of
the Eastern District of California, which provides:
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.
Rule 151(b) (emphasis added). Defendants argue that Plaintiff
is a vexatious litigant as defined by California Civil
Procedure Code § 391.1, which provides:
In any litigation pending in any court of this state, at any
time until final judgment is entered, a defendant may move
the court, upon notice and hearing, for an order requiring
the plaintiff to furnish security or for an order dismissing
the litigation pursuant to subdivision (b) of Section 391.3.
The motion for an order requiring the plaintiff to furnish
security shall be based upon the ground, and supported by a
showing, that the plaintiff is a vexatious litigant and that
there is not a reasonable probability that he or she will
prevail in the litigation against the moving defendant.
Cal. Civ. Proc. Code § 391.1.
Vexatiousness Under Federal Law
Court finds that Local Rule 151(b) is a procedural rule which
allows courts in this district to impose payment of a
security if the plaintiff is found to be vexatious. Because
Local Rule 151(b) is a procedural rule, the Court must look
to federal substantive law, not California law, for the
definition of vexatiousness and whether posting of security
should be required. See, e.g., Smith v. Officer
Sergeant, No. 2:15-cv-0979 GEB DB P, 2016 WL 6875892, at
*2 (E.D. Cal. Nov. 21, 2016) (the court looks to federal law,
not state law, to define a vexatious litigant.”);
Cranford v. Crawford, No. 1:14-cv-00055-AWI-MJS
(PC), 2016 WL 4536199, at *3 (E.D. Cal. Aug. 31, 2016
(“… the state statutory definition of
vexatiousness is not enough to find a litigant vexatious in
federal court.”); Goolsby v. Gonzales, No.
1:11-cv-00394-LJO-GSA-PC, 2014 WL 2330108, at *1-2 (E.D. Cal.
May 29, 2014) (“Under federal law, however, the
criteria under which a litigant may be found vexatious is
much narrower. While Local Rule 151(b) directs the Court to
look to state law for the procedure in which a litigant may
be ordered to furnish security, this Court looks to federal
law for the definition of vexatiousness, and under federal
law, the standard for declaring a litigant vexatious is more
stringent…. [T]he mere fact that a plaintiff has had
numerous suits dismissed against him is an insufficient
ground upon which to make a finding of
vexatiousness.”); Stringham v. Bick, No. CIV
S-09-0286 MCE DAD P, 2011 WL 773442, at *3 (E.D. Cal. Feb.
28, 2011) (although more than five unsuccessful lawsuit had
been filed in the preceding seven years, the court could not
find that the filings were so “numerous or
abusive” or “inordinate” to warrant a
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 Aan extreme
remedy that should rarely be used.@ Molski v. Evergreen
Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007). A
pre-filing order Acan tread on a litigant's due process
right of access to the courts@ and it should not be entered
Awith undue haste@ or without Aa cautious review of the
pertinent circumstances.@ Id. (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.
Id. 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).
order to sanction a litigant pursuant to the court's
inherent powers, the Court must make a specific finding of
“bad faith or conduct tantamount to bad faith.”
Fink v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001).
“Bad faith” mean a party or counsel acted
vexatiously, wantonly or for oppressive reasons.”
Chambers v. Nasco, Inc., 501 U.S. 32, 45-46 (1991).
Under 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 Ninth Circuit has defined
vexatious litigant as “without reasonable or probable
cause or excuse, harassing, or annoying.” Microsoft
Corp. v. Motorola, Inc., 696 F.3d 872, 886 (9th Cir.
argue that Plaintiff has commenced or maintained fifteen
unsuccessful lawsuits in the past seven years, and he is
unlikely to succeed on the merits of this case. Defendants have
cited the following eighteen cases in support of their
Harris v. Gardner, et al., (9th Circuit, No.
10-17809). Plaintiff appealed the district court's entry
of summary judgment against him in the underlying case, in
which he claimed Defendants violated his right to access of
the courts. In a memorandum dated May 7, 2012, the Ninth
Circuit affirmed, finding the district court properly granted
summary judgment. On August 17, 2012, the Court denied
Plaintiff's petition for an en banc rehearing, and the
mandate issued this same date. (RJN, Ex. A.)
Harris v. Staggs, et al., (Kings County ...