United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY DEFENDANT'S
MOTION FOR ORDER REQUIRING PLAINTIFF TO POST SECURITY (DOC.
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
Beavers moves the Court for an order requiring Plaintiff to
post security pursuant to Local Rule 151(b). (Doc. 42.)
Plaintiff has not filed an opposition or statement of
non-opposition to Defendant's motion, and the time to do
so has passed. Local Rule 230(1). The Court deems the motion
submitted. For the reasons set forth below, the Court
RECOMMENDS that Defendant's motion be DENIED.
All Writs Act, 28 U.S.C. § 1651(a), provides district
courts with the inherent power to enter pre-filing orders
against vexatious litigants.” Molski v. Evergreen
Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007)
(citation omitted). Such sanctions seek to restrain the
“[f]lagrant abuse of the judicial process” that
“enables one person to preempt the use of judicial time
that properly could be used to consider … meritorious
claims.” De Long v. Hennessey, 912 F.2d 1144,
1148 (9th Cir. 1990). “However, such pre-filing orders
are an extreme remedy that should rarely be used.”
Molski, 500 F.3d at 1057. Courts should not issue
these orders “with undue haste” or before
“cautious review of the pertinent circumstances,
” since “such sanctions can tread on a
litigant's due process right of access to the
Local Rule 151(b), “[t]he provisions of Title 3A, part
2, of the California Code of Civil Procedure, relating to
vexatious litigants, are … adopted as a procedural
Rule of this Court.” Under Title 3a, in relevant part,
“a defendant may move the court, upon notice and
hearing, for an order requiring the plaintiff to furnish
security…. The motion … 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
Local Rule 151(b), the Court looks to state law for the
procedures to use when deciding whether to order a
plaintiff to furnish “a security, bond, or
undertaking.” The Court looks to federal substantive
law to determine whether a litigant is
“vexatious.” See, e.g., Smith v.
Officer Sergent, No. 2:15-cv-0979-GEB-DBP, 2016 WL
6875892, at *2 (E.D. Cal. 2016) (“local rule and Ninth
Circuit decisions demonstrate that the court looks to federal
law, not state law, to define a vexatious litigant”);
Cranford v. Crawford, No. 1:14-cv-00055-AWI-MJS,
2016 WL 4536199, at *3 (E.D. Cal. 2016) (“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, 2014 WL 2330108, at
*1 (E.D. Cal. 2014) (“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.”)
federal law, the Court must make specific findings of
frivolousness or harassment to declare a litigant vexatious.
See Molski, 500 F.3d at 1058. “To make such a
finding, the district court needs to look at both the number
and content of the filings as indicia of the frivolousness of
the litigant's claims.” De Long, 912 F.2d
at 1148 (citations and internal quotation marks omitted). In
other words, “[a]n injunction cannot issue merely upon
a showing of litigiousness. The plaintiff's claims must
not only be numerous, but also be patently without
merit.” Moy v. United States, 906
F.2d 467, 470 (9th Cir. 1990).
Plaintiff's Prior Lawsuits
Defendant's request, (Doc. 42-2), the Court takes
judicial notice of five of Plaintiff's prior
lawsuits: (1) Gaines v. Lewis, No.
MCV074759 (Cal. Super. Ct., Madera Cty.); (2) Gaines v.
Greenberg, No. 17-cv-05720-RS (N.D. Cal.); (3)
Gaines v. Greenberg, No. RG17854239 (Cal. Super.
Ct., Alameda Cty.); (4) Gaines v. Lwin, No.
1:16-cv-00168-LJO-MJS (E.D. Cal.); and, (5) Gaines v.
Lwin, No. 17-15142 (9th Cir.).
Gaines v. Lewis, No. MCV074759, the court dismissed
Plaintiff's complaint without prejudice for her failure
to file an amended complaint after the court sustained the
defendants' demurrer. (Doc. 42-1 at 4; Doc. 42-2 at 5-6.)
In Gaines v. Greenberg, No. 17-cv-05720-RS, the
court dismissed Plaintiff's complaint, in part, because
it was barred by the “favorable termination rule”
of Heck v. Humphrey, 512 U.S. 477 (1994). 2017 U.S.
Dist. LEXIS 192901, at *4 (N.D. Cal. 2017). The Court stated
that Plaintiff may refile some of her claims “if she
can show that her convictions have been invalidated.”
Id. at *4-5.
Gaines v. Greenberg, No. RG17854239, the court
dismissed Plaintiff's case without prejudice after
Plaintiff filed a request for dismissal. (Doc. 42-1 at 4;
Doc. 42-2 at 24.) Finally, in Gaines v. Lwin, No.
1:16-cv-00168-LJO-MJS, the Court dismissed Plaintiff's
complaint for failure to state a claim of deliberate
indifference to Plaintiff's safety. 2016 U.S. Dist. LEXIS
128356, at *5-6 (E.D. Cal. 2016). There, Plaintiff alleged
that the defendant “pushed her along on a walker too
quickly, ” causing her to fall and injure herself.
Id. The Court concluded that the allegations may
assert carelessness or negligence but not a cognizable Eighth
Amendment claim. Id. at *6. The Ninth Circuit
affirmed the district court's dismissal in Gaines v.
Lwin, No. 17-15142, 698 Fed.Appx. 352, 352 (9th Cir.
explained above, the Court must find that Plaintiff's
prior claims were frivolous or harassing to declare her a
vexatious litigant. See Molski, 500 F.3d at 1058. A
complaint is frivolous “where it lacks an arguable
basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989) (defining
“frivolous” under the in forma pauperis
statute, 28 U.S.C. § 1915); see also Andrews v.
King, 398 F.3d 1113, 1121 (9th Cir. 2005) (same). But, a
complaint that fails to state a claim under Federal Rule of
Civil Procedure 12(b)(6) is not per se frivolous,
id. at 331, nor ...