United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS' MOTION TO DECLARE PLAINTIFF A VEXATIOUS
LITIGANT AND POST SECURITY AND PLAINTIFF'S MOTION TO FILE
A SURREPLY [ECF Nos. 56, 61]
Allen Hammler is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Defendants' motion to declare
Plaintiff a vexatious litigant and require the posting of
security, filed October 21, 2019.
action proceeds against Defendants Gamboa, Peterson, Garza,
Saucedo, Uhlik and Clark for violation of the First
previously stated, on October 21, 2019, Defendants filed a
motion to declare Plaintiff a vexatious litigant and require
the posting of security. Plaintiff filed an opposition on
November 8, 2019, and Defendants filed a reply on November
14, 2019. Defendants' motion is deemed submitted for
review without oral argument. Local Rule 230(1). On December
3, 2019, Plaintiff filed a request to file a surreply, along
with a copy of the proposed surreply. (ECF Nos. 61, 62.)
seek to have Plaintiff declared a vexatious litigant, and
post security in the amount of $4, 640.00. Local Rule 151(b)
of the Eastern District of California, 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 an extreme
remedy that should rarely be used. Molski v. Evergreen
Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007). A
pre-filing order can tread on a litigant's due process
right of access to the courts and it should not be entered
with undue haste or without a 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 ten
unsuccessful lawsuits in the past seven years, and he is
unlikely to succeed on the merits of this case. Defendants have
cited the following ten cases in support of their motion:
Hammler v. Kernan, et. al., E.D. Cal., No.
filed this action on June 4, 2018, against prison officials
for an alleged breach of contract relating to being placed in
a sensitive needs yard as well as retaliation in connection
with rules violation reports for Plaintiff's refusal to
be housed as assigned. After granting Plaintiff leave to file
an amended complaint, Plaintiff filed a first amended
complaint on November 13, 2019. The Court dismissed the first
amended complaint for failure to state a cognizable claim and
frivolous on December 10, 2018. (Defs.' Req. for Judicial
Notice (“RJN”), Ex. 3, at 49-92.)
Hammler v. Melendez, et al., E.D. Cal., ...