Hammler v. Clark

          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]

         Plaintiff Allen Hammler is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Defendants' motion to declare Plaintiff a vexatious litigant and require the posting of security, filed October 21, 2019.

         I.

         RELEVANT BACKGROUND

         This action proceeds against Defendants Gamboa, Peterson, Garza, Saucedo, Uhlik and Clark for violation of the First Amendment.

         As 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.)

         II.

         DISCUSSION

         A. Defendants' Motion

         Defendants 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.

         Local 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.

         B. Vexatiousness Under Federal Law

         The 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 vexatious order).

         The 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).

         In 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. 2012).

         Defendants 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.^[1] Defendants have cited the following ten cases in support of their motion:

         1. Hammler v. Kernan, et. al., E.D. Cal., No. 3:18-cv-01170-DMS-NLS

         Plaintiff 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.)

         2. Hammler v. Melendez, et al., E.D. Cal., ...