Dmitriy v. Bella

          ORDER TO SHOW CAUSE WHY PLAINTIFF SHOULD NOT BE DECLARED A VEXATIOUS LITIGANT

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Egorov Dmitriy, proceeding without counsel, commenced this action and requested leave to proceed in forma pauperis. (ECF Nos. 1, 2.)

         After a review of the Court's records, the undersigned finds Plaintiff to be a repeat, serial litigant whose actions have made it clear that he will only continue to abuse the judicial process and inundate this court with frivolous complaints that do nothing but strain the court's limited resources. Therefore, Mr. Dmitriy is ordered to show cause why he should not be declared a vexatious litigant. This designation may be accompanied by a pre-filing order restricting his ability to file new cases, requiring that he post security in order to maintain cases, or a limiting of the number of motions he may maintain in a single case.

         Plaintiff may respond to this order by filing a written response before February 27, 2020. Additionally, Plaintiff is ordered to appear at a hearing on Thursday, March 12, 2020, at 10:00 A.M., in Courtroom 25 regarding this matter.

         Background

         On August 28, 2019, Mr. Dmitriy filed this action against Kuchur Bella under 18 U.S.C. § 241 of the criminal code. (ECF No. 1.) The complaint is largely unintelligible, but appears to seek damages against Kuchar regarding Dmitriy's mother's housing. The Complaint also references another case of Mr. Dmitriy's in which Magistrate Judge Claire allegedly “refuse to pay relocation money assistance to mother petitioner in order continue neurological damage in USA . . . .” The Complaint appears to seek $50, 000 in damages from either Kuchar or the Slavic Community Center (a possible third party), as well as 999 trillion dollars from the Court.

         Pursuant to 28 U.S.C. § 1915, the Court screened Plaintiff's complaint. A review of the Court's docket reveals that since 2014, Mr. Dmitriy has filed 33 cases in this district wherein he proceeds pro se and requests a waiver of the filing fees.^[1] As shown in more detail below, none of Dmitriy's cases has progressed past the Court's screening process, and a majority of these actions have been dismissed as frivolous, vague, unintelligible, fanciful, or delusional.

         Legal Standard

         District courts have power under the All Writs Act, 28 U.S.C. § 1651(a), to issue pre-filing orders that restrict a litigant's ability to initiate court proceedings. De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990). “[S]uch pre-filing orders are an extreme remedy that should rarely be used.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007). However, “[f]lagrant abuse of the judicial process cannot be tolerated because it enables one person to preempt the use of judicial time that properly could be used to consider the meritorious claims of other litigants.” De Long, 912 F.2d at 1148. Before entering a pre-filing order, the court is to: (I) give the litigant notice and a chance to be heard before the order is entered; (II) compile an adequate record for review; (III) make substantive findings about the frivolous or harassing nature of the plaintiff's litigation, and (IV) narrowly tailor the vexatious litigant order “to closely fit the specific vice encountered. Molski, 500 F.3d at 1057. The first and second factors “are procedural considerations”; the third and fourth factors “are substantive considerations” that help the district court “define who is, in fact, a ‘vexatious litigant' and construct a remedy that will stop the litigant's abusive behavior without unduly infringing the litigant's right to access the courts.” Id. at 1057-58. As to the substantive factors, the Ninth Circuit has found a separate set of considerations (employed by the Second Circuit Court of Appeals) provide a helpful framework. Ringgold-Lockhart v. County of Los Angeles, 761 F.3d 1057, 1062 (9th Cir. 2014) (citing Molski, 500 F.3d at 1058). They are:

(1) the litigant's history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits;

(2) the litigant's motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?;

(3) whether the litigant is represented by counsel;

(4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and

(5) whether other sanctions would be adequate to protect the courts and other parties.

Molski, 500 F.3d at 1052 (quoting Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)).

         Additionally, the Eastern District has adopted California's “vexatious litigant” laws. See Local Rule 151(b) (adopting Cal. Civ. Proc. Code §§ 391-391.8). These laws were “designed to curb misuse of the court system by those persistent and obsessive litigants who repeatedly litigate[] the same issues through groundless actions, waste the time and resources of the court system and other litigants.” Shalant v. Girardi, 51 Cal.4th 1164, 1169 (2011). The vexatious- litigant statute “provide[s] courts and nonvexatious litigants with two distinct and complementary sets of remedies.” Id. at 1171. First, a plaintiff may be required to furnish security, meaning a requirement for the litigant to “assure payment . . . of the party's reasonable expenses, including attorney's fees . . . incurred in or in connection with a litigation instituted . . . by a vexatious litigant.” Cal. Civ. Proc. Code § 391. If the plaintiff fails to furnish the security, the action will be dismissed. Id. Second, the court may impose a prefiling order that prevents a plaintiff from filing any new case in propria persona. Id. (citing Cal. Civ. Proc. Code § 391.7).

         Analysis

         Mr. Dmitriy's litigation history demonstrates a pattern of frivolous and harassing complaints that calls for him to be deemed a vexatious litigant. De Long, 912 F.2d at 1146.

         a. Notice and Opportunity to Be Heard

         Procedural due process is satisfied where the court notifies the litigant it is considering a vexatious litigant order, provides details about the scope of the proceedings, and allows for the litigant to respond ...