United States District Court, E.D. California
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 ...