Clancy v. Mancuso

Opinion

1 2 3 7 8 NORMAN CLANCY, Case No. 22-cv-02381-BLF

9 Plaintiff, ORDER DECLARING NORMAN 10 v. CLANCY A VEXATIOUS LITIGANT AND IMPOSING PRE-FILING 11 JERRY MANCUSO; GERALD BITTNER; REVIEW REQUIREMENT and KEITH COOPER, 12 [Re: ECF 21] Defendants. 13

14 15 This is the third federal action, and sixth action overall, that pro se Plaintiff Norman 16 Clancy (“Clancy”) has filed against Defendants Jerry Mancuso (“Mancuso”), Gerald Bittner 17 (“Bittner”), and Keith Cooper (“Cooper”) regarding dental services they provided to him. Before 18 the Court is Mancuso’s motion for an order declaring Clancy to be a vexatious litigant and 19 requiring Clancy to obtain leave of court before filing any future lawsuits against Mancuso, 20 Bittner, and/or Cooper. See Mancuso’s Mot., ECF 21. 21 On November 30, 2022, the Court issued an Order to Show Cause why Clancy should not 22 be declared a vexatious litigant. See Order to Show Cause, ECF 28. The Court gave Clancy until 23 December 14, 2022 to respond, and advised that the Court would issue a ruling upon the filing of 24 Clancy’s response or the expiration of his deadline to respond. See id. Clancy has not responded 25 to the Order to Show Cause. 26 Mancuso’s motion is GRANTED. The Court hereby DECLARES Norman Clancy to be a 27 vexatious litigant and imposes a pre-filing review requirement with respect to any future lawsuits 2 The Court summarizes the six actions that Clancy has filed against Mancuso, Bittner, and 3 Cooper, as follows.1 The Court takes judicial notice of Clancy’s prior court filings and related 4 court orders. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 5 2006) (“We may take judicial notice of court filings and other matters of public record.”) 6 First Action, filed July 28, 2020 (Federal) 7 On July 28, 2020, Clancy filed his first federal suit against Mancuso, Bittner, and Cooper, 8 asserting federal question jurisdiction based on a criminal statute governing assaults within 9 maritime and territorial jurisdiction, 18 U.S.C. § 113. See Clancy v. Mancuso, et al., No. 20-cv- 10 05176-EJD. Clancy alleged that he was referred to Dr. Keith Cooper for the removal of a broken 11 screw from an implant. See Compl. at 5, ECF 1. Cooper allegedly “destroyed a critical implant” 12 and removed “an existing bridge,” which left Mr. Clancy “without any teeth for months.” Id. 13 Clancy indicates that after that procedure, he was referred to Dr. Jerry Mancuso, an oral surgeon. 14 See id. Mancuso allegedly proposed a plan of treatment that involved pulling out all of Clancy’s 15 existing teeth and implants, followed by a bone graft and insertion of up to eight implants. See id. 16 Clancy claims that he also was referred to Dr. Gerald Bittner “to make the hybrid bridge.” Id. 17 According to Clancy, Mancuso, Bittner, and Cooper changed the prices of their procedures 18 in bad faith and lied about which procedures they performed. See Compl. at 6. For example, 19 Clancy alleges as follows: “On the day before the operation, Mancuso raised the price to $19,000 20 and used the change in price, that he knew I couldn’t pay to cancel the surgery.” Id. Clancy also 21 says that he immediately went to three other oral surgeons, who told him that he had never had 22 any bone graft and that the follow-up treatment plan proposed by Defendants was impossible. See 23 id. Based on these factual allegations, Clancy alleged violation of the federal criminal statute 24 referenced above, 18 U.S.C. § 113, and various state law claims including malpractice, tort, and 25 breach of contract. See id. at 3, 7-8. 26

27 1 Mancuso has provided information regarding numerous other cases Clancy has filed against 1 The district court dismissed the action on December 23, 2020 for failure to complete 2 service of process and failure to prosecute. See Order Adopting R&R, ECF 15. 3 Second Action, filed January 28, 2021 (Federal) 4 A month later, on January 28, 2021, Clancy filed a second federal suit against Mancuso, 5 Bittner, and Cooper arising out of the same alleged facts. See Clancy v. Mancuso, et al., No. 21- 6 cv-00682-MMC. Large portions of the complaint in the second suit were copied verbatim from 7 the complaint in the first suit. See Compl., ECF 1. Clancy asserted claims for “Technical 8 Assault,” battery, negligence, malpractice, tort, and breach of contract. See id. 9 In the second suit, Clancy asserted the existence of diversity jurisdiction, alleging that he 10 was a citizen of New York despite his California address of record. The district court dismissed 11 the action for lack of subject matter jurisdiction, determining that Clancy had failed to offer any 12 evidence that he was a citizen of New York. See Order Granting Motions to Dismiss, ECF 38. 13 Third Action, filed August 21, 2021 (State) 14 On August 21, 2021, Clancy filed a state court action against Bittner arising out of the 15 same facts and asserting the same claims as the second suit: “Technical Assault,” battery, 16 negligence, malpractice, tort, and breach of contract. See Clancy v. Bittner, Santa Clara County 17 Superior Court No. 21CV386380. Clancy voluntarily dismissed that suit on September 30, 2021 18 after Bittner filed a demurrer. 19 Fourth Action, filed September 1, 2021 (State) 20 On September 1, 2021, Clancy filed another state court action against Cooper for assault 21 and breach of contract. See Clancy v. Cooper, Santa Clara County Superior Court No. 22 21CV386417. Cooper’s demurrer was sustained without leave to amend on November 22, 2022. 23 Fifth Action, filed September 10, 2021 (State) 24 On September 10, 2021, Clancy filed yet another state court action against Mancuso, and 25 he later added Cooper as a defendant. See Clancy v. Cooper, Santa Clara County Superior Court 26 No. 21CV386606. That suit, which is based on the identical allegations as the earlier suits, asserts 27 claims for “Technical Assault,” battery, negligence, malpractice, tort, and breach of contract. See 1 Sixth Action, filed April 18, 2022 (Federal)(Present Action) 2 Clancy filed the present federal action against Mancuso, Bittner, and Cooper on April 18, 3 2022. See Compl., ECF 1. Large portions of the complaint were copied directly from his 4 complaints in the prior actions. See id. He asserted a single claim under the federal criminal mail 5 fraud statute, 18 U.S.C. § 1341, based on Defendants’ alleged scheme to defraud him in 6 connection with the dental work. See id. Clancy voluntarily dismissed Bittner from the suit, and 7 the Court subsequently dismissed Mancuso and Cooper on the ground that 18 U.S.C. § 1341 does 8 not give rise to a private right of action. See Order Granting Motions to Dismiss, ECF 27. 9 In conjunction with his motion to dismiss the complaint in this action, Mancuso filed a 10 motion to have Clancy declared a vexatious litigant. See Mancuso’s Mot., ECF 21. As discussed 11 above, the Court issued an Order to Show Cause why such an order should not issue, and Clancy 12 failed to respond. See Order to Show Cause, ECF 28. 14 “The All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the inherent power 15 to enter pre-filing orders against vexatious litigants.” Molski v. Evergreen Dynasty Corp., 500 16 F.3d 1047, 1057 (9th Cir. 2007). “Restricting access to the courts is, however, a serious matter.” 17 Ringgold-Lockhart v. Cty. of Los Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014). “[T]he right of 18 access to the courts is a fundamental right protected by the Constitution,” and “[p]rofligate use of 19 pre-filing orders could infringe this important right.” Id. at 1061-62 (internal quotation marks and 20 citations omitted). Thus, “pre-filing orders should rarely be filed,” and only when certain 21 requirements are met. De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990). “Nevertheless, 22 ‘[f]lagrant abuse of the judicial process cannot be tolerated because it enables one person to 23 preempt the use of judicial time that properly could be used to consider the meritorious claims of 24 other litigants.’” Molski, 500 F.3d at 1057 (quoting De Long, 912 F.2d at 1148). A district court 25 therefore has discretion to restrict a litigant’s future filings by requiring leave of court. See De 26 Long, 912 F.2d at 1146-47. 27 “When district courts seek to impose pre-filing restrictions, they must: (1) give litigants 1 record for appellate review, including ‘a listing of all the cases and motions that led the district 2 court to conclude that a vexatious litigant order was needed’; (3) make substantive findings of 3 frivolousness or harassment; and (4) tailor the order narrowly so as ‘to closely fit the specific vice 4 encountered.’” Ringgold-Lockhart, 761 F.3d at 1062 (quoting De Long, 912 F.2d at 1147-48). 5 “The first and second of these requirements are procedural,” while the third and fourth 6 requirements are “substantive considerations” helpful to defining who is a vexatious litigant and 7 fashioning an appropriate remedy. Id. at 1062. 9 The Court addresses these four requirements in turn. 10 A. Notice and Opportunity to Oppose 11 The first requirement – notice and opportunity to oppose – is satisfied where the litigant is 12 given notice that the court is considering a pre-filing screening order and an opportunity to oppose 13 such order before it issues. See Ringgold-Lockhart, 761 F.3d at 1062. A hearing is not required. 14 See Ou-Young v. Roberts, No. C-13-4442-EMC, 2013 WL 6732118, at *8 (N.D. Cal. Dec. 20, 15 2013) (collecting cases). 16 Here, the Court issued and Order to Show Cause why Clancy should not be declared a 17 vexatious litigant. See Order to Show Cause, ECF 28. The Order to Show Cause was mailed to 18 Clancy at his address of record. See Certificate of Service, ECF 28-1. Clancy did not respond. 19 However, the record is clear that Clancy was given notice and an opportunity to respond. 20 B. Adequate Record for Review 21 “An adequate record for review should include a listing of all the cases and motions that 22 led the district court to conclude that a vexatious litigant order was needed.” De Long, 912 F.2d at 23 1147. “At the least, the record needs to show, in some manner, that the litigant’s activities were 24 numerous or abusive.” Id. Clancy has filed six actions against Mancuso, Bittner, and Cooper, 25 either individually or as joint defendants, in the last three years. Large portions of the complaints 26 in the later actions were copied verbatim from complaints in the earlier actions. This order 27 summarizes the six actions and their dispositions. This record is adequate to show Clancy’s 1 C. Substantive Findings 2 Before a district court issues a pre-filing review order, it must make a substantive finding 3 that the litigant’s actions have been either frivolous or harassing. See Ringgold-Lockhart, 761 4 F.3d at 1064. “To determine whether the litigation is frivolous, district courts must look at both 5 the number and content of the filings as indicia of the frivolousness of the litigant’s claims.” Id. 6 (internal quotation marks and citation omitted). “The plaintiff’s claims must not only be 7 numerous, but also be patently without merit.” Id. (internal quotation marks and citation omitted). 8 As an alternative to frivolousness, the district court may make a finding that the litigant has 9 engaged in a pattern of harassment. See id. Filing particular types of actions repetitiously is 10 insufficient; the court must discern whether the repetitive filing was motivated by an intent to 11 harass the defendant or the court. See id. “Finally, courts should consider whether other, less 12 restrictive options, are adequate to protect the court and parties.” Id. 13 The Ninth Circuit has identified five factors that provide “a helpful framework” for 14 determining whether a party is vexatious and whether a pre-filing order is warranted: “(1) the 15 litigant’s history of litigation and in particular whether it entailed vexatious, harassing or 16 duplicative lawsuits; (2) the litigant’s motive in pursuing the litigation, e.g., does the litigant have 17 an objective good faith expectation of prevailing?; (3) whether the litigant is represented by 18 counsel; (4) whether the litigant has caused needless expense to other parties or has posed an 19 unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be 20 adequate to protect the courts and other parties.” Ringgold-Lockhart, 761 F.3d at 1062 (citation 21 omitted). 22 The first factor – the history of litigation and whether it entailed vexatious, harassing, or 23 duplicative lawsuits – strongly favors a pre-filing screening order for any future suits Clancy seeks 24 to bring against Mancuso, Bittner, and Cooper arising out of dental services. Clancy has filed six 25 actions against these individuals. While his theories of liability were not the same in all the suits, 26 the factual bases for those theories was identical. Five of the six suits were dismissed, and the 27 sixth is set for hearing on a demurrer in January 2023. At the very least, these suits are 1 The second factor – the litigant’s motive in pursuing litigation – also weighs in favor of a 2 pre-filing screening order for suits against Mancuso, Bittner, and Cooper. The Court cannot 3 conceive of any legitimate basis for Clancy’s insistence in filing these repeated suits. This is 4 particularly true since Clancy failed to prosecute several of the suits or to defend against motion 5 practice. After reviewing the complaints in all six suits, and the dispositions of the five suits that 6 have been terminated, the Court can only conclude that Clancy’s purpose is to harass Mancuso, 7 Bittner, and Cooper through litigation. 8 The third factor inquires whether the plaintiff is represented by counsel. Clancy is not 9 represented. The Court therefore treads carefully when considering whether a prefiling order is 10 warranted. See De Long, 912 F.2d at 1147 (recognizing that the use of pre-filing review orders 11 against pro se plaintiffs should be approached with particular caution). Even considering Clancy’s 12 pro se status, however, the Court finds that his filings warrant imposition of a pre-filing review 13 requirement. While six lawsuits is not as egregious as some of the cases addressing vexatious 14 litigant determinations, the duplicative and harassing nature of Clancy’s filings outweigh any 15 leniency that may be given dud to his pro se status. 16 The fourth factor – whether the litigant has caused needless expense to other parties or has 17 posed an unnecessary burden on the courts and their personnel – strongly favors the contemplated 18 pre-filing screening order. Mancuso, Bittner, and Cooper have been forced to defend six separate 19 lawsuits arising from the same facts. Six different judges have had to expend time and resources 20 adjudicating Clancy’s claims. There was no merit to five of the six suits, which have been 21 dismissed, and the sixth suit is set for hearing on a demurrer in January 2023. In this Court’s 22 view, Clancy’s suits against Mancuso, Bittner, and Cooper embody the “[f]lagrant abuse of the 23 judicial process” described by the Ninth Circuit that “cannot be tolerated because it enables one 24 person to preempt the use of judicial time that properly could be used to consider the meritorious 25 claims of other litigants.” Molski, 500 F.3d at 1057 (internal quotation marks and citation 26 omitted). 27 Finally, the fifth factor asks whether other, less restrictive options, would be adequate. As 1 Court has considered whether it would be effective to impose a monetary sanction against Clancy 2 each time he commences frivolous or harassing claims against Mancuso, Bittner, and Cooper. 3 However, judicial resources would be required to determine whether each particular claim in fact 4 is frivolous or harassing. Moreover, it is not at all clear that imposition of a monetary sanction 5 would deter Clancy’s conduct, given his determination to sue these individuals. Consequently, the 6 Court finds that this factor favors imposition of the requested pre-filing review order. 7 D. Narrowly Tailored 8 A prefiling order must be narrowly tailored to the vexatious litigant’s wrongful conduct. 9 See Molski, 500 F.3d at 1061. “Narrowly tailored orders are needed to prevent infringement of the 10 litigator’s right of access to the courts.” De Long, 912 F.2d at 1148 (internal quotation marks and 11 citation omitted). The Court will address this concern by limiting the pre-filing review order in 12 this case to any future suits that Clancy seeks to bring against Mancuso, Bittner, and Cooper 13 arising out of their dental services to him. 14 E. Conclusion 15 Having considered the four requirements for issuance of a vexatious litigant order, the 16 Court finds that such an order is warranted here. Clancy was given notice that the Court was 17 considering a pre-filing review order and an opportunity to oppose such order; there is an adequate 18 record of Clancy’s prior actions against Mancuso, Bittner, and Cooper; the Court finds that 19 Clancy’s repeated suits against these individuals is frivolous and harassing; and the Court will 20 narrowly tailor its vexatious litigant order to address the specific conduct giving rise to the order. 22 Accordingly, IT IS HEREBY ORDERED that: 23 (1) Norman Clancy must obtain leave of court before filing any complaint that alleges 24 claims against Jerry Mancuso and/or Gerald Bittner and/or and Keith Cooper arising from dental 25 services they provided to Clancy. 26 (2) The Clerk of Court shall not accept from Norman Clancy any complaint alleging 27 claims against Jerry Mancuso and/or Gerald Bittner and/or and Keith Cooper arising out of dental 1 filing. The Clerk shall forward any such complaint to the general duty judge for pre-filing 2 screening. 3 (3) This order applies to complaints that Norman Clancy seeks to file in this district, 4 || complaints filed in state court and removed to this district, and complaints filed in adversary 5 || proceedings in this district’s bankruptcy court. 6 (4) This order terminates ECF 21. 7 (5) The Court deferred entry of judgment in this case pending resolution of Mancuso’s 8 motion for an order declaring Clancy to be a vexatious litigant. That motion having been decided, 9 this action is DISMISSED WITH PREJUDICE. Judgment shall be entered following entry of the 10 || present order. 11 || Dated: December 20, 2022 KO I (aces BETH LABSON FREEMAN 13 United States District Judge

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