Ng v. Bennett

• Court: District Court, W.D. Washington
• Decided: November 21, 2024
• Docket: 2:24-cv-00717
• Status: Unknown

Opinion

1 2 3

4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 BENJAMIN K. NG, CASE NO. 2:24-cv-00717-JHC 8

ORDER DENYING MOTIONS & NOTICE 9 Petitioner, OF INTENT TO ENTER BAR ORDER AGAINST VEXATIOUS LITIGANT & 10 v. ORDER TO SHOW CAUSE 11 JASON BENNETT,

12 Respondent. 13

14 Before the Court is Petitioner’s seventh Motion for Relief from Judgment. Dkt. # 50; see 15 Dkt. ## 19, 29, 36, 40, 44, 47 (previous motions for relief from judgment). For the reasons 16 below, the Court DENIES the motion, DENIES additional previous motions, and ORDERS 17 Petitioner to SHOW CAUSE why a vexatious litigant bar order should not be issued. 18 The Judgment 19 Nearly four decades after the Supreme Court of Washington affirmed Petitioner’s 20 conviction, he filed this action seeking federal habeas relief on that conviction and sentence. 21 Dkt. # 6 at 2. On August 14, 2024, the Court adopted the Report and Recommendation (R&R) 22 of Magistrate Judge David W. Christel (Dkt. # 6) and dismissed this matter with prejudice as 23 24 1 time-barred. Dkt. # 14. The Court entered Judgment on this ruling. Dkt. # 15. And 2 presumably, all of Petitioner’s motions for relief from judgment relate to that judgment. 3 The Present Motion

4 As before, the present motion is a form fill-in-the-blank style motion that patently lacks 5 merit. Dkt. # 50. It argues that the Court failed to conduct de novo review of a “Motion for 6 Request for Records.” Id. But Petitioner does not specify any ruling on such a motion. To the 7 extent Petitioner is referring to his Objections to the R&R, Dkt. # 11, the Court did conduct a de 8 novo review, Dkt. # 20. Nor does Petitioner explain how any such records would cause the 9 Court to question the clear time bar. The motion provides no basis to support its assertion that 10 the judgment is void under Federal Rule of Civil Procedure 60(b)(4). 11 The Six Previous Motions 12 Previously, Petitioner filed six form fill-in-the-blank style motions that similarly lack

13 merit. 14 The Court construed the motion at Dkt. # 19 as arguing that the Court failed to conduct a 15 de novo review in connection with the R&R. But the Court did conduct a de novo review, and 16 thus denied that motion. Dkt. # 20. 17 The Court struck the motions at Dkt. ## 29, 36, 40, but upon further review, finds it more 18 appropriate to deny them instead. So, the Court sua sponte reconsiders those motions, vacates 19 the order at Dkt. # 42, and denies the motions for the following reasons: 20 • The motion at Dkt. # 29 argues that the Court “failed to conduct de novo review 21 of MOTION FOR EVIDENTIARY HEARING.” But the Court did review this 22 issue de novo. The motion provides no basis to support its assertion that the

23 judgment is void under Rule 60(b)(4). 24 1 • The motion at Dkt. # 36 argues that the Court “failed to conduct de novo review 2 of the “OBJECTION, Recharacterizing a 28 U.S.C. § 2241 as a 28 U.S.C. § 3 2254.” But the Court did review de novo the issues raised in Petitioner’s

4 objections. The motion provides no basis to support its assertion that the 5 judgment is void under Rule 60(b)(4). 6 • The motion at Dkt. # 40 argues that the Court asserted “a procedural defense not 7 made by the respondent.” Petitioner raised this issue in his Objections. Dkt. # 11. 8 This argument is inapt. The Court declined to order service of the petition on the 9 Respondent. Dkt. ## 6, 14. So, Respondent did not assert any defenses. 10 Petitioner presents no authority to support the assertion that the Court could not 11 raise the time bar issue—and the petition is clearly time barred. The motion 12 provides no basis to support its assertion that the judgment is void under Rule

13 60(b)(4). 14 Likewise, the Court sua sponte reconsiders the motions at Dkt. ## 44 and 47, vacates the 15 orders at Dkt. ## 45 and 49, and denies those motions for the following reasons: 16 • The motion at Dkt. # 44 seems to relate to Petitioner’s request for an evidentiary 17 hearing, which was properly rejected. The motion provides no basis to support its 18 assertion that the judgment is void under Rule 60(b)(4). 19 • The motion at Dkt. # 47 argues that the Court failed “to conduct a de novo review 20 of Petitioner’s Motion Order Response.” But Petitioner does not specify any 21 ruling on such a motion. Nor does Petitioner explain how any such response by 22 Respondent would cause the Court to question the clear time bar. The motion

23 provides no basis to support its assertion that the judgment is void under Rule 24 60(b)(4). 1 Vexatious Litigant 2 In its Order at Dkt. # 49 denying the sixth motion for relief from judgment, the Court 3 warned that if Petitioner filed another such motion, the Court may enter a notice of intent to enter

4 a bar order. And Petitioner filed another such motion. Dkt. # 50. 5 The All Writs Acts, 28 U.S.C. § 1651(a), provides district courts with the inherent power 6 to enter pre-filing orders against vexatious litigants. Molski v. Evergreen Dynasty Corp., 500 7 F.3d 1047, 1057 (9th Cir. 2007) (“Under the power of 28 U.S.C. § 1651(a), enjoining litigants 8 with abusive and lengthy histories is one such form of restriction that the district court may 9 take.”). Although such orders should be used sparingly, “[f]lagrant abuse of the judicial process 10 cannot be tolerated because it enables one person to preempt the use of judicial time that 11 properly could be used to consider the meritorious claims of other litigants.” De Long v. 12 Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990).

13 In the Ninth Circuit, a vexatious litigant order may be entered when (1) the litigant has 14 received notice and a chance to be heard before the order is entered, (2) there is an adequate 15 record for review, (3) the litigant’s actions are frivolous or harassing, and (4) the vexatious 16 litigant order is “narrowly tailored to closely fit the specific vice encountered.” Id. at 1147–48; 17 Molski, 500 F.3d at 1057. 18 Here, in a relatively short period of time, Petitioner has filed seven motions for relief 19 from judgment, all of which patently lack any merit. All of the motions are form, fill-in-the- 20 blank style motions. They are borderline frivolous and have consumed judicial time that could 21 have been used to consider the meritorious claims of other litigants. 22 The Court now ORDERS Petitioner to SHOW CAUSE why a vexatious litigant bar order

23 should not be issued. Such a bar order would the DIRECT the Clerk to strike any new motions 24 by Petitioner in this matter as this case is now closed. Petitioner’s Response is due no later than 1 21 days from the date of this Order and may not exceed 10 pages. No attachments are permitted. 2 || Failure to file a response will result in the issuance of the bar order. 3 Dated this 21st day of November, 2024.

5 John H. Chun United States District Judge 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER DENYING MOTIONS & NOTICE OF INTENT TO ENTER BAR ORDER AGAINST VEXATIOUS