1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MONICO J. QUIROGA, III, Case No. 1:15-cv-01697-AWI-JDP 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT DEFENDANTS’ MOTION TO 13 v. DECLARE PLAINTIFF A VEXATIOUS LITIGANT AND REQUIRE SECURITY BE 14 TIMOTHY KING, et al., DENIED 15 Defendants. ECF No. 71 16 OBJECTIONS DUE IN FOURTEEN DAYS 17 18 Plaintiff is a state prisoner appearing without counsel in this civil rights action brought 19 under 42 U.S.C. § 1983.1 This case was filed on November 9, 2015. ECF No. 1. Plaintiff’s third 20 amended complaint was dismissed, ECF No. 38, as recommended by the previously-assigned 21 magistrate judge, ECF No. 36, and judgment was entered on February 8, 2017, ECF No. 39. 22 Plaintiff appealed the dismissal of his case, and the Ninth Circuit affirmed in part, vacated in part, 23 and remanded. ECF No. 50. The dismissal of plaintiff’s failure to protect, conditions of 24 confinement, and retaliation claims was affirmed. Id. But the Ninth Circuit reversed the 25 dismissal of plaintiff’s due process claims, which were based on plaintiff’s allegations that 26 defendants placed him in administrative segregation for the purpose of causing him harm and 27
28 1 This court has federal question jurisdiction under 42 U.S.C. § 1983. 1 with an intent to “annoy and pester” him. Id. On August 16, 2018, this court directed service of 2 plaintiff’s third amended complaint on defendants. ECF No. 53. On December 5, 2018, the court 3 issued a discovery and scheduling order, setting October 15, 2019 as the deadline for dispositive 4 motions. ECF No. 64. On the eve of that deadline, defendants filed the instant motion, asking the 5 court to require that plaintiff post security as a vexatious litigant.2 ECF No. 71. Defendants’ 6 motion automatically stayed other proceedings.3 7 Legal Standard 8 “The All Writs Act, 28 U.S.C. § 1651(a), provides courts with the inherent power to enter 9 pre-filing orders against vexatious litigants.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 10 1057 (9th Cir. 2007). However, such pre-filing orders should be a “remedy of last resort.” 11 Ringgold-Lockhart v. Cty. of L.A., 761 F.3d 1057, 1062 (9th Cir. 2014). Before such an order is 12 issued, the district court must satisfy certain procedural requirements and make substantive 13 findings that the litigant’s actions are frivolous or harassing in nature and brought in bad faith. 14 De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990). Litigiousness alone is insufficient to 15 support a finding of vexatiousness. See Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990) 16 (holding that “plaintiff’s claims must not only be numerous, but also be patently without merit”). 17 Vexatious litigation is that which is filed “without reasonable or probable cause or excuse, 18 harassing, or annoying.” Microsoft Corp. v. Motorola, Inc., 696 F.3d 872, 886 (9th Cir. 2012). 19 Additionally, should the court find frivolousness or harassment, the pre-filing order must “be 20 2 Plaintiff filed a document titled “Objection to Motion Filed by Defendant” that may have been 21 intended as a response in opposition to defendants’ motion, but it is unclear what precisely plaintiff is requesting therein. See ECF No. 76 (“I Monico J. Quiroga, III, motion to object 22 defendant has been uncooperative with 2 discovery requests filed on a timely manner [please] 23 dismiss civil suit.”). Whether plaintiff has filed a proper objection to defendants’ motion is irrelevant because, as explained below, defendants’ motion does not identify a basis for the relief 24 sought. 3 Section 391.6 of California Civil Procedure Part 2, Title 3a, provides, with exception 25 inapplicable here, that “when a motion pursuant to section 391.1 [Motion for order requiring security] is filed prior to trial the litigation is stayed, and the moving defendant need not plead, 26 until 10 days after the motion shall have been denied, or if granted, until 10 days after the 27 required security has been furnished and the moving defendant given written notice thereof.” Cal. Civ. Proc. Code § 391.6. As discussed subsequently, these procedural rules have been 28 adopted by this court. 1 narrowly tailored to prevent the litigant’s abusive behaviour.” Molski, 500 F.3d at 1058. 2 To help the court determine whether a litigant is vexatious and how a pre-filing order 3 could be narrowly tailored to address vexatious behavior, the Ninth Circuit has adopted a five- 4 factor test:
5 (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 6 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 7 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 8 adequate to protect the courts and other parties. 9 Ringgold-Lockhart, 761 F.3d at 1062 (quoting Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2nd Cir. 10 1986)). 11 Local Rule 151(b)—a procedural rule—allows courts in this district to require payment of 12 a security if a plaintiff is found to be vexatious.4 Under this rule, our court has adopted “[t]he 13 provisions of Title 3A, part 2, of the California Code of Civil Procedure relating to vexatious 14 litigants . . . as a procedural rule of this Court on the basis of which the Court may order the 15 giving of a security, . . . although the power of the Court shall not be limited thereby.” L.R. 16 151(b). Although Local Rule 151(b) adopts procedural parts of the state statute, we look to 17 federal substantive law for the definition of vexatiousness and to determine whether to require a 18 litigant to post security. See Smith v. Officer Sergeant, Case No. 2:15-cv-0979 GEB DB P, 2016 19 WL 6875892, at *2 (E.D. Cal. Nov. 21, 2016) (“[T]he court looks to federal law, not state law, to 20 define a vexatious litigant.”); Cranford v. Crawford, Case No. 1:14-cv-00055-AWI-MJS (PC), 21 2016 WL 4536199, at *3 (E.D. Cal. Aug. 31, 2016) (“[T]he state statutory definition of 22 vexatiousness is not enough to find a litigant vexatious in federal court.”); Goolsby v. Gonzales, 23 Case No. 1:11-cv-00394-LJO-GSA-PC, 2014 WL 2330108, at *1-2 (E.D. Cal. May 29, 2014) 24 (“Under federal law, however, the criteria under which a litigant may be found vexatious is much 25 narrower. While Local Rule 151(b) directs the Court to look to state law for the procedure in 26
27 4 “Rule 83 of the Federal Rules of Civil Procedure allows the district court to formulate local rules to the extent they are not inconsistent with the federal rules.” Hamilton v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MONICO J. QUIROGA, III, Case No. 1:15-cv-01697-AWI-JDP 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT DEFENDANTS’ MOTION TO 13 v. DECLARE PLAINTIFF A VEXATIOUS LITIGANT AND REQUIRE SECURITY BE 14 TIMOTHY KING, et al., DENIED 15 Defendants. ECF No. 71 16 OBJECTIONS DUE IN FOURTEEN DAYS 17 18 Plaintiff is a state prisoner appearing without counsel in this civil rights action brought 19 under 42 U.S.C. § 1983.1 This case was filed on November 9, 2015. ECF No. 1. Plaintiff’s third 20 amended complaint was dismissed, ECF No. 38, as recommended by the previously-assigned 21 magistrate judge, ECF No. 36, and judgment was entered on February 8, 2017, ECF No. 39. 22 Plaintiff appealed the dismissal of his case, and the Ninth Circuit affirmed in part, vacated in part, 23 and remanded. ECF No. 50. The dismissal of plaintiff’s failure to protect, conditions of 24 confinement, and retaliation claims was affirmed. Id. But the Ninth Circuit reversed the 25 dismissal of plaintiff’s due process claims, which were based on plaintiff’s allegations that 26 defendants placed him in administrative segregation for the purpose of causing him harm and 27
28 1 This court has federal question jurisdiction under 42 U.S.C. § 1983. 1 with an intent to “annoy and pester” him. Id. On August 16, 2018, this court directed service of 2 plaintiff’s third amended complaint on defendants. ECF No. 53. On December 5, 2018, the court 3 issued a discovery and scheduling order, setting October 15, 2019 as the deadline for dispositive 4 motions. ECF No. 64. On the eve of that deadline, defendants filed the instant motion, asking the 5 court to require that plaintiff post security as a vexatious litigant.2 ECF No. 71. Defendants’ 6 motion automatically stayed other proceedings.3 7 Legal Standard 8 “The All Writs Act, 28 U.S.C. § 1651(a), provides courts with the inherent power to enter 9 pre-filing orders against vexatious litigants.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 10 1057 (9th Cir. 2007). However, such pre-filing orders should be a “remedy of last resort.” 11 Ringgold-Lockhart v. Cty. of L.A., 761 F.3d 1057, 1062 (9th Cir. 2014). Before such an order is 12 issued, the district court must satisfy certain procedural requirements and make substantive 13 findings that the litigant’s actions are frivolous or harassing in nature and brought in bad faith. 14 De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990). Litigiousness alone is insufficient to 15 support a finding of vexatiousness. See Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990) 16 (holding that “plaintiff’s claims must not only be numerous, but also be patently without merit”). 17 Vexatious litigation is that which is filed “without reasonable or probable cause or excuse, 18 harassing, or annoying.” Microsoft Corp. v. Motorola, Inc., 696 F.3d 872, 886 (9th Cir. 2012). 19 Additionally, should the court find frivolousness or harassment, the pre-filing order must “be 20 2 Plaintiff filed a document titled “Objection to Motion Filed by Defendant” that may have been 21 intended as a response in opposition to defendants’ motion, but it is unclear what precisely plaintiff is requesting therein. See ECF No. 76 (“I Monico J. Quiroga, III, motion to object 22 defendant has been uncooperative with 2 discovery requests filed on a timely manner [please] 23 dismiss civil suit.”). Whether plaintiff has filed a proper objection to defendants’ motion is irrelevant because, as explained below, defendants’ motion does not identify a basis for the relief 24 sought. 3 Section 391.6 of California Civil Procedure Part 2, Title 3a, provides, with exception 25 inapplicable here, that “when a motion pursuant to section 391.1 [Motion for order requiring security] is filed prior to trial the litigation is stayed, and the moving defendant need not plead, 26 until 10 days after the motion shall have been denied, or if granted, until 10 days after the 27 required security has been furnished and the moving defendant given written notice thereof.” Cal. Civ. Proc. Code § 391.6. As discussed subsequently, these procedural rules have been 28 adopted by this court. 1 narrowly tailored to prevent the litigant’s abusive behaviour.” Molski, 500 F.3d at 1058. 2 To help the court determine whether a litigant is vexatious and how a pre-filing order 3 could be narrowly tailored to address vexatious behavior, the Ninth Circuit has adopted a five- 4 factor test:
5 (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 6 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 7 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 8 adequate to protect the courts and other parties. 9 Ringgold-Lockhart, 761 F.3d at 1062 (quoting Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2nd Cir. 10 1986)). 11 Local Rule 151(b)—a procedural rule—allows courts in this district to require payment of 12 a security if a plaintiff is found to be vexatious.4 Under this rule, our court has adopted “[t]he 13 provisions of Title 3A, part 2, of the California Code of Civil Procedure relating to vexatious 14 litigants . . . as a procedural rule of this Court on the basis of which the Court may order the 15 giving of a security, . . . although the power of the Court shall not be limited thereby.” L.R. 16 151(b). Although Local Rule 151(b) adopts procedural parts of the state statute, we look to 17 federal substantive law for the definition of vexatiousness and to determine whether to require a 18 litigant to post security. See Smith v. Officer Sergeant, Case No. 2:15-cv-0979 GEB DB P, 2016 19 WL 6875892, at *2 (E.D. Cal. Nov. 21, 2016) (“[T]he court looks to federal law, not state law, to 20 define a vexatious litigant.”); Cranford v. Crawford, Case No. 1:14-cv-00055-AWI-MJS (PC), 21 2016 WL 4536199, at *3 (E.D. Cal. Aug. 31, 2016) (“[T]he state statutory definition of 22 vexatiousness is not enough to find a litigant vexatious in federal court.”); Goolsby v. Gonzales, 23 Case No. 1:11-cv-00394-LJO-GSA-PC, 2014 WL 2330108, at *1-2 (E.D. Cal. May 29, 2014) 24 (“Under federal law, however, the criteria under which a litigant may be found vexatious is much 25 narrower. While Local Rule 151(b) directs the Court to look to state law for the procedure in 26
27 4 “Rule 83 of the Federal Rules of Civil Procedure allows the district court to formulate local rules to the extent they are not inconsistent with the federal rules.” Hamilton v. Keystone 28 Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976). 1 which a litigant may be ordered to furnish security, this Court looks to federal law for the 2 definition of vexatiousness, and under federal law, the standard for declaring a litigant vexatious 3 is more stringent. . . . [T]he mere fact that a plaintiff has had numerous suits dismissed against 4 him is an insufficient ground upon which to make a finding of vexatiousness.”); Stringham v. 5 Bick, Case No. CIV S-09-0286 MCE DAD P, 2011 WL 773442, at *3 (E.D. Cal. Feb. 28, 2011) 6 (reasoning that although plaintiff had filed more than five unsuccessful lawsuits in the preceding 7 seven years, the court could not find that the filings were so “numerous or abusive” or 8 “inordinate” to warrant a vexatiousness determination). 9 Discussion 10 Here, defendants rely upon California Civil Procedure Code § 391.1 in arguing that 11 plaintiff is vexatious, noting the number of lawsuits that he has filed. This showing, however, is 12 insufficient under federal law5; this court may not rely upon the state standard. See Tyler v. 13 Knowles, 481 F. App’x 355, 356 (9th Cir. 2012) (vacating order of district court that had relied on 14 California substantive law in determining vexatiousness). Defendants do not address plaintiff’s 15 motive in pursuing litigation, his unrepresented status, whether he has caused needless expense to 16 the parties, or whether sanctions would be adequate. Defendants also attempt to have the court 17 consider litigation that was filed subsequent to this action, even though the court’s inquiry is 18 limited to plaintiff’s litigation history. See Aref v. Marder, No. 93-55470, 1994 U.S. App. LEXIS 19 233, at *1 (9th Cir. Jan. 6, 1994) (“A district court has the power to enjoin litigants who have 20 abusive and lengthy histories of litigation.”). Defendants list 22 cases and contend that plaintiff 21 filed three civil suits in the seven years preceding this one. See ECF No. 71 at 11. But only two 22 of the three oldest cases listed6 were filed prior to the instant litigation.7 In any case, listing two 23 prior instances in which plaintiff failed to state a claim before filing this suit, without more, does 24 5 Defendants’ motion may also fail to meet the state standard. See Cal. Civ. Proc. Code 25 § 391(b)(1) (A person who, “in the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in small claims 26 court that have been . . . finally determined adversely to the person” is a vexatious litigant.). 27 6 Quiroga v. Aguilara, Case No. 1:15-cv-01202-LJO-MJS; Quiroga v. Food Service, Case No. 1:15-cv-01203-DLB; and Quiroga v. Hasta, Case No. 1:15-cv-01871-LJO-JLT. 28 7 Hasta, Case No. 1:15-cv-01871-LJO-JLT, was filed December 15, 2015. wOoOe 4:20 EY EOP VR MVOC PO POO ee Oy VI
1 | not satisfy the federal standard. 2 | Findings and Recommendations 3 Defendants do not address the federal standard for vexatiousness and have failed to 4 | demonstrate that plaintiff’s actions were “patently without merit” or filed with the intent to 5 | harass. Molski, 500 F.3d at 1059-60. Therefore, the court cannot find, based on the record before 6 | it, that plaintiff is a vexatious litigant under federal law, and defendants’ motion to declare 7 | plaintiff a vexatious litigant and require security should be denied. ECF No. 71. 8 These findings and recommendations are submitted to the U.S. district judge presiding 9 | over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the 10 | service of the findings and recommendations, the parties may file written objections to the 11 | findings and recommendations with the court and serve a copy on all parties. That document 12 | must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 13 | presiding district judge will then review the findings and recommendations under 28 U.S.C. 14 § 636(b)(1)(C). 15 16 | TPIS SO ORDERED. : N prssany — Dated: _ June 26, 2020 18 UNIT#D STATES MAGISTRATE JUDGE 19 20 | No. 204. 21 22 23 24 25 26 27 28