United States v. Danny Fabricant

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 26 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50130

Plaintiff-Appellee, D.C. No. 2:03-cr-01257-RSWL-1

v.

DANNY FABRICANT, AKA Daniel MEMORANDUM* Joseph Fabricant, AKA Danny Joseph Fabricant,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Ronald S.W. Lew, District Judge, Presiding

Submitted November 18, 2019**

Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.

Danny Fabricant appeals pro se from the district court’s order denying his

motion to vacate the order declaring him a vexatious litigant and imposing a pre-

filing restriction on him. We have jurisdiction under 28 U.S.C. § 1291, and we

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). affirm.

The district court treated Fabricant’s motion as arising under Federal Rule of

Civil Procedure 60(b)(5), which Fabricant does not challenge on appeal. We

review the district court’s denial of a Rule 60(b)(5) motion for abuse of discretion.

See SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001). Fabricant argues that the

district court abused its discretion in denying his motion because the vexatious

litigant/pre-filing order is a “scarlet letter” that is no longer warranted, prejudices

him in civil litigation, and prevents him from challenging his conviction and

sentence. The district court did not abuse its discretion because Fabricant has not

demonstrated any significant change in either factual conditions or the law, nor has

he demonstrated that any changed circumstances have made his compliance with

the order substantially more onerous, unworkable because of unforeseen obstacles,

detrimental to the public interest, or legally impermissible. See id. at 942

(discussing conditions under which a district court may modify a court order under

Rule 60(b)(5)).

AFFIRMED.

2 19-50130