1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 VADIM STANLEY MIESEGAES, Case No. CV 18-08498 CJC (RAO) 13 Plaintiff, 14 v. ORDER ACCEPTING FINDINGS,

CONCLUSIONS, AND

15 DEPARTMENT OF STATE RECOMMENDATION OF UNITED HOSPITALS - ATASCADERO, et al., STATES MAGISTRATE JUDGE 16 Defendants. 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed Defendant Stirling 19 Price’s (“Defendant”) Motion to Declare Plaintiff Vexatious and Require the 20 Posting of Security (“Motion”), the Second Interim Report and Recommendation of 21 the United States Magistrate Judge (“Second Interim Report”), Defendant’s 22 Objections, and all other records and files herein. Further, the Court has made a de 23 novo determination of those portions of the Second Interim Report to which 24 objections have been made. Defendant advances three objections. 25 Defendant’s first objection is a request for leave to submit additional records 26 from the San Luis Obispo Superior Court for a case that had already been identified 27 by Defendant in its Motion. Objections at 2. The Court finds it unnecessary for 28 1 Defendant to submit these additional records. The magistrate already considered 2 this lawsuit in determining that the number of lawsuits filed by Plaintiff is not so 3 numerous as to warrant vexatious litigant status. And even if this case alleged 4 claims that overlapped with claims in other lawsuits, this would still not warrant a 5 finding that Plaintiff’s conduct evidences an intent to harass the courts or 6 defendants. 7 Second, Defendant objects that the Second Interim Report focuses only on 8 claims that have survived screening instead of analyzing claims that have been 9 rejected and are plainly duplicative. Objections at 2-3. Defendant argues that other 10 federal courts have found nine cases over seven years to be sufficient for a pre- 11 filing order. Id. at 3. The Court overrules this objection. The federal procedure for 12 finding a litigant vexatious does not require a court to examine every claim of every 13 lawsuit filed by a litigant. Rather, the Court must determine whether the plaintiff’s 14 litigation history demonstrates an inordinate number of complaints and that the 15 claims are patently without merit. See Ringgold-Lockhart v. Cty. of Los Angeles, 16 761 F.3d 1057, 1064 (9th Cir. 2014). Here, the magistrate determined that the 17 number of lawsuits filed by Plaintiff was not inordinate and that his claims overall 18 have not been patently without merit as some have survived screening. This was 19 sufficient to support the finding that Plaintiff’s litigation history has not been 20 vexatious. The case cited by Defendant is distinguishable because the plaintiff 21 there had filed 50 separate lawsuits against prison officials in the past 13 years and 22 36 cases in the past five years. See Hammler v. Alvarez, Case No.: 18-cv-0326- 23 AJB-WVG, 2019 WL 3798677, at *2 (S.D. Cal. Aug. 13, 2019) (finding Plaintiff 24 had undeniably filed numerous lawsuits). Only after the court found that Plaintiff 25 filed numerous lawsuits did the court evaluate nine of those lawsuits to determine 26 whether those lawsuits were frivolous and harassing. Id. at *2-3. Defendant also 27 argues that the Court overlooked the fact that Plaintiff has been able to use the 28 screening process in federal court as a trial and error process. Objections at 3. 1 || However, Defendant cites no case law to support his position that Plaintiff's filing 2 || of amended complaints in response to the Court’s screening orders amounts to 3 || vexatious behavior. 4 Third, Defendant argues that Plaintiff has no reasonable probability of 5 || succeeding on the merits. Objections at 4. As the magistrate provided, this Court is 6 || not required to follow California state procedures on vexatious litigants. The Court 7 || exercises its discretion in relying on only the federal procedures for finding a 8 || litigant vexatious. Thus, the Court need not consider whether Plaintiff has a 9 || reasonable probability of succeeding on the merits of this case in denying 10 || Defendant’s Motion. The Court notes that it adopted the magistrate’s 11 || recommendation that some of Plaintiff's claims survive screening and nothing 12 || precludes Defendant from moving to dismiss any surviving claims. 13 Accordingly, the Court is not persuaded by Defendant’s objections and 14 || overrules them. The Court does not need to review any documents from Plaintiff to 15 || rebut Defendant’s arguments. Therefore, Plaintiff's Ex Parte Application for leave 16 || to file supplemental information in support of his opposition under seal, Dkt. No. 17 || 54, is DENIED as MOOT. 18 The Court hereby accepts and adopts the Magistrate Judge’s findings, 19 || conclusions, and recommendations. 20 IT IS ORDERED that: 21 (1) Defendant’s Motion is Denied; 22 (2) Plaintiff's Ex Parte Application is Denied: and 23 (3) Defendant shall file a response to the First Amended Complaint within 24 14 days of the date of this order. 25 Ko Le 96 | DATED: March 26, 2020 lel S □□

CORMAC J. GARNEY

27 UNTO fmm ramen JUDGE 28