1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLAN FLETCHER, Case No. 1:22-cv-00249-AWI-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS

REGARDING DEFENDANTS’ MOTION

13 v. (1) TO DECLARE PLAINTIFF A

VEXATIOUS LITIGANT; (2) FOR AN

14 CLENDENIN, et al., ORDER FOR SECURITY; (3) FOR ENTRY

OF A PREFILING ORDER; AND (4)

15 Defendants. REQUEST FOR STAY 16 (ECF No. 25) 17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff Allan Fletcher (“Plaintiff”) is a civil detainee proceeding pro se and in forma 20 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Individuals detained pursuant to 21 the California Welfare and Institutions Code § 6600 et seq. are considered civil detainees and are 22 not prisoners within the meaning of the Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 23 1136, 1140 (9th Cir. 2000). This action proceeds on Plaintiff’s first amended complaint against 24 Defendants Clendenin and Price for failure to treat Plaintiff under the Fourteenth Amendment 25 Due Process Clause due to their official policy. 26 I. Defendants’ Motion to Declare Plaintiff a Vexatious Litigant 27 On November 17, 2022, Defendants filed a motion to declare Plaintiff a vexatious litigant. 28 (ECF No. 25.) Following the expiration of the opposition deadline, Defendants filed a reply on 1 January 6, 2023. (ECF No. 26.) In response to the Court’s order to show cause, Plaintiff timely 2 filed an opposition on February 6, 2023. (ECF Nos. 27, 28.) Defendants filed a supplemental 3 reply on February 21, 2023. (ECF No. 30.) The motion is deemed submitted. Local Rule 230(l). 4 Defendants move, pursuant to Local Rule 151(b), for: (1) an order declaring Plaintiff a 5 vexatious litigant; (2) an order requiring Plaintiff to post security in the amount of $5,000 before 6 further litigating this case; (3) a prefiling order prohibiting Plaintiff from filing any new litigation 7 in the courts of this State in propia persona without first obtaining leave of the presiding judge 8 where the action is commenced; and (4) an order staying this action until the motion is ruled on. 9 (ECF No. 25.) Defendants state that Local Rule 151(b) expressly adopts the provisions of the 10 California Code of Civil Procedure on the issue of vexatious litigants and sets forth California’s 11 vexatious litigant statutes at sections 391–391.6. Defendants contend that Plaintiff is a vexatious 12 litigant under Code of Civil Procedure section 391.1 because he has commenced, prosecuted, and 13 maintained at least nine civil actions in state and federal court that were finally determined 14 against him in the last seven years. In addition, Plaintiff is unlikely to prevail in the instant case 15 because it is barred by the doctrine of res judicata, and therefore he should be required to post 16 security. Finally, a prefiling order is appropriate to deter Plaintiff’s pattern of unmeritorious 17 litigation, and the Court should stay the case until the motion is denied or, if the motion is 18 granted, until the required security has been furnished. (Id.) 19 In opposition, Plaintiff argues that the Court’s screening order, adopted in full by the then- 20 assigned District Judge, precludes the filing of Defendants’ motion because it found that Plaintiff 21 stated cognizable claims. (ECF No. 28.) Plaintiff further contends that he is likely to succeed on 22 the merits, the relief sought in this action will serve the public interest, and granting the relief 23 requested by Defendants will broadly infringe on Plaintiff’s access to the Court in matters 24 unrelated to state custody or process and would arguably be unconstitutional. Plaintiff further 25 argues that in all the prior and pending cases cited as examples of his vexatiousness, he has done 26 his best to follow court rules and act appropriately. (Id.) 27 In reply, Defendants argue that their motion is not unconstitutional, the Court’s screening 28 order does not serve as a defense against Defendants’ motion, Plaintiff has misrepresented the 1 outcome of at least one of his prior lawsuits and otherwise fails to dispute that the prior adverse 2 decisions qualify him as a vexatious litigant, and Plaintiff has failed to address Defendants’ 3 evidence establishing that they are likely to prevail. (ECF No. 30.) 4 II. Legal Standards 5 “District courts have the inherent power to file restrictive pre-filing orders against 6 vexatious litigants with abusive and lengthy histories of litigation.” Weissman v. Quail Lodge, 7 Inc., 179 F.3d 1194, 1197 (9th Cir. 1999) (citing De Long v. Hennessey, 912 F.2d 1144, 1147 (9th 8 Cir. 1990)). The Eastern District of California has adopted the California Code of Civil 9 Procedure as it relates to vexatious litigants, without limiting the power of the Court. Local Rule 10 151(b). Under the California Code of Civil Procedure, “a defendant may move the court, upon 11 notice and hearing, for an order requiring the plaintiff to furnish security” subject to a showing 12 “that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he or she 13 will prevail in the litigation against the moving defendant.” Cal. Code Civ. Proc. § 391.1. 14 While California law provides the procedure for declaring a litigant vexatious, the federal 15 substantive law governs the determination, as the power is derived from the All Writs Act, 28 16 U.S.C. § 1651(a). Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007). 17 Under federal law, pre-filing orders are considered an extreme remedy, and should be used 18 cautiously to avoid prejudice to a litigant’s due process right of access to the courts. Id. Four 19 requirements must be met before declaring a litigant vexatious and entering a pre-filing order: 20 (1) provide the litigant notice and a chance to be heard, (2) create an adequate record for review, 21 (3) make substantive findings as to the frivolous or harassing nature of the litigant’s actions, and 22 (4) ensure any pre-filing order is “narrowly tailored to closely fit the specific vice encountered.” 23 De Long, 912 F.2d at 1147–48. 24 The Ninth Circuit has held that the court must make a specific finding of “bad faith or 25 conduct tantamount to bad faith” prior to imposing pre-filing sanctions against a vexatious 26 litigant. Fink v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001). “To make such a finding, the district 27 court needs to look at both the number and content of the filings as indicia of the frivolousness of 28 the litigant’s claims.” De Long, 912 F.2d at 1148 (citations and internal quotation marks 1 omitted). In other words, “[a]n injunction cannot issue merely upon a showing of litigiousness. 2 The plaintiff’s claims must not only be numerous, but also be patently without merit.” Moy v. 3 United States, 906 F.2d 467, 470 (9th Cir. 1990). 4 III. Discussion 5 To the extent Plaintiff argues that California’s vexatious litigant statute itself is 6 unconstitutional, the Ninth Circuit has found that it is not vague or overbroad, because it gives 7 fair notice to those who might violate the statute and there is no constitutional right to file 8 frivolous litigation. Wolfe v. George, 486 F.3d 1120, 1125 (9th Cir. 2007). Plaintiff’s argument 9 that the imposition of a pre-filing order or a security requirement would hinder his constitutional 10 rights is therefore unavailing. Under the statute, a vexatious litigant may nevertheless file 11 potentially meritorious claims that are not intended solely to harass or delay. Id. 12 As to whether imposition of a pre-filing order or a security requirement is appropriate 13 here, Defendants argue that Plaintiff “qualifies as a vexatious litigant under California’s statutory 14 scheme.” (ECF No. 25-1, p. 17.) However, Defendants do not argue that Plaintiff meets the 15 federal standard for a vexatious litigant. While Defendants generally characterize Plaintiff’s 16 filings and complaints as unmeritorious and frivolous, the crux of the motion focuses on the 17 number of unsuccessful lawsuits filed. But simply demonstrating that Plaintiff has filed and lost a 18 certain number of lawsuits is insufficient for the Court to make the specific finding of “bad faith 19 or conduct tantamount to bad faith” required under federal law. Fink, 239 F.3d at 994. 20 Defendants’ argument that Plaintiff is unlikely to prevail due to the doctrine of res judicata, while 21 potentially dispositive of the instant action, is insufficient for the Court to make the specific 22 finding of bad faith required to grant the relief requested in Defendants’ motion. 23 Based on the information currently before the Court, Defendants have failed to meet their 24 burden to demonstrate that Plaintiff is a vexatious litigant under the applicable federal legal 25 standards. As Defendants have failed to make a threshold showing that Plaintiff is a vexatious 26 litigant under federal law, the Court declines to address Defendants’ argument that Plaintiff is not 27 likely to succeed on the merits in this case.1

28 1 Defendants are not precluded from raising the issue of res judicata in a later motion to dismiss. 1 With respect to Defendants’ request to stay this action, the Court finds a stay unnecessary. 2 At this time, there are no pending deadlines, and the Court will issue an order setting any new 3 deadlines following the resolution of Defendants’ motion. 4 IV. Conclusion and Recommendation 5 Based on the foregoing, it is HEREBY RECOMMENDED that Defendants’ motion to 6 declare Plaintiff a vexatious litigant, (ECF No. 25), be DENIED, without prejudice to refiling a 7 motion to declare Plaintiff a vexatious litigant that is consistent with the legal standards discussed 8 above. 9 These Findings and Recommendations will be submitted to the United States District 10 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 11 being served with these Findings and Recommendations, the parties may file written objections 12 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 13 and Recommendations.” The parties are advised that the failure to file objections within the 14 specified time may result in the waiver of the “right to challenge the magistrate’s factual 15 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 16 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17

IT IS SO ORDERED.

18

19 Dated: June 27, 2023 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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