Howard v. Gradtillo et al
Filing
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ORDER ADOPTING in Part 57 FINDINGS AND RECOMMENDATIONS, signed by Chief Judge Anthony W. Ishii on 12/23/2011. Defendants' 53 Motion for an Order Declaring Plaintiff a Vexatious Litigant is DENIED; Defendants' 55 Motion to Stay Discovery is DENIED. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CLARENCE HOWARD,
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CASE NO. 1:05-cv-00906-AWI-GBC (PC)
Plaintiff,
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ORDER ADOPTING IN PART FINDINGS
AND RECOMMENDATIONS
v.
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GRADTILLO, et al.,
(Doc. 57)
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Defendants.
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______________________________________/
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I.
Procedural History
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Plaintiff Clarence Howard (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s
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amended complaint, filed June 22, 2009, against Defendants Bennett, Avila and Jones (“Defendants”)
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for excessive force on April 3, 2003, in violation of the Eighth Amendment. (Doc. 22, First Amd.
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Comp.; Doc. 27, a Cog Claim Ord.). The matter was referred to a United States Magistrate Judge
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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On May 18, 2011, Defendants filed a motion
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to declare Plaintiff a vexatious litigant and for the Court to require Plaintiff to post security. (Doc. 53).
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On September 8, 2011, the Magistrate Judge filed a Findings and Recommendations herein which was
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served on the parties which contained notice that any objections to the Findings and Recommendations
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were to be filed within thirty days. (Doc. 57). Defendants filed objections to the findings and
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recommendations on November 7, 2011. (Doc. 65).
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II.
Conclusion and Order
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de
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novo review of this case. Defendants’ sole objection regards the findings and recommendations’
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reference to Morton v. Wagner, 156 Cal.App.4th 963, 970-71 (Cal. App. 6 Dist. 2007) which applies
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§ 391(b)(3) when Defendants are seeking declaration of Plaintiff as a vexatious litigant under the
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procedure provided in § 391(b)(1). Doc. 65. However, Defendants do not challenge the findings and
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recommendations’ application of Fink v. Shemtov, 180 Cal.App.4th 1160, 1172, which found that
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Defendants’ proffered appellate cases would not count towards concluding that the Plaintiff is vexatious
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under § 391(b)(1). Nor do Defendants' object to the findings and recommendations with regard to its
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application of substantive federal law precluding a finding that Plaintiff is a vexatious litigant. Doc. 65.
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The Court finds that the findings and recommendations are correct in its application of federal
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substantive law that the focus of a vexatiousness inquiry is on the number of suits that were frivolous
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or harassing in nature rather than on the number of suits that were simply adversely decided. See De
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Long v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir. 1990). As such, the Court finds that the ultimate
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recommendation denying Defendants’ motion for declaring plaintiff a vexatious litigant is correct and,
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therefore, the Court will adopt the findings and recommendations IN PART to the extent that it will not
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adopt the additional argument citing Morton v. Wagner, 156 Cal.App.4th 963, 970-71 (Cal. App. 6 Dist.
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2007) and its application of § 391(b)(3).
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Accordingly, IT IS HEREBY ORDERED that:
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1.
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described above (Doc. 57);
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The Findings and Recommendations filed on October 19, 2011, is adopted IN PART as
Defendants’ motion for an order declaring plaintiff a vexatious litigant, filed May 18,
2011, is denied (Doc. 53); and
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Defendants’ motion to stay discovery, filed June 28, 2011, is denied (Doc. 55).
IT IS SO ORDERED.
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Dated:
0m8i78
December 23, 2011
CHIEF UNITED STATES DISTRICT JUDGE
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