Bryant v. Knight et al
Filing
35
ORDER Adopting Findings and Recommendations in Part 28 ; ORDER Granting in Part and Denying in Part Defendants' Motion to Dismiss for Failure to State a Claim 14 ; ORDER Denying Defendants' Motion to Declare Plaintiff Vexatious Litigant 15 , signed by Judge Oliver W. Wanger on 5/2/11. (Verduzco, M)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
JAMES E. BRYANT,
10
1:09-CV-01367-OWW-DLB PC
Plaintiff,
11
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS IN PART (DOC.
28)
v.
12
J. KNIGHT, et al.,
13
Defendants.
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS FOR FAILURE TO
STATE A CLAIM (DOC. 14)
14
ORDER DENYING DEFENDANTS’ MOTION
TO DECLARE PLAINTIFF VEXATIOUS
/ LITIGANT (DOC. 15)
15
16
17
Plaintiff James E. Bryant (“Plaintiff”) is a California state
18
prisoner proceeding pro se in this civil rights action pursuant to
19
42 U.S.C. § 1983.
20
Knight and Davis for violation of the First and Eighth Amendment.
21
On March 5, 2010, Defendants filed a motion to dismiss for failure
22
to state a claim and a motion to declare Plaintiff a vexatious
23
litigant.
24
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
25
Rule 302.
This action is proceeding against Defendants J.
Docs. 14, 15. The matter was referred to a United States
26
On March 4, 2011, the Magistrate Judge filed a Findings and
27
Recommendations which was served on the parties and which contained
28
notice to the parties that any objection to the Findings and
1
1
Recommendations was to be filed within fourteen days.
2
receiving extensions of time, Defendants filed an Objection to the
3
Findings and Recommendations on April 4, 2011.
4
After
Doc. 32.
In accordance with the provisions of 28 U.S.C. § 636(b)(1),
5
this Court has conducted a de novo review of this case.
6
carefully reviewed the entire file, the Court finds the Findings
7
and Recommendations to be supported by the record and by proper
8
analysis, with some modification. The Court provides the following
9
additional
10
objections.
11
A.
12
Defendants contend that Plaintiff fails to state a claim
13
against Defendant Davis for excessive force for the November 24,
14
2007 incident.
15
Findings and Recommendations summarized the November 24, 2007
16
incident as follows:
17
18
19
20
21
22
23
24
25
26
analysis
and
modifications
to
address
Having
Defendants’
Failure To State A Claim
Defs.’ Mot. Dismiss, 9:12-10:23, Doc. 14-1.
The
On November 24, 2007, Plaintiff and another inmate were
conversing.
Defendant Davis, who was in the control
tower, ordered Plaintiff to enter the chow hall for the
evening meal.
Plaintiff contends that it is not
mandatory unless an inmate wants to participate in the
meal.
Plaintiff refused to enter the chow hall.
Defendant Davis then ran across the yard and caught
Plaintiff in the area near Building Four.
Defendant
Davis then slammed Plaintiff up against the wall face
first, stating that if Plaintiff was ordered to stop, he
should stop. Plaintiff was then handcuffed and escorted
to the program office.
Defendant Davis then roughly
threw him into the holding cage for about an hour, then
returned and sent Plaintiff back to his building and
cell.
Findings and Recommendations 4:11-19, Doc. 28.
The Court finds the use of force in this incident to be de
27
minimis.
Handcuffing Plaintiff and slamming him up face-first
28
against a wall after Plaintiff’s alleged failure to comply with
2
1
Defendant Davis’s order does not rise to the level of an Eighth
2
Amendment violation.
3
Cir. 2002) (Eighth Amendment excessive force standard examines de
4
minimis uses of force).
See Oliver v. Keller, 289 F.3d 623, 628 (9th
5
Plaintiff states a claim as to all other claims, namely: (1)
6
Defendant Knight putting Plaintiff in a headlock and sadistically
7
and maliciously choking Plaintiff; (2) Defendant Davis refusing to
8
allow Plaintiff to come to work in retaliation for Plaintiff filing
9
an inmate grievance against him; and (3) Defendants Davis and
10
Knight putting up another inmate to attack Plaintiff in retaliation
11
for Plaintiff filing an inmate grievance against them.
12
B.
Dismissal As Sanction
13
Defendants contend that they move for dismissal pursuant to
14
Rule 41(b) of the Federal Rules of Civil Procedure.
15
Objections 8:11-17.
16
Rule 11 of the Rules of Civil Procedure by lying to the Court as to
17
the number of cases he previously filed, and that the Court has
18
inherent power to dismiss for violation of the Rules of Civil
19
Procedure pursuant to Rule 41(b).
20
Defs.’
Defendants contend that Plaintiff violated
Representations to the Court are governed by Rule 11(b).
21
Dismissal of an action for violation of Rule 11 is effectively a
22
sanction, and such sanctions are specifically governed by 11(c)(2).
23
The Court is disinclined to apply a generalized inherent authority
24
when a more specific rule is applicable. See Bloate v. United
25
States, 130 S. Ct. 1345, 1354 (2010) (“‘General language of a
26
statutory provision, although broad enough to include it, will not
27
be held to apply to a matter specifically dealt with in another
28
part of the same enactment’”) (quoting D. Ginsberg & Sons, Inc. v.
3
1
Popkin, 285 U.S. 204, 208 (1932)).
Defendants cite to Warren v.
2
Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994) (per curiam), as
3
support for their arguments.
4
case considered whether a district court erred in not applying Rule
5
11 to litigants proceeding in forma pauperis.
6
Rule 11, the Magistrate Judge found that Defendants did not comply
7
with the requirements of Rule 11(c)(2).
8
11(c)(2) (motion for sanctions must “not be filed or be presented
9
to the court if the challenged paper, claim, defense, contention,
10
or denial is withdrawn or appropriately corrected within 21 days
11
after service or within another time the court sets.”); Radcliffe
12
v. Rainbow Constr. Co., 254 F.3d 772, 788-89 (9th Cir. 2001)
13
(citing former Fed. R. Civ. P. 11(c)(1)(A), now Fed. R. Civ. P.
14
11(c)(2)).
15
violation of Rule 11 is appropriate.
Defs.’ Objections 11:4-12:2.
See
That
Here, in applying
Fed. R. Civ. P.
The denial of Defendants’ motion for sanction for
16
C.
Vexatious Litigant
17
Defendants
contend
that
declaring
Plaintiff
a
vexatious
18
litigant is a different issue than requiring Plaintiff to post a
19
security in this action.
20
seek to declare Plaintiff a vexatious litigant as well as require
21
that he post security.
22
provisions of Title 3A, part 2, of the California Code of Civil
23
Procedure, relating to vexatious litigants, are hereby adopted as
24
a procedural Rule of this Court on the basis of which the Court may
25
order the giving of a security, bond, or undertaking, although the
26
power of the Court shall not be limited thereby.”
Defs.’ Objections 4:10-5:2.
Defendants
The Local Rules of this Court state, “The
L.R. 151(b).
27
While Title 3A, part 2 of the California Code of Civil
28
Procedure is adopted as a procedural rule, this Court is governed
4
1
by the case law of the United States Court of Appeals for the Ninth
2
Circuit.
3
district courts in the Ninth Circuit have been cautious.
4
Circuit case law requires the district court to ensure that (1) the
5
plaintiff
6
pre-filing order; (2) the record of the case filings reflects “in
7
some manner, that the litigant’s activities were numerous and
8
abusive;”
9
frivolousness or harassing nature of plaintiff’s filings; and (4)
10
the order is narrowly tailored to remedy only the plaintiff’s
11
particular abuses.
12
1990).
13
so numerous and abusive as to warrant a vexatious litigant order.
14
See DeLong v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir. 1990)
15
(examples of numerous or abusive filings include plaintiffs who
16
have filed 35 related complaints, more than 50 frivolous cases, or
17
more than 600 complaints).
18
Plaintiff’s litigation activity reflects a pattern of harassment.
19
Id. at 1148 n.3 (noting that to find pattern of harassment,
20
district court needs to “discern whether the filing of several
21
similar types of actions constitutes an intent to harass the
22
defendant or the court.”) (quoting In re Powell, 851 F.2d 427, 431
23
(D.C. Cir. 1988) (per curiam)).1
In declaring a plaintiff to be a vexatious litigant,
is
(3)
given
adequate
there
are
notice
to
substantive
oppose
findings
a
Ninth
restrictive
as
to
the
O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir.
The Court does not find that Plaintiff’s filings have been
The Court also does not find that
24
1
25
26
27
28
Though not part of their objections, Defendants also submit a notice
of recent ruling which they contend is relevant to this action, Carrea v.
Iserman, 2011 U.S. Dist. LEXIS 35077 (E.D. Cal. Mar. 31, 2011). Doc. 33. The
district court in that action found the plaintiff to be a vexatious litigant.
However, that case is not persuasive here. First, the plaintiff had filed
four prior cases that were dismissed as frivolous or malicious, pursuant to 28
U.S.C. § 1915(g). Second, there was evidence to support a finding that the
plaintiff met the definition of a vexatious litigant as defined by California
Code of Civil Procedure section 391, and that the plaintiff had already been
5
1
Because the Court declines to declare Plaintiff a vexatious
2
litigant, the Court will not require that he post security in this
3
action.
4
Accordingly, IT IS HEREBY ORDERED that:
5
1.
6
7
The Findings and Recommendations, filed March 4, 2011, is
adopted in part as stated herein;
2.
Defendants’ motion to dismiss for failure to state a
8
claim, filed March 5, 2010, is GRANTED as to Plaintiff’s
9
excessive force claim against Defendant Davis for the
10
November 24, 2007 incident, and DENIED as to all other
11
claims;
12
3.
13
14
Defendants’
motion
to
declare
Plaintiff
a
vexatious
litigant, filed March 5, 2010, is DENIED;
4.
Defendants are to file an answer to Plaintiff’s complaint
15
within fourteen (14) days from the date of service of
16
this order.
17
18
IT IS SO ORDERED.
19
Dated:
May 2, 2011
emm0d6
/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
20
21
22
23
24
25
26
27
28
declared a vexatious litigant in the California state courts. Third, there was
no reasonable probability that the plaintiff could prevail on his three
claims. Unlike the plaintiff in that action, Plaintiff here (1) has not
accrued at least three actions that were dismissed as frivolous, malicious, or
for failure to state a claim, pursuant to 28 U.S.C. § 1915(g), (2) has not
already been declared a vexatious litigant, and (3) has a reasonable
probability of prevailing on his claims.
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?