McDaniel v. USA, et al

Filing 28

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/9/2021 RECOMMENDING no pre-filing order or order declaring plaintiff a vexatious litigant be issued. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TANYA GRACE McDANIEL,

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Plaintiff,

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No. 2:15-cv-2627-KJM-EFB PS

v.

FINDINGS AND RECOMMENDATIONS

UNITED STATES OF AMERICA, et al.,

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Defendants.

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On August 30, 2017, the court declared plaintiff a “vexatious litigant” as defined under

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California law and imposed pre-filing restrictions on her.1 ECF No. 19. On appeal, the U.S.

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Court of Appeals for the Ninth Circuit vacated that order and remanded the case with instructions

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“to make explicit substantive findings as to the frivolousness or harassing nature of [plaintiff]’s

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prior filings and . . . to tailor narrowly the pre-filing order to the abuses.” ECF No. 24 at 3. On

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August 14, 2018, the district judge referred the matter to the undersigned via minute order. ECF

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No. 25. As discussed below, the court finds that a pre-filing order is not necessary and therefore

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recommends that no order issue declaring plaintiff a vexatious litigant.

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District courts have the inherent power “to regulate the activities of abuse litigants by
imposing carefully tailored restrictions under the appropriate circumstances.” De Long v.
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The court had previously dismissed plaintiff’s complaint without leave to amend and
judgment had been duly entered. ECF Nos. 12, 13.
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Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) (discussing requirements for issuing a pre-filing

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order under the All Writs Act). The issuance of a pre-filing order containing such restrictions is

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“an extreme remedy that should rarely be used.” Molski v. Evergreen Dynasty Corp. 500 F.3d

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1047, 1057 (9th Cir. 2007). Nonetheless, “[f]lagrant abuse of the judicial process cannot be

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tolerated because it enables one person to preempt the use of judicial time that properly could be

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used to consider the meritorious claims of other litigants.” De Long, 912 F.2d at 1148.

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Federal law requires that a court seeking to impose pre-filing restrictions must: (1) give

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plaintiff adequate notice and an opportunity to oppose entry of a pre-filing order before; (2) the

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court must present an adequate record for review by listing the case filings that support its order;

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(3) the court must make substantive findings as to the frivolous or harassing nature of the

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plaintiff’s actions; and (4) the order must be narrowly tailored to fit the specifics of the plaintiff’s

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abuses. De Long, 912 F.2d at 1147-49.

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Plaintiff previously filed several cases that were dismissed for failure to state a claim or as

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frivolous. See McDaniel v. United States Department of Justice, No. 2:15-cv-1664-JAM-AC

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(E.D. Cal. Nov. 20, 2015); McDaniel v. United States of America, No. 2:15-cv-0937-MCE-KJN-

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PS (E.D. Cal. Aug. 11, 2015); McDaniel v. The Secretariat, No. 2:15-cv-0828-GEB-CKD PS

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(E.D. Cal. Aug. 19, 2015); McDaniel v. United States, No. 2:15-cv-1113-TLN-AC (E.D. Cal.

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Aug. 18, 2015); McDaniel v. Powell, No. 2:13-cv-2653 MCE-AC (E.D. Cal. July 29, 2015). The

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court’s records reflect, however, that since the dismissal of this action over three years ago,

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plaintiff has litigated only one other lawsuit in this court, McDaniel v. United States, No. 2:18-cv-

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2306-JAM-DB (which was transferred to this district from the Northern District of California). In

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the latter case, plaintiff proceeded pro se and sought leave to proceed in forma pauperis, thereby

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triggering this court’s duty to screen her complaint. See 28 U.S.C. § 1915(e)(2). Upon screening,

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the court dismissed the action for failure to state a claim and as frivolous and delusional. See

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McDaniel v. United States, No. 2:18-cv-2306-JAM-DB (E.D. Cal.) (ECF Nos. 15, 17). Judgment

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was entered on December 17, 2018, id. at ECF No. 18, and plaintiff has not filed in this court

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since then.

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In the event plaintiff files a new action in this court, she must either file an application to

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proceed in forma pauperis or pay the court’s filing fee. If she seeks leave to proceed in forma

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pauperis, the court can effectively avoid the unnecessary burdens imposed by a frivolous lawsuit

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through a screening order. Conversely, should plaintiff commence an action and pay the required

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filing fee, other sanctions—include monetary sanctions and/or those available under Rule 11—

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would be available as needed to deter the filing of any frivolous or harassing pleadings. See

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Ringgold-Lockhart, 761 F.3d 1057, 1065 (9th Cir. 2014) (“Before entering this broad pre-filing

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order . . . the district court assuredly should have considered whether imposing sanctions such as

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costs or fees on the Ringgolds would have been an adequate deterrent.”). For these reasons, it

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does not appear that pre-filing restrictions for filings in this district are necessary. Plaintiff is

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cautioned, however, that future frivolous filings in this district may result in summary dismissals

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without leave to amend, monetary sanctions, and/or the imposition of pre-filing restrictions.

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Accordingly, it is RECOMMENDED that no pre-filing order or order declaring plaintiff a
vexatious litigant be issued.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: March 9, 2021.

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