McInerney v. City and County of San Francisco et al

Filing 4

ORDER PERMITTING FILING re 2 Received Document filed by Joesph McInerney; Signed by Judge Marilyn Hall Patel on 1/27/2009. (Attachments: # 1 CertServ)(awb, COURT-STAFF) (Filed on 1/28/2009)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff has been declared a vexatious litigant and is subject to pre-filing review by reason of an order entered on October 14, 2003, in C 02-05911 JSW, an action against a number of state court justices and judges. The pre-filing review order provides that plaintiff "shall not file any new litigation in propria persona" before this court "without first obtaining leave of the Chief Judge of the Court". The matter was referred to this judge as the General Duty Judge. The vexatious litigant pre-filling order was affirmed on appeal, see 120 Fed.Appx.89 (9th Cir. 2005), despite its sweeping breadth and the Circuit's citation to DeLong v. Hennessey, 912 F.2d 114 (9th Cir.1990). DeLong sets forth the acceptable parameters of a pre-filing order, instructing among other requirements that it be "narrowly tailored to fit the specific vice encountered". Id. at 1147. The case from which the pre-filing review order emanated was an action against a large number of state court justices and judges many of whom had been the target of other lawsuits filed by plaintiff. The instant case is an action against the City and County of San Francisco and several police officers and others. It involves claims of an alleged false arrest and deprivation of rights vs. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendant(s). / JOSEPH MciNERNEY, Plaintiff(s), UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA No. C-09-80007 MISC ORDER PERMITTING FILING

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arising out of an incident occurring at a local hotel on January 14, 2008. To read the pre-filing order to include this case is to cast too wide a net in view of this Circuit's holding in DeLong. Therefore, without taking up the likely merits of plaintiff's claims or entitlement to in forma pauperis status, this court finds that plaintiff should be permitted to file the complaint in CV 09-80007MISC . The Clerk of Court shall file the complaint and assign the action pursuant to the court's assignment system.

IT IS SO ORDERED.

Date:January 27, 2009

MARILYN HALL PATEL Judge United States District Court Northern District of California

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