Kinney v. Cuellar et al

Filing 56

ORDER Declaring Plaintiff a Vexatious Litigant. Signed by Judge Edward M. Chen on 7/17/2018. (emcsec, COURT STAFF) (Filed on 7/17/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHARLES G KINNEY,
Plaintiff,

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Case No. 18-cv-01041-EMC
ORDER DECLARING PLAINTIFF A
VEXATIOUS LITIGANT

v.
MARIANO-FLORENTINO CUELLAR, et
al.,

Docket No. 53

United States District Court
Northern District of California

Defendants.
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Previously, the Court issued an order instructing Plaintiff Charles Kinney to show cause as

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to why he should not be declared a vexatious litigant and why he should not have an order entered

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against him requiring a pre-filing review of his future complaints in this District. Mr. Kinney has

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filed a response to the order to show cause.

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Having reviewed Mr. Kinney’s response, the Court finds that a declaration of Mr. Kinney

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as a vexatious litigant is warranted. In its order to show cause, the Court identified for Mr. Kinney

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all cases supporting the conclusion that he is a vexatious litigant. The Court also explained why

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the cases previously brought by Mr. Kinney were frivolous and/or harassing. Mr. Kinney has

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been given notice and an opportunity to be heard as to why he should not be declared a vexatious

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litigant, but nothing in his response establishes that such a declaration would be in error,

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unreasonable, or unfair.

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Contrary to what Mr. Kinney argues, there is no indication that his prior cases were not

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frivolous and/or harassing. For example, Mr. Kinney’s claims against state judicial officers were

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barred by judicial immunity and Mr. Kinney’s conclusory assertion that the judicial officers were

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acting as prosecutors is not supported by any facts. Also, the Rooker-Feldman doctrine blocks

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what is a de facto appeal of a state court decision even if the argument is that the state court

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decision violates federal law. See Khanna v. State Bar of Cal., 505 F. Supp. 2d 633, 640 (N.D.

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Cal. 2007) (“Where federal constitutional violations are asserted, federal question jurisdiction

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usually vests under 28 U.S.C. § 1331. Rooker-Feldman creates an exception which arises out of a

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negative inference from 28 U.S.C. § 1257, the statute that grants jurisdiction to review a state

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court judgment to the United States Supreme Court only, and not, e.g., a federal district court.”);

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ScripsAmerica, Inc. v. Ironridge Glob. LLC, 56 F. Supp. 3d 1121, 1137 (C.D. Cal. 2014) (“[Under

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the Rooker-Feldman doctrine, a] losing party in state court is . . . barred from seeking what in

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substance would be appellate review of a state judgment in federal district court, even if the party

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contends the state judgment violated his or her federal rights.”).

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Moreover, Mr. Kinney’s contention that he cannot be declared a vexatious litigant in light

United States District Court
Northern District of California

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of new Supreme Court authority – namely, Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018),

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available at 2018 U.S. LEXIS 4028, and National Institute of Family & Life Advocates v. Becerra,

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138 S. Ct. 2361 (2018), available at 2018 U.S. LEXIS 4025 – is unavailing. Neither case is on

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point. Both cases concern compelled speech against the speaker’s wishes. Declaring Mr. Kinney

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a vexatious litigant and imposing a pre-filing review requirement would not compel any speech

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from him.

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Nor does it unconstitutionally suppress speech where the prerequisites for imposing

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vexatious litigant sanctions established by the Ninth Circuit are satisfied. Although access to the

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courts is protected by the First Amendment, see Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731,

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741 (1983) (stating that “the right of access to the courts is an aspect of the First Amendment right

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to petition the Government for redress of grievances”), Mr. Kinney has failed to cite to any

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authority supporting the proposition that a vexatious litigant declaration and/or pre-filing review

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requirement, where predicated on a sound basis and properly tailored, violates an individual’s

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right of access to the courts. Indeed, courts have rejected the claim. See, e.g., Wolfe v. George,

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385 F. Supp. 2d 1004 (N.D. Cal. 2005) (holding that California’s vexatious litigant statute does

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not violate the First Amendment).

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Accordingly, the Court hereby declares Mr. Kinney a vexatious litigant and imposes a pre-

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filing review requirement on him. Mr. Kinney must obtain leave of court before filing any further
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suits related to the purchase of the Fernwood property from Ms. Clark in 2005, the fence built by

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Ms. Cooper in the 1990s, or judicial rulings by state court judges on those facts. The Clerk of the

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Court shall not accept for filing any further complaints filed by Mr. Kinney implicating these

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subject matters until that complaint has first been reviewed by a judge of this District and

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approved for filing. The pre-filing review shall be made by the general duty judge who will

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determine whether Mr. Kinney has stated a potentially cognizable claim in a short, intelligible, and

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plain statement.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: July 17, 2018

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______________________________________
EDWARD M. CHEN
United States District Judge

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