Moye v. Restaurant Depot

Filing 3

ORDER OF DISMISSAL. Signed by Judge William Alsup on 2/13/2019. (whasec, COURT STAFF) (Filed on 2/13/2019)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MALINKA TACUMA WADE MOYE,

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For the Northern District of California

United States District Court

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Plaintiff,

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No. C 19-80004 WHA

v.

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RESTAURANT DEPOT,

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Defendant.
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ORDER OF DISMISSAL

Plaintiff Malinka Moye, a vexatious litigant, filed a new complaint (Dkt. No. 1). In an

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earlier action where Moye sued City and County of San Francisco, Ratana Jiraittewanna, and

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Red Oak Realty (among more than a dozen others), an order dated December 21, 2009, declared

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Moye a vexatious litigant. Moye is required to submit to the undersigned judge for pre-filing

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review any pro se civil complaint in the Northern District of California with substantially the

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same allegations regarding the alleged fraudulent transfer, embezzlement or robbery of real

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estate named the Hurdle Estate; plaintiff’s alleged false imprisonment; defendants’ alleged

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robbery, assault or attempted murder of plaintiff; conspiracy to murder plaintiff; or illegal

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concealment of a child.

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California Code of Civil Procedure § 391(b) defines a vexatious litigant as someone

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who, while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or

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other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or

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solely intended to cause unnecessary delay. Moye admitted that he had been named a vexatious

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litigant a decade ago by California State Courts, for filing eighty lawsuits in a short period of

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time (C 09-05464 WHA, Dkt. No. 7 at 4).

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Moye’s new complaint alleges civil rights violations relating to employment. This new

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complaint bears the same incomprehensible language as the complaints that led to his

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‘vexatious litigant’ designation. His statements of ‘facts’ are similarly disjointed and

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incomplete. He initially alleges employment discrimination via hate crime and assault and a

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“set up for false imprisonment” by co-workers at Restaurant Depot, defendant here. He alleges

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“realty fraud against Alain Pinel through co-workers” and he mentions “home illegally sold.”

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He alleges illegal taking of money out of his paycheck for garnishment and states he is being

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For the Northern District of California

United States District Court

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threatened by “Mr. Back Pay, illegal court ordered debt.”
In this new complaint, Moye attached an August 28, 2018, charge-of-discrimination

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form that he filed with Equal Employment Opportunity Commission (EEOC) where he alleged

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race, color, retaliation, age and religious discrimination. He stated that coworkers that “were in

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jail with (sic) got into my personal business, and they decided to garnish my paycheck

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illegally.” He stated that he was threatened at work with violence, that co-workers “tried to set

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up pallets to fall on me in freezer.” The EEOC responded within two days on August 30, 2018,

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that it was closing Moye’s case.

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Most of his 23-page exhibits do not relate to this complaint. Moye included letters he

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wrote to the FBI dated 2016. He submitted a paystub in his exhibits that shows he owes back

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taxes and child support, both of which are being garnished from his wages. He sees these

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deductions as illegal. He included a 2004 letter from the U.S. Department of Education,

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Office of Civil Rights, denying him relief from his student loans. He included an undated

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San Francisco Police Department Incident Report (No. 060336221) with an incoherent

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discussion of a 2006 conversation between a landlord, a police officer and Moye. He included a

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photograph of an unnamed person and undated handwritten notes telling him to stay away from

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a building.

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Exhibits attached to Moye’s new complaint also include letters from Department of Fair

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Employment and Housing (DFEH) dated November 2018 where it closed its files related to his
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2018 inquiries against defendants from the 2009 pre-‘vexatious litigant’ cases: Old Republic

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Title, Co., Red Oak Realty, Stockdale, et al., Baca, et al. These DFEH letters stated it lacked

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“jurisdiction to proceed because prima facie has not been met.”

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The 2009 vexatious litigant order was specific in limiting Moye’s litigation to oversight

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by the undersigned for allegations related to the so-called “Hurdle Estate, a property that was

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sold by the County Assessor,” plaintiff’s alleged false imprisonment, defendants’ alleged

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robbery, assault or attempted murder of plaintiff, conspiracy to murder plaintiff, or illegal

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concealment of a child. A close look at Moye’s new filing shows that although some

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allegations sound similar, they are not. Here, false imprisonment is ‘set up for false
imprisonment.’ It is not clear that the “realty fraud by Alain Pinel through coworkers” relates

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For the Northern District of California

United States District Court

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to the “Hurdle Estate.” Here, he does not allege robbery, he alleges threats from “MR BACK

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Pay. Illegal Court ordered debt.” Other 2009 allegations such as attempted murder, conspiracy

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to murder, or illegal concealment of a child are not present in this new filing.

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The subject matter of the new complaint arguably differs from the subject matter of the

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pre-filing bar, but the new complaint is so incomprehensible that it cannot be said with clarity to

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avoid the bar. There is too great a risk that plaintiff, if the complaint is allowed, will slip in the

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same old story again. Consequently, this complaint will not be allowed. Plaintiff shall have

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until March 6, 2019, to lodge an amended complaint that states a claim that is comprehensible

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(and does not touch on the subject matter of the pre-filing bar).

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IT IS SO ORDERED.

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Dated: February 13, 2019.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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