Hardaway v. Franco

Filing 34

ORDER by Judge Ronald M. Whyte Denying 16 Motion to Declare Plaintiff a Vexatious Litigant. (jgS, COURT STAFF) (Filed on 8/21/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SONNY RAY HARDAWAY,
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Plaintiff,
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v.
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Y. FRANCO,
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Defendant.
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No. C 12-5885 RMW (PR)
ORDER DENYING MOTION TO
DECLARE PLAINTIFF A
VEXATIOUS LITIGANT
(Docket No. 16.)

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Plaintiff, a state prisoner proceeding pro se, filed an amended federal civil rights

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complaint pursuant to 42 U.S.C. § 1983. The court ordered service upon defendant. Defendant

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has filed a motion to declare plaintiff a vexatious litigant and impose a pre-filing order against

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him.1 Although given an opportunity, plaintiff has not filed an opposition. For the reasons

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stated below, defendant’s motion is DENIED.

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DISCUSSION
Defendants move to have plaintiff declared a vexatious litigant based on his repeated

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filings in this and in other federal and state civil cases in which plaintiff is a party, usually as a

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plaintiff. In particular, defendants seek an order declaring plaintiff a vexatious litigant, requiring

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him to demonstrate the merits of any potential lawsuit before being permitted to file a complaint.

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Defendant has also filed a request for judicial notice. The request is GRANTED.

Order Denying Motion to Declare Plaintiff a Vexatious Litigant
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The Ninth Circuit recognizes “the inherent power of federal courts to regulate the

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activities of abusive litigants by imposing carefully tailored restrictions under appropriate

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circumstances.” De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990). A request to

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declare a party a vexatious litigant entails consideration of four factors: (1) the party must have

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had adequate notice and an opportunity to oppose the order; (2) there must be an adequate record

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for review, including a list of all cases and motions that led the court to conclude that a vexatious

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litigant order was necessary; (3) the court must make a substantive finding as to the frivolous or

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harassing nature of the litigant’s actions; and (4) the order must be narrowly tailored to fit the

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particular problem involved. Id. at 1147-48. “[P]re-filing orders are an extreme remedy that

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should rarely be used . . . because such sanctions can tread on a litigant's due process right of

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access to the courts.” Id. “Nevertheless, ‘[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.’” Moski v. Evergreen Dynasty Corp.,

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500 F.3d 1047, 1057 (9th Cir. 2007) (quoting De Long, 912 F.3d at 1148).

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There can be no legitimate dispute that plaintiff is an abusive litigant. The record in the

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various federal and state civil actions involving plaintiff, spanning over 17 years, is littered with

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his repeated motions and other requests in which he accuses a variety of defendants of

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committing wrongs against him. “To determine whether the litigation is frivolous, district courts

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must look at both the number and content of the filings as indicia of the frivolousness of the

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litigant’s claims,” to make a substantive finding as to the plaintiff’s actions. Ringgold-Lockhart

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v. County of Los Angeles, No. 11-57231, 2014 WL 3805579, at *4 (9th Cir. 2014).

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Alternatively, the court may make an alternative finding that the plaintiff’s filings “show a

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pattern of harassment.” Id. at *5 (quoting De Long, 912 F.3d at 1148.)

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Here, although defendant asserts that plaintiff’s current case is frivolous, the Ninth

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Circuit has not decided that dismissal solely for failure to exhaust administrative remedies is a

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dismissal on the basis of frivolity. O’Neal v. Price, 531 F.3d 1146, 1155 n.9 (9th Cir. 2007). In

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addition, although plaintiff most certainly is litigious, litigiousness alone is not enough to justify

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a pre-filing order. See Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990). Defendant has
Order Denying Motion to Declare Plaintiff a Vexatious Litigant
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attached a binder full of plaintiff’s initiated lawsuits to support his motion. However, regarding

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the first eleven cases (Defs.’ Req. Jud. Not., Exs. B-L), defendant only provides a copy of the

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docket sheet, which does not include a copy of the complaint or final order. Without either

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document, the court cannot determine whether any of plaintiff’s claims were “patently without

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merit.” Id. at 470. In addition, there are at least three cases in defendant’s exhibit list which

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appear to demonstrate that plaintiff had at least three cases dismissed without prejudice for

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failing to pay the filing fee or a completed application to proceed in forma pauperis. (Id., Exs.

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M-2, N-2, T-2.) A dismissal for failing to pay the filing fee or a completed application to

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proceed in forma pauperis is not akin to a dismissal for frivolity or failure to state a claim.

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Although plaintiff is most certainly litigious, a review of a sampling of defendant’s exhibits

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reveals that there does not appear to be an inordinate number of frivolous complaints.

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Alternatively, out of the more than forty cases filed by plaintiff in the United States District

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Courts that were cited by defendant in support of his motion, it does not appear that defendant

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was a party to any of the actions in which plaintiff submitted the offending filings and thus, there

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is not a pattern of harassment.

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Finally, defendant’s request that the vexatious litigant order apply to any new litigation in

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this district is not narrowly-tailored to prevent his abusive behavior. See De Long, 912 F.2d at

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1147; see, e.g., Moy, 906 F.2d at 470 (concluding that court order preventing plaintiff from

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filing any actions without leave of court was overly broad where plaintiff had only been overly

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litigious to the same group of defendants).

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In light of the concerns expressed above, defendant’s motion for an order declaring

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plaintiff a vexatious litigant is DENIED. Plaintiff is warned, however, that he has no right to file

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frivolous and harassing lawsuits or motions, and that doing so violates Rule 11 of the Federal

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Rule of Civil Procedure. Rule 11 applies equally to attorneys and pro se litigants alike. Warren

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v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994).

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CONCLUSION
Defendant’s motion to declare plaintiff a vexatious litigant is DENIED.

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Order Denying Motion to Declare Plaintiff a Vexatious Litigant
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IT IS SO ORDERED.
DATED:
RONALD M. WHYTE
United States District Judge

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Order Denying Motion to Declare Plaintiff a Vexatious Litigant
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

SONNY RAY HARDAWAY,

Case Number: CV12-05885 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
Y. FRANCO et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on August 21, 2014, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

Sonny Ray Hardaway P-45579
Salinas Valley State Prison
B2-217
PO Box 1050
Soledad, CA 93960
Dated: August 21, 2014
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk