Harper v. US et al

Filing 6

ORDER Declaring Plaintiffs Vexatious Litigants and Requiring Pre-Filing Screening as to Montorey Harper and Montorey LLC. Signed by Judge Gonzalo P. Curiel on 11/28/17.(All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MONTOREY DANYELL HARPER, et
al., pro se,

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ORDER DECLARING PLAINTIFFS
VEXATIOUS LITIGANTS AND
REQUIRING PRE-FILING
SCREENING

Plaintiffs,

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Case No.: 3:17-cv-01965-GPC-NLS

v.
UNITED STATES, et al.,
Defendants.

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On October 30, 2017, this Court issued an Order directing Plaintiffs Montorey
Danyell Harper and Montorey LLC (“Plaintiffs”) to show cause as to why they were not
vexatious litigants. Dkt. No. 3. In that Order, this Court sua sponte dismissed seventeen
complaints filed by Plaintiffs and placed Plaintiffs on notice that the Court was
considering imposing a pre-filing screening order on Plaintiffs. On November 21, 2017,
the Court received a letter from Plaintiffs that can be best described as nonsensical and
stated inter alia that “Wherefore, MLLC and Montorey Danyell Harper, will arrest the
Court and the US and DefendnatS [sic] for requiring this brief, you are notified here that
you are arrested and to look for those arrests. The defendnats FBI is arrested and may
help with those arrests papers of yours . . . You are required to know and hear these
presents: You are now under arrest.” Dkt. No. 5. Given the fantastical and frivolous
nature of Plaintiffs’ response, the Court now finds that Plaintiffs have been provided with
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3:17-cv-01965-GPC-NLS

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proper notice of the Court’s intention to declare them vexatious litigants and an

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opportunity to oppose a pre-filing screening order. Accordingly, the Court will enter a

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pre-filing screening order as to Plaintiffs Montorey Harper and Montorey LLC.

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I.

VEXATIOUS LITIGANT DETERMINATION
On September 27, 2017, Plaintiffs Montorey Danyell Harper and Montorey LLC

(“Plaintiffs”), proceeding pro se, filed twenty-three complaints against Defendants the
United States, et al. Several of these complaints were dismissed by this Court, and by
Judges Bashant and Houston pursuant to 28 U.S.C. § 1915(a).1 Several more of these cases
were transferred to this Court pursuant to this district’s low number rule. See S.D. Cal.
Civil Local Rule 40.1(e). Further, three additional cases were originally assigned to this
Court as Case Nos. 17-cv-1967, 17-cv-1973, and 17-cv-1977.
The Court previously dismissed each of the below cases in its Dkt. No. 3 order.

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Case Number
3:17-cv-01965-GPCNLS

3:17-cv-01966-GPCNLS

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Harper v. US et al

3:17-cv-01968-GPCNLS

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Case Name
Harper v. US et al

Harper et al v. US et al

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Description of Complaint2
Plaintiff appears to make
miscellaneous statements that
Defendants are engaged in
technology crime and fraud
involving a Samsung Galaxy S3.
Plaintiff appears to make
miscellaneous statements
regarding a “spiritual intrusion”
and the “use of drugs” by the
San Diego police Department to
attack the plaintiff.
Plaintiff appears to make
miscellaneous statements
regarding spiritual attacks upon
him and apparent issues with
women’s organizations

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See Case Nos. 17-cv-1974, 17-cv-1975, 17-cv-1979, 17-cv-1980, 17-cv-1982, 17-cv-1987.
Each complaint is incoherent. The Court’s attempt to discern the contents of the complaint is made
solely for the purpose of identification of the basis for why the complaint fails to state a plausible claim.
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3:17-cv-01965-GPC-NLS

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2

3:17-cv-01969-GPCNLS

Harper v. US et al

3:17-cv-01970-GPCNLS

Harper v. US et al

3:17-cv-01971-GPCNLS

Harper v. US et al

3:17-cv-01972-GPCNLS

Harper v. US et al

3:17-cv-01976-GPCNLS

Harper v. US et al

3:17-cv-01978-GPCNLS

Harper et al v. US et al

3:17-cv-01981-GPCNLS

Harper v. US, Washington
DC et al

3:17-cv-01983-GPCNLS

Harper v. US et al

3:17-cv-01984-GPCNLS

Harper v. US et al

3:17-cv-01985-GPCNLS

Harper v. US et al

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Plaintiff appears to make
miscellaneous statements that he
has been wronged by CNN and
the State of Tennessee through
an allegation of assault and other
issues
Plaintiff appears to make
miscellaneous statements that he
was run over by a man in a
vehicle.
Plaintiff appears to make
miscellaneous statements that a
female Sheriff officer attacked
him.
Plaintiff appears to make
miscellaneous statements
regarding abuse involving
someone named “Bow Wow”
Plaintiff appears to make
miscellaneous statements about
potential racketeering between
the judicial system and the
United States
Plaintiff appears to make
miscellaneous statements
regarding television host Megan
Kelly
Plaintiff appears to make
miscellaneous statements
regarding Microsoft and Bill
Gates
Plaintiff appears to make
miscellaneous statements that
technology interference
interrupted a lawsuit he drafted
Plaintiff appears to make
miscellaneous statements
regarding politicians
Plaintiff appears to make
miscellaneous statements

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3:17-cv-01965-GPC-NLS

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3:17-cv-01986-GPCNLS

Harper et al v. US et al

3:17-cv-01967-GPCAGS

Harper v. US et al

3:17-cv-01973-GPCWVG

Harper et al v. US et al

3:17-cv-01977-GPCBGS

Harper et al v. United
States of America et al

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regarding spiritual assaults from
a former church
Plaintiff appears to make
miscellaneous statements
regarding McDonalds
Plaintiff appears to make
miscellaneous statements
regarding the United States and
a man named Bobby
Plaintiff appears to make
miscellaneous statements
regarding a company named
PeopleSmart
Plaintiff appears to make
miscellaneous statements
regarding President Obama

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As a means of stemming abusive litigation, the Court may issue an order requiring

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a litigant to seek permission from the Court prior to filing any future suits. Johns v. Town

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of Los Gatos, 834 F. Supp. 1230, 1232 (N.D. Cal. 1993) “The All Writs Act, 28 U.S.C. §

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1651(a), provides district courts with the inherent power to enter pre-filing orders against

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vexatious litigants. However, such pre-filing orders are an extreme remedy that should

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rarely be used.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007)

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(internal citations omitted). However, “[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

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could be used to consider the meritorious claims of other litigants.” De Long v.

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Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990).

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A pre-filing review order is appropriate if (1) the plaintiff is given adequate notice

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and an opportunity to oppose the order; (2) the Court compiles an adequate record for

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review; (3) the Court makes substantive findings as to the frivolous or harassing nature of

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the litigant's actions; and (4) the order is narrowly tailored “to closely fit the specific vice

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encountered.” De Long v. Hennessey, 912 F.2d at 1145–48; see also Johns v. Town of

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Los Gatos, 834 F. Supp. 1230, 1232 (N.D. Cal. 1993) (applying De Long).
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A.

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The Court previously provided notice that it intended to deem Plaintiffs vexatious

Notice and Opportunity to Oppose

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litigants in its Dkt. No. 3 order filed on October 30, 2017. The Court ordered Plaintiffs to

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file a brief to show cause as to why the Court should not declare the plaintiffs “vexatious

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litigants” by November 20, 2017. On November 21, 2017, the Court received a letter

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from Plaintiffs Montorey Harper and Montorey LLC asserting a fantastical and

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nonsensical response. For example, Plaintiffs stated that “Wherefore, MLLC and

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Montorey Danyell Harper, will arrest the Court and the US and DefendnatS [sic] for

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requiring this brief, you are notified here that you are arrested and to look for those

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arrests. The defendnats FBI is arrested and may help with those arrests papers of yours . .

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. You are required to know and hear these presents: You are now under arrest.” Dkt. No.

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5.3 Given this response, the Court finds that it has adequately provided Plaintiffs with

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notice and an opportunity to oppose the entry of a pre-filing order as required by Ninth

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Circuit case law. See De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990)

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(requiring district court to provide plaintiff with an opportunity to oppose the entry of

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order deeming plaintiff a vexatious litigant).

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B.

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“An adequate record for review should include a listing of all the cases and

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motions that led the district court to conclude that a vexatious litigant order was needed.”

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Id. (quoting De Long, 912 F.2d at 1147). Missud v. Nevada, 861 F. Supp. 2d 1044, 1055

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(N.D. Cal. 2012), aff'd, 520 F. App'x 534 (9th Cir. 2013). An adequate record exists to

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support a vexatious litigant finding because Plaintiff Montorey Danyell Harper and in

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many of the cases Montorey LLC4 have filed—not including the seventeen complaints at

Adequate Record

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The Court observes that the fanciful and outlandish nature of Plaintiffs’ response letter confirms the
need for a pre-filing screening order.
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The following cases appear to have been filed on solely on behalf of Plaintiff Montorey Danyell
Harper and not Montorey LLC: 17-cv-1586, 17-cv-1587, 16-cv-1122, 16-cv-1123, 16-cv-1199, 16-cv1200, 16-cv-1201, 16-cv-1202, 17-cv-1821
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issue in Section I above—at least thirty-three other frivolous filings in the Southern

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District of California.5 These cases and the dispositions in those cases are listed in the

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chart below:

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Case
Number

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Date
Filed

Date
Closed

Disposition

3:17-cv-01049MMA-JMA

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Name of Case
Harper v. Office of Child
Support Enforcement et al

5/24/17

5/26/2017

Dismissal for Failure to Pay
Filing Fee

Harper et al v. US et al

8/8/2017

8/30/2017

IFP Dismissal

Harper v. City of San Diego
et al

8/14/2017

8/28/2017

IFP Dismissal

Harper et al v. Extended
Stay America et al

5/24/2017

8/28/2017

IFP Dismissal

5/24/2017

5/25/2017

IFP Denied; Leave to Pay
Filing Fee

5/23/2017

8/14/2017

Dismissal for Failure to Pay
Filing Fee

5/23/2017

6/12/2017 IFP Dismissal

8/14/2017

9/28/2017

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3:17-cv-01585WQH-MDD
3:17-cv-01633DMS-MDD

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3:17-cv-01053WQH-BGS

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3:17-cv-01068BAS-WVG

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3:17-cv-01069CAB-AGS
3:17-cv-01070GPC-MDD
3:17-cv-01636MMA-MDD

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Harper et al v.
Telemarketing Concepts et
al
Harper et al v. Choice
Hotels et al
Harper v. Montorey LLC et
al
Montorey LLC et al v.
United States et al

IFP Denied; Leave to Pay
Filing Fee

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3:17-cv-01817WQH-JMA

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Harper et al v. US et al

9/7/2017

IFP Denied; Leave to Pay
Filing Fee

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Plaintiff Montorey Harper appears to have filed thirty cases in the Eastern District of North Carolina
which were similarly dismissed as frivolous. See Harper v. United States Department of Justice, 2017
WL 1319789 (E.D.N.C. Apr. 10, 2017). A Court in the Northern District of Florida in June 2017 found
that Montorey Harper was a “prolific litigant who has filed at least 61 complaints across the country
since 2015, the vast majority of which appear to have been dismissed as frivolous.” Harper v. United
States, 2017 WL 2952291, at *2 (N.D. Fla. June 8, 2017) (recommending dismissal for improper venue
and stating that Harper’s conduct which “show[ed] little in the way of legal preparation and
consideration” suggested a pre-filing injunction could be warranted).
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3:17-cv-01965-GPC-NLS

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3:17-cv-01586WQH-KSC

Harper v. US et al

8/8/2017

8/15/2017

IFP Dismissal

3:17-cv-01587GPC-MDD

Harper v. US et al

8/8/2017

8/10/2017

IFP Dismissal

3:16-cv-00763AJB-BLM

Harper et al v. San Diego
City Administration
Building

3/31/2016

6/10/2016

IFP Dismissal

3/31/2016

4/6/2016

IFP Dismissal

3/31/2016

6/10/2016

IFP Dismissal

3/31/2016

6/10/2016

IFP Dismissal

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3:16-cv-00765BTM-JLB
3:16-cv-00766AJB-BLM

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3:16-cv-00768AJB-BLM

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Harper et al v. San Diego
City Administration
Building et al
Harper et al v. San Diego
City Administration
Building et al
Harper et al v. San Diego
City Administration
Building et al

3:16-cv-00769AJB-BLM

Harper et al v. San Diego
City Administration
Building et al

3/31/2016

6/10/2016

IFP Dismissal

3:16-cv-00834LAB-WVG

Harper et al v. San Diego,
City of et al

4/7/2016

4/12/2016

IFP Dismissal

3:16-cv-00992GPC-BGS

Harper et al v. San Diego,
City of et al

4/25/2016

6/7/2016

IFP Dismissal

3:16-cv-01122JAH-KSC

Harper v. US DOJ

5/11/2016

5/19/2016

IFP Dismissal

Harper v. US DOJ

5/11/2016

5/16/2016

IFP Dismissal

Harper v. US DOJ

05/11/16

6/10/2016

IFP Dismissal

Harper v. US DOJ et al

5/19/2016

5/27/2016

IFP Dismissal

Harper v. US DOJ et al

5/19/2016

5/20/2016

IFP Dismissal

Harper v. US DOJ

5/19/2016

6/24/2016 IFP Dismissal

Harper v. US DOJ

5/19/2016

6/10/2016

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3:16-cv-01123LAB-NLS
3:16-cv-01124AJB-JLB
3:16-cv-01199WQH-BLM
3:16-cv-01200MMA-NLS
3:16-cv-01201AJB-BLM
3:16-cv-01202AJB-BLM

IFP Dismissal

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3:17-cv-01965-GPC-NLS

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3:17-cv-01634BTM-BLM

Plaintiff failed to file First
Amended Complaint by
Court assigned deadline

8/14/2017

Harper v. Psychologist San
Diego Police et al

9/8/2017

9/12/2017

IFP Dismissal

Harper v. US et al

9/27/2017

10/3/2017

IFP Dismissal

Harper et al v. United States
et al

9/27/2017

10/3/2017

IFP Dismissal

Harper et al v. US et al

9/27/2017

10/4/2017

IFP Dismissal

Harper v. US et al

9/27/2017

10/3/2017

IFP Dismissal

3:17-cv-01982GPC-BLM

Harper v. US et al

9/27/2017

9/28/2017

IFP Dismissal

3:17-cv-01987BAS-NLS

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Harper et al v. US DOJ

Harper v. US et al

9/27/2017

10/3/2017

IFP Dismissal

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3:17-cv-01821AJB-BLM
3:17-cv-01974BAS-MDD
3:17-cv-01975BAS-WVG
3:17-cv-01979JAH-BGS
3:17-cv-01980BAS-BGS

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Accordingly, an adequate record exists to support a vexatious litigant finding. See
Calhoun v. San Diego Cty., No. 12CV2596 AJB JMA, 2012 WL 5878666, at *3 (S.D.
Cal. Nov. 21, 2012) (twenty-six frivolous cases constituted adequate record).
C.

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Substantive Findings as to the Frivolous Nature of Plaintiffs’ Actions

Under the third prong, the Court must “look at both the number and content of the
filings as indicia of the frivolousness of the litigant's claims.” Molski, 500 F.3d at 1059
(citations and quotation marks omitted). “An injunction cannot issue merely upon a
showing of litigiousness. The plaintiff's claims must not only be numerous, but also be
patently without merit.” Id. (citations and quotation marks omitted). The Court finds that
there is more than a sufficient basis to conclude that Plaintiffs’ filings have been both
numerous and patently without merit.
Plaintiff Montorey Harper6 has filed fifty complaints in this district since 2016.
Almost all of these complaints have been dismissed under the Court’s power to sua

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In many of the cases, he was joined by Plaintiff Montorey LLC.
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sponte review and dismiss frivolous claims or claims that failed to state a claim on which

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relief may be granted under 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). In a few cases, the district

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court denied in forma pauperis status and proceeded to close the case after Plaintiffs

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failed to pay the filing fee.7 No case filed by Plaintiffs appears to have ever proceeded

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beyond the complaint.

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A sampling of the plaintiffs’ various complaints show that they have been

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consistently patently frivolous or failed to state a claim on which relief may be granted.

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See, e.g., Case No. 17-cv-1987, Dkt. No. 1 (“Spiritual assault are so bad that it is moving

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the hotel ect, lawsuit will be filed, you did this in 2015 and 2016.”); Case No. 17-cv-

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1982, Dkt. No. 1 (“This is the US and San Diego saying something about Leader Loyal a

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Captain on board a Leader Vessel MLLC technology a Leader Vessel now the star trek

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crew will be sued.”). The frivolous nature of these claims is also seen in the cases that

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the Court sua sponte dismissed on October 30, 2017. See, e.g., Case No. 17-cv-1981,

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Dkt. No. 1 (“’Got a hold’” says that it was in that manner as well and Microsoft was

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assaulted whether or not Bill Gates was complicit.”); Case No. 17-cv-1966, Dkt. No. 1

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(“The Plaintiff has complained since 2014 about spiritual intrusions and the use of drugs

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to do this.”). Accordingly, the Court finds that the frivolous nature of these complaints

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supports a vexatious litigant finding. See Hurt v. All Sweepstakes Contests, No. C-12-

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4187 EMC, 2013 WL 144047, at *1, 6 (N.D. Cal. Jan. 11, 2013) (finding plaintiff was a

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vexatious litigant where plaintiff had filed a significant number of frivolous lawsuits that

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were “often vague, confusing, or unintelligible”).

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D.

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The Court is mindful that “narrowly tailored” pre-filing review orders are needed to

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“prevent infringement on the litigator’s right of access to the courts.” De Long, 912 F.2d

Narrowly Tailored Order

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Two cases remain open. In Case No. 17-cv-1817, Plaintiff has been directed to pay the filing fee or
submit a more complete motion to proceed in forma pauperis. In Case No. 17-cv-1634, the Court
granted Plaintiff leave to file a First Amended Complaint, but failed to do so within the thirty-day period
court ordered deadline.
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at 1148. However, a general history of litigious filing may support a broad pre-filing

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injunction. See Hurt, 2013 WL 144047, at *7 (“the court has approved broad pre-filing

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orders against vexatious litigants who have a history of filing a wide variety of frivolous

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actions”). The Ninth Circuit has approved broad pre-filing orders post DeLong. See Aref

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v. Marder, 15 F.3d 1082 (9th Cir. 1994) (memorandum) (upholding broad pre-filing review

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order preventing vexatious litigant from filing in the Central District of California without

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obtaining leave of court”). See also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir.

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1984) (pre-filing reviews are an extraordinary sanction but are warranted where vexatious

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litigants’ filings have been “equally as extraordinary”). In Hurt, the Court found that “the

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wide range of frivolous actions Plaintiff has filed in this district makes it difficult to tailor

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a pre-filing order to a specific group of defendants or type of legal claim. Plaintiff’s history

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of vexatious litigation has been broad, and thus a responsive pre-filing order must be

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similarly broad.” Id. at *8.

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Here, the type of frivolous actions has been similarly broad and makes a tailored

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pre-filing order difficult. Plaintiffs’ frivolous claims are not confined to a single set of

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defendants, nor a single topic area. Accordingly, the Court finds that a broad pre-filing

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review order, as described below, would be most appropriate for all future lawsuits

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initiated by Plaintiffs Montorey Danyell Harper or Montorey LLC in this district. See

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Hurt, 2013 WL 144047, at *8 (“Given the variety of meritless suits Plaintiff has brought,

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this Court finds it appropriate to subject all future lawsuits initiated by Plaintiff in this

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district to pre-filing review.”).

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//

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//

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//

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//

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//

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//

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//
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CONCLUSION
For the foregoing reasons, the Court will:
1. DECLARE that Plaintiffs are “vexatious litigants” and require that prefiling screening apply as to Plaintiffs Montorey Harper and Montorey LLC.
2. ORDER that the Clerk of this Court may not file or accept any further

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complaints filed by or on behalf of Plaintiffs Montorey Harper or Montorey

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LLC. If Plaintiffs wish to file a complaint, they shall provide a copy of any

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such complaint, a letter requesting that the complaint be filed, and a copy of

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this Order to the Clerk of this Court. The Clerk shall then forward the

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complaint, letter, and copy of this Order to a reviewing Judge for a

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determination of whether the complaint should be accepted for filing. Any

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violation of this Order will expose Plaintiffs to a contempt hearing and

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appropriate sanctions, and any action filed in violation of this Order will be

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subject to dismissal. If the Court does not grant permission to file the

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document, in writing, within 30 days of the date of the letter, permission will

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be deemed denied.

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IT IS SO ORDERED.

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Dated: November 28, 2017

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