O'Leary v. District Attorney of the State of Nevada et al

Filing 13

ORDER striking 10 Motion to Seal and striking 11 Motion/Application for Leave to Proceed in forma pauperis. Signed by Magistrate Judge Cam Ferenbach on 9/4/2014. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
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CORNELIUS J. O’LEARY, JR.,
Plaintiff,

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Case No. 2:12–cv–511–JCM–VCF

vs.
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DISTRICT ATTORNEY OF THE STATE OF
NEVADA, et al.,

ORDER

Defendants.

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This matter involves pro se Plaintiff Cornelius J. O’Leary’s civil rights action against, inter alia,
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the “District Attorney of the State of Nevada.” Before the court are O’Leary’s Motion to Seal (#10) and
Application to Proceed in Forma Pauperis (#11). For the reasons stated below, O’Leary’s Motion to
Seal and Application to Proceed in Forma Pauperis are denied.
BACKGROUND

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On February 19, 2013, the Honorable James C. Mahan, U.S. District Judge dismissed O’Leary’s

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action for want of prosecution. (See Doc. #6). While the action was pending, O’Leary was not granted in

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forma pauperis status and he never paid the court’s filing fee. Because O’Leary was not granted in

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forma pauperis status and never paid the court’s filing fee, he is not allowed to file documents in this
matter. See Metzger v. Hussman, 682 F. Supp. 1109, 1111 (D. Nev. 1988) (stating that the court has the

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inherent power to strike).
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Consequently, on August 15, 2014, the court struck a motion to seal that was filed by O’Leary.
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Additionally, the court also noted that the basis of O’Leary’s motion to seal was farcical. O’Leary
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moves the court to seal and permanently destroy all records relating to this matter because he has
allegedly been shot at, attacked by crowds, and harassed by the U.S. Marshals, TSA, and others “who

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claim to be protecting President Obama.” Now, O’Leary again moves the court to seal all records
relating to this matter. Like the previous motion to seal, O’Leary’s instant motion to seal is supported by
farcical arguments. O’Leary also moves the court to grant him in forma pauperis.
DISCUSSION

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O’Leary’s Motion to Seal and Application to Proceed in Forma Pauperis are denied. This matter

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is closed. This means that the court cannot grant O’Leary in forma pauperis status because there is

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nothing left to litigate. However, even if O’Leary had been granted in forma pauperis status, the court

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would still deny his motion to seal because O’Leary moves the court to seal and permanently destroy all

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records relating to this matter. This request for relief is extreme.

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In Kamakana v. City & Cnty of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006), the Court of
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Appeals for the Ninth Circuit stated that courts have historically recognized a “general right to inspect
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and copy public records and documents, including judicial records and documents.” This right is
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justified by the interest of citizens in “keep[ing] a watchful eye on the workings of public agencies.” Id.
(citation omitted). Such vigilance is aided by the efforts of newspapers to “publish information

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concerning the operation of government.” Id. Where, as here, a party moves to seal the court’s entire

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docket, that party must demonstrate “compelling reasons” that are “sufficient to outweigh the public’s

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interest in disclosure.” Id. at 1179.

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O’Leary has failed to demonstrate compelling reasons. Like his previous motion, O’Leary’s

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instant motion to seal is farcical, vexatious, and frivolous. Accordingly, the court warns O’Leary that if

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he continues to file farcical, vexatious, or frivolous motions, the court will bar him from filing papers
with this court in the future. The court’s power to bar O’Leary from filing papers with this court stems

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from the All Writs Act 28 U.S.C. § 1651(a). Burkley v. Jacquez, No. CV 13–00424–VAP, 2013 WL
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594766, at *3–*4 (C.D. Cal. Jan. 24, 2013). It provides district courts with the inherent power to enter
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pre-filing orders against vexatious litigants. Id. (citing Weissman v. Quail Lodge Inc., 179 F.3d 1194,
1197 (9th Cir. 1999)).

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In De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990), the Ninth Circuit outlined four

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factors for district courts to examine before entering pre-filing orders. First, the litigant must be given

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notice and a chance to be heard before the order is entered. Id. at 1147. Second, the district court must

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compile “an adequate record for review.” Id. at 1148. Third, the district court must make substantive

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findings about the frivolous or harassing nature of the plaintiff's litigation. Id. Finally, the vexatious

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litigant order “must be narrowly tailored to closely fit the specific vice encountered.” Id.

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The court finds that these factors are now satisfied here. If O’Leary continues to file vexatious or

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frivolous papers, the court will bar from filing papers with this court in the future.
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ACCORDINGLY, and for good cause shown,
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IT IS ORDERED that O’Leary’s Motion to Seal (#10) and Application to Proceed in Forma
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Pauperis (#11) are STRICKEN.
DATED this 4th day of September, 2014.
_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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