Bailey et al v. Suey et al

Filing 111

ORDER Denying Defendants' 80 Motion to Revoke Plaintiff Anthony Bailey's In Forma Pauperis Status and Declare him a Vexatious Litigant. Plaintiff's 107 Motion for Statements is Denied as moot. Signed by Magistrate Judge Carl W. Hoffman on 8/11/2014. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ANTHONY BAILEY, et al.,
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Plaintiffs,
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vs.
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CPT. RICH SUEY, et al.,
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Defendants.
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__________________________________________)

Case No. 2:12-cv-01954-JCM-CWH
ORDER

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This matter is before the Court on Defendants’ Motion to Revoke Plaintiff Anthony

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Bailey’s In Forma Pauperis Status and Declare him a Vexatious Litigant (#80), filed February 14,

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2014. Defendants’ motion and attached exhibits are voluminous. The initial motion (#32)

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requesting the same relief was denied without prejudice for failure to comply the Court’s Local

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Rules regarding the filing of exhibits. (#79). Because the denial was based on an adminsitrative

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error, no substantive changes were made to the underlying motion. Therefore, additional briefing

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was not required. Consequently, the Court has also reviewed Plaintiff Anthony Bennett’s Response

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(#34), filed April 29, 2013, and Defendants’ Reply (#35), filed May 9, 2013.

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BACKGROUND
Defendants’ motion is straightforward and makes two requests for relief. First, Defendants

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request an order revoking Plaintiff Anthony Bailey’s (“Bailey”) in forma pauperis status pursuant

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to 28 U.S.C. § 1915(g). Second, Defendants request that the Court exercise its inherent authority to

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declare Bailey a vexatious litigant and restrict future filings based on Bailey’s “flagrant abuse of the

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judicial process” over the course of several years and several cases. Bailey is a prisoner with a long
litigation history, both in this court and the Ninth Circuit. Throughout this history Bailey “has

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become as adept as the best attorney at accessing the courthouse clerk’s office, [but] his success

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rate on the merits of his cases is much less enviable.” Andrews v. Cervantes, 493 F.3d 1047, 1049

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(9th Cir. 2007). Attached as exhibit D to Defendants’ motion (#80), are portions of the record in

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multiple cases filed by Bailey dating back to the year 1994. Needless to say, Bailey is a prolific

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litigator as measured solely by volume.

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Bailey’s response (#34) to the motion is difficult to follow. It appears he opposes the

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request based on his belief that his case is meritorious. He further asserts that the request to

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designate him a “vexatious litigant” is libelous and an attack on his First Amendment rights. He

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accuses Defendants’ counsel, whom he characterizes as “corrupt,” of generalized discovery

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violations in an unrelated case. He claims that none of his activity in this case could be accurately

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described as vexatious or harassing. He claims that any lack of success in his prior suits is more

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attributable to judicial discrimination than lack of merit. Lastly, he claims the requested relief

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would be improper because his complaint has already been screened and allowed to proceed after

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the case was removed from state court.

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Defendants’ reply reiterates many of the arguments set forth in the original motion.

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Defendants note that nowhere in his response does Bailey dispute the information set forth in the

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motion summarizing thirty-six (36) cases he has filed in this court and the Ninth Circuit. They

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further note that the only response to Bailey’s “prodigious and meritless litigation history” is

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baseless claims of judicial misconduct and discrimination. They argue that “Plaintiff cannot

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demonstrate the existence of a valid underlying claim” in this matter. Noting that the undisputed

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litigation history shows that Plaintiff long ago exceeded “three strikes” under 28 U.S.C. § 1915(g),

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Defendants conclude that the appropriate remedy is to “revoke the privilege the state court afforded

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Plaintiff to proceed in this case in forma pauperis.” They further conclude that, absent a

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declaration that he is a vexatious litigant with accompanying pre-filing conditions, Plaintiff will

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simply abuse the judicial system.

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DISCUSSION
1. 28 U.S.C. § 1915(g)
Defendants have done an admirable job setting for the general protocol for resolution of
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motions to revoke in forma pauperis status pursuant to Section 1915(g), which provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.

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28 U.S.C. § 1915(g). Normally, an individual must pay a filing fee to commence litigation in
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federal court. 28 U.S.C. § 1914. Section 1915, however, allows a district court to waive the filing
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fee for most individuals unable to afford it upon submission and approval of an application to
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proceed in forma pauperis. The Prisoner Litigation Reform Act of 1995 (PLRA) enacted several
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reforms to “reduce the quantity and improve the quality of prisoner suits.” Jones v. Brock 549 U.S.
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199, 203-04 (2007) (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)). One of those reforms is
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found in Section 1915(g), which has come to be known as the “three strikes rule.” Cervantes, 493
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F.3d at 1049.
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The Ninth Circuit has given clear guidance on how to determine whether a particular case
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or outcome counts as a “strike” for purpose of Section 1915(g). See generally Andrews v. King,
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398 F.3d 1113, 1116 (9th Cir. 2005). The party seeking to challenge a prisoner-plaintiff’s IFP
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status bears the initial burden to “produce documentary evidence that allows the district to conclude
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the plaintiff has filed at least three prior actions that were dismissed because they were ‘frivolous,
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malicious or fail[ed] to state a claim.’” Id. at 1120. Once the initial burden is met, the burden shifts
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to the prisoner to rebut or explain why a prior dismissal should not count as a “strike.” Id. “Not all
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unsuccessful cases qualify as a strike under [Section] 1915(g).” Id. at 1121. The reviewing court
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must carefully evaluate the order dismissing a previous action or appeal along with any other
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information, to determine whether the action or appeal was dismissed because it was frivolous,
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malicious or failed to state a claim. Id. An action or appeal is frivolous “if it is ‘of little weight or
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importance: having no basis in law or fact.’” Id. (quoting Webster’s Third New International
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Dictionary 913 (1993)). An action or appeal is malicious “if it was filed with the ‘intention or
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desire to harm another.’” Id. (quoting Webster’s Third New International Dictionary 1367 (1993)).
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An action fails to state a claim if it is dismissed pursuant to the standard set forth in Federal Rule of
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Civil Procedure 12(b)(6). Id.

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The undersigned has reviewed Defendants’ request and attached materials and, though

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Defendants have done an excellent job identifying and reviewing Plaintiff’s lengthy litigation

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history, they have not answered the critical initial question: Pursuant to Section 1915(g), can the

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Court revoke in forma pauperis status bestowed in state court prior to removal.1 There is very little

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case law on the question, but other district courts within the Ninth Circuit have been confronted

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with the issue and determined that there is no authority to revoke in forma pauperis status granted

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by a state court prior to a case being removed to federal court. See Ransom v. Vogel, 2013 WL

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3968338, n. 1 (E.D. Cal.) (finding that even though plaintiff had previously been deemed a prisoner

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with three strikes or more and unable to proceed in forma pauperis under Section 1915(g), the

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defendants payment of the filing fee upon removal made “[p]laintiff’s status” irrelevant to the

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action); Ransom v. Aguirre, 2013 WL 1338811, n. 1 (E.D. Cal.) (same); Ransom v. Aguirre, 2013

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WL 398903, n. 1 (E.D. Cal.) (same); Carrea v. California, 2010 WL 3984832 *8 (C.D. Cal.)

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(same).

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In Carrea, the court indicated that the Section 1915(g) motion brought after removal

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presented “substantial evidence” that the prisoner had well exceeded three strikes within the

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meaning of Section 1915(g). However, it declined to revoke in forma pauperis after removal

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because it was the removal, not any action by the prisoner, that caused the action to filed in federal

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court. Thus, as a consequence of removal, “there was, and is, no need for plaintiff to seek leave to

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proceed without prepayment of the filing fee pursuant to Section 1915.” Carrea, 2010 WL

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3984832 *8. Carrea acknowledged the “curious” and “troubling” nature of the circumstances, but

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determined that Section 1915(g) could not rectify the scenario where a defendant elects to remove a

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case filed by a plaintiff in forma pauperis in state court even though the plaintiff could have been

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denied leave to proceed in forma pauperis under Section 1915(g) had the case originally been filed

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by the plaintiff in federal court. Thus, though Defendants present substantial evidence that Plaintiff

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Defendants acknowledge in their moving papers that in forma pauperis status was granted by the state
court prior to this matter being removed.

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has incurred three strikes under Section 1915(g), they have not demonstrated that Section 1915(g)

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is applicable in circumstances where a prisoner files suit in state court and the defendants elect to

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pay the filing fee and remove the matter to federal court. Consequently, the request to revoke

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Plaintiff’s in forma pauperis status granted by the state court prior to removal is denied.

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2. Vexatious Litigant

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Pointing to Plaintiff’s “long standing practice of filing baseless, far-fetched and exaggerated

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civil claims at police and correctional agencies,” Defendants request that Plaintiff be designated as

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a vexatious litigant and pre-filing restrictions imposed. The All Writs Act, 28 U.S.C. § 1651(a),

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empowers federal district courts to enjoin vexatious litigants who have a history of abusing the

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court’s limited resources. De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) (citation

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omitted). Under the All Writs Act, a district court may order a person with lengthy histories of

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abusive litigation practices to obtain leave of the court before filing any future lawsuits. Molski v.

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Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007).

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“Flagrant abuse of the judicial process cannot be tolerated because it enables one person to

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preempt the use of judicial time that properly could be used to consider the meritorious claims of

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other litigants.” Molski, 500 F.3d at 1057 (citing De Long, 912 F.2d at 1148). The Ninth Circuit

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has cautioned that vexatious litigant orders are an extreme remedy and should rarely be entered. De

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Long, 912 F.2d at 1148 (citing Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d

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1515, 1523-26 (9th Cir. 1984). This is because such an order restricts access to the courts, that is,

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the litigant’s “final safeguard for vitally important constitutional rights.” Wood, 705 F.2d at 1525.

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“An injunction cannot issue merely upon a showing of litigiousness. The plaintiff’s claims must

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not only be numerous, but also must be patently without merit.” Moy v. United States, 906 F.2d

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467, 470 (9th Cir. 1990) (citation omitted). In determining whether a pre-filing order is

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appropriate, courts consider four factors: (1) notice and an opportunity to be heard prior to

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designation as a vexatious litigant, (2) an adequate record listing the cases and motions relied upon

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to designate the litigant vexatious, (3) substantive findings as to the frivolous and harassing nature

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of the litigant’s actions, and (4) a narrowly tailored order to fit the specific vice encountered.

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Molski, 500 F.3d at 1057-58. The first two requirements are procedural and define “[a] specific
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method or course of action” that district courts should assess in determining whether a litigant is

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vexatious. Molski, 500 F.3d at 1058. The latter two are “substantive consideration ... [that] help

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the district court define who is, in fact, a ‘vexatious litigant’ and construct a remedy that will stop

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the litigant’s abusive behavior while not unduly infringing the litigant’s right to access the courts.”

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Id. The third factor, substantive findings as to the frivolous and harassing nature of the litigant’s

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actions, is the “heart of the vexatious litigant analysis.” Id. at 1059.

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In this matter, Plaintiff has received the requisite notice because he received notice of the

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motion requesting he be declared a vexatious litigant and was given the opportunity to respond.

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Molski, 500 F.3d at 1058 (finding that notice of the motion and opportunity to respond is sufficient

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to satisfy the first factor). There is no debate regarding Plaintiff’s extensive litigation history.

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However, the undersigned finds that Defendants have not satisfied the third factor and, therefore,

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the request to declare Plaintiff a vexatious litigant fails. To establish that a litigant’s actions are

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frivolous or harassing, courts “look at ‘both the number and content of the filings as indicia’ of the

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frivolousness of the litigant’s claims.” De Long, 912 F.2d at 1148. Defendants have catalogued

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Plaintiff’s extensive litigation history, but have failed to acknowledge that the complaint in this

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matter has been screened pursuant to 28 U.S.C. § 1915. The Court has determined that, in this

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matter, Plaintiff adequately alleged claims under either the Eighth or Fourteenth Amendment for

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the alleged deprivation of outdoor exercise and proper ventilation within the jail facility. (#14) at

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2:21-27. All other claims were dismissed, including Plaintiffs’ claims for relief pursuant to 18

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U.S.C. §§ 241 and 241, Nev. Rev. Stat. §§ 212.010, 212.020, and 252.190, and claims made under

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the Fourth Amendment.

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The Court is mindful that “[f]rivolous litigation is not limited to cases in which a legal

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claim is entirely without merit. It is also frivolous for a claimant who has some measure of a

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legitimate claim to make false factual assertions. Just as bringing a completely baseless claim is

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frivolous, so too a person with a measured legitimate claim may cross the line into frivolous

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litigation by asserting facts that are grossly exaggerated or totally false.” Molski, 500 F.3d at 10-

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60-61. As measured by degree, the fact that Plaintiff’s prior lawsuits may have been baseless or

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exaggerated does not render the current lawsuit such. The simple fact that the plaintiff has filed a
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large number of complaints does not make him a vexatious litigant. Id at 1061. There is nothing

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inherently vexatious in Plaintiff’s current lawsuit as screened. Vexatious litigant orders are an

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extreme remedy and should be rarely be entered. On the record here, the Court finds such an order

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is not appropriate. “An injunction cannot issue merely upon a showing of litigiousness.” Moy, 906

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F.2d at 470.

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Based on the foregoing and good cause appearing,

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IT IS HEREBY ORDERED that Defendants’ Motion to Revoke Plaintiff Anthony

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Bailey’s In Forma Pauperis Status and Declare him a Vexatious Litigant (#80) is denied.

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Statements (#107) is denied as
moot.
DATED: August 11, 2014.

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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