Albanese v. Federal Bureau of Investigations

Filing 5

REPORT AND RECOMMENDATION that Plaintiff Grace Albanese's complaints in cases 2:17-cv-01599-JAD-VCF and 2:17-cv-01600-JAD-VCF be DISMISSED. Plaintiff be deemed a vexatious litigant pursuant to 28 U.S.C. § 1651(a) and be ENJOINED an d PROHIBITED from filing any complaint, petition, or other document in this court without first obtaining leave of this court. The Court enter an order stating that if Plaintiff intends to file any papers with the court, she must first seek lea ve of the Chief Judge of this court.The Clerk of Court be authorized to reject and refuse to file, and/or discard any new complaint, petition, document on a closed case, or any other document submitted in violation of the Order. Objections to R&R due by 7/13/2017. Signed by Magistrate Judge Cam Ferenbach on 6/29/2017. (Copies have been distributed pursuant to the NEF - SLD)

UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
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***

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GRACE ALBANESE,
Case No. 2:17-cv-01599-JAD-VCF

Plaintiff,

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vs.

REPORT AND RECOMMENDATION

THE FEDERAL BUREAU OF
INVESTIGATION,

RESPONSE TO
(ECF No. 4)

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ORDER

TO

SHOW

CAUSE

Defendant.

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GRACE ALBANESE,
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Case No. 2:17-cv-01600-JAD-VCF

Plaintiff,

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REPORT AND RECOMMENDATION

vs.

RESPONSE TO
(ECF No. 3)

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LAS VEGAS METROPOLITAN POLICE
DEPARTMENT,

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ORDER

TO

SHOW

CAUSE

Defendant.

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Before the Court is Plaintiff Grace Albanese’s Responses to the Court’s Orders to Show Cause in

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the above captioned actions. For the reasons stated below, the Court recommends that Albanese be

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deemed a vexatious litigant.

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I. Background
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A. A Brief History of Albanese’s Actions
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Since March 2016, Albanese has filed 31 federal cases in the district of Nevada, 29 of which are
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currently ongoing, and 8 of which are assigned to this Magistrate Judge.1 In 25 of Albanese’s cases, she
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(1) Albanese v. Federal Bureau of Investigations 2:16-cv-00529-KJD-NJK (March 2016); (2) Albanese v. Transportation
Security Administration, case no. 2:16-cv-00530-GMN-CWH (March 2016); (3) Albanese v. Homeland Security of the United
States, Las Vegas, NV, case no. 2:16-cv-00531-RFB-VCF (March 2016); (4) Albanese v. Las Vegas Metropolitan Police
Department, case no. 2:16-cv-00532-RFB-GWF (March 2016); (5) Albanese v. Regional Transportation Commission of
Southern Nevada, case no. 2:16-cv-01882-APG-PAL (Aug. 2016); (6) Albanese v. Las Vegas Metro Police Dept., case no.
2:17-cv-00577-GMN-PAL (Feb. 2017); (7) Albanese v. Las Vegas Metropolitan Police Department, case no. 2:17-cv-01087GMN-GWF (April 2017); (8) Albanese v. Las Vegas Metropolitan Police Department, case no. 2:17-cv-01284-MMD-NJK

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has sued either the Las Vegas Metropolitan Police Department (“Metro”) or The Federal Bureau of
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Investigation (the “FBI”).2 Many of Albanese’s actions assert the same set of allegations: unknown

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persons stalk or spy on Albanese in her room and when she travels about, sometimes using listening

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devices or even hacking into her phone, but federal and state law enforcement ignore her pleas for help

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and have not captured the wrongdoers. Albanese asserts similar legal claims in all her cases, e.g.,

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violations of her civil rights under 42 U.S.C. § 1983 by denying her due process and equal protection;

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public corruption; and obstruction of justice. The claims and allegations in many of Albanese’s actions

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are repetitive and duplicative of each other.

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On June 15, 2017, and June 19, 2017, the Court entered an order to show cause in case numbers
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(May 2017); (9) Albanese v. Las Vegas Metropolitan Police Department, case no. 2:17-cv-01285-JCM-VCF (May 2017),
appeal docketed, no. 17-16127 (9th Cir. May 31, 2017); (10) Albanese v. Federal Bureau of Investigations, case no. 2:17-cv01286-JAD-PAL (May 2017); (11) Albanese v. Department of Homeland Security, case no. 2:17-cv-01287-JCM-PAL (May
2017); (12) Albanese v. Las Vegas Metropolitan Police Department, case no. 2:17-cv-01520-JAD-CWH (May 2017); (13)
Albanese v. Las Vegas Metropolitan Police Department, case no. 2:17-cv-01544-RFB-PAL (June 2017); (14) Albanese v. Las
Vegas Metropolitan Police Department et al, case no. 2:17-cv-01573-JCM-GWF (June 2017); (15) Albanese v. Las Vegas
Metropolitan Police Department, case no. 2:17-cv-01574-RFB-PAL (June 2017); (16) Albanese v. Federal Bureau of
Investigations, case no. 2:17-cv-01599-JAD-VCF (June 2017; (17) Albanese v. Las Vegas Metropolitan Police Department,
case no. 2:17-cv-01600-JAD-VCF (June 2017); (18) Albanese v. Las Vegas Metropolitan Police Department, case no. 2:17cv-01613-APG-PAL (June 2017); (19) Albanese v. Federal Bureau Of Investigation, case no. 2:17-cv-01614-JAD-PAL (June
2017); (20) Albanese v. Las Vegas Metropolitan Police Department, case no. 2:17-cv-01633-JAD-VCF (June 2017); (21)
Albanese v. Las Vegas Metropolitan Police Department, case no. 2:17-cv-01634-RFB-CWH (June 2017; (22) Albanese v.
Federal Bureau of Investigations, case no. 2:17-cv-01635-JAD-CWH (June 2017); (23) Albanese v. Las Vegas Metropolitan
Police Department, case no. 2:17-cv-01640-MMD-VCF (June 2017); (24) Albanese v. Federal Bureau of Investigations, case
no. 2:17-cv-01641-JAD-GWF (June 2017); (25) Albanese v. Homeland Security, case no. 2:17-cv-01642-RFB-GWF (June
2017); (26) Albanese v. Federal Bureau of Investigations, case no. 2:17-cv-01662-JAD-NJK (June 2017); (27) Albanese v.
Homeland Security, case no. 2:17-cv-01663-JCM-NJK (June 2017); (28) Albanese v. Las Vegas Metropolitan Police
Department, case no. 2:17-cv-01664-JCM-GWF (June 2017); (29) Albanese v. Las Vegas Metropolitan Police Department,
case no. 2:17-cv-01735-JCM-PAL (June 2017); (30) Albanese v. Las Vegas Metropolitan Police Department, case no. 2:17cv-01780-JCM-VCF (June 2017); and (31) Albanese v. Las Vegas Metropolitan Police Department, case no. 2:17-cv-01782JCM-VCF (June 2017).
The Court takes judicial notice of all filings on record in Albanese’s actions in the District of Nevada. Rule 201 of the Federal
Rules of Evidence provides for judicial notice of adjudicative facts that are, among other things, “capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.” All of Albanese’s cases are available on
the federal judiciary’s Public Access to Court Electronic Records system, commonly known as “PACER.” Judicial notice is
properly taken of proceedings in other courts if those proceedings have a direct relation to matters at issue. See, e.g., Reyn’s
Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking judicial notice of court filings from other
federal court proceedings as matters of public record). Judicial notice is appropriate in this action because Albanese’s litigation
history is relevant to evaluating litigiousness and the proceedings and filings are readily verifiable.
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2:17-cv-01599-JAD-VCF and 2:17-cv-01600-JAD-VCF. In the orders, the Court granted Albanese’s
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requests to proceed in forma pauperis under § 1915(a). The Court reviewed the complaints and ordered

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Albanese “to show cause in writing … why she should not be declared a vexatious litigant.” The orders

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noted that failure to file a timely response may result in a report and recommendation “to the district judge

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that [Albanese] be declared a vexatious litigant.”

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For both cases, Albanese timely filed identical responses to the Court’s orders to show cause on

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June 21, 2017. In Albanese’s responses, she begins by listing various “adjectives,” including “fanciful

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factual allegation, without merit, frivolous, harassing, inarguable legal conclusions, duplicative redundant,

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irrational, wholly incredible.” See, e.g., Albanese v. Federal Bureau of Investigations, case no. 2:17-cv-

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01599-JAD-VCF, ECF No. 4 at 2 (June 21, 2012). Albanese acknowledges that she is “guilty of some
but not all those adjectives.” Id. But Albanese disagrees with her claims and allegations being labeled

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“without merit, frivolous, irrational, and wholly incredible” and argues that “[j]ust because they (my case
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log) sound so irrationally incredible that they are frivolously without merit does not preclude my cases
from the truth.” Id. After all, “who says the truth can’t be crazy and crazy can’t be the truth.” Id. Albanese
further states:
And getting to the truth is more important to me than labels. I can’t explain
my situation … without showing the truth in real time by whoever is
perpetrating it. No mention about collusion, duty to correct fanciful factual
allegations by law enforcement that whatever I allege is untrue. If I could
just continue returning to the Court to submit letters I won’t submit
anymore duplicative, redundant cases … Your Honor mentions so
poi[g]nantly in his ruling that my ‘filings are legion.’ Once again, I need to
explain all the suspicious activity taking place both in and out of my
apartment. The redundancy is due to my poor relationship with 311 / 911.
So I argue that Your Honor allow me to continue filing my letters if I stop
law suit activations when am so hopelessly mad as hell. The slowness by
the wheels-of-justice just add to all the harassment I’m going thru on a daily
basis.

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Id. at 3. (emphasis added in bold).
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B. Dismissal of Claims
a. Legal Standards
Under 28 U.S.C. § 1915(e)(2), a district court “shall dismiss the case at any time if the court
determines that … the action … is (1) “frivolous or malicious”; (2) fails to state a claim upon which relief

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may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. The
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term “frivolous” when applied to a complaint embraces not only the inarguable legal conclusion but also
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the fanciful factual allegation. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Cato v. United
States, 70 F.3d 1103, 1106 (9th Cir. 1995). While an in forma pauperis complaint may not be dismissed

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simply because the court finds the plaintiff’s allegations unlikely, a finding of factual frivolousness is

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appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or

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not there are judicially noticeable facts available to contradict them. See Denton v. Hernandez, 504 U.S.

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25, 33 (1992).

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Allegations of a pro se complaint are held to less stringent standards than formal pleading drafted
by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). When a court dismisses a
complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as

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to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not
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be cured by amendment. See Cato, 70 F.3d at 1106 (citation omitted). Pro se litigants, however, “should
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not be treated more favorably than parties with attorneys of record,” rather, they must follow the same
rules of procedure that govern other litigants. See Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986);
see also Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).
b. Screening Albanese’s Complaints
Before the Court are two of Albanese’s complaints. First, in Albanese v. Federal Bureau of

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Investigations, case no. 2:17-cv-01599-JAD-VCF (June 8, 2017), Albanese brings suit against the FBI for
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(1) allegedly violating her civil rights under 42 U.S.C. § 1983 by denying Albanese equal protection; (2)

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public corruption; and (3) obstruction of justice.3 See Albanese v. Federal Bureau of Investigations, case

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no. 2:17-cv-01599-JAD-VCF, ECF No. 1-1 (June 8, 2017). The one-page complaint seeks damages of

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$500,000 and states in its entirety the following:

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OBSTRUCTION of Justice, denying me equal protection in allowing me to
be stalked by the same male on a daily basis. Public Corruption by violating
the Duty to correct policy under civility code of conduct in the F.B.I.

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Id.

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Second, in Albanese v. Las Vegas Metropolitan Police Department, case no. 2:17-cv-01600-JAD10

VCF (June 8, 2017), Albanese brings suit against Metro for (1) allegedly violating her civil rights under
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42 U.S.C. § 1983 by denying Albanese equal protection “for allowing the same male to stalk … [her] on
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a daily basis”; (2) public corruption; and (3) obstruction of justice.4 See Albanese v. Las Vegas

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Metropolitan Police Department, case no. 2:17-cv-01600-JAD-VCF, ECF No. 1-1 at 1 (June 8, 2017).

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The complaint states in its entirety the following:
The Las Vegas Police Department on June 8, 2017 allowed a person of
interest to continue stalking me. Desert Inn / Paradise 10:43 am he is so
confident he is not going to be arrested for stalking he even waits for me to
catch up with him then he departs the area as I am calling the police. The
police who instead of catching up with the repeat stalker (10:34 am
[unintelligible word] / Desert Inn); 10:30 am Cambridge / Desert Inn; the
police are driving pass me with sirens blarring 11:27 am North on Paradise
@ Convention Center as the stalker gets away to stalk me on my return trip
home. Every day when I call for help the police never arrive to help.

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Claims for “public corruption” and “obstruction of justice” are mostly codified in Title 18 of the United States Code. See,
e.g., 18 U.S.C. 1503 (outlawing obstruction of judicial proceedings), 18 U.S.C. 1512 (same for witness tampering), 18 U.S.C.
1505 (same for obstruction of congressional or administrative proceedings); 18 U.S.C. § 201 (bribery of public officials and
witnesses), 18 U.S.C. § 666 (theft or bribery concerning programs receiving federal funds). Title 18 of the United States Code
covers crimes and criminal procedures. Such criminal allegations, however, are not properly brought forth in a civil complaint.
These criminal provisions provide no basis for civil liability. See, e.g., Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980);
Williams v. Nevada Dep’t of Corr., No. 2:13-CV-00941-JAD, 2013 WL 6331033, at *4 (D. Nev. Dec. 4, 2013).
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See supra note 3.

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Id. at 2.
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The claims and factual allegations raised in Albanese’s complaints against the FBI and Metro are

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duplicative of those raised in other actions brought by Albanese. To illustrate, the Court has included the

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following examples.
i.

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The Federal Bureau of Investigation

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In Albanese v. Federal Bureau of Investigations, Albanese sued the FBI for violation of her civil

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rights under 42 U.S.C. § 1983 for denying her due process and equal protection, and obstruction of justice.

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See Albanese v. Federal Bureau of Investigations, Case No. 2:17-cv-01641-JAD-GWF, ECF no. 1-1 at 1

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(June 13, 2017). The complaint in that case states in its entirety the following:

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The F.B.I. are aware that 1107 E. Desert Inn Apts 3 and 9 are observing me
in my bedroom and on June 13 Desert Parkway Behavioral Hospital CNA’s
were waiting for me while seeing my image live streamed on their phones.
June 12 1089 E. Desert Inn Apts 7 was live streamed my image when he
stalked me. The F.B.I. is acting in collusion with Apts 3 and 9 who are
com[m]itting criminal misconduct.

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Id. at 2.

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In Albanese v. Federal Bureau of Investigations, Albanese sued the FBI for violation of her civil
rights under 42 U.S.C. § 1983 for denying her due process and equal protection, and obstruction of justice.

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See Albanese v. Federal Bureau of Investigations, Case No. 2:17-cv-01635-JAD-CWH, ECF no. 1-1 (June
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12, 2017). The complaint in that case states the following:
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The F.B.I. refuse to help me when they know I’m being followed by the
same man who is being supported and funded by people who want me to
move. The F.B.I. refuse to help me when I am being stalked and they know
by whom. The F.B.I. refuses to pull the plug on 1107 E. Desert Inn Apts 3
and 9 observation of me in my room. The F.B.I. know I’m being stalked
and they won’t help me. This is obstruction of justice, denying me due
process and equal protection.

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Id.

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In Albanese v. Federal Bureau Of Investigation, Albanese sued the FBI for violation of her civil
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rights under 42 U.S.C. § 1983 by denying her equal protection, and obstruction of justice. See Albanese

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v. Federal Bureau Of Investigation, Case No. 2:17-cv-01614-JAD-PAL, ECF no. 1-1 (June 9, 2017). The

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complaint states the following:
Allowing people to stalk me on a daily basis in violation of my equal
protection. Allowing people to inform on me to people who are funding and
supporting someone who stalks me on a daily basis allowing obstruction of
the law to aid in stalking to continue.

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Id.
In Albanese v. Federal Bureau of Investigations, Albanese sued the FBI for, inter alia, violation

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of her civil rights under 42 U.S.C. § 1983 by denying her equal protection, and obstruction of justice. See

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Albanese v. Federal Bureau of Investigations, Case No. 2:17-cv-01286-JAD-PAL, ECF no. 1-1 (May 8,

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2017). The complaint states in its entirety the following:

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Complaint: Denying me equal protection under the law by not informing
me that 1107 E. Desert Inn Apts 3 and 9 are observing me in my room.
Obstruction of justice by not informing any law enforcement that I am being
observed in my room and listening device is used by Apts. 3 and 9 to spy
on me. Violating my 4, 5, 9, 14th and privacy rights. $500,000.00 demand
… Not informing me Apt 3 has hacked into my phone.

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Id.

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In Albanese v. Federal Bureau of Investigations, Albanese sued the FBI for violation of her civil

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rights under 42 U.S.C. § 1983 for denying her due process and equal protection, and obstruction of justice.

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See Albanese v. Federal Bureau of Investigations, Case No. 2:17-cv-01662-JAD-NJK, ECF no. 1-1 at 2

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(June 14, 2017). The complaint in that case states in its entirety the following:
F.B.I. know I’m being stalked everyday and they refuse to help me. Same
male is stalking me along my route AM & PM. He is being supported and
funded by other parties and the F.B.I. won’t get involved. Live streaming of
me in my apartment is aiding and assisting people who stalk me, daily.

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Id.
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ii.

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The Las Vegas Metropolitan Police Department

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In Albanese v. Las Vegas Metropolitan Police Department, Albanese sued Metro for violation of

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her civil rights under 42 U.S.C. § 1983 by denying her equal protection, and obstruction of justice. See

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Albanese v. Las Vegas Metropolitan Police Department, case no. 2:17-cv-01285-JCM-VCF, ECF no. 1-

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1 (May 8, 2017), appeal dismissed for lack of jurisdiction, court of appeals docket no. 17-16127, docket

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entry no. 3 (9th Cir. June 15, 2017). The complaint in that case states in its entirety the following:

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Denying me equal protection under the law by not informing me 1107 EDesert Inn # 3 and 9 are observing me in my room. And that listening device
is being use by them to spy on me. Obstruction of justice by not informing
law enforcement that Apts. 3 and 9 are observing me in my room and that
Apt 3 has hacked into my phone.

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Id.5
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In Albanese v. Las Vegas Metropolitan Police Department, Albanese sued Metro for violation of

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her civil rights under 42 U.S.C. § 1983 by denying her equal protection and due process, and obstruction

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of justice. See Albanese v. Las Vegas Metropolitan Police Department, Case No. 2:17-cv-01633-JAD-

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VCF, ECF no. 1-1 at 1 (June 12, 2017). The complaint in that case states the following:
The Las Vegas Police Department refuse to arrest people who they know
are observing me in my bedroom. They also knew on June 9, and June 12
that 1089 E. Desert Inn Apt 7 was stalking me and they refuse to question
him. The LVMPD refuse to arrest the same man who stalks me everyday
and the police are in collusion with him by not arresting him. The LVMPD
are allowing people to stalk me. The police know who it is and when they
are stalking. The police are guilty of obstruction of justice, denying me
equal protection and violating my due process rights by not responding to
my calls for help. The man stalking me June 12 along my route is being
supported and funded by people who in collusion with him and those are
supporting the stalker. When the police do respond they never talk to people

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See also Albanese v. Department of Homeland Security, case no. 2:17-cv-01287-JCM-PAL, ECF No. 1-1 (May 8, 2017)
(“Complaint: Denying me equal protection under the law by not informing that 1107 E. Desert Inn #3 and 9 are observing me
in my room. Obstruction of justice by not informing any law enforcement that I am being observed in my room and listening
device is being used by Apts 3 and 9 to spy on me. Not informing me Apt 3 has hacked into my phone …”).

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stalking me (June 9 1089 E. Desert Inn #7, 1107 E. Desert Inn Apt 1 and 3)
instead officer Woodson 9184 June 9 puts on blue gloves to intimidate me
treating me like the criminal. The police never talked about the stalkers.

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Id. at 2.

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In Albanese v. Las Vegas Metropolitan Police Department, Albanese sued Metro for violation of

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her civil rights under 42 U.S.C. § 1983 by denying her equal protection and due process, and obstruction

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of justice. See Albanese v. Las Vegas Metropolitan Police Department, Case No. 2:17-cv-01640-MMD-

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VCF, ECF no. 1-1 at 2 (June 13, 2017). The complaint states the following:

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Las Vegas Police Department 311 / 911 Heather 10183 and so many others
are obstructing justice by saying I’m not being stalked June 13 at Desert
Parkway Behavioral Hospital. 1107 E. Desert Inn Apts 3 and 9 are live
streaming my image to Desert Parkway & June 12 to 1089 E. Desert Inn #7
when they stalked me. I call 311 / 911 and they act naive and act like F.B.I.
C.I.A. & homeland security by saying they know no stalking is taking place.

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Id. at 1.

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In Albanese v. Las Vegas Metropolitan Police Department, Albanese sued Metro for violation of

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her civil rights under 42 U.S.C. § 1983 by denying her equal protection and due process, and obstruction

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of justice. See Albanese v. Las Vegas Metropolitan Police Department, Case No. 2:17-cv-01634-RFBCWH, ECF no. 1-1 at 1 (June 12, 2017). The complaint states in its entirety the following:

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311 / 911 are over reaching their authority by acting like F.B.I., CIA,
Homeland Security, etc by saying I’m not being stalked, harassed or spied
on all resulting in obstruction of justice, violating my due process to first
have their facts straight and denying me equal protection under the law. All
the 311 / 911 operators won’t dispatch officers to help me because they
concluded I wasn’t be stalked because the person stalking me is sitting
down. Some operators refuse to give me their names David Touner 8142
refused to tell me the name of the Sargeant. 8:45 am June 12 Swensen /
Desert Inn 45 Police cars in the area and not one would help me or arrest
the man stalking me. This stalker is being supported and funded by people
and told to stalk me along my route. 311 / 911 told me to take a different
route violating my civil rights to be allowed to walk about without fear of
stalkings.

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Id. at 2.
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In Albanese v. Las Vegas Metropolitan Police Department, Albanese again sued Metro for

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violation of her civil rights under 42 U.S.C. § 1983 by denying her equal protection, and obstruction of

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justice. See Albanese v. Las Vegas Metropolitan Police Department, Case No. 2:17-cv-01613-APG-PAL,

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ECF no. 1-1 (June 9, 2017). The one-page complaint states the following:

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Allowing my civil rights to be violated by allowing obstruction to help
people stalk me. To deny me equal protection by not allowing law
enforcement to arrest people stalking me on a daily basis when I exit my
house. To obstruct by not arresting people who are informing on me to
people who stalk me.

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Id.

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In Albanese v. Las Vegas Metropolitan Police Department, Albanese sued Metro for violation of

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her civil rights under 42 U.S.C. § 1983 by denying her equal protection and due process, and obstruction
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of justice. See Albanese v. Las Vegas Metropolitan Police Department, Case No. 2:17-cv-01664-JCM13
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GWF, ECF no. 1-1 at 2 (June 14, 2017). The complaint states the following:
LVMPD are aware I’m being stalked and do nothing to stop the stalkings.
Same male is stalking plaintiff along her route AM & PM and LVMPD
won’t get involved. Other stalkings take place by various other individuals
that LVMPD are aware of and they allow it to take place Live streaming of
me in my apartment is aiding and assisting people who stalk me.

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Id.
c. Discussion

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim

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showing that the pleader is entitled to relief” to “give the defendant fair notice of what the … claim is and

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the grounds upon which it rests.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual allegations are not required, but “a plaintiff’s

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obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
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conclusions, and a formulaic recitation of a cause of action’s elements will not do.” See Twombly, 550
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U.S. at 545. “Factual allegations must be enough to raise a right to relief above the speculative level on

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the assumption that all of the complaint's allegations are true.” Id. In considering whether the plaintiff

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has stated a claim upon which relief can be granted, all material allegations in the complaint are accepted

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as true and are to be construed in the light most favorable to the plaintiff. See Russell v. Landrieu, 621

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F.2d 1037, 1039 (9th Cir. 1980); see also 5B Charles Alan Wright, Arthur R. Miller & Richard L. Marcus,

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Federal Practice and Procedure, § 1357 (3d ed. 2010).

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As demonstrated above, many of the claims and allegations in the above cases are directly

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related—and indeed nearly identical—to the issues raised in the complaints before this Court. Albanese’s

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complaints should be dismissed as frivolous because the claims and allegations are repetitive and
duplicative of Albanese’s other pending actions.

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Courts are not required to entertain duplicative or redundant lawsuits and may dismiss them as
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frivolous or malicious under § 1915(e). See, e.g., Cato, 70 F.3d at 1105 n.2 (noting that courts may dismiss
under § 1915 a complaint that merely repeats pending or previously litigated claims); Aziz v. Burrows,

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976 F.2d 1158, 1158 (8th Cir. 1992) (“district courts may dismiss a duplicative complaint raising issues

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directly related to issues in another pending action brought by the same party”); Adams v. Cal. Dep’t of

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Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (“Plaintiffs generally have ‘no right to maintain two

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separate actions involving the same subject matter at the same time in the same court and against the same

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defendant.”), overruled in part on other grounds by Taylor v. Sturgell, 553 U.S. 880 (2008); McWilliams

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v. State of Colorado, 121 F.3d 573, 574 (11th Cir. 1997) (holding that repetitious action may be dismissed
as frivolous or malicious).
The claims raised in Albanese’s complaints are directly related to those raised in other actions

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brought by Albanese. Accordingly, such claims are improperly raised in the complaints, as they are
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frivolous and should be dismissed. See Cato, 70 F.3d at 1106 (citation omitted).
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C. Vexatious Litigant
a. Requirements for Vexatious Litigant Order

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The All Writs Act, 28 U.S.C. § 1651(a), empowers federal district courts to enjoin vexatious

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litigants who have a history of abusing the court’s limited resources. See Ringgold-Lockhart v. Cty. of

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Los Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014) (citing De Long v. Hennessey, 912 F.2d 1144, 1147 (9th

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Cir. 1990)). Under the All Writs Act, a district court can order a person with lengthy histories of abusive

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litigation—a vexatious litigant—to obtain leave of the court before filing any future lawsuits. See Molski

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v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) (citing 28 U.S.C. § 165l(a)).
Flagrant abuse of the judicial process cannot be tolerated because it “enables one person to preempt
the use of judicial time that properly could be used to consider the meritorious claims of other litigants.”

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See Molski, 500 F.3d at 1057 (quoting DeLong, 912 F.2d at 1148). Vexatious litigant orders, however,
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are an extreme remedy, and should rarely be entered. “[T]he right of access to the courts is a fundamental
right protected by the Constitution.” See Ringgold-Lockhart, 761 F.3d at 1061 (quoting Delew v. Wagner,

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143 F.3d 1219, 1222 (9th Cir. 1998)). And restricting that access is a serious matter. Id. (“The First

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Amendment ‘right of the people … to petition the Government for a redress of grievances,’ which secures

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the right to access the courts, has been termed ‘one of the most precious of the liberties safeguarded by

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the Bill of Rights.’” (quoting BE & K Const. Co. v. NLRB, 536 U.S. 516, 524-25 (2002))); see also

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Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002) (noting that the Supreme Court has located the

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court access right in the Privileges and Immunities clause, the First Amendment petition clause, the Fifth
Amendment due process clause, and the Fourteenth Amendment equal protection clause); Moy v. United

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States, 906 F.2d 467, 470 (9th Cir. 1990) (comparing the profligate use of pre-filing orders to restrict the
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vexatious litigant’s right of access to the courts to hanging a “Sword of Damocles … over his hopes for
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federal access for the foreseeable future.”).
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Out of regard for the constitutional underpinnings of this right, pre-filing orders should be filed

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only if district courts comply with certain procedural and substantive requirements. See De Long, 912

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F.2d at 1147. When district courts seek to declare a litigant vexatious and impose pre-filing restrictions,

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they must: (1) provide litigants with notice and an opportunity to oppose the order before it is entered; (2)

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compile an adequate record for appellate review, including “a listing of all the cases and motions that led

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the district court to conclude that a vexatious litigant order was needed”; (3) make substantive findings of

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frivolousness or harassment; and (4) tailor the order narrowly so as “to closely fit the specific vice

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encountered.” See Ringgold-Lockhart, 761 F.3d at 1062 (citing De Long, 912 F.2d at 1147-48).

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The first two factors, providing litigants with adequate notice and an opportunity to be heard and

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compiling an adequate record for appellate review, are procedural requirements. Id. (citing Molski, 500
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F.3d at 1058); Pac. Harbor Capitol Inc. v. Carnival Airlines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000)
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(finding “an opportunity to be heard does not require an oral or evidentiary hearing on the issue … [t]he
opportunity to brief the issue fully satisfies due process requirements”). To the contrary, the “latter two

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factors … are substantive considerations … [that] help the district court define who is, in fact, a ‘vexatious

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litigant’ and construct a remedy that will stop the litigant’s abusive behavior while not unduly infringing

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the litigant’s right to access the courts.” Id. In “applying the two substantive factors,” to determine

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“whether a party is a vexatious litigant and whether a pre-filing order will stop the vexatious litigation or

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if other sanctions are adequate,” the Ninth Circuit has held that a separate set of considerations provides

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“a helpful framework,” including:

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(1) the litigant’s history of litigation and in particular whether it entailed
vexatious, harassing or duplicative lawsuits; (2) the litigant’s motive in
pursuing the litigation, e.g., does the litigant have an objective good faith
expectation of prevailing?; (3) whether the litigant is represented by
counsel; (4) whether the litigant has caused needless expense to other parties

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or has posed an unnecessary burden on the courts and their personnel; and
(5) whether other sanctions would be adequate to protect the courts and
other parties.

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Id.
Ultimately, in deciding whether or not to restrict a litigant’s access to the courts, the question the
court must answer is “whether a litigant who has a history of vexatious litigation is likely to continue to

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abuse the judicial process and harass other parties.” See Molski, 500 F.3d at 1058 (quoting Safir v. United
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States Lines, Inc., 792 F.2d 19, 23 (2nd Cir. 1986)).
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b. Discussion
Upon considering the five factors, the Court finds that Albanese “is likely to continue to abuse the

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judicial process,” and should be deemed vexatious. See Molski, 500 F.3d at 1058. As discussed above,

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Albanese has a history of filing numerous duplicative and frivolous lawsuits concerning the same

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allegations and claims against the same defendants. Both the number and content of Albanese’s filings

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serve as an indicia of the frivolousness of her claims. See Ringgold-Lockhart, 761 F.3d at 1064 (citing

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De Long, 912 F.2d at 1148). Additionally, Albanese’s numerous meritless lawsuits and the voluminous

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filings show a litigation history amounting to a “pattern of harassing litigation.” See De Long, 912 F.2d

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at 1148, n.3 (“the filing of several similar types of actions constitutes an intent to harass the defendant or
the court.”). The first factor, Albanese’s litigation history, thus supports restricting her access to the court.

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The second factor for consideration is Albanese’s motive in bringing these suits. See Ringgold–
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Lockhart, 761 F.3d at 1062. Although filing motions and lawsuits is not per se vexatious, Albanese has
engaged in a pattern of frivolous litigious conduct and harassment. Albanese’s motive, when looked at

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objectively, supports a finding that Albanese is a vexatious litigant. The second factor weighs in favor of

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restricting Albanese’s access to the court.

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Under the third factor, the Court notes that Albanese is a pro se litigant in this case. Courts are

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generally protective of the right of pro se litigants to enter the court. Nevertheless, courts are entitled to
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enjoin pro se litigants with “abusive and lengthy” litigation histories. See De Long, 912 F.2d at 1147.

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The court is not barred from placing pre-filing restrictions on pro se litigants, but the court must exercise

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particular caution in crafting a pre-filing order that will not unduly limit the pro se litigant’s general access

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to the courts.

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The fourth factor for consideration is whether Albanese has caused needless expense to other

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parties or unnecessarily burdened the courts. See Ringgold–Lockhart, 761 F.3d at 1062. Albanese’s

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voluminous and frivolous filings in the District of Nevada, as described above, have caused the courts to

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expend a huge amount of judicial resources to the detriment of other litigants who need and deserve the
Court’s attention. This factor weighs against Albanese.

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The fifth factor for consideration is whether sanctions other than a pre-filing order could
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adequately protect the Court and other parties. Albanese’s continued filing of harassing and frivolous
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litigation in this district is an abusive litigation practice that has interfered with the Court’s management
of its docket, wasted judicial resources, and threatened the integrity of the orderly administration of justice.

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Sanctions would be inadequate in serving to protect the parties and the courts. Merely dismissing one of

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Albanese’s lawsuits would do nothing to deter her from bringing more.

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Albanese was given an opportunity to respond to the Court’s orders to show cause why she should

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not be declared a vexatious litigant. In her responses, Albanese acknowledged her numerous filings, but

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expressed to the Court her “need to explain all the suspicious activity taking place both in and out of [her]

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apartment.” See, e.g., Albanese v. Federal Bureau of Investigations, case no. 2:17-cv-01599-JAD-VCF,
ECF No. 4 at 3 (June 21, 2012). Albanese pledged that “[i]f [she] could just continue returning to the
Court to submit letters [she] won’t submit anymore duplicative, redundant cases.” Id. Albanese then

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pleaded with the Court that the Court “allow me to continue filing my letters if I stop law suit activations
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…” Id. The clarity of Albanese’s arguments and expressions in her responses as well as her compunctions
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for her numerous filings appear to be sincere and have been taken into consideration by the Court. Yet

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the role of the courts is to provide a forum to resolve disputes and uphold the rule of law; not to act as an

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outlet for Albanese to “submit letters” voicing her frustration with other people, federal or state law

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enforcement agencies, or the “slowness by the wheels-of-justice.”

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Even so, the Court was initially inclined not to recommend that Albanese be deemed a vexatious

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litigant. But since Albanese filed her responses to the Court’s orders to show cause on June 21, 2017,

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specifically representing that she “won’t submit anymore duplicative, redundant cases” and that she would

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“stop law suit activations,” Albanese has filed three additional lawsuits—all against Metro—alleging

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allegations and claims nearly identical to her previous lawsuits. See Albanese v. Las Vegas Metropolitan

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Police Department, case no. 2:17-cv-01735-JCM-PAL (June 23, 2017); Albanese v. Las Vegas
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Metropolitan Police Department, case no. 2:17-cv-01780-JCM-VCF (June 28, 2017); and Albanese v. Las
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Vegas Metropolitan Police Department, case no. 2:17-cv-01782-JCM-VCF (June 28, 2017).
Accordingly, the Court is forced to conclude that the only way to effectively stop Albanese from her
frivolous and harassing filings is to require her to seek leave of the court before filing a new action.
c. Enjoining Vexatious Litigant

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If a litigant is deemed vexatious, she will be enjoined from filing any further action or papers in

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this district without first obtaining leave of the Chief Judge of this court. In order to file any papers, the

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vexatious litigant must first file an application for leave. The application must be supported by a

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declaration of plaintiff stating: (1) that the matters asserted in the new complaint or papers have never
been raised and disposed of on the merits by any court; (2) that the claim or claims are not frivolous or

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made in bad faith; and (3) that he has conducted a reasonable investigation of the facts and investigation
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supports his claim or claims. A copy of the order deeming the litigant vexatious must be attached to any
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application. Failure to fully comply will be sufficient grounds for denial of the application. See De Long,
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912 F.2d at 1146-47.

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ACCORDINGLY, and for good cause shown,

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IT IS RECOMMENDED:

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1. Plaintiff Grace Albanese’s complaints in the above captioned cases be DISMISSED.

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2. Plaintiff Grace Albanese be deemed a vexatious litigant pursuant to 28 U.S.C. § 1651(a)
and be ENJOINED and PROHIBITED from filing any complaint, petition, or other
document in this court without first obtaining leave of this court.

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3. The Court enter an order stating that if Plaintiff Grace Albanese intends to file any papers
with the court, she must first seek leave of the Chief Judge of this court in accordance with
the procedure outlined above.

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4. The Clerk of Court be authorized to reject and refuse to file, and/or discard any new
complaint, petition, document on a closed case, or any other document submitted in
violation of the Order.

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NOTICE

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Pursuant to Local Rule IB 3-2, any objection to this Report and Recommendation must be in

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writing and filed with the Clerk of the Court within 14 days. The Supreme Court has held that the courts

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of appeal may determine that an appeal has been waived due to the failure to file objections within the

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specified time. See Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure

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to file objections within the specified time and (2) failure to properly address and brief the objectionable

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issues waives the right to appeal the District Court’s order and/or appeal factual issues from the order of

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the District Court. See Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United
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Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).
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DATED this 29th day of June, 2017.
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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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