Scott v. Van Hook

Filing 18

ORDER by Magistrate Judge David W. Christel Denying Plaintiff's 8 Motion for Discovery and Withdrawal of Case Management Orders; and Denying Plaintiff's 10 Motion to Appoint Special Master. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3)(GMR- cc: pltf)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 9 10 11 12 13 _______________________________________ ) RICHARD ROY SCOTT, ) ) Plaintiff, ) v. ) ) WALTER WEINBERG, et al., ) ) Defendants. ) _______________________________________) ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER RESTRICTING FUTURE IN FORMA PAUPERIS FILINGS I. INTRODUCTION 14 15 No. C06-5172FDB This matter comes before the Court on the Honorable J. Kelley Arnold’s “Report and 16 Recommendation to Deny Injunctive Relief, Dismiss This Action as Malicious, Declare Plaintiff 17 a Vexatious Litigant, and Limit Future Filings IFP” (Dkt. #75). Because Judge Arnold 18 recommends limiting plaintiff Richard Roy Scott’s future filings in forma pauperis in this 19 district, the Report and Recommendation was referred to the Chief Judge for review. This Court 20 adopts the Report and Recommendation, and for the additional reasons set forth below, enters 21 the recommended vexatious litigant pre-filing restriction against plaintiff. II. DISCUSSION 22 23 24 A. Background Plaintiff is civil detainee currently being housed at the Special Commitment Center for 25 26 ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER RESTRICTING FUTURE IN FORMA PAUPERIS FILINGS 1 sexually violent predators operated by the State of Washington. This action was stayed pending 2 the Court’s consideration of Judge Arnold’s Report and Recommendation. See Dkt. #94. The 3 Court writes this opinion to address and adopt Judge Arnold’s recommendation for a vexatious 4 litigant order with pre-filing restrictions in accordance with the Ninth Circuit’s guidelines set 5 forth in De Long v. Hennessey, 912 F.2d 1144 (9th Cir. 1990). 6 B. Analysis “District courts have the inherent power to file restrictive pre-filing orders against 7 8 vexatious litigants with abusive and lengthy histories of litigation. Such pre-filing orders may 9 enjoin the litigant from filing further actions or papers unless he or she first meets certain 10 requirements, such as obtaining leave of the court or filing declarations that support the merits of 11 the case. ” Weissman v. Quail Lodge Inc., 179 F.3d 1194, 1197 (9th Cir. 1999) (internal 12 citation omitted). 13 1. Vexatious Litigant Pre-Filing Restriction Standard 14 In De Long, the Ninth Circuit established a four-part guideline for district courts to 15 follow in restricting a plaintiff’s future filings through a “vexatious litigant order”: (1) the 16 plaintiff must be “provided with an opportunity to oppose the order before it [is] entered”; (2) 17 the court must “create an adequate record for review”; (3) the court must make “substantive 18 findings as to the frivolous or harassing nature of the litigant’s actions”; and (4) the order “must 19 be narrowly tailored to closely fit the specific vice encountered.” De Long, 912 F.2d at 1147- 20 48. 21 22 a. Notice In this case, plaintiff has been given notice and ample opportunity to oppose the pre-filing 23 restriction. Judge Arnold’s Report and Recommendation was filed on October 13, 2006, and 24 was set for consideration for November 3, 2006. See Dkt. #75. On October 20, 2006, plaintiff 25 26 ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER RESTRICTING FUTURE -2IN FORMA PAUPERIS FILINGS 1 filed his “Response to R&R.” See Dkt. #78. The entire text of plaintiff’s objection to the 2 Report and Recommendation states: “We object and submitt [sic] exhibit 1 the forensic 3 inspection* of our computer. This court was lied to and and [sic] choose [sic] to believe that lie. 4 Shame on it,” with the footnote, “*IT found no nudes at all!”1 In a second response to the 5 Report and Recommendation, on October 30, 2006, plaintiff filed a “Supplement New 6 Discovery Exhibit in Response to R&R.” See Dkt. #81. This filing did not substantively 7 respond to the Report and Recommendation, it simply enclosed a supplemental exhibit. Id. On 8 November 8, 2006, plaintiff responded again to the Report and Recommendation by filing his 9 “Response to response: Objection to R&R.” See Dkt. #88.2 Plaintiff filed a fourth response to 10 the Report and Recommendation on December 19, 2006 by submitting his “Supplement New 11 Exhibit in Response to R&R.” See Dkt. #89. Again, this filing did not substantively respond to 12 the Report and Recommendation, it simply enclosed a supplemental exhibit. 13 The Ninth Circuit’s guideline that the plaintiff be “provided with an opportunity to 14 oppose the order before it [is] entered” has been satisfied in this case because the Court has 15 given plaintiff four months to oppose Judge Arnold’s recommendation restricting plaintiff’s 16 future in forma pauperis filings, and plaintiff has submitted four filings in response. See Dkt. 17 ##78, 81, 88, 89. Despite plaintiff’s four responses to the Report and Recommendation, plaintiff 18 19 20 21 22 23 24 25 26 1 Judge Arnold, however, found and concluded that “[p]ictures of young boys without shirts and one picture of a woman without a top on were discovered” in addition to “software that allowed him to erase data on his computer. Residents in the Special Commitment Center are not allowed pictures of this nature or software that allows them to delete data from their computers.” See Dkt. #75 (Report and Recommendation) at 5. 2 The entire text of this third response to the Report and Recommendation states: “One fact not mentioned for good reason is all the images where [sic] sent to me by either the state prosecutor or my former lawyers, because I am pro se. The superior [sic] [court] ruled I must be given all discovery. The imagines [sic] the state sent were captured of [sic] the internet, as were my attorneys [sic] images. All these were sent on floppies or discs and inspected by the mail room staff and the SCC investigator or computer staff (joel [sic] Eussan[)].” See Dkt. #88 (Response to response: Objection to R&R) at 1. ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER RESTRICTING FUTURE -3IN FORMA PAUPERIS FILINGS 1 has neither addressed nor opposed Judge Arnold’s pre-filing restriction recommendation. b. Adequate Record for Review 2 3 As a part of a vexatious litigant order, the Ninth Circuit guides the district court to 4 provide “an adequate record for review.” De Long, 912 F.2d at 1147. “An adequate record for 5 review should include a listing of all the cases and motions that led the district court to conclude 6 that a vexatious litigant order was needed. . . . At the least, the record needs to show, in some 7 manner, that the litigant’s activities were numerous or abusive.” Id. (citing Wood v. Santa 8 Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1523, 1526 (9th Cir. 1983) (35 related 9 complaints filed) and In re Oliver, 682 F.2d 443, 444 (3d Cir. 1982) (over 50 frivolous cases 10 filed)). As the table below illustrates, plaintiff’s litigation activities have been numerous. 11 12 Plaintiff has filed 45 actions in this district, and 33 of these actions have been filed within the 13 past 3 years. Of the 45 actions, only 3 cases including the above-captioned matter remain 14 pending. The other actions were dismissed or not permitted to proceed. As the table below also 15 demonstrates, plaintiff is not unfamiliar to the Ninth Circuit Court of Appeals. 45 Actions Filed by Richard Roy Scott in the Western District of Washington: 16 17 18 Parties Cause No. Disposition 1. Scott v. Reardon, et al. CV86-896-CRD-PKS Dismissed on July 28, 1989 (Dkt. #290). Appeal (CCA#89-35559) dismissed on March 18, 1991 (Dkt. #295). 2. Scott v. Indeterminate Sentence Review Bd., et al. CV88-592-RJB Dismissed on December 17, 1991 (Dkt. #127). Appeal (CCA#92-35052) dismissed on January 7, 1993 (Dkt. #149). 3. Scott v. Riveland, et al. CV88-638-RJB Dismissed by stipulation on September 25, 1991 (Dkt. #147). 19 20 21 22 23 24 25 26 ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER RESTRICTING FUTURE -4IN FORMA PAUPERIS FILINGS 1 4. Scott v. State of Washington, et al. CV90-5364-RJB-FDB Dismissed through consolidation with CV88-592 (Dkt. #18) on December 4, 1990. 5. Scott v. Gier, et al. CV92-5152-RJB Dismissed on June 1, 1993 (Dkt. #105). Appeal (CCA#93-35565) dismissed on July 6, 1993 (Dkt. #121); affirmed on September 2, 1994 (Dkt. #127) (CCA#93-35629). 6. Scott, et al. v. Peterson, et al. CV92-5232-RJB Dismissed on June 5, 1996 (Dkt. #475). Judgment entered on acceptance of offer of judgment (Dkt. #364, #424). 7. Scott, et al. v. Peterson, et al. CV92-5275-RJB Dismissed through consolidation with CV92-5232 (Dkt. #63) on June 10, 1993. 8. Scott v. Vail, et al. CV93-5266-RJB-FDB Dismissed through consolidation with CV92-5232 (Dkt. #26) on September 29, 1993. 9. Scott v. Geier, et al. CV93-5443-RJB Dismissed on October 23, 1994 (Dkt. #191). 10. Scott, et al. v. Locke, et al. CV03-5057-RJB Dismissed for failure to state a claim on April 15, 2003 (Dkt. #15). 11. Scott v. Lehman, et al. CV03-5099-FDB Dismissed on December 22, 2003 (Dkt. #158) for failure to state a claim. Appeal dismissed (CCA#04-35065) on June 28, 2004 (Dkt. #176). 12. Scott v. Seling, et al. CV03-5398-RBL Dismissed on May 17, 2006 (Dkt. #227). Appeal (CCA#06-35514) pending (Dkt. #237). 13. Scott v. Blackman, et al. CV04-5027-RJB Dismissed by stipulation on October 14, 2004 (Dkt. #45). Appeal (CCA#0436119) dismissed on January 21, 2005 (Dkt. #65). 14. Scott v. Seling, et al. CV04-5147-RJB Dismissed on December 3, 2004 (Dkt. #149). Appeal (CCA#05-35036) pending (Dkt. #190). 15. Scott v. Sultemeier, et al. CV04-5365-RJB Dismissed by stipulation on February 2, 2005 (Dkt. #111). Appeal dismissed (CCA#04-36026) on February 18, 2005 (Dkt. #114). 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER RESTRICTING FUTURE -5IN FORMA PAUPERIS FILINGS 1 16. Scott, et al. v. Lehman CV04-5505-FDB Dismissed on September 1, 2004 under Fed. R. Civ. P. 41 (Dkt. #8). Appeal dismissed (CCA#05-35399) on Oct. 3, 2005 (Dkt. #20). 17. Scott v. Lehman, et al. CV04-5521-FDB Dismissed by sanction (Dkt. #80) on April 5, 2005. Appeal dismissed (CCA#05-35397) on October 3, 2005 (Dkt. #93). 18. Scott v. Denny, et al. CV04-5574-RBL Dismissed by sanction (Dkt. #76) on April 5, 2005. Appeal (CCA#05-35414) pending (Dkt. #88). 19. Scott v. Richards, et al. CV04-5582-RBL Dismissed by sanction (Dkt. #100) on April 5, 2005. 20. Scott v. Diaz CV04-5598-RBL Dismissed by sanction (Dkt. #42) on April 5, 2005. Appeal (CCA#05-35405) pending (Dkt. #54). 21. Scott v. State of Washington CV04-5707-RBL Dismissed by sanction (Dkt. #24) on April 5, 2005. Appeal dismissed (CCA#05-35411) on October 3, 2005 (Dkt. #33). 22. Scott v. County of Pacific, et al. CV04-5813-RJB Dismissed under Fed. R. Civ. P. 41 (Dkt. #28) on April 5, 2005. Appeal dismissed (CCA#05-35400) on October 3, 2005 (Dkt. #37). 23. Scott v. Seling, et al. CV04-5823-RBL Dismissed on February, 3, 2005 (Dkt. #20). Appeal (CCA#05-35401) dismissed on October 3, 2005 (Dkt. #33). 24. Scott v. State of Washington CV04-5896-RBL Dismissed by sanction (Dkt. #12) on April 5, 2005. Appeal (CCA#05-35404) dismissed on October 3, 2005. 25. Scott v. Pacific County, et al. CV05-5711-RBL Dismissed on Oct. 4, 2006 (Dkt. #62). Appeal (CCA#06-80100) not permitted to proceed because it lacked merit (Dkt. #69). 26. Scott v. Seling, et al. CV05-5760-RJB Dismissed on March 2, 2006 (Dkt. #17). Appeal (CCA#06-35202) dismissed on October 10, 2006 (Dkt. #28). 27. Scott v. State of Washington CV06-462-JCC Dismissed on January 4, 2007 (Dkt. #28). 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER RESTRICTING FUTURE -6IN FORMA PAUPERIS FILINGS 1 28. Scott v. King County CV06-731-TSZ-JPD Pending. Appeal (CCA#06-35749) dismissed on November 17, 2006 (Dkt. #27). 29. Scott v. Hackett CV06-909-TSZ Dismissed for failure to state a claim on December 14, 2006 (Dkt. #19). Appeal (CCA#06-80100) not permitted to proceed on March 1, 2007 because it lacked merit (Dkt. #23). 6 30. Scott v. King County CV06-910-RSL-MAT Dismissed on December 1, 2006 (Dkt. #12). 7 31. Scott v. Davis CV06-1052-MJP-JPD Pending. On February 6, 2007, plaintiff filed Fed. R. Civ. P. 41 motion for voluntary dismissal (Dkt. #16). 32. Scott v. Weinberg, et al. CV06-5172-FDB Stayed pending the outcome of this Order (Dkt. #94). 33. Scott v. Bailey CV06-5173-RBL Dismissed on February 22, 2007 (Dkt. #69). 34. Scott v. Nerio, et al. CV06-5340-RJB-JKA Pending. 35. Scott v. Special Commitment Center, et al. CV06-5359-RBL Dismissed on December 21, 2006 (Dkt. #6). 36. Scott v. Anderson, et al. CV06-5412-FDB Dismissed on November 17, 2006 (Dkt. #13). 37. Scott v. Judicial Dispute Resolution, et al. CV06-5611-RBL Dismissed on December 21, 2006 (Dkt. #9). 17 38. Scott v. Hackett, et al. CV06-5612-FDB Dismissed on December 22, 2006 (Dkt. #9). 18 39. Scott v. Brown, et al. CV06-5613-RBL Dismissed on December 21, 2006 (Dkt. #9). 40. Scott v. Denny CV06-5614-FDB Dismissed on November 27, 2006 (Dkt. #10). 41. Scott v. State of Washington MC05-5029-RSL (Dkt. #8) Not permitted to proceed under the Court’s April 5, 2005 Order (Dkt. #11). Appeal (CCA#06-35039) dismissed on January 31, 2006. Failed to verify that issues had not been previously litigated (Dkt. #22). 2 3 4 5 8 9 10 11 12 13 14 15 16 19 20 21 22 23 24 25 26 ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER RESTRICTING FUTURE -7IN FORMA PAUPERIS FILINGS 1 42. Scott v. State of Washington MC05-5029-RSL (Dkt. #19) Not permitted to proceed under the Court’s April 5, 2005 Order (Dkt. #82). Failed to verify that issues had not been previously litigated. 43. Scott v. Richards MC05-5029-RSL (Dkt. #27) Not permitted to proceed under the Court’s April 5, 2005 Order (Dkt. #33). Appeal (CCA#06-35239) dismissed on April 11, 2006 because it raised previously litigated issues (Dkt. #57). 44. Scott v. Diaz MC05-5029-RSL (Dkt. #39) Not permitted to proceed under the Court’s April 5, 2005 Order (Dkt. #42). Raised previously litigated issues. 45. Scott v. Cunningham, et al. MC05-5029-RSL (Dkt. #50) Not permitted to proceed under the Court’s April 5, 2005 Order (Dkt. #54). Raised previously litigated issues. 2 3 4 5 6 7 8 9 10 11 Not only has plaintiff filed numerous actions in this district as listed above, but his filings 12 are so numerous, repetitive, and abusive that a vexatious litigant order is justified. Judge 13 Arnold’s Report and Recommendation outlines the numerous and repetitive motions filed in this 14 case, including plaintiff’s 17 motions filed in July and August of 2006: 15 16 17 18 19 20 21 22 23 24 On September 14th , 2006, the court found it necessary to stay this action. (Dkt. #62). In July 2006, plaintiff filed six repetitive motions for injunctive relief. (Dkt. # 21, 24, 25, 26, 27, and 28). In August of 2006 the court called for a response from the defendants (Dkt. # 38). Plaintiff had filed a total of eleven more motions by the time the court stayed the action, bringing his total number of pending motions to seventeen. Plaintiff’s multiple filings made the case difficult to manage and were filed at a time when defense counsel was under a court ordered deadline to file a response regarding the first six motions for injunctive relief. See Dkt. #75 at 2. Additionally, plaintiff’s numerous, frivolous, and abusive motions in cause numbers: C04-5147, C04-5521, C04-5365, C04-5574, C04-5582, C04-5598, C04-5707, C045813, C04-5823, C04-5896 and C04-5505, are described in detail in the March 1, 2005 Report and Recommendation. See Dkt. #169 (Report and Recommendation) in C04-5147. The findings entered in the March 1, 2005 Report and Recommendation, as adopted by the April 5, 2005 “Order Adopting Report and Recommendation,” are also incorporated here in support of 25 26 ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER RESTRICTING FUTURE -8IN FORMA PAUPERIS FILINGS 1 this vexatious litigant order. See Dkt. #170 (Order Adopting Report and Recommendation) in 2 C04-5147. 3 c. Findings of Frivolousness or Harassment 4 “[B]efore a district court issues a pre-filing injunction against a pro se litigant, it is 5 incumbent upon the court to make ‘substantive findings as to the frivolous or harassing nature of 6 the litigant’s actions.’ To make such a finding, the district court needs to look at ‘both the 7 number and content of the filings as indicia’ of the frivolousness of the litigant’s claims.” De 8 Long, 912 F.2d at 1148 (quoting In re Powell, 851 F.2d 427, 431 (D.C. Cir. 1988)) (internal 9 citation omitted). 10 The frivolous and harassing nature of Richard Roy Scott’s actions have been extensively 11 catalogued in Judge Arnold’s Report and Recommendation (Dkt. #75) and the March 1, 2005 12 Report and Recommendation entered in C04-5147 as adopted by the April 5, 2005 “Order 13 Adopting Report and Recommendation.” See Dkt. ##169, 170 in C04-5147. In the interest of 14 judicial economy, the Court incorporates these previous findings here. 15 Additionally, the Court finds that the number of complaints filed by plaintiff is inordinate 16 as detailed in section II.B.1.b above and justifies the recommended pre-filing restriction. See 17 Demos v. United States Dist. Court for the Eastern Dist. of Wash., 925 F.2d 1160, 1161 (9th 18 Cir. 1991) (holding that petitioner had abused his privilege of filing petitions in forma pauperis 19 in the Ninth Circuit based on the filing of 24 petitions); De Long, 912 F.2d at 1148 (“[E]ven if 20 De Long’s habeas petition is frivolous, the court did not make a finding that the number of 21 complaints was inordinate.”). Although a pre-filing injunction may not issue only on a showing 22 of litigiousness, an injunction here is justified given that plaintiff’s filings have largely been 23 without merit. See Moy v. United States, 906 F.2d 467, 470 (9th Cir. 1990) (“An injunction 24 cannot issue merely upon a showing of litigiousness. The plaintiff’s claims must not only be 25 numerous, but also be patently without merit.”) (citing In re Oliver, 682 F.2d 443, 446 (3d Cir. 26 ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER RESTRICTING FUTURE -9IN FORMA PAUPERIS FILINGS 1 1982)). In this case, like the actions in Oliver, plaintiff’s cases have in large part been patently 2 without merit. In none of plaintiff’s 45 actions has he stated a claim sufficient to require a trial 3 on the merits.3 See Oliver, 682 F.2d at 446 (“The record suggests that Oliver’s claims have been 4 not only numerous but patently without merit – none has yet stated a claim sufficient to require a 5 hearing.”). 6 Finally, the Court finds that plaintiff’s claims show a pattern of harassment warranting 7 entry of the recommended pre-filing restriction. See De Long, 912 F.2d at 1148 (“An alternative 8 to the finding of frivolousness is the finding that De Long’s claims show a pattern of 9 harassment.”). Throughout plaintiff’s actions, he has harassed the court and its officers, 10 including: district court judges, magistrate judges, law clerks, staff, and defense counsel. See, 11 e.g., Dkt. #78 (magistrate judge); Dkt. #10 (magistrate judge), Dkt. #22 (defense counsel), and 12 Dkt. #140 (law clerk) in C04-5147; Dkt. #38, Ex. 2 in C04-5574 (defense counsel). Plaintiff has 13 attempted to clog the court’s docket by encouraging fellow Special Commitment Center 14 residents to spawn repetitive litigation and avoid consolidation. See Dkt. #29-3 in C04-5582 15 (stating in part “At this point joinder or consolidation of the suits will not be asked for. I want 16 them (The SCC AAG’s [Assistant Attorneys General]) to answer 20-30 times. And respond 17 alike [sic] number of times to discovery request [sic]. That will encourage SCC to offer a proper 18 settlement. Even so the court may try to consolidated [sic] these identical claims from the get 19 go. Or SCC may move for consolidation. We’ll oppose same, as long as possible. As with [sic] 20 appointment of an attorney. Attorney’s [sic] tend to go for a fast cash out[.]”) (emphasis added). 21 22 23 24 25 26 3 While it is true that three of plaintiff’s actions were dismissed by stipulation after entry of a settlement agreement, plaintiff did not prevail for any purpose in the actions as the settlement agreements expressly state. See Dkt. #108-2 in CV04-5365 at ¶9 (“The parties agree that neither party is to be considered a prevailing party in this action for any purpose”). And Scott v. Peterson, et al. (CV92-5232) was resolved by plaintiff’s acceptance of defendants’ $500 offer of judgment under Fed. R. Civ. P. 68. See Dkt. #364, #424. ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER RESTRICTING FUTURE -10IN FORMA PAUPERIS FILINGS 1 Plaintiff has also harassed opposing parties in his lawsuits. For instance, in Scott v. 2 Richards, et al., plaintiff requested admissions from defendants such as: “I am short and very 3 much overweight, so I like to throw my weight around weaker people” and “I tortured little 4 helpless animals when I was younger.” See Dkt. #29-2 in CV04-5582 at 2-3. Plaintiff also 5 sends harassing letters to defendants in his cases. See, e.g., id. at 10 (“Denny, I received you 6 [sic] lying bull this AM. I was hoping you’d changed. Shame on you! I’ve been patient but no 7 more. A triple curse and welcome to the defendants [sic] circle.”). In Scott v. Nerio, et al., 8 plaintiff submitted harassing written deposition questions to the defendants. See, e.g., Dkt. #42- 9 2 in C06-5340 at 6 (“Do you read magizines [sic]? Like Newsweek? Aren;t [sic] there in fact 10 often frontal nudes of little boys often?”); id. at 2, 6, 8, 10 (asking party deponents whether they 11 have any underage children or grandchildren). Accordingly, the Court finds that plaintiff’s 12 activities demonstrate a pattern of harassment justifying entry of the recommend restriction on 13 plaintiff’s in forma pauperis filings. 14 d. Breadth of the Order 15 Pre-filing restrictive orders are permitted if the order is “narrowly tailored to closely fit 16 the specific vice encountered.” De Long, 912 F.2d at 1148. Here, the pre-filing restriction is 17 narrowly tailored to fit plaintiff’s specific practices. In the court’s previous attempt to curb 18 plaintiff’s frivolous, duplicative, and harassing litigation practices, the April 5, 2005 order 19 required, in part, that: 20 (1) . . . plaintiff shall submit a signed affidavit, along with the proposed complaint, verifying under penalty of perjury that none of the issues raised in the proposed complaint have been litigated in the past by the plaintiff. . . (6) Plaintiff is prohibited from filing any duplicative or repetitive motion in an action. . . . (7) Plaintiff shall not file a motion for reconsideration without making a specific showing that the motion meets the criteria set forth in the local rules for filing such a motion. Dkt. #169 in CV04-5147 at 24. The court entered this order “as a result of the disregard 21 22 23 24 25 26 plaintiff has shown for the Federal Rules of Civil Procedure, for the local rules of this court, and ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER RESTRICTING FUTURE -11IN FORMA PAUPERIS FILINGS 1 for the contempt he has shown for the authority of the tribunal as evidenced in his violations of 2 the case management order, his inappropriate demeanor to the court, court staff, and opposing 3 parties.” Id. at 25. Despite this order, plaintiff filed five new actions in which he failed to 4 verify that the issues had not been previously litigated. See MC05-5029 (Dkt. ##8, 19, 27, 39, 5 and 50). And, undeterred by the court’s April 5, 2005, order, as described in the Report and 6 Recommendation (Dkt. #75), plaintiff continued his frivolous litigation practices in this case, 7 including filing 10 repetitive motions for injunctive relief (Dkt. ## 21, 24, 25, 26, 27, 28, 47, 48, 8 58, and 61), and three noncompliant motions for reconsideration. See Dkt. #75 at 2, 4. 9 Limiting plaintiff’s in forma pauperis filings to situations where plaintiff is under 10 imminent danger of serious physical injury is consistent with the pre-filing requirements 11 authorized by 28 U.S.C. § 1915. The Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 12 1915(g) provides that: 13 16 In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [proceedings in forma pauperis] 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. 17 Given the Ninth Circuit’s opinion in Page v. Torrey, 201 F.3d 1136 (9th Cir. 2000), 14 15 18 holding that a plaintiff civilly committed under California’s Sexually Violent Predators Act was 19 not a “prisoner” under the PLRA, the Court does not apply 1915(g)’s “three-strikes” provision to 20 plaintiff.4 Instead, the Court here follows De Long’s vexatious litigant order guidelines in 21 22 23 24 25 26 4 The Court notes, however, that plaintiff has sustained at least three dismissals satisfying the definition of a “strike” under § 1915(g). See 28 U.S.C. § 1915(g) (defining a strike as dismissal of an action or appeal on grounds that it is “frivolous, malicious, or fails to state a claim upon which relief my be granted”); Scott, et al. v. Locke, et al. (CV03-5057) (dismissed for failure to state a claim with the court’s finding that the dismissal counted as a strike under § 1915(g) (Dkt. #15)); Scott v. Lehman, et al. (CV03-5099) (dismissed for failure to state a claim); Scott v. Hackett (CV06-909) (dismissed for failure ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER RESTRICTING FUTURE -12IN FORMA PAUPERIS FILINGS 1 entering the pre-filing restriction. The Court, however, concludes that the policy objectives 2 underlying the PLRA are applicable to plaintiff’s circumstance,5 and accordingly, the Court 3 finds that 28 U.S.C. § 1915(g)’s pre-filing restriction is reasonable to enter in this case. 4 Furthermore, like 28 U.S.C. § 1915(g)’s filing limitation, the pre-filing restriction 5 recommended in this case does not prohibit plaintiff from accessing the court to protect his 6 rights if he pays the filing fee.6 It only prevents plaintiff, with a history of abusing the legal 7 system, from continuing to enjoy his in forma pauperis status. Plaintiff has previously provided 8 the Court with submissions showing that he, at times, receives a monthly income. See, e.g., Dkt. 9 #6 in CV06-462 (IFP Application) (stating that he receives a “$50 draft a month” as “Director 10 WMPS Inc. a non-profit chairity [sic]”); Dkt. #1 in CV03-5398 (IFP Application) (stating that 11 he receives “10 bucks a month from sister”). While one of plaintiff’s latest statements from his 12 Special Commitment Center account shows a positive balance of only $10.72, the statement also 13 14 15 16 17 18 19 20 to state a claim). 5 See Abdul-Akbar v. McKelvie, 239 F.3d 307, 318 n.3 (3d Cir. 2001) (examining the legislative purpose behind 28 U.S.C. § 1915(g): “[P]risoners have very little incentive not to file nonmeritorious lawsuits. Unlike other prospective litigants who seek poor person status, prisoners have all the necessities of life supplied, including the materials required to bring their lawsuits. For a prisoner who qualifies for poor person status, there is no cost to bring a suit, and, therefore, no incentive to limit suits to cases that have some chance of success. The filing fee is small enough not to deter a prisoner with a meritorious claim, yet large enough to deter frivolous claims and multiple filings. 141 Cong. Rec. S749801, S7526 (daily ed. May 25, 1995) (statement of Sen. Kyl).”). 6 21 22 23 24 25 26 See Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (“Section 1915(g) does not prohibit prisoners from accessing the courts to protect their rights. Inmates are still able to file claims – they are only required to pay for filing those claims. In reaching our conclusion, we recognize that some prisoners may be unable to prepay filing fees, and will thereby be unable to bring their actions immediately. However, non-prisoners face similar concerns. Some prisoners will be required to save money in order to prepay a filing fee and bring a claim. Again, non-prisoners face that same situation. Section 1915(g) does require prisoners to be fiscally responsible and make decisions concerning the merits of their case.”). ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER RESTRICTING FUTURE -13IN FORMA PAUPERIS FILINGS 1 shows that over time, plaintiff has had a cash inflow of $1,705.23. See Dkt. #13 in CV06-731 at 2 3. Given the fact that plaintiff has shown that he periodically receives a monthly income, the 3 Court’s filing restriction is narrow because it requires only that plaintiff be fiscally responsible 4 and save enough for a filing fee if he wants to initiate another lawsuit.7 If plaintiff is “unwilling 5 to save [his] money and prepay filing fees, such a decision may be a good indicator of the merits 6 of the case.” Rodriguez, 169 F.3d at 1180. 7 Finally, the Court adopts entry of the recommended pre-filing restriction because it 8 comports with the Court’s obligation to conserve judicial resources. See O’Loughlin v. Doe, 9 920 F.2d 614, 618 (9th Cir. 1990) (“[W]e emphasize that [district courts] also bear an 10 affirmative obligation to ensure that judicial resources are not needlessly squandered on repeated 11 attempts to misuse the courts. Frivolous and harassing claims crowd out legitimate ones and 12 need not be tolerated repeatedly by the district courts.”); In re Sindram, 498 U.S. 177, 179-80 13 (1991) (“The goal of fairly dispensing justice . . . is compromised when the Court is forced to 14 devote its limited resources to the processing of repetitive and frivolous requests. Pro se 15 petitioners have a greater capacity than most to disrupt the fair allocation of judicial resources 16 because they are not subject to the financial considerations – filing fees and attorney’s fees – 17 that deter other litigants from filing frivolous petitions. . . . [T]he Court has a duty to deny in 18 forma pauperis status to those individuals who have abused the system.”). 19 20 7 21 22 23 24 25 26 Plaintiff has previously argued that requiring payment of filing fees would “deprive me of my pop, coffee, and hygeine [sic] supplies,” and prevent him from “buy[ing] at Albertsons or outside vendors; things like computer printing paper and ink . . . snacks, CDs, Videos, pop or juice, hobby supplies . . . xmas presents and birthday cards and gifts.” See Dkt. #11 (Objections to R&R re: I.F.P) in CV04-5707 at 1-3. Contrary to plaintiff’s assertions, however, he does not have a constitutional right to in forma pauperis status so that he can maintain his “expendable” income. Id. at 1 (“I do not have an expendable $150 so how can I pay $150.”); Rodriguez, 169 F.3d at 1180 (“[W]e note that IFP status is not a constitutional right.”). ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER RESTRICTING FUTURE -14IN FORMA PAUPERIS FILINGS III. CONCLUSION 1 2 Having reviewed the Report and Recommendation of the Honorable J. Kelley Arnold, 3 United States Magistrate Judge, plaintiff’s objections thereto, defendants’ responses, the 4 remainder of the record, and Richard Roy Scott’s other filings in this district, IT IS ORDERED: 5 1. The Court adopts the Report and Recommendation (Dkt. #75); 6 2. This action is DISMISSED under Fed. R. Civ. P. 11 and 28 U.S.C. § 7 1915(e)(2)(B)(i) as malicious, and the Clerk of Court is directed to enter judgment 8 in favor of defendants and against plaintiff; 9 3. Plaintiff is DECLARED a vexatious litigant and is PROHIBITED from proceeding 10 in forma pauperis in any future action in the United States District Court for the 11 Western District of Washington, including actions filed in state court and 12 transferred to the Western District of Washington, unless the Court determines that 13 he is in imminent danger of death or serious injury. This order shall continue in 14 force until abated by the Court. 15 4. The Clerk of Court is directed to docket any future motions by Richard Roy Scott 16 for leave to proceed in forma pauperis in case number MC05-5029 for review by 17 the Court consistent with the pre-filing restriction of this Order. 18 19 20 21 22 DATED this 26th day of March, 2007. A Robert S. Lasnik United States District Judge 23 24 25 26 ORDER ADOPTING REPORT AND RECOMMENDATION AND ORDER RESTRICTING FUTURE -15IN FORMA PAUPERIS FILINGS

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