(TEMP)(PC) Benyamini v. Vance et al, No. 2:2013cv00910 - Document 28 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 3/30/16 RECOMMENDING that Defendants July 27, 2015, motion for an order declaring plaintiff a vexatious litigant and requiring security (ECF No. 20 ) be granted; Plainti ff be declared a vexatious litigant under the provisions of Title 3A, part 2, of the California Code of Civil Procedure, adopted by this Court pursuant to Local Rule 151(b); and Plaintiff be required to furnish security in the amount of $11,900 before proceeding with this action. Referred to Judge Troy L. Nunley; Objections to F&R due within 30 days.(Dillon, M)

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(TEMP)(PC) Benyamini v. Vance et al Doc. 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT BENYAMINI, 12 No. 2:13-cv-0910 TLN AC P (TEMP) Plaintiff, 13 v. 14 S. VANCE, et al., 15 FINDINGS & RECOMMENDATIONS Defendants. 16 17 A. Introduction Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this civil 18 19 rights action pursuant to 42 U.S.C. § 1983. This matter proceeds on plaintiff’s first amended 20 complaint, which was found to state claims for interference with and retaliation for plaintiff’s 21 exercise of his First Amendment rights. (ECF Nos. 6, 10.) 22 Now pending before the undersigned is defendants’ July 27, 2015, motion for an order 23 declaring plaintiff a vexatious litigant and requiring security in the amount of $20,400.1 (ECF 24 No. 20.) Plaintiff opposes the motion. For the reasons set forth here, the court will recommend 25 that defendants’ motion be granted. 26 //// 27 28 1 Defendants also moved for the imposition of a pre-filing order, but have now withdrawn that request. See Defs.’ Reply at 1. Dockets.Justia.com 1 B. 2 Procedural History Plaintiff initiated this action on May 8, 2013, and is proceeding on a first amended 3 complaint that was found to state First Amendment claims against defendants K. Henderson, 4 Roth, and S. Vance, correctional staff at California State Prison—Sacramento (“CSP-Sac”).2 5 (ECF Nos. 6, 10.) Specifically, plaintiff alleges that between May 26, 2009, and July 2009 (“the 6 relevant period”), Captain Vance and Sergeant Henderson deprived plaintiff of all of his property, 7 stripped him naked, and placed him into “MOHU”3 in retaliation for plaintiff’s pending lawsuits 8 against multiple staff members. Plaintiff claims that this conduct caused him to miss court 9 deadlines for filing an amended complaint and service documents. Plaintiff repeatedly asked 10 Captain Vance, Sgt. Henderson, and Lt. Roth for permission to write to the courts to ask for an 11 extension of time, but each defendant told plaintiff that writing material or legal papers were not 12 allowed in MOHU. When plaintiff was finally released from MOHU, he claims that the 13 defendants delayed returning his property, causing plaintiff to miss additional deadlines, 14 including in a case against a “Lt. O’Brian.” As a result, plaintiff had two cases dismissed, 15 resulting in the assessment of strikes against plaintiff. 16 On July 27, 2015, defendants filed the instant motion. (ECF No. 20.) After obtaining a 17 90-day extension of time to file an opposition, plaintiff filed an objection on December 10, 2015. 18 (ECF No. 26.) Defendants filed a reply. (ECF No. 27.) This motion is fully briefed and ready 19 for disposition. 20 C. 21 Defendants’ Request for Judicial Notice Defendants ask the court to take judicial notice of the following prior litigation of 22 plaintiff4: 23 1. Benyamini v. Johnson, Ninth Circuit Case No. 11-16971 (appeal from E.D. Cal. 24 2 25 26 27 28 Plaintiff contends that at all times relevant to this action he was housed at “New Folsom State Prison.” CSP–Sac was originally called “New Folsom” and is located next to Folsom State Prison. Plaintiff has now been released from custody. 3 This term refers to a Mental Health Outpatient Housing Unit. Shields v. Virga, 482 Fed. Appx. 275, 276 (9th Cir. Sept. 5, 2012). 4 Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n.1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir.), cert. denied, 454 U.S. 1126 (1981). 2 1 Case No. 1:07-cv-0907-LJO-DLB). On December 5, 2011, the Ninth Circuit dismissed the appeal 2 for failure to prosecute after holding that the appeal was “frivolous” and directing plaintiff to pay 3 the filing fee. Defs.’ Request for Judicial Notice (“RJN”), Ex. A. 4 2. Benyamini v. Johnson, E.D. Cal. Case No. 1:07-cv-0907-LJO-DLB. Plaintiff was 5 found to state cognizable claims against multiple defendants, but the action was ultimately 6 dismissed on July 27, 2010, for plaintiff’s failure to timely submit service documents. RJN, Ex. 7 B. 8 9 10 3. Benyamini v. Simpson, E.D. Cal. Case No. 2:08-cv-1552-GEB-DAD. Case dismissed on July 8, 2009, for failure to state a claim. RJN, Ex. C. 4. Benyamini v. Anderson, E.D. Cal. Case No. 1:07-cv-1596-OWW-GSA. 11 Plaintiff’s complaint was dismissed with leave to amend for failure to state a claim. When 12 plaintiff failed to file an amended pleading, the case was dismissed on May 13, 2009, on the 13 ground that the only pleading on file failed to state a claim. RJN, Ex. D. 14 5. Benyamini v. Manjuano, E.D. Cal. Case No. 1:06-cv-1096-AWI-GSA. Plaintiff 15 was found to state an Eighth Amendment claim against multiple Defendants. On March 4, 2015, 16 judgment was entered for defendants following grant of their motion for summary judgment. 17 RJN, Ex. E. 18 19 20 6. Benyamini v. Manjuano, E.D. Cal. Case No. 1:07-cv-1697-AWI-GSA. Case dismissed on October 7, 2008, as duplicative of 1:06-cv-1096-AWI-GSA. RJN, Ex. F. 7. Benyamini v. Rivers, E.D. Cal. Case No. 2:09-cv-0075-JAM-KJM. Plaintiff’s 21 complaint was dismissed with leave to amend for failure to state a claim. On November 25, 22 2009, the case was dismissed without prejudice at plaintiff’s request. RJN, Ex. G. 23 8. Benyamini v. Kretch, E.D. Cal. Case No. 2:09-cv-0170-GEB-DAD. Plaintiff’s 24 complaint was dismissed with leave to amend for failure to state a claim. On August 25, 2009, 25 the case was dismissed for plaintiff’s failure to file an amended complaint. RJN, Ex. H. 26 9. Benyamini v. Sharp, E.D. Cal. Case No. 2:09-cv-0173-FCD-EFB. Plaintiff’s 27 complaint was found to state a claim against one defendant. Plaintiff was granted leave to file an 28 amended pleading or to submit service documents. When plaintiff filed neither, the case was 3 1 2 dismissed without prejudice on March 16, 2010. RJN, Ex. I. 10. Benyamini v. Harris, E.D. Cal. Case No. 2:09-cv-2462-MCE-DAD. Plaintiff’s 3 complaint was found to state a claim against multiple defendants. On September 30, 2010, the 4 case was dismissed for plaintiff’s failure to submit service documents. RJN, Ex. J. 5 11. Benyamini v. Forsthy, E.D. Cal. Case No. 2:09-cv-2323-GEB-DAD. Plaintiff’s 6 complaint was found to state a claim, but the case was dismissed on June 1, 2012, for failure to 7 submit documents necessary to effect service. RJN, Ex. K. 8 9 10 11 12. Benyamini v. Forsthy, Ninth Circuit Case No. 12-16402 (appeal from E.D. Cal. Case No. 2:09-cv-2323-GEB-DAD). Summarily affirmed district court’s judgment after finding that the questions raised are “so insubstantial as not to require further argument.” RJN, Ex. L. 13. Benyamini v. Byrd, Ninth Circuit Case No. 11-7218 (appeal from E.D. Cal. Case 12 No. 2:10-cv-0101-KJM-DAD). Plaintiff’s application to proceed in forma pauperis denied 13 because appeal found to be frivolous. Appeal subsequently dismissed for plaintiff’s failure to pay 14 filing fee. RJN, Ex. M. 15 14. Benyamini v. Forshythe, E.D. Cal. Case No. 2:09-cv-2453-GEB-EFB. Plaintiff’s 16 complaint was found to state a claim against multiple defendants. Plaintiff was granted leave to 17 either file an amended complaint or return documents necessary to effect service. When plaintiff 18 did neither, the case was dismissed on July 13, 2011, for failure to prosecute. RJN, Ex. N. 19 15. Benyamini v. Forsythe, Ninth Circuit Case No. 11-16838 (appeal from E.D. Cal. 20 Case No. 2:09-cv-2453-FCD-EFB). Reviewed and affirmed district court’s dismissal of action. 21 RJN, Ex. O. 22 16. Benyamini v. Colvin, E.D. Cal. Case No. 2:12-cv-03160-JAM-EFB. Plaintiff’s 23 complaint was found to state a claim against one defendant. Plaintiff was granted leave to either 24 file an amended complaint or return documents necessary to effect service. When plaintiff did 25 neither, the case was dismissed on November 29, 2012, for failure to prosecute. RJN, Ex. P. 26 17. Benyamini v. Mendoza, E.D. Cal. Case No. 2:09-cv-2602-LKK-AC. Plaintiff’s 27 complaint was found to state a claim against multiple defendants. On motion by defendants, 28 plaintiff’s in forma pauperis status was revoked and he was ordered to pay the filing fee in full. 4 1 The case was dismissed on November 27, 2012, for plaintiff’s failure to pay the filing fee. RJN, 2 Ex. Q. 3 18. Benyamini v. Mendoza, Ninth Circuit Case No. 12-16341 (appeal from E.D. Cal. 4 Case No. 2:09-cv-2602-LKK-GGH). Plaintiff’s application to proceed in forma pauperis denied 5 because appeal found to be frivolous. Appeal subsequently dismissed for plaintiff’s failure to 6 respond to court order. RJN, Ex. R. 7 19. Benyamini v. Mennom, E.D. Cal. Case No. 2:11-cv-2916-GEB-EFB. Plaintiff’s 8 complaint was dismissed with leave to amend for failure to state a claim. When plaintiff failed to 9 file an amended complaint, the case was dismissed on August 1, 2012, for failure to comply with 10 a court order. RJN, Ex. S. 11 20. Benyamini v. Sahoota, Ninth Circuit Case No. 12-16863 (appeal from E.D. Cal. 12 Case No. 2:11-cv-2916-GEB-EFB). Reviewed and affirmed district court’s dismissal of action. 13 RJN, Ex. T. 14 21. Benyamini v. Wolfe, E.D. Cal. Case No. 2:12-cv-1578-WBS-CKD. Plaintiff’s 15 complaint was found to state a claim against multiple defendants. On motion by defendants, 16 plaintiff’s in forma pauperis status was revoked and he was ordered to pay the filing fee in full. 17 The case was dismissed on March 6, 2014, for plaintiff’s failure to pay the filing fee. RJN, Ex. U. 18 22. In re Robert P. Benyamini, Ninth Circuit Case No. 12-80209 (appeal from E.D. 19 Cal. Case No. 2:12-cv-3008-WBS). Pursuant to a pre-filing review order, plaintiff’s appeal was 20 not allowed to proceed because “the appeal is so insubstantial as to not warrant further review.” 21 RJN, Ex. V. 22 23. Benyamini v. Mayfield, E.D. Cal. Case No. 2:11-cv-0659-WBS-KJN. Case 23 dismissed on July 11, 2011, for failure to pay filing fee and/or submit an application to proceed in 24 forma pauperis. RJN, Ex. W. 25 D. 26 Discussion Pursuant to this court’s Local Rule 151(b), “[t]he provisions of Title 3A, part 2, of the 27 California Code of Civil Procedure, relating to vexatious litigants, are hereby adopted as a 28 procedural Rule of this Court on the basis of which the Court may order the giving of a security, 5 1 bond, or undertaking, although the power of the Court shall not be limited thereby.” A 2 defendant’s motion for an order requiring a plaintiff to furnish security must be supported by a 3 showing (a) that the plaintiff is a vexatious litigant and (b) that there is not a reasonable 4 probability that he or she will prevail in the litigation against the moving defendant. Cal. Civ. 5 Proc. Code § 391.1. Upon consideration of the motion, the court “shall consider any evidence, 6 written or oral, by witnesses or affidavit, as may be material to the ground of the motion.” Cal. 7 Civ. Proc. Code § 391.2. If the court determines that the plaintiff is a vexatious litigant and that 8 there is no reasonable probability that the plaintiff will prevail, the court shall order the plaintiff 9 to furnish security in an amount to be fixed by the court. Cal. Civ. Proc. Code § 391.3. When 10 security that has been ordered furnished is not furnished, the litigation shall be dismissed as to the 11 defendant for whose benefit it was ordered furnished. Cal. Civ. Proc. Code § 391.4. 12 1. 13 Defendants move to have plaintiff deemed a vexatious litigant under two provisions of 14 California’s Vexatious Litigants statute, California Code Civil Procedure §§ 391-391.7. First, 15 they argue that plaintiff commenced or maintained 23 unsuccessful lawsuits in the past seven 16 years, in violation of Section 391(b)(1), which defines a vexatious litigant as one who “[i]n the 17 immediately preceding seven-year period has commenced, prosecuted, or maintained in propria 18 persona at least five litigations other than in small claims court that have been ... finally 19 determined adversely to the person....” Second, defendants argue that plaintiff should be deemed 20 a vexatious litigant because, within his lawsuits, he filed numerous unmeritorious motions and 21 papers, in violation of Section 391(b)(3), which defines a vexatious litigant as one who “[i]n any 22 litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or 23 other papers, conducts unnecessary discovery, or engaged in other tactics that are frivolous or 24 solely intended to cause unnecessary delay.” 25 Vexatious Litigant Defendants have summarized 23 actions filed by plaintiff, each of which resulted in the 26 termination of the case against plaintiff . McColm v. Westwood Park Ass’n, 62 Cal. App. 4th 27 1211, 1220-21 (1998) (California’s vexatious litigant statute applies to appeals, and each appeal is 28 considered “new litigation” within the meaning of the statute). Unlike federal law, which 6 1 considers evidence of misconduct, California law requires only that the plaintiff’s actions have 2 been “finally determined adversely” to him. In his opposition, which is oftentimes incoherent, 3 plaintiff argues that these cases should not be considered because (a) his claims were legitimate 4 (despite the findings by multiple judges that he failed to state a claim), (b) he is indigent, (c) “the 5 Ninth Circuit Court of Appeals of California hates [him],” (d) the adversity he has faced is due to 6 racial discrimination, (f) various individuals (presumably defendants in some of the identified 7 cases) have attempted to murder him, and (g) he has been subjected to torture tactics, including 8 waterboarding. None of these arguments has any merit. Since the cases identified by defendants 9 meet the standard set forth under Section 391(b)(1), the court concludes that the defendants have 10 11 met their burden of establishing that plaintiff qualifies as a vexatious litigant. The court, however, finds that defendants have not met their burden of establishing that 12 plaintiff qualifies as a vexatious litigant pursuant to Section 391(b)(3). Under that provision, 13 what constitutes “repeatedly” or “unmeritorious” in any given case is left to the sound discretion 14 of the trial court, and while broad, this discretion is not unfettered. Morton v. Wagner, 156 Cal. 15 App. 4th 963, 971-72 (2007) (citation and quotation marks omitted). While there is no bright-line 16 rule, most cases falling within the state statute involve dozens of motions during the pendency of 17 an action or relating to the same judgment. Morton, 156 Cal. App. 4th at 972 (citation and 18 quotation marks omitted). Examination of the docket in the each of the cases identified by 19 defendants convinces the undersigned that plaintiff’s filings do not qualify as vexatious. 20 Unsuccessful motions are not necessarily unmeritorious or frivolous; “repeated motions must be 21 so devoid of merit and be so frivolous that they can be described as a flagrant abuse of the 22 system, have no reasonable probability of success, lack reasonable or probable cause or excuse 23 and are clearly meant to abuse the processes of the courts and to harass the adverse party....” Id. 24 at 972 (quoting Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4th 43, 58 (1997)) (internal 25 quotation marks omitted). Nonetheless, having concluded that plaintiff qualifies as a vexatious 26 litigant pursuant to Section 391(b)(1), the court will proceed with the second step of the analysis. 27 2. 28 In order to grant defendants’ motion, the court must also find that plaintiff does not have a Success on the Merits 7 1 reasonable probability of prevailing in this case. Cal. Civ. Proc. § 391.3. In making this 2 determination, the court is required to weigh the evidence, and it does not assume the truth of 3 plaintiff’s allegations. Moran v. Murtaugh Miller Meyer & Nelson, LLP, 40 Cal. 4th 780, 784-86 4 (2007); Golin v. Allenby, 190 Cal. App. 4th 616, 635 (2010). 5 As noted, this action is proceeding on plaintiff’s claims that defendants retaliated against 6 him because of pending lawsuits against staff members at CSP-Sac and that this conduct resulted 7 in interference with plaintiff’s ability to meet court deadlines. 8 9 a. First Amendment Retaliation “Prisoners have a First Amendment right to file grievances against prison officials and to 10 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 11 (citation omitted); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). To 12 state a viable First Amendment retaliation claim, a prisoner must allege five elements: “(1) An 13 assertion that a state actor took some adverse action against an inmate (2) because of (3) that 14 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 15 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 16 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Conduct protected by the First 17 Amendment includes communications that are “part of the grievance process.” Brodheim, 584 18 F.3d at 1271 n.4. A plaintiff must specifically identify the protected conduct at issue, name the 19 defendant who took adverse action against him, and plead that the allegedly adverse action was 20 taken “because of” plaintiff’s protected conduct. 21 The Ninth Circuit has found that preserving institutional order, discipline and security are 22 legitimate penological goals which, if they provide the motivation for an official act taken, will 23 defeat a claim of retaliation. Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994); Rizzo v. 24 Dawson, 778 F.2d 527, 532 (9th Cir. 1985) (“Challenges to restrictions of first amendment rights 25 must be analyzed in terms of the legitimate policies and goals of the correctional institution in the 26 preservation of internal order and discipline, maintenance of institutional security, and 27 rehabilitation of prisoners.”). Thus, the burden is on plaintiff to allege and demonstrate that 28 legitimate correctional purposes did not motivate the actions by prison officials about which he 8 1 complains. See Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (prisoner “must show that 2 there were no legitimate correctional purposes motivating the actions he complains of.”). District 3 courts must “afford appropriate deference and flexibility” to prison officials in the evaluation of 4 proffered legitimate penological reasons for conduct alleged to be retaliatory.” Pratt, 65 F.3d at 5 807 (citing Sandin v. Conner, 515 U.S. 472 (1995)). 6 Federal courts were not created to supervise correctional facilities, but to enforce the 7 constitutional rights of all persons, including inmates. “We are not unmindful that prison officials 8 must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are 9 subject to appropriate rules and regulations.” Cruz v. Beto, 405 U.S. 319, 321 (1982). But 10 prisoners, like other individuals, have the right to petition the government for redress of 11 grievances, which includes the First Amendment right to file grievances against jail officials and 12 to be free from retaliation for doing so. Brodheim, 584 F.3d at 1269. “Of fundamental import to 13 prisoners are their First Amendment 'rights to file prison grievances....”' Rhodes v. Robinson, 408 14 F.3d at 567 (quoting Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003)). “[B]ecause purely 15 retaliatory actions taken against a prisoner for having exercised those rights necessarily 16 undermine those protections, such actions violate the Constitution quite apart from any 17 underlying misconduct they are designed to shield.” Rhodes v. Robinson, 408 F.3d at 567. 18 On the other hand, not every incident rises to the level of retaliation. In Rhodes v. 19 Robinson, the Ninth Circuit cited a list of cases involving incidents that did rise to the level of 20 retaliation: 21 22 23 24 25 26 27 Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (holding that “repeated threats of transfer because of [the plaintiff's] complaints about the administration of the [prison] library” were sufficient to ground a retaliation claim); Hines, 108 F.3d at 269 (holding that the retaliatory imposition of a ten-day period of confinement and loss of television — justified by a correctional officer’s false allegation that the plaintiff breached prison regulations — violated the First Amendment); Pratt, 65 F.3d at 807 (“[I]t would be illegal for [corrections] officials to transfer and double-cell [plaintiff] solely in retaliation for his exercise of protected First Amendment rights.”); Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) (holding that, if correctional officers indeed called plaintiff a “snitch” in front of other prisoners 28 9 1 in retaliation for his filing grievances, it would violate the First Amendment). 2 3 Rhodes v. Robinson, 408 F.3d at 568. i. 4 Placement in MOHU Defendants first argue that plaintiff’s retaliation claim fails insofar as it is based on his 5 6 placement in MOHU. They submit evidence that on May 26, 2009, plaintiff was placed in a 7 Psychiatric Services Unit (“PSU”), which houses inmates with serious mental health issues who 8 also required placement in a high-security facility.5 Garcia-Plascencia Decl. ¶ 5; Henderson Decl. 9 ¶ 4. In 2009, placement in the PSU was done by an Interdisciplinary Treatment Team (“IDTT”) 10 that included CSP-Sac staff members and medical and mental health professionals. Vance Decl. 11 ¶ 5. Since neither defendant Henderson nor Roth was involved in the decision to house plaintiff 12 in PSU, they could not have taken “adverse action” against plaintiff in this regard. Henderson 13 Decl. ¶ 6, Roth Decl. ¶ 6. Similarly, while Captain Vance was part of the IDTT, he is not a 14 medical or mental health professional, he did not assess plaintiff’s mental health, and he did not 15 have authority to place plaintiff in the PSU unless his mental health treatment providers 16 determined it furthered his psychiatric treatment. Vance Decl. ¶¶ 5-6. Plaintiff has not submitted any argument or evidence in opposition to defendants’ motion 17 18 regarding the likelihood of his success on the merits. The court acknowledges that, due to the 19 procedural posture of this case (the instant motion is defendants’ first response to the complaint), 20 discovery has yet to commence, greatly limiting plaintiff’s ability to submit documentary 21 evidence. This does not, however, preclude him from identifying information that he expects to 22 obtain during discovery nor does it prevent him from arguing that the legitimate correctional 23 purposes asserted by the defendants in this motion did not motivate their actions. See Pratt, 65 24 F.3d at 808. Moreover, other than plaintiff’s unsupported allegation, there is nothing in the record 25 26 27 28 indicating that any of the defendants’ allegedly improper conduct was “because of” plaintiff’s 5 It is unclear from the record what difference there is, if any, between an inmate’s placement in MOHU versus PSU. 10 1 pending lawsuits. The court thus concludes that plaintiff does not appear likely to succeed on this 2 claim. 3 4 ii. Strip Search Plaintiff also claims that defendants retaliated against his protected activity by forcing him 5 to undergo a strip search upon admission to MOHU. Pursuant to CDCR and CSP-Sac policy in 6 2009, inmates housed in PSU were required to undergo an unclothed body search upon 7 admission. Henderson Decl. ¶ 12, Ex. A pt. 2 (ECF No. 20-5 at 3). Defendant Henderson may 8 have strip searched plaintiff during the relevant time, but asserts that he would have done so 9 pursuant to policy and not in retaliation for any protected conduct. Henderson Decl. ¶ 13. 10 Neither Roth nor Vance strip-searched plaintiff at any point during the relevant period, and each 11 claims that he did not order any custody staff to strip search plaintiff in retaliation for any 12 protected conduct. Vance Decl. ¶ 7. Again, plaintiff submits no evidence or argument in 13 opposition, and there is nothing in the record suggesting that the defendants’ conduct was 14 “because of” plaintiff’s pending lawsuits. The court therefore reaches the same conclusion that 15 plaintiff is not likely to succeed on his retaliation claim based on his being strip-searched. 16 17 18 iii. Denial of Legal Property Lastly, plaintiff’s retaliation claim is premised on defendants’ alleged denial of legal property while he was housed in MOHU. 19 In 2009, inmates housed in this unit received property pursuant to the Behavioral 20 Incentive Program (“BIP”), which assigned steps to inmates correlating with certain privileges. 21 Henderson Decl. ¶ 7. These steps ranged from Step 1A, at the lowest level, to Step 4. Id. 22 Inmates entered the program at Step 1 and their step level increased based on active participation 23 in the program and maintaining disciplinary-free behavior. Id. In all “steps” of the BIP, inmates 24 housed in the PSU were able to request and receive legal property for active cases, although 25 restrictions were in place if an inmate was on Step IA (inmates against whom disciplinary action 26 was taken). Id. ¶ 8. 27 28 During the relevant period, defendant Henderson was the Property Officer in the PSU. Henderson Decl. ¶ 9. Henderson denies having ever denied plaintiff legal material to which he 11 1 was entitled under CDCR or CSP-Sac policy and further denies having been directed or instructed 2 to deny plaintiff such material. Id. ¶ 11. Furthermore, neither Roth nor Vance was responsible 3 for fulfilling requests for legal materials during this period and both deny instructing any official 4 to deny plaintiff legal materials to which he was entitled. Roth Decl. ¶ 8, Vance Decl. ¶ 8. 5 Lastly, neither Henderson nor Roth was aware that plaintiff had filed or was planning to file a 6 lawsuit against a Lt. O’Brian. Henderson Decl. ¶ 10, Roth Decl. ¶ 5. 7 Based on this undisputed evidence and the lack of any arguments to the contrary, the court 8 again finds plaintiff does not have a likelihood of success on the merits on his First Amendment 9 retaliation claim. 10 11 b. First Amendment Right of Access to Courts The First Amendment right to petition the government includes a right of access to the 12 courts. See Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). Prisoners 13 have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 828 (1977). 14 Prisoners also have a right “to litigate claims challenging their sentences or the conditions of their 15 confinement to conclusion without active interference by prison officials.” Silva v. Di Vittorio, 16 658 F.3d 1090, 1103 (9th Cir. 2011), abrogated on other grounds as recognized in Richey v. 17 Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). An inmate alleging a violation of this right must 18 show that he suffered an actual injury. Lewis v. Casey, 518 U.S. 343, 349-51 (1996). That is, 19 plaintiff must allege that the deprivation actually injured his litigation efforts, in that the 20 defendant hindered his efforts to bring, or caused him to lose, an actionable claim challenging his 21 criminal sentence or conditions of confinement. See id. at 351; Christopher v. Harbury, 536 U.S. 22 403, 412-15 (2002). The right is limited to the filing of direct criminal appeals, habeas petitions, 23 and civil rights actions. Lewis, 518 U.S. at 354-55. Inmates do not have “an abstract, 24 freestanding right to a law library or legal assistance,” and “cannot establish relevant actual injury 25 simply by establishing that [the] prison’s law library or legal assistance program is subpar in 26 some theoretical sense.” Id. at 351. Because actual injury is a jurisdictional requirement that may 27 not be waived, an actual injury must be alleged in order to state a claim for relief. Nevada Dept. 28 of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011), cert. denied, 132 S. Ct. 1823 (2012); see, 12 1 e.g., Jenkins v. McMickens, 618 F. Supp. 1472, 1474-75 (S.D. N.Y. 1985) (complaint alleging 2 certain documents pertaining to pending trial confiscated and not returned too conclusory to 3 support claim of denial of access to court). 4 In the first amended complaint, plaintiff claims that defendants’ conduct resulted in 5 plaintiff’s inability to meet court deadlines in unidentified cases, resulting in the dismissal of two 6 of those actions. In their moving papers, defendants argue that plaintiff is not likely to succeed on 7 this claim because, contrary to his assertions, he was able to access the courts during the relevant 8 period; none of the cases that were open during the relevant period were subsequently dismissed 9 for plaintiff’s alleged inability to access the court; and, lastly, plaintiff cannot demonstrate that he 10 11 12 13 14 15 had an actionable claim in any of the cases that were dismissed. Defendants first argue that between May 26, 2009, and July 2009, plaintiff was able to access the courts, as demonstrated by multiple filings in these cases: 1. Benyamini v. Johnson, E.D. Cal. Case No. 1:07-cv-0907-LJO-DLB. On June 24, 2009, plaintiff filed a motion entitled “Motion to halt and to consent.” (ECF No. 28.) 2. Benyamini v. Simpson, E.D. Cal. Case No. 2:08-cv-1552-GEB-DAD. On June 16 12, 2009, plaintiff filed a “Motion to halt all proceedings and to back track dismissal.” (ECF No. 17 31.) On June 16, 2009, plaintiff filed objections to pending findings and recommendations. (ECF 18 No. 32.) 19 3. Benyamini v. Manjuano, E.D. Cal. Case No. 1:06-cv-1096-AWI-GSA. On June 4, 20 2009, plaintiff filed a motion for extension of time to file an amended complaint and a motion to 21 appoint counsel. (ECF No. 54.) On June 18, 2009, plaintiff filed a “Motion to halt all proceeds 22 and appoint counsel.” (ECF No. 56.) 23 4. Benyamini v. Kretch, E.D. Cal. Case No. 2:09-cv-0170-GEB-DAD. On June 16, 24 2009, plaintiff filed three motions: (a) “Motion to halt case and ‘Findings and 25 Recommendations’” (ECF No. 13), (b) a request for copies (ECF No. 14), and (c) a motion to 26 halt all dockets, appoint counsel, and send copies of documents (ECF No. 15). 27 28 5. Benyamini v. Sharp, E.D. Cal. Case No. 2:09-cv-0173-FCD-EFB. During the relevant period, plaintiff submitted five motions and/or requests. On June 16, 2009, plaintiff filed 13 1 a request for copies (ECF No. 14) and a “motion to halt all dockets, for appointment of counsel 2 and library access” (ECF No. 15). On June 30, 2009, plaintiff filed a motion to dismiss 3 defendants (ECF No. 16) and motion for court to return original documents filed (ECF No. 17). 4 On July 15, 2009, plaintiff filed a request for copies. (ECF No. 18.) 5 Defendants also argue that, of the actions that were dismissed after the relevant period, 6 none of the dismissals were related to plaintiff’s alleged inability to access the courts. Benyamini 7 v. Johnson, E.D. Cal. Case No. 1:07-cv-0907-LJO-DLB (judgment entered July 27, 2010, due to 8 plaintiff’s failure to submit service documents by a May 2010 deadline); Benyamini v. Simpson, 9 E.D. Cal. Case No. 2:08-cv-1552-GEB-DAD (judgment entered July 8, 2009, on grant of 10 defendants’ motion to dismiss; plaintiff filed objections during the relevant period (ECF No. 32)); 11 Benyamini v. Manjuano, E.D. Cal. Case No. 1:06-cv-1096-AWI-GSA (judgment entered March 12 4, 2015, on grant of defendants’ motion for summary judgment); Benyamini v. Kretch, E.D. Cal. 13 Case No. 2:09-cv-0170-GEB-DAD (judgment entered August 25, 2009, due to plaintiff’s failure 14 to file an amended complaint; during the relevant period, plaintiff filed three motions, including a 15 motion for extension of time that was granted); Benyamini v. Sharp, E.D. Cal. Case No. 2:09-cv- 16 0173-FCD-EFB (judgment entered March 16, 2010, due to plaintiff’s failure to file an amended 17 complaint or service documents by a January 2010 deadline). 18 Lastly, defendants argue that plaintiff cannot demonstrate that he was pursuing a non- 19 frivolous legal claim in those actions where his access to court was allegedly frustrated or 20 impeded. Lewis, 518 U.S. at 351. Though it is not entirely clear which actions were dismissed 21 due to plaintiff’s alleged inability to access the courts, he states in the complaint that one involved 22 a “Lt. O’Brian.” Court records, however, reveal that plaintiff filed three actions involving a Lt. 23 O’Brian, all of which were filed after the relevant period. See Benyamini v. Harris, E.D. Cal. 24 Case No. 2:09-cv-2462-MCE-DAD (filed September 2009); Benyamini v. Forsthy, E.D. Cal. 25 Case No. 2:09-cv-2323-GEB-DAD (filed August 2009); and Benyamini v. Forsythe, E.D. Cal. 26 Case No. 2:09-cv-2453-GEB-EFB (filed September 2009). And in none of those cases was the 27 dismissal related to plaintiff’s alleged inability to access the courts. See supra. 28 In his opposition, plaintiff provides some clarity. He contends that the two relevant 14 1 actions are Benyamini v. L. Johnson and Benyamini v. Harris. Without reference to case 2 numbers, the court presumes that he is referring to Benyamini v. Johnson, E.D. Cal. Case No. 3 1:07-cv-0907-LJO-DLB, and Benyamini v. Harris, E.D. Cal. Case No. 2:09-cv-2462-MCE-DAD. 4 But in Benyamini v. Johnson, the dismissal was for plaintiff’s failure to submit service documents 5 by a May 2010 deadline (nearly one year after the relevant period), and as already noted, the 6 dismissal in Benyamini v. Harris was unrelated to plaintiff’s alleged inability to access the courts. 7 Plaintiff cannot make conclusory declarations of injury, but instead must demonstrate that a non- 8 frivolous legal claim has been frustrated or impeded. Lewis, 518 U.S. at 351. The court thus 9 concludes that there does not exist a reasonable probability that plaintiff will succeed on his 10 access-to-court claim. 11 3. 12 Having concluded that plaintiff is not likely to succeed on his First Amendment retaliation 13 and access-to-court claims, the undersigned next turns to the question of security. Defendants ask 14 that plaintiff be required to furnish security in an amount between $11,900 (the amount 15 defendants expended to bring the instant motion) and $20,400 (the amount estimated to fully 16 litigate the instant motion). See Ehlenbach Decl. ¶¶ 3-4. Plaintiff did not respond to this 17 argument. 18 Amount of Security “‘Security’ means an undertaking to assure payment, to the party for whose benefit the 19 undertaking is required to be furnished, of the party’s reasonable expenses, including attorney’s 20 fees and not limited to taxable costs, incurred in or in connection with a litigation instituted, 21 caused to be instituted, or maintained or caused to be maintained by a vexatious litigant.” Cal. 22 Civ. Proc. Code § 391(c). Defendants’ characterization of $11,900 is supported by evidence, as a 23 conservative estimate of the amount expended to date. Moran, 40 Cal. 4th at 786; McColm, 62 24 Cal. App. 4th at 1218-19 ($1,000.00 security amount sought did not require evidentiary support); 25 Devereaux v. Latham & Watkins, 32 Cal. App. 4th 1571, 1587-88 (1995) (security sought in the 26 amount of $25,000.00 was supported by evidence); see also Singh v. Lipworth, 132 Cal. App. 4th 27 40, 45-48 (2005). Moreover, although plaintiff is proceeding in forma pauperis, that status is not 28 a barrier to an order to furnish security. Moran, 40 Cal. 4th at 786; McColm, 62 Cal. App. 4th at 15 1 1218-19; Devereaux, 32 Cal. App. 4th at 1587-88. Accordingly, the court will recommend that 2 plaintiff be ordered to furnish security in the amount of $11,900 before this action proceeds 3 further. 4 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 5 1. Defendants’ July 27, 2015, motion for an order declaring plaintiff a vexatious litigant 6 and requiring security (ECF No. 20) be granted; 7 2. Plaintiff be declared a vexatious litigant under the provisions of Title 3A, part 2, of the 8 California Code of Civil Procedure, adopted by this Court pursuant to Local Rule 9 151(b); and 10 11 12 3. Plaintiff be required to furnish security in the amount of $11,900 before proceeding with this action. These Findings and Recommendations will be submitted to the United States District 13 Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 thirty (30) days after being served with a copy of these Findings and Recommendations, any party 15 may file written objections with the Court and serve a copy on all parties. Such a document 16 should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Any 17 reply to the objections shall be served and filed within ten (10) days after service of the 18 objections. The parties are advised that failure to file objections within the specified time may 19 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 20 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 DATED: March 30, 2016 22 23 24 25 26 27 28 16

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