Silver v. Clark County Nevada et al, No. 2:2020cv00682 - Document 5 (D. Nev. 2020)

Court Description: ORDER denying 4 Motion for Pro Se Litigant to File Electronically. REPORT AND RECOMMENDATION Recommending to deny as moot 1 Motion/Application for Leave to Proceed in forma pauperis, Recommending to dismiss 1 Complaint, Recommending that Frederick Silver be deemed a VEXATIOUS LITIGANT. IT IS FURTHER RECOMMENDED that Frederick Silver be required to seek LEAVE of Court before filing any additional actions. Objections to R&R due by 5/20/2020. Signed by Magistrate Judge Cam Ferenbach on 5/6/2020. (Copies have been distributed pursuant to the NEF - JM)

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Silver v. Clark County Nevada et al Doc. 5 Case 2:20-cv-00682-GMN-VCF Document 5 Filed 05/06/20 Page 1 of 10 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 FREDERICK OMOYUMA SILVER, 5 Plaintiff, 6 vs. 7 CLARK COUNTY NEVADA, et al, Case No. 2:20-cv-00682-GMN-VCF REPORT AND RECOMMENDATION Defendants. 8 -AndORDER 9 APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC NO. 1); COMPLAINT (ECF NO. 1-1); MOTION FOR PRO SE LITIGANT TO FILE ELECTRONICALLY (ECF NO. 4) 10 11 12 13 Before the Court are pro se plaintiff Frederick Omoyuma Silver’s application to proceed in forma 14 pauperis (ECF No. 1) and complaint (ECF No. 1-1). Plaintiff should be deemed a vexatious litigant, this 15 16 case should be dismissed, and his application to proceed in forma pauperis should be denied as moot. The Court also denies plaintiff’s motion to file electronically. 17 I. Legal Standard 18 The court must review a plaintiff’s complaint to determine whether the complaint is frivolous, 19 20 21 malicious, fails to state a claim on which the court may grant relief, or if the complaint seeks damages against a defendant who is immune from that relief. 28 U.S.C. § 1915(e)(2)(B). Federal Rule of Civil 22 Procedure 8(a) provides that a complaint “that states a claim for relief” must contain “a short and plain 23 statement of the claim showing that the [plaintiff] is entitled to relief.” The Supreme Court’s decision in 24 Ashcroft v. Iqbal states that to satisfy Rule 8’s requirements, a complaint’s allegations must cross “the 25 line from conceivable to plausible.” 556 U.S. 662, 680 (2009) (quoting Bell Atlantic Corp. v. Twombly, Dockets.Justia.com Case 2:20-cv-00682-GMN-VCF Document 5 Filed 05/06/20 Page 2 of 10 1 2 550 U.S. 544, 547, (2007)). Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for 3 failure to state a claim upon which relief can be granted. A complaint should be dismissed under Rule 4 12(b)(6) "if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claims 5 that would entitle him to relief." Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). “[A] pro se 6 complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings 7 drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 8 97, 106 (1976)). 9 A district court has the “inherent power to enter pre-filing orders against vexatious litigants.” 10 Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) (citing 28 U.S.C. § 165l(a)). 11 Because a pre-filing order implicates a litigant’s right of access to the courts, the court should enter such 12 an extreme remedy “only after a cautious review of the pertinent circumstances.” Id. Prior to entering a 13 14 15 16 pre-filing order, the court must give the litigant notice and an opportunity to be heard. Id. (citing De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990)). The court must set forth an adequate record for review and make “substantive findings about the 17 frivolous or harassing nature of the plaintiff's litigation.” Id. “An adequate record for review should 18 include a listing of all the cases and motions that led the district court to conclude that a vexatious 19 litigant order was needed.’” Id. at 1059 (quoting De Long, 912 F.2d at 1147). “Flagrant abuse of the 20 judicial process cannot be tolerated because it enables one person to preempt the use of judicial time that 21 22 23 properly could be used to consider the meritorious claims of other litigants.” De Long, 912 F.2d at 1148. To determine whether the litigant’s conduct is frivolous or harassing, the court evaluates “both the number and content of the filings as indicia of the frivolousness of the litigant’s claims.” Id. (quotation 24 omitted). 25 2 Case 2:20-cv-00682-GMN-VCF Document 5 Filed 05/06/20 Page 3 of 10 A pre-filing order “must be narrowly tailored to closely fit the specific vice encountered.” Id. 1 2 (quotation omitted). Whether to enter a pre-filing order against a vexatious litigant lies within the 3 court’s discretion. Id. at 1056. The court should examine five factors: (1) the litigant's history of 4 litigation and in particular whether it entailed vexatious, harassing, or duplicative lawsuits; (2) the 5 litigant's motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation 6 of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused 7 needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; 8 and (5) whether other sanctions would be adequate to protect the courts and other parties. Williams v. 9 Nat'l Default Servicing Corp., No. 2:16-cv-1860-GMN-NJK, 2017 U.S. Dist. LEXIS 4111, at 12-14 (D. 10 Nev. Jan. 10, 2017), citing to Molski v. Mandarin Touch Rest., 347 F.Supp.2d 860, 863-64 (C.D. Cal. 11 2004). 12 II. Discussion 13 14 15 Silver filed this action pro se against Clark County Nevada, Judge T. Arthur Ritchie, Jr., District Attorney Steven Wolfson, and Family Court Hearing Master Jane Femiano. (ECF No. 1-1 at 1). Silver 16 alleges that the defendants have violated his rights by forcing him to pay child support and by taking 17 $75,000 worth of his private property for child support to “unjustly enrich” themselves. (Id. at 7). Silver 18 does not explain how Judge Richie, DA Wolfson, Clark County, and Hearing Master Femiano enriched 19 themselves by enforcing child support laws. 20 21 22 a. Recommendation to Dismiss Pursuant to 28 U.S.C. § 1915, the court must screen an IFP complaint and dismiss the complaint if the court determines the complaint is frivolous, malicious, or fails to state a claim on which relief may 23 be granted. It appears plaintiff is displeased that the Family Court has ruled that he must pay child 24 support and he seeks this Court’s review. It is well-settled that federal district courts do not have 25 3 Case 2:20-cv-00682-GMN-VCF Document 5 Filed 05/06/20 Page 4 of 10 1 2 3 appellate jurisdiction over a state court, whether by direct appeal, mandamus, or otherwise. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003). All Silver’s allegations are in relation to the actions of Judge Richie, Hearing Master Femiano, 4 and DA Wolfson as the prosecutor as the child support enforcement case, and he ties in Clark County 5 because he alleges they all work for Clark County. All of plaintiff’s claims against Judge Richie and 6 Hearing Master Femiano involve actions taken by them in their quasi-judicial or judicial capacity, thus 7 they are absolutely immune from suit. The United States Supreme Court has repeatedly held that judges 8 and those performing quasi-judicial functions are absolutely immune from damages for acts performed 9 within their judicial capacities. Stump v. Sparkman, 435 U.S. 349, 360 (1978); Nixon v. Fitzgerald, 457 10 U.S. 731, 766 (1982). Judges are absolutely immune from a civil suit for damages under § 1983. See 11 Imber v. Pachtman, 424 U.S. 409, 435 (1976). Prosecutors performing their official prosecutorial 12 functions are entitled to absolute immunity against constitutional torts. See Van de Kamp v. Goldstein, 13 14 15 555 U.S. 335, 342, 129 S. Ct. 855, 860 (2009). Plaintiff’s claims against DA Wolfson enforcing a child support action against Silver is an official prosecutorial function and Wolfson is immune from suit. 16 Municipalities may not be held liable on a respondeat superior theory under Section 1983. 17 Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 18 (1978). A municipal entity may be liable when its “policy or custom…inflicts the injury.” Id. at 694. 19 Municipalities and other local government units are included in that group of “persons” referred to in 20 Section 1983. Id. A complaint must allege “that the policy is the moving force behind the constitutional 21 22 23 violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). A single act by a nonpolicymaking official does not show the existence of a policy, custom, or practice. Rivera v. Cty. of Los Angeles, 745 F.3d 384, 389 (9th Cir. 2014). “[O]nly if a plaintiff shows that his injury resulted from 24 ‘permanent and well settled' practice may liability attach for injury resulting from a local government 25 4 Case 2:20-cv-00682-GMN-VCF Document 5 Filed 05/06/20 Page 5 of 10 1 2 custom.” McDade v. West, 223 F.3d 1135, 1141 (9th Cir. 2000). Plaintiff has not stated a claim against Clark County because the court’s actions (enforcing child support laws) are not policies or customs of 3 Clark County that led to plaintiff’s alleged constitutional violation of being forced to pay child support. 4 Plaintiff’s complaint fails to state a claim upon which relief can be granted regarding the actions of the 5 defendants. Even under the liberal pleading standard, plaintiff’s complaint is 1) fashioned as an appeal of a 6 7 state court proceeding, which is outside this Court’s jurisdiction, and 2) his allegations are related to 8 judicial or prosecutorial actions which require immunity. Amendment would be futile, and this case 9 should be dismissed. 10 b. Recommendation to Deem Silver a Vexatious Litigant 11 Silver has filed multiple cases pro se in the District of Nevada: 12 1. 3:13-cv-00655-MMD-WGC 13 2. 2:18-cv-01106-JAD-CWH 14 3. 2:19-cv-00032-APG-BNW 15 16 4. 2:20-cv-00695-KJD-NJK 17 5. 3:19-cv-00143-MMD-WGC 18 6. 2:19-cv-005541 19 7. 2:19-cv-00636-JAD-EJY 20 8. 2:19-cv-00637-RFB-DJA 21 9. 2:19-cv-01414-RFB-NJK 22 10. 2:20-cv-00682-GMN-VCF 23 24 25 1 Case terminated because initiating documents not filed. 5 Case 2:20-cv-00682-GMN-VCF Document 5 Filed 05/06/20 Page 6 of 10 This is also not the first time Silver has filed a frivolous lawsuit that this Court dismissed 1 2 regarding his child support obligations against many of the same defendants in this Court. 2:18-cv- 3 01106-JAD-CWH, ECF No. 20 (Order adopting report and recommendation to dismiss case against 4 Clark County Child Support Division/DA, Family Support Enforcement Division, and Clark County 5 District Attorney Steven Wolfson in relation to the defendants’ alleged attempts to collect child support 6 payments from him); see 2:19-cv-00636-JAD-EJY, ECF No. 7 (Order adopting report and 7 recommendation to dismiss Silver’s child support enforcement case for lack of subject-matter 8 jurisdiction); 2:19-cv-00637-RFB-DJA, ECF No. 10 (another Order adopting report and 9 recommendation to dismiss Silver’s child support enforcement case for lack of subject-matter 10 jurisdiction). Filing duplicative lawsuits is a hallmark of a vexatious litigant. Amendment in this case 11 would also be futile due to the doctrine of res judicata2, and this plaintiff has wasted enough judicial 12 resources by filing the same or similar lawsuits repeatedly. 13 Silver has a few pending cases before this Court that involve claims regarding his dissatisfaction 14 15 with paying child support. There is a pending report and recommendation to dismiss Silver’s claims 16 against the Clark County Child Support Division regarding child support he does not wish to pay. See 17 2:19-cv-01414-RFB-NJK, ECF No. 10. He also has a pending case regarding his child support 18 obligations against many of the same defendants (DA Steven Wolfson, Hearing Master Jane Femiano, 19 and Judge T. Arthur Richie Jr.), along with defendants Clark County Child Support Division, Attorney 20 General Aaron Ford, Nevada Department of Health and Human Services, Candice K Towner (the 21 mother to whom the support is owed), HAA Regional Director Edward Heidig, and agents Veronica 22 23 24 25 “Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 91, 101 S. Ct. 411, 413 (1980). 2 6 Case 2:20-cv-00682-GMN-VCF Document 5 Filed 05/06/20 Page 7 of 10 1 2 Gomez and Aarin Bailey with the Clark County Family Child Support Enforcement Support Division. See 2:19-cv-00032-APG-BNW, ECF No. 126. Silver has another case where there is a pending IFP 3 application and notice of removal, wherein it appears Silver is attempting to remove enforcement of his 4 child support payments to this Court. See 2:20-cv-00695-KJD-NJK. Allowing plaintiff the opportunity 5 to amend here would again be futile due to the first-to-file rule3 and the doctrine of claim splitting4. Silver also has a pending case regarding a “financial obligation that was primarily for personal, 6 7 family, and household purposes[.]” See 3:19-cv-00143-MMD-WGC, ECF No. 5 at 3. This Court also 8 dismissed another of Silver’s cases for lack of jurisdiction. See 3:13-cv-00655-MMD-WGC5, ECF No. 9 24 (Order dismissing case for lack of subject matter jurisdiction). 10 “No one, rich or poor, is entitled to abuse the judicial process.” Tripati v. Beaman, 878 F.2d 351, 11 353 (10th Cir. 1989). Silver has a history of filing pro se vexatious and duplicative lawsuits. Silver does 12 not have a good faith motive in pursuing frivolous litigation and he has abused the judicial process by 13 14 15 filing lawsuits that he knows will be dismissed. Plaintiff’s actions have posed an unnecessary burden on this Court and are a vexatious abuse of the judicial process. Plaintiff is likely to continue his abuse of the 16 judicial process. Requiring Silver to seek leave prior to filing new lawsuits is narrowly tailored because 17 he will still have access to this Court by requesting leave. Although the Court is raising this issue sua 18 19 20 21 22 23 24 25 “[T]he “first-to-file” rule (also called the "first-filed" or the "prior pending action” rule) dictates that, in the absence of “exceptional circumstances," the later-filed action should be stayed, transferred or dismissed[ ].” Colortyme Fin. Servs. v. Kivalina Corp., 940 F. Supp. 269, 272 (D. Haw. 1996), citing to Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th Cir. 1982). “Dismissal of the duplicative lawsuit…promotes judicial economy and the ‘comprehensive disposition of litigation.’” Adams v. Cal. Dep't of Health Servs., 487 F.3d 684, 692 (9th Cir. 2007). 4 A party may not split a cause of action into separate grounds of recovery and raise the separate grounds in successive lawsuits. In re PersonalWeb Techs., LLC, 2019 U.S. Dist. LEXIS 56804, at 49 (N.D. Cal. Mar. 13, 2019). Claim splitting differs from res judicata because it does not require that there be a final judgment. Adams, 487 F.3d at 692. “Plaintiffs generally have no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant." Id. at 688. 5 The Court notes that plaintiff did not use his middle name or initial when filing this case, but this case is one of plaintiff Silver’s because he uses the same email address on this filing as the instant case. 3 7 Case 2:20-cv-00682-GMN-VCF Document 5 Filed 05/06/20 Page 8 of 10 1 2 3 sponte, Silver will have notice and a chance to be heard through the objection process. Silver has previously demonstrated that he understands the objection process in this Court. See 2:19-cv-01414RFB-NJK, ECF No. 13. 4 c. Silver’s In Forma Pauperis Application and Motion to File Electronically 5 Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or 6 security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to 7 pay such fees or give security therefor.” Plaintiff’s in forma pauperis application states under penalty of 8 perjury that he has thousands of dollars in expenses and that he drives a Lexis LS 460: yet he claims he 9 has $0 in income from any source to pay any of his expenses. The Court also notes that plaintiff claims 10 he had $75,000 worth of property seized in the instant complaint, and that this Court has previously 11 denied plaintiff in forma pauperis status because Silver paid the filing fee in this Court in a subsequent 12 case. See 2:18-cv-01106-JAD-CWH, ECF No. 14 (Order denying in forma pauperis application because 13 14 15 Silver filed a subsequent lawsuit and paid the $400 filing fee). The Court would deny Silver’s in forma pauperis application because his claim that he has thousands of dollars in monthly expenses and no way 16 to pay any of them for the past 12 months (including his rent and bills) are not credible. Since the Court 17 is recommending dismissal, however, the Court recommends that Silver’s in forma pauperis application 18 should be denied as moot. 19 The Court notes further that this Court has previously granted, and then revoked, Silver’s 20 electronic filing privileges. See 2:19-cv-00032-APG-BNW, ECF No. 133 (Order revoking plaintiff’s 21 privileges to file electronically due to Silver’s refusal to comply with the local rules or directions from 22 the clerk’s office to remedy his errors regarding ECF Nos. 16, 18, 19, 28, 30, 31, 33, 34, 44, 52, 54, 55, 23 61, 66, 69, 72, 73, 75, 76, 94, 78, 87, 89, 100, and 103). Since this Court is recommending dismissal, the 24 Court denies Silver’s motion to file electronically. 25 8 Case 2:20-cv-00682-GMN-VCF Document 5 Filed 05/06/20 Page 9 of 10 1 2 3 4 5 6 7 8 9 10 ACCORDINGLY, IT IS RECOMMENDED that plaintiff Frederick Silver’s complaint (ECF No. 1-1) be DISMISSED for failure to state a claim. IT IS FURTHER RECOMMENDED that plaintiff’s application to proceed in forma pauperis (ECF No. 1) be DENIED as moot. IT IS FURTHER RECOMMENDED that be Frederick Silver deemed a VEXATIOUS LITIGANT. IT IS FURTHER RECOMMENDED that Frederick Silver be required to seek LEAVE of Court before filing any additional actions in the District of Nevada. IT IS ORDERED that Frederick Silver’s motion for pro se litigant to file electronically (ECF No. 11 4) is DENIED. 12 NOTICE 13 14 15 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 16 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 17 may determine that an appeal has been waived due to the failure to file objections within the specified 18 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file 19 objections within the specified time and (2) failure to properly address and brief the objectionable issues 20 waives the right to appeal the District Court's order and/or appeal factual issues from the order of the 21 22 District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 23 Pursuant to LR IA 3-1, plaintiffs must immediately file written notification with the Court of any 24 change of address. The notification must include proof of service upon each opposing party’s attorney, 25 9 Case 2:20-cv-00682-GMN-VCF Document 5 Filed 05/06/20 Page 10 of 10 1 2 or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may result in dismissal of the action. 3 IT IS SO RECOMMENDED AND ORDERED. 4 DATED this 6th day of May 2020. 5 _________________________ 6 CAM FERENBACH UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10

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