-DLB (PC) Bryant v. Knight et al, No. 1:2009cv01367 - Document 35 (E.D. Cal. 2011)

Court Description: ORDER Adopting Findings and Recommendations in Part 28 ; ORDER Granting in Part and Denying in Part Defendants' Motion to Dismiss for Failure to State a Claim 14 ; ORDER Denying Defendants' Motion to Declare Plaintiff Vexatious Litigant 15 , signed by Judge Oliver W. Wanger on 5/2/11. (Verduzco, M)
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-DLB (PC) Bryant v. Knight et al Doc. 35 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JAMES E. BRYANT, 10 1:09-CV-01367-OWW-DLB PC Plaintiff, 11 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN PART (DOC. 28) v. 12 J. KNIGHT, et al., 13 Defendants. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (DOC. 14) 14 ORDER DENYING DEFENDANTS’ MOTION TO DECLARE PLAINTIFF VEXATIOUS / LITIGANT (DOC. 15) 15 16 17 Plaintiff James E. Bryant (“Plaintiff”) is a California state 18 prisoner proceeding pro se in this civil rights action pursuant to 19 42 U.S.C. § 1983. 20 Knight and Davis for violation of the First and Eighth Amendment. 21 On March 5, 2010, Defendants filed a motion to dismiss for failure 22 to state a claim and a motion to declare Plaintiff a vexatious 23 litigant. 24 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 25 Rule 302. This action is proceeding against Defendants J. Docs. 14, 15. The matter was referred to a United States 26 On March 4, 2011, the Magistrate Judge filed a Findings and 27 Recommendations which was served on the parties and which contained 28 notice to the parties that any objection to the Findings and 1 Dockets.Justia.com 1 Recommendations was to be filed within fourteen days. 2 receiving extensions of time, Defendants filed an Objection to the 3 Findings and Recommendations on April 4, 2011. 4 After Doc. 32. In accordance with the provisions of 28 U.S.C. § 636(b)(1), 5 this Court has conducted a de novo review of this case. 6 carefully reviewed the entire file, the Court finds the Findings 7 and Recommendations to be supported by the record and by proper 8 analysis, with some modification. The Court provides the following 9 additional 10 analysis and modifications to address Having Defendants’ objections. 11 A. 12 Defendants contend that Plaintiff fails to state a claim 13 against Defendant Davis for excessive force for the November 24, 14 2007 incident. 15 Findings and Recommendations summarized the November 24, 2007 16 incident as follows: 17 18 19 20 21 22 23 24 25 26 Failure To State A Claim Defs.’ Mot. Dismiss, 9:12-10:23, Doc. 14-1. The On November 24, 2007, Plaintiff and another inmate were conversing. Defendant Davis, who was in the control tower, ordered Plaintiff to enter the chow hall for the evening meal. Plaintiff contends that it is not mandatory unless an inmate wants to participate in the meal. Plaintiff refused to enter the chow hall. Defendant Davis then ran across the yard and caught Plaintiff in the area near Building Four. Defendant Davis then slammed Plaintiff up against the wall face first, stating that if Plaintiff was ordered to stop, he should stop. Plaintiff was then handcuffed and escorted to the program office. Defendant Davis then roughly threw him into the holding cage for about an hour, then returned and sent Plaintiff back to his building and cell. Findings and Recommendations 4:11-19, Doc. 28. The Court finds the use of force in this incident to be de 27 minimis. Handcuffing Plaintiff and slamming him up face-first 28 against a wall after Plaintiff’s alleged failure to comply with 2 1 Defendant Davis’s order does not rise to the level of an Eighth 2 Amendment violation. 3 Cir. 2002) (Eighth Amendment excessive force standard examines de 4 minimis uses of force). See Oliver v. Keller, 289 F.3d 623, 628 (9th 5 Plaintiff states a claim as to all other claims, namely: (1) 6 Defendant Knight putting Plaintiff in a headlock and sadistically 7 and maliciously choking Plaintiff; (2) Defendant Davis refusing to 8 allow Plaintiff to come to work in retaliation for Plaintiff filing 9 an inmate grievance against him; and (3) Defendants Davis and 10 Knight putting up another inmate to attack Plaintiff in retaliation 11 for Plaintiff filing an inmate grievance against them. 12 B. Dismissal As Sanction 13 Defendants contend that they move for dismissal pursuant to 14 Rule 41(b) of the Federal Rules of Civil Procedure. 15 Objections 8:11-17. 16 Rule 11 of the Rules of Civil Procedure by lying to the Court as to 17 the number of cases he previously filed, and that the Court has 18 inherent power to dismiss for violation of the Rules of Civil 19 Procedure pursuant to Rule 41(b). 20 Defs.’ Defendants contend that Plaintiff violated Representations to the Court are governed by Rule 11(b). 21 Dismissal of an action for violation of Rule 11 is effectively a 22 sanction, and such sanctions are specifically governed by 11(c)(2). 23 The Court is disinclined to apply a generalized inherent authority 24 when a more specific rule is applicable. See Bloate v. United 25 States, 130 S. Ct. 1345, 1354 (2010) (“‘General language of a 26 statutory provision, although broad enough to include it, will not 27 be held to apply to a matter specifically dealt with in another 28 part of the same enactment’”) (quoting D. Ginsberg & Sons, Inc. v. 3 1 Popkin, 285 U.S. 204, 208 (1932)). Defendants cite to Warren v. 2 Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994) (per curiam), as 3 support for their arguments. 4 case considered whether a district court erred in not applying Rule 5 11 to litigants proceeding in forma pauperis. 6 Rule 11, the Magistrate Judge found that Defendants did not comply 7 with the requirements of Rule 11(c)(2). 8 11(c)(2) (motion for sanctions must “not be filed or be presented 9 to the court if the challenged paper, claim, defense, contention, 10 or denial is withdrawn or appropriately corrected within 21 days 11 after service or within another time the court sets.”); Radcliffe 12 v. Rainbow Constr. Co., 254 F.3d 772, 788-89 (9th Cir. 2001) 13 (citing former Fed. R. Civ. P. 11(c)(1)(A), now Fed. R. Civ. P. 14 11(c)(2)). 15 violation of Rule 11 is appropriate. Defs.’ Objections 11:4-12:2. See That Here, in applying Fed. R. Civ. P. The denial of Defendants’ motion for sanction for 16 C. Vexatious Litigant 17 Defendants contend that declaring Plaintiff a vexatious 18 litigant is a different issue than requiring Plaintiff to post a 19 security in this action. 20 seek to declare Plaintiff a vexatious litigant as well as require 21 that he post security. 22 provisions of Title 3A, part 2, of the California Code of Civil 23 Procedure, relating to vexatious litigants, are hereby adopted as 24 a procedural Rule of this Court on the basis of which the Court may 25 order the giving of a security, bond, or undertaking, although the 26 power of the Court shall not be limited thereby.” Defs.’ Objections 4:10-5:2. Defendants The Local Rules of this Court state, “The L.R. 151(b). 27 While Title 3A, part 2 of the California Code of Civil 28 Procedure is adopted as a procedural rule, this Court is governed 4 1 by the case law of the United States Court of Appeals for the Ninth 2 Circuit. 3 district courts in the Ninth Circuit have been cautious. 4 Circuit case law requires the district court to ensure that (1) the 5 plaintiff 6 pre-filing order; (2) the record of the case filings reflects “in 7 some manner, that the litigant’s activities were numerous and 8 abusive;” 9 frivolousness or harassing nature of plaintiff’s filings; and (4) 10 the order is narrowly tailored to remedy only the plaintiff’s 11 particular abuses. 12 1990). 13 so numerous and abusive as to warrant a vexatious litigant order. 14 See DeLong v. Hennessey, 912 F.2d 1144, 1147-48 (9th Cir. 1990) 15 (examples of numerous or abusive filings include plaintiffs who 16 have filed 35 related complaints, more than 50 frivolous cases, or 17 more than 600 complaints). 18 Plaintiff’s litigation activity reflects a pattern of harassment. 19 Id. at 1148 n.3 (noting that to find pattern of harassment, 20 district court needs to “discern whether the filing of several 21 similar types of actions constitutes an intent to harass the 22 defendant or the court.”) (quoting In re Powell, 851 F.2d 427, 431 23 (D.C. Cir. 1988) (per curiam)).1 In declaring a plaintiff to be a vexatious litigant, is (3) given adequate there are notice to substantive oppose findings a Ninth restrictive as to the O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. The Court does not find that Plaintiff’s filings have been The Court also does not find that 24 1 25 26 27 28 Though not part of their objections, Defendants also submit a notice of recent ruling which they contend is relevant to this action, Carrea v. Iserman, 2011 U.S. Dist. LEXIS 35077 (E.D. Cal. Mar. 31, 2011). Doc. 33. The district court in that action found the plaintiff to be a vexatious litigant. However, that case is not persuasive here. First, the plaintiff had filed four prior cases that were dismissed as frivolous or malicious, pursuant to 28 U.S.C. § 1915(g). Second, there was evidence to support a finding that the plaintiff met the definition of a vexatious litigant as defined by California Code of Civil Procedure section 391, and that the plaintiff had already been 5 1 Because the Court declines to declare Plaintiff a vexatious 2 litigant, the Court will not require that he post security in this 3 action. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. 6 7 The Findings and Recommendations, filed March 4, 2011, is adopted in part as stated herein; 2. Defendants’ motion to dismiss for failure to state a 8 claim, filed March 5, 2010, is GRANTED as to Plaintiff’s 9 excessive force claim against Defendant Davis for the 10 November 24, 2007 incident, and DENIED as to all other 11 claims; 12 3. 13 14 Defendants’ motion to declare Plaintiff a vexatious litigant, filed March 5, 2010, is DENIED; 4. Defendants are to file an answer to Plaintiff’s complaint 15 within fourteen (14) days from the date of service of 16 this order. 17 18 IT IS SO ORDERED. 19 Dated: May 2, 2011 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 declared a vexatious litigant in the California state courts. Third, there was no reasonable probability that the plaintiff could prevail on his three claims. Unlike the plaintiff in that action, Plaintiff here (1) has not accrued at least three actions that were dismissed as frivolous, malicious, or for failure to state a claim, pursuant to 28 U.S.C. § 1915(g), (2) has not already been declared a vexatious litigant, and (3) has a reasonable probability of prevailing on his claims. 6