Bates v. City Of San Jose et al, No. 5:2020cv07609 - Document 21 (N.D. Cal. 2021)

Court Description: ORDER GRANTING 10 MOTION TO DISMISS WITH PREJUDICE AS TO DEFENDANT CITY OF SAN JOSE AND DECLARING PLAINTIFF A VEXATIOUS LITIGANT by Judge Beth Labson Freeman. (blflc2S, COURT STAFF) (Filed on 8/23/2021)<hr><center>Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)</center>

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Bates v. City Of San Jose et al Doc. 21 Case 5:20-cv-07609-BLF Document 21 Filed 08/23/21 Page 1 of 15 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 FREDERICK BATES, 8 Plaintiff, v. 9 10 CITY OF SAN JOSE, et al., Defendants. United States District Court Northern District of California 11 12 Case No. 20-cv-07609-BLF ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE AS TO DEFENDANT CITY OF SAN JOSE AND DECLARING PLAINTIFF A VEXATIOUS LITIGANT [Re: ECF No. 10] 13 Before the Court is Defendant City of San Jose’s1 Motion to Dismiss Plaintiff’s Complaint 14 15 and Declare Plaintiff a Vexatious Litigant. See ECF No. 10 (“Motion”). Specifically, Defendant 16 City of San Jose (“the City”) requests that the Court (1) dismiss Plaintiff’s Complaint with 17 prejudice; (2) declare Plaintiff a vexatious litigant against the City, its officials or employees, and 18 judicial officers; and (3) require Plaintiff to obtain leave of court before filing any future actions 19 against those entities. See Motion at 11-12. Plaintiff opposes the Motion in its entirety. See ECF 20 No. 15 (“Opp’n”). The Court held a hearing on the Motion on August 12, 2021. For the reasons 21 stated below, the City’s Motion is GRANTED. Plaintiff’s Complaint is DISMISSED WITH 22 PREJUDICE as to the City of San Jose, and the Court ORDERS that Plaintiff must obtain leave of 23 court before filing any future actions against the City, its officials or employees, or judicial 24 officers. 25 26 27 28 1 Defendants Robert Davis, Adonna Amoroso, and Tuck Younis remain unserved. The Court previously extended the deadline to serve them. See ECF No. 20. This Order does not pertain to the claims against those Defendants. Dockets.Justia.com Case 5:20-cv-07609-BLF Document 21 Filed 08/23/21 Page 2 of 15 1 I. BACKGROUND Since 2006, Plaintiff has filed four lawsuits—including this one—arising from conduct 2 that is alleged to have occurred after he retired from the San Jose Police Department in 2004. 3 4 A. Bates I Plaintiff first filed a small claims lawsuit against the City on November 10, 2005 in the 5 Santa Clara County Superior Court. See Frederick Bates v. City of San Jose, No. 2005-4-SC6 7 015768 (Cal. Super. Ct. Santa Clara Cty.) (“Bates I”). In that suit, Plaintiff sought to recover from the City a $1,500 retainer that he paid his attorney to help him secure his concealed carry permit 8 through the process underlying the claims in his federal lawsuits. The state court entered 9 judgment in favor of the City on January 30, 2006. 10 11 B. Bates II United States District Court Northern District of California On August 29, 2006, Plaintiff filed his first federal court lawsuit. Frederick Bates v. City 12 of San Jose, Robert Davis, Adonna Amoroso, & Tuck Younis, No. 5:06-cv-5302-RMW (N.D. Cal. 13 14 filed Aug. 29, 2006) (“Bates II”). In that complaint, he alleged that upon his retirement from the police department in April 2004, he received a retirement identification card that was not stamped 15 with an endorsement allowing him to carry a concealed weapon. See Bates II, ECF No. 1 ¶ 6; see 16 also Cal. Pen. Code § 12027.1(a) (entitling certain retired peace officers to obtain retirement ID 17 cards with concealed carry endorsements). Plaintiff asserted that Amoroso, then the deputy chief 18 of police, denied his concealed carry authorization without a hearing because of a work restriction 19 20 on Plaintiff’s medical records indicating that he was to avoid psychologically stressful work. Bates II, ECF No. 1 ¶ 7; see also Cal. Pen. Code § 12027.1(e) (prohibiting issuance of a concealed 21 22 carry endorsement to peace officers who retire “because of a psychological disability”). After the City refused to issue him the endorsement, Plaintiff claimed that in August 2004, 23 24 Tuck Younis, an acting captain for the police department, received information from Plaintiff’s physician clarifying that Plaintiff did not have a psychological disability and should not precluded 25 from carrying a concealed weapon on that basis. Bates II, ECF No. 1 ¶ 8. Plaintiff alleged that it 26 took four months beyond that time before the police department reversed its decision and issued 27 him a concealed carry endorsement. Id. ¶ 11. Plaintiff asserted two causes of action, one against 28 2 Case 5:20-cv-07609-BLF Document 21 Filed 08/23/21 Page 3 of 15 1 the individual defendants and one against the City, alleging violation of his civil rights, 2 deprivation of due process, and deprivation of the right to bear arms for failing to immediately 3 grant him a concealed carry endorsement. Id. ¶¶ 5-16. Plaintiff sought compensatory and punitive 4 damages plus attorneys’ fees. Id. ¶ 17. On July 7, 2008, Judge Ronald Whyte granted defendants’ motion for summary judgment. United States District Court Northern District of California 5 6 Bates II, ECF No. 30. Judge Whyte held that (1) the individual defendants were entitled to 7 qualified immunity because the right to a good cause hearing under Plaintiff’s circumstances was 8 not clearly established law, id. at 6-7; and (2) that Plaintiff was collaterally estopped from 9 asserting his claim against the City because it was adjudicated in in Bates I when the small claims 10 court entered judgment in favor of the City, id. at 7-8. Judge Whyte entered judgment in favor of 11 defendants. Bates II, ECF No. 31. Plaintiff filed his first appeal in Bates II on July 29, 2008. Bates II, 9th Cir. No. 08-16757. 12 13 The Ninth Circuit affirmed in a memorandum disposition on November 20, 2009. Id., ECF No. 14 20. Plaintiff submitted a letter to the Ninth Circuit on February 1, 2010, alleging that the district 15 court judgment was a product of “misconduct by the City.” Id., ECF No. 22. The Ninth Circuit 16 took no action in response to the letter and stated that no further filings would be accepted in the 17 case as of February 6, 2010. Id., ECF No. 42. Despite this order, Plaintiff continued to file 18 documents in the appeal. Id., ECF Nos. 24-30. Back in the district court, on February 21, 2013, Plaintiff filed a motion for relief from 19 20 judgment under Fed. R. Civ. P. 60, arguing that attorneys for the City and other defendants had 21 “concocted an unconscionable plan designed to improperly influence” Judge Whyte to grant 22 defendants’ motion for summary judgment. See Bates II, ECF No. 43, at 5-16. The court denied 23 the motion on April 26, 2013, id., ECF No. 55. Plaintiff appealed that ruling to the Ninth Circuit, 24 which affirmed two years later on July 31, 2015. Bates II, 9th Cir. No. 13-16397, ECF No. 41. 25 While Plaintiff’s petition for rehearing was pending, he submitted a letter to the Ninth Circuit, 26 stating: 27 28 A failure of this court to reverse itself all but ensures that litigation will not end, because the current ruling of this court is void by law and I am under no obligation to comply with it. I will not be bullied by the court or the City in relinquishing my rights in this matter. 3 Case 5:20-cv-07609-BLF Document 21 Filed 08/23/21 Page 4 of 15 This means that more judicial resources will be wasted; and it will also create a very uncomfortable situation. 1 2 Id., ECF No. 43. The Ninth Circuit denied the petition for rehearing and said that “no further 3 filings “w[ould] be entertained.” Id., ECF No. 45. While the appeal from the first Rule 60 motion was still before the Ninth Circuit, Plaintiff 4 5 filed another Rule 60 motion, alleging that his own attorney fraudulently entered a stipulation to 6 dismiss defendant Younis from the case without his consent. Bates II, ECF No. 72. Judge Whyte 7 denied that motion. Id., ECF No. 86. Plaintiff appealed that order to the Ninth Circuit, and the 8 Ninth Circuit dismissed the appeal on February 10, 2014. Bates II, 9th Cir. No. 14-15080, ECF 9 No. 4. After partial proceedings in Bates III, see infra Section I.C, Plaintiff filed a third Rule 60 United States District Court Northern District of California 10 11 motion on May 9, 2016, and a motion to recuse Judge Whyte on June 16, 2016, alleging that 12 Judge Whyte had shown “pervasive and deep-seated favoritism” toward the City. Bates II, ECF 13 Nos. 116, 123. Judge Whyte denied both motions in August 2016. Id., ECF No. 128. Plaintiff 14 appealed to the Ninth Circuit, which summarily affirmed, finding that “the questions raised in this 15 appeal are so insubstantial as not to require further argument.” Id., 9th Cir. No. 16-16581, ECF 16 No. 11. 17 C. 18 On December 14, 2015, Plaintiff filed a new lawsuit against the City, Mayor Sam 19 Liccardo, Vice Mayor Rose Herrera, and nine City councilmembers. Frederick Bates v. City of 20 San Jose, Sam Liccardo, Rose Herrera, Charles Jones, Ash Kalra, Raul Peralez, Manh Nguyen, 21 Magdalena Carrasco, Pierluigi Oliverio, Tam Nguyen, Donald Rocha, & Johnny Khamis, No. 15- 22 cv-5729-EJD (N.D. Cal. filed Dec. 14, 2015) (“Bates III”). Plaintiff alleged that the defendants 23 failed to respond to his letters asking for investigations of alleged misconduct by the City Attorney 24 and other City officials. Id., ECF No. 1. Magistrate Judge Nathaniel Cousins granted defendant’s 25 motion to dismiss on June 10, 2016. Id., ECF No. 40. Plaintiff appealed, and the Ninth Circuit 26 summarily dismissed, saying again that the questions raised were “insubstantial.” Id., 9th Cir. No. 27 16-16094, ECF No. 14. Plaintiff filed yet another Rule 60 motion on June 8, 2017, which Judge 28 Cousins denied three weeks later. Id., ECF Nos. 57, 60. Plaintiff again appealed, and the Ninth Bates III 4 Case 5:20-cv-07609-BLF Document 21 Filed 08/23/21 Page 5 of 15 United States District Court Northern District of California 1 Circuit again summarily dismissed. Id., 9th Cir. No. 17-16413, ECF No. 4. Bates IV – This Lawsuit 2 D. 3 On October 29, 2020, Plaintiff filed this lawsuit against the City, Robert Davis, Adonna 4 Amoroso, and Tuck Younis. Frederick Bates v. City of San Jose, Robert Davis, Adonna Amoroso, 5 & Tuck Younis, No. 5:20-cv-7609-BLF (N.D. Cal. filed Oct. 29, 2020) (“Bates IV”). Plaintiff’s 6 Complaint seeks to assert an “independent action in equity” to set aside the judgment in Bates II. 7 Id., ECF No. 1. He alleges three grounds for setting aside the judgment: (1) that his attorney and 8 Defendants’ attorneys committed fraud by dismissing defendant Younis by stipulation without 9 Plaintiff’s permission; (2) that the court inappropriately applied res judicata in its earlier summary 10 judgment ruling; and (3) that previous judges in these cases have showed bias against him and in 11 favor of the City. Id. ¶¶ 8, 15, 20. Plaintiff purports to bring his lawsuit under Fed. R. Civ. P. 60, 12 28 U.S.C. § 1738, and the First, Fifth, and Fourteenth Amendments to the Constitution. Id. at 2. 13 14 15 II. LEGAL STANDARD A. Motion to Dismiss “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 16 claim upon which relief can be granted tests the legal sufficiency of a claim.” Conservation Force 17 v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (internal quotation marks and citation omitted). 18 While a complaint need not contain detailed factual allegations, it “must contain sufficient factual 19 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 20 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A 21 claim is facially plausible when it “allows the court to draw the reasonable inference that the 22 defendant is liable for the misconduct alleged.” Id. “A pro se complaint must be liberally 23 construed, since a pro se complaint, however inartfully pleaded, must be held to less stringent 24 standards than formal pleadings drafted by lawyers.” Entler v. Gregoire, 872 F.3d 1031, 1038 25 (9th Cir. 2017) (cleaned up). 26 When evaluating a Rule 12(b)(6) motion, the district court must consider the allegations of 27 the complaint, documents incorporated into the complaint by reference, and matters which are 28 subject to judicial notice. Louisiana Mun. Police Employees’ Ret. Sys. v. Wynn, 829 F.3d 1048, 5 United States District Court Northern District of California Case 5:20-cv-07609-BLF Document 21 Filed 08/23/21 Page 6 of 15 1 1063 (9th Cir. 2016) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 2 (2007)). 3 B. 4 “The All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the inherent power Motion to Declare Plaintiff Vexatious Litigant 5 to enter pre-filing orders against vexatious litigants.” Molski v. Evergreen Dynasty Corp., 500 6 F.3d 1047, 1057 (9th Cir. 2007). “Restricting access to the courts is, however, a serious matter.” 7 Ringgold-Lockhart v. Cty. of Los Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014). “[T]he right of 8 access to the courts is a fundamental right protected by the Constitution,” and “[p]rofligate use of 9 pre-filing orders could infringe this important right.” Id. at 1061-62 (cleaned up). Thus, “pre- 10 filing orders should rarely be filed,” and only when certain requirements are met. De Long v. 11 Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990). “Nevertheless, ‘[f]lagrant abuse of the judicial 12 process cannot be tolerated because it enables one person to preempt the use of judicial time that 13 properly could be used to consider the meritorious claims of other litigants.’” Molski, 500 F.3d at 14 1057 (quoting De Long, 912 F.2d at 1148). A district court therefore has discretion to restrict a 15 litigant’s future filings by requiring leave of court. See De Long, 912 F.2d at 1146-47. 16 A court must analyze the four De Long factors before imposing pre-filing restrictions. A 17 district court must: “(1) give litigants notice and ‘an opportunity to oppose the order before it [is] 18 entered’; (2) compile an adequate record for appellate review, including ‘a listing of all the cases 19 and motions that led the district court to conclude that a vexatious litigant order was needed’; (3) 20 make substantive findings of frivolousness or harassment; and (4) tailor the order narrowly so as 21 ‘to closely fit the specific vice encountered.’” Ringgold-Lockhart, 761 F.3d at 1062 (quoting De 22 Long, 912 F.2d at 1147-48). “The first and second of these requirements are procedural,” while 23 the third and fourth requirements are “substantive considerations” helpful to defining who is a 24 vexatious litigant and fashioning an appropriate remedy.” Id. at 1062. 25 III. 26 27 DISCUSSION The Court will first address the City’s motion to dismiss before turning to its request to declare Plaintiff a vexatious litigant. 28 6 Case 5:20-cv-07609-BLF Document 21 Filed 08/23/21 Page 7 of 15 A. 1 Motion to Dismiss The City moves to dismiss Plaintiff’s Complaint in full, arguing that each of his three 2 grounds for this independent action in equity is barred by the law-of-the-case doctrine. Motion at 3 4 6-9. Plaintiff does not substantively respond to the City’s law-of-the-case argument, instead arguing that his three theories of fraud satisfy the five elements traditionally required to sustain an 5 6 7 8 9 10 independent action in equity. Opp’n at 4-15. The Court agrees with the City. Federal Rule of Civil Procedure 60 preserves a court’s power to “entertain an independent action to relieve a party from a judgment, order, or proceeding” in an earlier action. Fed. R. Civ. P. 60(d)(1). Relief from an earlier judgment “must be granted only in instances of grave injustice.” United States v. Beggerly, 524 U.S. 38, 45 (1998). This is a “demanding standard.” Id. at 46. To assert an independent action in equity, a plaintiff must demonstrate (1) that he has a 11 United States District Court Northern District of California meritorious claim or defense, (2) that the plaintiff is diligent and not at fault, (3) there is a lack of 12 13 an alternative remedy, and (4) that the judgment is manifestly unconscionable.” Wilson v. Leigh Law Grp., P.C., No. 20-cv-3045-MMC, 2020 WL 3972574, at *2 (N.D. Cal. July 14, 2020). 14 The Court need not analyze all four factors because it finds the first factor dispositive. 15 16 17 18 19 Plaintiff’s underlying claims are not meritorious because they are within the law-of-the-case doctrine. “Under the ‘law of the case’ doctrine, a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court” in the same case. United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (cleaned up). “A court may have discretion to depart from the law of the case where: (1) the first decision was clearly erroneous; 20 (2) an intervening change in the law has occurred; (3) the evidence on remand is substantially 21 22 different; 4) other changed circumstances exist; or (5) a manifest injustice would otherwise result.” Id. 23 24 25 26 27 28 Here, each of Plaintiff’s bases for his independent action was considered and rejected by the Ninth Circuit in his other actions against the City and the other defendants.2 First, Plaintiff brought two separate Rule 60 motions asserting that his and the City’s attorneys committed fraud 2 Although the law-of-the-case doctrine traditionally applies only to issues decided earlier in the same lawsuit, an independent action in equity is considered a “continuation of the former suit” that contains the judgment the independent action seeks to set aside. See Beggerly, 524 U.S. at 46. 7 Case 5:20-cv-07609-BLF Document 21 Filed 08/23/21 Page 8 of 15 1 by dismissing defendant Younis from Bates II. See Bates II, ECF Nos. 72, 116. Judge Whyte 2 denied both motions, id., ECF Nos. 86, 128, and the Ninth Circuit dismissed both of Plaintiff’s 3 appeals. See id., 9th Cir. Nos. 13-16397 & 14-15080. Similarly, Plaintiff has three times argued 4 that Judge Whyte misapplied res judicata to the state court judgment, and each time that argument 5 has been rejected. It was the original basis for granting summary judgment in favor of the City, 6 see Bates II, ECF No. 30, and the Ninth Circuit affirmed that decision, see id., 9th Cir. No. 08- 7 16757. The Ninth Circuit twice more rejected Plaintiff’s argument in his Rule 60 motions that the 8 doctrine was misapplied. See id., 9th Cir. Nos. 13-16397 & 16-16581. And finally, Plaintiff’s 9 argument that Judge Whyte showed bias toward him was also rejected by the Ninth Circuit. See 10 United States District Court Northern District of California 11 id., 9th Cir. No. 16-16581. The rejection of each of Plaintiff’s theories is thus law of the case. The Court finds that there is no reason to exercise its discretion to depart from the law of 12 the case. Alexander, 106 F.3d at 876. The earlier decisions on these issues are not clearly 13 erroneous. Indeed, another judge on this court has previously rejected Plaintiff’s theories of fraud, 14 and the Ninth Circuit found Plaintiff’s arguments to overturn those decisions “insubstantial.” E.g., 15 Bates II, 9th Cir. No. 16-16581, ECF No. 11. Furthermore, there has been no intervening change 16 in the law, no allegation of substantially different evidence than when these theories were first 17 asserted, nor any changed circumstances. And manifest injustice will not occur from applying the 18 law-of-the-case doctrine to theories that have been evaluated by multiple courts. 19 In his opposition (and at the hearing), Plaintiff argues that Turner v. Pleasant, 663 F.3d 20 770 (5th Cir. 2011), compels the Court to allow this action to proceed. But that case is inapposite. 21 In Turner, the plaintiffs sought relief from a judgment entered against them in their personal injury 22 lawsuit. At trial, the defendants retained a lawyer and an expert witness who, unbeknownst to the 23 plaintiffs, each was personal friends with the trial court judge. Id. at 773. After plaintiff’s original 24 appeal of the judgment was dismissed, the House of Representatives initiated impeachment 25 proceedings against the trial court judge and issued a Report discussing, among other 26 improprieties, the Turner case. Id. at 774. The Report revealed that, during the trial, the defense 27 attorney helped facilitate the gift of all-expenses-paid hunting trips to the judge from a company 28 appearing before the judge in a different case. Id. The House unanimously voted to impeach the 8 Case 5:20-cv-07609-BLF Document 21 Filed 08/23/21 Page 9 of 15 1 judge, and the Senate voted to remove him from office. Id. Plaintiffs sought to reopen the 2 judgment in their case, pointing to the House Report and alleging that the defendants used the 3 expert witness to gain further favor with the trial judge. Id. at 774-75. The Fifth Circuit reversed 4 the district court’s rejection of the request on res judicata grounds, finding that the “unusual facts” 5 and “historic context” of the case made it “at least plausible that the district court did not perform 6 its task in the manner expected.” Id. at 777. United States District Court Northern District of California 7 This case is far afield from Turner. The facts underlying the independent action in Turner 8 came from a one-and-a-half year investigation by the House of Representatives that resulted in 9 only the eighth impeachment and removal of a federal judge in United States history, in part based 10 on his behavior in the underlying lawsuit. Turner, 663. F3d at 777. Here, in contrast, other judges 11 on this court and the Ninth Circuit have repeatedly evaluated and rejected Plaintiff’s claims of 12 fraud and bias, finding that “the questions raised in [these appeals] are so insubstantial as not to 13 require further argument.” E.g., id., 9th Cir. No. 16-16581, ECF No. 11. Turner thus provides no 14 reason to grant relief from the prior judgment. 15 The Court also finds that leave to amend is not warranted. Leave must ordinarily be 16 granted unless one or more of the following factors is present: (1) undue delay, (2) bad faith or 17 dilatory motive, (3) repeated failure to cure deficiencies by amendment, (4) undue prejudice to the 18 opposing party, and (5) futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); see 19 also Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (discussing 20 Foman factors). Here, leave to amend would be futile. As recounted above, another judge in this 21 district has examined and rejected Plaintiff’s arguments multiple times, and the Ninth Circuit has 22 repeatedly stated that Plaintiff’s claims are “insubstantial” and not worthy of further examination. 23 On this basis, the City’s Motion to Dismiss is GRANTED WITHOUT LEAVE TO 24 AMEND as to claims against the City. 25 B. 26 The City further requests that the Court declare Plaintiff a vexatious litigant against the Motion to Declare Plaintiff a Vexatious Litigant 27 City, its officials and employees, and judicial officers. Motion at 9-11. Plaintiff opposes, 28 primarily repeating his allegations and arguments against the motion to dismiss. Opp’n at 15-16. 9 Case 5:20-cv-07609-BLF Document 21 Filed 08/23/21 Page 10 of 15 1 For the following reasons, the Court agrees with the City and will institute a pre-filing screening 2 order. United States District Court Northern District of California 3 i. Notice and Opportunity to Oppose 4 The first requirement for a pre-filing screening order is satisfied where the litigant is given 5 notice that the court is considering a pre-filing screening order and an opportunity to oppose such 6 an order before it is issued. See Ringgold-Lockhart, 761 F.3d at 1062. A hearing is not required. 7 See Ou-Young v. Roberts, No. 19-cv-07000-BLF, 2019 WL 6619879, at *3 (N.D. Cal. Dec. 5, 8 2019). Here, the City requested that the Court declare Plaintiff a vexatious litigant in its Motion. 9 See Motion at 9-11. Plaintiff had the opportunity to oppose the request in his opposition brief, and 10 he did so. See Opp’n at 15-16. Additionally, the Court held oral argument on the matter and 11 afforded Plaintiff a full opportunity to address the issue. Accordingly, Plaintiff received notice of 12 and actually opposed the issuance of an order declaring him a vexatious litigant, and the first De 13 Long factor is met. 14 15 ii. Adequate Record for Review “An adequate record for review should include a listing of all the cases and motions that 16 led the district court to conclude that a vexatious litigant order was needed.” Ou-Young, 2019 WL 17 6619879, at *3 (quoting De Long, 912 F.2d at 1147); see also Hurt v. All Sweepstakes Contests, 18 No. C-12-4187-EMC, 2013 WL 144047, at *5 (N.D. Cal. Jan. 11, 2013) (second De Long factor 19 met where the court “compiled a list of all the actions Plaintiff filed”). The record must at least 20 show “that the litigant’s activities were numerous or abusive.” Id. 21 The Court has recounted in the Background section the cases that Plaintiff has filed in this 22 district based on the same allegations as the Complaint in this case, the myriad motions he made in 23 each case, and the five appeals to the Ninth Circuit that he filed. All motions and appeals were 24 unsuccessful. The second De Long factor is thus met. 25 26 iii. Frivolous or Harassing Filings The third De Long factor requires that the Court “make substantive findings” that the 27 litigant’s actions have been either frivolous or harassing. “To determine whether the litigation is 28 frivolous, district courts must look at both the number and content of the filings as indicia of the 10 United States District Court Northern District of California Case 5:20-cv-07609-BLF Document 21 Filed 08/23/21 Page 11 of 15 1 frivolousness of the litigant’s claims.” See Ringgold-Lockhart, 761 F.3d at 1064. “The plaintiff’s 2 claims must not only be numerous, but also be patently without merit.” Id. (cleaned up). The 3 Court may alternatively make a finding that the litigant has engaged in a pattern of harassment. 4 See id. “Finally, courts should consider whether other, less restrictive options are adequate to 5 protect the court and parties.” Id. 6 The Ninth Circuit has articulated “a helpful framework” of five factors for evaluating the 7 frivolous or harassing nature of a plaintiff’s filings: “(1) the litigant’s history of litigation and in 8 particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant’s motive 9 in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of 10 prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused 11 needless expense to other parties or has posed an unnecessary burden on the courts and their 12 personnel; and (5) whether other sanctions would be adequate to protect the courts and other 13 parties.” Ringgold-Lockhart, 761 F.3d at 1062 (citation omitted). 14 The first factor analyzes whether Plaintiff’s history of litigation is vexatious, harassing, or 15 duplicative, and weighs in favor of a pre-filing screening order. As recounted in the Background 16 section, Plaintiff has repeatedly sued the City and several of its officers and employees, despite 17 courts finding Plaintiff’s allegations meritless, and he has baselessly accused the judges presiding 18 in those cases of bias against him. In each case, Plaintiff has filed multiple motions to reopen the 19 case and multiple appeals of the denial of those motions to the Ninth Circuit, all of which have 20 been dismissed. Plaintiff has also made clear that he intends to continue his campaign, saying in a 21 letter to the Ninth Circuit that, unless judgment was reversed in his favor, the “litigation will not 22 end” and “more judicial resources will be wasted.” Bates II, 9th Cir. No. 13-16397, ECF No. 43. 23 This campaign is clearly comprised of harassing and duplicative lawsuits. 24 The second factor—Plaintiff’s motive in pursuing the litigation—also weighs in favor of a 25 screening order. Plaintiff has been repeatedly told that his claims are not viable and barred by res 26 judicata or the law-of-the-case doctrine. His conduct of filing new lawsuits, in addition to his 27 motions to reopen his cases and his motion to disqualify Judge Whyte in the principal case, 28 strongly suggests that he will keep filing new cases in the hope of finding a new judge to 11 Case 5:20-cv-07609-BLF Document 21 Filed 08/23/21 Page 12 of 15 1 adjudicate his claims. After reviewing the orders issued by judges in this district and on the Ninth 2 Circuit, the Court can only conclude that Plaintiff’s purpose is to harass the defendants. United States District Court Northern District of California 3 The third factor looks to whether Plaintiff is represented by counsel. The Court is mindful 4 that because Plaintiff is a pro se litigant, it should “tread[] carefully” in considering a pre-filing 5 screening order. See Frost, 2020 WL 1288326, at *7 (citing De Long, 912 F.2d at 1147). But the 6 judges in this circuit have been patient with Plaintiff’s conduct and have thoroughly heard his 7 arguments multiple times. Judge Whyte adjudicated Plaintiff’s original federal claims in Bates II 8 and three motions for relief from judgment. Judge Cousins adjudicated Plaintiff’s second federal 9 lawsuit in Bates III, along with one motion for relief from judgment. And the Ninth Circuit 10 adjudicated five separate appeals from those decisions. The courts have been lenient with 11 Plaintiff, but that leniency cannot “preempt the use of judicial time that properly could be used to 12 consider the meritorious claims of others.” Boustred v. Gov’t, No. 08-cv-00548-RMW, 2008 WL 13 4287570, at *2 (N.D. Cal. Sep. 17, 2008) (citing De Long, 912 F.2d at 1148). Given this long 14 history, this factor leans in favor of a screening order. 15 The fourth factor—whether Plaintiff has “caused needless expense to other parties or has 16 posed an unnecessary burden on the courts and their personnel”—is clearly in favor of a screening 17 order. The City has borne the expenses of defending against the same set of allegations for almost 18 fifteen years through four lawsuits and five separate appeals to the Ninth Circuit, and the courts 19 have borne the burden of adjudicating each one. Plaintiff himself admits that judicial resources 20 have been “wasted” in the course of his lawsuits. Bates II, 9th Cir. No. 13-16397, ECF No. 43. 21 Addressing the repeated complaints, motions, and appeals consumes judicial resources that would 22 be better spent adjudicating claims not raised and rejected multiple times. 23 Finally, the fifth factor—whether there are less restrictive options that are adequate—is 24 also in favor of a screening order. Given Plaintiff’s previous cases, mere dismissal of this 25 Complaint would be insufficient to stop Plaintiff’s campaign. Indeed, Plaintiff has promised that 26 he will continue to file lawsuits and that “more judicial resources will be wasted” if judgment is 27 not entered in his favor. Monetary sanctions for frivolous filings would similarly waste judicial 28 resources because any new lawsuits would have to be addressed by the City and adjudicated by a 12 Case 5:20-cv-07609-BLF Document 21 Filed 08/23/21 Page 13 of 15 1 judge prior to the imposition of sanctions. The Court thus finds that a screening order is the most 2 efficient means of deterring Plaintiff’s conduct. 3 4 United States District Court Northern District of California 5 Based on this record, the Court concludes that Plaintiff’s conduct in bringing these lawsuits, motions, and appeals has been frivolous and harassing. iv. Narrowly Tailored 6 A “[n]arrowly tailored order[] [is] needed ‘to prevent infringement of the litigator’s right 7 of access to the courts.’” De Long, 912 F.2d at 1148 (quoting Woods v. Santa Barbara Chamber 8 of Commerce, Inc., 705 F.2d 1515, 1525 (9th Cir. 1983)). Narrow tailoring is often accomplished 9 by restricting the pre-filing restriction to certain entities or on certain facts. See, e.g., Frost v. 10 United States, No. 19-cv-5190-EMC, 2020 WL 1288326 (N.D. Cal. Mar. 18, 2020) (restricting 11 pre-filing restriction to suits against “any federal entity or any current or former federal 12 employees”). 13 The City requests that the Court limit the pre-filing restriction to lawsuits “in which the 14 City of San Jose, or any City of San Jose official or employee, or any judicial officer, is named as 15 a defendant.” Motion at 11. Given Plaintiff’s history of repeatedly suing the City and its officers 16 and employees—despite orders from both the district court and the Ninth Circuit finding those 17 suits meritless—the Court concludes that an order requiring pre-filing screening of lawsuits 18 against the City and its officers and employees is warranted. 19 The Court also finds that judicial officers should be included within the scope of the pre- 20 filing restriction. Although Plaintiff has not named judicial officers as defendants in his lawsuits, 21 those lawsuits have included rejected allegations of bias and conspiracies involving the court. For 22 example, Plaintiff has without evidence accused Judge Whyte of showing “deep-seated and 23 pervasive bias” in his rulings such that “he [wa]s unable to render a fair judgment” on Plaintiff’s 24 claims. Bates II, ECF No. 123, at 3. And the Complaint in this case alleges that judges of this 25 court have “deep-seated bias” against him and “favoritism for Defendants,” and that they have not 26 “act[ed] in an impartial matter.” Compl. at 2, ¶¶ 20-23. Plaintiff has further alleged that the court 27 has “conspired with Defendants” to hold fraudulent hearings and rule against Plaintiff. Id. ¶ 20. 28 These allegations have been rejected as meritless by both other judges in the district and the Ninth 13 Case 5:20-cv-07609-BLF Document 21 Filed 08/23/21 Page 14 of 15 1 Circuit. Bates II, 9th Cir. No. 16-16581, ECF No. 11. An order requiring pre-filing review of any lawsuit or other action filed by Plaintiff against 2 3 the City, its officers or employees, or judicial officers is narrowly tailored to address Plaintiff’s 4 propensity to sue based on the allegations in the Complaint in this case and his previous cases. 5 This order will not prevent Plaintiff from litigating potentially meritorious claims against those 6 entities, but it will prevent those entities and the courts from being burdened by meritless lawsuits. * 7 United States District Court Northern District of California * The Court recognizes Plaintiff’s frustration with the events underlying his lawsuits, which 8 9 * are no doubt compounded by the racism Plaintiff says he has faced throughout his life. But the 10 Court is bound to apply the law, which it finds requires dismissal of Plaintiff’s claims against the 11 City with prejudice and institution of tailored pre-suit screening. 12 IV. ORDER 13 Accordingly, IT IS HEREBY ORDERED that: 14 (1) Plaintiff’s Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE as to Defendant City of San Jose; 15 (2) 16 Plaintiff is declared a vexatious litigant and thus must obtain leave of court before 17 filing any lawsuit or other action that alleges claims against the City of San Jose, its 18 officers or employees, or judicial officers; (3) 19 The Clerk of Court shall not accept for filing any lawsuit or other action alleging 20 claims against the City of San Jose, its officers or employees, or judicial officers 21 until it has been reviewed by a judge and approved for filing. The Clerk shall 22 forward any such lawsuit or other action to the general duty judge for pre-filing 23 screening; and 24 /// 25 /// 26 /// 27 /// 28 /// 14 Case 5:20-cv-07609-BLF Document 21 Filed 08/23/21 Page 15 of 15 1 (4) This order applies to lawsuits or other actions that Plaintiff seeks to file in this 2 district, lawsuits filed in state court and removed to this district, and claims or other 3 actions filed in adversary proceedings in this district’s bankruptcy court. 4 5 6 7 Dated: August 23, 2021 ______________________________________ BETH LABSON FREEMAN United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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