Opinion
Case No. 19-cv-05190-EMC
03-18-2020
VINTON FROST, Plaintiff, v. THE UNITED STATES, Defendant.
ORDER GRANTING DEFENDANTS' MOTION TO DECLARE PLAINTIFF A VEXATIOUS LITIGANT
Docket No. 45
I. INTRODUCTION
Plaintiff is a pro se litigant, who has filed many cases in this district. The origins of this particular lawsuit began in March 2017, when Mr. Frost filed a lawsuit in the Northern District of California (Case No. 3:17-cv-01587-LB, Frost v. Wilkinson) against the Director of the Executive Office for U.S. Attorneys, alleging that the Director had failed to properly respond to Mr. Frost's Freedom of Information Act ("FOIA") request. See Docket No. 1 in Wilkinson. Defendant in that case filed a Motion to Dismiss, accompanied by a declaration from the FOIA Legal Assistant in the Criminal Division of the U.S. Attorney's Office for the Northern District of California. See Docket Nos. 32 and 32-2 in Wilkinson. That declaration indicated that the office had no documents responsive to Mr. Frost's FOIA request. See Docket No. 32-2 in Wilkinson. On August 3, 2017, Judge Beeler dismissed Plaintiff's FOIA claim without prejudice. See Order Dismissing Case at 2, Docket No. 57 in Wilkinson.
Two years later, in August 2019, Mr. Frost filed the instant suit, alleging that the author of the Wilkinson declaration committed perjury. See Docket No. 1. Defendants moved to dismiss the complaint and to substitute the United States for the named Defendants. See Docket No. 38. In addition, Mr. Frost filed a Motion for Sanctions pursuant to Rule 11(b). See Docket No. 31. On February 19, 2020, the Court granted Defendants' Motion to Substitute the United States for the Named Defendants and to Dismiss; it denied Plaintiff's Motion for Sanctions. See Docket No. 49. Prior to the hearing on those motions, on February 12, 2020, Defendants filed a Motion to Declare Plaintiff a Vexatious Litigant through which Defendants seek to subject Plaintiff to a pre-filing screening order. See Docket No. 45.
For the reasons discussed below, the Court DECLARES Mr. Frost a vexatious litigant. Future pleadings that Mr. Frost files shall be subject to a prefiling review by the general duty judge for this District, the terms of which are specified in this order below.
II. BACKGROUND
As is discussed in greater detail below, Mr. Frost has filed sixteen lawsuits in this district, the earliest of which was filed in 2016. Many of those cases stem from one incident that is alleged to have occurred at Stanford University; others pertain to broader (and frequently interrelated) allegations of government surveillance and the withholding of records. Defendants contend that Mr. Frost has made more than 300 filings in those sixteen cases, but that not a single one of his substantive motions has ever been granted. See Defendant's Motion to Declare Plaintiff a Vexatious Litigant ("Mot.") at 1-2, Docket No. 45. Mr. Frost does not dispute or respond to this contention anywhere in his two-page Opposition. See Plaintiff's Reply to Defendant's Motion to Declare Plaintiff a Vexatious Litigant ("Opp."), Docket No. 50.
Moreover, Mr. Frost has been cautioned about vexatious litigation twice. In December 2018, Judge White admonished Plaintiff that, "should he continue to pursue these related and now dismissed matters before this Court, the Court shall revisit the determination regarding his conduct as a vexatious litigant." Frost v. Office of Attorney Gen., No. C 17-04983 JSW, 2018 WL 6704137, at *3 (N.D. Cal. Dec. 20, 2018) (addressing the fact that Mr. Frost had filed nine lawsuits against "multiple federal officials in various capacities" stemming from the "the same alleged incident, which occurred in 2011 at Stanford [University]"). In December 2019, Judge Seeborg warned Mr. Frost that "he is coming dangerously close to being declared a vexatious litigant under 28 U.S.C. § 1651." Frost v. James Scharf et al, No. 3:19-cv-07774-RS, Docket No. 6 at 3 (N.D. Cal. Dec. 10, 2019). In his order, Judge Seeborg noted the prior warning from Judge White and the fact that Mr. Frost "ha[d] filed at least four other lawsuits in addition to the matter presently before the Court," since the initial warning from Judge White. Id. at 4.
In order to provide adequate background and context for the current motion and the Court's decision, Mr. Frost's prior lawsuits are briefly summarized here.
• Frost v. Steyer et al, Case No. 3:16-cv-05883-RS (N.D. Cal., filed Oct. 11, 2016) ("Steyer") - Plaintiff filed this case against sixteen defendants, alleging "abuses injuring [Plaintiff] made by a secret elite group of businessmen tied to our Central Intelligence Agency." Docket No. 1 in Steyer. Judge Cousins dismissed the complaint as "factually frivolous" and expressed concern that Mr. Frost's allegations were "the product of delusion." See Docket No. 8 in Steyer. An amended complaint was dismissed without leave to amend, noting that "the scenario [Mr. Frost] has described is the same type of fantastic and baseless allegations dismissed by other courts." See Docket No. 40 in Steyer. The Court denied two motions for reconsideration filed by Mr. Frost. See Docket Nos. 46, 53 in Steyer. After the Ninth Circuit found that "all parties did not consent to proceed before the magistrate judge," the case was referred to Judge Seeborg, who adopted Judge Cousin's Report and Recommendation to dismiss the case without further leave to amend. See Docket Nos. 56, 66, and 71 in Steyer.
• Frost v. National Security Agency, Case No. 3:17-cv-01239-WHO (N.D. Cal., filed Mar. 9, 2017) ("NSA") - Plaintiff filed this case against the National Security Agency, specifying General Keith B. Alexander, Director as "Defendant No. 1." See Docket No. 1 in NSA. The complaint alleged that "Defendant is operating an illegal surveillance system violating [Plaintiff's] 4th Amend. rights" and that Defendant's actions "enable unknown person to identify [Plaintiff] by location by 'pinging' a subcutaneous RFID device implanted in a conspired 2007 surgery." Id. The case was related to Frost v. United States Department of
Justice, Case No. 3:17-cv-01240-JCS (N.D. Cal., filed Mar. 9, 2017), see Docket No. 8 in NSA, and found not related to Frost v. Wilkinson, Case No. 3:17-cv-01587-LB (N.D. Cal., filed Mar. 23, 2017), see Docket No. 9 in NSA. Judge Spero dismissed Mr. Frost's complaint with leave to amend, see Docket No. 10 in NSA, but Mr. Frost chose to withdraw his complaint and voluntarily dismiss his case, see Docket No. 14 in NSA. Mr. Frost attempted to reopen his case through a Rule 60 motion, which was denied. See Docket Nos. 15, 16, 20 in NSA. Judge Orrick, who had adopted Judge Spero's Report and Recommendation regarding the Rule 60 Motion, cautioned Mr. Frost that if he filed a new action regarding the same facts, he would be required to "state with as much specificity as he can why he asserts a 'spy-chip' has been implanted in him, when he became aware of it and why he believes the N.S.A. is responsible" in order to survive dismissal. See Docket No. 20 in NSA.
• Frost v. United States Department of Justice, Case No. 3:17-cv-01240-JCS (N.D. Cal., filed Mar. 9, 2017) ("DOJ I") - Plaintiff filed this case against several defendants under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522 et seq. See Docket No. 7 in DOJ I. Plaintiff alleged that he was "dissatisfied with the FOIA determination" and asserted that "to the extent, if any, that Plaintiff is on a government watch list due to a third-party, plaintiff would argue such placement would be a result of private and not public concerns, resulting from private parties illegally attributing actions to the state." Id. The Court dismissed the complaint with prejudice as to the individual defendants and without prejudice as to the DOJ. See Docket No. 12 in DOJ I. Mr. Frost subsequently filed a second amended complaint and nineteen additional motions, in addition to several other filings. See Docket Nos. 17, 18, 26, 27, 31, 33, 41, 42, 46, 48, 52, 53, 54, 58, 60, 71, 73, 86, 88, 89, 91, 98, 111, 114 in DOJ I. The court denied those motions, see Docket Nos. 30, 32, 36, 44, 51, 55, 59, 63, 72, 76, 87, 93, 95, 104, 113, 115 in DOJ I, and granted
summary judgment in favor of defendant, see Docket No. 119 in DOJ I. Mr. Frost appealed. See Docket No. 121 in DOJ I.
• Frost v. Pinkus et al, Case No. 3:17-cv-01308-WHA (N.D. Cal., filed Mar. 10, 2017) ("Pinkus") - Plaintiff filed this case against a senior managing partner at McKinsey and Company and against Pro Se Counsel at the Court's Justice and Diversity Center's Legal Help Center. See Docket No. 1. In his complaint, Mr. Frost accuses the Legal Help Center of providing him with false information and the managing partner at McKinsey of organizing abuses of Mr. Frost's rights for approximately fourteen years. Id. The court dismissed the complaint because it could not "discern a federal claim." See Docket No. 6 in Pinkus. It subsequently dismissed Mr. Frost's amended complaint (which named six defendants, including individuals who were also named in Plaintiff's other lawsuits and made allegations of conspiracies between them) for the same reason. See Docket No. 10 in Pinkus. Mr. Frost filed numerous motions and a second amended complaint which alleged that "defendants are members in a conspiracy to influence the due administration of justice using dishonest, deceitful, and treacherous means." See Docket Nos. 15, 18, 25 in Pinkus. The court denied those motions and dismissed the second amended complaint without leave to amend. See Docket Nos. 17, 20, 34 in Pinkus. Mr. Frost then filed a motion for relief from final judgment, see Docket No. 40 in Pinkus, which was denied, see Docket No. 44 in Pinkus.
• Frost v. Wilkinson, Case No. 3:17-cv-01587-LB (N.D. Cal., filed Mar. 23, 2017) ("Wilkinson") - Plaintiff filed this case accusing the Director of the Executive Office for U.S. Attorneys of being "negligent in his duties to comply with the Freedom of Information Act." See Docket No. 1 in Wilkinson. Plaintiff later informed the court that assistance from the court in the Wilkinson matter would "provide plaintiff relief in Steyer. See Docket No. 39 in Wilkinson. The court dismissed Mr. Frost's case because Mr. Frost
had failed to name a proper defendant and stated that, even if he had named a proper defendant, "the court would be inclined to grant summary judgment against the plaintiff" because "[h]is claim appears to be without merit." See Docket No. 49 in Wilkinson. Mr. Frost did not file an amended complaint in time to avoid dismissal without leave to amend. See Docket No. 57 in Wilkinson. Later, he filed a Rule 60 motion, which was denied. See Docket No. 62 in Wilkinson.
• Frost v. Office of the Attorney General, United States Department of Justice, Case No. 4:17-cv-04983-JSW (N.D. Cal., filed Aug. 25, 2017) ("Attorney General") - Plaintiff sued the office of the Attorney General alleging that "former Attorney General Loretta Lynch authorized or knowingly failed to prevent . . . the destruction of Plaintiff's FOIA-responsive records." See Docket No. 1 in Attorney General. The court ultimately related a number of Mr. Frost's cases to Attorney General and dismissed all of them. See Docket No. 46 in Attorney General (noting a lack of "fundamental credibility" and finding the "allegations to lack substantial merit and to stem from fantasy"). In the order dismissing the case, Judge White cautioned Mr. Frost that "should he continue to pursue these related and now dismissed matters before this Court, the Court shall revisit the determination regarding his conduct as a vexatious litigant." Id.
• Frost v. Blum et al, Case No. 4:17-cv-07072-JSW (N.D. Cal., filed Dec. 12, 2017) ("Blum") - Plaintiff sued a number of parties, some of whom had been previously named as defendants in his prior lawsuits. See Docket No. 1 in Blum. Among other things, the complaint alleged that two of the defendants had met and agreed "to conceal the existence and conduct of a secret elite which dominates the U.S. investment industry." Id. Judge Chhabria dismissed the case pursuant to his review of Mr. Frost's application to proceed in forma pauperis; he noted that "Mr. Frost's claim is frivolous and fails to state a viable
claim for relief." See Docket No. 6 in Blum. This case was then related to Attorney General, and dismissed by Judge White, as discussed above.
• Frost v. United States Department of Justice, Case No. 4:18-cv-00469-JSW (N.D. Cal., filed Jan. 22, 2018) ("DOJ II") - in this case, Plaintiff accused the US Attorney for the Northern District of California of "act[ing] with malice and improper purpose" by "publicly disclos[ing] inaccurate and incomplete private facts" in DOJ I. The case was related to Attorney General, see Docket No. 8 in DOJ II, and Judge White found that Mr. Frost had "neither a factual [n]or a legal basis for his claims" in DOJ II, see Docket No. 46 in DOJ II. Accordingly, Judge White dismissed the case.
• Frost v. United States Department of Homeland Security, Case No. 4:18-cv-00871-HSG (N.D. Cal., filed Feb. 9, 2018) ("DHS") - Plaintiff filed this case against the Department of Homeland Security, alleging that "agents or employees of defendant, upon instruction from an enterprise conspiracy, affiliated in part to the Central Intelligence Agency, seized without warrant Plaintiff's medical and insurance records." See Docket No. 1 in DHS. He sought an apology and a press release "revealing the chain of command" and "subsequent cover-up." Id. Judge Gilliam dismissed the case pursuant to his review of Mr. Frost's application to proceed in forma pauperis, concluding that the action was "frivolous" and failed to state a claim. See Docket No. 5 in DHS. Mr. Frost filed an amended complaint, see Docket No. 11 in DHS, but Judge Gilliam concluded that "[e]ven liberally construed, Plaintiff's assertions are conclusory and speculative, and insufficient to state a claim on which relief can be granted," Docket No. 12 in DHS.
• Frost v. Texas Pacific Group et al, Case No. 3:18-cv-04956-EMC (N.D. Cal., filed Aug. 15, 2018) ("TPG") - Plaintiff filed suit against Texas Pacific Group and Google, Inc. The complaint alleged that "Google and TPG Capital have a secret agreement whereby
Google provides TPG capital access to facilities which store Plaintiff's electronic communications" and that TPG had repeatedly accessed Mr. Frost's emails. See Docket No. 1 in TPG. Pursuant to its review of Mr. Frost's application to proceed in forma pauperis, this Court dismissed the complaint for failure to state a claim. See Docket No. 5 in TPG. Mr. Frost was permitted one month to file an amended complaint, see id., but he did not do so, and his case was dismissed, see Docket No. 6 in TPG.
• Frost v. United States Attorney et al, Case No. 3:19-cv-05190-EMC (N.D. Cal., filed Aug. 15, 2019) ("US Attorney") - this is the instant case; the pertinent details are discussed in Section I, above.
• Frost v. United States of America, Case No. 3:19-cv-05365-JD (N.D. Cal., filed Aug. 27, 2019) ("USA") - Plaintiff alleged that Defendant violated President Obama's Executive Order 13,526 by classifying information improperly and requested that the court "order the declassification of information pertaining to him, which should have been provided by Plaintiff's Freedom of Information Act requests" in Wilkinson and DOJ I. See Docket No. 1 in USA. Pursuant to a review of Mr. Frost's request to proceed in forma pauperis, Judge Donato dismissed the complaint, noting "it is not at all clear to the Court what Frost is seeking to do here. The request for injunctive relief suggests he would like the Court to intervene in or reconsider [Steyer, Pinkus, Wilkinson, DOJ I, and TPG]. That request is not tenable." See Docket No. 10 in USA. Mr. Frost filed an amended complaint after the deadline for doing so set by Judge Donato, but the court considered it anyway in light of Mr. Frost's pro se status. See Docket Nos. 20, 21. The amended complaint did not cure any of the deficiencies with his first complaint, and the court dismissed it with prejudice. See Docket No. 21.
• Frost v. Westin Hotels Management LP et al, Case No. 3:19-cv-06545-WHO (N.D. Cal., filed Oct. 10, 2019) ("Westin") - Plaintiff filed this case against Westin Hotels, Starwood Hotels, Marriott Hotels, the Department of Justice, and a public defender from Santa Clara County. See Docket No. 1 in Westin. The complaint alleges that employees of several of the defendant companies "conspired to aid and abet a violation of Plaintiff's 4th and 4th [sic] Amendment rights by agents of an unidentified agency." Id. Pursuant to Plaintiff's application to proceed in forma pauperis, Judge Westmore reviewed the complaint and recommended that it be dismissed. See Docket No. 6 in Westin. Judge Orrick adopted that recommendation and dismissed the case. See Docket No. 9 in Westin.
• Frost v. Federal Communications Commission, No. 4:19-cv-07144-PJH (N.D. Cal., filed Oct. 28, 2019) ("FCC") - Plaintiff sued the FCC alleging that he "remains debilitated, harassed, and often physically and mentally tortured by an unidentified carrier of wireless communications services . . . he was drugged and subject to a surgery performed at his residence in which the top of his head was cut and sutres [sic] applied. He woke up with a two-way radio system in his head from individuals who did not identify themselves. They were and continue to be to this day, able to read all of Plaintiff's thoughts." Id. Pursuant to Plaintiff's request to proceed in forma pauperis, Judge Hamilton reviewed the complaint and concluded that "the factual contentions asserted in plaintiff's complaint are clearly baseless." See Docket No. 5 in FCC. The court dismissed the case, and then in response to Plaintiff's request, dismissed the case with prejudice so that Plaintiff could seek appeal. See Docket Nos. 5, 6, and 7.
• Frost v. Scharf et al, Case No. 3:19-cv-07774-RS (N.D. Cal., filed Nov. 26, 2019) ("Scharf") - Plaintiff filed this case against multiple defendants, alleging unclear claims relating to the disclosure of private information, fraud, slander, conspiracy, retaliation,
secret elite organizations, and cover-ups. See Docket No. 1 in Scharf. Pursuant to its review of Mr. Frost's application to proceed in forma pauperis, the court dismissed the complaint. See Docket No. 6. In the dismissal order, the court noted that the case was "the third lawsuit in which Frost has protested the same incident in which his personal information was disclosed." Id. It found the complaint barred by res judicata and also concluded that the complaint failed to state a cognizable claim. Id. Furthermore, Judge Seeborg noted that Mr. Frost "is coming dangerously close to being declared a vexatious litigant under 28 U.S.C. § 1651. . . . [C]ourts of this district have patiently tolerated Frost's repeated complaints and have afforded Frost ample opportunity to amend his pleadings to state cognizable claims in his various lawsuits. Yet Frost has not prevailed in any of his lawsuits, and all of his lawsuits were either dismissed or remain pending. All the while, Frost's filings have burdened the courts, which do their best to extend leniency toward litigants proceeding pro se and in forma pauperis." Id. Plaintiff filed an amended complaint, which was dismissed with leave to amend, and ultimately dismissed without further leave to amend. See Docket Nos. 8, 10, 13 in Scharf.
• Frost v. Obama, Case No. 3:20-cv-00605-SK (N.D. Cal., filed Jan. 27, 2020) ("Obama") - Plaintiff filed suit against former President Barack Obama alleging that he "failed to faithfully execute his own law, Presidential Executive Order 13,526" and that he "ordered his Attorney General Eric Holder to maintain the secreting of criminal conduct, abusing plaintiff of his 4th, 14th, and 6th Amendment rights." See Docket No. 1 in Obama. Mr. Frost's application to proceed in forma pauperis was granted on January 31, 2020. See Docket No. 7 in Obama.
Defendants note that Plaintiff made 42 filing in this case.
Defendants note that Plaintiff made 10 filings in this case.
Defendants note that Plaintiff made 58 filings in this case.
Defendants note that Plaintiff made 18 filings in this case.
Defendants note that Plaintiff made 22 filings in this case.
Defendants note that Plaintiff made 43 filings in this case.
Defendants note that Plaintiff made 30 filings in this case.
Defendants note that Plaintiff made 25 filings in this case.
Defendants note that Plaintiff made 16 filings in this case.
Defendants note that Plaintiff made 3 filings in this case.
Defendants note that Plaintiff made 17 filings in this case.
Defendants note that Plaintiff made 12 filings in this case.
Defendants note that Plaintiff made 6 filings in this case.
Defendants note that Plaintiff made 6 filings in this case.
Defendants note that Plaintiff made 5 filings in this case.
Defendants note that Plaintiff has made 2 filings in this case.
III. DISCUSSION
A. Legal Standard
District courts have the inherent power to enter prefiling orders against vexatious litigants under the All Writs Act. See 28 U.S.C. § 1651(a) (providing that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law"); Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) (stating that "[t]he All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the inherent power to enter pre-filing orders against vexatious litigants"). The Ninth Circuit has cautioned, however, that "such pre-filing orders are an extreme remedy that should rarely be used" because of the danger of "tread[ing] on a litigant's due process right of access to the courts." Id. Nevertheless, such prefiling orders are sometimes appropriate because "[f]lagrant abuse of the judicial power . . . enables one person to preempt the use of judicial time that properly could be used to consider the meritorious claims of other litigants." De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990). B. Analysis
In De Long, the Ninth Circuit set forth the requirements for entering pre-filing orders against vexatious litigants:
(1) The litigant must be given notice and opportunity to be heard before the order is entered;De Long, 912 F.2d at 1147-48.
(2) The court must compile an adequate record for review, including a list of all filings and motions leading to the conclusion that an individual is a vexatious litigant;
(3) The court must make substantive findings that the litigant's filings are frivolous or harassing; and
(4) The pre-filing order may not be overly broad, and must be "narrowly tailored to closely fit the specific vice encountered."
1. Notice and Opportunity to Be Heard
The first De Long factor simply requires that the litigant be given an opportunity to oppose the order before it is entered. See De Long, 912 F.2d at 1147. The Court finds that the first De Long factor is satisfied here because Plaintiff had the opportunity to file a written opposition, which he did. See Docket No. 50. Although the hearing on the matter was vacated due to the exigency of the COVID-19 crisis, oral argument is not required. See, e.g., Reddy v. MedQuist, Inc., No. 12-cv-1324-PSG, 2012 U.S. Dist. LEXIS 171421, at *3, 2012 WL 6020010 (N.D. Cal. Dec. 3, 2012) ("The requirement that the plaintiff receive an opportunity to be heard; the opportunity to brief the issue fully satisfies due process requirements.") (internal quotation marks omitted); Fiechtner v. Young, No. CV 13-9-M-DLC, JCL, 2013 U.S. Dist. LEXIS 31086, at *3, 2013 WL 830653 (D. Mont. Feb. 6, 2013) ("An opportunity to be heard is satisfied by providing an opportunity to file a brief, and does not necessarily require an oral or evidentiary hearing in court."), report and recommendation adopted by 2012 U.S. Dist. LEXIS 31158, 2013 WL 830189 (D. Mont. Mar. 4, 2013); see also Tripati v. Beaman, 878 F.2d 351, 354 (10th Cir. 1989) ("The notice and opportunity requirement does not, however, require an in-person hearing in the district court.").
Thus, the first De Long factor has been satisfied.
2. Adequate Record for Review
The second factor is procedural. See De Long, 912 F.2d at 1147 ("An adequate record for review should include a listing of all the cases and motions that led the district court to conclude that a vexatious litigant order was needed."). It requires only that the court compile a list of actions and filings by the litigant. See, e.g., Hurt v. All Sweepstakes Contests, No. C-12-4187-EMC, 2013 WL 144047, at *5 (N.D. Cal. Jan. 11, 2013) (finding the second De Long factor met where the court "compiled a list of all the actions Plaintiff filed"). It has done so above. They comprise the following list:
• Frost v. Steyer et al, Case No. 3:16-cv-05883-RS (N.D. Cal., filed Oct. 11, 2016)
• Frost v. National Security Agency, Case No. 3:17-cv-01239-WHO (N.D. Cal., filed Mar. 9, 2017)
• Frost v. United States Department of Justice, Case No. 3:17-cv-01240-JCS (N.D. Cal., filed Mar. 9, 2017)
• Frost v. Pinkus et al, Case No. 3:17-cv-01308-WHA (N.D. Cal., filed Mar. 10, 2017)
• Frost v. Wilkinson, Case No. 3:17-cv-01587-LB (N.D. Cal., filed Mar. 23, 2017)
• Frost v. Office of the Attorney General, United States Department of Justice, Case No. 4:17-cv-04983-JSW (N.D. Cal., filed Aug. 25, 2017)
• Frost v. Blum et al, Case No. 4:17-cv-07072-JSW (N.D. Cal., filed Dec. 12, 2017)
• Frost v. United States Department of Justice, Case No. 4:18-cv-00469-JSW (N.D. Cal., filed Jan. 22, 2018)
• Frost v. United States Department of Homeland Security, Case No. 4:18-cv-00871-HSG (N.D. Cal., filed Feb. 9, 2018)
• Frost v. Texas Pacific Group et al, Case No. 3:18-cv-04956-EMC (N.D. Cal., filed Aug. 15, 2018)
• Frost v. United States Attorney et al, Case No. 3:19-cv-05190-EMC (N.D. Cal., filed Aug. 15, 2019)
• Frost v. United States of America, Case No. 3:19-cv-05365-JD (N.D. Cal., filed Aug. 27, 2019)
• Frost v. Westin Hotels Management LP et al, Case No. 3:19-cv-06545-WHO (N.D. Cal., filed Oct. 10, 2019)
• Frost v. Federal Communications Commission, No. 4:19-cv-07144-PJH (N.D. Cal., filed Oct. 28, 2019)
• Frost v. Scharf et al, Case No. 3:19-cv-07774-RS (N.D. Cal., filed Nov. 26, 2019)
• Frost v. Obama, Case No. 3:20-cv-00605-SK (N.D. Cal., filed Jan. 27, 2020)
The second De Long factor has been satisfied.
3. Frivolous or Harassing Filings
The third factor "gets to the heart of the vexatious litigant analysis," see Molski, 500 F.3d at 1059, and requires the district court to look to "both the number and content of the filings as indicia" of the frivolousness of the litigant's claims. De Long, 912 F.2d at 1148. "An injunction cannot issue merely upon a showing of litigiousness. The plaintiff's claims must not only be numerous, but also be patently without merit." Molski, 500 F.3d at 1059.
In considering the third De Long factor—as well as the fourth (the narrow tailoring of the vexatious litigant order)—the Ninth Circuit has found the following considerations helpful, as outlined by the Second Circuit in Safir v. U.S. Lines, Inc., 792 F.2d 19 (2d Cir. 1986):
"(1) the litigant's history of litigation and in particular whether it
entailed vexatious, harassing or duplicative lawsuits; (2) the litigant's motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties."Molski, 500 F.3d at 1058 (citing Safir, 792 F.2d at 24); see also Boustred v. Gov't, No. C-08-00546 RMW, 2008 WL 4287570, at *2-3 (N.D. Cal. Sept. 17, 2008) (considering all five Safir factors). These considerations lead the Court to the following conclusions.
First, because Mr. Frost is a pro se litigant, the Court treads carefully in considering whether and how to fashion an appropriate prefiling order. See De Long, 912 F.2d at 1147 (noting use of prefiling orders to curb access to courts should be done with care where a pro se litigant is involved yet recognizing the courts are also free to enjoin litigants with "abusive and lengthy histories").
The first Safir consideration addressees whether the litigant's history of litigation is vexatious, harassing or duplicative. As discussed above, Plaintiff has filed 16 lawsuits in this district since 2016, and nearly all of these suits were dismissed at an early stage of the litigation (often pursuant to a court's review of Plaintiff's request to proceed in forma pauperis) for having no merit. See, e.g., NSA, Pinkus, Blum, DOJ II, DHS, TPG; see also Levy v. First Grp./Greyhound, No. 17-CV-00412-KAW, 2017 WL 2793810, at *4 (N.D. Cal. June 28, 2017) (finding that repeated dismissal at the early stages of litigation counseled in favor of a pre-filing order). Many of Mr. Frost's suits have been duplicative or sought improper review of prior suits, and two judges have already warned Mr. Frost about being declared vexatious if he continued his pattern of litigation. See Attorney General, 2018 WL 6704137, at *3 (N.D. Cal. Dec. 20, 2018) (addressing the fact that Mr. Frost had filed nine lawsuits against "multiple federal officials in various capacities" stemming from the "the same alleged incident, which occurred in 2011 at Stanford [University]"); see also Docket No. 6 at 3 in Scharf (order of dismissal with a warning from Judge Seeborg that Plaintiff "is coming dangerously close to being declared a vexatious litigant under"). Thus, it is clear that Plaintiff's lawsuits have been "patently without merit," Molski, 500 F.3d at 1059, which weighs in favor of a pre-filing order.
Second, the Court must consider Mr. Frost's motives in pursuing the litigation and whether he has "an objective good faith expectation of prevailing." Safir, 792 F.2d at 24. Notably, Mr. Frost has failed to diligently pursue his claims on several occasions. For example, in Wilkinson, Mr. Frost was permitted leave to file an amended complaint but failed to do so. See Docket Nos. 49, 57 in Wilkinson. The Ninth Circuit later dismissed his appeal for failure to prosecute. See Docket No. 67 in Wilkinson. Similarly, in TPG, the case was dismissed because Plaintiff failed to file an amended complaint. See Docket No. 7 in TPG. Other courts have concluded that a "repeated failure to prosecute further demonstrates that Plaintiff had no good faith expectation of prevailing." See Levy, 2017 WL 2793810, at *4. Moreover, he continued to pursue meritless suits despite receiving warnings from judges. Mr. Frost's motivations and expectation of prevailing tilt slightly in favor of a pre-filing order.
The third Safir consideration asks whether the litigant is represented by counsel. As noted above, Mr. Frost is a pro se litigant. However, "flagrant abuse of the judicial process cannot be tolerated because it enables one person to preempt the use of judicial time that properly could be used to consider the meritorious claims of other litigants." Boustred v. Gov't, 2008 WL 4287570, at *2 (citing De Long, 912 F.2d at 1148). As Judge Seeborg noted in Scharf, courts in this district have been mindful of Mr. Frost's pro se status. According to Judge Seeborg: "[C]ourts of this district have patiently tolerated Frost's repeated complaints and have afforded Frost ample opportunity to amend his pleadings to state cognizable claims in his various lawsuits. Yet Frost has not prevailed in any of his lawsuits, and all of his lawsuits were either dismissed or remain pending. All the while, Frost's filings have burdened the courts, which do their best to extend leniency toward litigants proceeding pro se and in forma pauperis." See Docket No. 13 in Scharf. As above, this factor tilts in favor of a pre-filing order.
The fourth Safir consideration inquires into "whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel." Molski, 500 F.3d at 1058 (citing Safir, 792 F.2d at 24). Here, Mr. Frost has required numerous parties to respond to his claims and to appear at hearings on the motions he has filed. See, e.g., Wilkinson, Attorney General, and Docket No. 48 in the instant case. And Mr. Frost's sixteen cases and hundreds of filings have also "have imposed substantial costs upon the Court in terms of time and resources." Levy, 2017 WL 2793810, at *4. More than twelve judges in this district have reviewed the complaints and filings in Plaintiff's various lawsuits, and nearly all of them have resulted in dismissal at the earliest stages of litigation. Thus, the fourth Safir consideration also weighs in favor of a pre-filing order.
Finally, the Court must consider "whether other sanctions would be adequate to protect the courts and other parties." Molski, 500 F.3d at 1058 (citing Safir, 792 F.2d at 24). As other courts have noted in other cases and as is true here: "[d]ismissal of Plaintiff's numerous cases has not deterred Plaintiff from continuing to file cases that lack merit. Further, Plaintiff has now begun to bring cases based on the same events, suggesting that Plaintiff will continue to litigate—and re-litigate—cases absent a pre-filing order." Levy, 2017 WL 2793810, at *4 (citing Martin v. Redwood City Dental Care, No. 15-CV-03151-JST, 2015 WL 9489898, at *6 (N.D. Cal. Dec. 29, 2015) ("Martin's litigation history demonstrates that she has been unresponsive to the courts' repeated, clear indications that her complaints are without merit.")). Thus, the final Safir consideration weighs in favor of a pre-filing order.
4. Narrowly Tailored
The fourth and final factor requires that the prefiling order be narrowly tailored to the vexatious litigant's wrongful behavior. See Molski, 500 F.3d at 1061. "Narrowly tailored orders are needed 'to prevent infringement of the litigator's right of access to the courts.'" De Long, 912 F.2d at 1148 (citing Woods v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1525 (9th Cir. 1983)).
As is evident from the discussion above, Mr. Frost has brought multiple lawsuits before multiple judges in this District based on repeatedly rejected facts and legal theories. Thus, the Court finds it appropriate to deem Mr. Frost a vexatious litigant and to fashion a narrowly tailored prefiling order. Given many of his meritless suits have been brought against federal defendants, as in the case at bar, the Court orders that Mr. Frost must obtain leave of court before filing any complaint against any federal entity or any current or former federal employee, including individual current or former federal employees acting in their official or individual capacities. The Clerk of this Court shall not accept for filing any further complaints filed by Mr. Frost or on behalf of Mr. Frost alleging such claims until that complaint has first been reviewed by the general duty judge of this Court and approved for filing.
IV. CONCLUSION
For the foregoing reasons, Mr. Frost is hereby DECLARED a vexatious litigant. The Clerk of this Court shall not file or accept any further complaints filed by or on behalf of Mr. Frost alleging any claims against any federal entity or any current or former federal employee, including individual current or former federal employees acting in their official or individual capacities, unless and until that complaint has first been reviewed by the general duty judge of this Court and approved for filing. If Mr. Frost wishes to file such a complaint, he shall provide a copy of the complaint, a letter requesting that the complaint be filed, and a copy of this Order to the Clerk of this Court. The Clerk shall then forward the complaint, letter, and copy of this Order to the general duty judge for a determination whether the complaint should be accepted for filing. Any violation of this Order will expose Mr. Frost to a contempt hearing and appropriate sanctions, and any action filed in violation of this Order will be subject to dismissal.
This order disposes of Docket No. 45.
IT IS SO ORDERED. Dated: March 18, 2020
/s/_________
EDWARD M. CHEN
United States District Judge