Opinion
No. Civ. S-00-998 FCD/GGH
April 9, 2001
ORDER DENYING PLAINTIFFS' MOTION FOR RELIEF FROM JUDGMENT AND ORDER TO SHOW CAUSE
This matter is before the court on plaintiffs' motion for relief from judgement. Fed.R.Civ.P. 60(b). As discussed below, plaintiffs' motion is wholly without merit, and is therefore, denied. This is not the first time plaintiffs have been before the court. Indeed, according to the court's calculations, plaintiffs have filed no less than eleven cases and countless motions in this court during the past three years Given the frequency of these files and their questionable merit, the court sua sponte issues an order to show cause why plaintiffs should not be declared vexatious litigants and subject to the pre-filing requirements outlined below
1. Plaintiffs' Motion For Relief From Judgment — Fed.R.Civ.P. 60 (b)
Final judgment was entered in this action on January 26, 2001, following this court's order granting defendants' motion to dismiss plaintiffs' first amended complaint with prejudice. Pursuant to Rule 60 (b) of the Federal Rules of Civil Procedure, "the court may relieve a party . . . from a final judgment, order, or proceeding for . . . fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party . . ." In their instant motion, plaintiffs contend that this court overlooked evidence that defendant Daniel Parent made misrepresentations in this action to "win favorable advantage in this lawsuit," an that the aforementioned evidence "validate[s] the truth of [plaintiffs'] allegations."
As set forth above, final judgment was entered following the court's order granting defendants' motion to dismiss plaintiffs' first amended complaint for failure to state a claim. In deciding such a motion, the court does not consider evidence. Rather, it assumes that the allegations contained in the complaint are true. Accordingly, the "evidence" referred to by plaintiffs is of no consequence. Moreover, as explained in the findings and recommendations adopted by this court, Mr. Parent is immune from suit for the alleged violations which occurred in the Tax Court proceedings and/or were associated with his advocacy.
Accordingly, plaintiff's motion for relief from judgment is denied.
2. Order To Show Cause
Court records indicate that since June 12, 1998, Michael Olsen, proceeding in pro per, has filed 11 cases in this court. Ten of the cases have been filed with his co-plaintiff wife, Sheila Olsen, also proceeding pro per. Several of the cases have been related; two of the cases were consolidated. Each of the cases has required the expenditure of considerable judicial resources, due to plaintiffs' propensity to file multiple and lengthy lawsuits stemming from the are factual nucleus, and to include in each a cornucopia of legal theories, none of which to date has been successful on the merits. Plaintiffs also have filed numerous unnecessary motions and requests which attempt to invoke inapplicable rules or procedures, all of which nonetheless require judicial attention and force defendants to incur substantial legal fees. The court has reviewed plaintiffs' cases, and has determined, for the following reasons, that plaintiffs are vexatious litigants and should be subject to a pre-filing review order.
Many of the Olsens' cases have been, in essence, litigation about litigation. For example, three relate cases stemmed from the Olsens' dissatisfaction about the course of unsuccessful state court litigation initiated by the Olsens to cancel a real estate transaction. The Olsens filed three cases in federal court, suing attorneys, an attorney's secretary, an arbitrator, and state court judges involved in the state court proceedings. Three other related cases were filed after the Olsens became dissatisfied with the course of tax court proceedings involving their 1995 tax returns. The Olsens again sued in Federal District Court, naming court personnel, attorneys and judges. Two other cases, later consolidated, were file after the Olsens received notice from County officials that they appeared to be violating county zoning ordinances in operating a business and placing non-conforming signage on their property. None of these cases were meritorious, several attempted to hale into court immune defendants, and many attempted to proceed on multiple theories not justified by the facts. Moreover, plaintiffs have persisted in their litigious stance, making unmeritorious post judgment motions. At least one of the appeals taken by plaintiffs has been rejected by the Ninth Circuit. Others are pending.
In five cases, CIV S 98-1094, CIV S 98-1561, CIV S 00-27-998, CIV S 00-499, and CIV S 00-359, summary judgment was entered for defendants. Two other cases, CIV S 98-1871 and CIV S 99-272 were dismissed at the pleading stage.
To declare parties vexatious, four requirements must be met: 1) adequate notice to permit opposition to a restrictive prefiling order before it is entered; 2) an adequate record for review by listing the case filings that support the declaration; 3) substantive findings that plaintiffs' filings are of a frivolous or harassing nature; and 4) an order narrowly tailored to remedy only the plaintiffs' particular abuses. Delong v. Hennessey, 912 F.2d 1144, 1147-49 (9th Cir. 1990) ("orders restricting a person's access to the courts must be based on adequate justification supported in the record and narrowly tailored to address the abuse perceived.")
This order notifies plaintiffs that it appears they are vexatious litigants who should be subject to a pre-filing review order. The following case filings appear to support declaring plaintiffs to be vexatious litigants. Because plaintiffs have demonstrated a propensity to file multiple related lawsuits, although not all are related in the technical sense, the cases are grouped by general subject matter. Within the groups, the eleven cases filed since 1998 are numbered in the order in which they were filed.
CASE SUMMARIES
A. ZONING ORDINANCE PROBLEMS.
1. No. CIV S 98-1094 LCD DAD PS Michael R. Olsen and Sheila Olsen v. County of Sacramento Planning and Community Development Department, filed June 12, 1998.
This case was filed after citizen complaints were made to the County of Sacramento, alleging that plaintiffs were violating county zoning ordinances. The Olsens' next case, No. CIV S 98-1561 FCD DAD PS, was consolidated with this one. The matter presently is on appeal to the Ninth Circuit.
Although the court files have been transmitted to the Ninth Circuit, the court has been able to review the course of the proceedings and the orders and findings and recommendations by relying on electronic court dockets and records.
Plaintiffs alleged defendants had violated plaintiffs' Fourth Amendment rights and the Freedom of Information Act ("FOIA"). They also contended the County violated the Fourth, Fifth, and Fourteenth Amendments and the Freedom of Information Act. The District Judge entered an order granting summary judgment in favor of defendants, adopting the findings and recommendations of the Magistrate Judge.
The Magistrate Judge found no facts to support a Fourth Amendment violation because, since the undisputed facts demonstrated that inspection of plaintiff's property took place from a public street, no search occurred. No facts supported procedural or substantive due process violations, since no legal action was taken by the County, notice of both zoning violations were given, plaintiffs met with code enforcement officers to discuss the zoning violations, and plaintiffs were advised of the procedure for administrative appeal. No facts supported a substantive due process violation, because neither the County's actions nor the zoning ordinances were arbitrary or unreasonable, there was no evidence of racial animus to support an equal protection violation, and no facts demonstrated an unlawful taking to support a Fifth Amendment violation. Finally, the FOIA was inapplicable to the County defendants. In sum, none of plaintiffs' legal theories were cognizable in light of the undisputed facts. Plaintiffs simply raced to the courthouse, set forth a cornucopia of unsupportable legal theories, and compelled numerous defendants to expend time, energy, and resources in defense of plaintiffs' unsupportable claims.
Another example of plaintiffs' penchant for taking legally and factually unfounded actions is demonstrated in plaintiff's motions on February 1, 1999 for protective order and for in camera review of deposition, and the motion filed August 2000 seeking to have certain videotapes transmitted to the Ninth Circuit. The magistrate judge denied these motions which were procedurally questionable and in any event unnecessary and without merit.
2. No. CIV S 98-1561 FCD DAD PS Michael R. Olsen and Sheila Olsen v. Sacramento County, Planning and Community Development Department, filed August 13, 1998.
This case was consolidated with the above Case No. CIV S 98-1094 FCD DAD PS. It was filed subsequent to 98-1094 because plaintiffs then had received notices from the Sacramento County Planning Department concerning zoning code violations. The case essentially represented an amendment to Case No. CIV S-1094. Even though plaintiffs apparently had conceded at oral argument that consolidation was correct, plaintiffs nevertheless requested reconsideration by the District Judge of the Magistrate Judge's order of consolidation. The District Judge declined to reconsider, finding the continuing series of redated events an appropriate basis to consolidate.
In July 1998, the Planning Department sent plaintiffs a letter instructing them to cease operating a business and displaying a banner sign precluded by zoning ordinances. In another letter in August, the County Planning Department advised plaintiffs that the matter would be referred to the legal department for action.
B. REAL PROPERTY PROBLEMS
3. No. CIV S 98-1871 GEB GGH PS Michael R. Olsen and Sheila Olsen v. County of Sacramento Superior and Municipal Courts Sacramento, filed September 25, 1998.
This is the first of three actions, related pursuant to the local rules, regarding state court proceedings in which plaintiffs, buyers of real property, attempted to cancel a real estate transaction. Plaintiffs lost following arbitration. This action, brought pursuant to 42 U.S.C. § 1983, proceeded on an Amended Complaint for Violation of Constitutional Rights filed October 29, 1998. Named defendants were the County of Sacramento, Superior and Municipal Courts.
This suit alleged the state court proceedings were unconstitutional, that plaintiffs' attorney was incompetent, that he and an arbitrator colluded, that arbitration proceedings were fundamentally unfair, and that plaintiffs were victims of trickery, fraud, and incompetency in connection with the final judgment against them in their state court case. As relief, plaintiffs asked this court to enjoin the stat court judgment, to stay its enforcement, and for a new trial.
Defendants' motion to dismiss was granted because plaintiffs had selected the wrong forum to adjudicate defects in the state court proceedings. Moreover, plaintiffs sought to sue immune defendants and complained of actions by private parties not subject to § 1983. In short, the case was without merit. Plaintiffs did not appeal.
4. No. CIV S 99-272 EJG GGH PS Michael R. Olsen and Sheila Olsen v. J. Chauncey Hayes, Paul Irish, James J. Christensen, Corey M. Marder, Judith J. Hollander and Thomas W. Hollander, filed February 12, 1999.
Plaintiffs failed to serve the Hollanders properly. Plaintiffs attempted to serve them by serving J. Chauncey Hayes, the attorney who represented the Hollanders in the state court proceedings. He, however, was not authorized to accept service of process for the Hollanders.
This is the second of three federal lawsuits related to the state court real estate litigation. In the at ended federal complaint filed March 29, 1999, plaintiffs alleged that the state court lawyers, the arbitrator and his secretary, and the real property sellers conspired against them in the state court proceedings, and in the process violated federal RICO and civil rights laws, the Hobbs Act, the Fair Debt Collection Practices Act, and several state laws.
The Magistrate Judge recommended defendants' motion to dismiss be granted. He found that defendants were private parties, not state actors, and could not act "under color of state law" for purposes of § 1983, that the arbitrator was immune, that plaintiffs failed to state RICO claims, that they had no private right of action under the Hobbs Act, and no claim under the Fair Debt Collection Practices Act against certain attorney defendants who recorded liens on plaintiffs' property.
Moreover, the Fifth and Fourteenth Amendments were inapplicable. The District Judge adopted the Magistrate Judge's recommendation and dismissed the case. Plaintiffs appealed to the Ninth Circuit. On April 28, 2000, the Ninth Circuit affirmed.
5. No. CIV S 00-486 FCD GGH PS Michael R. Olsen v. John R. Lewis and Steven H. Rodda, filed Match 7, 2000.
Plaintiff Michael Olsen filed this third federal lawsuit stemming from the state court real estate litigation. Defendants are Sacramento Superior Court Judges who presided over various proceedings in the state court real property litigation.
Presently pending before the Magistrate Judge is defendants' motion to dismiss. Defendants contend that the action presents no issues properly before the federal court, that plaintiff has abused the process of this court, and that this case is "one more in a string of frivolous actions pursued by plaintiffs to harass any and all participants in the state court lawsuit." (P.A. Supp. Mot. Dism. at 3). Defendants, State Superior Court judges, contend plaintiff fails to state a claim against them under any theory, and that theories of immunity and res judicata bar this action. They believe plaintiff's purpose is to harass and intimidate defendants, and to evade decisions and orders of this court. Due to the press of court business, the Magistrate Judge has been unable to consider the submitted motion to dismiss on the merits. It appears however, at first blush, that defendants' contentions may be well taken.
C. FEDERAL TAX PROBLEMS
6. No. CIV S 00-359 FCD GGH PS Michael R. Olsen and Sheila Olsen v. Commissioner of Internal Revenue, filed February 15, 2000.
This is the first of three cases, related pursuant to the local rules, filed by plaintiffs stemming from tax court litigation concerning their 1995 income tax liability. The theme is familiar. Displeased with tax court proceedings, the Olsens sued the Commissioner, IRS tax attorneys, and tax court personnel who participated in the tax court case. The original complaint contained approximately thirty-five citations of IRS misconduct, including failure to follow established rules and the Federal Rules of Evidence, and violations of taxpayer privacy. An amended complaint invoked civil rights jurisdiction pursuant to 28 U.S.C. § 1343, as well as the following code sections: 28 U.S.C. § 1340; 26 U.S.C. § 7433; 28 U.S.C. § 1346; and, as a separate basis, the United States Constitution. The complaints focused primarily on alleged irregularities in the tax court proceedings. Notwithstanding the court's explanation that complaints about conduct in the tax court proceedings were not properly before this court, plaintiffs persisted in attempts to challenge the tax court proceedings. The original complaint named as defendants IRS attorneys Parent and Abrams. Nevertheless, defendants specifically named in the amended complaint were identified as Norman H. Wolfe, Judge of the Tax Court, and Tax Court Clerk Casacca. Judge Wolfe and Clerk Casacca were also defendants in Case No. CIV S-00-499. This action was dismissed for failure to state claims on which relief could be granted. Plaintiffs' appeal is pending.
Plaintiffs previously had been instructed that, as to alleged violations which occurred within the Tax Court proceedings themselves, the individuals are absolutely immune from suit. See Mireles v. Waco, 502 U.S. 9, 11 (judges and clerks (1991)); Fry v. Melarango, 939 F.2d 832, 836-837 (9th Cir. 1991) (attorneys); Butz v. Economou, 438 U.S. 478, 516-16 (1978) (agency officials performing adjudicatory and prosecutorial functions).
7. No. CIV S 00-499 FCD GGH PS Michael R. Olsen and Sheila Olsen v. Norman H. Wolfer Commissioner of Internal Revenue, and Charles S. Casacca, filed March 9, 2000.
Plaintiffs suit against tax court Judge and Clerk Casacca was dismissed by the District Judge, adopting the Magistrate Judge's findings and recommendations following defendants' motion to dismiss. Among other matters, plaintiffs unsuccessfully attempted to recuse the Magistrate Judge. This case is also presently on appeal.
8. No. CIV S 00-998 FCD GGH PS Michael R. Olsen and Sheila Olsen v. Commissioner of the Internal Revenue Service, and Daniel Parent, filed May 5, 2000.
Continuing to litigate about the tax court litigation, plaintiffs sued the Commissioner of Internal Revenue and IRS attorney Daniel Parent regarding the United States Tax Court case, then on appeal before the Ninth Circuit. They alleged that attorney Parent, who represented the government in that case, abused process by slandering and libeling plaintiffs when he gave "hearsay testimony as a complaining witness." It alleged that such claims constituted ethnic profiling. (Id. at 5, 1.7.) It further alleged process was abused in the tax court proceeding and plaintiff's civil rights were violated. It sought civil damages for unauthorized collection actions an a tax refund.
The following are examples of the multiple motions and requests plaintiffs filed: (1) on October 18, 2000, a motion to strike the declaration of Mahmoud Bazaz filed by defendants in support of their motion to dismiss; (2) on October 18, 2000, a motion to strike the declaration of Daniel Parent, filed by defendants in support of their motion to dismiss; (3) on October 18, 2000, a request to strike inadmissible material; (4) on October 18, 2000, a motion to strike defendants' motion to dismiss; (5) on November 13, 2000, a request for judicial notice; (6) on November 17, a motion for leave to amend the amended complaint; (7) on November 17, 2000, a motion to lift the stay on discovery; and (8) on November 27, a document styled "Plaintiffs' Request for Ruling on Objections," which, although stapled together and docketed as one item, actually comprised three apparently separate motions or requests. In addition lacking in merit, many of the above motions or requests were styled improperly as separate matters. As such, they unnecessarily confused the court's docket and consumed judicial resources in cataloging, calendaring, and responding to them. For example, although styled as separate motions, numbers 1-4 essentially comprise plaintiffs' opposition to the then-pending motion to dismiss. Similarly, the request for judicial notice set forth in number 5 above is an unnecessary separate request for the court to take judicial notice of the Federal Rules of Evidence. Numbers 6 7 were futile in light of defendant's pending motion to dismiss. Number 8, three apparently separate documents requesting the court to rule on then-pending matters submitted by plaintiffs in opposition to the pending motion to dismiss, also demonstrated plaintiffs' propensity to consume judicial resources inappropriately and unnecessarily.
Plaintiffs objected on various grounds to the fact that defendants filed concurrently with their motion to dismiss copies of declarations filed in the United States Tax Court. First, Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir.), cert. denied, 454 U.S. 1126 (1981)). Second, the declarations were not proffered for the truth of the matters asserted. Defendants proffered them as court records of which the court may take judicial notice to clarify the matters complained of by plaintiffs.
Defendants' motion to dismiss was granted adopting findings and recommendations of the Magistrate Judge who found that, even after amendment, plaintiffs had failed to state claims on which relief could be granted. Plaintiffs moved this court for relief from judgment, and as set forth above, this court denies that motion herein.
9. No. CIV S 00-1939 GEB JFM PS Michael R. Olsen and Sheila Olsen v. ITT Hartford, filed September 7, 2000.
While not technically related to the. above "tax problem" cases, this action against ITT Hartford stems from an incident which occurred in connection with plaintiffs' tax court case. The civil complaint for Federal Statute violations is styled as one for violating 26 U.S.C. § 6103, 12 U.S.C. § 3402, 3403, "C.L. Privacy Violation," "C.L. Breach of Fiduciary Duty," "C.L. Defamation," and "abuse of the legal process." Plaintiffs predicate jurisdiction on 28 U.S.C. § 1331 1332. The confusing complaint alleges, inter alia, that ITT Hartford issued in 1996 to plaintiff Michael Olsen a commercial insurance policy covering a motorcycle parts and accessory business. Hartford was given an unsigned copy of plaintiffs' 1995 tax return, which Hartford in turn disclosed to the Internal Revenue Service. The IRS introduced it into evidence on April 22, 1998 in the tax court litigation. Plaintiffs allege ITT Hartford violated "many federal and state (privacy confidential) statutes, as well as . . . common law intrusion into the private life or affairs of another; and public disclosure of private facts; and placing a person in false light violations," (Compl. at 4), including 12 U.S.C. § 3402 3403 and state laws regarding preservation of private and confidential information held by insurance companies, disregarded their fiduciary relationship with Michael Olsen, defamed and libeled plaintiffs, misrepresented information and abused process by "using the governments police powers to profit private businesses Fraud or in the alternative misrepresentation by way of inferences," (Compl. at 19).
The Magistrate Judge denied plaintiffs' motions for leave to file a supplemental complaint (alleging breach by defense counsel of a stipulation extending time to respond to the complaint, and emotional distress arising out of defendants' pleading the affirmative defense of unclean hands), to strike documents including the answer, to compel responses to interrogatories, for Rule 11 sanctions for defendant's failure to respond to discovery, and for judicial notice of their unsigned 1995 tax return.
11. No. CIV S 01-416 LKK PAN PS Michael R. Olsen and Sheila Olsen v. Internal Revenue Service Commissioner, filed February 28, 2001.
While not technically related to the tax court case, in this most recently filed case plaintiffs appear to be attempting to have applied to their 1995 tax liability a tax refund allegedly due them as a result of filing amended 1997 and 1998 tax returns. The Government has not yet appeared in the action.
D. OTHERS
10. No. CIV S 00-2198 WBS GGH PS Michael R. Olsen and Sheila Olsen v. Price Costco, filed October 5, 2000.
In this case, based on diversity jurisdiction, the complaint alleges that Sheila Olsen lost, misplaced, or had stolen a bank deposit of $3000 as a result of a consensual search of her purse conducted on October 5, 1999 by a Costco security guard. The complaint is captioned as a civil complaint for Fourth Amendment violations, for violation of the California Business and Professions Code § 7520 and unspecified sections, for "C.L. Privacy Violation," and for abuse of the legal process.
As a preliminary matter, the complaint demonstrates that, at a minimum, plaintiffs are confusing their cases. In a section on page 2 under the heading "Parties F.R.C.P. Rule 17," the parties are identified as "ITT Hartford and Hartford Fire Insurance Company."
Notwithstanding the confusion as to the identity of defendants, construed liberally, the complaint avers that plaintiff Sheila Olsen agreed to let a Costco security guard search her purse as a condition of permitting her to enter the private warehouse. Thereafter, $3000 was missing from her purse. It alleges that Sheila Olsen's right to privacy was violated, that the search violated her rights pursuant to the Fourth Amendment and a common law "Shop keepers privilege," and that Sheila Olsen's name and reputation were negatively affected. The relief plaintiff seeks is unclear. The prayer refers to the lost $3,000 and also to $15,000 "lost return" because plaintiffs were not able to invest the $3000 in their motorcycle business. The prayer for relief seeks damages in the amount of $76,000.
Defendant's motion to dismiss for lack of subject matter jurisdiction presently is pending. Due to the press of court business, the court has not been able to respond on the merits to defendant's pending motion, made on the grounds that the amount in controversy is insufficient for diversity jurisdiction. Notwithstanding what should be a relatively uncomplicated procedural posture of the case, the docket entries number 45. In addition to defendant's motion to dismiss, the following matters filed by plaintiffs are outstanding: (1) A request to enter default (Dkt. No. 6), filed by plaintiffs on November 6, 2000, the same day defendants filed their motion to dismiss (Dkt. No. 3); (2) a motion to strike defendants' motion to dismiss, filed November 7, 2000 (Dkt. No. 13); a motion to strike the declaration of Brian Dolin, filed November 8, 2000 (Dkt. No. 15); (3) a document filed December 12, 2000 styled "Objections by plaintiff Michael R. Olsen and Sheila Olsen to evidence and objections to facts disputes and legal conclusion" (Dkt. No. 29); (4) a document filed December 26, 2000 (Dkt. No. 32) styled "Plaintiffs' Motion to Court for Relief From Order pursuant to Rule 60 and objection to a procedure which will cause irreparable harm to the plaintiffs. Objection to a violation of rule 7(b);" (5) a motion for summary judgment (Dkt. No. 36) filed February 23, 2001; (6) objections filed March 2, 2001 (Dkt. No. 38) to a letter to the undersigned from counsel for defendant which was copied to plaintiffs.
A later filed proof of service of the summons and complaint (Dkt. No. 11) states that this action was not served until October 12, 2000. In Opposing the request, counsel for defendant details a confusing sequence of events, which led defense counsel to believe the complaint had not been served until October 17, 2000. Moreover, defense council declares he had conferred with Sheila Olsen about dates or scheduling a hearing on the motion to dismiss, and had no been informed that the Olsens intended to apply for default, which they did the next day in what appears to be a race to the courthouse.
In sum, it appears that plaintiffs have attempted to conduct inappropriate piecemeal litigation, have persisted in attempting repeatedly to litigate the same incidents against the same defendants, and have filed multiple lawsuits complaining about the course of litigation in previous lawsuits. When plaintiffs are defeated on the merits, they file new lawsuits against attorneys and court personnel involved in previous defeats. Moreover, it also appears that in each individual case, plaintiffs have made numerous frivolous, unauthorized, and unmeritorious motions and other filings which unduly have consumed judicial resources more justifiably expended on litigants with pending meritorious and nonfrivolous matters. Finally, it appears that few, if any, of the cases filed by plaintiffs have merit.
Accordingly, IT IS NOW ORDERED that plaintiffs shall SHOW CAUSE, within twenty days from the date this order is filed, why the court should not find plaintiffs' filings to be frivolous or harassing, declare them vexatious litigants, and subject them to the following pre-filing order:
1. Plaintiffs, or either of them, shall not initiate any further pro se action in this court unless the pleadings initiating the action are accompanied by a declaration under penalty of perjury that explains why plaintiffs believe they have meritorious claims. The declaration shall include a list of all previous actions plaintiffs have filed in this or any court, identifying named defendants and all claims made in the previous actions. Plaintiffs shall certify that the defendants named in the proposed action have never before been sued by plaintiffs, or alternatively that any claims against previously sued defendants are not related to previous action[s]. Should judges or governmental officials be named as defendants, plaintiffs shall demonstrate why such defendants are not immune from suit. Moreover, plaintiffs must attach to the declaration an opinion from a lawyer that the claims they wish to present are colorable. Finally, plaintiffs shall show cause why the Judge who reviews the proposed action should not require them to post a bond.
2. The Clerk shall not file or lodge an action filed pro se by plaintiffs, or either of them, unless it is accompanied by the required declaration; any such incomplete filings shall be returned to plaintiff without further action of the court;
3. If plaintiffs, or either of them, files a pro se action accompanied by the required declaration, the Clerk shall open the matter as a miscellaneous case to be considered by any judge of the Eastern District in accordance with DeLong v. Hennesse, 912 F.2d 1144, 1149 (9th Cir. 1990) and Franklin v. Murphy, 745 F.2d 1221, 1232 (9th Cir. 1984). The judge will issue necessary orders after making a determination whether the case should be filed under the appropriate standards and pertinent law.
4. This matter is referred to the assigned Magistrate Judge for Recommendation following plaintiffs' return to this order to show cause.
IT IS SO ORDERED.