Opinion
No. CIV 5-00-998 LCD GGH PS
May 14, 2001
FINDINGS AND RECOMMENDATIONS
By order filed April 10, 2001, the District Judge directed plaintiffs to show cause why they should not be declared vexatious litigants, and referred the matter to the undersigned for recommendation. On April 30, 2001, plaintiffs filed a return to the order. The court has reviewed the document. Plaintiffs have shown no convincing reason why they should not be subject to a pre-filing review order.
That plaintiffs had no intent to harass their opponents is not dispositive. Likewise, that plaintiffs did not know the standard to determine whether a case is colorable is not determinative. Plaintiffs need not be in contempt of court to be declared vexatious litigants. The Ninth Circuit recently reiterated that pro se litigants should not be excused from knowing the most basic litigation requirements. See American Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th Cir. 2000), (citing Briones v. Riviera Hotel Casino, 116 F.3d 379, 382 (9th Cir. 1997), cert. den. Hayhurst v. American Ass'n of Naturopathic Physicians, ___ S.Ct. ___, 2001 WL 214149, (2001). Plaintiffs have the responsibility to inform themselves of the applicable law and court procedures. As set forth in the order to show cause, plaintiffs have failed to meet this responsibility. It has never been the court's function "to supervise laymen in the practice of law." Springer v. Best, 264 F.2d 24, 25 (9th Cir. 1959.) The Ninth Circuit explicitly has warned against "becoming a player in the adversary process rather than remaining its referee." Jacobsen v. Filler, 790 F.2d 1362, 1365 (9th Cir. 1986) ("[I]t is not for the trial court to inject itself into the adversary process on behalf of one class of litigant"). Pro se litigants undoubtedly are entitled to have pleadings liberally construed See e.g, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96 (1972). Moreover, they may be granted leeway in certain cases when they run afoul of merely technical procedural requirements. In sum, however, "pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record." Jacobsen, 790 F.2d at 1364. While the court understands that financial hardship may preclude plaintiffs from being represented by counsel, the court is not persuaded that financial hardship will prevent plaintiffs from obtaining an attorney's opinion that claims are colorable. Plaintiffs have demonstrated that they have the financial wherewithal to pay $150 per case for the 11 cases filed in the past three years. Moreover, plaintiffs have declared that both are employed and that they own real estate and several businesses. Finally, plaintiffs are informed that a pre-filing review order does not prevent them from accessing the courts in the event they have colorable claims. Rather, a pre-filing review order serves as a mechanism to insure that only colorable claims are presented to the court. No substantive rights of plaintiffs are affected.
The requirement for declaring parties vexatious have been met. Plaintiffs have received adequate notice and have filed opposition to a restrictive pre-filing order. The District Court has made an adequate record for review by listing the case filings that support the declaration and has made substantive findings that plaintiffs' filings are of a frivolous or harassing nature. The court recommends plaintiffs be subject to the following order, narrowly tailored to remedy 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.").
Accordingly, IT IS RECOMMENDED the following pre-filing review order be entered:
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 any 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. Hennessey, 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.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within ten (10) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten (10) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).