Opinion
Case No. EDCV 08-24-VAP (OPx).
September 2, 2008
The Court has received and considered all papers filed in support of, and in opposition to, Plaintiffs' Motion for Relief from Judgment. The Court also has received and considered Plaintiffs' response to the Court's "Order to Show Cause Why [Plaintiffs] Should Not Be Declared Vexatious Litigants." The matters are appropriate for resolution without hearing. See Fed.R.Civ.P. 78; Local Rule 7-15. For the reasons set forth below, the Court GRANTS in part and DENIES in part the Motion for Relief from Judgment, DISMISSES the remainder of the action, DECLARES Plaintiff Tate to be a vexatious litigant, ORDERS that Tate be subject to filing restrictions in the Central District, and VACATES all noticed hearing dates.
I. BACKGROUND
A. Proceedings before the Filing of this Case
The allegations of Plaintiffs' Complaint and First Amended Complaint are understood more easily when read in the context of Plaintiff Tate's prior criminal convictions and his petition for federal habeas relief. The following background is drawn from the "Amended Report and Recommendation of United States Magistrate Judge" ("Habeas Order") filed on January 25, 2002, in Tate v. Rice, No. CV 99-7750-AHM (MAN) (Doc. no. 65). The magistrate judge's report was adopted as the final order of the court, and became the basis for a judgment dismissing Tate's habeas petition on July 29, 2002 (Doc. nos. 70, 71).
In 1992, authorities in Florida charged Plaintiff Tate with abuse of his seven-year-old stepson, whom the Court will refer to as "N." (Habeas Order 4:22-5:4.) According to the investigating officer, Gwen Fleming, she observed scars on N.'s back and injuries to the front and back of his legs. (Id.) She did not observe injuries to his face or ears at that time. (Id.) Tate admitted to the investigating officer that he had beaten N. with belts and cords. (Id.)
Plaintiff Tate later moved to California with N. and N.'s mother, Gory Erling. (Habeas Order 5:6-7.) In 1994, Tate's three sons from an earlier marriage also moved to California to live with Tate. (Id. 22:3-5.) In California, Plaintiff Tate again was charged with crimes stemming from his alleged abuse of N. The jury in Tate's criminal trial convicted him of one count of torture and two counts of child abuse. (Id. 3:3-6.) The jury also found that Tate inflicted great bodily injury during the commission of the child abuse. (Id. 3:6-8.) Tate was sentenced to a prison term of life with the possibility of parole. (Id. 3:23-26.)
As part of its case against Tate, the prosecution presented the testimony of Dr. Alan Nager, a pediatric emergency physician who examined N. at Children's Hospital in Los Angeles on March 20, 1997. (Habeas Order 5:22-6:10.) Dr. Nager testified that he observed "a significant number of injuries essentially on every part of [N.'s] body." (Id. 5:24-25.) He also provided his opinion that some of those injuries had been sustained in the few days before his examination. (Id. 5:25-6:1.) Dr. Nager testified, however, that the majority of the injuries were inflicted over a long period of time, including a fracture to N.'s nose caused by a "substantial force," that appeared not to have been treated. (Id. 5:25-6:4.) Dr. Nager also observed N.'s deformed and "cauliflowered" ear, which suggested the ear suffered a blow that, when left untreated, caused blood to accumulate under the ear tissue. (Id. 6:4-7.) N.'s hair loss suggested his hair roots had been damaged by repeated trauma, and Dr. Nager further testified about scarring on N.'s forehead, bruising on his cheeks, and marks on his neck, all of which appeared to have been inflicted with an object. (Id. 6:7-10.) Dr. Nager testified that the injuries he observed during his examination in 1997 were different than those described in N.'s medical records from 1992. (Id. 54:6-9.)
Gwen Fleming, the Florida officer who investigated the 1992 charges against Plaintiff also testified at Tate's California trial. (Habeas Order 6:14-18.) When shown a photograph of the injuries allegedly inflicted on N. in California, she testified that the injuries in the photograph were different than those she observed during her investigation in Florida in 1992. (Id.) In addition, the prosecution presented the testimony of N. and Tate's three sons. (Id. 49:18-20.)
Tate testified in his own defense at trial. He acknowledged responsibility for physically abusing N. in 1992, and stated that he then attended counseling sessions. (Habeas Order 6:22-25.) He testified that N. was placed in foster care, and that he received reports that N. suffered abuse while in foster care. (Id. 6:26-27.) Tate further testified that after his family moved to California, he would use "time outs" rather than physical punishment to discipline N., as he had learned in counseling. (Id. 6:28-7:2.) He denied ever injuring N. after they had moved to California, and stated that any incidents of abuse described during the prosecution's case in chief had occurred in Florida in 1992. (Id. 7:2-6.)
As described by the order addressing Tate's habeas petition, the "central premise" of his collateral attack on his conviction was that N. "had no new injuries on March 20, 1997, the day [N.] was taken into protective custody, and that all his injuries were pre-existing and stemmed from abuse he incurred in Florida." (Id. 45.) Tate also contended:
that there was a conspiracy against him, apparently racist in nature, by which persons involved in his prosecution here, as well as law enforcement, children's services and medical personnel in Florida, conspired to alter medical records — both the prior Florida records and the March 20, 1997 examination records — and to suppress evidence from Florida (photographs), in order to falsely create evidence that Nathan incurred injuries while in California and that Dr. Nager actually examined him, so that Petitioner could be prosecuted again in California for the same crime.
(Id. 45-46.)
As part of his habeas claim for ineffective assistance of counsel, Tate argued that his trial counsel should have presented evidence that Dr. Nager did not, in fact, examine N. on March 20, 1997, and that Dr. Nager perjured himself by testifying he had conducted such an examination. (Habeas Order 52:21-24.) The Habeas Order found Tate's assertion to be based on a misunderstanding of Dr. Nager's testimony and the medical records documenting the examination of N. on March 20, 1997. (Id. 52:21-55:1.)
According to Dr. Nager's testimony and those records, a resident physician named Sandy Stein first examined N. (Id.) Dr. Nager, the attending physician, then re-examined N. and ordered that various tests be performed. (Id.) As explained by the Habeas Order, "the fact that another, less experienced physician examined [N.] first and was the physician whose signature is first present on the medical records introduced at trial does not demonstrate that Dr. Nager never conducted a subsequent medical examination on [N.], and then also signed those records, on that same date." (Id. 54:20-24.) In addition, the Habeas Order rejected Tate's contention that the prosecutor had knowingly presented perjured testimony by using Dr. Nager as a witness. (Id. 59:14-18.)
Tate also claimed that photographs of N.'s injuries taken in Florida in 1992 had been "suppressed." (Habeas Order 48 n. 14.) An officer testified at trial that she had attempted to obtain the 1992 photographs of N. but that the photographs had been destroyed by the Florida authorities by the time of the 1997 investigation. (Id.) Tate's claims that the 1992 photographs had been "suppressed" thus were found to lack merit. (Id.)
The Habeas Order rejected Tate's claims that his appellate counsel was ineffective, for failing to raise on his direct appeal many of the issues the magistrate judge already had found to lack merit. (Id. 56-57.)
B. Proceedings in this Case
1. Allegations of the Complaint
On January 10, 2008, Plaintiffs Martina L. Walker, Kevin Crawford, "Sneakers," and Clarence Demetrius Tate filed a complaint in pro se, captioned "Racketeer Influenced Corrupt Organization (RICO) Claims Damages Currently Filed. [¶] 18 U.S.C. § s 1961-1964. [¶] State Pendent Claims. Defamation, Assault Battery, And Fraud Deceit" ("Complaint").
The Complaint named 42 Defendants, including the following persons: (1) Victor Rodriguez, the prosecutor in Tate's state criminal case; (2) Rosalie Garcia and Jose Granados, law enforcement officers who investigated the child abuse allegations against Tate in California; (3) Alan Nager, the physician who examined N. and testified at Tate's trial; (4) Marylou Hillberg, Tate's state appellate counsel; (5) Judge Robert J. Perry of the California Superior Court, who presided over Tate's trial, as well as another member of that court, Judge Haley Fromholz; (6) Gwen Fleming, the officer who investigated the earlier child abuse claims in Florida; and (7) Justices Walter H. Croskey, Joan D. Klein, and Richard D. Aldrich of the California Court of Appeal, who considered Tate's direct appeal. The Complaint also asserted claims against the California Correctional Peace Officers Association, the California Appellate Project, and Children's Hospital of Los Angeles.
According to the theory set forth in Plaintiffs' Complaint, Tate's conviction resulted from a conspiracy among all Defendants. (Compl. 15, 17.) Tate and Plaintiffs Walker and Crawford suffered economic harm, because Tate's wrongful conviction prevented them from operating their restaurant, Sneakers, which also is a Plaintiff. (Id.) The actions taken by Defendants as part of their conspiracy allegedly included "fraud, tampering with evidence, kidnapping [of Plaintiff Tate], interfering with interstate commerce, fraud by wire, and obstruction of justice." (Compl. ¶ 15.)
The Complaint reiterated some of the perceived wrongs Plaintiff Tate apparently raised in his federal habeas petition: that the prosecutor in his criminal trial fabricated and falsified evidence, (Compl. ¶¶ 18, 42); that law enforcement officers and others concealed and refused to provide Plaintiffs with copies of the 1992 photographs showing N.'s earlier abuse, (Compl. ¶¶ 19-20, 29, 42); that the injuries visible on N.'s body in 1997 were "identical" to those he had already suffered in 1992, (Compl. ¶ 42); that Dr. Nager provided false testimony concerning N.'s injuries, (Compl. ¶ 28); and that his appellate counsel failed to raise many of these issues on the direct appeal from his conviction (Compl. ¶ 32).
According to Plaintiffs, the conspiracy encompassed all aspects of Tate's criminal proceedings. The California Appellate Project, Tate's appellate counsel, and the California Court of Appeal, Second District, allegedly conspired to prevent Tate from raising certain issues on his direct appeal. (Compl. ¶ 21.) When the California Court of Appeal remanded Tate's case for resentencing, the attorney appointed to represent Tate allegedly had ex parte communications with Judge Perry, who presided over the resentencing. (Compl. ¶¶ 21-22.) The two purportedly acted to prevent Tate from obtaining relief in a civil case against Dr. Nager and Children's Hospital. (Id.) Dr. Nager's wife, Defendant Nancy Ellen Nager, also participated in the conspiracy, because she worked at the California Appellate Project, the organization that provided Tate with legal representation during his direct appeal. (Compl. ¶¶ 22-23.)
Tate's wife, Gori V. Tate, apparently also faced charges related to abuse of N. (Compl. ¶ 33.) Plaintiffs alleged that Gori Tate's attorneys, Defendants Simon Aval and John A. McDonald, conspired with the prosecutor in Plaintiff Tate's case to conceal evidence. (Compl. ¶¶ 33-34.) Defendants Aval and McDonald allegedly told their client, Gori Tate, that Plaintiff Tate had turned her in to authorities in order to obtain a lesser sentence for himself. (Compl. ¶ 35.) Aval and McDonald purportedly pressured Gori Tate into pleading guilty and "to accept a battered women's syndrome defense," as part of their participation in the conspiracy. (Compl. 36.)
The alleged conspiracy extended into proceedings concerning Tate's children in the dependency court, where Tate's criminal trial judge, Judge Perry, purportedly intervened to prevent Tate from obtaining the "records which would have revealed the RICO activity." (Compl. ¶ 41.)
Finally, the Complaint alleged wrongdoing by prison guards and their union, the California Correctional Peace Officers Association, who allegedly falsified and concealed evidence to prevent Plaintiff Tate from obtaining parole, including the planting of a seven-inch knife in Tate's cell. (Compl. ¶¶ 48-61.) The correctional officers did so in furtherance of the RICO conspiracy begun by the prosecutor in Tate's criminal trial. (Compl. ¶ 67.) Plaintiffs also sued Tate's counsel at a hearing before the Board of Parole Hearings, (Compl. ¶¶ 44-47), as well as commissioners of that body, (Compl. ¶¶ 62-65).
Plaintiffs alleged the conspiracy caused them to suffer economic losses, when Tate could not secure his release by posting bail and could not return to the operation of the restaurant, Sneakers. (Compl. ¶¶ 27-30.) Plaintiffs also suffered losses when the "lies" of Aval and McDonald caused Tate to lose his restaurant and the renewal of a sublease by the Church of Scientology. (Compl. ¶ 35.) Plaintiffs Walker and Crawford each sought $10 million in damages, while Plaintiff Tate sought $50 million in damages, to compensate them for the losses sustained as a result of the alleged RICO conspiracy. (Compl. ¶¶ 70-72.) The Complaint also sought relief for state law claims of libel, assault and battery, and fraud and deceit. (Compl. ¶¶ 77-81.)
2. First Amended Complaint
Plaintiffs filed a First Amended RICO Complaint ("FAC") on April 8, 2008, raising allegations similar to those made in the Complaint. The FAC's most significant new allegation claimed that on February 29, 2008, Plaintiff Crawford learned from an employee of the county Department of Children's Services in Florida that photographs of N. taken in 1992 had, in fact, been sent to authorities in Los Angeles in 1997. (FAC ¶ 17.)
3. Procedural history
By Order dated March 5, 2008, the Court directed Plaintiffs to file a RICO Case Statement no later than April 7, 2008. The Order also took off calendar Motions filed by certain Defendants seeking dismissal or other relief.
Those Motions were: (1) Defendants Walter H. Croskey, Richard D. Aldrich, Joan D. Klein, Robert J. Perry, and Haley J. Fromholz's Motion to Dismiss; (2) Defendants Simon Aval and John A. McDonald's Motion to Dismiss and Motion for an Order Requesting Plaintiff to Furnish Security; (3) Defendants Children's Hospital Los Angeles and Alan Nager's Motion to Dismiss or, Alternatively, for a More Definite Statement; and (4) Defendant Victor Rodriguez, Timmie Saltzman, and Martin Goldman's Motion to Post Security and Dismiss.
Following a request for extension lodged by Plaintiffs on April 8, 2008, the Court issued an Order on April 10, 2008, granting Plaintiffs an extension until May 1, 2008, to file their RICO Case Statement. (Doc. no. 74.) The April 10, 2008 Order also ordered Plaintiffs to show cause why Plaintiffs Sneakers should not be dismissed, because it is a business entity appearing without counsel.
By Order dated May 2, 2008, and after no RICO Case Statement had been filed by the May 1, 2008 deadline, the Court dismissed the FAC for failure to prosecute, denied Defendants' pending motions as moot, and ordered Plaintiffs to show cause in writing why they should not be declared vexatious litigants and subjected to a pre-filing order. (Doc. no. 89.) Plaintiffs' response to the order to show cause was to be filed no later than June 6, 2008. The May 2, 2008 Order also noted the absence of any response concerning the representation of Sneakers.
On May 16, 2008, Plaintiffs filed a Motion for Relief from Judgment, requesting relief from the Court's May 2, 2008 Order dismissing the FAC.
On June 3, 2008, Plaintiffs filed a document captioned "Motion to Show Cause Why Tate Should not be Declared a Vexatious Litigant" ("OSC Response"), which the Court construes as a response to its May 2, 2008 Order to show cause why they should not be declared vexatious litigants. (Doc. no. 100.) Defendants Victor Rodriguez, Martin Goldman, and Timmie Saltzman filed a Reply to Plaintiffs' OSC Response on June 12, 2008. Defendants Simon Aval and John A. McDonald filed a Joinder on June 13, 2008.
Plaintiffs filed documents bearing the same caption on June 26, 2008, and June 30, 2008. (Doc. nos. 114, 118.) The Court construes those filings to be untimely responses to its May 2, 2008 Order.
II. DISCUSSION
A. Motion for Relief from Judgment
Rule 60 of the Federal Rules of Civil Procedure provides that, "On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: . . . mistake, inadvertence, surprise, or excusable neglect . . . or . . . any other reason that justifies relief." Fed.R.Civ.P. 60(b)(1), (6).
Plaintiffs' Motion for Relief from Judgment ("Rule 60 Motion") seeks relief from the Court's May 2, 2008 Order dismissing the FAC for failure to file a RICO Case Statement, on the ground of excusable neglect and under the prisoner mailbox rule. (Rule 60 Motion at 3.) In a Declaration included with Plaintiffs' Rule 60 Motion, Plaintiff Tate states that on April 30, 2008, he provided the RICO Case Statement to a correctional officer for mailing. (Rule 60 Motion at 2.) The RICO Case Statement was received by the Clerk's Office and stamped "Received but Not Filed" on May 2, 2008. (Rule 60 Motion, Ex. A.)
Under the so-called "prisoner mailbox rule," court documents submitted by a prisoner proceeding in pro se are considered "filed" as of the date the prisoner deposits the document with prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 270 (1988) (deeming a pro se prisoner's notice of appeal in habeas case filed when he "delivered the notice to prison authorities for forwarding to the District Court"); Faile v. Upjohn Co., 988 F.2d 985, 988 (9th Cir. 1993) (extending Houston to apply to other civil filings). Here, Tate has submitted a declaration stating he complied with this Court's Order to file a RICO Case Statement by May 1, 2008, when he gave his RICO Case Statement to a correctional officer on April 30, 2008. UnderHouston and Faile, Tate's RICO Case Statement should have been considered a timely filing and should not have been stamped "Received/Returned" on May 2, 2008.
Plaintiffs' Rule 60 Motion fails, however, to provide a sufficient justification for Plaintiffs Walker and Crawford's failure to comply with the Court's May 2, 2008 Order. Plaintiffs Walker and Crawford are not alleged to be inmates, and neither has provided a declaration setting forth a basis for relief from judgment under Rule 60(b). Tate's declaration states only that he "possessed the documents that related to the Rico Case Statement." (Rule 60 Mot. at 3:1.) To the extent that Tate prepared and attempted to file the RICO Case Statement on behalf of his co-Plaintiffs, he could not do so unless acting as a licensed attorney. "While a non-attorney may appear pro se on his own behalf, he has no authority to appear as an attorney for others than himself." Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (internal quotation and brackets omitted) (quoting C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987)). The Court thus finds no basis under Rule 60(b) to grant Plaintiffs Walker and Crawford relief from its May 2, 2008 Order dismissing the FAC.
Accordingly, the Court grants Plaintiffs' Rule 60 Motion in part and denies it in part. Plaintiff Tate is granted relief from the Court's May 2, 2008 Order, and the dismissal of the FAC as to him is vacated. The Court denies the Motion as to Plaintiffs Walker and Crawford.
B. Dismissal of FAC
Even though the Court grants Plaintiff Tate's Rule 60 Motion in part, his claims nevertheless are subject to dismissal for lack of subject matter jurisdiction under the Rooker-Feldman doctrine.
Under the Rooker-Feldman doctrine, a federal district court has no authority to review the final determinations of a state court in judicial proceedings. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923) (holding district courts may not exercise appellate jurisdiction over state courts). Instead, the proper court in which to obtain such review is the United States Supreme Court. 28 U.S.C. § 1257; Feldman, 460 U.S. at 476. In other words, the doctrine "prohibits a federal district court from exercising subject matter jurisdiction over a suit that is a de facto appeal from a state court judgment."Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004) (citation omitted); see also Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995) (dismissing for lack of jurisdiction where claim amounted "to nothing more than an impermissible collateral attack on prior state court decisions") (citing MacKay v. Pfeil, 827 F.2d 540, 543 (9th Cir. 1987)). A district court may raise sua sponte the issue of subject matter jurisdiction.
As explained by the Ninth Circuit, the Rooker-Feldman doctrine generally provides that
[i]f a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision, Rooker-Feldman bars subject matter jurisdiction in federal district court. If, on the other hand, a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse party, Rooker-Feldman does not bar jurisdiction.Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003). The doctrine bars "state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced from asking district courts to review and reject those judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
To determine whether the Rooker-Feldman doctrine bars a plaintiff's complaint, the district court examines whether the plaintiff's claims are "inextricably intertwined" with a state court decision ruling against plaintiff. See Feldman, 460 U.S. at 486-87. "Where the district court must hold that the state court was wrong in order to find in favor of the plaintiff, the issues presented to both courts are inextricably intertwined." Doe Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001).
Here, Tate's claims concerning a conspiracy among the investigators, prosecutors, defense attorneys, and judges involved in his criminal case, among others, essentially request a finding that he was convicted wrongfully. A finding in favor of Tate in this case requires a determination that the jury's verdict and the decision by the Court of Appeal were wrong, and that numerous Defendants conspired to bring about those results. This Court therefore does not have subject matter jurisdiction under the Rooker-Feldman doctrine. Moreover, to the extent Tate has alleged the existence of a conspiracy extrinsic to his criminal conviction and direct appeal, such that the underlying state court decisions are not implicated by the FAC's RICO claim, he has not alleged sufficient facts to support such a claim. See Mooney v. Boli, No. C 06-7875 SI, 2007 WL 781973, *4 (N.D. Cal. Mar. 13, 2007) ("Absent any specific allegations regarding the alleged conspiracy, plaintiff's complaint amounts to an impermissible attack on the state court decision, and as such, is barred by the Rooker-Feldman doctrine.").
Moreover, Tate's claims further appear to allege RICO claims based on many of the same arguments raised in his earlier federal habeas petition, as a way to avoid the bar on successive habeas petitions. 28 U.S.C. § 2244(b). Having failed to obtain relief from his conviction upon initial review by a federal court, Tate should not be granted a further opportunity to challenge the underlying state court proceedings.
Accordingly, the Court dismisses the FAC for lack of subject matter jurisdiction, without leave to amend. Tate cannot allege additional facts to support a RICO claim that would not be barred by the Rooker-Feldman doctrine, or the preclusive effect of past court decisions, which are set forth below.
C. Tate's Vexatious and Harassing Litigation
A district court has the authority to enjoin "litigants with abusive and lengthy histories" under the All Writs Act, 28 U.S.C. section 1651(a). De Long v. Hennessy, 912 F.2d 1144, 1147 (9th Cir. 1990) (citing cases); Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007). Among the restrictions that may be imposed on a litigant found to be vexatious is a requirement that the litigant obtain the approval of a judge before being allowed to file an action. See Central District Local Rule 83-8.2 (providing for such an order); De Long, 912 F.2d at 1147; Molski, 500 F.3d at 1057 (recognizing district court's "inherent power to enter pre-filing orders against vexatious litigants").
A pre-filing order is "an extreme remedy that should rarely be used," however. Molski, 500 F.3d at 1057. Its entry must be preceded by (1) notice and an opportunity to be heard, (2) the compilation of an adequate record for review, and (3) substantive findings concerning the "frivolous or harassing nature" of the plaintiff's litigation. Id. The pre-filing order also "must be narrowly tailored to closely fit the specific vice encountered."Id. (quoting De Long, 912 F.2d at 1148). In other words, "Courts should not enter pre-filing orders with undue haste because such sanctions can tread on a litigant's due process right of access to the courts." Id.
Nevertheless, the Ninth Circuit has recognized that "[f]lagrant 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." De Long, 912 F.2d at 1148. As set forth below, the Court determines that Plaintiff Tate's vexatious and harassing litigation in both state and federal courts requires the entry of a pre-filing order against him.
Although the Court's May 2, 2008 Order required Plaintiffs Walker and Crawford to show cause why they should not be declared vexatious litigants, the Court finds an inadequate record concerning their litigation activities to support such a declaration at this time.
1. Notice and an opportunity to be heard
The Court's May 2, 2008 Order requiring Plaintiffs to show cause why they should not be declared vexatious litigants provided Tate with adequate notice and an opportunity to be heard in writing. See Pac. Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000) (holding that an opportunity to brief in writing the issue of sanctions to be imposed on an attorney "fully satisfies due process requirements"); Molski, 500 F.3d at 1058-59 (citing Pac. Harbor with approval). Tate filed an OSC Response, which the Court has reviewed.
2. Record for review
"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." De Long, 912 F.2d at 1147. Here, the record before the Court includes docket reports and some of the documents and orders filed in earlier litigation initiated by Tate against many of the same Defendants. The Court also takes judicial notice of orders issued in cases pending before the Central District. Fed.R.Evid. 201.
These documents were provided as exhibits to Defendants Rodriguez, Goldman, and Saltzman's "Request to Take Judicial Notice and Declaration of Peter M. Glick" ("Glick Decl."), filed on February 25, 2008. (Doc. no. 30.) The Court grants Defendants' request and takes judicial notice of the exhibits attached to Glick's declaration, which are all publicly available docket reports and court filings. Fed.R.Evid. 201. In addition to filing Glick's declaration electronically, Defendants provided a paper copy of the exhibits to the Court.
The record before the Court reflects the dismissal or abandonment of the following additional lawsuits brought by Tate that essentially challenge the validity of his state court conviction.
1) In Tate v. Nager, et al., Case No. BC188391, filed in Los Angeles Superior Court on March 27, 1998, plaintiffs Tate and Sneakers alleged claims for malicious prosecution and intentional infliction of emotional distress against defendants Dr. Nager and Children's Hospital Los Angeles. (Glick Decl. ¶ 3 Ex. A at 19-25, 46-48.) Tate claimed that Dr. Nager's false testimony resulted in Tate's wrongful conviction, that Dr. Nager did not examine N. on March 20, 1997, and that the false testimony caused Tate to lose his restaurant business. (Id. at 46-47.) The Superior Court sustained Defendants' demurrers, in part based on the immunity provided to health care practitioners who report child abuse by California Penal Code sections 11166 and 11172(a). (Id. at 65-66.) On March 2, 1999, the Superior Court entered a Judgment of Dismissal of Entire Action. (Id. at 222.)
2) On December 21, 1999, Tate filed a complaint in the Central District against the City of Los Angeles, Dr. Nager, Children's Hospital of Los Angeles, and several other defendants who are also named in the action before this Court, in Case No. 99-13343-AHM (MAN). (Glick Decl. ¶ 5 Ex. C (Docket report).) By Order dated January 12, 2000, the court dismissed Plaintiff's complaint with leave to amend, on the ground that Plaintiff's civil rights claims would necessarily imply the invalidity of his state criminal proceedings and therefore were barred under Heck v. Humphrey, 512 U.S. 477 (1994). (Doc. no. 7.) Pursuant to Tate's request, the action was dismissed under Rule 41(a)(2) on March 27, 2000. (Doc. no. 28.)
3) On January 20, 2000, Tate filed a complaint against Judge Perry and Dale Michael Rubin in the Central District, Case No. 00-678-AHM (MAN). (Glick Decl. ¶ 6.) The complaint alleged a "conspiracy" among the Defendants with respect to Plaintiff's criminal conviction and sentence. (Doc. no. 13.) By order dated April 7, 2000, the court dismissed Tate's claim against Judge Perry on the ground of judicial immunity and dismissed Tate's other claims under Heck. (Id.)
4) On May 16, 2000, Tate sued Keith Bowman, Marylou Hillberg, and the California Appellate Project in Los Angeles Superior Court, Case No. BC230173. (Glick Decl. ¶ 8.) Tate alleged legal malpractice and negligent infliction of emotional distress against the defendants, who represented him in his criminal trial and appeal. (Glick Decl. Ex. F 291-302.) The court sustained the demurrer of the California Appellate Project, which argued that a criminal defendant must show actual innocence to state a claim for legal malpractice. (Glick Decl. Ex. F 332, 359.) The Court entered Judgment in favor of the California Appellate Project and against Tate on November 27, 2000. (Id. 391.)
5) On November 11, 2001, Tate filed a Complaint in Los Angeles Superior Court against McDonald, Aval, and Rodriguez alleging claims for slander and intentional infliction of emotional distress, in Case No. BC260996. (Glick Decl. ¶ 14 Ex. L at 448-54.) Tate alleged that the defendants — who were the prosecutor in his criminal case and the defense attorneys representing his wife — told Tate's wife lies about Tate in order "to protect the illegal activity of Department of Children[']s Services, LAPD, [Judge] Robert J. Perry, and the Los Angeles District Attorney's Office." (Glick Decl. Ex. L 456.) The court dismissed the action for failure to file timely proofs of service. (Glick Decl. Ex. L 466.)
6) In May 2003, Tate again filed suit in Los Angeles Superior Court against Aval, McDonald, and Rodriguez, in Case No. BC295135. (Glick Decl. ¶ 16.) In September 2004, the Superior Court sustained a demurrer without leave to amend, and declared Tate to be a vexatious litigant. (Id.) In this case, Tate alleged the same claims for slander and intentional infliction of emotional distress he previously had alleged in Case No. BC260996.
7) Plaintiffs recently alleged a RICO claim against many of the same Defendants sued here in the California Superior Court for the County of Riverside, Sneakers, et al. v. Stanton, et al., Case No. RIC 396597. (Glick Decl. ¶ 15.) That court dismissed the action. (Glick Decl. ¶ 15 Ex. M 469 (Docket sheet showing entry of judgment on June 12, 2007).) In addition, the Superior Court found Tate to be a vexatious litigant within the meaning of the California Code of Civil Procedure, section 391 et seq., and ordered Tate to post $50,000 security to proceed with the lawsuit. (Glick Decl. Ex. M 513-14.) The Second Amended Complaint in that case, captioned "Racketeer Influenced and Corrupt Organization (RICO) Claims For Damages Currently Filed [¶] 18 U.S.C. § 1961 Et. Seq. [¶] Second Amended Complaint," named thirty-nine defendants; it also raised the same allegations asserted in this case concerning the concealment of evidence and a conspiracy to convict Tate. (Glick Decl. ¶ 15 Ex. M 958-1001.)
The preceding list of cases does not include the following matters, in which Tate attempted to file an action in the Central District but was unable to do so when his requests to proceed without paying the required filing fees were denied: (1) Tate v. Perry, et al., Case No. 00-678-AHM (MAN); (2) Tate v. L.A. County Dep't of Children, et al., Case No. 00-3435-UA; (3) Tate v. Davis, et al., Case No. 00-8829-UA (MAN); (4) Tate v. County of Los Angeles, et al., 01-7976-UA (VBK); (5) Tate v. California Appellate Project, et al., Case No. 04-500-UA (VBK); (6) Tate v. Perry, Case No. 04-503-UA (VKB); (7) Tate v. County of Los Angeles, et al., Case No. 04-1759-UA (VBK); (8) Tate v. California Appellate Project, et al., Case No. 04-2223-UA (VBK); and (9) Tate v. Board of Prison Terms, 05-3020-UA (VBK). (Glick Decl. 7, 12, 18-25.)
Tate also has pending in the Central District a case against the California Correctional Peace Officers Association, 06-4505-AHM (VBK). Magistrate Judge Victor B. Kenton issued a Report and Recommendation to dismiss Plaintiff's Complaint, for raising many of the same issues that already had been determined in state court proceedings. (Doc. no. 57.) A final order has not yet been issued.
3. Substantive Findings of Frivolousness
Before issuing a pre-filing injunction against a pro se plaintiff, a district court must make "substantive findings as to the frivolous or harassing nature of the litigant's actions." De Long, 912 F.2d at 1148 (citing In re Powell, 851 F.2d 427, 431 (D.C. Cir. 1988)). "An alternative to the finding of frivolousness is the finding that De Long's claims show a pattern of harassment." Id.
A district court must look at the number and content of a party's filings when examining the frivolousness of the claims asserted. Id. A showing of litigiousness alone is insufficient to support an injunction, however. "The plaintiff's claims must not only be numerous, but also be patently without merit." Molski, 500 F.3d at 1059 (quoting Moy v. U.S., 906 F.2d 467, 470 (9th Cir. 1990)). A district court also should "discern whether the filing of several similar types of actions constitutes an intent to harass the defendant or the court." Powell, 851 F.2d at 431. Under the Local Rules of the Central District, any pre-filing order must be "based on a finding that the litigant to whom the order is issued has abused the Court's process and is likely to continue such abuse, unless protective measures are taken." Local Rule 83-8.3.
Here, the Court finds Tate's numerous state and federal lawsuits to be frivolous, harassing, an abuse of the court's process, and to show a likelihood that he will continue to file such cases. Many of the defendants Tate repeatedly sues are persons who have been determined to be immune from suit. For example, Dr. Alan Nager, who testified for the prosecution at Tate's criminal trial and whom Tate has named as a defendant in numerous cases including this one, was determined to be immune from suit under a California statute protecting professionals who report child abuse. (Glick Decl. Ex. A at 65-66 (Order issued by Superior Court in 1999 finding Nager to be immune).) In addition, Tate's central allegation against Nager — that he did not, in fact, examine N.'s injuries in 1997 — was determined to be based on a misreading of Nager's trial testimony and the medical records by the judge addressing Tate's federal habeas claims in January 2002. (Tate v. Rice, No. 99-7750-AHM (MAN), Docket no. 65.)
Nevertheless, Tate has continued to assert claims against Nager based on his belief that Nager did not examine N. on March 20, 1997. Tate also continues to assert that Nager conspired with others to conceal the 1997 photographs of N. from Tate, despite rulings by state and federal courts to the contrary. The stream of litigation Tate has initiated against Nager, despite the legal and factual findings issued by state and federal courts in Nager's favor, can be described only as harassing. The claims Tate has asserted against Nager, despite those findings, also are frivolous. Furthermore, Tate's persistent abuse of the court's process by filing meritless claims against Nager suggests that he will continue such abuse in the absence of an injunction.
Tate also has filed numerous suits against justices of the California Court of Appeal, the California Superior Court judge who presided over his trial, and the prosecutor who tried the charges against him, despite the well-established doctrines of judicial and prosecutorial immunity. Although Tate claims he has alleged claims against these Defendants in their individual, rather than official, capacities, his theories of liability are highly implausible as a matter of fact. Many of Tate's complaints have alleged some form of conspiracy to offer perjured testimony and conceal evidence from him in order to obtain a conviction. The members of the alleged conspiracy may vary from one pleading to the next, but the conspiracy usually involves the concealment of the 1992 Florida photographs, Dr. Nager's testimony and the medical records he completed, and Tate's inability to obtain judicial review of his claims. The members of the conspiracy have been alleged to include both California and Florida law enforcement officers, social workers, the prosecutor from Tate's criminal case, the trial judge from his criminal case, Court of Appeal justices, his appellate counsel, and correctional officers. Tate's continued allegations that these varied persons engaged in a concerted effort to obtain his conviction not only are implausible, but also directly contrary to past findings of state and federal courts. The assertion of "baseless and exaggerated claims [that] exceed any legitimacy" may be a basis for determining that a litigant's cases are vexatious. Molski, 500 F.3d at 1061.
To the extent that Tate's claims are based on the dependency proceedings related to his children, federal courts do not have subject matter jurisdiction over matters pertaining to domestic relations. See, e.g., Rose v. Rose, 481 U.S. 619, 625 (1987) ("[T]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.") (internal quotation and citations omitted).
Finally, Tate's attempt to allege civil RICO conspiracy claims are barred by the statute of limitations. Civil RICO claims are subject to a four-year statute of limitations. Rotella v. Wood, 528 U.S. 549, 553 (2000). The limitations period begins to run "when a plaintiff knows or should know of the injury which is the basis for the action." Living Designs, Inc. v. E.I. Dupont de Nemours and Co., 431 F.3d 353, 365 (9th Cir. 2005). Despite Tate's claim that he discovered the matters asserted in the FAC in February 2008, (OSC Response at 7:15-16), that assertion is belied by the many claims Tate has made in earlier litigation. Tate has alleged since at least 2001 that a conspiracy among some subset of the Defendants he has sued in this action caused him injury. (See Habeas Order 45-46 (noting Tate's claim of conspiracy made in connection with his federal habeas petition).) He also has alleged consistently since that time that various authorities have concealed evidence concerning his case from him. Tate's attempt to recover under a RICO theory therefore is clearly barred by the statute of limitations.
The Court therefore finds to be frivolous the claims that Tate continues to raise related to, or previously raised in, the following actions:
• Tate v. Rice, Case No. 99-7750-AHM (MAN) (C.D. Cal.);
• Tate v. City of Los Angeles, et al., Case No. 99-13343-AHM (MAN) (C.D. Cal.);
• Tate v. Perry, et al., Case No. 00-678-AHM (MAN) (C.D. Cal.);
• Tate v. Nager et al., Case No. BC188391 (Los Angeles Super. Ct.);
• Tate v. Bowman, et al., Case No. BC230173 (Los Angeles Super. Ct.);
• Tate v. McDonald, et al., Case No. BC260996 (Los Angeles Super. Ct.);
• Tate v. Aval, et al., Case No. BC295135 (Los Angeles Super. Ct.); and
• Sneakers, et al. v. Stanton, et al., Case No. RIC 396597.
Those issues include, but are not limited to: (1) Dr. Nager's purportedly perjured testimony and the medical records he completed; (2) the actions of the trial judge and appellate justices in Tate's state criminal proceedings; (3) the actions of Tate's appellate counsel, his counsel at his resentencing, or counsel for his wife; (4) his inability to obtain photographs taken of N. in 1992 in Florida from either Florida or Los Angeles authorities; and (5) the custody of his children following his arrest and conviction. Based on the complaints Tate has filed to date predicated on these topics, the Court finds it likely Tate will continue to raise claims to redress these perceived wrongs and that protective measures must be taken. Local Rule 83-8.3.
4. Pre-Filing Order
A pre-filing order "must be narrowly tailored to the vexatious litigant's wrongful behavior." Molski, 500 F.3d at 1061. The Ninth Circuit has found an order preventing a litigant from filing any suit in a particular district court to be overbroad.De Long, 912 F.2d at 1148. On the other hand, an order preventing a party from filing actions under Title III of the Americans with Disabilities Act was found to be appropriate, because it "cover[ed] only the type of claims the [litigant] had been filing vexatiously." Molski, 500 F.3d at 1061. In addition, the pre-filing order upheld in Molski did not provide for a blanket prohibition on the filing of ADA actions. Instead, it required the plaintiff to submit a proposed complaint to a district judge for initial screening, before it could be approved for filing. Id.
Here, the Court finds it appropriate to require Tate to submit for screening any pleading he proposes to file to initiate a new action, where the pleading asserts claims based on the following perceived wrongs: (1) Tate's state conviction and sentence; (2) Dr. Nager's purportedly perjured testimony at Tate's criminal trial; (3) the actions of the trial judge and appellate justices in Tate's state criminal proceedings; (4) the actions of Tate's appellate counsel, his counsel at his resentencing, counsel for his wife, or counsel in dependency proceedings concerning his children; (5) his inability to obtain photographs taken of N. in 1992 in Florida from either Florida or Los Angeles authorities; (6) the custody of his children following his arrest and conviction; and (7) any other issue or claim related to any of the claims or issues raised in the following actions:
• Tate v. Rice, Case No. 99-7750-AHM (MAN) (C.D. Cal.);
• Tate v. City of Los Angeles, et al., Case No. 99-13343-AHM (MAN) (C.D. Cal.);
• Tate v. Perry, et al., Case No. 00-678-AHM (MAN) (C.D. Cal.);
• Tate v. Nager et al., Case No. BC188391 (Los Angeles Super. Ct.);
• Tate v. Bowman, et al., Case No. BC230173 (Los Angeles Super. Ct.);
• Tate v. McDonald, et al., Case No. BC260996 (Los Angeles Super. Ct.);
• Tate v. Aval, et al., Case No. BC295135 (Los Angeles Super. Ct.); and
• Sneakers, et al. v. Stanton, et al., Case No. RIC 396597.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part Plaintiffs' Motion for Relief from Judgment, and grants Plaintiff Tate relief from the Court's May 2, 2008 Order of dismissal. Nevertheless, the Court DISMISSES the First Amended Complaint for lack of subject matter jurisdiction, without leave to amend.In addition, the Court finds and declares Clarence Demetrius Tate to be a vexatious litigant and orders that any pleading he attempts to file be screened before he is allowed to initiate an action, as set forth above.