Raymond Bradford v. M. Brooks ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 31 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RAYMOND ALFORD BRADFORD, No. 15-16151
Plaintiff-Appellant, D.C. No.
1:11-cv-00990-AWI-SKO
v.
M. BROOKS, Dietician; YU, Doctor; MEMORANDUM*
PEPPERCORN, Dr.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted August 29, 2016**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS, and McKEOWN, Circuit Judges.
Raymond Bradford, a California state prisoner, appeals pro se the district
court’s judgment dismissing his action for failure to comply with a court order and
from the district court’s order to provide security. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291. We review for an abuse of discretion. Pagtalunan v. Galaza, 291
F.3d 639, 640 (9th Cir. 2002) (dismissal for failure to comply with a court order);
Simulnet E. Assocs. v. Ramada Hotel Operating Co., 37 F.3d 573, 574 (9th Cir.
1994) (order requiring security for fees and costs). We affirm.1
The district court did not abuse its discretion by requiring Bradford to post a
security after declaring him a vexatious litigant and finding that he did not have a
reasonable probability of prevailing on the merits. Under Local Rule 151(b) of the
Eastern District of California, the court may order a party to give security in
accordance with the California Code of Civil Procedure’s provisions relating to
vexatious litigants. See Wolfe v. George, 486 F.3d 1120, 1125 (9th Cir. 2007)
(upholding as constitutional California’s prefiling requirements on vexatious
appellate litigants)2; Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th
Cir. 1976) (“Rule 83 of the Federal Rules of Civil Procedure allows the district
1
We decline to take judicial notice of pages 7-8, 18-42 and 45-48 of
Bradford’s December 21, 2015 motion for judicial notice. We grant Bradford’s
request as to pages 9-17 and 43-44. We deny Bradford’s January 19, 2016 motion
to file a supplemental brief. We also deny Bradford’s December 28, 2015 motion
for appointment of counsel.
2
Given Wolfe and California’s long line of cases upholding California’s
vexatious litigant requirements as constitutional, Wolfe, 486 F.3d at 1125, we reject
Bradford’s contention that because he was permitted to proceed in forma pauperis,
Bradford v. Vella-Lopez, 486 F. App’x 643 (9th Cir. 2012), it would be
unconstitutional to require him to post security.
2
court to formulate local rules to the extent they are not inconsistent with the federal
rules.”).
The district court properly concluded that Bradford is a vexatious litigant. A
litigant is vexatious where previously “declared to be a vexatious litigant by any
state or federal court of record in any action or proceeding based upon the same or
substantially similar facts, transaction, or occurrence.” Cal. Civ. Proc. Code
§ 391(b)(4). Bradford was declared a vexatious litigant in Bradford v. Klarich,
Superior Court of California, County of Kings Case No. 05C0349, a case in which
Bradford sued medical staff at CSP-Corcoran for “the same or substantially
similar” allegations of deliberate indifference to his medical needs.
The district court also properly concluded that there is no reasonable
probability that Bradford will prevail on his claims. To prevail in his medical
indifference claims, Bradford “must show that the course of treatment the doctors
chose was medically unacceptable under the circumstances and . . . show that they
chose this course in conscious disregard of an excessive risk to [his] health.”
Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).
Bradford’s claims amount to no more than mere disagreement with the
professional opinions of Brooks and Yu regarding his medical needs, and he
3
therefore does not have a reasonable probability of prevailing on the merits of his
litigation.
Because Bradford failed to comply with the district court’s order to post
security, the court did not abuse its discretion when it dismissed his action. See
Pagtalunan, 291 F.3d at 642 (discussing the factors for determining whether to
dismiss for failure to comply with a court order); cf. Simulnet, 37 F.3d at 576(discussing factors district courts should balance before imposing a security
bond).3
AFFIRMED.
3
Dr. Robert Peppercorn was a named defendant in Bradford’s second
amended complaint and the district court granted summary judgment in his favor.
Bradford does not appeal that ruling; instead, the only issue he raised on appeal
relates to the posting of security and his vexatious litigant status. His passing
reference without argument in his reply brief does not fix the problem. Therefore,
he abandoned any issue vis-à-vis Dr. Peppercorn. See United States v. Kama, 394
F.3d 1236, 1238 (9th Cir. 2005) (“Generally, an issue is waived when the appellant
does not specifically and distinctly argue the issue in his or her opening brief.”).
4