(PS) Dmitriy v. Bella ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EGOROV DMITRIY, No. 2:20-cv-10-TLN-KJN PS 12 Plaintiff, ORDER TO SHOW CAUSE WHY PLAINTIFF SHOULD NOT BE 13 v. DECLARED A VEXATIOUS LITIGANT 14 KUCHUR BELLA, 15 Defendant. 16 17 Plaintiff Egorov Dmitriy, proceeding without counsel, commenced this action and 18 requested leave to proceed in forma pauperis. (ECF Nos. 1, 2.) 19 After a review of the Court’s records, the undersigned finds Plaintiff to be a repeat, serial 20 litigant whose actions have made it clear that he will only continue to abuse the judicial process 21 and inundate this court with frivolous complaints that do nothing but strain the court’s limited 22 resources. Therefore, Mr. Dmitriy is ordered to show cause why he should not be declared a 23 vexatious litigant. This designation may be accompanied by a pre–filing order restricting his 24 ability to file new cases, requiring that he post security in order to maintain cases, or a limiting of 25 the number of motions he may maintain in a single case. 26 Plaintiff may respond to this order by filing a written response before February 27, 2020. 27 Additionally, Plaintiff is ordered to appear at a hearing on Thursday, March 12, 2020, at 10:00 28 A.M., in Courtroom 25 regarding this matter. 1 Background 2 On August 28, 2019, Mr. Dmitriy filed this action against Kuchur Bella under 18 U.S.C. 3 § 241 of the criminal code. (ECF No. 1.) The complaint is largely unintelligible, but appears to 4 seek damages against Kuchar regarding Dmitriy’s mother’s housing. The Complaint also 5 references another case of Mr. Dmitriy’s in which Magistrate Judge Claire allegedly “refuse to 6 pay relocation money assistance to mother petitioner in order continue neurological damage in 7 USA . . . .” The Complaint appears to seek $50,000 in damages from either Kuchar or the Slavic 8 Community Center (a possible third party), as well as 999 trillion dollars from the Court. 9 Pursuant to 28 U.S.C. § 1915, the Court screened Plaintiff’s complaint. A review of the 10 Court’s docket reveals that since 2014, Mr. Dmitriy has filed 33 cases in this district wherein he 11 proceeds pro se and requests a waiver of the filing fees.1 As shown in more detail below, none of 12 Dmitriy’s cases has progressed past the Court’s screening process, and a majority of these actions 13 have been dismissed as frivolous, vague, unintelligible, fanciful, or delusional. 14 Legal Standard 15 District courts have power under the All Writs Act, 28 U.S.C. § 1651(a), to issue pre- 16 filing orders that restrict a litigant’s ability to initiate court proceedings. De Long v. Hennessey, 17 912 F.2d 1144, 1146 (9th Cir. 1990). “[S]uch pre-filing orders are an extreme remedy that should 18 rarely be used.” Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007). 19 However, “[f]lagrant abuse of the judicial process cannot be tolerated because it enables one 20 person to preempt the use of judicial time that properly could be used to consider the meritorious 21 claims of other litigants.” De Long, 912 F.2d at 1148. Before entering a pre-filing order, the 22 court is to: (I) give the litigant notice and a chance to be heard before the order is entered; (II) 23 compile an adequate record for review; (III) make substantive findings about the frivolous or 24 harassing nature of the plaintiff’s litigation, and (IV) narrowly tailor the vexatious litigant order 25 “to closely fit the specific vice encountered. Molski, 500 F.3d at 1057. The first and second 26 factors “are procedural considerations”; the third and fourth factors “are substantive 27 1 The Court is aware that at times Plaintiff files his complaints under the name “Dmitriy 28 Yegorov.” Accordingly, it takes judicial notice of the cases under the name “Yegorov.” 1 considerations” that help the district court “define who is, in fact, a ‘vexatious litigant’ and 2 construct a remedy that will stop the litigant’s abusive behavior without unduly infringing the 3 litigant’s right to access the courts.” Id. at 1057-58. As to the substantive factors, the Ninth 4 Circuit has found a separate set of considerations (employed by the Second Circuit Court of 5 Appeals) provide a helpful framework. Ringgold-Lockhart v. County of Los Angeles, 761 F.3d 6 1057, 1062 (9th Cir. 2014) (citing Molski, 500 F.3d at 1058). They are: 7 (1) the litigant’s history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; 8 (2) the litigant’s motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; 9 (3) whether the litigant is represented by counsel; 10 (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and 11 (5) whether other sanctions would be adequate to protect the courts and other parties. 12 13 Molski, 500 F.3d at 1052 (quoting Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)). 14 Additionally, the Eastern District has adopted California’s “vexatious litigant” laws. See 15 Local Rule 151(b) (adopting Cal. Civ. Proc. Code §§ 391–391.8). These laws were “designed to 16 curb misuse of the court system by those persistent and obsessive litigants who repeatedly 17 litigate[] the same issues through groundless actions, waste the time and resources of the court 18 system and other litigants.” Shalant v. Girardi, 51 Cal. 4th 1164, 1169 (2011). The vexatious– 19 litigant statute “provide[s] courts and nonvexatious litigants with two distinct and complementary 20 sets of remedies.” Id. at 1171. First, a plaintiff may be required to furnish security, meaning a 21 requirement for the litigant to “assure payment . . . of the party’s reasonable expenses, including 22 attorney’s fees . . . incurred in or in connection with a litigation instituted . . . by a vexatious 23 litigant.” Cal. Civ. Proc. Code § 391. If the plaintiff fails to furnish the security, the action will 24 be dismissed. Id. Second, the court may impose a prefiling order that prevents a plaintiff from 25 filing any new case in propria persona. Id. (citing Cal. Civ. Proc. Code § 391.7). 26 Analysis 27 Mr. Dmitriy’s litigation history demonstrates a pattern of frivolous and harassing 28 complaints that calls for him to be deemed a vexatious litigant. De Long, 912 F.2d at 1146. 1 a. Notice and Opportunity to Be Heard 2 Procedural due process is satisfied where the court notifies the litigant it is considering a 3 vexatious litigant order, provides details about the scope of the proceedings, and allows for the 4 litigant to respond to the court’s concerns. Ringgold-Lockhart, 761 F.3d at 1063. 5 By issuing this order to show cause, the Court is notifying Mr. Dmitriy it is considering 6 deeming him a vexatious litigant, and is considering entering a comprehensive pre–filing order 7 for him. The scope of the potential pre–filing order is described in Section D below. Given that 8 the bulk of this Court’s recent service in Mr. Dmitriy’s other cases was returned as undeliverable, 9 the undersigned not only orders the Clerk of this Court to serve this order on the address listed in 10 Mr. Dmitriy’s complaint, but also to have the order served on Mr. Dmitriy at the public counter. 11 The Court grants Mr. Dmitriy leave to file written opposition to this order stating his 12 arguments for why he should not be declared a vexatious litigant. This filing should be submitted 13 to the Court no later than February 27, 2020. Further, the Court orders Mr. Dmitriy to appear at a 14 hearing on this matter, set for Thursday, March 12, 2020, at 10:00 A.M., in Courtroom 25. 15 b. Adequate Record for Review 16 “An adequate record for review should include a listing of all the cases and motions that 17 led the district court to conclude that a vexatious litigant order was needed.” De Long, 912 F.2d 18 at 1147. A district court compiles a proper record for review where a complete list of the cases 19 filed by the litigant, alongside those complaints, accompanies the vexatious litigant order. 20 Ringgold-Lockhart, 761 F.3d at 1063. Here, Mr. Dmitriy has filed at least 33 actions in this 21 Court since 2014––almost half of which were filed in the past two years.2 22 2 See Yegorov v. Bel Air Company, 2:14-cv-01852-MCE-CKD (PS); Yegorov v. Counsulate of 23 Ukraine in San Francisco, 2:14-cv-01886-KJM-EFB (PS); Yegorov v. McBrien, 2:14-cv-02106- JAM-CKD (PS); Yegorov v. Roman, 2:14-cv-02119-GEB-AC (PS); Yegorov v. Buchkovskaya, 24 2:14-cv-02185-KJM-DAD (PS); Yegorov v. United States of America, 2:14-cv-03003-TLN-AC (PS); Yegorov v. Zigaylo, 2:15-cv-00664-TLN-EFB (PS); Yegorov v. Kramer, 2:15-cv-01042- 25 TLN-GGH (PS); Yegorov v. Walmart, 2:15-cv-01065-GEB-AC (PS); Yegorov v. Goodwill Industries, 2:15-cv-01066-KJM-AC (PS); Yegorov v. Ray, 2:15-cv-01279-KJM-CKD (PS); 26 Yegorov v. Carmichael Adventist Church, 2:15-cv-01543-TLN-CKD (PS); Yegorov v. President 27 Seventh-Day Adventist Church, 2:15-cv-01692-MCE-AC (PS); Yegorov v. Secret Service, 2:15- cv-01693-JAM-CKD (PS); Yegorov v. Owens et al, 2:16-cv-02576-JAM-DB (PS); Yegorov v. 28 Government USA, 2:17-cv-01109-MCE-CKD (PS); Yegorov v. Government USA, 2:17-cv- 1 c. The Frivolous or Harassing Nature of Dmitriy’s Litigation 2 “[B]efore a district court issues a pre-filing injunction . . . it is incumbent on the court to 3 make substantive findings as to the frivolous or harassing nature of the litigant's actions.” De 4 Long, 912 F.2d at 1148. The Ninth Circuit has adopted the Second Circuit’s framework on this 5 prong, which requires the court to consider the litigants history, motives, representation by 6 counsel, as well as the expense to others or burdens on the court and the possibility of other 7 sanctions. Ringgold-Lockhart, 761 F.3d at 1062; Molski, 500 F.3d at 1058 (quoting Safir v. U.S. 8 Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)). As described below, the weight of these 9 considerations supports a substantive finding that Mr. Dmitriy has engaged in frivolous and 10 harassing behavior by filing the lawsuits listed in footnote 2, such that the third De Long factor 11 favors instituting a pre–filing order. 12 i. Dmitriy’s history of vexatious, harassing lawsuits. 13 Mr. Dmitriy has filed at least 33 actions in this court since 2014, nearly half of which have 14 come in the past two years alone. Courts in this district have screened each of these complaints, 15 as Mr. Dmitriy has submitted a motion to proceed in forma pauperis in every case he has filed. 16 See 28 U.S.C. § 1915(e)(2) (“[T]he court shall dismiss the case at any time if the court determines 17 that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may 18 be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”). 19 So far, every single complaint that has been processed has been dismissed at screening––many 20 because he asserts “frivolous” claims. 21 /// 22 23 01110-MCE-GGH (PS); Yegorov v. Government USA, 2:17-cv-01111-JAM-GGH (PS); Yegorov v. Dzyba, 2:19-cv-01110-MCE-AC (PS); Yegorov v. Baker 2:19-cv-02337-MCE-EFB 24 (PS); Yegorov v. Daniil, 2:18-cv-00601-MCE-GGH (PS); Yegorov v. Sutter Hospital, 2:18-cv- 00609-TLN-AC (PS); Yegorov v. Hutchenson, 2:18-cv-01095-TLN-DB (PS); Yegorov v. 25 Interpol US, 2:18-cv-01558-KJM-CKD(PS); Yegorov v. Japan, 2:18-cv-01731-KJM-CKD (PS); Yegorov v. Switzerland, 2:18-cv-01733-KJM-DB (PS); Yegorov v. Spain, 2:18-cv-01732-KJM- 26 EFB (PS); Yegorov v. Great Britain, 2:18-cv-02840-TLN-EFB (PS); Yegorov et al v. Welby, 27 2:19-cv-00720-KJM-CKD (PS); Yegorov v. Becerra, 2:19-cv-01685-MCE-AC (PS); Dmitriy v. Vladislava 2:20-cv-00009-JAM-AC (PS); Dmitriy v. Bella, 2:20-cv-00010-TLN-KJN (PS); 28 Dmitriy v. Yuriy, 2:20-cv-00011-JAM-AC (PS). 1 In the vast majority of his actions where the complaint was intelligible, Mr. Dmitriy has 2 asserted claims under 18 U.S.C. (the criminal code), which cannot be maintained by private 3 citizens. See Allen v. Gold Country Cascino, 464 F.3d 1044, 1048 (9th Cir. 2006) (no private 4 right of action for violation of criminal statutes). In many of the screening orders dismissing his 5 case, courts in this district have told Mr. Dmitriy as much.3 Despite this explanation, he 6 continues to file cases asserting claims under 18 U.S.C.—including this case. Many of these 7 cases were determined to be too incoherent to state a cause of action at all, and were dismissed at 8 screening.4 9 In many of Mr. Dmitriy’s actions, the court explicitly dismissed the complaint as 10 “frivolous” or gave Mr. Dmitriy leave to file an amended complaint because the complaint was 11 too incoherent to even determine frivolity, which the undersigned construes as ultimately 12 frivolous in nature.5 In a majority of Mr. Dmitriy ’s actions, he requests damages somewhere 13 between 9 and 999 trillion dollars. See Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1035 (9th 14 Cir. 1985) (“Under the substantiality doctrine, the district court lacks subject matter jurisdiction 15 when the question presented is too insubstantial to consider.”); see also Apple v. Glenn, 183 F.3d 16 477, 479 (6th Cir. 1999) (“a district court may, at any time, sua sponte dismiss a complaint for 17 lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil 18 Procedure when the allegations of a complaint are totally implausible, attenuated, unsubstantial, 19 frivolous, devoid of merit, or no longer open to discussion.”). 20 3 See, e.g., Yegorov v. Hutchenson , 2:18-cv-01095-TLN-DB (PS), ECF No. 3 at 3 (“These 21 criminal provisions, however, provide no basis for civil liability.”); Yegorov v. Great Britain, 2:18- cv-02840-TLN-EFB (PS), ECF No. 3 at 2 (“Plaintiff, however, cannot state a claim for violation 22 of 18 U.S.C. § 241, a criminal statute that does not provide a private right of action.”). 23 4 See Yegorov v. Roman, 2:14-cv-02119-GEB-AC (PS); Yegorov v. Walmart, 2:15-cv-01065- 24 GEB-AC (PS), ECF No. 3 at 2 (“Plaintiff’s complaint contains sentences that are largely incomplete and/or incoherent, making it impossible to discern any basis for the court’s subject 25 matter jurisdiction.”) 26 5 See, e.g., Yegorov v. Switzerland, 2:18-cv-01733-KJM-DB (PS), ECF No. 3 at 3 (“not only 27 does the complaint fail to state a claim, but the complaint’s allegations are also delusional and frivolous.”); Yegorov v. Hutchenson , 2:18-cv-01095-TLN-DB (PS)(dismissed for, amongst other 28 reasons, frivolity). 1 Finally, the undersigned notes that in multiple of Mr. Dmitriy’s actions, although courts 2 granted his leave to amend, he failed to do so.6 See Chambers v. NASCO, Inc., 501 U.S. 32, 44 3 (1991) (recognizing that a court “may act sua sponte to dismiss a suit for failure to prosecute”); 4 Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) 5 (recognizing that courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) 6 sua sponte for a plaintiff’s failure to prosecute or comply with the rules of civil procedure or the 7 court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 8 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 9 any order of the court.”). 10 Thus, the above record supports a substantive vexatious finding, given Mr. Dmitriy’s 11 history of frivolous and harassing litigation. Molski, 500 F.3d at 1059 (“Frivolous litigation is 12 not limited to cases in which a legal claim is entirely without merit. It is also frivolous for a 13 claimant who has some measure of a legitimate claim to make false factual assertions.”). 14 ii. Mr. Dmitriy’s lack of objective good faith expectation of prevailing. 15 Courts in this district have screened 33 of Mr. Dmitriy’s complaints since 2014. Therein, 16 Mr. Dmitriy has been informed in an overwhelming majority of these cases of the following: 17 a. He cannot raise claims under the federal criminal code (18 U.S.C.); 18 b. To maintain claims in federal court, he must follow the Federal Rules of Civil Procedure, including Rule 8(a)’s requirement to lodge a “short and plain 19 statement” of his claim, with factual allegations connecting the particular defendants with the causes of action he intends to assert; and 20 c. Federal courts do not have subject matter jurisdiction over frivolous, fanciful, 21 or delusional claims. Despite these warnings and guidance, as well as these courts’ liberal granting of leave to amend, 22 Mr. Dmitriy continues to file baseless, fanciful, delusional, and frivolous claims. Thus, the 23 undersigned sees no possible way a litigant in Mr. Dmitriy’s position could maintain a good– 24 faith expectation of prevailing in his actions.7 See Endsley v. California, 2014 WL 5335857 25 26 6 See, e.g., Yegorov v. Owens et al., 2:16-cv-02576-JAM-DB (PS); Yegorov v. Government 27 USA, 2:17-cv-01109-MCE-CKD (PS). 28 7 The undersigned also intends to ask Mr. Dmitriy of his motives in filing so many baseless cases. 1 (C.D. Cal. Oct. 16, 2014) (aff'd in part, Endsley v. California, 627 Fed App'x 644 (9th Cir. 2 2015)) (civil detainee declared a vexatious litigant after bringing numerous cases alleging the 3 same constitutional “violations;” the court found Plaintiff could not have had an “objective good 4 faith expectation of prevailing” on claims he had already been told were not cognizable). Thus, 5 this factor supports a substantive finding about the frivolous or harassing nature of Mr. Dmitriy’s 6 litigation tactics, favoring a finding that he be declared a vexatious litigant. 7 iii. Mr. Dmitriy’s lack of counsel. 8 In every one of the actions Mr. Dmitriy filed since 2014, he has proceeded pro se and 9 requests the court waive fees due to his poverty. Though courts are generally protective of pro se 10 litigants, the undersigned finds this factor cannot outweigh Mr. Dmitriy’s abusive litigation 11 tactics––especially since courts in this district have, for over five years, liberally construed his 12 complaints, granted him leave to amend, and provided him with guidance on the standards for 13 bringing cases in federal court––guidance he has failed to heed. 14 iv. Mr. Dmitriy has posed an unnecessary burden on the courts 15 and their personnel. 16 Of Mr. Dmitriy’s 33 complaints filed in this court since 2014, roughly half have come in 17 the past two years alone. Mr. Dmitriy’s abusive tactics have imposed an unnecessary burden on 18 the personnel of this court. Employees in the Clerk’s office continually scan and file his frivolous 19 complaints and motions, which judges in this court must review (and given his history, dismiss); 20 the Clerk’s office must then mail out these orders. In a majority of those instances, the mail is 21 returned as undeliverable, requiring the court to track him down, notify him of his duty to keep 22 his address current, and send more notices to defunct addresses. 23 Thus, unless the court halts Mr. Dmitriy’s actions, his abusive tactics will continue to pose 24 an unnecessary burden on the court and its personnel. See Spain v. EMC Mortg. Co., 2010 WL 25 3940987, at *12 (D. Ariz. Sept. 27, 2010), aff'd sub nom. Spain v. EMC Mortg. Corp., 487 F. 26 App'x 411 (9th Cir. 2012) (finding unnecessary burden where the litigant persistently filed 27 motions and other submissions that were baseless, causing unnecessary expense to the parties and 28 1 needless burden on the courts). 2 v. The inadequacy of lesser sanctions 3 Under 28 U.S.C. § 1915(e)(2), courts in this district have screened Mr. Dmitriy’s 4 complaints for frivolous claims, claims that fail under Rule 8, and claims asserted against immune 5 defendants. In many of those instances, the court has instructed Mr. Dmitriy on how to amend to 6 state a claim and granted his leave to amend.8 However, Mr. Dmitriy has not once successfully 7 filed an amended complaint. Given Mr. Dmitriy’s consistent use of the in forma pauperis motion, 8 it is unlikely monetary sanctions would be an effective deterrent to his abusive filing behavior. 9 Thus, the undersigned has concluded that the only way to end Mr. Dmitriy’s abusive and 10 frivolous litigation is to institute a restrictive pre–filing order. See Warren v. Guelker, 29 F.3d 11 1386, 1390 (9th Cir. 1994) (“[W]hen there is . . . conduct in the course of litigation that could be 12 adequately sanctioned under the Rules, the court ordinarily should [take this course].”); but see 13 Spain, 2010 WL 3940987, at *12 (“Especially because plaintiff has not heeded any of this court's 14 prior warnings regarding the manner in which he has conducted this litigation, the need for a 15 carefully circumscribed pre-filing order is readily apparent.”). 16 d. Narrowly Tailored Vexatious Litigant Order 17 The Ninth Circuit has approved vexatious litigant orders because they prevent a plaintiff 18 from filing “only the type of claims [he] had been filing vexatiously,” and “because it will not 19 deny [him] access to courts on any . . . claim that is not frivolous.” Molski, 500 F.3d at 1061. 20 Under the contemplated pre-filing order, Mr. Dmitriy will not be permitted to initiate any 21 new actions unless he submits alongside his complaint (a) a declaration under penalty of perjury 22 explaining why he believes he has meritorious claims, and (b) a declaration listing all previous 23 actions he has filed in this court or any other court, identifying named defendants and all claims 24 made in the previous actions, certifying in each case that the defendants have not been sued 25 before or that any claims against previous defendants are not related to previous actions, stating 26 that the current claims are not frivolous or made in bad faith, and declaring that he has conducted 27 8 See, e.g., Yegorov v. Counsulate of Ukraine in San Francisco, 2:14-cv-01886-KJM-EFB (PS); 28 Yegorov v. United States of America, 2:14-cv-03003-TLN-AC (PS). 1 | areasonable investigation of the facts—an investigation which supports his claims. The Court is 2 | also contemplating requiring Mr. Dmitriy to submit security before service of process, barring his 3 | ability to file cases in propria persona, barring his use of the in forma pauperis motion, or limiting 4 | the number of other motions he may file pursuant to Local Rule 151(b) and Cal. Civ. Proc. Code 5 }| § 391. 6 ORDER 7 Accordingly: 8 1. Plaintiff is hereby ORDERED to show cause why he should not be declared a 9 vexatious litigant under the Court’s inherent powers or under California law; 10 2. Plaintiff is notified that under a vexatious litigant designation, a pre—filing order 11 may be imposed, which may: 12 a. restrict the filing of new cases via a pre—filing order; 13 b. require security be posted to maintain cases; or 14 c. limit the number of motions plaintiff may maintain in a single case, 15 including a limitation on his use of the in propria persona motion; 16 3. Plaintiff may submit a written response to this order on or before February 27, 17 2020, at 4:00 P.M.; 18 4. Plaintiff is further ORDERED TO APPEAR at a hearing on this matter on 19 Thursday, March 12, 2020, at 10:00 A.M., in Courtroom 25; and 20 5. The Clerk of the Court is directed to serve this Order on Mr. Dmitriy at the address 21 listed on his Complaint in this action, and is further directed to serve him at the 22 public counter when he next appears. 23 | Dated: January 9, 2020 24 Fens Arn 25 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 26 dmit.10 27 28 10