(PC) Hammler v. Gooch ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ALLEN HAMMLER, Case No. 1:19-cv-00653-EPG (PC) 10 Plaintiff, ORDER FOR PLAINTIFF TO SHOW 11 CAUSE WHY SANCTIONS UP TO AND v. INCLUDING DISMISSAL OF THIS 12 LAWSUIT SHOULD NOT ISSUE FOR GOOCH, et al., FALSE STATEMENTS IN COMPLAINT 13 Defendants. THIRTY-DAY DEADLINE 14 15 Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 16 in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint 17 commencing this action on May 14, 2019. (ECF No. 1). On October 17, 2019, the Court issued 18 a Screening Order and granted Plaintiff leave to amend. (ECF No. 9). On November 7, 2019, 19 Plaintiff filed a First Amended Complaint (“FAC”). (ECF No. 10). 20 In Plaintiff’s original and First Amended Complaint, Plaintiff made representations 21 under penalty of perjury about the number of previous or pending lawsuits he has brought 22 while a prisoner. It appears from publicly available information that these representations were 23 false. 24 Accordingly, the Court orders Plaintiff to submit a statement within 30 days why 25 Plaintiff should not be sanctioned. In the alternative, Plaintiff may voluntarily withdraw this 26 lawsuit, without prejudice. 27 \\\ 28 \\\ 1 I. REPRESENTATIONS IN PLAINTIFF’S VERIFIED COMPLAINTS 2 Plaintiff’s complaints use the form Civil Rights Complaint for this district. That form 3 complaint asks information about Plaintiff’s previous or pending lawsuits. It specifically asks 4 whether Plaintiff has “brought any other lawsuits while a prisoner” and “how many.” It also 5 asks Plaintiff to list all other previous or pending lawsuits on an additional page. 6 In Plaintiff’s original complaint, filed on May 14, 2019, Plaintiff has inserted “13” to 7 the question of how many other lawsuits he has brought while a prisoner. (ECF No. 1). In 8 Plaintiff’s first amended complaint, filed on November 7, 2019, Plaintiff similarly indicates 9 that he has brought 13 other lawsuits while a prisoner. (ECF No. 10). Plaintiff fails to list any 10 other lawsuits, instead writing “no party herein has been party to any res judicada [sic] is no 11 issue.” (ECF No. 1, at p. 1). 12 Plaintiff’s complaints were filed under penalty of perjury. The form complaint requires 13 a declaration at the end of the form stating “I declare under penalty of perjury that the 14 foregoing is true and correct.” (ECF No. 1, at p. 16; ECF No. 10, at p. 17). Plaintiff signed and 15 dated the form following this declaration. Additionally, in both complaints, Plaintiff included 16 his own verification stating: “I have read the foregoing complaint and hereby verify that the 17 matters alleged therein are true, except for those alleged on information and belief, and as to 18 those I believe them to be true. I certify swear under penalty of perjury that the foregoing is 19 true and correct.” (ECF No. 1, at p. 16; ECF No. 10, at p. 17). 20 II. INFORMATION REGARDING PAST AND PENDING LAWSUITS 21 FROM PUBLIC RECORD 22 Based on publicly available records, it appears that Plaintiff’s representations regarding 23 his past and pending lawsuits are false. 24 The Court located and takes judicial notice of the following 34 federal cases Plaintiff 25 brought before commencing this action: 1. Hammler v. Montanez, Case No. 1:14-cv-00383 (E.D. Cal.), filed March 17, 2014 26 2. Hammler v. Davis, Case No. 2:14-cv-02073 (E.D. Cal.), filed September 8, 2014 27 3. Hammler v. Wright, Case No. 2:15-cv-01645 (E.D. Cal.), filed August 3, 2015 4. Hammler v. Macomber, Case No. 2:15-cv-01913 (E.D. Cal.), filed September 10, 2015 28 5. Hammler v. Haas, Case No. 2:15-cv-02266 (E.D. Cal.), filed November 2, 2015 6. Hammler v. Pita, Case No. 2:16-cv-01684 (C.D. Cal.), filed March 11, 2016 1 7. Hammler v. Hudson, Case No. 2:16-cv-01153 (E.D. Cal.), filed May 27, 2016 2 8. Hammler v. Pita, Case No. 2:16-cv-05754 (C.D. Cal.), filed August 2, 2016 9. Hammler v. Kirkland, Case No. 2:16-cv-01944 (E.D. Cal.), filed August 17, 2016 3 10. Hammler v. Director of CDCR, Case No. 1:17-cv-00097 (N.D. Cal.), filed January 9, 2017 4 11. Hammler v. Aviles, Case No. 3:17-cv-01185 (S.D. Cal.), filed June 12, 2017 5 12. Hammler v. Alvarez, Case No. 3:17-cv-01533 (S.D. Cal.), filed July 27, 2017 13. Hammler v. Director of CDCR, Case No. 2:17-cv-01949 (E.D. Cal.), filed September 6 20, 2017 14. Hammler v. Hernandez, Case No. 3:18-cv-00259 (S.D. Cal.), filed February 02, 2018 7 15. Hammler v. Alvarez, Case No. 3:18-cv-00326 (S.D. Cal.), filed February 09, 2018 8 16. Hammler v. Melendez, Case No. 2:18-cv-00588 (E.D. Cal.), filed March 19, 2018 17. Hammler v. Kernan, Case No. 3:18-cv-01170 (S.D. Cal.), filed June 04, 2018 9 18. Hammler v. Hough, Case No. 3:18-cv-01319 (S.D. Cal.), filed June 18, 2018 19. Hammler v. L. Franklin, Case No. 2:18-cv-05525 (C.D. Cal.), filed June 21, 2018 10 20. Hammler v. Andrea Grey, Case No. 2:18-cv-09760 (C.D. Cal.), filed November 20, 11 2018 21. Hammler v. Lyons, Case No. 1:19-cv-01650 (E.D. Cal.), filed December 21, 2018 12 22. Hammler v. Clark, Case No. 1:19-cv-00373 (E.D. Cal.), filed January 3, 2019 23. Hammler v. Baugham, Case No. 2:19-cv-00245 (E.D. Cal.), filed February 6, 2019 13 24. Hammler v. M. Biallas, Case No. 2:19-cv-01824 (C.D. Cal.), filed March 13, 2019 14 25. Hammler v. Kernan, Case No. 1:19-cv-00497 (E.D. Cal.), filed March 14, 2019 26. Hammler v. Katz, Case No. 2:19-cv-00467 (E.D. Cal.), filed March 14, 2019 15 27. In Re: Hammler, Case No. 1:19-mc-00019 (E.D. Cal.), filed March 22, 2019 16 28. Hammler v. Peterson, Case No. 2:19-cv-00524 (E.D. Cal.), filed March 25, 2019 29. Hammler v. Oliveira, Case No. 1:19-cv-00417 (E.D. Cal.), filed April 2, 2019 17 30. Hammler v. Dejiney Jones, Case No. 2:19-cv-02831 (C.D. Cal.), filed April 12, 2019 31. Hammler v. Gooch, Case No. 1:19-mc-00026 (E.D. Cal.), filed April 15, 2019 18 32. Hammler v. State of California, Case No. 1:19-mc-00028 (E.D. Cal.), filed April 22, 19 2019 33. In Re: Hammler, Case No. 1:19-mc-00029 (E.D. Cal.), filed April 29, 2019 20 34. Hammler v. Hernandez, Case No. 1:19-cv-00616 (E.D. Cal.), filed May 8, 2019 21 The Court located and takes judicial notice of the following three state cases brought 22 before commencing this action: 23 1. Hammler v. Kirkland, Case No. 34-2016-00197599-CL-PO-GDS (Cal. Super. Ct. 24 Sacramento County), filed July 19, 2016 2. Hammler v. Paramo, Case No. 37-2016-00044051-CU-PO-CTL (Cal. Super. Ct. San 25 Diego County), filed December 14, 2016 3. Hammler v. Alternate Public Defenders, Case No. BS129159 (Cal. Super. Ct. Los 26 Angeles County), filed June 15, 2017 27 Based on the decisions of other cases regarding Plaintiff’s litigation history, it is likely 28 that this number does not include all previous and pending lawsuits. In at least one of these 1 cases, Plaintiff had been declared a vexatious litigant under California law. Hammler v. 2 Kirkland, No. 34-2016-00197599-CV (Cal. Super. Ct. Sacramento County), filed July 19, 3 2016. On February 21, 2017, the court declared Plaintiff a vexatious litigant. Id. No. 38. That 4 court noted at least eight of his cases had been decided adversely to him and that he had another 5 nine pending for a total of 17. Id. at 2. 6 Additionally, in at least one of these federal cases, the defendants had moved to declare 7 him a vexatious litigant before Plaintiff filed this lawsuit, and the Court granted that motion 8 before Plaintiff filed his first amended complaint. Hammler v. Alvarez, No. 3:18-cv-00326- 9 AJB-WVG (S.D. Cal. Sept. 10, 2018), filed February 9, 2018. On September 10, 2018—over 10 eight months before Plaintiff began this action—Defendants moved to declare him vexatious. 11 Id. ECF No. 20. The defendants there attached an exhibit showing Plaintiff had filed 41 cases 12 in California state and federal courts. Id. ECF No. 20-2. On August 13, 2019, the court declared 13 him vexatious. Id., ECF No. 63. The court noted that “Plaintiff has filed 50 separate cases 14 against various prison officials and in various California courts since 2007. Just in the past five 15 years, Plaintiff has filed 36 cases.” Id. at 4 (citations omitted). 16 The Court also located and takes judicial notice of the following eight federal lawsuits 17 filed between Plaintiff’s original complaint and the FAC: 1. Hammler v. Gooch, Case No. 1:19-cv-00653 (E.D. Cal.), filed May 14, 2019 18 2. Hammler v. Cota, Case No. 2:19-cv-01423 (E.D. Cal.), filed June 4, 2019 19 3. Hammler v. State of California, Case No. 1:19-cv-00784 (E.D. Cal.), filed June 4, 2019 4. Hammler v. State of California, Case No. 1:19-cv-00785 (E.D. Cal.), filed June 4, 2019 20 5. Hammler v. State of California, Case No. 1:19-cv-01057 (E.D. Cal.), filed August 1, 2019 21 6. Hammler v. Diaz, Case No. 1:19-cv-01141 (E.D. Cal.), filed August 20, 2019 22 7. Hammler v. Compose, Case No. 1:19-cv-01149 (E.D. Cal.), filed August 23, 2019 8. Hammler v. State of California, Case No. 1:19-cv-01212 (E.D. Cal.), filed August 30, 23 2019 24 III. LEGAL STANDARDS 25 “Rule 11 provides for the imposition of sanctions when a filing is frivolous, legally 26 unreasonable, or without factual foundation, or is brought for an improper purpose.” Simpson v. 27 Lear Astronics Corp., 77 F.3d 1170, 1177 (9th Cir. 1996) (footnote omitted). “Although Rule 28 11 applies to pro se plaintiffs, the court must take into account a plaintiff’s pro se status when it 1 determines whether the filing was reasonable.” Warren v. Guelker, 29 F.3d 1386, 1390 (9th 2 Cir. 1994). (quoting Harris v. Heinrich, 919 F.2d 1515, 1516 (11th Cir.1990). However, a 3 district court “cannot decline to impose any sanction where a violation has arguably occurred 4 simply because the plaintiff is proceeding pro se.” Simpson, 77 F.3d at 1177 (citing Warren, 29 5 F.3d at 1390). 6 In relevant part, Rule 11 reads: 7 (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating 8 it--an attorney or unrepresented party certifies that to the best of the person’s 9 knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: 10 (1) it is not being presented for any improper purpose, such as to harass, cause 11 unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing 12 law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; 13 (3) the factual contentions have evidentiary support or, if specifically so 14 identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; 15 . . . (c) Sanctions. 16 (1) In General. If, after notice and a reasonable opportunity to respond, the 17 court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or 18 is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, 19 associate, or employee. 20 . . . (3) On the Court’s Initiative. On its own, the court may order an attorney, law 21 firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b). 22 (4) Nature of a Sanction. A sanction imposed under this rule must be limited to 23 what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an 24 order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of 25 the reasonable attorney’s fees and other expenses directly resulting from the 26 violation. (5) Limitations on Monetary Sanctions. The court must not impose a monetary 27 sanction: 28 (A) against a represented party for violating Rule 11(b)(2); or 4:40 VV □□□ ES MMU PR eter PAY VI (B) on its own, unless it issued the show-cause order under Rule I1(c)(3) before voluntary dismissal or settlement of the claims made by or against 2 the party that is, or whose attorneys are, to be sanctioned. (6) Requirements for an Order. An order imposing a sanction must describe the 3 sanctioned conduct and explain the basis for the sanction. 4 R. Civ. P. 11. 5 Courts can also dismiss actions under their inherent authority as sanctions for falsified 6 complaints. Anheuser-Busch, Inc v. Natural Beverage Distributors, 69 F.3d 337, 348 (9th Cir. 7 || 1995) (holding dismissal under inherent authority proper when “a party has engaged 8 || deliberately in deceptive practices that undermine the integrity of judicial proceedings” or 9 || “willfully deceived the court and engaged in conduct utterly inconsistent with the orderly 10 |} administration of justice”). 11 IV. CONCLUSION AND ORDER TO SHOW CAUSE 12 Plaintiff is thus ordered to show cause why, under Federal Rule of Civil Procedure 11 as 13 || well as the Court’s inherent authority, the Court should not sanction Plaintiff for providing 14 inaccurate statements under penalty of perjury, with sanctions up to and including dismissal of 15 || the case. 16 In the alternative, Plaintiff may file a notice with the Court that he voluntarily dismisses 17 || this lawsuit. Fed. R. Civ. P. 41(a)(1)(A)G@). 18 Accordingly, it is HEREBY ORDERED that, within thirty (30) days from the date of 19 || service of this order, Plaintiff shall show cause why he should not be sanctioned, with sanctions 20 || up to and including dismissal of this case, for failing to comply with Federal Rule of Civil 21 || Procedure 11, or file a notice that he voluntarily dismisses this lawsuit. 22 If Plaintiff fails to file a response, the Court will recommend to a district judge that this 23 || action be dismissed. 24 IT IS SO ORDERED. 26 |! Dated: _ April 21, 2020 [Je hey 27 UNITED STATES MAGISTRATE JUDGE 28