Ou-Young v. Stone ( 2019 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 KUANG-BAO P. OU-YOUNG, Case No. 19-cv-07000-BLF 9 Plaintiff, ORDER REQUIRING THAT KUANG-BAO P. OU-YOUNG OBTAIN 10 v. LEAVE OF COURT BEFORE FILING ANY COMPLAINT AGAINST 11 LAWRENCE E. STONE, Santa Clara FEDERAL JUDGES County Assessor; JEANETTE TONINI, 12 Senior Assessment Clerk; EDWARD J. DAVILA, District Judge; and COUNTY OF 13 SANTA CLARA, 14 Defendants. 15 16 On December 20, 2013, District Judge Edward M. Chen issued an order declaring Plaintiff 17 Kuang-Bao P. Ou-Young to be a vexatious litigant and directing pre-filing screening of any 18 complaint filed by Plaintiff involving certain statutes and parties. See Vexatious Litigant Order, 19 Case No. 13-cv-04442, ECF 40. In the six years following Judge Chen’s issuance of the 20 Vexatious Litigant Order, Plaintiff has filed more than two dozen meritless actions in this district, 21 many asserting claims against federal judges based on their rulings. 22 Plaintiff also filed the present action in state court, naming District Judge Edward J. Davila 23 as a defendant along with the County of Santa Clara and two County employees. See Notice of 24 Removal Exh. 4 (Complaint), ECF 1-4. Following removal of the action to this district, the Court 25 issued an Order to Show Cause why the action should not be dismissed as to Judge Davila based 26 on judicial immunity, and why the pre-filing screening requirement applicable to Plaintiff should 27 not be expanded to include claims against federal judges. See OSC, ECF 15. Plaintiff timely 1 The Court has dismissed Plaintiff’s claims against Judge Davila in a separate order. See 2 Dismissal Order, ECF 25. The present order addresses the propriety of issuing an order requiring 3 pre-filing review of Plaintiff’s future complaints against federal judges. For the reasons discussed 4 below, the Court finds that such an order is warranted. The Court therefore ORDERS that Kuang- 5 Bao P. Ou-Young must obtain leave of court before filing any complaint against federal judges. 6 I. BACKGROUND 7 Judge Chen’s Vexatious Litigant Order 8 As noted above, Judge Chen issued a Vexatious Litigant Order regarding Plaintiff in 2013. 9 See Vexatious Litigant Order, Case No. 13-cv-04442, ECF 40. In that order, Judge Chen 10 discussed five civil cases that Plaintiff had filed in this district against federal judges, federal 11 agencies and employees, and others, as well as a misconduct complaint that Plaintiff had filed 12 against a federal judge. See id. Judge Chen concluded that although the number of Plaintiff’s 13 filings was not as great as in other vexatious litigant cases, “the patently meritless nature of his 14 filings” warranted issuance of a pre-filing review order. Id. at 13. Notably, Plaintiff persisted in 15 suing for violations of federal criminal statutes despite being advised repeatedly that the statutes 16 do not provide a private right of action. See id. Judge Chen issued an order that was narrowly 17 tailored to require that “Plaintiff must obtain leave of court before filing any further suits alleging 18 any violations of the federal criminal statutes, pursuant to 18 U.S.C. § 1512(b), 18 U.S.C. § 1512 19 (c), and 18 U.S.C. § 371, and the FTCA, codified at 28 U.S.C. § 2671 et seq., involving parties 20 that he named in the current case, or Ou-Young I, Ou-Young II, Ou-Young III, and Ou-Young IV, 21 previously filed in this Court.” Id. at 16-17. 22 Plaintiff’s Filings Since Judge Chen’s Order 23 Since the Vexatious Litigant Order issued, Plaintiff has submitted twenty-five complaints 24 that have been subject to pre-filing review. See Case Nos. 14-mc-80017-RMW; 14-mc-80018-RS; 25 14-mc-80028-JSW;14-mc-80029-JSW; 14-mc-80030-JSW; 14-mc-80174-BLF; 14-mc-80214- 26 EJD; 14-mc-80215-EJD; 14-mc-80306-LHK; 14-mc-80332-BLF; 14-mc-80335-BLF; 14-mc- 27 80342-WHA; 14-mc-80343-WHA; 15-mc-80031-YGR; 15-mc-80033-EJD; 15-mc-80149-BLF; 1 15-mc-80197-LHK; 15-mc-80235-EJD; 15-mc-80212-BLF; 19-mc-80254-EJD; 19-mc-80255- 2 EJD. As discussed in more detail below, many of those complaints asserted claims against federal 3 judges. 4 During that same period, Plaintiff filed multiple motions to intervene, disqualify judges, 5 and vacate orders in criminal and civil actions to which he was not a party. See, e.g., Case Nos. 6 14-cr-00196-CRB, ECF 344 (motion to intervene in criminal proceeding); 14-cv-05142-LHK, 7 ECF 95 (motion to intervene, to disqualify the assigned judge, to vacate a court order, and for 8 summary judgment); Case No. 17-cv-00574-WHO, ECF 84 (motion to intervene). 9 All of the motions to intervene, disqualify, and the like were denied. See Case Nos. 14-cr- 10 00196-CRB, ECF 345 (denying motion to intervene); 14-cv-05142-LHK, ECF 97 (denying 11 motion to intervene, to disqualify the assigned judge, to vacate a court order, and for summary 12 judgment); Case No. 17-cv-00574-WHO, ECF 85 (denying motion to intervene). Plaintiff also 13 was denied leave to file all but two of the complaints listed above, on the basis that they asserted 14 claims involving statutes and parties specified in Judge Chen’s Vexatious Litigant Order and were 15 without merit. 16 Plaintiff’s 2019 Cases 17 As to the two most recent complaints screened in 2019, however, leave to file was granted 18 on the basis that the claims asserted therein fell outside the scope of Judge Chen’s order. One 19 complaint asserts claims against Ninth Circuit Judges Edward Leavy, Consuelo M. Callahan, and 20 Carlos T. Bea. See Case No. 19-cv-07232-EJD (screened in Case No. 19-mc-80254-EJD). The 21 judge assigned to that case has not yet had occasion to determine whether the complaint states a 22 viable claim. That case is proceeding. 23 The second complaint as to which leave to file was granted asserts claims against the 24 County of Santa Clara and County employees. See Case No. 19-cv-07231-BLF (screened in Case 25 No. 19-mc-80255-EJD). That action is proceeding. 26 Plaintiff filed a third complaint in this district in 2019 that does not appear to have been 27 flagged for pre-filing review by the Clerk’s Office. See Case No. 19-cv-03049-EJD. A civil case 1 The district court assigned to the case found that Plaintiff’s claims against federal district judges, 2 circuit judges, United States Supreme Court justices, and federal officials and employees were 3 without merit and dismissed the case with prejudice. See id. 4 Plaintiff’s fourth 2019 complaint, which commenced the present action, was filed in state 5 court and removed to this district. See Notice of Removal, ECF 1. The removal complaint was 6 not flagged for screening by the Clerk’s Office. The complaint alleges claims against Judge 7 Davila, the County of Santa Clara, and Santa Clara employees. As noted above, Plaintiffs’ claims 8 against Judge Davila have been dismissed. See Dismissal Order, ECF 25. 9 The United States of America, appearing in this action as amicus curiae, requests that the 10 Court issue an order requiring pre-filing review of all claims against federal judges. See United 11 States’ Br. at 6, ECF 6-1. The United States argues that such an order is warranted because 12 Plaintiff has a documented propensity to sue federal judges when he does not like their decisions, 13 and the current Vexatious Litigant Order does not cover Plaintiff’s recent suits against federal 14 judges. See id. Plaintiff argues that expansion of the screening order would deprive him of his 15 Seventh Amendment right to a jury trial. See Pl.’s Response to OSC, ECF 22. 16 II. LEGAL STANDARD 17 “The All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the inherent power 18 to enter pre-filing orders against vexatious litigants.” Molski v. Evergreen Dynasty Corp., 500 19 F.3d 1047, 1057 (9th Cir. 2007). “Restricting access to the courts is, however, a serious matter.” 20 Ringgold-Lockhart v. Cty. of Los Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014). “[T]he right of 21 access to the courts is a fundamental right protected by the Constitution,” and “[p]rofligate use of 22 pre-filing orders could infringe this important right.” Id. at 1061-62 (internal quotation marks and 23 citations omitted). Thus, “pre-filing orders should rarely be filed,” and only when certain 24 requirements are met. De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990). 25 “Nevertheless, ‘[f]lagrant abuse of the judicial process cannot be tolerated because it enables one 26 person to preempt the use of judicial time that properly could be used to consider the meritorious 27 claims of other litigants.’” Molski, 500 F.3d at 1057 (quoting De Long, 912 F.2d at 1148). A 1 court. See De Long, 912 F.2d at 1146-47. 2 “When district courts seek to impose pre-filing restrictions, they must: (1) give litigants 3 notice and ‘an opportunity to oppose the order before it [is] entered’; (2) compile an adequate 4 record for appellate review, including ‘a listing of all the cases and motions that led the district 5 court to conclude that a vexatious litigant order was needed’; (3) make substantive findings of 6 frivolousness or harassment; and (4) tailor the order narrowly so as ‘to closely fit the specific vice 7 encountered.’” Ringgold-Lockhart, 761 F.3d at 1062 (quoting De Long, 912 F.2d at 1147-48). 8 “The first and second of these requirements are procedural,” while the third and fourth 9 requirements are “substantive considerations” helpful to defining who is a vexatious litigant and 10 fashioning an appropriate remedy. Id. at 1062. 11 III. DISCUSSION 12 A. Notice and Opportunity to Oppose 13 The first requirement is satisfied where the litigant is given notice that the court is 14 considering a pre-filing screening order and an opportunity to oppose such order before it issues. 15 See Ringgold-Lockhart, 761 F.3d at 1062. A hearing is not required. See Ou-Young v. Roberts, 16 No. C-13-4442 EMC, 2013 WL 6732118, at *8 (N.D. Cal. Dec. 20, 2013) (collecting cases). 17 The Court issued an Order to Show Cause why Plaintiff should not be subject to pre-filing 18 review of claims against federal judges. See Order to Show Cause at 2, ECF 15. Plaintiff 19 responded to the Order to Show Cause and argued against imposition of such pre-filing review. 20 See Pl.’s Response to OSC at 2-3, ECF 22. Consequently, the record is clear that Plaintiff both 21 received notice and actually opposed issuance of an order requiring pre-filing screening of claims 22 against federal judges. 23 B. Adequate Record for Review 24 “An adequate record for review should include a listing of all the cases and motions that 25 led the district court to conclude that a vexatious litigant order was needed.” De Long, 912 F.2d at 26 1147. “At the least, the record needs to show, in some manner, that the litigant’s activities were 27 numerous or abusive.” Id. 1 of actions in this district since Judge Chen issued his Vexatious Litigant Order. Approximately 2 half of those actions contain claims against federal judges, as summarized below: 3 (1) Case No. 14-mc-80017-RMW: Kuang-Bao P. Ou-Young v. Chief Justice John G. 4 Roberts, Jr.; Chief District Judge Claudia Wilken; District Judge Edward M. Chen; District Judge 5 Lucy H. Koh; Magistrate Judge Howard R. Lloyd; Deputy Clerk Martha P. Brown; Deputy Clerk 6 Tiffany Salinas-Harwell; Attorney General Eric H. Holder, Jr.; United States Attorney Melinda 7 Haag; Assistant United States Attorney Claire T. Cormier; and Assistant United States Attorney 8 James A. Scharf. Plaintiff asserted 131 claims for fabrication, intimidation, conspiracy, and 9 unspecified torts based on rulings made by the defendant judges, clerical work done by the 10 defendant Clerk’s Office staff, and litigation conduct of the defendant attorneys in multiple cases 11 in which adverse rulings were made against Plaintiff. Plaintiff sought a declaratory judgment that 12 the defendants “engaged in fabrication of court records, intimidation, and conspiracy”; referral of 13 the defendants for criminal prosecution; removal of certain judges from office; and monetary 14 damages against each defendant in amounts ranging from $4,000,000 to $28,000,000. Leave to 15 file the complaint was denied on January 30, 2014. 16 (2) Case No. 14-mc-80018-RS: Kuang-Bao P. Ou-Young v. Chief Justice John G. 17 Roberts, Jr.; Chief District Judge Claudia Wilken; District Judge Edward M. Chen; District Judge 18 Lucy H. Koh; Magistrate Judge Howard R. Lloyd; Deputy Clerk Martha P. Brown; Deputy Clerk 19 Tiffany Salinas-Harwell; Attorney General Eric H. Holder, Jr.; United States Attorney Melinda 20 Haag; Assistant United States Attorney Claire T. Cormier; and Assistant United States Attorney 21 James A. Scharf. Plaintiff refiled the identical claims, against the identical defendants, set forth in 22 Complaint (1), above. Leave to file the complaint was denied on February 7, 2014. 23 (3) Case No. 14-mc-80028-JSW: Kuang-Bao P. Ou-Young v. Chief Justice John G. 24 Roberts, Jr.; Chief District Judge Claudia Wilken; District Judge Edward M. Chen; District Judge 25 Lucy H. Koh; Magistrate Judge Howard R. Lloyd; Deputy Clerk Martha P. Brown; Deputy Clerk 26 Tiffany Salinas-Harwell; Attorney General Eric H. Holder, Jr.; United States Attorney Melinda 27 Haag; Assistant United States Attorney Claire T. Cormier; and Assistant United States Attorney 1 Complaints (1) and (2), above. Leave to file the complaint was denied on March 26, 2014. 2 (4) Case No. 14-mc-80029-JSW: Kuang-Bao P. Ou-Young v. Chief Justice John G. 3 Roberts, Jr.; and District Judge Edward M. Chen. Plaintiff asserted a single claim for violation of 4 the Due Process Clause of the Fifth Amendment based on Judge Chen’s issuance of the Vexatious 5 Litigant Order. Plaintiff did not allege any conduct on the part of Chief Justice Roberts. Leave to 6 file the complaint was denied on July 30, 2015. 7 (5) Case No. 14-mc-80030-JSW: Kuang-Bao P. Ou-Young v. Chief Justice John G. 8 Roberts, Jr.; District Judge Ronald M. Whyte; District Judge Edward M. Chen; Supervisor Snooki 9 R. Puli; Supervisor Odile Hansen; Supervisor Simone Voltz; and Deputy Clerk Cynthia Lenahan. 10 Plaintiff asserted a single claim for violation of the Due Process Clause of the Fifth Amendment 11 based on Judge Chen’s Vexatious Litigant Order and the actions of the other defendants in 12 enforcing that order. Leave to file the complaint was denied on March 26, 2014. 13 (6) Case No. 14-mc-80174-BLF: Kuang-Bao P. Ou-Young v. Chief Justice John G. 14 Roberts, Jr.; Chief District Judge Claudia Wilken; District Judge Ronald M. Whyte; District 15 Judge Jeffrey S. White; District Judge Edward M. Chen; District Judge Lucy H. Koh; District 16 Judge Richard Seeborg; Magistrate Judge Howard R. Lloyd; Clerk of Court Richard W. Wieking; 17 Supervisor Snooki R. Puli; Supervisor Simone Voltz; Supervisor Odile Hansen; Deputy Clerk 18 Cynthia Lenahan; Deputy Clerk Tiffany Salinas-Harwell; Deputy Clerk Martha P. Brown; Deputy 19 Clerk Gordana Macic; Deputy Clerk Betty Walton; Deputy Clerk Charles Adams; Attorney 20 General Eric H. Holder, Jr.; United States Attorney Melinda Haag; Assistant United States 21 Attorney Claire T. Cormier; Assistant United States Attorney James A. Scharf, USMS Director 22 Stacia Hylton; USM Donald M. O’Keefe; Supervisory USM Mark Harwell; Postmaster General 23 Patrick R. Donahoe; Commissioner of Fiscal Service David A. Lebryk; David J. Yang; Judge 24 Teresa Guerrero-Daley; and San Jose Police Department. Plaintiff asserted 251 claims for 25 fabrication, intimidation, conspiracy, and unspecified torts based on judicial rulings and acts of 26 federal officials and employees within the scope of their positions. Leave to file the complaint 27 was denied on July 8, 2014. 1 (7) Case No. 14-mc-80214-EJD: Kuang-Bao P. Ou-Young v. District Judge Charles 2 R. Breyer. Plaintiff asserted a single claim for interference based on Judge Breyer’s denial of 3 Plaintiff’s motion to intervene in a criminal case. Leave to file the complaint was denied on July 4 29, 2014. 5 (8) Case No. 14-mc-80215-EJD: Kuang-Bao P. Ou-Young v. District Judge Beth L. 6 Freeman. Plaintiff asserted a single claim of interference based on Judge Freeman’s denial of 7 leave to file a prior action. Leave to file the complaint was denied on July 29, 2014. 8 (9) Case No. 14-mc-80306-LHK: Kuang-Bao P. Ou-Young v. Chief Justice John G. 9 Roberts, Jr.; Chief District Judge Claudia Wilken; District Judge D. Lowell Jensen; District 10 Judge Charles R. Breyer; District Judge Ronald M. Whyte; District Judge Jeffrey S. White; 11 District Judge Edward M. Chen; District Judge Lucy H. Koh; District Judge Richard Seeborg; 12 District Judge Edward J. Davila; District Judge Beth Labson Freeman; Magistrate Judge Howard 13 R. Lloyd; Clerk of Court Richard W. Wieking; Deputy Clerk-in-Charge Keely Kirkpatrick; 14 Supervisor Snooki R. Puli; Supervisor Simone Voltz; Supervisor Odile Hansen; Deputy Clerk 15 Cynthia Lenahan; Deputy Clerk Martha P. Brown; Deputy Clerk Tiffany Salinas-Harwell; Deputy 16 Clerk Gordana Macic; Deputy Clerk Betty Walton; Deputy Clerk Barbara Espinoza; Deputy 17 Clerk Charles Adams; Deputy Clerk Cita Escolano; Attorney General Eric H. Holder, Jr.; United 18 States Attorney Melinda Haag; Assistant United States Attorney Claire T. Cormier; Assistant 19 United States Attorney James A. Scharf; Assistant United States Attorney William Frentzen; 20 Assistant United States Attorney Susan E. Badger; Assistant United States Attorney S. Waqar 21 Hasib; Assistant United States Attorney Kirstin M. Ault; Assistant United States Attorney Kyle F. 22 Waldinger; Assistant United States Attorney Adam A. Reeves; Assistant United States Attorney 23 Jason Dean Linder; Assistant United States Attorney Ryan James Rohlfsen; USMS Director Stacia 24 Hylton; USM Donald M. O’Keefe; Supervisory USM Mark Harwell; USM John Dole 1; USM 25 John Dole 2; USM John Dole 3; Postmaster General Patrick R. Donahoe; Secretary of Treasury 26 Jacob L. Lew; Commissioner of Fiscal Service David A. Lebryk; Continental Service Group, Inc.; 27 David J. Yang; Judge Teresa Guerrero-Daley; and San Jose Police Department. Plaintiff asserted 1 complaint was denied on November 14, 2014. 2 (10) Case No. 14-mc-80342-WHA: Kuang-Bao P. Ou-Young v. Chief Justice John G. 3 Roberts, Jr.; Chief District Judge Claudia Wilken; District Judge D. Lowell Jensen; District 4 Judge Charles R. Breyer; District Judge Ronald M. Whyte; District Judge Jeffrey S. White; 5 District Judge Edward M. Chen; District Judge Lucy H. Koh; District Judge Richard Seeborg; 6 District Judge Edward J. Davila; District Judge Beth Labson Freeman; Magistrate Judge Howard 7 R. Lloyd; Clerk of Court Richard W. Wieking; Deputy Clerk-in-Charge Keely Kirkpatrick; 8 Supervisor Snooki R. Puli; Supervisor Simone Voltz; Supervisor Odile Hansen; Deputy Clerk 9 Cynthia Lenahan; Deputy Clerk Martha P. Brown; Deputy Clerk Tiffany Salinas-Harwell; Deputy 10 Clerk Gordana Macic; Deputy Clerk Betty Walton; Deputy Clerk Barbara Espinoza; Deputy 11 Clerk Charles Adams; Deputy Clerk Cita Escolano; Attorney General Eric H. Holder, Jr.; United 12 States Attorney Melinda Haag; Assistant United States Attorney Claire T. Cormier; Assistant 13 United States Attorney James A. Scharf; Assistant United States Attorney William Frentzen; 14 Assistant United States Attorney Susan E. Badger; Assistant United States Attorney S. Waqar 15 Hasib; Assistant United States Attorney Kirstin M. Ault; Assistant United States Attorney Kyle F. 16 Waldinger; Assistant United States Attorney Adam A. Reeves; Assistant United States Attorney 17 Jason Dean Linder; Assistant United States Attorney Ryan James Rohlfsen; USMS Director Stacia 18 Hylton; USM Donald M. O’Keefe; Supervisory USM Mark Harwell; USM John Dole 1; USM 19 John Dole 2; USM John Dole 3; Postmaster General Patrick R. Donahoe; Secretary of Treasury 20 Jacob L. Lew; Commissioner of Fiscal Service David A. Lebryk; Continental Service Group, Inc.; 21 David J. Yang; Judge Teresa Guerrero-Daley; and San Jose Police Department. Plaintiff refiled 22 the identical claims, against the identical defendants, set forth in Complaint (9), above. Leave to 23 file the complaint was denied on December 18, 2014. 24 (11) Case No. 15-mc-80180-VC: Kuang-Bao P. Ou-Young v. President Barack Hussein 25 Obama, II; District Judge Richard G. Kopf; District Judge D. Lowell Jensen; District Judge 26 Ronald M. Whyte; District Judge Charles R. Breyer; District Judge Jeffrey S. White; District 27 Judge Edward M. Chen; District Judge Beth L. Freeman; District Judge James Donato; Attorney 1 General Sally Quillian Yates; Former U.S. Deputy Attorney General James M. Cole; United 2 States Attorney Melinda Haag; USMS Director Stacia Hylton; USM Donald M. O’Keefe; 3 Assistant United States Attorney Claire T. Cormier; Supervisory USM Mark Harwell; Deputy 4 Clerk Gordana Macic; Deputy Clerk Betty Walton; Deputy Clerk Anna Sprinkles; and Deputy 5 Clerk Cita Escolano. Plaintiff asserted numerous claims relating to the dismissal of his prior 6 actions. Leave to file the complaint was denied on June 26, 2015. 7 (12) Case No. 15-mc-80185-VC: Kuang-Bao P. Ou-Young v. President Barack Hussein 8 Obama, II; District Judge Richard G. Kopf; District Judge D. Lowell Jensen; District Judge 9 Ronald M. Whyte; District Judge Charles R. Breyer; District Judge Jeffrey S. White; District 10 Judge Edward M. Chen; District Judge Beth L. Freeman; District Judge James Donato; Attorney 11 General Loretta Lynch; Former Attorney General Eric H. Holder, Jr.; U.S. Deputy Attorney 12 General Sally Quillian Yates; Former U.S. Deputy Attorney General James M. Cole; United 13 States Attorney Melinda Haag; USMS Director Stacia Hylton; USM Donald M. O’Keefe; 14 Assistant United States Attorney Claire T. Cormier; Supervisory USM Mark Harwell; Deputy 15 Clerk Gordana Macic; Deputy Clerk Betty Walton; Deputy Clerk Anna Sprinkles; and Deputy 16 Clerk Cita Escolano. Plaintiff asserted the same claims, against the same defendants, as set forth 17 in Complaint (11), above. Leave to file the complaint was denied on June 29, 2015. 18 (13) Case No. 19-cv-07232-EJD (screened in Case No. 19-mc-80254-EJD): Kuang-Bao 19 Paul Ou-Young v. Edward Leavy, Senior Circuit Judge, United States Court of Appeals for the 20 Ninth Circuit; Consuelo M. Callahan, Circuit Judge, United States Court of Appeals for the Ninth 21 Circuit; and Carlos T. Bea, Circuit Judge, United States Court of Appeals for the Ninth Circuit. 22 Plaintiff has asserted a single claim for Civil Rights Violation based on the defendants’ dismissal 23 of his appeal with respect to rulings in a criminal case against Plaintiff, United States v. Kuang 24 Bao Ou-Young, Case No. 17-cr-00263. Plaintiff was granted leave to file the complaint after 25 screening, on the basis that the claims fall outside the scope of Judge Chen’s Vexatious Litigant 26 Order. The case is proceeding. The district judge assigned to the case has not yet had occasion to 27 consider the merits of Plaintiff’s claims. 1 (14) Case No. 19-cv-03049-EJD: Kuang-Bao P. Ou-Young v. Edward Leavy, Senior 2 Circuit Judge, United States Court of Appeals for the Ninth Circuit, et al.1 Plaintiff asserted 3 claims against eight current and former United States Supreme Court justices; seventeen current 4 and former federal circuit judges; forty-seven current and former federal district judges; thirteen 5 current and former magistrate judges; fourteen federal court employees; twenty-seven other 6 federal employees and officials; and twenty-nine federal prison employees. Plaintiff alleged that 7 defendants violated his civil rights. It appears that the Clerk’s Office did not flag this action for 8 pre-filing screening. All claims have been dismissed as without merit and the action has been 9 dismissed with prejudice. 10 (15) Case No. 19-cv-07000-BLF: Kuang-Bao P. Ou-Young v. Lawrence E. Stone, Santa 11 Clara County Assessor; Jeanette Tonini, Senior Assessment Clerk; Edward J. Davila, District 12 Judge; and County of Santa Clara. The complaint in this action was filed in state court, and when 13 it was removed to federal district court it was not flagged for screening by the Clerk’s Office. The 14 claims against Judge Davila have been dismissed as barred by judicial immunity. The claims 15 against the County defendants are proceeding. 16 This record is adequate to demonstrate the scope of Plaintiff’s attempts to sue federal 17 judges. 18 C. Substantive Findings 19 Before a district court issues a pre-filing review order, it must make a substantive finding 20 that the litigant’s actions have been either frivolous or harassing. See Ringgold-Lockhart, 761 21 F.3d at 1064. “To determine whether the litigation is frivolous, district courts must look at both 22 the number and content of the filings as indicia of the frivolousness of the litigant’s claims.” Id. 23 (internal quotation marks and citation omitted). “The plaintiff’s claims must not only be 24 numerous, but also be patently without merit.” Id. (internal quotation marks and citation omitted). 25 As an alternative to frivolousness, the district court may make a finding that the litigant has 26 engaged in a pattern of harassment. See id. Filing particular types of actions repetitiously is 27 1 insufficient; the court must discern whether the repetitive filing was motivated by an intent to 2 harass the defendant or the court. See id. “Finally, courts should consider whether other, less 3 restrictive options, are adequate to protect the court and parties.” Id. 4 The Ninth Circuit has identified five factors that provide “a helpful framework” for 5 determining whether a party is vexatious and whether a pre-filing order is warranted: “(1) the 6 litigant’s history of litigation and in particular whether it entailed vexatious, harassing or 7 duplicative lawsuits; (2) the litigant’s motive in pursuing the litigation, e.g., does the litigant have 8 an objective good faith expectation of prevailing?; (3) whether the litigant is represented by 9 counsel; (4) whether the litigant has caused needless expense to other parties or has posed an 10 unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be 11 adequate to protect the courts and other parties.” Ringgold-Lockhart, 761 F.3d at 1062 (citation 12 omitted). 13 The first factor – the history of litigation and whether it entailed vexatious, harassing, or 14 duplicative lawsuits – strongly favors a pre-filing screening order for suits against federal judges. 15 Plaintiff has filed or attempted to file at least fourteen actions against federal judges following 16 Judge Chen’s issuance of his Vexatious Litigant Order. Plaintiff also has filed at least one state 17 court action against Judge Davila, which was removed to this Court. All of Plaintiff’s claims 18 against federal judges have been found to be without merit, with the exception of his claims in 19 Case No. 19-cv-07232-EJD, which have not yet been addressed substantively by the court. 20 Plaintiff’s attempts to sue federal judges generally follow on the heels of, and are in 21 response to, those judges’ rulings against Plaintiff. For example, on January 30, 2014, Judge 22 Ronald M. Whyte denied Plaintiff leave to file a complaint against federal judges and employees. 23 See Case No. 14-mc-80017-RMW, ECF 4. Approximately one week later, on February 6, 2014, 24 Plaintiff attempted to sue Judge Whyte for denial of due process under the Fifth Amendment. See 25 Case No. 14-mc-80030-JSW, ECF 1. On July 8, 2014, Judge Charles R. Breyer denied Plaintiff’s 26 motion to intervene in a criminal action. See Case No. 14-cr-00196-CRB, ECF 345. 27 Approximately one week later, on July 17, 2014, Plaintiff attempted to file a complaint against 1 intervene. See Case No. 14-mc-80214-EJD, ECF 1. On October 15, 2019, Plaintiff submitted a 2 complaint that was assigned to Judge Davila for screening. See Case No. 19-mc-80255-EJD. 3 Before Judge Davila had an opportunity to rule, and apparently in anticipation of an adverse 4 ruling, Plaintiff filed the present action against Judge Davila in the Santa Clara County Superior 5 Court. See ECF 1, Notice of Removal. As noted above, this Court has dismissed Plaintiff’s 6 claims against Judge Davila on the basis of judicial immunity. See ECF 25. 7 Even after the court has dismissed such suits, Plaintiff persists in reasserting the same 8 claims against the same judges based upon the same judicial acts. See, e.g., Case No. 14-mc- 9 80017-RMW, ECF 4 (indicating that all of Plaintiff’s claims were subject to dismissal on grounds 10 that had been explained to him in a prior order, including immunity, lack of private right of action 11 under criminal statutes, and failure to exhaust administrative remedies); Case No. 14-mc-80174- 12 BLF, ECF 2 (“As explained in the Vexatious Litigant Order, this Court lacks jurisdiction over 13 Plaintiff’s claims against judges, prosecutors, and court staff, because they are immune from 14 suit.”). On August 14, 2019, Plaintiff filed a lengthy pleading asserting claims against almost 15 every judge in this district, judges in other districts, circuit court judges, United States Supreme 16 Court justices, and federal officials and employees. See Case No. 19-cv-03049-EJD, ECF 10. In 17 that pleading, Plaintiff made clear that he was continuing to sue judges based on judicial acts 18 dating back to 2012. He specifically referenced Judge Whyte’s January 2014 order denying leave 19 to file a complaint in Case No. 14-mc-80017-RMW, Judge Breyer’s July 2014 order denying 20 leave to intervene in Case No. 14-cr-00196-CRB, and many other judicial acts that were the 21 subject of unsuccessful prior lawsuits in this district. Those claims were dismissed with prejudice 22 on October 9, 2019. See Case No. 19-cv-03049-EJD, ECF 36. 23 The second factor – the litigant’s motive in pursuing litigation – also weighs in favor of a 24 pre-filing screening order for suits against federal judges. The Court cannot conceive of any 25 legitimate basis for Plaintiff’s insistence in filings suit against judges despite having been advised 26 in numerous court orders that such claims are not viable. Plaintiff’s conduct in filing suit against 27 judges who issue adverse rulings against him, and in particular his assertion of the same claims 1 judges in this district explaining that Plaintiff cannot prevail on such claims, the Court can only 2 conclude that Plaintiff’s purpose is to harass federal judges through litigation. 3 The third factor inquires whether Plaintiff is represented by counsel. He is not, and in fact 4 it would be surprising if a sworn officer of the court were to participate in the meritless and 5 harassing litigation described herein. 6 The fourth factor – whether the litigant has caused needless expense to other parties or has 7 posed an unnecessary burden on the courts and their personnel – strongly favors the contemplated 8 pre-filing screening order. Plaintiff’s repeated assertion of claims against federal judges embodies 9 the “[f]lagrant abuse of the judicial process” described by the Ninth Circuit that “cannot be 10 tolerated because it enables one person to preempt the use of judicial time that properly could be 11 used to consider the meritorious claims of other litigants.” Molski, 500 F.3d at 1057 (internal 12 quotation marks and citation omitted). While Plaintiff’s earlier complaints against federal judges 13 were screened pursuant to Judge Chen’s Vexatious Litigant Order, Plaintiff’s most recent 14 complaints have been opened as civil actions, either because the Clerk’s Office did not flag them 15 for screening or because they fell outside the scope of Judge Chen’s order. Addressing those 16 complaints wastes judicial resources that better could be devoted to other cases. 17 Finally, the fifth factor asks whether other, less restrictive options, would be adequate. As 18 noted, the Vexatious Litigant Order currently in place has not barred the filing of Plaintiff’s most 19 recent claims against federal judges. Requiring pre-filing review of all claims against federal 20 judges would prevent the waste of judicial resources that must be expended when a civil suit is 21 litigated. The Court has considered whether such waste could be avoided by imposition of a 22 monetary sanction against Plaintiff each time he litigates frivolous or harassing claims against 23 federal judges. However, judicial resources would be required to determine whether each 24 particular claim in fact is frivolous or harassing. Moreover, it is not at all clear that imposition of 25 a monetary sanction would deter Plaintiff’s conduct, given his determination to sue federal judges. 26 Based on this record, the Court concludes that Plaintiff’s conduct in suing federal judges 27 has been both frivolous and harassing. 1 D. Narrowly Tailored 2 Of the dozens of lawsuits that Plaintiff has filed in this district, approximately half have 3 asserted claims against federal judges. The suits against federal judges all appear to be based on 4 judicial acts for which the defendant judges are absolutely immune. Until recently, Judge Chen’s 5 Vexatious Litigant Order sufficed to ensure that those suits were barred at the outset. However, in 6 2019 at least three civil actions against federal judges were opened, either because Judge Chen’s 7 order did not alert the Clerk’s Office staff that screening was required or because the complaint 8 did not involve the statutes or parties specified in Judge Chen’s Order. Given Plaintiff’s history of 9 suing federal judges, and the recent spate of suits against federal judges that were not barred at the 10 outset by Judge Chen’s order, the Court concludes that an order requiring pre-filing review of 11 complaints against federal judges is warranted. Such an order is narrowly tailored to address 12 Plaintiff’s documented propensity to sue federal judges. The order will not prevent Plaintiff from 13 proceeding with any potentially meritorious claim against federal judges, but it will protect this 14 court and federal judges from the burdens imposed by frivolous and harassing suits. 15 E. The Prior Vexatious Litigant Order Remains in Effect 16 This order does not affect the continuing enforceability of Judge Chen’s pre-filing 17 screening order. 18 IV. ORDER 19 Accordingly, it is HEREBY ORDERED that: 20 (1) Kuang-Bao P. Ou-Young must obtain leave of court before filing any complaint 21 that alleges claims against federal judges, including United States Supreme Court 22 justices, federal circuit judges, federal district judges, federal magistrate judges, and 23 federal bankruptcy judges; 24 (2) The Clerk of Court shall not accept for filing any complaint alleging claims against 25 federal judges until the complaint has been reviewed by a judge and approved for 26 filing. The Clerk shall forward any such complaint to the general duty judge for 27 pre-filing screening; and 1 (3) This order applies to complaints that Kuang-Bao P. Young seeks to file in this 2 district, complaints filed in state court and removed to this district, and complaints 3 filed in adversary proceedings in this district’s bankruptcy court. 4 5 Dated: December 5, 2019 ty) 6 BETH LABSON FREEMAN 7 United States District Judge 8 9 10 11 12 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28