United States District Court, D. Nevada
before the court is plaintiff Wendell Dwayne O'Neal's
motion to set aside this court's order on plaintiff's
motion for reconsideration. (ECF No. 165). Defendants Empire
Fire and Marine Insurance Co., Zurich Insurance Company,
Inc., California Roadrunner Rentals, Inc., Cisneros &
Marias Esq., David (LNU), Anthony Adams, Cymbalista Boaz,
Tricia Green, Carol Millaud, Janet Pancoast, Ruder
Ruderhausen, Jaime Santos, and Matthew Wolf (collectively,
defendants) have not filed a response, and the time for doing
so has since passed
before the court is defendants' motion to designate
plaintiff a vexatious litigant. (ECF No. 168). Plaintiff
filed a response (ECF No. 169), to which defendants replied
(ECF No. 171).
before the court is plaintiff's ex parte
“motion for indicative ruling” regarding a
memorandum plaintiff filed in support of his motion to set
aside. (ECF No. 172).
Background and discussion
Plaintiff's motion to set aside
October 13, 2017, the court granted defendants' motion to
dismiss, thereby dismissing plaintiff's fourth amended
complaint. (ECF No. 154). On December 19, 2017, the court
denied plaintiff's motion to reconsider the court's
order granting defendants' motion to dismiss. (ECF No.
163). Plaintiff now requests the court set aside its order
denying plaintiff's motion for reconsideration. (ECF No.
initial matter, the court acknowledges that the complaint was
filed pro se and is therefore held to less stringent
standards. Erickson v. Pardus, 551 U.S. 89, 94
(2007) (“A document filed pro se is to be
liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.”) (internal
quotations and citations omitted). However, “pro
se litigants in the ordinary civil case should not be
treated more favorably than parties with attorneys of
record.” Jacobsen v. Filler, 790 F.2d 1362,
1364 (9th Cir. 1986).
defendants note, plaintiff's current motion effectively
asks the court to reconsider the court's order denying
plaintiff's original motion to reconsider.
Plaintiff's current motion does not demonstrate any legal
or factual grounds for this court to reconsider its ruling on
the original motion or its ruling on the motion to
reconsider. Accordingly, the court will deny plaintiff's
Defendants' motion to designate plaintiff a vexatious
request that this court designate plaintiff a vexatious
litigant. (ECF No. 168). Defendants note that plaintiff has
brought 108 cases in federal district courts, courts of
appeals, and county courts as a pro se litigant.
Id. “All of those filings were dismissed[, ]
with some dismissed by the court acting sua
sponte.” Id. On April 19, 2017, the
Eighth Judicial District Court of Nevada designated plaintiff
a vexatious litigant. Id.; see (ECF No.
Writs Act, 28 U.S.C. § 1651(a), empowers federal
district courts to enjoin vexatious litigants who have a
history of abusing the court's limited resources. See
Ringgold-Lockhart v. Cty. of Los Angeles, 761 F.3d 1057,
1061 (9th Cir. 2014) (citing De Long v. Hennessey,
912 F.2d 1144, 1147 (9th Cir. 1990)). Under the All Writs
Act, a district court can order a person with lengthy
histories of abusive litigation-a vexatious litigant-to
obtain leave of the court before filing any future lawsuits.
See Molski v. Evergreen Dynasty Corp., 500 F.3d
1047, 1057 (9th Cir. 2007) (citing 28 U.S.C. § 165l(a)).
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.” See Molski, 500
F.3d at 1057 (quoting DeLong, 912 F.2d at 1148).
Vexatious litigant orders, however, are an extreme remedy,
and should rarely be entered. “[T]he right of access to
the courts is a fundamental right protected by the
Constitution.” See Ringgold-Lockhart, 761 F.3d
at 1061 (quoting Delew v. Wagner, 143 F.3d 1219,
1222 (9th Cir. 1998)). And restricting that access is a
serious matter. Id. (“The First Amendment
‘right of the people … to petition the
Government for a redress of grievances, ' which secures
the right to access the courts, has been termed ‘one of
the most precious of the liberties safeguarded by the Bill of
Rights.'” (quoting BE & K Const. Co. v.
NLRB, 536 U.S. 516, 524-25 (2002))); see also
Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002)
(noting that the Supreme Court has located the court access
right in the Privileges and Immunities clause, the First
Amendment petition clause, the Fifth Amendment due process
clause, and the Fourteenth Amendment equal protection
clause); Moy v. United States, 906 F.2d 467, 470
(9th Cir. 1990) (comparing the profligate use of pre-filing
orders to restrict the vexatious litigant's right of
access to the courts to hanging a “Sword of Damocles
… over his hopes for federal access for the
regard for the constitutional underpinnings of this right,
pre-filing orders should be filed only if district courts
comply with certain procedural and substantive requirements.
See De Long, 912 F.2d at 1147. When district courts
seek to declare a litigant vexatious and impose pre-filing
restrictions, they must: (1) provide litigants with notice
and an opportunity to oppose the order before it is entered;
(2) compile an adequate record for appellate review,
including “a listing of all the cases and motions that
led the district court to conclude that a vexatious litigant
order was needed”; (3) make substantive findings of
frivolousness or ...