Cello-Whitney v. Hoover, C88-1548M.
Decision Date | 12 July 1991 |
Docket Number | No. C88-1548M.,C88-1548M. |
Citation | 769 F. Supp. 1155 |
Parties | James CELLO-WHITNEY, Jr., Plaintiff, v. Robert HOOVER, et al., Defendants. |
Court | U.S. District Court — Western District of Washington |
James Cello-Whitney, Jr., pro se.
John Scott Blonien, Martin E. Wyckoff, Therese M. Wheaton, John Richard Christensen, Atty. General's Office, Corrections Div., Olympia, Wash., for defendants.
ORDER DISMISSING ACTION AND ENJOINING FUTURE FILINGS
The Court, having reviewed the defendants' motion to dismiss, plaintiff's motion to stay this action, defendants' motion to certify plaintiff's appeal as frivolous, plaintiff's motion to strike, the Report and Recommendation of Judge John L. Weinberg, United States Magistrate Judge, and the remaining record, does hereby find and order:
JOHN L. WEINBERG, United States Magistrate.
Plaintiff filed this civil rights action claiming abuse of his rights by prison staff. Defendants move to dismiss this action as frivolous under 28 U.S.C. § 1915(d). With that motion defendants also ask this court to severely limit plaintiff's right to initiate further actions in forma pauperis under 28 U.S.C. § 1915. Cello-Whitney moves to strike defendants' motion and stay all proceedings in this action pending his appeal of orders granting the same motion filed in unrelated cases.
On December 12, 1990 plaintiff's motion for voluntary dismissal was stricken because plaintiff did not provide proof of service as required by the local rules. Plaintiff has appealed that order. Defendants now move this court to certify under 28 U.S.C. § 1915(a) that plaintiff's appeal is not taken in good faith.
I recommend the court:
Plaintiff's frivolous and malicious actions
Under 28 U.S.C. § 1915(d) the court may dismiss any action filed in forma pauperis "... if satisfied that the action is frivolous or malicious." In addition, this court has inherent power to regulate the extent to which abusive litigants can access the courts. DeLong v. Hennessey, 912 F.2d 1144, 1147 (9th Cir.1990). "Under the power of 28 U.S.C. § 1651(a) (1988), enjoining litigants with abusive and lengthy histories is one such form of restriction that the district court may take." Id.
Generally, such enjoining orders must balance the litigant's right to meaningful access to the courts against the court's need to be free of abusive tactics. Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir.1984). In this circuit DeLong sets the standard for all such enjoining orders. Specifically, the enjoining order must:
The court should dismiss this action because it was filed for an improper purpose. This action originally alleged simply enough that plaintiff was physically assaulted and battered by prison guards. But despite the passage of over two years since the claim was filed plaintiff has done nothing to prosecute his claim. Instead the file is replete with allegations of harassment, motions and filings irrelevant to the underlying claim, and discovery arguments.
Plaintiff's conduct and prosecution of this action follows a pattern now very familiar to this court, as well as most other state and federal courts in Washington. Court records show that since 1983 plaintiff has filed over 50 actions in the federal courts for the eastern and western districts of Washington. The records of the Washington State Attorney General list 87 actions in the state and federal courts. Plaintiff claims to have prosecuted 91 actions in the various courts since 1983. See C88-1548M at docket 14.
In particular, the U.S. District Courts at Seattle, at Tacoma and at Spokane have all previously noted plaintiff's tactics and dismissed actions based upon his malicious and vexatious techniques:
Whitney v. Kincheloe, et al., No. C87-704AAM, Order of June 7, 1989, (E.D.Wa.).
The court thereafter reviews the numerous manipulative practices Cello-Whitney engages in to seek favored treatment unrelated to his legal cause. These tactics have also been noted by the district court in Tacoma:
On October 27, 1988 this court entered an enjoining order against future filings by plaintiff which specifically found that plaintiff lied about the existence of other actions when completing the court's § 1983 form. Cello-Whitney v. King, No. C88-1199Z, (W.D.Wa.).
Plaintiff has not attempted to deny his vexatious tactics or malicious purpose in pursuing his abundant litigation. Indeed the record now before the court is replete with exhibits evidencing plaintiff's unabashed expression of intent to be costly and burdensome by wasting public resources on meritless actions:
Attachment 5 to affidavit of Teresa Williams, docket 81. Attachment 9 to affidavit of Teresa Williams, docket 81.
Plaintiff has no reluctance to threaten the people he chooses to name as defendants. He...
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