Opinion
No. CIV 99-1631-PHX-ROS
December 9, 2001
ORDER
The Court held an Order to Show Cause hearing on November 19, 2001 to permit Mr. Joe Jimenez an opportunity to show cause why he should not be permanently barred from personally visiting the Sandra Day O'Connor United States Courthouse, or making telephone calls to the Clerk's Office of the Federal District Court for the District of Arizona ("Clerk's Office"). Mr. Jimenez personally appeared at the November 19, 2001 hearing.
Background
The events that culminated in the Order to Show Cause hearing arise out of Mr. Jimenez's employment discrimination suit against Defendants Coca-Cola Co. and United Industrial Workers, filed September 10, 1999, which resulted in a judgment in favor of the Defendants on August 30, 2001.
During the litigation, Mr. Jimenez filed motions for default judgment against Defendants, and Defendants filed motions for summary judgment. The Court treated Mr. Jimenez's motion as a Motion for Entry of Default, and Defendants' motions as Motions to Dismiss. On July 7, 2000, the Court denied Mr. Jimenez's Motion for Entry of Default; denied Defendant Coca-Cola's ("Defendant") motion to dismiss; and granted Defendant United Industrial Workers' motion to dismiss. On September 8, 2000, and again on December 22, 2000, Mr. Jimenez filed further motions for default judgment against Defendant, which were denied on November 3, 2000 and August 30, 2001, respectively. Meanwhile, on November 1, 2000, Defendant filed a motion for summary judgment, which was granted on August 30, 2001.
From the outset of this litigation, Mr. Jimenez engaged in harassment and abusive conduct toward the staff of the Clerk's Office. Consequently, the Chief Deputy Clerk of the Court issued a Memorandum on February 28, 2000 setting forth the procedure for allowing Mr. Jimenez to conduct his business with the Court. (Ex. 1). The Memorandum notes his weekly visits to the Courthouse, indicating that he was frequently disruptive and abusive to the Clerk's Office staff. The Memorandum outlined four conditions for Mr. Jimenez's contacts with the Court: (1) he was required to state the purpose of his visit to a Court Security Officer ("CSO"); (2) the CSO would advise him to be cooperative and comply with directions given by Court staff; (3) the CSO would advise him that he would be accompanied during his visit and that if he failed to behave appropriately, he may be removed and permanently barred from the Courthouse; and (4) the CSO was to accompany him during the transaction of his business with the Court and would escort him from the building for inappropriate behavior. Despite these measures, Mr. Jimenez continued to behave abusively toward Court staff, both on the telephone and in person.
Within five days of the Court's termination of this action, Mr. Jimenez filed a Motion for Ruling on a Motion to Produce filed November 15, 2000 and a Motion for Certified Signature from Judge. On September 28, 2001, he filed a Notice of Appeal, and on October 11, 2001, the Court denied his motions for a discovery ruling and for a certified signature. In conjunction with Mr. Jimenez's official filings with the Court after the case ended, he continued to telephone Court personnel on numerous occasions, disrupting the business of the Court with abusive and threatening language that resulted in the November 19, 2001 Order to Show Cause hearing.
At that hearing, various witnesses testified to the frequency and substance of Mr. Jimenez's contacts with the Clerk's Office and the Court's staff throughout the pendency of this litigation. This testimony demonstrated that the procedures outlined in the February 28, 2000 Memorandum had not been completely effective. The Operations Manager for the United States District Court for the District of Arizona described being summoned to the Customer Service counter by her staff when Mr. Jimenez became "irate" with the counter clerks. According to this witness, Mr. Jimenez's recurring complaint was that the clerks had not docketed his filings accurately. She repeatedly explained to Mr. Jimenez that if he identified specific errors, they would be promptly corrected. Despite the attempt to reason with Mr. Jimenez, he became increasingly abusive and combative: "He had done things like taken papers and thrown them on the counter, shaking his finger at the staff, would not listen to anything they said, just kept on basically yelling at them." (11/19/01 Hr'g Tr. at 9). This same witness testified that she had similar encounters with Mr. Jimenez at other times during this litigation and that he was invariably loud and disruptive, insulting the Clerk's Office staff and accusing them of conspiring against him.
Regarding Mr. Jimenez's telephone calls to the Clerk's Office personnel, the Assistant to the Clerk testified that she dealt with Mr. Jimenez twice by telephone in October 2001. During the initial conversation, which concerned Mr. Jimenez's disagreement with various docket entries, she succeeded in calming him down and directed him to submit his objections to the docket entries in writing. Two days later, Mr. Jimenez telephoned again with the identical complaint, refusing to submit anything in writing. The "conversation" consisted of Mr. Jimenez yelling at her. (Id. at 16).
The docket clerk assigned to handle Mr. Jimenez's Ninth Circuit filings testified that she dealt with him during his interlocutory appeal in 2000. Mr. Jimenez angrily accused her and her office of "misinterpreting" his filings, and he repeatedly visited and telephoned to register his complaint. (Id. at 20). This witness also testified that Mr. Jimenez was "volatile" and that she was "nervous" about the prospect of dealing with him in person. (Id. at 22).
Mr. Jimenez appealed the Court's dismissal of Defendant United Industrial Workers. The Ninth Circuit dismissed the appeal for lack of jurisdiction on September 20, 2000.
Finally, a law clerk for this Court testified that he received telephone calls from Mr. Jimenez in early 2001. Mr. Jimenez inquired about the status of his case and accused the Court and the arbitrator handling the union matter of conspiring with his attorney and Defendant Coca-Cola. The law clerk also testified that after the Court granted Defendant's Motion for Summary Judgment, Mr. Jimenez telephoned again in September 2001. indicating his intention to appeal and stating that he would "then take care of all the bad people afterwards." (Id. at 26).
Mr. Jimenez declined to cross-examine these witnesses at the hearing, steadfastly claiming not to recall the conversations and stating generally:
Well, all that she's [the clerk] testifying, I don't recall any of those incidents. I've been having good behavior, and they're the ones, this [clerk] there been giving me the hard time all the time. They're the ones causing the hostile environment.(Id. at 14). Curiously, though Plaintiff claims not to remember the incidents, he is able to state with confidence that it was the Clerk's Office that caused the incidents to be hostile. (See also id. at 18 23) (blaming Clerk's Office staff for the hostile incidents he claims not to recall). In fact, Mr. Jimenez did not proffer any reason or justification for his actions in writing or at the hearing.
Discussion
I. Legal Standard
"Courts of justice are universally recognized to be vested, by their very creation, with the power to impose silence, respect, decorum, in their presence, and submission to their lawful mandates." Chambers v. Nasco, 501 U.S. 32, 43 (1991) (internal quotation marks omitted); see also Illinois v. Allen, 397 U.S. 337, (1970) (upholding trial court's removal of disruptive criminal defendant from the courtroom during his trial). Moreover, "[t]his power reaches both conduct before the court and that beyond the court's confines." Id. at 44. In addition, the All Writs Act empowers the Court to enjoin vexatious litigants from filing complaints or other papers without leave of the Court. 28 U.S.C. § 1651 (a) (1988); see also Moy v. United States, 906 F.2d 467, 469 (9th Cir. 1990).
Concomitantly, a court's power to issue pre-filing injunctions when faced with vexatious litigants is well-established. See Moy, 906 F.2d at 469; De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990); see also Ibrahim v. District of Columbia, 755 A.2d 392, 393 (D.C. Cir. 2000) (upholding injunction requiring pro se litigant to get court approval before filing additional complaints or petitions); In re Martin-Trigona, 9 F.3d 226, 228 (2d Cir. 1993) (recognizing court's authority to issue pre-filing order). In these cases, courts were confronted with repeated meritless filings that threatened the "integrity of the courts and the orderly and expeditious administration of justice." Ibrahim, 755 A.2d at 393. As the Supreme Court has indicated, "[t]he goal of fairly dispensing justice . . . is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous requests." In re Sindram, 498 U.S. 177, 180 (1991).
The Ninth Circuit has also recognized "the inherent power of federal courts to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances." De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) (quoting Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989)). In De Long, the Ninth Circuit acknowledged that such pre-filing orders are an extreme remedy and should be imposed rarely. The court identified a number of considerations relevant for limiting a litigant's access to the courts.Id.
First, the trial court must provide notice to the litigant of the proposed sanction and afford an opportunity for him to oppose it. Id. Second, the court must develop an adequate record for review which clearly establishes that the litigant is abusing the judicial process.Id. Third the court must make substantive findings of frivolousness or harassment. Id. at 1148. Fourth, the court must consider the breadth of the order, being careful to narrowly tailor the remedy to fit the circumstances. Id., Where a court resorts to extreme remedies without first exhausting less drastic measures, the imposition of sanctions may constitute an abuse of discretion. See, Hamilton Cooper Steel Corp. v. Primary Steel. Inc., 898 F.2d 1428, 1429 (9th Cir. 1990).
II. Analysis
Mr. Jimenez has not engaged in frivolous filings, but his relentless abuse of the Clerk's Office and Court's staff is no less disruptive to the administration of justice. Mindful that limiting court access must be undertaken with "particular caution," De Long, 912 F.2d at 1147, the Court has applied the De Long factors and finds that a conditional limitation of Plaintiff's access to the Courthouse and telephone contact with the Clerk's Office and Court's staff is warranted.
A. Notice
The De Long court emphasized that a district court's failure to provide a litigant an opportunity to oppose a pre-filing order raises due process concerns. See De Long, 912 F.2d at 1147; see also In re Powell, 851 F.2d 427, 431 (D.C. Cir. 1988) ("Due process requires notice and an opportunity to be heard[.]"); In re Oliver, 682 F.2d 443, 446 (3d Cir. 1982) (requiring district court to give litigant notice and an opportunity to be heard); In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984) (same).
Recognizing these due process concerns, the Court notified Mr. Jimenez by order dated November 6, 2001 that as a result of his abusive conduct, the Court intended to limit his access to the Courthouse. Mr. Jimenez was directed to appear at the November 19, 2001 show cause hearing, and afforded an opportunity to present evidence or information on his behalf and to cross-examine the Courthouse staff who testified about his conduct. Although Mr. Jimenez appeared at the hearing, he declined to ask questions of the witnesses and offered no explanation for his conduct, except to insist emphatically that he was not at fault.
B. Record for Review and Substantive Findings
In De Long, the Ninth Circuit indicated that an adequate record for review should specify the conduct that prompted the trial court to impose a pre-filing order. The record must be "sufficiently developed to show that (a litigant] is abusing the judicial system." De Long, 912 F.2d at 1147; see also Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989) ("[I]njunctions are proper where the litigant's abusive and lengthy history is properly set forth."). In addition, "before a district court issues a pre-filing injunction against a pro se litigant, it is incumbent on the court to make `substantive findings as to the frivolous or harassing nature of the litigant's actions.'" De Long, 912 F.2d at 1148 (quoting Powell, 851 F.2d at 431).
Plaintiff commenced this litigation in September 1999. By February of the following year, Plaintiff's conduct had become sufficiently disruptive that a security officer was assigned to escort him during his Courthouse visits. On at least one occasion, security personnel ordered Plaintiff to leave the building. In the year and a half since then, as detailed above, the frequency and abusiveness of Plaintiff's contacts with Court staff have only escalated. Although each of the Clerk's Office staff described efforts made to explain the docketing process to Mr. Jimenez, he continued to harass and berate them, as recently as September 2001 after his case was terminated. Indeed, a staff member testified regarding the one occasion Mr. Jimenez identified an error, which she promptly corrected:
These incidents are documented in a series of contemporaneous e-mail messages prepared and sent to the Court by the Clerk's Office staff during January and February 2000. (Ex. 2).
[I]n one instance, he was correct, I did forget a couple words. I did go back and fix them. I apologized. I sent out a new docket.
(11/19/01 Hr'g Tr. at 25). Nevertheless, Plaintiff continued to call her and relentlessly challenge every docket entry she made.
For a period of approximately two years. Plaintiff has visited and telephoned the Courthouse, often on a weekly basis, subjecting staff to his invective and abuse. Although Court personnel took reasonable measures to defuse the tension associated with Mr. Jimenez' s Courthouse visits, the pattern of abusive behavior persisted. Accordingly, the Court finds that a suitably tailored order limiting Mr. Jimenez's access to the Courthouse and its personnel is amply justified. "No one, rich or poor, is entitled to abuse the judicial process." Tripati, 878 F.2d at 353.
C. Breadth of the Order
An order limiting a litigant's access to the courts "must be narrowly tailored to closely fit the specific vice encountered." De Long, 912 F.2d at 1148. Thus, in De Long, the Ninth Circuit vacated a pre-filing order that unnecessarily restricted a litigant's court access. See id. at 1149 (remanding for reconsideration). Similarly, the Ninth Circuit modified an overly broad pre-filing order, adopting the pre-filing restriction only with respect to claims by the litigant arising out of a single set of facts. See Moy, 906 F.2d at 471 ("[W]e find the order to be overbroad since it is designed to prevent Moy from filing any complaint in any case without leave of court, although Moy has only been abusive in the area of this particular litigation."); see also Tripati, 878 F.2d at 354 ("[T]here must be some guidelines as to what plaintiff must do to obtain the court's permission to file an action."). Ultimately, however, "even onerous conditions may be imposed upon a litigant as long as they are designed to assist the district court in curbing the particular abusive behavior involved." Id. at 352 (internal quotations and alterations omitted).
In this case, Mr. Jimenez has no further business with the District Court for the District of Arizona with respect to his claims against Coca-Cola and the United Industrial Workers in this matter. Indeed, though Mr. Jimenez expressed at the hearing an intention to file a separate lawsuit against the Equal Employment Opportunity Commission, he acknowledged that his case against Defendants is "finished" and "shipped to the Ninth Circuit." (11/19/01 Hr'g Tr. at 29-30). At the hearing, the Court advised him that he is free to file future law suits with the Court, though he must make any such filings with the District Court by mail or other appropriate means. (Id. at 33). Additionally, the Court indicated that if Mr. Jimenez should have an emergency that cannot be addressed by the use of the mail, he would be permitted to hand deliver documents to Courthouse security personnel. (Id.). Finally, the Court assured Mr. Jimenez that he would not be prevented from pursuing his pending appeal, nor barred from other courthouses. (Id. at 35). The specific scope and nature of the Court's Order restricting Mr. Jimenez is set forth below.
IT IS ORDERED that Joe Jimenez is not allowed to telephone the Clerk's Office or the Court's staff of the District Court for the District of Arizona concerning the above entitled matter.
IT IS FURTHER ORDERED that Joe Jimenez is not allowed to personally visit the Clerk's Office or the Court's Staff at the Sandra Day O'Connor U.S. Courthouse concerning the above entitled matter.
IT IS FURTHER ORDERED that if Joe Jimenez believes he has any reason to contact the Court's staff or the Clerk's Office concerning the above entitled matter, he may do so only in writing, delivered by mail or other appropriate means. If he has good cause to telephone the Court's staff or the Clerk's Office concerning the above entitled matter, he may seek an amendment to this order by filing a motion with this Court.
IT IS FURTHER ORDERED that if Joe Jimenez believes he has business with the District Court for the District of Arizona unrelated to the above entitled matter that requires him to visit the Courthouse, the Court staff, or the Clerk's Office, he may visit under the following conditions:
1. He must state the purpose of his visit to court security personnel and identify the party he wishes to visit;
2. He will be escorted by court security personnel to the appropriate destination; and
3. He will conduct his business expeditiously and courteously.IT IS FURTHER ORDERED that if Joe Jimenez believes he has business with the District Court for the District of Arizona unrelated to the above entitled matter that requires him to make telephone calls to the Court's staff, he will make such calls expeditiously and courteously.
IT IS FURTHER ORDERED that if Joe Jimenez visits the Courthouse for business unrelated to the above entitled matter and is again abusive and discourteous, Court Security Officers are to escort Mr. Jimenez out of the Courthouse. All personnel of the District Court for the District of Arizona are to make written notes of any abusive telephone calls in violation of this Order and immediately discontinue such calls when Mr. Jimenez becomes abusive. Court Security Officers and personnel of the District Court for the District of Arizona are ordered to report any such incidents of abusive or harassing conduct to the Chief Judge of the District Court of Arizona, Judge Stephen McNamee.