Opinion
Case No. 16-cv-06505-VC
11-10-2016
CHARLES KINNEY, Plaintiff, v. ROGER W. BOREN, et al., Defendants.
ORDER DENYING APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND DISMISSING COMPLAINT SUA SPONTE
Re: Dkt. Nos. 1, 3, 7
Kinney's ex parte application for a temporary restraining order seeks in effect to reverse a California Court of Appeal decision requiring that Kinney post a security as a vexatious litigant. See Kempton v. Clarke, No. B266125 (Cal. Ct. App. Oct 12, 2016); Cal. Civ. Pro. Code § 391.1. Kinney has also filed a complaint, which rests on the same allegedly "erroneous decision by a state court." Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003). Neither action is proper in a federal district court, which doesn't sit in appeal of state-court decisions. Id.; see also Cooper v. Ramos, 704 F.3d 772, 779 (9th Cir. 2012). Accordingly, Kinney's request for a restraining order is denied, and Kinney's complaint is dismissed with prejudice sua sponte. See Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981).
Kinney has been declared a vexatious litigant in California Superior Court and at the California Court of Appeal. Kempton v. Clark, No. B248713, 2014 WL 4772269, at *1 (Cal. Ct. App. Sept. 25, 2014), reh'g denied (Oct. 14, 2014), review denied (Dec. 17, 2014); In re Kinney, 201 Cal. App. 4th 951, 960 (2011). He has also been declared a vexatious litigant in the U.S. District Court for the Central District of California. Order (Dkt. 70), Kinney v. Cooper, No. 15-cv-8910 (C.D. Cal. May 13, 2016). --------
Kinney is cautioned against filing frivolous or bad-faith actions. Based on his history in the Northern District, Kinney should be well aware of the reasons claims of this kind can't proceed - lack of jurisdiction, sovereign immunity, and preclusion chief among them. See Order (Dkt. 33), Kinney v. State Bar of Cal., No. 16-cv-02277-MMC (N.D. Cal. Aug. 29, 2016); Order (Dkt. 9), Kinney v. Lavin, No. C 14-3817 PJH (N.D. Cal. Aug 22, 2014). Kinney has already been disbarred for his abusive litigation practices. See In the Matter of Charles Gadsden Kinney, Case Nos. 09-O-18100 (09-O-18760), at 14-15 (State Bar Ct. of Cal. Dec. 12, 2014). But even as a private pro se litigant, he may still be sanctioned under Rule 11 and 28 U.S.C. § 1927. Wages v. I.R.S., 915 F.2d 1230, 1235-36 (9th Cir. 1990).
IT IS SO ORDERED. Dated: November 10, 2016
/s/_________
VINCE CHHABRIA
United States District Judge