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Day v. State of Florida

United States District Court, W.D. Washington, Seattle

May 21, 2014

ROY A. DAY, Plaintiff,
STATE OF FLORIDA, et al., Defendants.


RICARDO S. MARTINEZ, District Judge.

THIS MATTER comes upon the Court's recent Order to Show Cause and Plaintiff Roy A. Day's response thereto, concerning the proposed entry of a pre-filing restrictive order against him. Dkt. ##10, 14. Having carefully considered Mr. Day's response, the relevant record of his litigation in this District, and for the reasons set out below, the Court enters a pre-filing restriction against Plaintiff as specified herein.


Plaintiff Roy A. Day, a resident of the State of Florida and appearing pro se and in forma pauperis, filed seven lawsuits in this Court on March 11 and March 13, 2014. The lawsuits arise out of a stalking incident of Mr. Day's former coworker in Hudson, Florida in 2009, for which Mr. Day's employment at a Wal-Mart store was terminated and he was arrested and charged with criminal misdemeanor stalking. See State v. Day, Crim. No. 09-4772MMAWS. Plaintiff was tried, convicted, and sentenced to 300 days incarceration in the Pasco County Detention Center. See In re Roy Day Litigation, 2011 WL 550207, *2 (M.D. Fla. 2011).

In 2011, Plaintiff filed five complaints, nearly identical to five of the instant complaints, arising from these circumstances with the United States District Court for the Middle District of Florida. Four of these complaints were screened and dismissed with prejudice as frivolous and one was dismissed with leave to amend. See In re Roy Day Litigation, 2011 WL 550207 at **3-4. In the course of dismissing the complaints, the presiding judge recounted Mr. Day's vexatious and abusive litigious activities in the Middle District of Florida and the efforts taken to stem their tide, including entry of a pre-filing restriction and imposition of a sanction not less than $1000 for any proposed complaint found to be frivolous. See In re Roy Day Litigation, Case NO. 95-143-MISC-J (Dec. 21, 1995). The court subsequently imposed $4000 in sanctions for four attempted frivolous complaints. In dismissing the five complaints arising from the 2009 stalking incident, Judge Wilson noted that "Day's submission of a pile of materials has again damaged the judicial system" and warned that "this deviation from the policy of no screening until sanctions are paid will not be repeated." In Re Roy Day Litigation, 2011 WL 550207, at **6-7.

Upon Plaintiff's filing of the seven instant complaints in this Court, the Court conducted a review of Mr. Day's litigation activities within and without this District. This review revealed not only the filing of five of these complaints in the U.S. District Court for the Middle District of Florida, but also the filing of all seven of them in the U.S. District Court for the District of Delaware in November and December 2012. See Day v. White, et al., Case NO. 12-1719-LPS. The District of Delaware dismissed all seven of Plaintiff's cases pursuant to 28 U.S.C. § 1915 as frivolous and malicious, for failure to state a claim, and/or as time-barred or barred by Eleventh Amendment immunity. See, e.g., Case NO. 12-1719, Dkt. #7 (Apr. 8, 2013). The Third Circuit affirmed all seven dismissals on appeal. See Day v. Toner, 530 Fed. Apps. 118 (3d Cir. 2013); Day v. Florida, 530 Fed.Appx. 134 (3d Cir. 2013); Day v. Ibison, 530 Fed.Appx. 130 (3d Cir. 2013). After finding Plaintiff's response to a show cause order unresponsive, the district court issued a pre-filing restrictive order enjoining Plaintiff from filing a case without prior authorization of the court in an effort to avoid sanctions imposed by the Middle District of Florida or related to the 2009 criminal misdemeanor stalking case. See Case No. 12-1718, Dkt. # 20 (D. Del. July 27, 2013).

Mr. Day carried forward his pattern of vexatious litigation by filing the seven previously dismissed, above-captioned lawsuits in this Court. The seven lawsuits were filed against the State of Florida, Sheriff Bob White, Pasco County Sheriff's Department, Major Brian Head, Detective Daniel Toner, Donna H. Newton, Daniel Diskey, Brian Aungst, Jr., Mary Flanerty, Wal-Mart Stores, Inc., James Schroder, Debra Roberts, Chris Sprowls, Lynda Barack, Sabrina Farides, Elaine Horne, Laurie Nourse, Stanley R. Mills, Elizabeth Kovachevich, Susan H. Black, J. L. Edmondson, and Steve E. Ibison. The Court screened the lawsuits pursuant to 28 U.S.C. § 1915(e)(2) and dismissed all of them with prejudice prior to service as malicious attempts to circumvent bar orders issued by other U.S. District Courts and to abuse the judicial process by raising claims already litigated and lost. The Court also dismissed each of them on additional, individual grounds, including for failure to state a claim and for seeking monetary relief against a defendant who is immune from suit, pursuant to 28 U.S.C. § 1915(e)(2)(B). See, e.g., Case No. 14-cv-367RSM, Dkt. #10. Mr. Day has appealed these dismissals. See Dkt. #13.

As a result of the numerous filings in this Court, Plaintiff was ordered to show cause within 45 days why he should not be enjoined from filing any complaint, lawsuit, or petition for writ of mandamus in the United States District Court for the Western District of Washington: (1) in an effort to avoid sanction imposed upon him by the United States District Court for the Middle District of Florida, or (2) regarding or relating to the criminal misdemeanor stalking case filed against him on July 6, 2009 in the Circuit Court of the Sixth Judicial Circuit in and for Pasco County, wherein he was found guilty and sentenced, including but not limited to actions against the above-named Defendants. See Dkt. #10. Mr. Day timely filed a response to the show cause Order. Dkt. #14.


The All Writs Act, 28 U.S.C. § 1651(a), provides district courts with the inherent power to enter pre-filing restrictive orders against vexatious litigants with abusive and lengthy litigation histories. See De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990); Weissman v. Quail Lodge Inc., 179 F.3d 1194, 1197 (9th Cir. 1999). "Such pre-filing orders may enjoin the litigant from filing further actions or papers unless he or she first meets certain requirements, such as obtaining leave of the court or filing declarations that support the merits of the case." Weissman, 179 F.3d at 1197. Because pre-filing restrictive orders present an extreme remedy, touching on a litigant's due process rights, courts should only issue them upon careful consideration and in rare circumstances. See Molksi v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007). "Nevertheless, [f]lagrant 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.'" Id. (quoting De Long, 912 F.2d at 1148).

In the Ninth Circuit, district courts must adhere to the following guidelines before entering a pre-filing restrictive order: (1) the litigant must be given notice and an opportunity to oppose the order before it is entered; (2) the district court must compile "an adequate record for review"; (3) the court must make "substantive findings as to the frivolous or harassing nature of the litigant's actions"; and (4) the pre-filing order "must be narrowly tailored to closely fit the specific vice encountered." De Long, 912 F.2d at 1149.

1. Notice and Opportunity to be Heard

"Due process requires notice and an opportunity to be heard." De Long, 912 F.2d at 1147 (quoting In re Powell, 851 F.2d 427, 431 (D.C. Cir. 1988)). In this case, Plaintiff has been given notice and opportunity to oppose the pre-filing restriction. Although Plaintiff has responded to the show cause Order, his response fails to address the concerns of the Court. Instead, Plaintiff's response largely speaks to the issue of this Court's jurisdiction. As to Plaintiff's efforts to avoid the sanctions opposed on him in the Middle District of Florida, Plaintiff maintains that "the Eleventh Circuit is disqualified from proceeding on each and all legal actions of Plaintiff" and protests that the sanctions are "moot." Case No. 14-367 RSM, Dkt. #14, p. 3. Plaintiff further asserts that he selected this District as his venue of choice due to its "EXCELLENT digitalelectronic filing system." Id. at p. 4. As to his repeated filing of frivolous complaints arising from his 2009 criminal misdemeanor stalking case, Plaintiff asserts that he will refrain from filing such actions unless his prior pleadings are "altered or edited or deleted by Federal employees at PACER." Id. at p. 5. Plaintiff then proceeded to file two additional complaints, both of which were based on events arising in the ...

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