William Windsor v. Sean Boushie , 677 F. App'x 311 ( 2017 )

FILED
NOT FOR PUBLICATION JAN 30 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM M. WINDSOR, No. 14-36042
Plaintiff-Appellant, D.C. No. 9:13-cv-00311-DLC
v.
MEMORANDUM*
SEAN M. BOUSHIE; UNIVERSITY OF
MONTANA,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
William M. Windsor appeals pro se from the district court’s order declaring
him a vexatious litigant and its judgment dismissing his diversity action as
frivolous. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of discretion. Denton v. Hernandez, 504 U.S. 25, 33-34 (1992) (dismissal of a
complaint as frivolous); Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1056-
57 (9th Cir. 2007) (vexatious litigant order). We affirm.
The district court did not abuse its discretion in dismissing Windsor’s action
as frivolous because Windsor’s complaint, liberally constured, lacks an arguable
basis in fact. See Denton, 504 U.S. at 32-33 (a claim lacks an arguable basis in fact
“when the facts alleged rise to the level of the irrational or the wholly incredible . .
. .”).
The district court did not abuse its discretion in declaring Windsor a
vexatious litigant and imposing a pre-filing order against him because it gave
Windsor notice and an opportunity to be heard, developed an adequate record for
review, made findings regarding his frivolous litigation history, and narrowly
tailored the restrictions in the pre-filing order. See Molski, 500 F.3d at 1056-61
(discussing factors to consider before imposing pre-filing restrictions). Contrary to
Windsor’s contention, the district court satisfied the requirement of providing an
opportunity to be heard by written submission rather than an oral or evidentiary
hearing.
We reject as meritless Windsor’s various contentions regarding Magistrate
Judge Lynch.
2 14-36042
Appellee Boushie’s request for sanctions, set forth in his answering brief, is
denied. See Fed. R. App. P. 38 (requiring a separate motion for fees); Winterrowd
v. Am. Gen. Annuity Ins. Co., 556 F.3d 815, 828 (9th Cir. 2009) (a request made in
an appellate brief does not satisfy Rule 38).
AFFIRMED.
3 14-36042