Isaza v. Trotter et al

Filing 3

ORDER that the Clerk SHALL RETAIN Plaintiff Rigoberto E. Isaza's Complaint and SHALL MAIL him a blank Application to Proceed In Forma Pauperis for incarcerated litigants. Plaintiff shall have until April 11, 2016, to either file a completed Application to Proceed In Forma Pauperis; or file a notice of withdrawal of his proposed complaint. Signed by Magistrate Judge Peggy A. Leen on 3/10/16. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RIGOBERTO E. ISAZA,

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Case No. 2:15-cv-00821-JCM-PAL
Plaintiff,

v.

ORDER

EARL M. TROTTER, et al.,
Defendants.

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This matter is before the Court on Plaintiff Rigoberto E. Isaza’s Proposed Complaint

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(Dkt. #1) and Financial Certificate (Dkt. #2). This proceeding is referred to the undersigned

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pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 and 1-9 of the Local Rules of Practice.

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Plaintiff is a prisoner proceeding in this action pro se, which means that he is not

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represented by an attorney. See LSR 2-1. Pursuant to 28 U.S.C. § 1915 and LSR 1-1, any

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person who is unable to prepay the fees in a civil case may apply to the Court for authority to

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proceed in forma pauperis (“IFP”), meaning without prepaying the full $350.00 filing fee.

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Although he did not file the Court’s form application to proceed IFP, Plaintiff has submitted the

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financial affidavit and inmate trust account statement required by § 1915(a) showing that he is

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unable to prepay fees and costs or give security for them. Upon timely submission of an IFP

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application, his request to proceed in forma pauperis would ordinarily be granted. However, for

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the following reasons, the Court will give Plaintiff the opportunity to withdraw his complaint.

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Although Plaintiff submitted his proposed Complaint (Dkt. #1) on the Court’s form civil

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rights complaint pursuant to 42 U.S.C. § 1983, it alleges claims for fraud from 2004–2016,

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“Breach of Will” from 2004–2015, and “back pay” from 2013–2016. He filled out the form

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asking to state what civil rights have been violated and he responded: “Article One of the Federal

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Rights Violations Nevada Constitution Punitive Damage 14 ALRFed608 and Article 16
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Amendments.” Id. at 5. Plaintiff alleges that his step father, Defendant Earl M. Trotter, deprived

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him of an inheritance of a home Plaintiff’s mother left him in her will before she passed away in

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1996. He alleges Trotter sealed the will, moved out of the house, and moved to South Carolina

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in 1999. He believes that under probate law, rent monies should have gone to the kids and that

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Trotter has defrauded him of $600 per month since 1999. He claims Farmers Insurance violated

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the “Public Information Act” and denied him a copy of the will under color of law. Plaintiff

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states that a Farmers agent told him that a sealed copy of his mother’s will is at one particular

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Las Vegas office of the insurer.

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As a general matter, federal courts are courts of limited jurisdiction and possess only that

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power authorized by the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004).

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Multiple Supreme Court decisions have recognized a “probate exception” to otherwise proper

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federal jurisdiction, similar to the domestic relations exception. See, e.g., Marshall v. Marshall,

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547 U.S. 293, 308 (2006) (collecting cases). The “probate exception reserves to state probate

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courts the probate or annulment of a will and the administration of a decedent’s estate; it also

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precludes federal courts from taking steps to dispose of property that is in the custody of a state

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probate court. Id. at 311–12.

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Nevada law clearly shows the legislature’s intent to keep claims against an estate in the

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state probate court. NRS 30.060 restricts actions for a declaration of heirship to state courts

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conducting probate, estate administration, and other limited proceedings. The Nevada Supreme

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Court has also held that judicial review of a personal representative’s rejection of a creditor’s

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claim lies exclusively in the Nevada district court administering the estate. Bergeron v. Loeb,

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100 Nev. 54, 675 P. 2d 397, 399 (Nev. 1984). Both state and federal case law demonstrate that

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this Court lacks federal jurisdiction under the “probate exception” when a plaintiff seeks to

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recover money damages arising out of the disposition of estate property.

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Here, Plaintiff’s proposed complaint alleges jurisdiction under 42 U.S.C. § 1983 for a

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civil rights violation, but the substance of the allegations show that he is actually seeking relief

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under state probate law. Plaintiff has not properly identified any statutory basis to support this

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Court’s jurisdiction. If the Court grants Plaintiff IFP status, he will be required, under 28 U.S.C.
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§ 1915, to pay the full $350.00 filing fee, even if his complaint is dismissed. As explained

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above, the Court seriously doubts whether Plaintiff can establish a basis for federal jurisdiction.

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Where, as here, Plaintiff has submitted an incomplete IFP application the Court would normally

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grant Plaintiff an opportunity to resubmit a completed application with the required supporting

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documents. However, because the Court strongly suspects Plaintiff may not be able to state a

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federal claim, the Court will allow Plaintiff 30 days to reconsider whether he wishes to submit an

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IFP application or file a notice of withdrawal of his application and complaint. If Plaintiff

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wishes to pursue his claims in this Court he will have 30 days to submit a completed application.

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If the Court grants him IFP status, the Court will formally screen Plaintiff’s complaint, and order

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that he pay the $350.00 filing fee in accordance with 28 U.S.C. § 1915, in full or in installments

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until paid in full.

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For the reasons explained,

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IT IS ORDERED:

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1. The Clerk of Court SHALL RETAIN Plaintiff Rigoberto E. Isaza’s Complaint

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and SHALL MAIL him a blank Application to Proceed In Forma Pauperis for

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incarcerated litigants.

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2. Plaintiff shall have until April 11, 2016, to either:

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a. file a completed Application to Proceed In Forma Pauperis; or

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b. file a notice of withdrawal of his proposed complaint. If he does not, the

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Court will screen the proposed complaint pursuant to 28 U.S.C. 1915.

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3. Failure to comply with this Order by submitting (a) a completed application to

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proceed in forma pauperis or (b) a notice of withdrawal of his proposed complaint

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will result in a recommendation to the District Judge that this case be dismissed

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without further notice.

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Dated this 10th day of March, 2016.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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