Choate et al v. Nevada Division Mortgage Lending et al

Filing 11

ORDER that Plaintiffs' 10 Amended Complaint is DISMISSED WITHOUT PREJUDICE. Plaintiffs have until 5/7/2018 to file a Second Amended Complaint. If a Second Amended Complaint is later filed, the Clerk of the Court is directed NOT to issue Summons. The Court will issue a Screening Order. Signed by Magistrate Judge Cam Ferenbach on 4/6/2018. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
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STEPHEN CHOATE, et rel. BARBARA
PURNELL,

Case No. 2:17-cv-03094-RFB-VCF

Plaintiffs,

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ORDER

vs.
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AMENDED COMPLAINT (ECF NO. 10)
NEVADA DIVISION MORTGAGE LENDING,
et al.,
Defendants.

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Before the Court is pro se Plaintiffs Stephen Choate and Barbara Purnell’s Amended Complaint.
(ECF No. 10). The Court hereby orders Plaintiffs to submit a second amended complaint to address the
issues discussed below.

DISCUSSION

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The Court previously granted Plaintiffs’ application to proceed in forma pauperis. (ECF No. 6 at

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1-2). However, the Court dismissed Plaintiff’s complaint because it was “difficult to follow” and seemed

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to be both a 42 U.S.C. §1983 civil rights complaint and a request for a direct appeal from a state court
judgment. (Id. at 2-3).
On March 22, 2018, Plaintiffs filed an amended complaint against the Commission of Nevada’s

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Mortgage Lending Division and the Attorney General of Nevada. (ECF No. 10). Plaintiffs allege that a
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Nevada civil proceeding brought against them simultaneously with a Nevada criminal case brought against
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Choate violated several constitutional provisions. (Id. at 3). In their request for relief, Plaintiffs ask for
the Court:
to rule on Constitutional Amendments violated an[d] “overturn” illegal
conviction/judgment in interest of justice as ‘injunctive relief,” or “toll” or

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set aside civil judgment until Habeas Corpus Petition is decided and/or
overturns criminal conviction.
(Id. at 25). It appears that Choate has already filed a habeas corpus petition regarding the criminal

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conviction at issue in this case. (Id. at 15).
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Because the Court granted Plaintiffs’ applications to proceed in forma pauperis, it must review
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Plaintiffs’ complaint to determine whether the complaint is frivolous, malicious, or fails to state a plausible
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claim. 28 U.S.C. § 1915(e)(2)(B). Federal Rule of Civil Procedure 8(a) provides that a complaint “that
states a claim for relief” must contain “a short and plain statement of the claim showing that the [plaintiff]

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is entitled to relief.” The Supreme Court’s decision in Ashcroft v. Iqbal states that to satisfy Rule 8’s

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requirements, a complaint’s allegations must cross “the line from conceivable to plausible.” 556 U.S.

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662, 680 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, (2007)).

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“[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than

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formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.

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Gamble, 429 U.S. 97, 106 (1976)). If the Court dismisses a complaint under § 1915(e), the plaintiff should
be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from

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the face of the complaint that the deficiencies could not be cured by amendment. Cato v. United States,
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70 F.3d 1103, 1106 (9th Cir. 1995).
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Though Plaintiffs assert that this is a § 1983 case, Plaintiffs are not seeking relief that can be
awarded in a § 1983 action. Plaintiff ask this Court to vacate or overturn a state court civil judgment and

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a state court criminal conviction. “A party disappointed by a decision of a state court may seek reversal

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of that decision by appealing to a higher state court.” Noel v. Hall, 341 F.3d 1148, 1155 (9th Cir. 2003).

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Federal courts do not have jurisdiction over “‘de facto appeals’…in which ‘a federal plaintiff asserts as a

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legal wrong an allegedly erroneous decision by a state court.’” Vasquez v. Rackauckas, 734 F.3d 1025,

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1036 (9th Cir. 2013) (quoting Noel, 341 F.3d at 1164 (emphasis added)). In addition, Ҥ 1983 [i]s not the
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proper vehicle for claims for relief which directly challenge the lawfulness of the plaintiff's conviction.”

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Hand v. Young, 868 F. Supp. 289, 291 (D. Nev. 1994). Ҥ 1983 is not a backdoor through which a federal

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court may overturn a state court conviction.” Houston v. City of Carson, No. 3:14-CV-00687-MMD, 2015

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WL 5092698, at *4 (D. Nev. Aug. 27, 2015). Choate has already apparently filed a habeas corpus petition

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to challenge the criminal conviction at issue in this case. (ECF No. 10 at 15).

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While Plaintiff’s amended complaint is not a proper § 1983 action, it is possible the complaint’s
deficiencies may be cured by amendments.

§ 1983 actions can be used to recover damages for

constitutional violations under specific conditions. See Bell v. City of Boise, 709 F.3d 890 (9th Cir. 2013);
Heck v. Humphrey, 512 U.S. 477 (1994). Therefore, the Court will give Plaintiffs the opportunity to
amend their complaint. The second amended complaint must be “complete in itself, including exhibits,

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without reference to the superseded pleading.” LR 15-1.
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ACCORDINGLY,
IT IS ORDERED that Plaintiffs’ Amended Complaint (ECF No. 10) is DISMISSED WITHOUT
PREJUDICE.

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IT IS FURTHER ORDERED that Plaintiffs have until May 7, 2018 to file a second amended

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complaint addressing the issues discussed above. Failure to timely file an amended complaint that

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addresses the deficiencies noted in this Order may result in a recommendation for dismissal with prejudice.

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IT IS FURTHER ORDERED that if a second amended complaint is later filed, the Clerk of the

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Court is directed NOT to issue summons on the second amended complaint. The Court will issue a
screening order on the second amended complaint and address the issuance of Summons at that time, if

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applicable. See 28 U.S.C. § 1915(e)(2).
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NOTICE

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Pursuant to Local Rules IB 3-1, a party may object to orders issued by the Magistrate Judge.

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Objections must be in writing and filed with the Clerk of the Court within fourteen days. (See LR IB 3-

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1). The Supreme Court has held that the courts of appeal may determine that an appeal has been waived

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due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985).

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This circuit has also held that (1) failure to file objections within the specified time and (2) failure to

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properly address and brief the objectionable issues waives the right to appeal the District Court's order

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and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157

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(9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).
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Under LSR 2-2, the Plaintiff must immediately file written notification with the Court of any
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change of address. The notification must include proof of service upon each opposing party of the party’s
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attorney. Failure to comply with this Rule may result in dismissal of the action. (See LSR 2-2).

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DATED this 6th day of April, 2018.

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_________________________

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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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