Choate et al v. Nevada Division Mortgage Lending et al

Filing 6

ORDER. IT IS ORDERED that 1 , 5 Plaintiffs' applications to proceed in forma pauperis are GRANTED. IT IS FURTHER ORDERED that the Clerk of Court shall file 1 -1 the Complaint. IT IS FURTHER ORDERED that 1 -1 Plaintiffs 9; complaint is DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Plaintiffs have until 3/14/2018 to file an amended complaint. IT IS FURTHER ORDERED that if an amended complaint is later filed, the Clerk of the Court is directed NOT to issue summons on the second amended complaint. See Order for details. Signed by Magistrate Judge Cam Ferenbach on 2/13/2018. (Copies have been distributed pursuant to the NEF - MR)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 5 STEPHEN CHOATE, et rel. BARBARA PURNELL, Case No. 2:17-cv-03094-RFB-VCF Plaintiffs, 6 ORDER vs. 7 8 NEVADA DIVISION MORTGAGE LENDING, et al., APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC NOS. 1, 5) AND COMPLAINT (ECF NO. 1-1) Defendant. 9 10 Before the Court are pro se Plaintiffs Stephen Choate and Barbara Purnell’s applications to 11 12 proceed in forma pauperis (ECF Nos. 1, 5) and complaint (ECF No. 1-1). For the reasons stated below, 13 Plaintiffs’ in forma pauperis applications are granted. 14 The Court, however, orders the Plaintiff’s complaint be dismissed without prejudice. 15 DISCUSSION 16 Plaintiffs’ filings present two questions: (1) whether Plaintiffs may proceed in forma pauperis 17 under 28 U.S.C. § 1915(e) and (2) whether Plaintiffs’ complaint states a plausible claim for relief. Each 18 is discussed below. 19 I. Whether Plaintiffs May Proceed In Forma Pauperis 20 Plaintiffs' applications to proceed in forma pauperis are granted. Under 28 U.S.C. § 1915(a)(1), a 21 plaintiff may bring a civil action “without prepayment of fees or security thereof” if the plaintiff submits 22 23 24 25 a financial affidavit that demonstrates the plaintiff “is unable to pay such fees or give security therefor.” According to Stephen Choate’s affidavit, he is incarcerated, he does not receive money from any outside source, and his inmate balance would not cover the filing fees. (ECF No. 1). Barbara Purnell’s affidavit states that her monthly expenses exceed her monthly income. (ECF No. 5). Plaintiffs’ applications to 1 2 3 proceed in forma pauperis are, therefore, granted. II. Whether Plaintiffs’ Complaint States a Plausible Claim 4 Because the Court grants Plaintiffs’ applications to proceed in forma pauperis, it must review 5 Plaintiffs’ complaint to determine whether the complaint is frivolous, malicious, or fails to state a plausible 6 claim. 28 U.S.C. § 1915(e)(2)(B). Federal Rule of Civil Procedure 8(a) provides that a complaint “that 7 states a claim for relief” must contain “a short and plain statement of the claim showing that the [plaintiff] 8 is entitled to relief.” The Supreme Court’s decision in Ashcroft v. Iqbal states that to satisfy Rule 8’s 9 requirements, a complaint’s allegations must cross “the line from conceivable to plausible.” 556 U.S. 10 11 662, 680 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, (2007)). “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than 12 formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. 13 14 15 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 16 the face of the complaint that the deficiencies could not be cured by amendment. Cato v. United States, 17 70 F.3d 1103, 1106 (9th Cir. 1995). 18 Plaintiffs’ complaint is difficult to follow. Plaintiffs style the complaint as both a 42 U.S.C. § 19 1983 civil rights complaint and “a request for direct appeal” from a January 12, 2015 civil judgment 20 instituted by the Nevada Division of Mortgage Lending. (ECF No. 1-1 at 1, 3, 9). Plaintiffs assert the 21 22 23 civil judgment violates the double jeopardy clause because the civil case happened at the same time as a criminal case against Choate. (Id. at 4-5). Plaintiffs also assert the civil judgment violated their right to free speech because the coexisting civil and criminal cases had a “chilling effect” on Plaintiffs’ ability to 24 defend themselves. (Id. at 6). 25 2 The Court has already noted several issues with the complaint in a previous order denying Plaintiff 1 2 3 Choate’s application to proceed in forma pauperis without prejudice. (ECF No. 4). Plaintiffs did not address these concerns when supplementing their financial affidavits. 4 Whether styled as an appeal or § 1983 complaint, the case appears to be time-barred. In Nevada, 5 the applicable statute of limitations for 42 U.S.C. § 1983 claims is two years. Perez v. Seevers, 869 F.2d 6 425, 426 (9th Cir. 1989) (per curiam); Abram v. City of Reno, No. 315-cv-00029-MMD-WGC, 2015 WL 7 5829886, at *3 (D. Nev. Oct. 6, 2015). The statute of limitations may be tolled in certain circumstances. 8 See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995); Seino v. Emp’rs Ins. Co. of Nev., 111 9 10 P.3d 1107, 1112 (Nev. 2005). The complaint in this case was filed more than two years after the civil judgment was entered. In addition, it appears that Plaintiffs are appealing a final order of the 11 Commissioner of Mortgage Lending. Under NRS 645B.750(3), these appeals must adhere to the 12 provisions of NRS 233B. NRS 233B.130(2)(d) states that petitions for judicial review must be filed within 13 14 15 30 days after service of the Commissioner’s final decision. The complaint also fails to show how the double jeopardy clause is implicated in this action. “The 16 Clause protects only against the imposition of multiple criminal punishments for the same offense.” 17 Hudson v. United States, 522 U.S. 93, 98-99 (1997) (emphasis in the original). The complaint addresses 18 civil sanctions against Plaintiffs, not multiple criminal sanctions. 19 Therefore, Plaintiffs’ complaint is dismissed without prejudice. Plaintiffs must file an amended 20 complaint (1) explaining how their action is not barred by the § 1983 statute of limitations and time limit 21 22 in NRS 233B.130(2)(d) and (2) clarifying or removing the double jeopardy claim. The amended complaint must be “complete in itself, including exhibits, without reference to the superseded pleading.” 23 LR 15-1. 24 25 3 ACCORDINGLY, 1 2 3 IT IS ORDERED that Plaintiffs’ applications to proceed in forma pauperis (ECF Nos. 1, 5) are granted. 4 IT IS FURTHER ORDERED that the Clerk of Court shall file the Complaint (ECF No. 1-1). 5 IT IS FURTHER ORDERED that Plaintiffs’ complaint (ECF No. 1-1) is DISMISSED WITHOUT 6 PREJUDICE. 7 IT IS FURTHER ORDERED that Plaintiffs have until March 14, 2018 to file an amended 8 complaint addressing the issues discussed above. Failure to timely file an amended complaint that 9 10 addresses the deficiencies noted in this Order may result in a recommendation for dismissal with prejudice. IT IS FURTHER ORDERED that if an amended complaint is later filed, the Clerk of the Court is 11 directed NOT to issue summons on the second amended complaint. The Court will issue a screening 12 order on the second amended complaint and address the issuance of Summons at that time, if applicable. 13 14 15 See 28 U.S.C. § 1915(e)(2). NOTICE 16 Pursuant to Local Rules IB 3-1, a party may object to orders issued by the Magistrate Judge. 17 Objections must be in writing and filed with the Clerk of the Court within fourteen days. (See LR IB 3- 18 1). The Supreme Court has held that the courts of appeal may determine that an appeal has been waived 19 due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). 20 21 This circuit has also held that (1) failure to file objections within the specified time and (2) failure to properly address and brief the objectionable issues waives the right to appeal the District Court's order 22 and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 23 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 24 25 4 Under LSR 2-2, the Plaintiff must immediately file written notification with the Court of any 1 2 3 4 change of address. The notification must include proof of service upon each opposing party of the party’s attorney. Failure to comply with this Rule may result in dismissal of the action. (See LSR 2-2). DATED this 13th day of February, 2018. 5 6 _________________________ 7 CAM FERENBACH UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5

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