2:17-cv-03094
D. Nev.Feb 13, 2018Background
- Pro se plaintiffs Stephen Choate (incarcerated) and Barbara Purnell filed an action challenging a January 12, 2015 civil judgment arising from the Nevada Division of Mortgage Lending and sought in forma pauperis status.
- Choate submitted an inmate affidavit showing no outside income and insufficient funds; Purnell stated monthly expenses exceed income.
- Plaintiffs styled the filing partly as a 42 U.S.C. § 1983 civil rights complaint and partly as a request for direct appeal of the Commissioner’s civil judgment.
- Plaintiffs asserted the civil judgment violated the Double Jeopardy Clause (because a related criminal case was pending) and violated free speech by chilling their defense.
- The complaint was filed more than two years after the civil judgment; Nevada administrative appeals under NRS 233B require petitions within 30 days of the Commissioner’s final decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs may proceed in forma pauperis | Choate and Purnell say they cannot afford filing fees | No contest to indigency shown | Granted — affidavits show inability to pay fees under 28 U.S.C. § 1915(a) |
| Whether complaint is frivolous or fails to state a claim under § 1915(e)(2)(B) | Complaint challenges civil judgment as violating Double Jeopardy and free speech; seeks review/appeal | Complaint is time-barred and does not allege a cognizable double jeopardy violation for civil sanctions; applicable administrative appeal period applies | Dismissed without prejudice for failure to state a plausible claim; leave to amend granted with instructions |
| Whether § 1983 claims are time-barred | Plaintiffs contend rights were violated but do not rebut timeliness | Statute of limitations for § 1983 in Nevada is two years; complaint filed after that period | Court found the action appears time-barred and ordered amendment to explain tolling or timeliness |
| Whether Double Jeopardy applies to simultaneous civil and criminal proceedings | Plaintiffs assert double jeopardy because civil judgment coincided with a criminal case | Double Jeopardy protects against multiple criminal punishments, not civil sanctions | Court held Double Jeopardy claim not adequately alleged and must be clarified or removed |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must be plausible, not merely conceivable)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard requires more than labels and conclusions)
- Erickson v. Pardus, 551 U.S. 89 (2007) (pro se complaints held to less stringent standards)
- Estelle v. Gamble, 429 U.S. 97 (1976) (pro se pleadings viewed liberally)
- Cato v. United States, 70 F.3d 1103 (9th Cir. 1995) (leave to amend ordinarily required when dismissing under § 1915)
- Perez v. Seevers, 869 F.2d 425 (9th Cir. 1989) (two-year statute of limitations for § 1983 in Nevada)
- Hudson v. United States, 522 U.S. 93 (1997) (Double Jeopardy Clause protects against multiple criminal punishments)
- Thomas v. Arn, 474 U.S. 140 (1985) (failure to file objections to magistrate judge orders may waive appeal rights)
- Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991) (procedural default for failure to timely object to magistrate orders)
- Britt v. Simi Valley United Sch. Dist., 708 F.2d 452 (9th Cir. 1983) (failure to brief objections waives right to appeal)