Nikolay Otchkov v. Alan Everett
678 F. App'x 476
| 9th Cir. | 2017Background
- Otchkov, pro se, sued under 42 U.S.C. § 1983 and state law after Arizona denied a liquor license, naming the Arizona Department of Liquor License and several individual and municipal defendants.
- The district court dismissed the complaint in full; Otchkov appealed.
- Key contested claims included § 1983 claims, intentional infliction of emotional distress (IIED), and various procedural motions (motions to strike; default and setting aside default).
- The district court found some claims time-barred under Arizona’s two-year statute of limitations and dismissed others on immunity or failure-to-state-a-claim grounds.
- The court also denied Otchkov’s Rule 12(f) motions to strike and set aside an entry of default against defendant Everett.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claims against City of Phoenix and Cortez are time‑barred | Otchkov contended claims were timely | Defendants argued Arizona’s two‑year statute of limitations expired | Dismissed: § 1983 claims governed by Arizona two‑year statute and accrued when injury was known; claims time‑barred |
| Eleventh Amendment immunity for Everett (official capacity) | Otchkov challenged official‑capacity liability | Everett/state asserted Eleventh Amendment bar | Dismissed: Eleventh Amendment bars suits against state agencies and officials in official capacity absent consent |
| Qualified immunity for Everett (individual capacity) | Otchkov alleged constitutional violations by Everett | Everett argued conduct did not violate clearly established law | Dismissed: Everett entitled to qualified immunity; no clearly established right shown |
| Sufficiency of IIED claim vs. Everett and Lorona (state law) | Otchkov alleged IIED from license denial process | Defendants argued allegations insufficient under Arizona law | Dismissed: Pleadings fail to state plausible IIED claim under Arizona standards |
| § 1983 liability for Lorona (state action) | Otchkov alleged Lorona acted under color of state law | Lorona argued she was not a state actor and allegations are conclusory | Dismissed: Plaintiff failed to plausibly allege state action by Lorona |
| Denial of motions to strike (Rule 12(f)) | Otchkov sought to strike matters from the record | Defendants opposed; court evaluated 12(f) standards | Affirmed: District court did not abuse discretion; 12(f) relief inappropriate |
| Setting aside entry of default against Everett | Otchkov opposed setting aside default | Everett sought good‑cause relief to set aside default | Affirmed: District court properly found good cause under Ninth Circuit factors |
Key Cases Cited
- Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010) (pro se pleadings must still state plausible claims)
- Davis v. City of Las Vegas, 478 F.3d 1048 (9th Cir. 2007) (review standard for qualified immunity)
- Ellis v. City of San Diego, 176 F.3d 1183 (9th Cir. 1999) (statute of limitations accrual principles)
- Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836 (9th Cir. 1997) (Eleventh Amendment immunity principles)
- Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963 (9th Cir. 2010) (Eleventh Amendment and state‑actor immunity discussion)
- Hope v. Pelzer, 536 U.S. 730 (2002) (clearly established rights standard for qualified immunity)
- Gibson v. United States, 781 F.2d 1334 (9th Cir. 1986) (requirement that § 1983 defendants act under color of state law)
- Price v. Hawaii, 939 F.2d 702 (9th Cir. 1991) (private party treated as state actor requires more than conclusory allegations)
- Whittlestone, Inc. v. Handi‑Craft Co., 618 F.3d 970 (9th Cir. 2010) (purpose and limits of Rule 12(f) motions)
- United States v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085 (9th Cir. 2010) (factors for setting aside default)
- Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986) (standards for default judgment)