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Walters v. State

United States District Court, D. Nevada

March 20, 2014

GARY W. WALTERS, et al., Plaintiffs,
STATE OF NEVADA, et al., Defendants.


JENNIFER A. DORSEY, District Judge.

This civil rights action brought by two Nevada state inmates as co-plaintiffs comes before the Court on plaintiffs' applications (Docs. 8 & 10) to proceed in forma pauperis, [1] plaintiffs' motions (Docs. 2 & 3) for a temporary restraining order and a preliminary injunction, plaintiff Gary Walters' motion (Doc. 4) to raise his prison copy credit limit, and plaintiff Curtis Downing's motion (Doc. 9) for an extension of time, as well as for initial review under 28 U.S.C. § 1915A. The applications to proceed in forma pauperis will be granted, subject to the remaining provisions herein. The Court thus proceeds to initial review.


When a "prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, " the court must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b).

In considering whether the plaintiff has stated a claim upon which relief can be granted, all material factual allegations in the complaint are accepted as true for purposes of initial review and are to be construed in the light most favorable to the plaintiff. See, e.g., Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). However, mere legal conclusions unsupported by any actual allegations of fact are not assumed to be true in reviewing the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 677-81 & 686-87 (2009). That is, bare and conclusory assertions that constitute merely formulaic recitations of the elements of a cause of action and that are devoid of further factual enhancement are not accepted as true and do not state a claim for relief. Id.

Further, the factual allegations must state a plausible claim for relief, meaning that the well-pleaded facts must permit the court to infer more than the mere possibility of misconduct:

[A] complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007).] A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a "probability requirement, " but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief.' " Id., at 557, 127 S.Ct. 1955 (brackets omitted).
.... [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not "show[n]" - "that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).

Iqbal, 556 U.S. at 678.

Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972).

In the complaint, co-plaintiffs Gary Walters and Curtis Downing present seven "causes of action" followed thereafter by seven counts. Plaintiffs' claims, in the main, proceed from the same underlying legal premises, repeated numerous times in overlapping fashion over the course of the thirty-nine page pleading.

Plaintiffs maintain in the causes of action, inter alia, that: (a) the commission established by the state legislature in the mid 1950s to oversee preparation of the Nevada Revised Statutes was unconstitutional under the state constitution because it included members of the state supreme court and thus allegedly violated a separation of powers requirement of the state constitution; (b) the legislature thereafter failed to lawfully adopt the Nevada Revised Statutes in 1957 because, inter alia, the revised statutes were adopted and published without an enacting clause as required by the state constitution and without the required readings, votes and journal entries; (c) the statutory revision commission transferred its functions to an another allegedly unconstitutional entity in 1963; (d) plaintiffs thus are "Minority' Disadvantaged Persons, i.e. Foreign Incarcerated Inmates unconstitutionally withheld in a Rogue State of Nevada... in the Nevada Department of Corrections (NDOC)... [subjected to] excessive/Cruel and Unusual Punishment Unlawful Confinement;"[2] (e) plaintiffs told Nevada Assemblyman William Horne of these alleged constitutional violations in September 2013 but he did not make his colleagues aware of these issues, allegedly requiring his removal from office under the state constitution; and (f) plaintiffs learned in February 2013 that Secretary of State Ross Miller has not maintained the official acts of the state legislature for 1957 and 1969, allegedly requiring his removal as well.

In the seven counts that follow the causes of action, plaintiffs allege that the foregoing circumstances violate their Fourth Amendment rights against illegal seizure, their Fourteenth Amendment rights to due process and equal protection, and numerous Nevada state constitutional provisions invoked via pendent jurisdiction. They claim that these alleged violations have resulted in plaintiffs "being deprived of life; liberty; acquiring, possession and protecting property and pursuing and obtaining safety and happiness" and "being continued to be illegally seized unconstitutionally and unlawfully."[3]

Plaintiffs seek, inter alia, five trillion dollars in compensatory and punitive damages on each of the seven counts, a "declaratory judgment declaring [their] convictions void ab initio, " and a declaratory judgment further declaring all legislative acts of the Nevada legislature ...

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