United States District Court, D. Nevada
STEPHEN CHOATE, et rel. BARBARA PURNELL, Plaintiffs,
NEVADA DIVISION MORTGAGE LENDING, et al., Defendant.
ORDER APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC
NOS. 1, 5) AND COMPLAINT (ECF NO. 1-1)
FERENBACH, UNITED STATES MAGISTRATE JUDGE
the Court are pro se Plaintiffs Stephen Choate and
Barbara Purnell's applications to proceed in forma
pauperis (ECF Nos. 1, 5) and complaint (ECF No. 1-1).
For the reasons stated below, Plaintiffs' in forma
pauperis applications are granted. The Court, however,
orders the Plaintiff's complaint be dismissed without
filings present two questions: (1) whether Plaintiffs may
proceed in forma pauperis under 28 U.S.C. §
1915(e) and (2) whether Plaintiffs' complaint states a
plausible claim for relief. Each is discussed below.
Whether Plaintiffs May Proceed In Forma
applications to proceed in forma pauperis are
granted. Under 28 U.S.C. § 1915(a)(1), a plaintiff may
bring a civil action “without prepayment of fees or
security thereof” if the plaintiff submits 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 proceed in forma pauperis are,
Whether Plaintiffs' Complaint States a Plausible
the Court grants Plaintiffs' applications to proceed
in forma pauperis, it must review Plaintiffs'
complaint to determine whether the complaint is frivolous,
malicious, or fails to state a plausible 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] is entitled to
relief.” The Supreme Court's decision in
Ashcroft v. Iqbal states that to satisfy Rule
8's requirements, a complaint's allegations must
cross “the line from conceivable to plausible.”
556 U.S. 662, 680 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 547, (2007)).
pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quoting Estelle v. 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 the face of the complaint that the
deficiencies could not be cured by amendment. Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
complaint is difficult to follow. Plaintiffs style the
complaint as both a 42 U.S.C. § 1983 civil rights
complaint and “a request for direct appeal” from
a January 12, 2015 civil judgment instituted by the Nevada
Division of Mortgage Lending. (ECF No. 1-1 at 1, 3, 9).
Plaintiffs assert the 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 defend themselves. (Id.
Court has already noted several issues with the complaint in
a previous order denying Plaintiff Choate's application
to proceed in forma pauperis without prejudice. (ECF
No. 4). Plaintiffs did not address these concerns when
supplementing their financial affidavits.
styled as an appeal or § 1983 complaint, the case
appears to be time-barred. In Nevada, the applicable statute
of limitations for 42 U.S.C. § 1983 claims is two years.
Perez v. Seevers, 869 F.2d 425, 426 (9th Cir. 1989)
(per curiam); Abram v. City of Reno, No.
315-cv-00029-MMD-WGC, 2015 WL 5829886, at *3 (D. Nev. Oct. 6,
2015). The statute of limitations may be tolled in certain
circumstances. See Trimble v. City of Santa Rosa, 49
F.3d 583, 585 (9th Cir. 1995); Seino v. Emp'rs Ins.
Co. of Nev., 111 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 Commissioner of
Mortgage Lending. Under NRS 645B.750(3), these appeals must
adhere to the provisions of NRS 233B. NRS 233B.130(2)(d)
states that petitions for judicial review must be filed
within 30 days after service of the Commissioner's final
complaint also fails to show how the double jeopardy clause
is implicated in this action. “The Clause protects only
against the imposition of multiple criminal
punishments for the same offense.” Hudson v. United
States, 522 U.S. 93, 98-99 (1997) (emphasis in the
original). The complaint addresses civil sanctions against
Plaintiffs, not multiple criminal sanctions.
Plaintiffs' complaint is dismissed without prejudice.
Plaintiffs must file an amended complaint (1) explaining how
their action is not barred by the § 1983 statute of
limitations and time limit in NRS 233B.130(2)(d) and (2)
clarifying or removing the double jeopardy claim. The amended
complaint must be “complete ...