United States District Court, D. Nevada
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA STEPHEN CHOATE, ex rel. BARBARA PURNELL, Plaintiffs,
NEVADA DIVISION MORTGAGE LENDING, et al., Defendants.
AMENDED COMPLAINT (ECF NO. 10)
Ferenbach, United States Magistrate Judge
the Court is pro se Plaintiffs Stephen Choate and
Barbara Purnell's Amended Complaint. (ECF No. 10). The
Court hereby orders Plaintiffs to submit a second amended
complaint to address the issues discussed below.
Court previously granted Plaintiffs' application to
proceed in forma pauperis. (ECF No. 6 at 1-2).
However, the Court dismissed Plaintiff's complaint
because it was “difficult to follow” and seemed
to be both a 42 U.S.C. §1983 civil rights complaint and
a request for a direct appeal from a state court judgment.
(Id. at 2-3).
March 22, 2018, Plaintiffs filed an amended complaint against
the Commission of Nevada's Mortgage Lending Division and
the Attorney General of Nevada. (ECF No. 10). Plaintiffs
allege that a Nevada civil proceeding brought against them
simultaneously with a Nevada criminal case brought against
Choate violated several constitutional provisions.
(Id. at 3). In their request for relief, Plaintiffs
ask for the Court:
to rule on Constitutional Amendments violated an[d]
“overturn” illegal conviction/judgment in
interest of justice as ‘injunctive relief, ” or
“toll” or set aside civil judgment until Habeas
Corpus Petition is decided and/or overturns criminal
(Id. at 25). It appears that Choate has already
filed a habeas corpus petition regarding the criminal
conviction at issue in this case. (Id. at 15).
the Court granted 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).
Plaintiffs assert that this is a § 1983 case, Plaintiffs
are not seeking relief that can be awarded in a § 1983
action. Plaintiff ask this Court to vacate or overturn a
state court civil judgment and a state court criminal
conviction. “A party disappointed by a decision of a
state court may seek reversal of that decision by appealing
to a higher state court.” Noel v. Hall, 341
F.3d 1148, 1155 (9th Cir. 2003). Federal courts do not have
jurisdiction over “‘de facto
appeals'…in which ‘a federal plaintiff
asserts as a legal wrong an allegedly erroneous decision
by a state court.'” Vasquez v.
Rackauckas, 734 F.3d 1025, 1036 (9th Cir. 2013) (quoting
Noel, 341 F.3d at 1164 (emphasis added)). In
addition, “§ 1983 [i]s not the proper vehicle for
claims for relief which directly challenge the lawfulness of
the plaintiff's conviction.” Hand v.
Young, 868 F.Supp. 289, 291 (D. Nev. 1994).
“§ 1983 is not a backdoor through which a federal
court may overturn a state court conviction.”
Houston v. City of Carson, No. 3:14-CV-00687-MMD,
2015 WL 5092698, at *4 (D. Nev. Aug. 27, 2015). Choate has
already apparently filed a habeas corpus petition to
challenge the criminal conviction at issue in this case. (ECF
No. 10 at 15).
Plaintiff's amended complaint is not a proper § 1983
action, it is possible the complaint's deficiencies may
be cured by amendments. § 1983 actions can be used to
recover damages for constitutional violations under specific
conditions. See Bell v. City of Boise, 709 F.3d 890
(9th Cir. 2013); Heck v. Humphrey, 512 U.S. 477
(1994). Therefore, the Court will give Plaintiffs the
opportunity to amend their complaint. The second amended
complaint must be “complete in itself, including
exhibits, without reference to the superseded
pleading.” LR 15-1.
IT IS ORDERED that Plaintiffs' Amended Complaint (ECF No.
10) is DISMISSED WITHOUT PREJUDICE.
FURTHER ORDERED that Plaintiffs have until May 7, 2018 to
file a second amended complaint addressing the issues
discussed above. Failure to timely file an amended complaint
that addresses the deficiencies noted in this Order may
result in a recommendation for dismissal with prejudice.
FURTHER ORDERED that if a second amended complaint is later
filed, the Clerk of the Court is directed
NOT to issue summons on the second amended
complaint. The Court will issue a screening order on the
second amended complaint and address the issuance of ...