Walters, et al. v. State of Nevada, et al., No. 2:2013cv01435 - Document 11 (D. Nev. 2014)

Court Description: ORDER Granting 8 and 10 Plaintiffs' Applications to Proceed in forma pauperis. Clerk of Court shall send a copy of this order to the Finance Division of the Clerk's Office and to the attention of the Chief of Inmate Services for the Ne vada Department of Corrections. IT IS FURTHER ORDERED that the Clerk shall file the complaint and this action shall be DISMISSED. IT IS FURTHER ORDERED that 9 Plaintiff Downing's Motion for an Enlargement of Time is GRANTED nunc pro tunc. IT IS FURTHER ORDERED that 2 , 3 , and 4 remaining motions are DENIED. THIS ORDER CERTIFIES to the Court of Appeals that an appeal would not be taken in good faith. Clerk of Court shall enter judgment accordingly, dismissing this action without prejudice. Signed by Judge Jennifer A. Dorsey on 3/20/14. (Copies have been distributed pursuant to the NEF - cc: USDC Finance, and Chief of Inmate Services as ordered - EDS)
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Walters, et al. v. State of Nevada, et al. Doc. 11 1 2 3 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 5 6 7 GARY W. WALTERS, et al., 8 Plaintiffs, Case No. 2:13-cv-01435-JAD-GWF 9 vs. 10 ORDER 11 12 STATE OF NEVADA, et al., Defendants. 13 14 This civil rights action brought by two Nevada state inmates as co-plaintiffs comes 15 before the Court on plaintiffs’ applications (Docs. 8 & 10) to proceed in forma pauperis,1 16 plaintiffs’ motions (Docs. 2 & 3) for a temporary restraining order and a preliminary injunction, 17 plaintiff Gary Walters’ motion (Doc. 4) to raise his prison copy credit limit, and plaintiff Curtis 18 Downing’s motion (Doc. 9) for an extension of time, as well as for initial review under 28 19 U.S.C. § 1915A. The applications to proceed in forma pauperis will be granted, subject to the 20 remaining provisions herein. The Court thus proceeds to initial review. Screening 21 22 When a “prisoner seeks redress from a governmental entity or officer or employee of 23 a governmental entity,” the court must “identify cognizable claims or dismiss the complaint, 24 or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to state a 25 claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who 26 is immune from such relief.” 28 U.S.C. § 1915A(b). 27 28 1 The Court held in a prior order that the Prison Litigation Reform Act required that each co-plaintiff satisfy the requirements of the Act regarding payment of the filing fee and pauper status. See Doc. 7. 1 In considering whether the plaintiff has stated a claim upon which relief can be granted, 2 all material factual allegations in the complaint are accepted as true for purposes of initial 3 review and are to be construed in the light most favorable to the plaintiff. See, e.g., Russell 4 v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). However, mere legal conclusions 5 unsupported by any actual allegations of fact are not assumed to be true in reviewing the 6 complaint. Ashcroft v. Iqbal, 556 U.S. 662, 677-81 & 686-87 (2009). That is, bare and 7 conclusory assertions that constitute merely formulaic recitations of the elements of a cause 8 of action and that are devoid of further factual enhancement are not accepted as true and do 9 not state a claim for relief. Id. 10 Further, the factual allegations must state a plausible claim for relief, meaning that the 11 well-pleaded facts must permit the court to infer more than the mere possibility of misconduct: 12 13 14 15 16 17 18 19 20 21 22 23 24 [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). 25 In the complaint, co-plaintiffs Gary Walters and Curtis Downing present seven “causes 26 of action” followed thereafter by seven counts. Plaintiffs’ claims, in the main, proceed from 27 the same underlying legal premises, repeated numerous times in overlapping fashion over the 28 course of the thirty-nine page pleading. -2- 1 Plaintiffs maintain in the causes of action, inter alia, that: (a) the commission 2 established by the state legislature in the mid 1950s to oversee preparation of the Nevada 3 Revised Statutes was unconstitutional under the state constitution because it included 4 members of the state supreme court and thus allegedly violated a separation of powers 5 requirement of the state constitution; (b) the legislature thereafter failed to lawfully adopt the 6 Nevada Revised Statutes in 1957 because, inter alia, the revised statutes were adopted and 7 published without an enacting clause as required by the state constitution and without the 8 required readings, votes and journal entries; (c) the statutory revision commission transferred 9 its functions to an another allegedly unconstitutional entity in 1963; (d) plaintiffs thus are 10 “‘Minority’ Disadvantaged Persons, i.e. Foreign Incarcerated Inmates unconstitutionally 11 withheld in a Rogue State of Nevada . . . in the Nevada Department of Corrections (NDOC) 12 . . . [subjected to] excessive/Cruel and Unusual Punishment Unlawful Confinement;”2 (e) 13 plaintiffs told Nevada Assemblyman William Horne of these alleged constitutional violations 14 in September 2013 but he did not make his colleagues aware of these issues, allegedly 15 requiring his removal from office under the state constitution; and (f) plaintiffs learned in 16 February 2013 that Secretary of State Ross Miller has not maintained the official acts of the 17 state legislature for 1957 and 1969, allegedly requiring his removal as well. 18 In the seven counts that follow the causes of action, plaintiffs allege that the foregoing 19 circumstances violate their Fourth Amendment rights against illegal seizure, their Fourteenth 20 Amendment rights to due process and equal protection, and numerous Nevada state 21 constitutional provisions invoked via pendent jurisdiction. They claim that these alleged 22 violations have resulted in plaintiffs “being deprived of life; liberty; acquiring, possession and 23 protecting property and pursuing and obtaining safety and happiness” and “being continued 24 to be illegally seized unconstitutionally and unlawfully.”3 25 //// 26 27 2 28 3 Doc. 1-1, at electronic docketing page 13. Doc. 1-1, at electronic docketing page 19, 21, 23, 26, 30, 31, 33 & 35. -3- 1 Plaintiffs seek, inter alia, five trillion dollars in compensatory and punitive damages on 2 each of the seven counts, a “declaratory judgment declaring [their] convictions void ab initio,” 3 and a declaratory judgment further declaring all legislative acts of the Nevada legislature since 4 the mid 1950's void and unconstitutional under the state constitution. 5 Plaintiff names as defendants the State of Nevada and, in their individual and official 6 capacities, Secretary of State Miller, Assemblyman Horne, and hundreds of John and Jane 7 Does consisting of all former Nevada state legislators, governors, lieutenant governors, 8 secretaries of state, attorneys general, and commissioners going back to the 1950's. 9 10 Plaintiffs do not state a cognizable claim upon which relief may be granted under federal law. 11 First, plaintiffs clearly lack standing to the extent that they seek to challenge – separate 12 and apart from a challenge to their criminal convictions – the validity of all Nevada state 13 statutes since the mid 1950's for violating the state constitution, the alleged failure of 14 Assemblyman Horne to seek the action in the legislature that they desire, and the alleged 15 failure of Secretary of State Miller to maintain copies of certain legislative acts. A litigant who 16 raises only a generally available grievance, claiming only a harm to his and every citizen’s 17 interest in proper application of the constitution and laws, does not state an Article III case or 18 controversy. See, e.g., Hollingsworth v. Perry, 133 S.Ct. 2652, 2662 (2013). A litigant 19 claiming that every Nevada state statute since the mid 1950's was adopted in violation of the 20 state constitution presents about as generalized of a grievance for purposes of standing 21 doctrine as one might imagine. The same conclusion holds true regarding plaintiffs’ claims 22 regarding the alleged failure of a state legislator to inform his colleagues of such alleged 23 violations and the alleged failure of a state secretary of state to maintain all of the state 24 statutory materials that he allegedly is required to maintain by the state constitution. 25 To the extent that plaintiffs arguendo have standing based upon an effort to establish 26 the alleged invalidity of their criminal convictions and incarceration, their claims then fall 27 squarely under the rule of Heck v. Humphrey, 512 U.S. 477 (1994). A plaintiff may not pursue 28 federal civil rights claims that necessarily call the validity of his conviction or sentence into -4- 1 question unless and until the conviction and sentence first have been overturned or otherwise 2 vacated on direct appeal, on post-conviction review, or by executive action. It is clear from 3 the face of the papers submitted that plaintiffs’ convictions and sentences have not been 4 overturned, as they seek to have their convictions and continued incarceration adjudicated 5 and declared to be unconstitutional by this action. 6 In any event, even if plaintiffs arguendo had standing to raise claims herein that further 7 arguendo were not Heck-barred, their claims clearly are frivolous on their face. Plaintiffs 8 allege that nearly six decades of Nevada state legislative enactments are wholly void across 9 the board, rendering Nevada an alleged “rogue” state with no valid legislative action for nearly 10 sixty years. A number of Nevada state inmates recently have attempted to overturn their 11 convictions pro se based upon substantially similar arguments. The Supreme Court of 12 Nevada repeatedly has rejected the core argument presented here regarding the alleged lack 13 of enacting clauses in the Nevada Revised Statutes in numerous opinions, which were not 14 published apparently due to the nonprecedential value of an opinion on such a patently 15 meritless challenge.4 The Supreme Court of Nevada is the final arbiter of Nevada state law, 16 including Nevada state constitutional law. The state supreme court’s rejection of plaintiffs’ 17 core argument regarding an alleged lack of enacting clauses is the final word on that subject, 18 and a federal court may not reach a different conclusion on the Nevada state law issue 19 undergirding plaintiffs’ federal claims. Nothing in the strained logic presented by plaintiffs 20 leads to a different outcome with regard to their remaining related arguments. 21 The Court therefore will dismiss all federal claims presented alternatively for lack of 22 standing, for their noncognizability in a federal civil rights action, and as frivolous.5 The Court 23 24 25 26 27 4 See, e.g., Hull v. State, 2013 WL 5730596 (Nev. Oct. 16, 2013); Betts v. State, 2013 WL 3270769 (Nev. June 12, 2013); Depiano v. Palmer, 2013 WL 3305482 (Nev. May 13, 2013); Burgess v. State, 2012 WL 5835122 (Nev. Nov. 15, 2012); Valenzuela v. State, 2011 WL 4345453 (Nev. Sept. 15, 2011); GutierrezPiceno v. State, 2748446 (July 13, 2011); Lyons v. State, 2011 WL 1044591 (March 17, 2011). The Court has cited only the most recent handful of such cases available via a legal research service. 5 The Court’s dismissal on the bases discussed in the text does not signify that the claims presented are free of other substantial deficiencies. Inter alia, plaintiffs may not proceed against the State in federal 28 (continued...) -5- 1 finds that delaying dismissal for an opportunity for amendment would be futile as to all federal 2 claims. 3 Following upon the dismissal of all federal claims over which the district court had 4 original jurisdiction, the Court finds that the interests of judicial economy, convenience, 5 fairness and comity would be best served in this case by dismissing the state law claims that 6 remain without prejudice. Over and above the fact that the state law claims are frivolous on 7 their face, a dismissal of the federal action will not materially impact the analysis of any 8 limitations issues applicable to the pendent claims if brought in a state court action. The core 9 circumstances upon which plaintiffs rely occurred nearly six decades ago. To any extent that 10 plaintiffs would present viable state law claims against defendants Horne and Miller based 11 upon the collateral incidents alleged in 2013, the limitations period would not yet have expired 12 as to such claims. The Court accordingly exercises its discretion pursuant to 28 U.S.C. § 13 1367(c)(3) to decline to exercise supplemental jurisdiction over the state law claims. Pending Motions 14 15 Given the dismissal of all claims for the reasons assigned above, plaintiffs clearly 16 cannot establish a basis for either a temporary restraining order or preliminary injunctive relief 17 in this action. 18 Plaintiff Walter’s motion to raise his copy credit limit at the prison will be denied as moot 19 following upon the dismissal of this action. Moreover, co-plaintiff Downing’s pauper 20 application clearly reflects that Downing has ample funds available with which to make copies 21 to the extent that copies are necessary to access the courts to seek review of the dismissal. 22 Further, plaintiff Walters attaches no responses to a legal-copy-credit request at the prison 23 24 25 26 27 28 5 (...continued) court due to the state sovereign immunity recognized by the Eleventh Amendment. Plaintiffs may not seek damages from the individual officer defendants in their official capacities also because of state sovereign immunity and further because such a defendant is not a “person” subject to suit under 42 U.S.C. § 1983 in that capacity for monetary damages. Any claims that accrued decades ago of course would be time-barred under the two-year statute of limitations applicable to civil rights actions arising out of Nevada. Further, at the very least the state legislators would be subject to legislative immunity for their alleged acts and omissions in the legislative process. The Court has not tarried over such collateral deficiencies because the entire action is subject to dismissal on other grounds. -6- 1 rejecting such a request on the basis that he has exceeded his $100.00 legal copy credit limit. 2 Finally, the Court finds that the credit increase amount requested – $1,300.00 – far exceeds 3 the amount that ever reasonably would be required for this litigation, even if it were not being 4 dismissed. When the Court approves requests of this nature, the approval typically is for an 5 increase of $10.00 or perhaps $20.00. Plaintiff Downing, again, has ample funds with which 6 to make any necessary copies if the co-plaintiffs seek review of this dismissal, and it also has 7 not been established that Downing further does not have copy credit remaining. Plaintiff 8 Walters thus has no need to increase his legal copy credit limit for this case. 9 The Court will grant plaintiff Downing’s extension request nunc pro tunc. 10 IT THEREFORE IS ORDERED that plaintiffs’ applications (Docs. 8 & 10) to proceed 11 in forma pauperis are GRANTED, subject to the remaining provisions herein. Plaintiffs shall 12 not be required to pay an initial partial filing fee. However, even though the action is 13 dismissed, plaintiffs each still must pay, separately, a full filing fee pursuant to 28 U.S.C. § 14 1915(b)(2), pursuant to the Court’s prior order (Doc. 7). 15 IT FURTHER IS ORDERED that the movants herein are permitted to maintain this 16 action to a conclusion without the necessity of prepayment of any additional fees or costs or 17 the giving of security therefor. This order granting forma pauperis status shall not extend to 18 the issuance of subpoenas at government expense. 19 IT FURTHER IS ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), the Nevada 20 Department of Corrections shall pay to the Clerk of the United States District Court, District 21 of Nevada, 20% of the preceding month's deposits in the account of plaintiff GARY W. 22 WALTERS, #1022269,6 (in the months that the account exceeds $10.00) until a full $350.00 23 filing fee has been paid. 24 IT FURTHER IS ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), the Nevada 25 Department of Corrections shall pay to the Clerk of the United States District Court, District 26 27 28 6 The Department is being directed to pay $350.00 from the account of plaintiff Walters and another $350.00 from the account of plaintiff Downing. That is, each plaintiff is being required to pay a full $350.00 filing fee, separate and apart from the fee paid by the other co-plaintiff. -7- 1 of Nevada, 20% of the preceding month's deposits in the account of plaintiff CURTIS L. 2 DOWNING, #18675,7 (in the months that the account exceeds $10.00) until a full $350.00 3 filing fee has been paid. The Clerk of Court shall SEND a copy of this order to the 4 Finance Division of the Clerk's Office. The Clerk shall also SEND a copy of this order 5 to the attention of the Chief of Inmate Services for the Nevada Department of 6 Corrections, P.O. Box 7011, Carson City, NV 89702. 7 8 IT FURTHER IS ORDERED that the Clerk shall file the complaint and that the complaint and this action shall be DISMISSED for the reasons assigned herein. 9 IT FURTHER IS ORDERED that plaintiff Downing’s motion (Doc. 9) for an enlargement 10 of time is GRANTED nunc pro tunc in connection with the pauper application (Doc. 10) 11 entered on December 3, 2013. 12 13 IT FURTHER IS ORDERED that all remaining motions (Docs. 2, 3, and 4) are DENIED for the reasons assigned herein. 14 IT FURTHER IS ORDERED that the dismissal of this action shall count as a “strike” for 15 purposes of 28 U.S.C. § 1915(g) for each plaintiff herein, such that plaintiff Walters has 16 accrued a § 1915(g) strike by the filing of this action and plaintiff Downing also has accrued 17 a § 1915(g) strike by the filing of this action. 18 IT FURTHER IS ORDERED that, in the event of an appeal, and pursuant to 28 U.S.C. 19 § 1915(a)(3), the Court certifies to the Court of Appeals that an appeal is not taken in good 20 faith. Plaintiffs allege in this federal civil rights action that their convictions are invalid 21 because, inter alia, the entire Nevada Revised Statutes adopted nearly six decades ago are 22 invalid for lack of an enacting clause. To the extent that plaintiffs arguendo have standing to 23 raise such a generally available grievance regarding the validity of the entirety of the Nevada 24 Revised Statutes, their federal claims clearly are Heck-barred because the claims necessarily 25 question the validity of their convictions. Their federal claims in any event are frivolous on 26 27 7 28 See text at note 6 and note 6, supra. Again, both plaintiff Downing and plaintiff Walters are required to pay a separate filing fee, such that each plaintiff separately must pay a full $350.00 filing fee. -8- 1 their face, with cases presenting similar underlying contentions regarding unconstitutionality 2 under the state constitution repeatedly having been rejected by the Supreme Court of Nevada, 3 the final arbiter of Nevada state law. The present action represents the epitome of the type 4 of frivolous inmate litigation that numerous provisions of the Prison Litigation Reform Act seek 5 to discourage. So that this certification may be clearly marked for review by the Court of 6 Appeals, the Clerk shall prominently include within the docket entry for this order a statement 7 that the order also certifies to the Court of Appeals that an appeal would not be taken in good 8 faith. 9 10 11 The Clerk of Court shall enter final judgment accordingly, dismissing this action without prejudice. DATED: March 20, 2014. 12 13 14 ___________________________________ Jennifer A. Dorsey United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-