Love v. The State of Nevada

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Wilson Earl Love, Case No. 2:23-cv-00484-APG-DJA 6 Plaintiff, 7 Order v. 8 The State of Nevada, 9 Defendant. 10 11 Before the Court is Plaintiff’s motion to request service (ECF No. 20) and motion to 12 amend his complaint (ECF No. 22). Because it is Plaintiff’s responsibility to serve Defendants, 13 the Court denies Plaintiff’s motion to request service. Because Plaintiff’s proposed amendment 14 would be futile, the Court denies the motion to amend without prejudice. 15 I. Discussion. 16 A. Plaintiff’s motion to request service. 17 Plaintiff’s motion to request service asks that the Court serve the Defendants. However, it 18 is Plaintiff’s responsibility, not the Court’s, to serve the Defendants. Service of summons is 19 governed by Federal Rule of Civil Procedure 4. The Court thus denies Plaintiff’s motion to 20 request service. 21 B. Plaintiff’s motion to amend his complaint. 22 Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “[t]he court should freely 23 give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “The court considers 24 five factors [under Rule 15] in assessing the propriety of leave to amend—bad faith, undue delay, 25 prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously 26 amended the complaint.” United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011). 27 Plaintiff’s amended complaint alleges that, on March 4th, 1997, the State of Nevada “filed 1 thus violated his Fourth and Fourteenth Amendment rights by falsely imprisoning him. Plaintiff 2 also appears to allege a claim for malicious prosecution. Plaintiff’s amendment is futile for two 3 reasons: (1) the State of Nevada’s Eleventh Amendment immunity; and (2) the statute of 4 limitations. 5 1. Eleventh Amendment immunity. 6 Plaintiff’s claims against the State of Nevada fail because “[t]he Eleventh Amendment 7 prohibits lawsuits against a state or its agencies in federal court unless the state consents to waiver 8 of its immunity.” Halverson v. Nevada Commission on Judicial Discipline, No. 2:08-cv-1006- 9 RCJ-LRL, 2009 WL 10708909, at *3 (D. Nev. March 26, 2009) (citing Alabama v. Pugh, 438 10 U.S. 781, 781-82 (1978)). Even though Plaintiff’s claims arise under 42 U.S.C. § 1983, which 11 provides a private cause of action for violations of the U.S. Constitution, that does not override 12 the State’s Eleventh Amendment immunity. Livadas v. Bradshaw, 512 U.S. 107, 132 (1994) 13 (affirming that it is 42 U.S.C. § 1983 that provides a federal cause of action for the deprivation of 14 rights secured by the United States Constitution); Chapman v. Houston Welfare Rights Org., 441 15 U.S. 600, 617-18 (1979) (explaining that 42 U.S.C. § 1983 was enacted to create a private cause 16 of action for violations of the United States Constitution); Halverson v. Nevada Commission on 17 Judicial Discipline, No. 2:08-cv-1006-RCJ-LRL, 2009 WL 10708909, at *3 (D. Nev. March 26, 18 2009) (explaining that a § 1983 claim does not override Nevada’s Eleventh Amendment 19 immunity). 20 2. The statute of limitations. 21 Plaintiff’s claims are likely barred by the statute of limitations. “Section 1983 does not 22 contain its own statute of limitations; instead, federal courts borrow from the statute of limitations 23 applicable to personal injury claims in the forum state.” Love v. Public Defender’s Office, No. 24 2:21-cv-01175-JAD-VCF, 2021 WL 4941993, at *2 (D. Nev. Oct. 22, 2021) (citing Wilson v. 25 Garcia, 471 U.S. 261, 279-280 (1985)). “In Nevada, the statute of limitations for personal injury 26 claims, and therefore § 1983 actions, is two years.” Id. (citing Nev. Rev. Stat. § 11.190(4)(e)). 27 “A statute of limitations begins to run on the date on which the plaintiff’s claim accrues.” 1 § 1983 cause of action is a question of federal law[.]” Wallace v. Kato, 549 U.S. 384, 388 (2007). 2 Accrual occurs when the plaintiff has a “complete and present cause of action.” Bay Area 3 Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 4 (1997). 5 In the context of a false imprisonment claim brought under section 1983, the Supreme 6 Court held that the statute of limitations begins to run “when the alleged false imprisonment 7 ends.” Ritter v. Marshowski, No. 3:12-cv-00194-LRH-WGC, 2015 WL 795007, at *4 (D. Nev. 8 Feb. 25, 2015) (citing Wallace, 549 U.S. at 389). The Court stated that false imprisonment 9 consists of “detention without legal process ” and as such “ends once the victim becomes held 10 pursuant to such process—when, for example, he is bound over by a magistrate or arraigned on 11 charges.” Id. (citations omitted) (emphasis original). “Thereafter, unlawful detention forms part 12 of the damages for the ‘entirely distinct’ tort of malicious prosecution, which remedies detention 13 accompanied, not by absence of legal process, but by wrongful institution of legal process.” Id. 14 (quoting Wallace, 549 U.S. at 390) (citations omitted) (emphasis original). In other words: 15 damages for a false imprisonment claim can be sought from the “time of detention up until the 16 issuance of process or arraignment, but not more. Id. From that point on, any damages 17 recoverable must be based on a malicious prosecution claim and on the wrongful use of judicial 18 process rather than detention itself.” Id. Malicious prosecution claims run from the time the 19 underlying criminal proceedings have resolved in the plaintiff’s favor. McDonough v. Smith, 139 20 S.Ct. 2149, 2156 (2019). 21 Here, because false imprisonment is detention without legal process, it is unclear whether 22 Plaintiff has a claim for false imprisonment. Plaintiff states that he was convicted in 1997, 23 meaning that he received some sort of legal process. And Plaintiff does not allege whether he 24 was held at any time before that conviction without legal process. And if Plaintiff were to allege 25 that he was held without legal process before his 1997 conviction, that false imprisonment would 26 be barred by the two-year statute of limitations. Plaintiff’s malicious prosecution claim also fails 27 because Plaintiff has not alleged if or when the criminal charges were dismissed or resolved in his 1 favor. Without this date and this factual basis, the Court cannot find that Plaintiff has alleged a 2 colorable claim for malicious prosecution. 3 4 IT IS THEREFORE ORDERED that Plaintiff’s motion to serve Defendants (ECF No. 5 20) is denied. 6 IT IS FURTHER ORDERED that Plaintiff’s motion to amend his complaint (ECF No. 7 22) is denied without prejudice and with leave to amend. 8 9 DATED: October 11, 2023 10 11 DANIEL J. ALBREGTS 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27