Summary of Jordan v. State, Dep’t of Motor Vehicles, 121 Nev. Adv. Op. 7

Jordan v. State rules on two separate appeals that address the same issue of first impression regarding guidelines Nevada state courts must follow in order to restrict court access to in proper person litigants with in forma pauperis status. This case also reconfirms the process by which in forma applications are reviewed. In the first case, respondent Officer Jimmie W. Jones arrested proper person appellant James Jacob Jordan for trespassing on state property2 after Jordan did not heed Officer Jones’s warning to leave the premises. After the trespass charge was dropped the following day, Jordan sued Officer Jones along with the Nevada State Department of Motor Vehicles and Public Safety for six different torts. Jordan filed this action with the First Judicial District Court, Carson City. After being granted leave to proceed in forma pauperis, Jordan filed various papers that the district court found incomprehensible and procedurally improper. For that reason, the court ordered that Jordan be prohibited from proceeding without a waiver of fees in any new actions unless he obtained leave of the court prior to filing any new action. A few months later, a joint case conference report regarding Jordan’s cause of action was filed. The court granted the State’s motion for summary judgment because the court was unable to interpret the meaning of Jordan’s claims. Jordan timely appealed his suit. In the second case, proper person appellant John Luckett sued respondent Edward Doumani, owner of respondent La Concha Motel, for various torts in connection with a financial scam that Luckett claimed Doumani conspired in. Luckett filed this action with the Eighth Judicial District Court, Las Vegas. After Luckett was granted leave to proceed in forma pauperis, Doumani served Luckett with a demand for security costs under Nevada Revised Statute 18.130, which requires an out-of-state plaintiff to post security for any future adverse award of costs and charges.3 Doumani also moved to dismiss for failure to state a claim. After the allotted time to pay the costs expired, the court notified Luckett that he had thirty days to pay or the case would be dismissed. The court then conducted a hearing on Doumani’s motion to dismiss for failure to pay and declared its intent to issue a restrictive order calling Luckett a vexatious litigant. Luckett was then given three weeks to file an opposition before the next hearing. After Luckett failed to attend that hearing, the court declared Luckett a vexatious litigant and noted that he had a history of filing unmeritorious pleadings, of claiming in forma pauperis status, and of traveling and gambling—thereby undercutting his claim of indigence. Accordingly, the court granted Doumani’s motion to dismiss for failure to post security for costs and barred Luckett from proceeding in his action against Doumani without paying appropriate costs; the court also barred Luckett from filing any new litigation in Nevada state courts in forma pauperis unless he first obtains leave of the presiding judge in the court. Luckett timely appealed his suit. In reviewing whether it was proper for the district courts to restrict Jordan’s and Luckett’s court access, respectively, the Nevada Supreme Court used an abuse of discretion standard and for the first time expressly adopted the United States Court of Appeals for the Ninth Circuit’s four-part analysis for restricting court access,4 with some caveats.5 The Nevada Supreme Court found that the restrictive order levied against Jordan did not comply with the Ninth Circuit’s guidelines and ordered it vacated. First, Jordan was not given proper notice or opportunity to respond before the court restricted his court access. Second, the district court did not include an adequate record of filings and rulings in similar cases that led the court to order the restriction. Third, even though Jordan’s filings were difficult to understand, they were not without merit and should have at least warranted a preliminary evidentiary hearing as espoused by Spears v. McCotter.6 Finally, the restrictive order against Jordan was unconstitutionally broad and seemed to bar him from filing any new actions in forma pauperis, regardless of whether the future action concerns a fundamental right. (In addition, based on a de novo review, the Nevada Supreme Court overturned the district court’s grant of summary judgment because two of Jordan’s six tort claims were legally viable.) The Nevada Supreme Court found that the restrictive order levied against Luckett followed the Ninth Circuit’s guidelines more closely and was warranted. First, Luckett was afforded notice and opportunity to be heard before the order was given. Second, the record substantiated the court’s findings (however, some of the suits the court cited to were pending and therefore should not have been referenced). Third, the court made substantive findings as to the frivolity of Luckett’s filings. Finally, the court narrowly drew the restrictive order that required Luckett to obtain a presiding judge’s permission to make new filings. However, the court should have explicated 1) a standard against which the presiding judge should evaluate any new filings from Luckett, and 2) which specific jurisdiction the restrictive order applied to—in this case, only the Eighth Judicial District Court. Therefore, even though the Nevada Supreme Court found the restrictive order to be proper, it remanded the order for modification because it lacked a complaintreview standard and wrongly attempted to apply to all Nevada jurisdictions rather than just the Eighth Judicial District. In addition, the Nevada Supreme Court did find that the district court abused its discretion in dismissing Luckett’s action based on his failure to post security because the record contains no order expressly vacating the in forma pauperis order and no order was entered at a time early enough in the proceedings to give Luckett any opportunity to respond by posting security; instead, the Nevada Supreme Court affirmed the dismissal of Luckett’s action for failure to state a claim