Bradshaw v. Dahlstrom

• Court: District Court, D. Alaska
• Decided: September 2, 2022
• Docket: 3:20-cv-00292
• Status: Unknown

Opinion

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF ALASKA

4 JOSHUA JAMES BRADSHAW,

5 Plaintiff,

6 v. No. 3:20-cv-00292-SLG-KFR

7 NANCY DAHLSTROM, et al.,

8 Defendants. 9 10 FINDINGS AND RECOMMENDATIONS 11 The Court recommends that Plaintiff’s First Amended Complaint seeking 12 injunctive relief against restrictions on gatherings and visitation inside Alaska 13 correctional facilities imposed in March 2020 in response to the COVID-19 pandemic 14 be dismissed as moot. In April 2021, during the pendency of this case, the Alaska 15 Department of Corrections voluntarily withdrew the challenged regulations, thereby 16 permitting gatherings and visitation within Plaintiff’s correctional facility. Given 17 that group gatherings and visitation have been restored, that the restoration of those 18 activities was not a response to Plaintiff’s complaint, and that the reimposition of 19 similar restrictions is unlikely to recur, there is no longer a live case or controversy 20 for this Court to adjudicate. Accordingly, as it relates to Plaintiff’s demands for 21 injunctive relief, the First Amended Complaint should be dismissed as moot. 22 Plaintiff also seeks money damages from former DOC Commissioner 23 Dahlstrom for her role in limiting religious gatherings within Plaintiff’s place of 24 confinement. However, Plaintiff fails to state how Commissioner Dahlstrom 25 personally participated in violating his rights. As a result, the Court recommends 26 granting in part Defendants’ motion to dismiss Plaintiff’s claim for money damages 27 against Commissioner Dahlstrom in her individual capacity, and giving Plaintiff 28 leave to amend this claim. 1 I. Procedural History 2 On November 16, 2020, pro se Plaintiff, Joshua James Bradshaw, filed a 3 complaint against the Commissioner of the Department of Corrections (“DOC”), 4 Nancy Dahlstrom; the Governor of Alaska, Michael Dunleavy; and DOC alleging 5 violation of 42 U.S.C. § 1983 and the Alaska Constitution.1 On February 22, 2021, 6 the Court issued a screening order dismissing Mr. Bradshaw’s complaint without 7 prejudice, advising him of the elements he must plead if he chose to amend his 8 complaint, and granting him time to do so.2 9 On February 23, 2021, Plaintiff filed a motion for a temporary restraining 10 order and preliminary injunction, which the Court denied.3 Plaintiff then filed his 11 First Amended Complaint on March 22, 2021.4 Plaintiff alleges in his First Amended 12 Complaint that broad policies implemented by Defendants in response to the COVID- 13 19 pandemic limiting group gatherings inside DOC facilities and restricting visitation 14 violated his First Amendment and Fourteenth Amendment rights, in addition to 15 violating the Alaska Constitution and a previously-imposed Alaska state court order. 16 Specifically, Plaintiff alleges in Claim One that Commissioner Dahlstrom’s ban on 17 religious gatherings within DOC facilities violated his right to free exercise of 18 religion under the First Amendment. In Claim Two, Plaintiff alleges that mandates 19 imposed by Governor Dunleavy limiting rehabilitation programming and visitation 20 within DOC facilities violated his rights under the Alaska Constitution and the Cleary 21 Settlement Agreement. Finally, Plaintiff alleges that Governor Dunleavy violated his 22 right to procedural due process under the Fourteenth Amendment as it relates to his 23 First Amendment free exercise claim.5 Plaintiff requested a trial by jury and sought 24 injunctive relief from all Defendants for each claim, as well as money damages from 25

26 1 Dkt. 1. Mr. Bradshaw also filed a Memorandum in Support of Complaint at Dkt. 4. 2 Dkt. 6. 27 3 Dkts. 7 and 12. 4 Dkt. 10. 28 5 Id. 1 Commissioner Dahlstrom as it related to his allegations in Claim One. 2 On April 5, 2021, the Court issued an order provisionally appointing counsel 3 and stayed the screening of Plaintiff’s First Amended Complaint to give counsel time 4 to meet with his client, file a notice of appearance, and review and amend the 5 complaint again if needed.6 Counsel for Plaintiff filed a notice of appearance on April 6 12, 2021, followed by a status report advising the Court that Plaintiff wished to 7 proceed on his First Amended Complaint as previously filed.7 8 On October 12, 2021, Defendants filed a motion to dismiss.8 After requesting 9 additional time to respond, Plaintiff filed his response on December 6, 2021, and 10 Defendants responded with a motion to strike that response.9 Plaintiff opposed 11 Defendants’ motion to strike.10 After counsel for Plaintiff filed a Rule 11 certification 12 and a notice of withdrawal, the Court ordered counsel’s withdrawal and denied 13 Defendants’ motion to strike.11 14 Defendants replied to Plaintiff’s response to Defendants’ motion to dismiss, 15 followed by a supplemental response by Plaintiff.12 Defendants filed a motion to 16 strike Plaintiff’s supplemental response, and Plaintiff again opposed.13 17 On June 29, 2022, this Court sua sponte ordered supplemental briefing on the 18 issue of mootness.14 Specifically, the Court asked the parties to address whether 19 DOC’s revocation of the policies complained about by Plaintiff rendered his 20 complaint moot.15 Plaintiff timely filed his supplemental briefing on July 29, 2022.16

21 6 Dkt. 13. 22 7 Dkts. 14 and 16. 8 Dkt. 24. 23 9 Dkts. 25-29. 10 Dkt. 30. 24 11 Dkts. 32-35. 12 Dkts. 36-37. 25 13 Dkts. 38-39. 26 14 Dkt. 42; see Students for a Conservative Am. v. Greenwood, 391 F.3d 978 (9th Cir. 2004) (“We have an independent duty to consider sua sponte whether a case is moot.”) (citation 27 omitted). 15 Id. 28 16 Dkt. 44. 1 After being granted an extension, Defendants filed their supplemental briefing on 2 August 29, 2022.17 3 After referral from the District Court,18 this Court now considers Defendants’ 4 Motion to Dismiss at Docket 24. For the reasons stated herein, this Court 5 recommends dismissing as moot each of the claims raised in Plaintiff’s First 6 Amended Complaint at Docket 10 where he seeks injunctive relief; specifically, his 7 official capacity claim against Acting DOC Commissioner Winkelman in Claim One,19 8 and Claims Two and Three against Governor Dunleavy. The Court also recommends 9 granting Defendants’ Motion to Dismiss as it relates to the individual capacity claim 10 against Commissioner Dahlstrom, but granting Plaintiff leave to amend his 11 complaint for this distinct claim only. 12 II. Statement of Facts20 13 On March 11, 2020, Governor Dunleavy, pursuant to his authority under 14 Alaska Statute 26.23.020(c), declared a “public health disaster emergency” 15 (hereinafter “Disaster Declaration”).21 On March 13, 2020, pursuant to his authority 16 under the Disaster Declaration, Governor Dunleavy issued COVID-19 Health Mandate

17 17 The Court granted Defendant’s late-filed motion for an extension of time to file their 18 supplemental briefing. On August 16, 2022, Plaintiff filed an opposition to Defendant’s motion for an extension of time. Dkt. 49. 19 18 Dkts. 40-41. 19 Id. Plaintiff originally named Department of Corrections Commissioner Nancy 20 Dahlstrom in his First Amended Complaint. On May 22, 2022, Commissioner Dahlstrom resigned. Pursuant to Fed. R. Civ. P. 26(d), Acting Commissioner Winkelman is 21 “automatically substituted as a party” and the Court considers her the proper defendant in 22 Claim One for Plaintiff’s official capacity claim against the DOC Commissioner. However, because Plaintiff has sued Commissioner Dahlstrom for money damages in her individual 23 capacity, she remains a party as it relates to that distinct claim. 20 The Court takes judicial notice of the facts described herein detailing the State of 24 Alaska’s response to the COVID-19 pandemic. This information consists of public documents issued by State of Alaska officials that are readily available online and whose 25 accuracy are not subject to reasonable dispute. For purposes of this order, the Court 26 assumes as true Plaintiff’s statements regarding his loss of access to religious services and visitation. 27 21 See https://gov.alaska.gov/newsroom/2020/03/11/governor-issues-public-health- disaster-emergency-declaration-for-covid-19/ (containing link to online copy of 28 proclamation) (all websites cited herein were last visited August 31, 2022). 1 1.1 suspending visitation at all DOC facilities effective March 14, 2020.22 On that 2 same day, DOC issued a press release stating that all visitation to DOC facilities was 3 “temporarily suspended,” to include visitation by “outside volunteers and other 4 tours and groups who routinely come into the institutions.”23 On March 18, 2020, 5 DOC suspended “non-essential contract services and all volunteers.”24 6 Plaintiff is an inmate at Lemon Creek Correctional Center (LCCC), a DOC 7 facility located in Juneau, Alaska, and has been since at least April 15, 2020.25 As a 8 result of the suspension of visitation, Plaintiff lost access to group religious 9 gatherings within LCCC, visitation by volunteer groups performing religious and 10 rehabilitative services, and personal contact visits.26 11 On April 19, 2021, DOC reopened public visitation at LCCC and many other 12 facilities for those inmates who had been fully vaccinated, and on April 28, 2021, 13 DOC reopened visitation to all inmates regardless of vaccination status at all 14 facilities other than the Anchorage Correctional Complex.27 On April 30, 2021, 15 Governor Dunleavy signed an executive proclamation ending the Disaster 16 Declaration “effective immediately.”28 17 // 18 // 19 // 20 //

21 22 See https://gov.alaska.gov/newsroom/2020/03/13/governor-issues-first-covid-19- 22 health-mandate/ (containing link to online copy of proclamation). 23 See https://doc.alaska.gov/covid-19, Department of Corrections Implements Mitigation & 23 Response Plan for COVID-19. 24 See https://doc.alaska.gov/covid-19, Department of Corrections Suspends All Non- 24 Essential Activity. 25 See Dkt. 1. 25 26 Dkt. 10 at 3-5, 8-10, and 13-15. 26 27 See https://doc.alaska.gov/covid-19 (DOC Reopens Public Visitation) and https://doc.alaska.gov/covid-19 (DOC Fully Opens Visitation). 27 28 See https://gov.alaska.gov/newsroom/2021/04/30/governor-dunleavy-ends-alaska- covid-19-emergency-declaration-signs-house-bill-76/ (containing link to online copy of 28 proclamation). 1 III. Legal Standard and Analysis 2 a. Mootness 3 “The mootness doctrine ‘requires that an actual, ongoing controversy exist at 4 all stages of federal court proceedings.’ ‘[I]f events subsequent to the filing of the 5 case resolve the parties’ dispute, [the court] must dismiss the case as moot[.]’”29 6 “Mootness is a jurisdictional issue, and federal courts have no jurisdiction to hear a 7 case that is moot.”30 A claim is moot “when the issues presented are no longer live 8 or the parties lack a legally cognizable interest in the outcome.”31 9 A case may be mooted when one party stops performing or enforcing the 10 challenged activity. However, “[t]he voluntary cessation of challenged conduct does 11 not ordinarily render a case moot because a dismissal for mootness would permit a 12 resumption of the challenged conduct as soon as the case is dismissed.”32 Voluntary 13 cessation can yield mootness if a “stringent” standard is met: “A case might become 14 moot if subsequent events made it absolutely clear that the allegedly wrongful 15 behavior could not reasonably be expected to recur.”33 16 In addition to the voluntary cessation doctrine, an exception to mootness 17 exists when an issue is “capable of repetition, yet evading review.”34 “In order for 18 [this] exception to apply, (1) the duration of the challenged action or injury must be 19 too short to be fully litigated; and (2) there must be a reasonable likelihood that the 20 same party will be subject to the action again.”35 Like the voluntary cessation 21 doctrine, the “capable of repetition, yet evading review” doctrine “traces to the 22 29 Leigh v. Salazar, 677 F.3d 892, 896 (9th Cir. 2012) (alterations in Leigh) (internal 23 citation omitted) (quoting Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 24 2011)). 30 Johnson v. Oishi, 362 F.Supp.3d 843, 848 (E.D. Cal. 2019). 25 31 Id. 32 Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2015); see also Already, LLC. v. Nike, 26 Inc., 568 U.S. 85, 91 (2013) (“[A] defendant cannot automatically moot a case simply by ending its unlawful conduct once sued.”) 27 33 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). 34 Native Village of Nuiqsut v. Bureau of Land Mgmt., 9 F.4th 1201, 1209 (9th Cir. 2021). 28 35 Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1287 (9th Cir. 2013) (cleaned up). 1 principle that a party should not be able to evade judicial review, or to defeat a 2 judgment, by temporarily altering questionable behavior.”36 3 i. The Voluntary Cessation Exception to Mootness Is 4 Inapplicable. 5 Plaintiff admits that DOC has reinstated visitation and group religious 6 services.37 Nonetheless, Plaintiff seeks an “order [from the Court that Defendants] 7 comply with the Cleary Final Settlement agreement,” and “an official judgment” 8 from this Court that Defendants “pay attention and change their bad behavior and 9 their policies.”38 Plaintiff argues that such an order is necessary, in part, to prevent 10 Defendants from “commit[ing] the same acts again,” thereby forcing Plaintiff “to go 11 through the litigation process again.” 12 The Court finds that DOC’s rescission of the policies at issue in this case, and 13 the resumption of visitation, along with the religious and rehabilitative programs 14 Plaintiff claims were denied to him unlawfully during the height of the COVID-19 15 pandemic, renders his case moot for those causes of action in which he seeks 16 injunctive relief, thereby denying the Court jurisdiction over those matters. This 17 includes Plaintiff’s claims for injunctive relief against Commissioner Winkelman in 18 Claim One, and the entirety of his claims against Governor Dunleavy in Claims Two 19 and Three. 20 It is true that Defendants rescinded their group gathering and visitation 21 policies approximately one month after Plaintiff filed his First Amended Complaint 22 on March 22, 2021.39 However, the voluntary cessation doctrine precluding 23 mootness does not apply as there is no evidence in the record DOC temporarily 24 rescinded its COVID policies in response to either Plaintiff’s original complaint or 25 his First Amended Complaint. Rather, the evidence indicates that this action was 26 36 City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001). 27 37 Dkt. 44 at 8, 10. 38 Id. at 3-4. 28 39 Dkts. 1, 10. 1 taken in response to public health conditions that existed in the State of Alaska and 2 within DOC facilities at the time of the policies’ rescission, not as a result of any 3 pending litigation.40 4 Moreover, even if the voluntary cessation doctrine did apply, the Court finds 5 that Defendants have met their burden of demonstrating that “the challenged 6 behavior cannot reasonably be expected to recur.”41 This is so for two reasons. 7 First, unlike other cases in which mootness has not been found, no policy 8 remains on the books to be reinstated.42 By virtue of Governor Dunleavy’s April 30, 9 2021 proclamation, the Disaster Declaration and Health Mandate 1.1 no longer 10 remain in effect. Moreover, the Alaska legislature has expressly withdrawn the 11 authority under which the Disaster Declaration persisted beyond its initial 30-day 12 implementation.43 13 Second, DOC has reopened correctional facilities even while COVID variants 14 linger within the State of Alaska with sometimes high levels of community 15 transmission.44 DOC facilities have remained open despite the fact that COVID case 16 counts have ebbed and surged at various times since the rescission of Health 17

18 40 See https://gov.alaska.gov/newsroom/2021/04/30/governor-dunleavy-ends-alaska- covid-19-emergency-declaration-signs-house-bill-76/ (containing link to online copy of 19 proclamation which cites mitigation efforts by state and introduction and distribution of effective vaccines as reasons to withdraw disaster declaration). 20 41 Already, 568 U.S. at 96. 42 Compare Department of Fish and Game v. Federal Subsistence Board, 501 F.Supp.3d 671, 21 684-85 (D. Alaska, Nov. 18 , 2020) (denying mootness challenge in case in which hunt was 22 completed, but complained of delegation remained in effect for 9 additional months). 43 See Alaska House Bill (HB) 76, extending public health disaster emergency until 23 December 31, 2021, but stating that the governor shall proclaim an emergency no longer exists upon a certification by the commissioner of health and social services of such a 24 situation); see also Brach v. Newsom, 38 F.4th 6, 13 (9th Cir. 2022) (finding that the fact that the legislature included a “sunset provision” and “self-repeal” trigger in the bill 25 authorizing pandemic shutdowns of schools weighed in favor of concluding that the State 26 of California’s actions “cannot reasonably be expected to recur.”) 44 See https://health.alaska.gov/dph/Epi/id/Pages/COVID-19/covidandflu.aspx describing 27 “widespread” transmission of COVID-19 “in most parts of Alaska); see also Brach, 38 F.4th at 14 (citing the fact that California kept schools open through the COVID omicron surge as 28 evidence that voluntary cessation of challenged policy was not pretextual). 1 Mandate 1.1.45 This indicates to the Court a desire among State of Alaska officials 2 to move away – and stay away - from pandemic restrictions in an effort to return as 3 quickly as possible to a pre-COVID normal.46 This is not a case in which Plaintiff 4 “remains under constant threat” that DOC will reinstate the challenged policies.47 5 The Court recognizes that Defendants retain the power to declare future 6 emergencies or reimpose limits on visitation and group gatherings within DOC 7 facilities. However, such executive power “cannot itself be enough to skirt 8 mootness, because then no suit against the government would ever be moot.”48 The 9 recent practice of DOC to maintain group gatherings and visitation in the face of 10 recent COVID-19 surges, and the government’s representation in Docket 50 that the 11 circumstances which precipitated the March 13, 2020 public health disaster 12 declaration were “limited,” “unique,” and “extraordinary” makes any concern that 13 such policies might be reenacted too “remote and speculative” to provide a basis for 14 this court’s jurisdiction.49 There is simply insufficient evidence in the record to 15

16 45 See State of Alaska COVID-19 Cases Dashboard at https://experience.arcgis.com/experience/af2efc8bffbf4cdc83c2d1a134354074/ (showing 17 an increase from 23 daily cases on June 10, 2021, to 939 cases on September 21, 2021, 18 followed by a decrease to 118 cases on December 19, 2021, followed by a surge to 3,021 cases on January 21, 2022). 19 46 Tandon v. Newsom, ---- U.S. ----, 141 S.Ct. 1294, 1297 (2021) (denying mootness challenge where California officials had a “track record of ‘moving the goalposts’” (quoting 20 South Bay United Pentecostal Church v. Newsom, 592 U.S. ---, 141 S.Ct. 716, 720 (2021) (statement of GORSUCH, J.))); see also Roman Catholic Diocese of Brooklyn, 592 U.S. ----, -- 21 --, 141 S.Ct. 63, 68 (2020) (per curiam) (denying mootness challenge where New York 22 regulations were frequently changed and Plaintiff’s lived under “constant threat” that restrictions would be reimposed). 23 47 See Tandon, ---- U.S. ----, 141 S.Ct. at 1294 (quoting Roman Catholic Diocese of Brooklyn, 592 U.S. at ----, 141 S.Ct. at 68 (2020) (per curiam); see also High Plains Harvest Church v. 24 Polis, 592 U. S. ---, 141 S.Ct. 527 (2020). 48 Brach, 38 F.4th at 14 (quoting Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 10 (1st Cir. 2021). 25 49 Id. (quoting Lee v. Schmidt-Wenzel, 766 F.2d 1387, 1390 (9th Cir. 1985)). The Court 26 notes that while the burden remains the same, the voluntary cessation of challenged activity by government officials is treated “with more solicitude ... than similar action by 27 private parties.” See Bd. of Trs. of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195, 1198 (9th Cir. 2019) (en banc) (omission in original) (internal quotation marks omitted); 28 see also Bell v. City of Boise, 709 F.3d 890, 898–99 & n.13 (9th Cir. 2013). 1 “indict[e] that the challenged [policies] likely will be reenacted.”50 2 ii. The Capable of Repetition Yet Evading Review Doctrine Does 3 Not Apply. 4 Similarly, there is no indication that the challenged restrictions meet the 5 necessary elements to escape mootness under the “capable of repetition yet escaping 6 review” doctrine. For the reasons described above, this Court cannot find that there 7 is a “reasonable likelihood” that Plaintiff will be subject to the same restrictions on 8 gatherings, rehabilitation programs, and visitation that were previously imposed.51 9 The regulations limiting gatherings and visitation within DOC have been rescinded, 10 the authority for those restrictions has been withdrawn by the legislature, and the 11 State of Alaska has demonstrated a desire not to reimpose the restrictions even while 12 the COVID-19 pandemic that necessitated the State’s action persists. The mere 13 possibility that Defendants may reinstate restrictions on Plaintiff’s activities in 14 response to future events is an insufficient basis upon which to argue that a live 15 controversy exists.52 16 b. 42 U.S.C. § 1983 Standard 17 Mootness does not generally apply to claims for monetary damages.53 As a 18 result, the Court is left to analyze Plaintiff’s remaining claim – that Commissioner 19 Dahlstrom should be held liable for money damages in her individual capacity as the 20 person who “created and implemented” the policy Plaintiff claims “unjustly and

21 50 Id. (quoting Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) (citation omitted)). 22 51 See Armster v. U.S. Dist. Ct. for Cent. Dist. of Cal., 806 F.2d 1347, 1360 n. 20 (9th Cir. 1986) (noting that the voluntary cessation and the capable of repetition yet evading review 23 exceptions are “analogous”). 52 See Foster v. Carson, 347 F.3d 742, 748 (9th Cir. 2003) (“[A] mere possibility that 24 something might happen is too remote to keep alive a case as an active controversy.”); see also Murphy v. Hunt, 455 U.S. 478, 482 (1982) (stating that a “[r]easonable expectation 25 means something more than a mere physical or theoretical possibility.”); Best Supplement 26 Guide, LLC v. Newsom, 2022 WL 2703404 (9th Cir. July 12, 2022); 53 See Lokey v. Richardson, 600 F.2d 1265, 1266 (9th Cir. 1979) (per curiam) (holding that, 27 although claim for injunctive relief was mooted, case was not moot because plaintiff prayed for damages and, regardless of actual damages, plaintiff could be entitled to 28 nominal damages). 1 without reason restricted [him] from participating in any group religious activities 2 inside any Alaska correctional institution.”54 Title 42 U.S.C. § 1983 is a federal 3 statute that “is not itself a source of substantive rights,” but provides “a method for 4 vindicating rights [found] elsewhere.”55 For relief under 42 U.S.C. § 1983, a plaintiff 5 must “plead that (1) the defendants acting under color of state law (2) deprived 6 plaintiffs of rights secured by the Constitution or federal statutes.”56 To act under 7 the color of state law, a complaint must allege that the defendants acted with state 8 authority as state actors.57 9 In a § 1983 action, a defendant may be sued in either their individual or official 10 capacity. A defendant sued in her individual capacity may be held liable for money 11 damages.58 In order for a defendant to be individually liable under § 1983, that 12 defendant must personally participate in an alleged rights deprivation.59 “In a § 13 1983 action, the plaintiff must also demonstrate that the defendant’s conduct was 14 the actionable cause of the claimed injury.”60 15 Plaintiff fails to meet this standard. In substance, Claim One of Plaintiff’s First 16 Amended Complaint against Commissioner Dahlstrom in her individual capacity 17 mirrors the allegations contained in his original Complaint as they relate to this 18 defendant, which the Court previously screened and dismissed without prejudice, 19 and for which the Court provided guidance to Plaintiff about the elements needed in 20 a properly pled § 1983 claim.61 While Plaintiff does include additional information 21 about his own religious beliefs and practices in his First Amended Complaint, he 22

23 54 Dkt 10 at 4. 55 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 24 137, 144 n.3 (1979)). 56 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). 25 57 West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 26 326 (1941)). 58 See Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016). 27 59 Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010). 60 Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 28 61 Dkt. 6. 1 once again fails to articulate how Commissioner Dahlstrom personally participated 2 in depriving him of his rights or causing his alleged injury, which he must for an 3 individual capacity claim.62 A claim that Commissioner Dahlstrom “created and 4 implemented” the policy about which Plaintiff complains is insufficient to establish 5 individual liability under § 1983.63 6 IV. Conclusion 7 The Court recommends that Plaintiff’s First Amended Complaint as it relates 8 to the injunctive relief sought against Acting Commissioner Winkelman in Claim 9 One, and against Governor Dunleavy in Claims Two and Three be DISMISSED AS 10 MOOT. The DOC policies limiting gatherings, rehabilitation programs, and visitation 11 within DOC no longer remain in effect and there is no indication that they are 12 reasonably likely to be reenacted. There is no longer a live case or controversy as it 13 relates to these claims and the Court no longer has jurisdiction over them. 14 The Court also recommends GRANTING IN PART Defendants’ Motion to 15 Dismiss at Docket 24 as it relates to Plaintiff’s Claim One against Commissioner 16 Dahlstrom in her individual capacity. Plaintiff’s First Amended Complaint fails to 17 state how Commissioner Dahlstrom personally participated in the deprivation of his 18 rights, and therefore fails to state a claim upon which relief can be granted. 19 However, given Plaintiff’s pro se status, the Court recommends Plaintiff be afforded 20 leave to amend as it relates to this distinct claim only, and be provided with 21 appropriate guidance on how to either amend his complaint or file a voluntary notice 22 of dismissal, along with the appropriate paperwork from the Clerk’s Office for 23 completing either action.64 The Court recommends DENYING IN PART AS MOOT 24 62 Dkt. 10 at 3-5. 25 63 Id. at 4 26 64 In the event the District Court adopts the Court’s Findings and Recommendations as they relate to the recommendation to dismiss the individual capacity claim against 27 Commissioner Dahlstrom with leave to amend, the Court directs Plaintiff to the original screening order at Docket 6 for guidance on the elements necessary for a properly pled 28 claim. 1 the remainder of Defendants’ Motion to Dismiss as it relates to the official capacity 2 claims in light of the recommendation to dismiss as moot those claims in Plaintiff’s 3 First Amended Complaint. 4 DATED this 2nd of September 2022, at Anchorage, Alaska. 5 s/ Kyle F. Reardon 6 KYLE F. REARDON United States Magistrate Judge 7 District of Alaska 8 9 This Report and Recommendation is being issued as a Final Report and 10 Recommendation. Pursuant to Fed. R. Crim P. 59(b)(3), any objections will be 11 considered by the District Court Judge who will accept, reject, or modify the 12 recommendation following de novo review. Any objections must be filed within 13 seven (7) days from the date of service of this Report and Recommendation. The 14 shortened objection deadline is due to the request of the District Court Judge. Fed. 15 R. Crim P. 59(b)(2) and D. Ak. L.M.R. 6(a) authorizes the court to alter the standard 16 objection deadlines. 17 Reports and recommendations are not appealable orders. Any notice of appeal 18 pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District 19 Court’s judgment.65 20 21 22 23 24 25 26 27

28 65 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).