Coleman v. The City and Borough of Juneau
Opinion
2 FOR THE DISTRICT OF ALASKA
5 Plaintiff,
6 v. Case No. 1:23-cv-00002-SLG-KFR
et al., 8 Defendants. 9
10 SCREENING ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
11 Plaintiff’s Complaint fails to meet the requirements for a properly pled
12 complaint under 42 U.S.C. § 1983. Therefore, Plaintiff’s Complaint is DISMISSED.
13 However, the Court grants Plaintiff leave to amend his Complaint consistent with
14 this Order.
15 The Court notes that the tops and bottoms of Plaintiff’s Complaint are partially
16 obstructed in the copy the Court received. Therefore, the Court has inte rpreted the
17 Complaint to the best of its abilities. If Plaintiff chooses to file an amended
18 complaint, the Court instructs Plaintiff to use the Court’s form and make sure all
19 pages are complete and legible.1
20 I. Procedural History
21 On April 11, 2023, William Lorenzo Coleman, a self-represented prisoner
22 (hereinafter “Plaintiff”), filed a Prisoner’s Complaint under the Civil Rights Act, 42
23 U.S.C. § 1983 (hereinafter “Complaint”), a Civil Cover Sheet, a Prisoner’s Application
24 to Waive Prepayment of the Filing Fee, an Unissued Summons, a General Affidavit, 25 and a Certification/Proof of Service.2 Subsequently, Plaintiff filed Exhibit A, a copy 26 27 1 See Local Rule 7.5. 28 2 Docs. 1-6. 1 of a Misdemeanor Criminal Complaint against him, and Exhibit B, records from
2 Bartlett Regional Hospital.3
3 The Court now screens Plaintiff’s Complaint in accordance with 28 U.S.C. §§
4 1915(e) and 1915A.
5 SCREENING REQUIREMENT
6 Federal law requires a court to conduct an initial screening of a civil complaint
7 filed by a self-represented prisoner. In this screening, a court shall dismiss the case
8 at any time if the court determines that the action:
9 (i) is frivolous or malicious;
10 (ii) fails to state a claim on which relief may be granted; or
11 (iii) seeks monetary relief against a defendant who is immune from such
12 relief.4
13 To determine whether a complaint states a valid claim for relief, courts
14 consider whether the complaint contains sufficient factual matter that, if accepted
15 as true, “state[s] a claim to relief that is plausible on its face.”5 In conducting its
16 review, a court must liberally construe a self-represented plaintiff’s pleading and
17 give the plaintiff the benefit of the doubt.6
19 3 Doc. 8. Exhibit A documents a Misdemeanor Criminal Complaint related to Plaintiff’s 20 Complaint. Pl aintiff states his charges were dismissed on July 15, 2021; however, the Docket available to the Court suggests his charges were dismissed June 1, 2021. The Court also 21 notes that Plaintiff had a non-criminal case involving a “Pedestrian Signal Infraction,” which 22 appears related to Plaintiff’s Complaint. This non-criminal case was recently closed, and a default judgment was entered against Plaintiff after he failed to appear in February 2023. 23 See City and Borough of Juneau vs. Coleman, William Lorenzon, 1JU-22-01564MO, https://records.courts.alaska.gov/eaccess/searchresults.page?x=xbx0Z1uOUNUihiy1ooB3E 24 7YezI9PVJTfxU3Shmes8kHVlJax8XzgAGyNsef2fedw6yWiVIEV1xMdh4W9kOLj3g. 4 28 U.S.C. § 1915A. 25 5 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 26 544, 570 (2007)). In making this determination, a court may consider “materials that are submitted with and attached to the Complaint.” United States v. Corinthian Colleges, 655 27 F.3d 984, 999 (9th Cir. 2011) (citing Lee v. L.A., 250 F.3d 668, 688 (9th Cir. 2001)). 6 See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 28 1027 n.1 (9th Cir. 1985) (en banc)). 1 Before a court may dismiss any portion of a complaint for failure to state a
2 claim upon which relief may be granted, the court must provide the plaintiff with a
3 statement of the deficiencies in the complaint and an opportunity to amend or
4 otherwise address the problems, unless to do so would be futile.7 Futility exists
5 when “the allegation of other facts consistent with the challenged pleading could not
6 possibly cure the deficiency[.]”8
7 DISCUSSION
8 II. Complaint
9 Plaintiff’s Complaint alleges that Defendants, the City and Borough of Juneau
10 (“Juneau”), Juneau Police Officer Tyler Reid, and John Does 1-10, violated his rights
11 under 42 U.S.C. § 1983, as well as his First, Fourth, Fifth, Sixth, Eighth, and
12 Fourteenth Amendment rights under the United States Constitution.9 Plaintiff
13 separates his Complaint into four claims which stem from what he alleges was a
14 “vindictive prosecution and battery that occurred with an unlawful arrest on
15 September 25, 2020 in the City and Borough of Juneau Alaska.”10 Plaintiff alleges
16 that Defendant Reid unlawfully restrained and detained Plaintiff against his will,
17 planted and fabricated evidence, retaliated against him, and engaged in unlawful
18 discrimination by refusing to render medical assistance to him.11 Plaintiff identifies
19 himself as an African American.12
20 Plaintiff identifies Defendant Juneau as a government entity and a municipal 21 corporation that is responsible for the Juneau Police Department (“JPD”). Plaintiff 22 alleges that JPD, and thus Defendant Juneau, was responsible for the “hiring, 23
24 7 See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (citing Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir. 1988)). 25 8 See Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 26 1986). 9 Doc. 1 at 4. 27 10 Id. at 2. 11 Id. 28 12 Id. at 3. 1 training, and supervision” of Defendant Reid.13 Plaintiff alleges that Defendant Reid
2 acted “within the course and scope of his employment [as a Juneau Police Officer].
3 All acts committed by Defendant [] Reid were done under the color of the laws of the
4 State of Alaska and under the authority of his position as a police officer with the
5 Juneau Police Department.”14
6 Plaintiff makes several general allegations that he states are “common to all
7 cause[s] of action,” prior to listing his specific claims.15 Plaintiff’s general allegations
8 are as follows:
9 Defendants profiled and harassed him “on a number of occasions over
10 a period of time stemming to the present.”16
11 Defendants unlawfully approached Plaintiff “on or about September 25,
12 2020[,] and planted evidence of the employment of fire, explosives, or
13 other dangerous means listed in [City & Borough of Juneau (CBJ) Code
14 of Ordinances] 42.15.100(a) Artificial Intelligence in the Plaintiff’s
15 ‘Right Hand.’”17
16 Defendants knowingly, willingly, and intentionally covered up a
17 pedestrian car accident in a road construction zone as a form of
18 discrimination and retaliation, resulting in injury to Plaintiff’s right
19 knee.18
20 Defendants maliciously prosecuted Plaintiff “based on guilt by 21 Defendants, talking to the Plaintiff’s ‘Right Hand.’”19 22 Defendants refused Plaintiff medical assistance.20 23
24 13 Id. 14 Id. 25 15 Id. at 4. 26 16 Id. 17 Id. 27 18 Id. 19 Id. 28 20 Id.
Free access — add to your briefcase to read the full text and ask questions with AI
2 FOR THE DISTRICT OF ALASKA
5 Plaintiff,
6 v. Case No. 1:23-cv-00002-SLG-KFR
et al., 8 Defendants. 9
10 SCREENING ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
11 Plaintiff’s Complaint fails to meet the requirements for a properly pled
12 complaint under 42 U.S.C. § 1983. Therefore, Plaintiff’s Complaint is DISMISSED.
13 However, the Court grants Plaintiff leave to amend his Complaint consistent with
14 this Order.
15 The Court notes that the tops and bottoms of Plaintiff’s Complaint are partially
16 obstructed in the copy the Court received. Therefore, the Court has inte rpreted the
17 Complaint to the best of its abilities. If Plaintiff chooses to file an amended
18 complaint, the Court instructs Plaintiff to use the Court’s form and make sure all
19 pages are complete and legible.1
20 I. Procedural History
21 On April 11, 2023, William Lorenzo Coleman, a self-represented prisoner
22 (hereinafter “Plaintiff”), filed a Prisoner’s Complaint under the Civil Rights Act, 42
23 U.S.C. § 1983 (hereinafter “Complaint”), a Civil Cover Sheet, a Prisoner’s Application
24 to Waive Prepayment of the Filing Fee, an Unissued Summons, a General Affidavit, 25 and a Certification/Proof of Service.2 Subsequently, Plaintiff filed Exhibit A, a copy 26 27 1 See Local Rule 7.5. 28 2 Docs. 1-6. 1 of a Misdemeanor Criminal Complaint against him, and Exhibit B, records from
2 Bartlett Regional Hospital.3
3 The Court now screens Plaintiff’s Complaint in accordance with 28 U.S.C. §§
4 1915(e) and 1915A.
5 SCREENING REQUIREMENT
6 Federal law requires a court to conduct an initial screening of a civil complaint
7 filed by a self-represented prisoner. In this screening, a court shall dismiss the case
8 at any time if the court determines that the action:
9 (i) is frivolous or malicious;
10 (ii) fails to state a claim on which relief may be granted; or
11 (iii) seeks monetary relief against a defendant who is immune from such
12 relief.4
13 To determine whether a complaint states a valid claim for relief, courts
14 consider whether the complaint contains sufficient factual matter that, if accepted
15 as true, “state[s] a claim to relief that is plausible on its face.”5 In conducting its
16 review, a court must liberally construe a self-represented plaintiff’s pleading and
17 give the plaintiff the benefit of the doubt.6
19 3 Doc. 8. Exhibit A documents a Misdemeanor Criminal Complaint related to Plaintiff’s 20 Complaint. Pl aintiff states his charges were dismissed on July 15, 2021; however, the Docket available to the Court suggests his charges were dismissed June 1, 2021. The Court also 21 notes that Plaintiff had a non-criminal case involving a “Pedestrian Signal Infraction,” which 22 appears related to Plaintiff’s Complaint. This non-criminal case was recently closed, and a default judgment was entered against Plaintiff after he failed to appear in February 2023. 23 See City and Borough of Juneau vs. Coleman, William Lorenzon, 1JU-22-01564MO, https://records.courts.alaska.gov/eaccess/searchresults.page?x=xbx0Z1uOUNUihiy1ooB3E 24 7YezI9PVJTfxU3Shmes8kHVlJax8XzgAGyNsef2fedw6yWiVIEV1xMdh4W9kOLj3g. 4 28 U.S.C. § 1915A. 25 5 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 26 544, 570 (2007)). In making this determination, a court may consider “materials that are submitted with and attached to the Complaint.” United States v. Corinthian Colleges, 655 27 F.3d 984, 999 (9th Cir. 2011) (citing Lee v. L.A., 250 F.3d 668, 688 (9th Cir. 2001)). 6 See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 28 1027 n.1 (9th Cir. 1985) (en banc)). 1 Before a court may dismiss any portion of a complaint for failure to state a
2 claim upon which relief may be granted, the court must provide the plaintiff with a
3 statement of the deficiencies in the complaint and an opportunity to amend or
4 otherwise address the problems, unless to do so would be futile.7 Futility exists
5 when “the allegation of other facts consistent with the challenged pleading could not
6 possibly cure the deficiency[.]”8
7 DISCUSSION
8 II. Complaint
9 Plaintiff’s Complaint alleges that Defendants, the City and Borough of Juneau
10 (“Juneau”), Juneau Police Officer Tyler Reid, and John Does 1-10, violated his rights
11 under 42 U.S.C. § 1983, as well as his First, Fourth, Fifth, Sixth, Eighth, and
12 Fourteenth Amendment rights under the United States Constitution.9 Plaintiff
13 separates his Complaint into four claims which stem from what he alleges was a
14 “vindictive prosecution and battery that occurred with an unlawful arrest on
15 September 25, 2020 in the City and Borough of Juneau Alaska.”10 Plaintiff alleges
16 that Defendant Reid unlawfully restrained and detained Plaintiff against his will,
17 planted and fabricated evidence, retaliated against him, and engaged in unlawful
18 discrimination by refusing to render medical assistance to him.11 Plaintiff identifies
19 himself as an African American.12
20 Plaintiff identifies Defendant Juneau as a government entity and a municipal 21 corporation that is responsible for the Juneau Police Department (“JPD”). Plaintiff 22 alleges that JPD, and thus Defendant Juneau, was responsible for the “hiring, 23
24 7 See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (citing Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir. 1988)). 25 8 See Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 26 1986). 9 Doc. 1 at 4. 27 10 Id. at 2. 11 Id. 28 12 Id. at 3. 1 training, and supervision” of Defendant Reid.13 Plaintiff alleges that Defendant Reid
2 acted “within the course and scope of his employment [as a Juneau Police Officer].
3 All acts committed by Defendant [] Reid were done under the color of the laws of the
4 State of Alaska and under the authority of his position as a police officer with the
5 Juneau Police Department.”14
6 Plaintiff makes several general allegations that he states are “common to all
7 cause[s] of action,” prior to listing his specific claims.15 Plaintiff’s general allegations
8 are as follows:
9 Defendants profiled and harassed him “on a number of occasions over
10 a period of time stemming to the present.”16
11 Defendants unlawfully approached Plaintiff “on or about September 25,
12 2020[,] and planted evidence of the employment of fire, explosives, or
13 other dangerous means listed in [City & Borough of Juneau (CBJ) Code
14 of Ordinances] 42.15.100(a) Artificial Intelligence in the Plaintiff’s
15 ‘Right Hand.’”17
16 Defendants knowingly, willingly, and intentionally covered up a
17 pedestrian car accident in a road construction zone as a form of
18 discrimination and retaliation, resulting in injury to Plaintiff’s right
19 knee.18
20 Defendants maliciously prosecuted Plaintiff “based on guilt by 21 Defendants, talking to the Plaintiff’s ‘Right Hand.’”19 22 Defendants refused Plaintiff medical assistance.20 23
24 13 Id. 14 Id. 25 15 Id. at 4. 26 16 Id. 17 Id. 27 18 Id. 19 Id. 28 20 Id. 1 Plaintiff claims that Defendants’ actions violated his rights under 42 U.S.C. § 1983,
2 as well as his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment Rights.21
3 Plaintiff’s Complaint alleges four specific claims. Claim One is made against
4 all defendants and alleges that Defendant Reid subjected Plaintiff to excessive force
5 and violated his Fourth Amendment right to be free from unreasonable search and
6 seizure. Specifically, Plaintiff asserts that Defendant Reid stopped and frisked him
7 without legal justification, and planted incriminating evidence on Plaintiff.22
8 Plaintiff also appears to assert Defendant Reid invaded his right to privacy as well.23
9 Without greater explanation, Plaintiff merely states that Defendant Reid “knew or
10 should have known his actions were violative of rights guaranteed to the plaintiff
11 being in a protect[ed] class group as an African American.”24 Plaintiff further claims
12 that Defendants acted in both their individual and official capacities in violating
13 Plaintiff’s rights.25
14 In Claim Two, Plaintiff alleges that Defendant Juneau violated Plaintiff’s
15 Fourth, Eighth, and Fourteenth Amendment rights by failing “to train, supervise, and
16 discipline police officers from committing the unwarranted batteries and using
17 excessive force, or allowing such activities, against civilian[] citizens such as
18 plaintiff.”26 Plaintiff concedes that “the actions of Defendants were done under state
19 law.”27
20 Plaintiff asserts a claim of battery under Alaska law against all Defendants for 21 Claim Three.28 Plaintiff faults Defendants for placing him in a court holding cell 22
23 21 Id. 22 Id. at 10. 24 23 Id. 24 Id. 25 25 Id. at 11. While Plaintiff refers to Defendants in the plural throughout much of Claim One, 26 it is unclear to the Court who else Plaintiff is attempting to sue in this claim as he only references Defendant Reid and does not mention any John Doe Defendants. 27 26 Id. at 13. 27 Id. 28 28 Id. at 14. 1 “violently, forcefully and without consent,” despite his “pre-existing soft-tissue
2 injury” and despite his request for medical assistance.29 Plaintiff claims that
3 Defendants should have known Defendants’ actions of “forcibly” preventing Plaintiff
4 from receiving medical treatment for his soft tissue condition were discriminatory,
5 in violation of the Eighth Amendment, and contrary to Plaintiff’s rights as a member
6 of a protected class.30
7 In Claim Four, Plaintiff raises an Intentional Infliction of Emotional Distress
8 claim under Alaska law against all Defendants.31 In addition to the facts and claims
9 previously raised, Plaintiff appears to allege that Defendants handcuffed Plaintiff in
10 the back seat of a police car “with no identifiable voice,” thus intentionally inflicting
11 emotional distress on Plaintiff as evidenced by his reportedly high blood pressure.32
12 Plaintiff demands trial by jury and seeks monetary and punitive damages to
13 be determined at trial, as well a declaratory judgment and injunctive relief.33
14 //
15 //
16 //
18 29 Id.
19 30 Id. at 15. After Claim Three, but before Claim Four, Plaintiff includes a section called “Newly Discovered Impeachment Evidence of the State Witness [Defendant] Reid.” Plaintiff 20 maintains th at Defendant Juneau fired Defendant Reid and “placed him under police protection based on the wrongful death complaint of Mr. [] Spring …. Stemming from an 21 incident that occurred on or about September 26, 2020.” Doc. 1 at 16. Plaintiff also asserts 22 “Defendants are liable to the Estate of Cody Eyre for common law torts under Alaska law, including ass[a]ult and battery.” Id. The Court is unclear who these parties are and their 23 relationship to Plaintiff’s allegations. Plaintiff does references in this portion of his Complaint a policy, practice and custom by Defendants of failing “to investigate, discipline, 24 reprimand or instruct their officers in any way” and claims “Defendant Officers’ actions were a direct and proximate cause of the injuries suffered by the plaintiff.” Id. The Court 25 assumes that Plaintiff included the information about Mr. Spring and the Estate of Eyre to 26 demonstrate that Defendant Reid has a pattern of “malicious and unconstitutional” behavior. 27 31 Id. at 17. 32 Id. 28 33 Id. at 9. 1 III. Civil Rights Claims Under 42 U.S.C. § 1983
2 Section 1983 is a federal statute that “is not itself a source of substantive
3 rights,” but provides “a method for vindicating rights [found] elsewhere.”34
4 Constitutional rights are those conferred by the United States Constitution to
5 individual citizens. Section 1983 can be used as a mechanism for enforcing the rights
6 guaranteed by a particular federal statute only if (1) the statute creates enforceable
7 rights and (2) Congress has not foreclosed the possibility of a § 1983 remedy for
8 violations of the statute in question.35 Section 1983 does not provide a cause of
9 action for violations of state law.36 In order to plead a proper § 1983 claim, a plaintiff
10 must allege plausible facts that if proven would establish each of the required
11 elements of: “(1) a violation of rights protected by the Constitution or created by
12 federal statute, (2) proximately caused (3) by conduct of a ‘person’ (4) acting under
13 color of state law.”37
14 Section 1983 also requires that a defendant must be “acting under the color of
15 state law.”38 The question of whether a person who has allegedly caused a
16 constitutional injury was acting under the color of state law is a factual
17 determination.39 A defendant has acted under color of state law where he or she has
18 “exercised power ‘possessed by the virtue of state law and made possible only
19 because the wrongdoer is clothed with the authority of state law.’”40
20 21
22 34 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 23 144 n.3 (1979)). 35 Blessing v. Freestone, 520 U.S. 329, 340-41 (1997); Dittman v. California, 191 F.3d 1020, 24 1027-28 (9th Cir. 1999). 36 Galen v. Cty. Of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007). 25 37 Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). 26 38 West v. Atkins, 487 U.S. 42, 49 (1988). 39 See Brunette v. Humane Soc’y of Ventura Cty., 294 F.3d 1205, 1209 (9th Cir. 2002). 27 40 West, 487 U.S. at 49 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)); see also Tongol v. Usery, 601 F.2d 1091, 1097 (establishing that when state officials are administering 28 a federal funded program, the state officials are still acting under the color of state law). 1 This essential element of the statute limits who may be a proper defendant
2 under § 1983. For instance, private citizens, state governmental agencies, and states
3 are generally not proper defendants in a § 1983 action.41 States have sovereign
4 immunity due to the Eleventh Amendment of the U.S. Constitution, which makes
5 them immune from suit unless that immunity is waived.42 “States or governmental
6 entities that are considered ‘arms of the State’ for Eleventh Amendment purposes
7 are not ‘persons’ under § 1983.”43
8 IV. Pleading Requirements for Causes of Action Raised by Plaintiff
9 Plaintiff does not meet the basic pleading requirements to sufficiently state a
10 claim under § 1983, therefore the Court dismisses Plaintiff’s Complaint. However,
11 the Court grants Plaintiff leave to amend to bring his complaint into compliance with
12 the applicable law and rules. The Court also provides guidance for claims made
13 under § 1983 and specifically for any First, Fourth, Fifth, Sixth, and Fourteenth
14 Amendment claims that Plaintiff may be attempting to allege.44
15 a. Federal Rule of Civil Procedure 8
16 Federal Rule of Civil Procedure 8 directs that a complaint shall include “a short
17 and plain statement of the claim showing that the pleader is entitled to relief[.]”
18 Plaintiff’s Complaint fails to meet this basic standard. Plaintiff’s allegations are
19 non-linear and rambling, include irrelevant narrative, are conclusory, and leave the
20 Court with either no way of determining who Plaintiff is attempting to sue, or how 21
22 41 See 42 U.S.C. § 1983; Flint v. Dennison,488 F.3d 816, 824-25 (9th Cir. 2007); Hale v. Arizona, 993 F.2d 1387, 1398 (9th Cir. 1993) (en banc). 23 42 In re New York, 256 U.S. 490, 497 (1921) (holding federal courts may not hear suits against a state brought by their own citizens, “because of the fundamental rule of which the 24 [Eleventh] Amendment is but an exemplification.”); see also Hans v. Louisiana, 134 U.S. 1, 15 (1890). 25 43 Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997); quoting Will v. 26 Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989)). 44 The Court is not providing guidance on potential Eighth Amendment claims. It appears 27 as if Plaintiff was a pre-trial detainee at the time of the events in his Complaint. Accordingly, the Fourteenth Amendment applies, not the Eighth Amendment, which may be raised only 28 by convicted criminals. 1 any individuals Plaintiff does identify violated his constitutional rights. As a result,
2 the Court orders dismissal of Plaintiff’s Complaint with leave to amend.
3 Rather than identifying each claim clearly and separately and stating the
4 underlying facts that support each claim, Plaintiff’s Complaint lists statutes and
5 Constitutional Amendments at the beginning of his Complaint and then proceeds
6 with 20 pages of occasionally repetitive narrative and conclusory allegations.45 For
7 example, Plaintiff states generally that Defendants violated his First, Fifth and Sixth
8 Amendment rights.46 However, in none of the specific claims made by Plaintiff is
9 there mention of any such violations or conduct that could reasonably be interpreted
10 to include such violations. In addition, as detailed below, Plaintiff names unknown
11 defendants in his complaint, but fails to provide any information describing what
12 those unknown defendants did. Plaintiff’s Complaint also alleges dates that are
13 inconsistent or contrary to the public record and speaks on at least two occasions of
14 “Artificial Intelligence” relating to his right hand.47
15 Finally, Plaintiff’s Complaint makes multiple inconsistent demands for
16 damages. In his general claims Plaintiff seeks $50,000 to $250,000 in compensatory
17 damages, and the same amount in punitive damages.48 However, after specific
18 Claims One and Two, Plaintiff request those amounts for each violation, and
19 increases the punitive request for Claim Two to $1,000,000.49 Claims Three and
20 Four are similarly inconsistent with Plaintiff’s original request, as his Prayer for 21 Relief, which seeks compensatory damages “in excess of $100,000” and punitive 22 damages in an amount “to be proven at trial.”50 23
24 45 See Pettit v. State of New Mexico, 375 F. Supp. 2d 1140, 1150 (D. N.M. 2004) (listing dozens of statutes is insufficient to state a claim). 25 46 Doc. 1 at 4. 26 47 Id. at 4, 9. Plaintiff also asks for “Declaratory and Injunctive Relief to immobilize and remove the Artificial Intelligence sleight of hand explosive device[.]” 27 48 Id. at 9. 49 Id. at 12-14. 28 50 Id. at 20. 1 The confusing nature of Plaintiff’s Complaint is a sufficient basis for dismissal
2 because “[p]rolix, confusing complaints ... impose unfair burdens on litigants and
3 judges.”51 “Experience teaches that, unless cases are pled clearly and precisely,
4 issues are not joined, discovery is not controlled, the trial court's docket becomes
5 unmanageable, the litigants suffer, and society loses confidence in the court's ability
6 to administer justice.”52 It should not require a herculean effort for Defendants and
7 the Court to determine “who is being sued for what”53 and the Court declines to
8 engage in that exercise in this case.
9 b. Defendants
10 As detailed in his Complaint, Plaintiff alleges acts against him and identifies
11 12 potential defendants. However, Plaintiff does not sufficiently articulate the
12 connection between those defendants and the harms he claims to have suffered.
13 Rather, Plaintiff’s Complaint, as best the Court can understand it, fails to provide the
14 necessary detail required for claims under § 1983 to connect the defendants accused
15 with the harms alleged and relief requested.54
16 i. The City and Borough of Juneau
17 Plaintiff lists The City and Borough of Juneau as a defendant. A local
18 governmental entity, such as a city or county, may be a proper defendant in a § 1983
19 action.55 However, a local government entity is not liable under § 1983 simply
20 because its employees violated the plaintiff's constitutional rights.56 21 22
23 51 McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996). 52 Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (citation omitted). 24 53 Id. 54 Additionally, Plaintiff’s Complaint does not contain a short and plain statement as 25 required by Fed. R. Civ. P. 8(a)(2). 26 55 Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 n.54 (1978) (there is “no constitutional impediment to municipal liability” under § 1983); Pembaur v. City of 27 Cincinnati, 475 U.S. 469, 483 (1986) (extending Monell's analysis of municipal liability to counties). 28 56 Monell, 436 U.S. at 691. 1 To prevail on a § 1983 claim against a city or county, a plaintiff must show
2 both a deprivation of a constitutional right and a departmental policy, custom or
3 practice that was the “moving force” behind the constitutional violation.57 To
4 impose § 1983 liability on a municipality, a plaintiff must premise their claim on one
5 of three distinct theories: “(1) that a [municipal] employee was acting pursuant to
6 an expressly adopted official policy; (2) that a [municipal] employee was acting
7 pursuant to a longstanding practice or custom; or (3) that a [municipal] employee
8 was acting as a ‘final policymaker.’”58 Proof of a single incident of unconstitutional
9 activity, or even a series of “isolated or sporadic incidents,” is insufficient to impose
10 liability under § 1983.59 Rather, liability must be “founded upon practices of
11 sufficient duration, frequency and consistency that the conduct has become a
12 traditional method of carrying out policy.”60
13 As currently pled, Plaintiff fails to identify and describe the policy that he
14 claims a municipal employee violated. Instead, Plaintiff makes naked assertions that
15 Defendant Reid and other unknown John Doe defendants acted pursuant to “normal
16 practice and procedure,” and that Defendant Juneau failed to train, supervise, and
17 discipline police officers.61 Such naked assertions do not make Defendant Juneau a
18 proper defendant in this case.
19 Plaintiff’s Complaint may be asserting either the existence of a policy of
20 inadequate training or supervision or the existence of a custom of tolerance or 21
22 57 Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 957 (9th Cir. 2008). 58 Eng v. Cnty. of Los Angeles, 737 F.Supp.2d 1078, 1103 (C.D. Cal. 2010). 23 59 Gant v. Cnty. of Los Angeles, 772 F.3d 608, 618 (9th Cir. 2014) (quoting Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985)); see also Davis v. Ellensburg, 869 F.2d 1230, 1233 (9th Cir. 24 1989) (“A plaintiff cannot prove the existence of a municipal policy or custom based solely on the occurrence of a single incident of unconstitutional action by a non-policymaking 25 employee.”) 26 60 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996); see also Singleton v. Cnty. of Riverside, No. EDCV212164SPGPVC, 2022 WL 3589154, at *4 (C.D. Cal. July 18, 2022), report and 27 recommendation adopted, No. EDCV212164SPGPVC, 2022 WL 3586201 (C.D. Cal. Aug. 19, 2022). 28 61 Doc. 1 at 3, 11. 1 acquiescence of federal rights violations.62 Indeed, Plaintiff includes information in
2 his Complaint regarding Defendant Reid’s conduct in an unrelated event the day
3 after Plaintiff’s arrest that allegedly resulted in Defendant Reid’s termination. To the
4 extent that Plaintiff includes this information to establish a pattern of conduct by
5 Defendant Reid or a custom and practice within the City and Borough of Juneau,
6 Plaintiff must allege facts that Defendant Reid acted pursuant to either (1) an
7 expressly adopted official policy, or (2) a longstanding practice or custom. Plaintiff
8 must articulate specifically what that policy or custom is and how Defendant Reid’s
9 actions constitute sufficient duration, frequency and consistency such that the
10 conduct has become a traditional method of carrying out policy”63 as opposed to a
11 single incident of unconstitutional activity, or even a series of “isolated or sporadic
12 incidents,” which are insufficient to impose liability under § 1983.64
13 Plaintiff does not do that in his Complaint. Instead, Plaintiff merely takes issue
14 with how an officer or officers acted during his arrest without specifying any specific
15 policy or custom of training that was inadequate. This deficiency warrants
16 dismissal.
17 ii. John Does 1-10
18 The caption of Plaintiff’s Complaint lists “John Does 1-10.” In a § 1983 suit,
19 the “plaintiff may refer to unknown defendants as
20 Defendant John Doe 1, John Doe 2, John Doe 3, and so on, but he must [also] allege 21 specific facts showing how each particular Doe defendant violated his rights.”65 It 22 23 62 Id. 24 63 Trevino v. Gates, 99 F.3d at 918; Singleton, No. EDCV212164SPGPVC, 2022 WL 3589154, at *4 (C.D. Cal. July 18, 2022), report and recommendation adopted, No. 25 EDCV212164SPGPVC, 2022 WL 3586201 (C.D. Cal. Aug. 19, 2022). 26 64 Gant, 772 F.3d at 618 (quoting Tuttle, 471 U.S at 823-24); see also Ellensburg, 869 F.2d at 1233. 27 65 Cuda v. Employees/Contractors/Agents at or OCCC, 2019 WL 2062945, at *3–4 (D. Haw. May 9, 2019); see also Torbert v. Romo, No. 3:22-CV-0925-CAB-BLM, 2022 WL 4474918, at 28 *4 (S.D. Cal. Sept. 26, 2022). 1 is imperative that specific actions be attributed to each John Doe defendant so their
2 identities can be uncovered through discovery66 and to identify their liability.67 In
3 addition, claims under § 1983 must demonstrate causation, or show how the alleged
4 defendant, acting under color of state law, violated a plaintiff’s federal rights.
5 A person deprives another of a federal constitutional or statutory right,
6 “within the meaning of § 1983, ‘if he does an affirmative act, participates in
7 another’s affirmative act, or omits to perform an act which he is legally required to
8 do that causes the deprivation of which complaint is made.’”68 There can be no
9 liability under § 1983 unless there is some affirmative link or connection between a
10 defendant's actions and the claimed deprivation.69 The required causal connection
11 “may be established when an official sets in motion a ‘series of acts by others which
12 the actor knows or reasonably should know would cause others to inflict’
13 constitutional harms.”70
14 Plaintiff’s Complaint fails to meet this standard. The Court is unable to
15 discern who the “John Does” are that Plaintiff is seeking to sue. Plaintiff describes
16 acts by Defendant Reid and speaks generally throughout the Complaint of
17 Defendants in the plural but provides no information that would allow the Court or
18 potential defendants to identify these unknown “John Does” through discovery or to
19 assess their liability. Plaintiff’s Complaint says nothing about where these “John
20 66 See generally Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (holding that a 21 plaintiff should be given an opportunity to identify John Doe defendants through discovery 22 “unless it is clear that discovery would not uncover the identities”). 67 Dempsey v. Schwarzenegger, No. 09-cv-2921, 2010 U.S. Dist. LEXIS 144416 at *6, 2010 WL 23 1445460 at *2 (N.D. Cal. Apr. 9, 2010) (“A plaintiff may use Doe defendant designations to refer to defendants whose names are unknown; however, he must number them in the 24 complaint, e.g., ‘John Doe 1,’ ‘John Doe 2,’ so that each numbered John Doe refers to a different specific person. Plaintiff must identify how each such named Defendant is liable 25 for a constitutional violation.”). 26 68 Preschooler II v. Clark Cty. Sch. Bd. Of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). 27 69 Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson, 588 F.2d at 740. 28 70 Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). 1 Does” may have worked, how he came across them, or how they violated any of his
2 rights, thereby failing both the identification and causation requirements that are
3 necessary to allow any suit against John Doe defendants to go forward. Accordingly,
4 the claims against “John Does 1-10” are deficient and are dismissed. However, the
5 Court grants Plaintiff leave to amend his Complaint as to these “John Does” with
6 specificity.
7 iii. Juneau Police Officer Reid
8 Generally, police officers are considered state actors for purposes of § 1983.
9 Plaintiff broadly faults Defendants, including Defendant Reid for violating his rights
10 under 42 U.S.C. § 1983, as well as his First, Fourth, Fifth, Sixth, Eighth, and
11 Fourteenth Amendment rights under the United States Constitution.71 To the best of
12 the Court’s interpretation, Plaintiff faults Defendant Reid in a variety of claims
13 stemming from a “vindictive prosecution and battery that occurred with an unlawful
14 arrest on September 25, 2020 in the City and Borough of Juneau Alaska.”72 In
15 addition, Plaintiff alleges Defendant Reid planted fabricated evidence and refused
16 him medical assistance in a retaliatory and discriminatory manner.73
17 While Plaintiff raises many different claims against Defendant Reid, he does
18 not meet the required elements for those claims. Each claim has different pleading
19 requirements. The Court attempts below to identify each of the deficiencies in
20 Plaintiff’s Complaint as they relate to Defendant Reid. 21 Additionally, Plaintiff must more clearly indicate whether he wishes to sue 22 Defendant Reid in his individual or official capacity and seek the corresponding form 23 of relief. In a § 1983 action, a defendant may be sued in either an individual or an 24 official capacity. For a defendant to be individually liable under § 1983, that 25 26
27 71 Doc. 1 at 4. 72 Id. at 2. 28 73 Id. 1 defendant must personally participate in an alleged rights deprivation.74 “In a
2 § 1983 action, the plaintiff must also demonstrate that the defendant’s conduct was
3 the actionable cause of the claimed injury.”75 A defendant sued in their individual
4 capacity may be held liable for money damages.76
5 Alternatively, in a § 1983 action, a plaintiff may sue a defendant in an official
6 capacity as an alternate way of pleading a claim against the governmental entity for
7 which that individual is an officer or employee.77 A plaintiff suing a defendant in
8 their official capacity is not required to allege the “named official’s personal
9 involvement in the acts or omissions constituting the alleged constitutional
10 violation.”78 Instead, a plaintiff must only (1) “identify the law or policy challenged”
11 and (2) “name the official within the entity who can appropriately respond to
12 injunctive relief.”79 However, a defendant sued in their official capacity may not be
13 sued for damages, only for injunctive relief.80
14 It should be noted that some of Plaintiff’s claims against Defendant Reid
15 appear to be outside the applicable statute of limitations. Section 1983 does not
16 contain its own statute of limitations. Rather, federal courts “apply the forum state’s
17 statute of limitations for personal injury actions, ... except to the extent any of these
18 laws is inconsistent with federal law.”81 In Alaska, the statute of limitations for a
19 tort action against a peace officer is two years.82
20 However, the statute of limitations can be tolled while claims challenging an 21 unconstitutional conviction or sentence are challenged in state court. Federal law 22
23 74 Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010). 75 Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 24 76 See Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016). 77 Kentucky v. Graham, 473 U.S. 159, 165 (1985); Hafer v. Melo, 502 U.S. 21, 27 (1991). 25 78 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013). 26 79 Id. 80 See Will, 491 U.S. at 71 n.10. 27 81 Butler v. Nat’l Cmty. Renaissance of California, 766 F.3d 1191, 1198 (9th Cir. 2014) (internal quotations and citations omitted) (emphasis added). 28 82 Alaska Statute § 09.10.070; Maness v. Gordon, 325 P.3d 522, 525 (Alaska, 2014). 1 opens two main avenues to relief on complaints related to imprisonment: a petition
2 for habeas corpus and a civil rights complaint.83 Claims challenging “the fact or
3 duration of the conviction or sentence” are within the core of habeas, while claims
4 challenging “any other aspect of prison life” are properly brought as civil rights
5 actions.84 “[H]abeas is the exclusive vehicle for claims brought by state prisoners
6 that fall within the core of habeas corpus, and such claims may not be brought in a
7 § 1983 [civil rights] action.”85
8 In Heck v. Humphrey, the Supreme Court held that “in order to recover
9 damages for [an] allegedly unconstitutional conviction or imprisonment, or for
10 other harm caused by actions whose unlawfulness would render a conviction or
11 sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has
12 been reversed on direct appeal, expunged by executive order, declared invalid by a
13 state tribunal authorized to make such determination, or called into question by a
14 federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.”86 “A claim for
15 damages bearing that relationship to a conviction or sentence that has not been ...
16 invalidated is not cognizable under § 1983.”87 “Thus, when a state prisoner seeks
17 damages in a § 1983 suit, the district court must consider whether a judgment in
18 favor of the plaintiff would necessarily imply the invalidity of his conviction or
19 sentence; if it would, the complaint must be dismissed unless the plaintiff can
20 demonstrate that the conviction or sentence has already been invalidated.”88 21 In Roberts v. City of Fairbanks, the Ninth Circuit, pointing to the Supreme 22 Court's holding in Heck, held that “a § 1983 action challenging a conviction or 23 sentence does not ‘exist[ ]’ until the conviction or sentence is 24
25 83 See Muhammad v. Close, 540 U.S. 749, 750 (2004). 26 84 Id. at 934. 85 Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc). 27 86 Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). 87 Id. at 487. 28 88 Id. 1 invalidated.”89 Applying this rule, the Ninth Circuit stated in a different case that
2 “Heck therefore teaches that [plaintiff’s] claims did not accrue until the [state] court
3 vacated those convictions.”90
4 It appears to the Court that the events in question began on September 25,
5 2020. Plaintiff did not file the present Complaint until April 11, 2023, more than two
6 and half years later. Any claims by Plaintiff regarding his short detention in jail, and
7 any other claims that would not necessarily have invalidated his pending charges
8 should have been brought within the two-year statute of limitations and are now
9 time barred.
10 However, Plaintiff’s claims regarding unconstitutional seizure, wrongful
11 arrest, and vindictive prosecution could not have been brought under § 1983 while
12 his criminal case was pending.91 Therefore, the stature of limitations was tolled as
13 to those claims and did not start running until his charges were dismissed on June 1,
14 2021.92 Accordingly, because Plaintiff filed this action on April 11, 2023, his claims
15 that could have invalidated his charges do not appear to be time barred.
16 c. First Amendment Claims
17 None of Plaintiff’s specific claims allege a violation of his First Amendment
18 rights. Nonetheless, Plaintiff does make a general claim of such a violation. Viewing
19 his complaint liberally, Plaintiff may be asserting that that Defendant engaged in
20 unlawful retaliation against him in violation of his First Amendment rights. The 21 Court has identified in Plaintiff’s Complaint only two allegations in support of this 22 possible claim. First, that Defendants refused to render medical assistance to him;93 23
24 89 Roberts v. City of Fairbanks, 947 F.3d 1191, 1200 (9th Cir. 2020); Rosales-Martinez v. Palmer, 753 F.3d 890, 896 (9th Cir. 2014). 25 90 Id. 26 91 Claims that may have invalidated his pending charges could have been brought under habeas while Plaintiff was “in custody.” See 28 U.S.C. §§ 2241(c), 2254(a), 2255. 27 92 As previously noted, Defendant states his charges were dismissed on July 15, 2021, however the Docket available to the Court suggests his charges were dismissed June 1, 2021. 28 93 Doc. 1 at 2. 1 and second, that Defendants knowingly, willingly, and intentionally covered up a
2 pedestrian car accident in a road construction zone.94 Plaintiff alleges that these
3 acts were done after Plaintiff made a “simple inquiry and conversation” about the
4 incident that led to Plaintiff’s arrest.95
5 Plaintiff’s Complaint in its current form does not plead the required elements
6 for a retaliation claims. To prevail on a First Amendment retaliation claim, five
7 elements must be met.96 Those elements include 1) an allegation that the retaliated-
8 against conduct is protected, 2) adverse action against the plaintiff, 3) a causal
9 connection between the adverse action and the retaliation, 4) an allegation that the
10 “official’s acts would chill or silence a person of ordinary firmness from future First
11 Amendment activities,” and 5) that the official’s acts did not advance a legitimate
12 penological goal.97
13 In his complaint, Plaintiff fails to meet these elements. Rather, Plaintiff’s
14 Complaint makes “naked assertions devoid of further factual enhancement.”98
15 Indeed, as detailed above, Plaintiff makes no mention of any violation of his First
16 Amendment rights in his specific claims. Plaintiff must plead facts supporting the
17 five required elements as to each Defendant to sufficiently plead his First
18 Amendment Retaliation claim.
19 d. Fourth Amendment Claims
20 Plaintiff appears to raise four claims under the Fourth Amendment: false 21 arrest and unlawful detention, malicious prosecution, fabrication of evidence, and 22 excessive force. As detailed below, each claim has separate and distinct pleading 23 requirements that Plaintiff must meet to successfully plead his claims. Plaintiff’s 24 Complaint in its current form does not meet these required elements. 25
26 94 Id. at 4. 95 Id. at 5. 27 96 Id. at 4. 97 Id. 28 98 Id. (internal citations and quotations omitted). 1 In Claim One, Plaintiff focuses his First Amendment claims on Defendant
2 Reid’s actions, but Plaintiff also appears to seek compensation from Defendant
3 Juneau and the unknown John Does. In claim Two, Plaintiff faults Defendant Juneau
4 for failing to properly train, supervise, and discipline Defendant Reid and “its
5 officers”.99
6 As currently pled, and as detailed above, Plaintiff does not meet the elements
7 to assert municipal liability under the Fourth Amendment as to Defendant Juneau.
8 “[L]iability ... under § 1983 [requires] the identif[ication] [of] a municipal ‘policy’
9 or ‘custom’ that caused the plaintiff's injury.”100 Plaintiff’s Complaint does not
10 appear to allege any policy or custom that caused Plaintiff’s injury. To properly
11 plead his claim that Defendant Juneau is responsible for Defendant Reid’s alleged
12 actions, Plaintiff must first identify what the specific policy or custom was in place
13 that Defendant Reid violated. Next, Plaintiff must allege facts to prove at least one
14 of four methods of showing the municipality had such a policy or custom as to each
15 individual claim: “(1) the existence of an illegal official policy or legislative
16 enactment; (2) that an official with final decision making authority ratified illegal
17 actions; (3) the existence of a policy of inadequate training or supervision; or (4) the
18 existence of a custom of tolerance or acquiescence of federal rights violations.”101
19 i. False Arrest and Unlawful Detention
20 Plaintiff alleges in Claim One that Defendant Reid is liable under § 1983 for 21 unlawfully arresting him after stopping and frisking Plaintiff “without any legal 22 justification, willfully and maliciously and knowingly.”102 The Court construes this 23
24 99 Doc. 1 at 13. 100 Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403–04 (1997) (emphasis 25 added). 26 101 See generally Jackson v. City of Cleveland, 925 F.3d 793, 828 (6th Cir. 2019), rehearing en banc denied (June 27, 2019), cert. denied, 140 S. Ct. 855 (2020); Burgess v. Fischer, 735 F.3d 27 462, 478 (6th Cir. 2013) (citation omitted). 102 Doc. 1 at 10. Plaintiff focuses Claim One on Officer Reid, but also states that “officers” 28 1 as a claim under the Fourth Amendment's right to be free from unreasonable
2 seizures.103 Accordingly, the focal point of the Court's analysis must be on the
3 probable cause supporting Plaintiff’s arrest, detention, and prosecution.
4 Probable cause to arrest or detain is an absolute defense to any claim under §
5 1983 against police officers for wrongful arrest or false imprisonment.104 “Probable
6 cause exists when the facts and circumstances within the officers' knowledge and of
7 which they had reasonably trustworthy information were sufficient to warrant a
8 prudent man in believing that the plaintiff had committed or was committing an
9 offense.”105 Generally, probable cause for an arrest may be satisfied by grand jury
10 indictment106 or sworn affidavit.107 In cases of warrantless arrest, because no pre-
11 arrest probable cause determination has been made by a judicial officer, the
12 government must obtain—within 48 hours of the arrest—a probable cause
13 determination by a judicial officer in order to detain a suspect pending further
14 proceedings.108
15 In this case, Plaintiff states he was charged by criminal complaint with three
16 offenses: CBJ 42.15.110(a)(1) Criminal Mischief, CBJ 42.20.090(a)(4) Disorderly
17 18 and “Defendants” violated his fourth Amendment rights. Id. at 11. As detailed above, Plaintiff has not sufficiently identified who the John Doe defendants are. Accordingly, the
19 Court’s analysis is limited to Defendant Reid. If Plaintiff files an Amended Complaint and meets the standard for including John Doe defendants, the analysis contained herein would 20 apply equally to those defendants. 103 The Court further notes that claims of false arrest, malicious prosecution, and excessive 21 force may also be brought as state claim if not barred by the statute of limitations. 22 Constitutional claims for false arrest, detention, and malicious prosecution under § 1983 are analyzed in light of analogous torts, such as false arrest and malicious prosecution. 23 104 Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006); see also Hutchinson v. Grant, 796 F.2d 288, 290 (9th Cir. 1986) (holding that “a police officer has immunity if he 24 arrests with probable cause”); Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (“To prevail on his section 1983 claim for false arrest ... [the plaintiff] would have 25 to demonstrate that there was no probable cause to arrest him.”) 26 105 Hart v. Parks, 450 F.3d 1059, 1065–66 (9th Cir. 2006) (citations and quotations omitted). 106 Kalina v. Fletcher, 522 U.S. 118, 129 (1997) (citing Gerstein v. Pugh, 420 U.S. 103, 117 27 (1975). 107 Azpilcueta v. Nevada ex rel. Transp Authority, 2010 WL 2681855, at *6 (D. Nev., 2010). 28 108 United States v. Bueno-Vargas, 383 F.3d 1104 (9th Cir. 2004). 1 Conduct, and CBJ 42.05.110(a) Violation of Conditions of Release (pursuant to case
2 No. 1JU-20-01122CR).109 The criminal complaint at Docket 8 suggests to the Court
3 that probable cause existed at the time of Plaintiff’s arrest and detention because it
4 included a sworn statement Defendant Reid, which was supported by two civilian
5 reports, and Plaintiff appears to have been promptly arraigned the next day, thereby
6 meeting the probable cause determination by a judicial officer requirement.110 And
7 while Plaintiff challenges the facts that led to his arrest – namely that he did not
8 have “an explosive device in his right hand”111 - Plaintiff fails to provide facts
9 suggesting that his arrest and detention lacked probable cause.
10 ii. Malicious Prosecution
11 Plaintiff appears to argue that Defendant Reid “engaged in malicious
12 prosecution based on guilt by Defendants.”112 The Court is not able to ascertain what
13 Plaintiff means by “based on guilt by Defendants” but can only surmise it may be by
14 virtue of Defendant Reid’s alleged wrongful or bad faith conduct allegedly
15 fabricating evidence or possibly concealing or providing false information relating
16 to his phone conversation with another party involved in Plaintiff’s underlying
17 criminal case. Plaintiff contends that the “information contained in the Complaint
18 [was] not true and correct,”113 despite Defendant Reid’s sworn testimony and the
19 prosecutor’s independent evaluation of the charges filed in this case. Plaintiff further
20 claims that Defendant Reid’s actions were discriminatory and retaliatory without 21 providing any additional information to support that allegation. The only inference 22 the Court can gather from the facts Plaintiff offers is in his allegation that Defendants 23 were trying to cover up a pedestrian car accident in a road construction zone, 24 25
26 109 Doc. 8 110 Doc. 8 at 4; see also Doc. 1 at 6-7. 27 111 Doc. 1 at 6. 112 Id. at 4. 28 113 Id. at 7. 1 however, there are not enough facts present to turn that into an allegation of
2 malicious prosecution involving discrimination or retaliation.114
3 To maintain a Fourth Amendment claim under § 1983, a plaintiff must first
4 demonstrate that he obtained a favorable termination of the underlying criminal
5 prosecution.115 To demonstrate a favorable termination of a criminal prosecution for
6 purposes of the Fourth Amendment claim under § 1983 for malicious prosecution, a
7 plaintiff need not show that the criminal prosecution ended with some affirmative
8 indication of innocence.116 A plaintiff need only show that his prosecution ended
9 without a conviction.
10 Additionally, to prevail on the § 1983 claim that his criminal prosecution
11 violated his civil rights, Plaintiff “must show that the defendants prosecuted [him]
12 with malice and without probable cause, and that they did so for the purpose of
13 denying [him] equal protection or another specific constitutional right.”117 As
14 previously stated, Plaintiff does not proffer facts to suggest his prosecution lacked
15 probable cause, nor does he alleged any facts indicating malice or a discriminatory
16 purpose.
17 Further, the presumption of prosecutorial independence, which frequently
18 bars a plaintiff’s § 1983 malicious prosecution claim against an arresting officer,
19 must be rebutted. Plaintiff’s Complaint does not meet that threshold.
20 Ordinarily, the decision to file a criminal complaint is presumed to result from 21 an independent determination of the prosecutor, and, thus, precludes liability for 22 those who participated in the investigation or filed a report that resulted in initiation 23 of proceedings. However, the presumption of prosecutorial independence does not 24 bar a subsequent § 1983 claim against state or local officials who improperly exerted 25
26 114 Id. at 4. 115 Thompson v. Clark, __ U.S. __ (2022). 27 116 Id. 117 Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995) (citations omitted); see 28 also Lacy v. Cnty. of Maricopa, 631 F.Supp.2d 1183, 1193–94 (D. Ariz. 2008). 1 pressure on him, knowingly provided misinformation to the prosecutor, concealed
2 exculpatory evidence, or otherwise engaged in wrongful or bad faith conduct that
3 was actively instrumental in causing the initiation of legal proceedings.118 Malicious
4 prosecution actions are not limited to suits against prosecutors, they may be
5 “brought against other persons who have wrongfully caused the charges to be
6 filed.”119
7 While Plaintiff appears to properly demonstrate that he obtained a favorable
8 termination of the underlying criminal case, he fails to provide sufficient detail for
9 the Court to determine that probable cause did not exist for his arrest, detention,
10 and prosecution. Plaintiff presents no evidence that Defendant Reid may have
11 prosecuted him with malice or for the purpose of denying him equal protection or
12 another specific constitutional right.120 While Plaintiff appears to claim that
13 Defendant Reid’s actions were discriminatory and retaliatory, he does not specify
14 any facts suggesting why Defendants Reid would discriminate against him in
15 particular. Nor does Plaintiff indicate why or how Defendant Reid would wish to
16 retaliate against him. As mentioned, the only inference the Court can gather from
17 the facts Plaintiff offers is in his allegation that Defendants were trying to cover up
18 a pedestrian car accident in a road construction zone. However, the Court is unable
19 to discern from that allegation how Defendants maliciously prosecuted Plaintiff.121
20 Additionally, Plaintiff does not provide sufficient facts for the Court to establish 21 whether such information was actively instrumental in causing the initiation of legal 22 proceedings,122 or to rebut the presumption that sufficient probable cause supported 23 Plaintiff’s initial arrest, detention, and prosecution. 24
25 118 Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004). 26 119 Id. at 1066 (emphasis added) (citing Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126–27 (9th Cir. 2002)). 27 120 Freeman, 68 F.3d at 1189 (citations omitted). 121 Doc. 1 at 4. 28 122 Awabdy, 368 F.3d at 1067. 1 iii. Fabrication of Evidence
2 Plaintiff asserts that Defendants fabricated evidence. Specifically, Plaintiff
3 faults Defendant Reid for allegedly planting evidence “of the employment of fire,
4 explosives, or other dangerous means listed in CBJ 42.15.100(a) Artificial
5 Intelligence” in Plaintiff’s right hand.123 This allegation does not meet the pleading
6 requirements for suits against either an individual police officer or a municipality.
7 The Constitution prohibits the deliberate fabrication of evidence whether or not the
8 officer knows that the person is innocent.124 To prevail on a § 1983 claim of
9 deliberate fabrication, a plaintiff must prove that (1) the defendant official
10 deliberately fabricated evidence and (2) the deliberate fabrication caused the
11 plaintiff's deprivation of liberty.125 To establish the second element of causation, the
12 plaintiff must show that (a) the act was the cause in fact of the deprivation of liberty,
13 meaning that the injury would not have occurred in the absence of the conduct; and
14 (b) the act was the “proximate cause” or “legal cause” of the injury, meaning that
15 the injury is of a type that a reasonable person would see as a likely result of the
16 conduct in question.126 Plaintiff claims that Defendant Reid’s actions were done
17 “knowingly, willingly, and intention[ally.]”127 However, Plaintiff fails to further
18 articulate how any of Defendant Reid’s alleged actions caused his alleged injuries.
19 Without such further detail, Plaintiff’s claim is insufficient.
21 123 Doc. 1 at 4. 22 124 See Devereaux, 263 F.3d at 1074–75 (“[T]here is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was 23 deliberately fabricated by the government.”); Halsey v. Pfeiffer, 750 F.3d 273, 292–93 (3d Cir. 2014) (“[N]o sensible concept of ordered liberty is consistent with law enforcement 24 cooking up its own evidence.”); see also Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997) (“No arrest, no matter how lawful or objectively reasonable, gives an 25 arresting officer or his fellow officers license to deliberately manufacture false evidence 26 against an arrestee.”); Spencer v. Peters, 857 F.3d 789, 800 (9th Cir. 2017). 125 Costanich, 627 F.3d at 1111. 27 126 Whitlock v. Brueggemann, 682 F.3d 567, 582–83 (7th Cir. 2012); Spencer, 857 F.3d at 798; Harper, 533 F.3d at 1026 (citation omitted). 28 127 Doc. 1 at 4. 1 iv. Excessive Force
2 Plaintiff alleges that Defendant Reid subjected him to “excessive,
3 unreasonable, and unjustified force,” and great duress when he stopped and frisked
4 Plaintiff and ultimately seized him.128 Plaintiff merely alleges that Defendant Reid
5 “used a degree of force or allowed a degree of force that was unnecessary to the need
6 [and] [t]hat such force was objectively unreasonable in light of the facts and
7 circumstance at the time.”129 Plaintiff does not, however, sufficiently state what the
8 excessive force used was, how it constituted excessive force, or how it was
9 unreasonable.
10 Excessive force claims may be brought under either the Fourth or Fourteenth
11 Amendments. It does not appear based on the facts provided by Plaintiff that
12 Defendant Reid caused Plaintiff’s alleged injuries. Rather, Plaintiff’s physical
13 injuries appear to have been pre-existing and are alleged to have been aggravated
14 by Defendant Reid’s actions.
15 The Fourth Amendment requires the degree of force to be “objectively
16 reasonable” under the circumstances.130 Courts apply an objective inquiry to
17 determine whether excessive force was used.131 The “reasonableness” of an officer's
18 particular use of force “must be judged from the perspective of a reasonable officer
19 on the scene, rather than with the 20/20 vision of hindsight.”132 This test considers
20 the “totality of the circumstances,” including “the severity of the crime at issue, 21 whether the suspect poses an immediate threat to the safety of the officers or others, 22 and whether he is actively resisting arrest or attempting to evade arrest by flight.”133 23 24
25 128 Id. at 10. 26 129 Id. at 11-12. 130 Graham v. Connor, 490 U.S. 386, 397 (1989). 27 131 C.B. v. Moreno Valley Unified School District, 544 F.Supp.3d 973, 988 (C.D. Cal. 2021). 132 Graham, 490 U.S. at 396. 28 133 Id. 1 This means that for Plaintiff to properly plead an excessive force claim under
2 the Fourth Amendment, he must provide facts establishing the severity of the crime
3 at issue, that he did not pose an immediate threat to the safety of the officers or
4 others, and whether he was actively resisting arrest or attempting to evade arrest
5 by flight.134 Based on the statement of probable cause by Defendant Reid, it appears
6 that he thought Plaintiff was holding some sort of destructive device and therefore,
7 may have posed a risk to his safety and the safety of others. While Plaintiff appears
8 to dispute these facts, he states only that the force used to arrest him was
9 “unnecessary to the need.”135 This general description is insufficient, and Plaintiff
10 must still indicate what form of excessive force was used against him to properly
11 plead this claim.
12 e. Fifth Amendment Claims
13 While Plaintiff lists an allegation that his Fifth Amendment rights were
14 violated, he does not proffer any specific facts for the Court to consider this
15 allegation or to raise it beyond the level of a naked assertion. More importantly, he
16 does not indicate any federal government defendant who would be eligible for suit.
17 Rather, Plaintiff merely lists John Does 1-10, as well as The City and Borough of
18 Juneau and Officer Reid.
19 "The Fifth Amendment's Due Process Clause applies to the federal
20 government, not the States, while the Fourteenth Amendment's Due Process Clause 21 applies to the states."136 It appears based upon the information contain in Plaintiff’ 22 Complaint that he has no cognizable claim under the Fifth Amendment as he does 23 not appear to have alleged any involvement by federal officials. Instead, such a claim 24 must instead be premised upon the Fourteenth Amendment. 25 // 26
27 134 Id. 135 Doc. 1 at 12. 28 136 See Castillo v. McFadden, 399 F.3d 993, 1002 n.5 (9th Cir. 2005). 1 f. Sixth Amendment Claims
2 Plaintiff states that Defendants violated his Sixth Amendment rights. The
3 Sixth Amendment guarantees the right to a speedy trial, made applicable to state
4 criminal defendants by the Fourteenth Amendment's due process clause.137 The right
5 attaches when the government officially accuses someone of a crime, either by filing
6 “a formal indictment or information” or by “arrest and holding to answer.”138
7 Determining when a delay violates the Constitution involves “a balancing test, in
8 which the conduct of both the prosecution and the defendant are weighed.”139 Four
9 factors must be considered: (1) the length of the delay; (2) the reasons for the delay;
10 (3) the defendant's assertion of the right to a speedy trial; and (4) prejudice to the
11 defendant.140 No single factor is either necessary or sufficient,141 but the delay must
12 be long enough to trigger an analysis into the other three factors.142 In general, a
13 delay between accusation and trial is considered presumptively prejudicial, meaning
14 long enough to trigger the inquiry, as it approaches one year.143
15 Plaintiff provides no specific facts to support his claim of a Sixth Amendment
16 violation. Plaintiff appears to have been promptly arraigned on his charges the
17 morning after he was arrested144 and then released on his own recognizance,
18 perhaps under conditions, pending trial.145 By the Court’s logic and Plaintiff’s
19 proffered facts, he appears to have been detained less than 24 hours. Additionally, it
20 appears that Plaintiff’s Complaint was dismissed by the prosecution within nine 21
22 137 Barker v. Wingo, 407 U.S. 514, 515 (1972). 138 United States v. Marion, 404 U.S. 307, 320 (1971). 23 139 Barker, 407 U.S. at 530 (footnote omitted). 140 Id. at 530-32. 24 141 Id. at 533. 142 Id. at 530. 25 143 See Doggett v. United States, 505 U.S. 647, 652 n.1 (1992); see also Diaz v. Madden, No. 26 CV1901681CASJEM, 2022 WL 18599597, at *15 (C.D. Cal. Aug. 17, 2022), report and recommendation adopted sub nom. Diaz v. Madden, No. 219CV01681CASJEM, 2023 WL 27 130754 (C.D. Cal. Jan. 6, 2023). 144 Doc. 1 at 6. 28 145 Id. at 7. 1 months, on June 1, 2021.146 Plaintiff does not indicate what delay he challenges under
2 the Sixth Amendment, what the length of that delay was, what the reason for that
3 delay was, that he asserted or was denied a right to speedy-trial, or how this delay
4 prejudiced him while he appears to have been out of custody prior to his charges
5 being dismissed.147
6 g. Fourteenth Amendment Claims
7 Plaintiff appears to make two possible general claims relating to medical care
8 and discrimination. Individuals in state custody have a constitutional right to
9 adequate medical treatment.148 For inmates serving custodial sentences following a
10 criminal conviction, that right is part of the Eighth Amendment's guarantee against
11 cruel and unusual punishment.149 While Plaintiff makes a general claim that his
12 Eighth Amendment rights have been violated, the Court is unable to identify any time
13 at which Plaintiff was considered a convicted prisoner based on the facts in
14 Plaintiff’s Complaint. Accordingly, Plaintiff does not appear to have any cognizable
15 claims under the Eighth Amendment.
16 To the extent a claim relating to custody exists in this case, it likely would be
17 brought under the Fourteenth Amendment. Pre-trial detainees have not yet been
18 convicted of a crime and therefore are not subject to punishment by the state.
19 Accordingly, their rights arise under the Fourteenth Amendment's Due Process
20 Clause.150 To the extent that Plaintiff raises Fourteenth Amendment claims by virtue 21 of his previous pre-trial confinement, the Court offers the following guidance. 22 // 23
24 146 Plaintiff states at Doc. 1 at 7 that his Complaint was dismissed July 15, 2021, however the Court’s review of Plaintiff’s Criminal Docket suggests charges were dismissed June 1, 2021. 25 Either way, the charges were dismissed less than a year after they were filed. 26 147 Id. at 530-32. 148 See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). 27 149 Id. 150 Bell v. Wolfish, 441 U.S. 520, 535–36, 335 n.16 (1979); see also Sandoval v. Cnty. of San 28 Diego, 985 F.3d 657, 667 (9th Cir. 2021). 1 i. Medical Care
2 Plaintiff alleges that he suffered a “soft-tissue ‘right knee injury’” infection a
3 “month after the assault on or about January 6, 2021,” requiring life threatening
4 surgery to treat the infection as a result of Defendant Reid placing him in a “Court
5 holding cell with a pre-existing untreated injury.”151 Plaintiff’s original injury
6 appears to stem from his being hit by a car in September 2021.
7 A pre-trial detainee has the right to needed medical care while in custody
8 under the Fourteenth Amendment. This includes a pre-trial detainee’s right “to
9 direct-view safety checks sufficient to determine whether their presentation
10 indicates the need for medical treatment.”152 In order to prove a denial of needed
11 medical care under the Fourteenth Amendment, a plaintiff must show (1) the
12 defendants made an intentional decision with respect to the denial of needed medical
13 care; (2) the denial of needed medical care put the plaintiff at substantial risk of
14 suffering serious harm; (3) the defendants did not take reasonable available
15 measures to abate that risk, even though a reasonable officer in the circumstances
16 would have appreciated the high degree of risk involved—making the consequences
17 of the defendant’s conduct obvious; and (4) by not taking such measures, the
18 defendants caused the plaintiff’s injuries.153 Plainly stated, to sufficiently plead the
19 elements of denial of medical care under the Fourteenth Amendment, Plaintiff must
20 specify how he sustained his injury, how each Defendant acted to deny him medical 21 care, how that was unreasonable, what medical care he was denied, what medical 22 care he required, what substantial risk of suffering serious harm he faced because 23 24 25 26 151 Doc 1. at 7-8. 27 152 Gordon v. Cnty. of Orange, 6 F.4th 973 (9th Cir. 2021). 153 See Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018); Sandoval, 985 F.3d 28 at 657. 1 of the denial of medical care, what “reasonable available measures” Defendants did
2 not take to abate that risk, and what injury Plaintiff suffered as a result.
3 As currently pled, Plaintiff provides no information as to how Defendant
4 Reid’s actions caused or contributed to his original injury. Nor does Plaintiff alleges
5 that Defendant Reid made an intentional decision in denying Plaintiff medical care,
6 rather Plaintiff states that Defendant Reid told him he could request medical
7 attention at the jail. Plaintiff provides no information suggesting that his injury was
8 severe or required immediate medical attention, or that Defendant Reid’s decision
9 regarding his medical request was intentional or put him in further danger.
10 Indeed, based on his pleading, it is unclear exactly what injury the Plaintiff
11 seeks to hold Defendants liable for. Plaintiff’s Complaint describes an assault that
12 occurred on or about December 6, 2020. However, he gives no details as to when,
13 where, how, or why this assault may have happened or how Defendant Reid violated
14 his Due process rights or contributed to his resulting injuries. Rather, Plaintiff’s
15 Complaint consistently refers to September 25, 2020, the date of his underlying
16 criminal charge, arrest, and possible injury from being hit by a car. From these facts,
17 the Court cannot deduce what other assault Plaintiff may have been referring to on
18 December 6, 2021.
19 Plainly stated, to sufficiently plead the elements of denial of medical care
20 under the Fourteenth Amendment, Plaintiff must specify how he sustained his injury, 21 how each Defendant acted to deny him medical care, how that was unreasonable, 22 what medical care he was denied, what medical care he required, what substantial 23 risk of suffering serious harm he faced because of the denial of medical care, what 24 “reasonable available measures” Defendants did not take to abate that risk, and what 25 injury Plaintiff suffered as a result. 26 // 27 // 28 1 ii. Discrimination
2 To prove discrimination in violation of § 1983 under the Fourteenth
3 Amendment’s Equal Protection Clause, a plaintiff must demonstrate that the
4 individual defendant acted with the intent to discriminate,154 and allege facts
5 showing how those defendants caused or personally participated in causing the
6 harm alleged in the complaint.155 For such claims, proof of invidious discriminatory
7 purpose is required for a claim of racial discrimination.156
8 Like Plaintiff’s First Amendment retaliation claim, Plaintiff offers sparce facts
9 related to his discrimination claim. As the Court reads Plaintiff’s Complaint, he
10 makes three assertions. First, Plaintiff alleges that Defendants profiled and harassed
11 Plaintiff “on a number of occasions over a period of time stemming to the present.”157
12 Second, Plaintiff states that Defendants refused to render medical assistance to him
13 as a form of discrimination.158 Finally, Plaintiff alleges that Defendants knowingly,
14 willingly, and intentionally covered up a pedestrian car accident in a road
15 construction zone as a form of discrimination, thereby causing Plaintiff’s soft tissue
16 right knee injury.159
17 Plaintiff’s Complaint in its current form is insufficient. This is so because
18 Plaintiff’s Complaint merely offers “naked assertions [about his discriminatory
19 treatment that are] devoid of further factual enhancement.”160 Plaintiff must plead
20 facts supporting the required elements and indicate what type of discrimination he 21 faced to sufficiently plead his Fourteenth Amendment Equal Protection 22 23 154 Daniels v. Williams, 474 U.S. 327 (1986); Peters v. Lieuallen, 746 F.2d 1390, 1393 (9th Cir. 24 1984) (emphasis added). 155 Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981). 25 156 See, e.g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977); 26 Daniels, 474 U.S. at 330. 157 Doc. 1 at 4. 27 158 Id. at 2. 159 Id. at 4. 28 160 Id. (internal citations and quotations omitted). 1 Discrimination claim.
2 h. Supplemental Jurisdiction and State Law Claims
3 In his Third and Fourth Claims, Plaintiff raises claims under Alaska State Law.
4 Specifically, in Claim Three, Plaintiff raises a battery claim against all Defendants
5 stemming from his underlying criminal charges. Plaintiff claims that Defendants
6 acted “violently, forcefully and without consent by placing plaintiff in a Court
7 holding cell” with a pre-existing soft-tissue injury without providing medical
8 attention first after a pedestrian-car accident.161 Battery claims are not found in the
9 Constitution, nor as federal statutory rights. Instead, these claims are tort claims
10 ground in state law and most typically addressed in Alaska state court.
11 Similarly, Plaintiff’s Fourth Claim of Intentional Infliction of Emotional
12 Distress against all Defendants is also ground in state law and most typically
13 addressed in Alaska state court. Plaintiff claims he feared for his life after “being
14 handcuffed in the back seat of a police car with no identifiable voice” on September
15 25, 2020.162 Intentional Infliction of Emotional Distress claims are not found in the
16 Constitution, nor as federal statutory rights. Although AS 09.10.070(a) does not
17 explicitly include claims for intentional infliction of emotional distress, it includes
18 “libel, slander, assault, battery, ... personal injury,” and other torts like intentional
19 infliction of emotional distress.
20 In civil actions in which federal district courts have original jurisdiction, “the 21 district courts shall have supplemental jurisdiction over all other claims that are so 22 related to claims in the action within such original jurisdiction that they form part 23 of the same case or controversy.”163 But a district court may decline to exercise 24 supplemental jurisdiction over a claim if “the district court has dismissed all claims 25 26
27 161 Id. at 14. 162 Id. at 17. 28 163 28 U.S.C. § 1367(a). 1 over which it has original jurisdiction.”164 Because the Court has dismissed all of
2 Plaintiff's federal claims the Court will not exercise supplemental jurisdiction over
3 any potential state law claims at this time.
4 CONCLUSION
5 Even when liberally construed, Plaintiff Complaint does not meet the pleading
6 requirements for his § 1983 claims. Plaintiff’s Complaint fails to sufficiently
7 articulate the necessary facts for the Court to conclude that there is a claim against
8 the named defendants upon which relief can be granted. Therefore, Plaintiff’s
9 Complaint is DIMISSED. However, the Court grants leave to amend consistent with
10 the guidance contained in this order.165
11 IT IS THEREFORE ORDERED:
12 1. The Complaint at Docket 1 is DISMISSED WITH LEAVE TO AMEND for
13 failing to state a claim upon which relief may be granted.
14 2. The Prisoner’s Application to Waive Prepayment of the Filing Fee at Docket
15 3 is DENIED. Plaintiff does not appear to be a prisoner. Plaintiff must file
16 a non-prisoner application via the attached form if he chooses to amend
17 his Complaint.
18 3. Plaintiff has until October 24, 2023, to file one of the following:
19 a. Amended Complaint, in which Plaintiff would resubmit his claims to
20 the Court after correcting the deficiencies in accordance with this 21 22 23
24 164 28 U.S.C. § 1367(c)(3); Williamson v. Las Vegas Police Department, 2022 WL 1747940, at *4 (D. Nev. May 27, 2022). 25 165 Fed. R. Civ. P. 15(a)(1) (“Amending as a Matter of Course. A party may amend its pleading 26 once as a matter of course within: (A) 21 days after serving it, or 27 (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion 28 under Rule 12(b), (e), or (f), whichever is earlier.”). 1 order. An amended complaint would replace the current complaint
2 in its entirety.166
3 b. Notice of Voluntary Dismissal, which would inform the Court that
4 Plaintiff no longer wishes to pursue his lawsuit and would dismiss
5 the entire action.
6 4. Any amended complaint should be on this Court’s form, which is being
7 provided to Plaintiff with this Order. As discussed above, an amended
8 complaint will replace the prior complaint in its entirety.167 Plaintiff must
9 include all of the claims he seeks to bring in an amended complaint. Any
10 claims not included in the amended complaint will be considered waived.
11 5. If Plaintiff does not file either an Amended Complaint or Notice of
12 Voluntary Dismissal on the Court form by October 24, 2023, this case could
13 be DISMISSED WITH PREJUDICE under 28 U.S.C. § 1915(e)(2)(B). A
14 dismissal in this manner will count as a “strike” against Plaintiff under
15 § 1915(g).168
16 6. At all times, Plaintiff must keep the Court informed of any change of
17 address. Such notice shall be titled “NOTICE OF CHANGE OF ADDRESS.”
18 This notice must not include any requests for any other relief, and it must
19 be served on all Defendants or Defendant’s attorney who make an
20 appearance in this case. Failure to file a notice of change of address may 21 result in the dismissal of this case under Rule 41(b) of the Federal Rules of 22 Civil Procedure. 23 24 166 See Fed. R. Civ. P. 15 and Local Civil Rule 15.1. 25 167 See Local Civil Rule 15.1. 26 168 28 U.S.C. § 1915(g) prohibits a prisoner who files more than three actions or appeals in any federal court in the United States which are dismissed as frivolous or malicious or for 27 failure to state a claim upon which relief may be granted, from bringing any other actions without prepayment of fees unless the prisoner can demonstrate that he or she is in 28 “imminent danger of serious physical injury.” 1 7. The Clerk of Court is directed to send Plaintiff the following forms with
2 this Order: (1) form PS15, with “FIRST AMENDED” written above the title
3 “Complaint for Violation of Civil Rights (Non-Prisoner Complaint)”; (2)
4 form PS11, Application to Waive the Filing Fee; (3) form PS09, Notice of
5 Voluntary Dismissal; (4) form PS23, Notice of Change of Address; and (5)
the District Court’s handbook, “REPRESENTING YOURSELF IN ALASKA’S FEDERAL 7
COURT.” 8
9 DATED this 25th day of August 2023, at Anchorage, Alaska.
11 s/ Kyle F. Reardon
United States Magistrate Judge 13 District of Alaska
20 21 22 23 24 25 26 27 28
Coleman v. The City and Borough of Juneau (Coleman v. The City and Borough of Juneau) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.