Harris v. Lyou et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
PAUL ALLEN HARRIS,
Plaintiff,
vs.
CHRIS LYOU, et al.,
Defendants.
Case No. 3:20-cv-00121 RRB
ORDER
GRANTING MOTION TO DISMISS
(Docket 38)
DENYING MOTION TO STAY
(Docket 45)
GRANTING LEAVE TO FILE
SECOND AMENDED COMPLAINT
Plaintiff, Paul Harris, filed an Amended Complaint under 42 U.S.C. § 1983,
claiming his civil rights under the First and Eighth Amendments of the U.S. Constitution
and the Americans with Disabilities Act were violated, naming 46 separate defendants.1
Four Defendants were previously dismissed.2
Through counsel, seventeen of the individual defendants, as well as the
Medical Advisory Committee, move to dismiss, with prejudice, all claims against them,
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted. Plaintiff has voluntarily dismissed several Defendants, and also asks
for a stay of proceedings until he is medically stable following a recent injury.3
1 Docket 9.
2 Docket 17.
3 Dockets 38, 43, 45.
Case 3:20-cv-00121-RRB Document 48 Filed 12/29/21 Page 1 of 11

Harris v. Lyou, et al. 	Case No. 3:20-cv-00121 RRB
Order re Motion to Dismiss, Motion to Stay; Leave to File Second Amended Complaint 	Page 2
I. 	STANDARD OF REVIEW
“There are two elements to a section 1983 claim: (1) the conduct complained
of must have been under color of state law, and (2) the conduct must have subjected the
plaintiff to a deprivation of constitutional rights.”4 Conclusionary allegations, unsupported
by facts, will be rejected as insufficient to state a claim under the Civil Rights Act.5 Rather,
a plaintiff must “allege with at least some degree of particularity overt acts which
defendants engaged in” that support the plaintiff’s claim.6
A motion under Rule 12(b)(6) for failure to state a claim tests the legal
sufficiency of a complaint.7 	Under Federal Rule of Civil Procedure 8(a)(2), a pleading
must contain a “short and plain statement of the claim showing that the pleader is entitled
to relief.” This standard requires more than a simple accusation. 	To survive a motion to
dismiss, a complaint must contain sufficient facts which, if accepted as true, “state a claim
to relief that is plausible on its face.”8 A claim has facial plausibility when the facts alleged
“allow the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”9
4 Jones v. Cmty. Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984)
(citation omitted).
5 Id., citing Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977).
6 Id.
7 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
8 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949–50 (2009) (internal citations omitted); see also Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
9 Id.
Case 3:20-cv-00121-RRB Document 48 Filed 12/29/21 Page 2 of 11

Harris v. Lyou, et al. 	Case No. 3:20-cv-00121 RRB
Order re Motion to Dismiss, Motion to Stay; Leave to File Second Amended Complaint 	Page 3
When considering a 12(b)(6) motion to dismiss, courts generally must accept
the plaintiff’s allegations as true and construe them in the light most favorable to plaintiff.10
“While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations. When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.”11 But “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions. 	Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”12
The Court has reviewed Plaintiff’s Complaint and Defendant’s Motion to
Dismiss in keeping with the above principles. 	The allegations of a pro se complaint,
“however inartfully pleaded,” should be held “to less stringent standards than formal
pleadings drafted by lawyers . . . .”13 	Accordingly, this Court must determine whether,
even when liberally construed, “it appears beyond doubt” that Plaintiff “can prove no set
of facts in support of his claim which would entitle him to relief.”14
II. 	DISCUSSION
A. 	Defendants Dismissed—Named in Error
Plaintiff’s Reply to the Motion to Dismiss clarifies that several named
Defendants were intended to be Plaintiff’s witnesses in this case, as they have personal
10 Beverly Oaks Physicians Surgical Ctr., LLC v. Blue Cross & Blue Shield of Illinois, 983 F.3d
435, 439 (9th Cir. 2020).
11 Iqbal, 129 S. Ct. at 1950.
12 Id.
13 Jones, 733 F.2d at 649 (citations omitted).
14 Id.
Case 3:20-cv-00121-RRB Document 48 Filed 12/29/21 Page 3 of 11

Harris v. Lyou, et al. 	Case No. 3:20-cv-00121 RRB
Order re Motion to Dismiss, Motion to Stay; Leave to File Second Amended Complaint 	Page 4
information as to the claims and gave Plaintiff advice.15 	Accordingly, Kim Turner
(formerly known as Kim Aikey), Melanie Boyer, Traci Tusha, Michele Susie, Tony
Underwood, Frederic Powers, Gwen Helms, Tonia Enyard/Sgt. Inyards,16 Kevin Kelly,
and Jason Hamilton/Lt. Hamilton17 are DISMISSED WITH PREJUDICE as Defendants.18
B. 	Medical Advisory Committee—Dismissed
It is well-settled that State agencies are not “persons” under §1983.19
Defendants argue that the “Medical Advisory Committee” is composed of individual health
care providers whose membership is subject to change depending on the needs of the
Department, and therefore is not an entity separate from the State of Alaska, DOC. To the
extent Plaintiff asserts any claim for relief against the Medical Advisory Committee, the
Court concurs with Defendants’ assessment that such claims are simply another way of
pleading claims against the DOC. Therefore, the State of Alaska DOC Medical Advisory
Committee is not a proper defendant and all claims against the Committee are DISMISSED
WITH PREJUDICE.
C. 	Defendants Dismissed for Failure to State a Claim
To establish personal (also called individual) liability in a § 1983 action, “it
is enough to show that the official, acting under color of state law, caused the deprivation
15 Docket 43 at 2.
16 It is unclear if “Tonia Enyard” and “Sgt. Inyards” are the same person, but Plaintiff dismisses
both at Docket 43.
17 It is unclear if “Jason Hamilton” and “Lt. Hamilton” are the same person, but the Court notes
that only “Lt. Hamilton” is named in the Complaint.
18 Defendants Fleurant, Brian, Rich, and Newman were previously dismissed. Docket 17.
19 Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997); Maldonado v. Harris,
370 F.3d F.3d 945, 951 (9th Cir. 2004); Will v. Michigan Department of State Police, 491 U.S. 58 (1989).
Case 3:20-cv-00121-RRB Document 48 Filed 12/29/21 Page 4 of 11

Harris v. Lyou, et al. 	Case No. 3:20-cv-00121 RRB
Order re Motion to Dismiss, Motion to Stay; Leave to File Second Amended Complaint 	Page 5
of a federal right.”20 However, for a governmental entity to be liable in an official capacity
under § 1983, the entity itself must be a “moving force” behind the deprivation.21
Therefore, “in an official-capacity suit the entity's ‘policy or custom’ must have played a
part in the violation of federal law.”22 In other words, as Defendants explain, “[l]iability
in an individual capacity suit for money damages can be demonstrated by showing that the
individual caused the alleged injury. 	Liability in an official capacity for injunctive relief
requires the plaintiff to demonstrate that a policy or custom of the government entity of
which the official is an agent was the moving force behind the violation.”23
1. 	Defendants Dial, Elmore, Gooding, Zachman, Shirley M., Smith, and
Strommer
Seven additional defendants seek dismissal from this matter, arguing that
Plaintiff fails to indicate whether he seeks to bring suit against them in their individual
capacities for money damages, or in their official capacities for injunctive relief.24 	They
argue that Plaintiff makes no specific allegations against them, nor does he allege that any
of them have the capacity to provide the injunctive relief he requests (i.e., a new medical
exam by an orthopedic doctor). Instead, they argue that Plaintiff has simply included their
names in his list of defendants.
20 Kentucky v. Graham, 473 U.S. 159, 166–67 (1985) (citation omitted). 	“When it comes to
defenses to liability, an official in a personal-capacity action may, depending on his position, be able to
assert personal immunity defenses, such as objectively reasonable reliance on existing law. . . In an official-
capacity action, these defenses are unavailable.” Id.
21 Id. “The only immunities that can be claimed in an official-capacity action are forms of sovereign
immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.” Id. at 167.
22 Id.
23 Docket 38-1 at 6.
24 Defendants Hamilton, Turner, Enyard, Susie, Tush, Boyer, and Underwood also joined this
motion, but were dismissed in section A.
Case 3:20-cv-00121-RRB Document 48 Filed 12/29/21 Page 5 of 11

Harris v. Lyou, et al. 	Case No. 3:20-cv-00121 RRB
Order re Motion to Dismiss, Motion to Stay; Leave to File Second Amended Complaint 	Page 6
Civil rights complaints need to identify “overt acts” engaged in by each
defendant.25 These Defendants argue that Plaintiff has failed to provide any allegations to
support either personal involvement or an official capacity claim against them. Moreover,
the Court notes that Plaintiff failed to make any argument in his responsive brief with
respect to these individuals. 	Accordingly, Defendants Dial, Elmore, Gooding, Zachman,
Shirley M., Smith, and Strommer are DISMISSED WITH PREJUDICE.
2. 	Defendants Houser, Lyou, and Nighswonger
Finally, Plaintiff names Superintendents Earl Houser, Chris Lyou, and Zane
Nighswonger in their individual capacities.26 	In addition to including their names in the
list of Defendants, Plaintiff wrote the three names at the top of his statement of facts for
each claim. However, these Defendants also seek dismissal, arguing that Plaintiff does not
allege any specific incidents, or any specific details regarding when, where, or how any of
the Superintendents personally caused his alleged injuries. 	Accordingly, they each seek
dismissal, arguing that allegations of personal participation are required to state a viable
civil rights claim against a state official in their individual capacity,27 and that respondeat
superior is not recognized under § 1983.28
25 Jones, 733 F.2d at 649.
26 Docket 9 at 2. Plaintiff specifically checked the following option with respect to each of the
three Superintendents: “This defendant personally participated in causing my injury, and I want money
damages.”
27 Docket 38-1 at 4, citing Richards v. Hoarper, 864 F.2d 85, 88 (9th Cir. 1988).
28 Docket 38-1 at 4, citing Monell v. Dep’t. of Social Services of City of New York, 436 U.S. 658,
691–92 (1978); Fed’n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1214 (9th Cir.
1996) (“Federal case law has long barred respondeat superior liability against state actors in suits brought
under 42 U.S.C. § 1983”). 	See Black’s Law Dictionary (7th ed. 2000). (“respondeat superior” is the
“doctrine holding an employer or principal liable for the employee’s or agent’s wrongful acts committed
within the scope of the employment or agency.”)
Case 3:20-cv-00121-RRB Document 48 Filed 12/29/21 Page 6 of 11

Harris v. Lyou, et al. 	Case No. 3:20-cv-00121 RRB
Order re Motion to Dismiss, Motion to Stay; Leave to File Second Amended Complaint 	Page 7
Defendants are correct that Plaintiff has failed to make any allegations of
personal involvement against Superintendent Earl Houser, Superintendent Chris Lyou, or
Superintendent Zane Nighswonger, and that mere performance of general responsibilities
for supervising the operations of a prison is insufficient to establish their personal
involvement. 	As such, claims against Superintendent Earl Houser, Superintendent Chris
Lyou, and Superintendent Zane Nighswonger in their individual capacities must be
DISMISSED WITH PREJUDICE.
D. 	Leave to Amend
In a § 1983 action, a plaintiff may sue a defendant in their official capacity
as an alternate way of pleading a claim against the governmental entity for which that
individual is an officer or employee.29 	A plaintiff suing a defendant in their official
capacity is not required to allege the “named official's personal involvement in the acts or
omissions constituting the alleged constitutional violation.”30 	Rather, the plaintiff must
(1) identify the policy he challenges, and (2) demonstrate that that particular defendant is
able to respond to the injunctive relief he requests. 	Defendants sued in their official
capacity may only be sued for injunctive relief.31
Here, 	Plaintiff’s 	First Amended 	Complaint at Docket 	9 clearly seeks
injunctive relief in the form of ADA Accommodations and specific medical treatment.
Missing from the Amended Complaint is the required specificity as to who can provide the
29 Kentucky v. Graham, 473 U.S. 159, 165 (1985); Hafer v. Melo, 502 U.S. 21, 27 (1991).
30 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013).
31 See Will v. Mich. Dep’t. of State Police, 491 U.S. 58, 71 n.10 (1989).
Case 3:20-cv-00121-RRB Document 48 Filed 12/29/21 Page 7 of 11

Harris v. Lyou, et al. 	Case No. 3:20-cv-00121 RRB
Order re Motion to Dismiss, Motion to Stay; Leave to File Second Amended Complaint 	Page 8
injunctive relief Plaintiff requests. 	Accordingly, this Court grants Plaintiff leave to file a
Second Amended Complaint. 	Any amended complaint should be on this Court’s form,
which is being provided with this Order. 	Any amended complaint will replace the prior
complaint in its entirety.32 Plaintiff must include all of the claims he seeks to bring in an
amended complaint. 	Any claims not included in the second amended complaint, should
Plaintiff choose to file one, will be considered waived.
E. 	Motion to Stay
Plaintiff requests a stay this case for an indeterminate length of time due to
new medical issues. Defendants argue that “a stay is unnecessary because this case is still
in the pleading stage of litigation,” and that after this Court issues a Scheduling Order, the
parties will have several months to conduct discovery and prepare dispositive motions.
The Court agrees with Defendants that Plaintiff is “at liberty to file a motion
to request a deadline extension, if necessary,” and that a stay at this point in litigation is
unnecessary. Extensions will be granted if requested. The Motion to Stay is DENIED at
this juncture.
III. 	CONCLUSION
“Conclusionary allegations, unsupported by facts, [will be] rejected as
insufficient to state a claim under the Civil Rights Act.”33 This Court finds that “it appears
beyond doubt” that Plaintiff “can prove no set of facts in support of his claim which would
32 See Local Civil Rule 15.1.
33 Jones, 733 F.2d at 649.
Case 3:20-cv-00121-RRB Document 48 Filed 12/29/21 Page 8 of 11

Harris v. Lyou, et al. 	Case No. 3:20-cv-00121 RRB
Order re Motion to Dismiss, Motion to Stay; Leave to File Second Amended Complaint 	Page 9
entitle him to relief” against the Defendants discussed in this Order.34 	Accordingly,
Defendants’ Motion to Dismiss at Docket 38 is GRANTED, and claims against the
following Defendants in both their individual and official capacities are DISMISSED
WITH PREJUDICE:
1. 	Louis Smith;
2. 	Shirley M.;
3. 	Michele Susie;
4. 	RN Gooding;
5. 	Tony Underwood;
6. 	Melanie Boyer;
7. 	H. Zachman;
8. 	Kim Turner (fka as K. Aikey);
9. 	Frederic Powers (fka Co. Powers);
10. 	Gwen Helms (fka Sgt. Helms);
11. 	Sgt. Inyards;
12. 	Kevin Kelly (fka Kelly c/o);
13. 	Lt. Hamilton;
14. 	Sgt. Elmore;
15. 	Traci Tusha (“Tush, Mental Health”);
16. 	Angela J. Strommer;
34 Id.
Case 3:20-cv-00121-RRB Document 48 Filed 12/29/21 Page 9 of 11

Harris v. Lyou, et al. 	Case No. 3:20-cv-00121 RRB
Order re Motion to Dismiss, Motion to Stay; Leave to File Second Amended Complaint 	Page 10
17. 	Dial; and
18. 	Medical Advisory Committee.
It is further ordered that claims against the following individuals in their
individual capacities are DISMISSED WITH PREJUDICE:
1. 	Superintendent Earl Houser;
2. 	Superintendent Chris Lyou; and
3. 	Superintendent Zane Nighswonger.
Additionally, Plaintiff’s Motion to Stay at Docket 45 is DENIED without
prejudice. The Court will reconsider a stay if Plaintiff’s medical condition prevents him
from meaningful participation in this litigation.
Finally, the Federal Rules of Civil Procedure allow for the amendment of a
Complaint with the court’s permission.35 	In the interests of justice, leave is granted for
Plaintiff to file a Second Amended Complaint, should he choose to do so. 	Local Civil
Rule 15.1 governs this Court’s practice for amending pleadings. Any amended complaint
will replace the prior complaint in its entirety, and should be on this Court’s form, which
is being provided with this Order. Plaintiff must include all of the claims he seeks to bring
in an amended complaint, if he chooses to file one. Any claims not included in an amended
complaint will be considered waived.
Accordingly, Plaintiff shall, on or before March 2, 2022, either: 	(1) file a
Second Amended Complaint; (2) notify the Court he does not wish to file a Second
35 Fed. R. Civ. P. 15(a).
Case 3:20-cv-00121-RRB Document 48 Filed 12/29/21 Page 10 of 11

Harris v. Lyou, et al. 	Case No. 3:20-cv-00121 RRB
Order re Motion to Dismiss, Motion to Stay; Leave to File Second Amended Complaint 	Page 11
Amended Complaint, but rather proceed on the First Amended Complaint with the
remaining Defendants; or (3) request a further extension of time.
In the first instance, Defendant shall file an appropriate pleading or motion
within 30 days of the filing of the Second Amended Complaint.
In the second instance, if Plaintiff indicates he will not file a Second
Amended Complaint, Defendants shall file an Answer to the First Amended Complaint
within 30 days of such notice.
If Plaintiff takes no action, or requests a further extension of time, this Court
will issue further instructions.
The 	Clerk 	is 	directed 	to 	send 	Plaintiff 	form 	PS01, 	with 	“SECOND
AMENDED” written above the title “Prisoner’s Complaint Under the Civil Rights Act
42 U.S.C. § 1983,” with this Order, as well as a copy of the First Amended Complaint
(Docket 9) for his reference.
IT IS SO ORDERED this 29th day of December, 2021, at Anchorage,
Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
Case 3:20-cv-00121-RRB Document 48 Filed 12/29/21 Page 11 of 11