Humphrey v. Straube et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DION K. HUMPHREY,
Plaintiff,
v.
RENEE STRAUBE, et al.,
Defendants.
Case No. 3:22-cv-00009-JMK
SCREENING ORDER
On 	January 	13, 	2022, 	Dion 	K. 	Humphrey, 	a 	self-represented 	litigant
(hereinafter “Plaintiff”), filed a Complaint for Violation of Civil Rights (Non-Prisoner
Complaint) (hereinafter “Complaint”), and a Motion for [a] Subpoena to be Issued.1
He also paid the $402.00 filing fee.2 	Subsequently, Plaintiff filed a Motion
Requesting Volunteer Attorney, Motion to Supplement Attachment Complaint for
Violation of Civil Rights Pages 4 of 6 and Exhibit(s), and Motion to Admit Exhibit A,
B, C, D, E, and F.3
1 Dockets 1 & 2.
2 See Docket 1.
3 Dockets 3–5.
Case 3:22-cv-00009-SLG Document 6 Filed 04/12/22 Page 1 of 15

Case No. 3:22-cv-00009-JMK; Humphrey v. Straube, et al.
Screening Order
Page 2 of 15
SCREENING STANDARD
The United States Supreme Court has established that “the federal courts
are under an independent obligation to examine their own jurisdiction[.]”4 	In a
federal court proceeding, a jurisdictional defect may be raised at any time.5
The Court now screens Plaintiff’s Complaint to evaluate whether the Court
has subject matter jurisdiction. 	The Court will not consider any documents from
Dockets 4 and 5 in the screening process, as filing additional documents into the
record does not properly amend a civil complaint.6
DISCUSSION
I. 	Complaint
Plaintiff 	brings 	suit 	against 	(1) 	Renee 	Straube, 	Protective 	Service
Specialist 1; and (2) Juliette Rosado, MS Clinical Therapist.7 	Plaintiff sues
Defendants in their individual and official capacities.8
Plaintiff alleges that he is bringing suit under 42 U.S.C. § 1983 against state
or local officials for “familial integrity” for a violation of the Due Process Clause of
4 United States v. Hays, 515 U.S. 737, 742 (1995).
5 Washington Environmental Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013).
6 See Local Civil Rule 15.1.
7 Docket 1 at 2.
8 Docket 1 at 2.
Case 3:22-cv-00009-SLG Document 6 Filed 04/12/22 Page 2 of 15

Case No. 3:22-cv-00009-JMK; Humphrey v. Straube, et al.
Screening Order
Page 3 of 15
the Fourteenth Amendment of the U.S. Constitution.9 	For the remainder of the
questions on the form complaint, Plaintiff answers “awaiting deuces tecum will file
amended complaint” in response to questions about the defendants and details of
the events at issue.10 	Plaintiff does not give any response or details about an
injury.11 	For relief, Plaintiff requests (1) $7,000,000.00 dollars in compensatory
damages, (2) $500,000.00 in punitive damages, and (3) attorney fees.12
II. 	Failure to State a Claim
Rule 8 of the Federal Rules of Civil Procedure instructs that a complaint
must 	contain 	a 	“short 	and 	plain 	statement 	of 	the 	claim 	showing 	that 	the
[complainant] is entitled to relief.” A complaint should set out each claim for relief
separately. Each claim should identify (1) the specific harm that Plaintiff is alleging
has occurred to him, (2) when that harm occurred, (3) where that harm was
caused, and (4) who he is alleging caused that specific harm to him.
Plaintiff’s Complaint does not contain the essential information required for
pleading. 	Additionally, claims under 42 U.S.C. § 1983 have specific required
elements that a plaintiff must plead. 	42 U.S.C. § 1983 is a federal statute that “is
not itself a source of substantive rights,” but provides “a method for vindicating
9 Docket 1 at 3.
10 Docket 1 at 4.
11 Docket 1 at 5.
12 Docket 1 at 5.
Case 3:22-cv-00009-SLG Document 6 Filed 04/12/22 Page 3 of 15

Case No. 3:22-cv-00009-JMK; Humphrey v. Straube, et al.
Screening Order
Page 4 of 15
rights [found] elsewhere.”13 	For relief under 42 U.S.C. § 1983, a plaintiff must
“plead that (1) the defendants acting under color of state law (2) deprived plaintiffs
of rights secured by the Constitution or federal statutes.”14
a. 	42 U.S.C. § 1983 requires a defendant to be a state actor
42 U.S.C. § 1983 requires that a defendant must be “acting under the color
of state law.”15 	To act under the color of state law, a complaint must allege that
the defendants acted with state authority as state actors.16 A defendant has acted
under color of state law where he or she has “exercised power ‘possessed by the
virtue of state law and made possible only because the wrongdoer is clothed with
the authority of state law.’”17 The Complaint does not provide sufficient detail about
either defendant to determine whether Defendants Straube or Rosado are state
actors.
13 Graham v. Connor, 490 U.S. 386, 393–94 (1989) (quoting Baker v. McCollan, 443 U.S. 137,
144 n.3 (1979)).
14 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
15 West v. Atkins, 487 U.S. 42, 49 (1988).
16 West, 487 U.S. at 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
17 West, 487 U.S. at 49 (internal citations omitted); see also Tongol v. Usery, 601 F.2d 1091, 1097
(9th Cir. 1979) (establishing that when state officials are administering a federal funded program,
the state officials are still acting under the color of state law).
Case 3:22-cv-00009-SLG Document 6 Filed 04/12/22 Page 4 of 15

Case No. 3:22-cv-00009-JMK; Humphrey v. Straube, et al.
Screening Order
Page 5 of 15
b. 	A state actor must violate a pre-existing federal constitutional or
statutory right to provide a cause of action under 42 U.S.C.
§ 1983.
42 U.S.C. § 1983 does not create federal constitutional or federal statutory
rights. 	Instead, it provides a mechanism for remedying violations of pre-existing
federal rights by bringing suit in federal court.18 	Constitutional rights are those
conferred 	by 	the 	U.S. 	Constitution 	to 	individual 	citizens. 	In 	addition 	to
Constitutional 	rights, 	Section 	1983 	also 	can 	be 	used 	to 	enforce 	the 	rights
guaranteed by a particular federal statute, but only if (1) the statute creates
enforceable rights and (2) Congress has not foreclosed the possibility of a § 1983
remedy for violations of the statute in question.19 	Section 1983 does not provide
a mechanism for remedying alleged violations of state law.20
i. 	Interference with parent/child relationship
Parents and children possess a liberty interest in companionship and society
with each other, which is protected by the Due Process Clause of the Fourteenth
Amendment of the U.S. Constitution.21 	A claim of interference with the parent-
child relationship may be brought as either a procedural due process claim or a
18 Graham v. Connor, 490 U.S. 386, 393–94 (1989).
19 Blessing v. Freestone, 520 U.S. 329, 340–41 (1997); Dittman v. California, 191 F.3d 1020,
1027–28 (9th Cir. 1999).
20 Galen v. Cty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007).
21 Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987), overruled on other grounds by
Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc); Kelson v. City of
Springfield, 767 F.2d 651, 654 (9th Cir. 1985).
Case 3:22-cv-00009-SLG Document 6 Filed 04/12/22 Page 5 of 15

Case No. 3:22-cv-00009-JMK; Humphrey v. Straube, et al.
Screening Order
Page 6 of 15
substantive due process claim. 	Procedural due process claims typically arise
when a state official removes a child from her parent’s care. For such claims, “[t]he
Fourteenth Amendment guarantees that parents will not be separated from their
children without due process of law except in emergencies.”22 	Substantive due
process claims typically involve egregious conduct or the use of excessive force.
But official conduct only violates substantive due process when it “shocks the
conscience.”23 Under the overarching test of whether the official’s conduct “shocks
the conscience” are two standards: the more demanding “purpose to harm”
standard and the lesser “deliberate indifference” standard.24 	To determine which
of the two standards govern, courts look at the context of the events leading to the
deprivation.25 	As a self-represented litigant, Plaintiff needs to provide sufficient
plausible 	factual 	details 	to 	establish 	a 	violation 	of 	due 	process 	under 	the
Fourteenth Amendment.
c. 	A state actor must cause an injury to a plaintiff’s federal rights
Importantly in a §1983 action, claims must demonstrate causation, or show
how the alleged defendant, acting under color of state law, violated the plaintiff’s
22 Rogers v. County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007) (quoting Mabe v. San
Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir. 2001)).
23 Gantt v. City of Los Angeles, 717 F.3d 702, 707 (9th Cir. 2013) (citing Wilkinson v. Torres, 610
F.3d 546, 554 (9th Cir. 2010)).
24 Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008).
25 See Id.
Case 3:22-cv-00009-SLG Document 6 Filed 04/12/22 Page 6 of 15

Case No. 3:22-cv-00009-JMK; Humphrey v. Straube, et al.
Screening Order
Page 7 of 15
federal rights. 	A person deprives another of a federal constitutional or statutory
right, “within the meaning of § 1983, ‘if he does an affirmative act, participates in
another’s affirmative act, or omits to perform an act which he is legally required to
do that causes the deprivation of which complaint is made.’”26 The required causal
connection “may be established when an official sets in motion a ‘series of acts by
others which the actor knows or reasonably should know would cause others to
inflict’ constitutional harms.”27
In a Section 1983 action, a state actor defendant may be sued in either an
individual or an official capacity. 	The Complaint names Defendants Straube and
Rosado in both their individual and official capacities without detail of their alleged
actions.
i. 	Individual capacity
In order for a defendant to be individually liable under Section 1983, that
defendant must personally participate in an alleged rights deprivation.28 	“In a
§ 1983 action, the plaintiff must also demonstrate that the defendant’s conduct was
the actionable cause of the claimed injury.”29 	A defendant sued in her individual
26 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 Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743).
28 Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010).
29 Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).
Case 3:22-cv-00009-SLG Document 6 Filed 04/12/22 Page 7 of 15

Case No. 3:22-cv-00009-JMK; Humphrey v. Straube, et al.
Screening Order
Page 8 of 15
capacity may be held liable for money damages.30 	In order for Plaintiff to sue
defendants in an individual capacity, then as to each defendant, he must allege
facts that if proven would demonstrate that the named defendant (1) personally
participated in depriving Plaintiff of his rights and (2) that defendant’s actions
caused Plaintiff’s injury.
ii. 	Official capacity
In a Section 1983 action, a plaintiff may sue a defendant in an official
capacity as an alternate way of pleading a claim against the governmental entity
for which that individual is an officer or employee.31 	A plaintiff suing a defendant
in her official capacity is not required to allege the “named official’s personal
involvement 	in 	the 	acts 	or 	omissions 	constituting 	the 	alleged 	constitutional
violation.”32 Instead, a plaintiff must only (1) “identify the law or policy challenged”
and (2) “name the official within the entity who can appropriately respond to
injunctive relief.”33 However, a defendant sued in her official capacity may not be
sued for damages, only for injunctive relief.34 	In order for Plaintiff to sue either
defendant in their official capacity, he must (1) identify the policy he challenges
30 See Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016).
31 Kentucky v. Graham, 473 U.S. 159, 165 (1985); Hafer v. Melo, 502 U.S. 21, 27 (1991).
32 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013).
33 Id.
34 Will v. Mich. Dep’t. of State Police, 491 U.S. 58, 71 n.10.
Case 3:22-cv-00009-SLG Document 6 Filed 04/12/22 Page 8 of 15

Case No. 3:22-cv-00009-JMK; Humphrey v. Straube, et al.
Screening Order
Page 9 of 15
and (2) demonstrate that that particular defendant is able to respond to the
injunctive relief he requests.
d. 	A 	plaintiff 	must 	plead 	sufficient 	facts 	to 	meet 	the 	required
elements of a claim under 42 U.S.C. § 1983.
In order to plead a proper § 1983 claim, a plaintiff must allege plausible facts
that if proven would establish each of the required elements of: “(1) a violation of
rights protected by the Constitution or created by federal statute, (2) proximately
caused (3) by conduct of a ‘person’ (4) acting under color of state law.”35 	At
present, Plaintiff’s Complaint does not establish whether the alleged defendants
acted under state law, what actions they took to violate his rights, and what
provision of either the U.S Constitution or a federal statute were violated by those
actions. 	All of these elements must be plead in a complaint in order to bring a
§ 1983 action.
III. 	Standing & Subject Matter Jurisdiction
Article III standing “is the threshold question in every federal case” which
determines whether the court has the power to hear a lawsuit.36 The “irreducible
constitutional minimum of standing consists of three elements . . . [t]he plaintiff
must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged
35 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986); see also Pistor v. Garcia, 791
F.3d 1104, 1114 (9th Cir. 2015).
36 Warth v. Seldin, 422 U.S. 490, 498 (1975).
Case 3:22-cv-00009-SLG Document 6 Filed 04/12/22 Page 9 of 15

Case No. 3:22-cv-00009-JMK; Humphrey v. Straube, et al.
Screening Order
Page 10 of 15
conduct of the defendant, and (3) that is likely to be redressed by a favorable
judicial decision.”37 	The requirements of standing maintain these jurisdictional
limits by “identify[ing] those disputes which are appropriately resolved through the
judicial 	process[.]”38 	A 	plaintiff, 	as 	the 	moving 	party, 	bears 	the 	burden 	of
establishing standing.39
Standing requires that a plaintiff demonstrate an injury. Injuries to common
law, constitutional, or statutory rights are sufficient to meet the injury requirement
of standing. “A federal court's jurisdiction . . . can be invoked only when the plaintiff
himself has suffered ‘some threatened or actual injury resulting from the putatively
illegal action[.]’”40 	“An injury sufficient to satisfy Article III must be ‘concrete and
particularized’ and ‘actual or imminent, not conjectural or hypothetical.’”41
An alleged injury must be traceable to the defendant in order to meet
standing requirements. 	Often referred to as causation, a plaintiff must show how
the 	defendant’s 	action, 	or 	lack 	thereof, 	caused 	his 	injury 	of 	common 	law,
37 Spokeo v. Robins, 136 S. Ct. 1540, 1547 (2013) (internal punctuation omitted) (citing Lujan v.
Def’s of Wildlife, 504 U.S. 555, 560 (1992) and Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 180–81 (2000).
38 Munns v. Kerry, 782 F.3d 402, 409 (9th Cir. 2015).
39 Id.
40 Warth v. Seldin, 422 U.S. 490, 499 (1975) (citing Linda R. S. v. Richard D., 410 U.S. 614, 617
(1973)).
41 Munns, 782 F.3d at 409 (quoting Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341,
(2014)).
Case 3:22-cv-00009-SLG Document 6 Filed 04/12/22 Page 10 of 15

Case No. 3:22-cv-00009-JMK; Humphrey v. Straube, et al.
Screening Order
Page 11 of 15
constitutional, 	or 	statutory 	rights.42 	Lastly, 	a 	plaintiff 	must 	demonstrate
redressability. 	Redressability is the concept that a favorable judicial decision
would remedy the plaintiff’s injury.43
Jurisdiction is “[a] court’s power to decide a case or issue a decree.”44 	A
court’s 	subject 	matter 	jurisdiction 	is 	its 	“statutory 	or 	constitutional 	power 	to
adjudicate a case.”45 	As a federal court, this Court has limited subject matter
jurisdiction. 	It possesses “only that power authorized by the Constitution and
statute.”46 This means that the Court has the authority to hear only specified types
of cases.47 	“In civil cases, subject matter jurisdiction is generally conferred upon
federal district courts either through diversity jurisdiction, 28 U.S.C. § 1332, or
federal question jurisdiction, 28 U.S.C. § 1331.”48 	Federal question jurisdiction
provides a federal court the authority to consider cases brought under the United
42 See Allen v. Wright, 468 U.S. 737, 751 (1984).
43 See, e.g., United States v. Hays, 515 U.S. 737, 743 (1995).
44 BLACK’S LAW DICTIONARY, (11th ed. 2019).
45 Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 89 (1998).
46 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted); see
also, e.g., A-Z Intern. v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003).
47 See, e.g., United States v. Marks, 530 F.3d 779, 810 (9th Cir. 2008), citing DaimlerChrysler v.
Cuno, 547 U.S. 332, 342 (2006); United States v. Sumner, 226 F.3d 1005, 1010 (9th Cir. 2000).
48 Peralta v. Hispanic Bus., Inc., 419 F.3d 1064, 1068 (9th Cir. 2005).
Case 3:22-cv-00009-SLG Document 6 Filed 04/12/22 Page 11 of 15

Case No. 3:22-cv-00009-JMK; Humphrey v. Straube, et al.
Screening Order
Page 12 of 15
States Constitution or federal statutes.49 42 U.S.C. § 1983 is a federal statute that
would provide this Court with federal question jurisdiction.
As addressed above, the Complaint does not provide sufficiently plead
factual detail to plausibly state a claim under 42 U.S.C. § 1983. 	Without such
factual detail, the Court cannot establish whether plaintiff has standing or whether
it has jurisdiction over Plaintiff’s claims.
CONCLUSION
As pleaded, the Court cannot determine the extent of Plaintiff’s allegations.
Further, the lack of detail prevents the Court from adequately determining, if it has
subject-matter jurisdiction over this Complaint. The Court grants Plaintiff leave to
amend in accordance with the guidance presented above. Plaintiff should provide
sufficient plausible factual details to satisfy Federal Civil Procedure Rule 8 and the
elements of 42 U.S.C. § 1983.
IT IS THEREFORE ORDERED:
1. 	The Complaint is dismissed without prejudice for lack of establishing
subject matter jurisdiction. The Court grants leave to amend.
2. 	The Motion for [a] Subpoena to be Issued at Docket 2 is DENIED AS
MOOT.
49 28 U.S.C. § 1331.
Case 3:22-cv-00009-SLG Document 6 Filed 04/12/22 Page 12 of 15

Case No. 3:22-cv-00009-JMK; Humphrey v. Straube, et al.
Screening Order
Page 13 of 15
3. 	Motion Requesting Volunteer Attorney at Docket 3 is DENIED AS
PREMATURE. 	However, the Court advises plaintiff that generally a
person has no federal right to an appointed attorney in a civil action.50
Additionally, although the Court may request a volunteer attorney in
exceptional 	cases, 	it 	has 	no 	power 	to 	make 	a 	mandatory
appointment.51
4. 	Motion to Supplement Attachment Complaint for Violation of Civil
Rights Pages 4 of 6 and Exhibit(s) at Docket 4 is DENIED. A plaintiff
may not amend a complaint by motion.52
5. 	Motion to Admit Exhibit A, B, C, D, E, and F at Docket 5 is DENIED.
A plaintiff may not amend a complaint by motion.53
6. 	Plaintiff has until May 18, 2022 to file either:
a. 	Amended Complaint, in which Plaintiff restates his claims with
additional factual details. 	Any Amended Complaint should be
on the Court’s form, which is being provided to Plaintiff with this
order. 	An amended complaint replaces the prior complaint in
50 See Turner v. Rogers, 564 U.S. 431, 441, 131 S. Ct. 2507, 2516 (2011) (“[T]he Sixth
Amendment does not govern civil cases.”); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)
(“Generally, a person has no right to counsel in civil actions.”).
51 Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 301–08 (1989).
52 Fed. R. Civ. P. 15(a); Local Civil Rule 15.1.
53 Fed. R. Civ. P. 15(a); Local Civil Rule 15.1.
Case 3:22-cv-00009-SLG Document 6 Filed 04/12/22 Page 13 of 15

Case No. 3:22-cv-00009-JMK; Humphrey v. Straube, et al.
Screening Order
Page 14 of 15
its entirety.54 	The Court notes that Dockets 4 & 5 contains
various documents Plaintiff may have sought to file in support
of 	his 	Complaint. 	Any 	amended 	complaint 	may 	include
supporting relevant documents or exhibits. 	The Court advises
that the Clerk’s Office maintains hardcopies of filed documents
for 90 days. 	In the event, Plaintiff wishes to have these
documents returned to him, he should write to the Clerk’s
Office.
b. 	Notice 	of 	Voluntary 	Dismissal, 	in 	which 	Plaintiff 	elects 	to
withdraw his action and preserve his claims for litigation at a
later date.
7. 	If Plaintiff does not file either an Amended Complaint or a Notice of
Voluntary Dismissal on the Court’s form by May 18, 2022, this case
may be dismissed without further notice to Plaintiff.55
8. 	Each litigant is responsible for keeping a copy of each document filed
with the Court. 	When a litigant mails a document to the Court, the
litigant will receive a Notice of Electronic Filing (“NEF”) from the Court
that will indicate when that document was filed on the docket and the
docket number of the document. Copies of documents that have been
54 Local Civil Rule 15.1.
55 See Fed. R. Civ. P. 41(b).
Case 3:22-cv-00009-SLG Document 6 Filed 04/12/22 Page 14 of 15

Case No. 3:22-cv-00009-JMK; Humphrey v. Straube, et al.
Screening Order
Page 15 of 15
filed with the Court may be obtained from the Clerk’s Office for $0.50
per page. 	In the event of special circumstances or serious financial
need, a party may file a motion asking for the cost of copies to be
waived or reduced.
9. 	At all times, Plaintiff must keep the Court informed of any change of
address. 	Such notice shall be titled “NOTICE OF CHANGE OF
ADDRESS.” This notice must not include any requests for any other
relief, and it must be served on any Defendant’s attorney who makes
an appearance in this case. 	Failure to file a notice of change of
address may result in the dismissal of this case under Rule 41(b) of
the Federal Rules of Civil Procedure.
10. 	The Clerk of Court is directed to send Plaintiff the following forms with
this Order: 	(1) form AO Pro Se 15 Complaint for Violation of Civil
Rights (Non-Prisoner); (2) form PS21, Pro Se Notice; (3) form PS 12,
Pro Se Motion; (4) form PS23, Notice of Change of Address; and
(5) the 	District 	Court’s 	handbook, 	“R EPRESENTING 	YOURSELF 	IN
ALASKA ’ S F EDERAL C OURT .”
DATED this 12th day of April, 2022, at Anchorage, Alaska.
s/ Joshua M. Kindred
JOSHUA M. KINDRED
UNITED STATES DISTRICT JUDGE
Case 3:22-cv-00009-SLG Document 6 Filed 04/12/22 Page 15 of 15