Polt v. Municipality of Anchorage

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JAMES ANDREW POLT,
Plaintiff,
v.
MUNICIPALITY OF ANCHORAGE,
Defendant.
Case No. 3:22-cv-00023-RRB
SECOND SCREENING ORDER
On 	February 	9, 	2022, 	James 	Andrew 	Polt, 	a 	self-represented 	litigant
(hereinafter “Plaintiff”), filed a Complaint Under The Civil Rights Act, 42 U.S.C.
§ 1983 (Non-Prisoners), along with a Civil Cover Sheet and an Application to
Waive the Filing Fee.1 	The Court screened Plaintiff’s Complaint in accordance
with 28 U.S.C. § 1915(e)(2)(B), found it failed to state a claim on which relief may
be 	granted, 	but 	granted 	leave 	to 	amend.2 	Plaintiff 	filed 	a 	First 	Amended
Complaint,3 	which 	the 	Court 	now 	screens 	in 	accordance 	with 	28 	U.S.C.
§ 1915(e)(2)(B).
1 Dockets 1–3.
2 Docket 6.
3 Docket 7 (The Court notes that Plaintiff’s First Amended Complaint is not filed pursuant to
42 U.S.C. § 1983, but using the Court’s standard civil pro se complaint form with Plaintiff’s
annotation “*Plaintiff is using this more appropriate complaint form for this Amended Complaint.”).
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SCREENING REQUIREMENT
Federal law requires a court to conduct an initial screening of a civil
complaint filed by a self-represented litigant seeking to proceed in a lawsuit in
federal court without paying the filing fee.4 In this screening, a court shall dismiss
the case at any time if the court determines that the action:
(i) 	is frivolous or malicious;
(ii) 	fails to state a claim on which relief may be granted; or
(iii) 	seeks monetary relief against a defendant who is immune
from such relief.5
To determine whether a complaint states a valid claim for relief, courts
consider whether the complaint contains sufficient factual matter that, if accepted
as true, “state[s] a claim to relief that is plausible on its face.”6 	In conducting its
review, a court must liberally construe a self-represented plaintiff’s pleading and
give the plaintiff the benefit of the doubt.7 Before a court may dismiss any portion
of a complaint for failure to state a claim upon which relief may be granted, the
court must provide the plaintiff with a statement of the deficiencies in the complaint
4 See, e.g., Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000).
5 28 U.S.C. § 1915(e)(2)(B).
6 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 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 F.3d 984, 999 (9th
Cir. 2011) (citing Lee v. L.A., 250 F.3d 668, 688 (9th Cir. 2001)).
7 See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026,
1027 n.1 (9th Cir. 1985) (en banc)).
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and an opportunity to amend or otherwise address the problems, unless to do so
would be futile.8 	Futility exists when “the allegation of other facts consistent with
the challenged pleading could not possibly cure the deficiency[.]” 9
DISCUSSION
I. 	Complaint
Plaintiff brings suit against the State of Alaska and the Municipality of
Anchorage (MOA).10 	Plaintiff alleges that he is “guaranteed of the (Liberty) to be
governed by a sovereign government system of laws.”11 Plaintiff alleges that since
June 2005, the State of Alaska and MOA have violated his rights under the
Privileges and Immunities Clause of the Fourteenth Amendment of the U.S.
Constitution by inserting regulatory guidance or language from the International
Fire Code (IFC) and the National Fire Protection Association (NFPA) into Alaska
statutes and municipal codes.12
Plaintiff asserts that “these statutes and ordinances should only be that of a
sovereign government[’]s” systems of public laws[.]13 Broadly, Plaintiff alleges that
8 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)).
9See Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
10 Docket 7 at 2.
11 Docket 7 at 3.
12 Docket 7 at 2–3.
13 Docket 7 at 4.
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materials or sample laws written by the IFC and the NFPA are copyrighted works
sold by private businesses with a monetary incentive to “come up with ridiculous
new materials.”14 	Plaintiff alleges that in 2017, the IFC and the NFPA “through
their copyrighted materials (NFPA standards) demanded that 120+ unit apt. bldgs.
must ‘remodel’ and place bigger type more dangerous for casual usage fire alarm
notifications appliances in apt unit [bedrooms] and entry ways[.]”15 Plaintiff alleges,
without factual detail that in 2019, he was “physically injured seriously on a fire
alarm activation.”16 	Plaintiff alleges that “I am injured for the fact that as a U.S.
citizen I am not being provided a legal public law[.]”17 Plaintiff further alleges that
this is not a personal injury claim, but that his “slighter reactions, twitches and
motor 	skill 	reflexes” 	demonstrate 	“Defendants 	habits 	of 	being 	‘reckless,’
concerning public law fire prevention guidelines.”18
Plaintiff summarizes his claims as follows: “The Defendants State of Alaska
and MOA have 1) abridged federal law, going against the Fourteenth Amendment[;
and] 2) they 	have stolen and infringed 	upon IFC 	and NFPA privately 	held
14 Docket 7 at 5.
15 Docket 7 at 6.
16 Docket 7 at 6.
17 Docket 7 at 6.
18 Docket 7 at 7.
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copyrighted works in a form of ‘recklessness’ and going against U.S.C. title
copyright laws.”19
For relief, Plaintiff requests an order for Defendants to: “Remove the private
source organizations copyrights materials from IFC and NFPA, from Alaska and
MOA public domain public laws, and to restore those State of Alaska and MOA
public laws into ‘workable’ fire prevention measures, set forth by a sovereign State
of Alaska, and MOA, governments.”20
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.
Factual allegations may not be speculative but must plead “factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.”21 While a complaint need not contain every precise,
factual detail, “unadorned, the defendant-unlawfully-harmed-me accusation[s]” are
19 Docket 7 at 7.
20 Docket 7 at 10.
21 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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insufficient to state a claim.22 A complaint is insufficiently plead if it offers “naked
assertions devoid of further factual enhancement.”23 A complaint that offers legal
conclusions or a simple recitation of the elements of a cause of action does not
meet the required pleading standard.
Plaintiff’s Complaint lacks sufficient plausible facts to meet the requirements
under Rule 8 of Federal Civil Procedure. As a threshold procedural matter, Plaintiff
challenges the alleged IFC and NFPA drafted and adopted polices, but does not
specify how these policies caused an actual, particularized harm to him. Further,
Plaintiff’s allegations make reference to a 2019 incident in which physical harm
occurred, but do not describe his injuries. 	Lastly, Plaintiff’s allegations do not
provide sufficient factual content to draw a reasonable inference to establish
liability for either 	defendant. 	The First 	Amended Complaint lacks 	sufficient
plausible detail to establish an actual, particularized injury for which this Court
could grant relief.
Substantively, Plaintiff’s allegations also fail to state a claim upon which
relief may be granted. First, the State of Alaska is not a proper defendant. States
have sovereign immunity due to the Eleventh Amendment of the U.S. Constitution,
22 Id.
23 Id. (internal citations and quotations omitted).
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which makes them immune from suit unless that immunity is waived.24 	Plaintiff
gives no indication that the State of Alaska has waived its sovereign immunity in
this context.
Even if the State of Alaska could be a plausible defendant for a Privileges
and Immunities Clause challenge, Plaintiff has not alleged sufficient facts to
demonstrate 	such 	a 	claim. 	The 	Privileges 	and 	Immunities 	Clause 	of 	the
Fourteenth Amendment of the United States Constitution states: 	“No State shall
make or enforce any law which shall abridge the privileges or immunities of citizens
of the United States.”25 As long established by the United States Supreme Court,
this clause is not “intended as a protection to the citizen of a State against the
legislative power of his own State[.]”26 	As the United States Supreme Court
articulated, the Privileges and Immunities Clause “was designed to insure a citizen
of State A who ventures into State B the same privileges which the citizens of
State B enjoy.”27 	In modern jurisprudence, the Privileges and Immunities Clause
of the Fourteenth Amendment protects the rights of national citizenship.28 	Most
commonly, this addresses the right to travel, which has three components: (1) the
24 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 [Eleventh]
Amendment is but an exemplification.”); see also Hans v. Louisiana, 134 U.S. 1, 15 (1890).
25 U.S. CONST. amend. XIV § 1, cl. 2.
26 Slaughter-House Cases, 83 U.S. 36, 74 (1872).
27 Toomer v. Witsell, 334 U.S. 385, 395 (1948).
28 Generally, 1 MODERN CONSTITUTIONAL L AW § 19:11 (3rd ed.)
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right to move freely between and among states, (2) to be free from discrimination
from visiting or temporary residence in a state, and (3) guaranteeing equal
treatment those who become permanent residents of a state.29 	Other older
examples of a privilege or immunity of national citizenship includes: 	(1) the right
to vote in a federal election;30 (2) the right to be secure in the custody of a federal
marshal;31 (3) the right to inform federal officers or violations of federal laws;32 and
(4) the right to petition federal officials.33 	Plaintiff does not allege a violation of a
federal right that extends from national citizenship.
As to Plaintiff’s copyright claims, Plaintiff lacks standing. 	As discussed in
the Court’s prior Screening Order, Article III standing “is the threshold question in
every federal case” which determines whether the court has the power to hear a
lawsuit.34 	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 conduct of the defendant, and (3) that is likely to be
29 Saenz v. Roe, 526 U.S. 489, 500–04 (1999).
30 U.S. v. Classic, 313 U.S. 299, 314–16 (1941).
31 Logan v. U.S., 144 U.S. 263, 284–88 (1892), abrogated on other grounds by Witherspoon v. St.
of Ill., 391 U.S. 510 (1968).
32 In re Quarles, 158 U.S. 532, 535–36 (1895).
33 U.S. v. Cruikshank, 92 U.S. 543, 552 (1875).
34 Warth v. Seldin, 422 U.S. 490, 498 (1975).
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redressed by a favorable judicial decision.”35 Without Article III standing, a federal
district court has no jurisdiction to hear the alleged claim.36
Here, the law is clear. Under the Copyright Act, 17 U.S.C. § 501(b), only the
“legal or beneficial owner of an exclusive right under a copyright” has standing to
sue for the infringement of that right. 	The Ninth Circuit Court of Appeals has
consistently held that only a party with ownership interest in the copyright has the
right to sue.37 Plaintiff’s pleadings make clear that the IFC and the NFPA are the
alleged copyright holders in question. Accordingly, Plaintiff does not have standing
to bring this claim.
In summary, Plaintiff has neither plead sufficient plausible, factual details to
meet the essential pleading requirements of Rule 8 of Federal Civil Procedure, nor
presented legally cognizable claims that may be addressed by this Court.
III. 	Possible Civil Rights Claim
Plaintiff’s First Amended Complaint does not raise or attempt to plead the
required elements of a civil rights claim under 42 U.S.C. § 1983. 	However, as
previously discussed in the Court’s prior Screening Order, 42 U.S.C. § 1983 is a
35 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)).
36 Supra note 45.
37 Righthaven v. Hoehn, 716 F.3d 1166, 1169 (9th Cir. 2013); see also Silver v. Sony Pictures
Entertainment, Inc., 402 F.3d 881, 890 (9th Cir. 2005) (en banc).
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federal statute that “is not itself a source of substantive rights,” but provides “a
method for vindicating rights [found] elsewhere.”38 	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.”39 The Court provides this guidance to Plaintiff in the event that he may
be able to plead a claim against the Municipality of Anchorage’s policy.
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.”40 	To act under the color of state law, a complaint must allege that
the defendants acted with state authority as state actors.41 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.’”42
38 Graham v. Connor, 490 U.S. 386, 393–94 (1989) (quoting Baker v. McCollan, 443 U.S. 137,
144 n.3 (1979)).
39 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
40 West v. Atkins, 487 U.S. 42, 49 (1988).
41 West, 487 U.S. at 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
42West, 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).
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“Municipalities and other local government units . . . [are] among those
persons to whom § 1983 applies.43 	“In order to establish municipal liability, a
plaintiff must show that a ‘policy or custom’ led to the plaintiff’s injury.”44 An official
policy means a formal policy, such as a rule or regulation adopted by the defendant
(local governing body), resulting from a deliberate choice to follow a course of
action made from among various alternatives by the official or officials responsible
for establishing the final policy.45 	A practice or custom means any longstanding,
widespread, 	or 	well-settled 	practice 	or 	custom 	that 	constitutes 	a 	standard
operating procedure of the defendant (local governing body).46
In order to prevail on a Section 1983 claim against a municipality alleging
liability based on an official policy, practice, or custom, the plaintiff must plead
sufficient plausible facts that if proven true would satisfy each of the following
elements:
1. 	The defendant’s (local governing body) official or employee
acted under color of state law;
43 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).
44 Castro v. Cty. of Los Angeles, 822 F.3d 1060, 1073 (9th Cir. 2016) (en banc).
45 Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986); see also Connick v. Thompson, 563
U.S. 51, 62 (2011).
46 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (holding that plaintiff prove the existence of a
widespread policy or custom as a matter of fact); compare with, Saved Magazine v. Spokane
Police Dept., 19 F.4th 1193, 1201 (9th Cir. 2021) (holding that allegations of isolated or sporadic
incident do not form the basis for municipal liability).
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2. 	The act or acts of the defendant’s (local governing body) official
or employee deprived the plaintiff of his particular rights guaranteed by the
laws or the Constitution of the United States;
3. 	The defendant’s (local governing body) official or employee
acted pursuant to an expressly adopted official policy or a widespread or
longstanding practice or custom of the defendant (local governing body);
and
4. 	The 	defendant’s 	(local 	governing 	body) 	official 	policy 	or
widespread or longstanding practice or custom caused the deprivation of the
plaintiff’s 	rights 	by 	the 	defendant’s 	official 	or 	employee; 	that 	is, 	the
defendant’s 	(local 	governing 	body) 	official 	policy 	or 	widespread 	or
longstanding practice or custom is so closely related to the deprivation of
the plaintiff’s rights as to be the moving force that caused the ultimate injury.
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
As mentioned in the elements above to prove municipal liability, a plaintiff
still must demonstrate a violation of their rights. 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
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court.47 	Constitutional rights are those conferred by the U.S. Constitution to
individual citizens. 	In addition to Constitutional rights, Section 1983 can also 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.48
Section 1983 does not provide a mechanism for remedying alleged violations of
state law.49 	Hence, if Plaintiff intends to successfully establish municipal liability
under 42 U.S.C. § 1983, he must also sufficiently plead a violation of a federal
constitutional or statutory right.
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
federal rights.
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.50 	“In a
§ 1983 action, the plaintiff must also demonstrate that the defendant’s conduct was
47 Graham v. Connor, 490 U.S. 386, 393–94 (1989).
48 Blessing v. Freestone, 520 U.S. 329, 340–41 (1997); Dittman v. California, 191 F.3d 1020,
1027–28 (9th Cir. 1999).
49 Galen v. Cty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007).
50 Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010).
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the actionable cause of the claimed injury.”51 	A defendant sued in her individual
capacity may be held liable for money damages.52
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.53 	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.”54 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.”55 However, a defendant sued in her official capacity may not be
sued for damages, only for injunctive relief.56
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 Section 1983 claim, a plaintiff must allege
plausible facts that if proven would establish each of the required elements of:
51 Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).
52 See Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016).
53 Kentucky v. Graham, 473 U.S. 159, 165 (1985); Hafer v. Melo, 502 U.S. 21, 27 (1991).
54 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013).
55 Id.
56 Will v. Mich. Dep’t. of State Police, 491 U.S. 58, 71 n.10 (1989).
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“(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.”57 	All of these elements must be plead in a complaint in order to bring a
Section 1983 action.
CONCLUSION
The First Amended Complaint fails to state a claim on which relief may be
granted. 	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 a federal
claim. 	The Court reminds Plaintiff that as an Alaska resident, personal injury
claims against the Municipality of Anchorage, would need to be heard in state
court, because of the limited subject matter jurisdiction of a federal district court.58
IT IS THEREFORE ORDERED:
1. 	The Complaint is dismissed for failure to state a claim on which relief may
be granted. The Court grants leave to amend.
2. 	Plaintiff has until November 7, 2022, to file either:
a. 	Amended 	Complaint, 	in 	which 	Plaintiff 	restates 	his 	claims 	with
additional factual details. Any Amended Complaint should be on the
57 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).
58 See 28 U.S.C. § 1332.
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Court’s form, which is being provided to Plaintiff with this order. 	An
amended complaint replaces the prior complaint in its entirety.59
b. 	Notice of Voluntary Dismissal, in which Plaintiff elects to withdraw his
action and preserve his claims for litigation at a later date.
3. 	If Plaintiff does not file either an Amended Complaint or a Notice of Voluntary
Dismissal on the Court’s form by November 7, 2022, this case may be
dismissed without further notice to Plaintiff.60
4. 	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 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.
5. 	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.
59 Local Civil Rule 15.1.
60 See Fed. R. Civ. P. 41(b).
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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.
6. 	The Clerk of Court is directed to send Plaintiff the following forms with this
Order: (1) form PS 02 Complaint Under The Civil Rights Act (Non-Prisoner);
(2) form PS 22 Civil Complaint; (3) form PS21, Pro Se Notice; (4) form
PS 12, Pro Se Motion; and (5) form PS23, Notice of Change of Address.”
DATED this 5th day of October, 2022, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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