Egolf v. The Public Defender Agency - Principle agent et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
NORMAN EGOLF,
Plaintiff,
v.
THE PUBLIC DEFENDER AGENCY
and TOM FORD,
Defendants.
Case No. 4:22-cv-00071-SLG
NOTICE OF INTENT TO DISMISS
On October 17, 2022, Norman Engulf, a self-represented litigant, (“Plaintiff”)
filed several documents with the Court, including a civil cover sheet, a “Motion and
Demand for Trial by Jury,” and a Motion for Waiver of all Fees.”1 Subsequently,
on November 21, 2022, Plaintiff filed a “Motion for Immediate Emergency
Injunctive Relief and Complaint Seeking Warrant for Arrest.”2 Plaintiff also
submitted printouts of federal and state laws.3
Plaintiff’s request for preliminary injunctive relief warrants this Court’s
prompt attention.4 In order to properly assess the preliminary injunction, the Court
must also review the Complaint, which must be screened in accordance with 28
1 Dockets 1-4.
2 Docket 6.
3 Docket 1-1, 1-2, 1-3, 6-2, 6-3, 6-5, 6-6, 6-7, 6-8, and 6-9.
4 See generally Fed. R. Civ. P. 65.
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U.S.C. § 1915(e)(2)(B). In the interest of judicial economy, the Court screens
Plaintiff’s Complaint and rules on all pending motions.
DEFICIENT FILING
As an initial matter, Plaintiff’s filings are deficient. In order to properly
commence a civil action, a litigant must either pay the filing fee of $402.00 or file
an application to waive prepayment of the filing fee.5 Prisoner litigants requesting
to waive prepayment of the filing fee must include a statement of their prison trust
account for the past six months.6
Plaintiff filed a Motion for Waiver of All Fees and attached three Request for
Interview Forms with correspondence between him and the State of Alaska
Department of Corrections.7 Although these forms demonstrate Plaintiff’s attempts
to request the required prisoner trust account statement, they also reveal that he
has not complied with the Department’s instructions to correct the form in order to
properly request this information.8 Because Plaintiff has not included this
statement, his request to waive his filing fee is incomplete.
Ordinarily, the Court would grant Plaintiff an additional 30 days to submit the
required documentation. However, as explained below, the Court also finds the
5 Local Civil Rule 3.1(c).
6 Local Civil Rule 3.1(c)(3).
7 Docket 4.
8 See Docket 4-1 through 4-3.
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Complaint to be deficient and amendment would be futile. Therefore, the
Complaint must be dismissed with prejudice.
CASE SCREENING
I. Complaint Allegations
Plaintiff brings suit against the Public Defender Agency and Attorney Tom
Ford (“Defendants”).9 Plaintiff asserts claims for the deprivation of his
constitutional rights under the Sixth, Eighth, and Fourteenth Amendments,
pursuant to 42 U.S.C. § 1983, in addition to a claim for “conspiracy to interfere with
civil rights” under 42 U.S.C. § 1985.10 Plaintiff also asserts violations of the Alaska
Constitution and state law claims for violations of fiduciary duty, malpractice, and
contract law.11 The Court shall not consider additional arguments contained in the
additional documents filed with the Court, as that is not proper procedure to amend
a complaint.12
9 Throughout Plaintiff’s extensive narrative, he also raises allegations against additional
individuals, such as judges, state troopers, and his ex-girlfriend. However, Plaintiff only
specifically names the Public Defender Agency and Attorney Tom Ford as Defendants, and his
claims revolve around their alleged failures to protect his rights from violations from other
individuals. See generally Docket 1. Therefore, the Court will only consider Plaintiff’s allegations
against the Public Defender Agency and Attorney Tom Ford.
10 Docket 1 at 1, 19, 21, 27.
11 Although the Court may exercise supplemental jurisdiction over state law claims, Plaintiff must
first have a cognizable claim for relief under federal law, which, for the reasons explained above,
he does not. See 28 U.S.C. § 1367. Accordingly, the Court will not address the viability of
Plaintiff’s state law claims.
12 See Fed. R. Civ. P. 15(a); see also Local Civil Rule 15.1
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Attorney Ford, a public defender, was appointed to represent Plaintiff in
multiple criminal proceedings. In his Complaint, Plaintiff alleges Defendants
specifically violated his rights in Alaska Case Nos. 4TO-18-0040CI; 4TO-19-00031
CI; 4TO-1900067CI; 4TO-1900068CI; 4TO-21-28CI; and 4TO-21-74 CR.13
For relief, Plaintiff requests injunctive relief and damages.14 Specifically,
Plaintiff requests an injunction requiring the Public Defender Agency to:
1) “remove defendant attorney Tom Ford as Ford as attorney of record in
[his] criminal case, and to file a formal complaint against his license to
practice law in the State of Alaska,”
2) “contract with a qualified criminal defense attorney that has extensive
experience in constitutional law and has defended constitutional rights
before a court,” and
3) “file a challenge to disqualify Superior Court Judge Patricia Haines from
my criminal case because of her documented propensity to favor
dishonest acts by state officials such as withholding exculpatory evidence
to secure indictments and convictions.”15
13 Docket 1 at 26.
14 Docket 1 at 27-29.
15 Docket 1 at 27.
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Additionally, Plaintiff requests various amounts of monetary compensation.
Plaintiff provides three different options for calculating the dollar amount for his
requested relief.16 Plaintiff demands a jury trial.
II. Screening Standard
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.17 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.18
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.”19 In conducting its
16 Option 1: compensatory damages in the amount of $500 per day from the date Mr. Ford was
assigned to his case; compensatory damages in the amount of $50,000.00; compensatory
damages in the amount of $100,000.00 from each defendant; and special damages in the amount
of $30,240.00 for lost wages. Option 2: compensatory damages in the amount of $500,000.00
plus punitive damages in the amount of $1,000,000.00. Option 3: damages in the amount of the
“total sum of profits made by the [ ] defendants as paid to them by the State of Alaska from the
date Mr. Ford was assigned to [his] criminal case” plus punitive damages in the amount of
$1,000,000.00. Docket 27-28.
17 See, e.g., Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000).
18 28 U.S.C. § 1915(e)(2)(B).
19 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
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review, a court must liberally construe a self-represented plaintiff’s pleading and
give the plaintiff the benefit of the doubt.20 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
and an opportunity to amend or otherwise address the problems, unless to do so
would be futile.21 Futility exists when “the allegation of other facts consistent with
the challenged pleading could not possibly cure the deficiency[.]” 22
III. Failure to State a Claim Upon which Relief May be Granted
A complaint seeking relief from a federal court must be clear. 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.”
Factual allegations may not be speculative, rather, plaintiff must plead “factual
content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.”23 Although a court must accept as true all
factual allegations contained in a complaint, a court need not accept a plaintiff’s
570 (2007)).
20 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)).
21 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)).
22 See Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
23 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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legal conclusions as true.24 Here, Plaintiff fails to name a proper defendant or
articulate an actual, redressable injury that, if proven true, would demonstrate a
constitutional violation.
A. Civil Rights Claims Under 42 U.S.C. § 1983 (“Section 1983”)
Section 1983 “is not itself a source of substantive rights,” but provides “a
method for vindicating rights [found] elsewhere.”25 For relief under Section 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.”26 To
act under the color of state law, a complaint must allege that the defendants acted
with state authority as state actors.27
Both the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth
Circuit—whose decisions are mandatory, binding precedent for this Court—have
ruled that public defenders do not act “under color of state law” when they work as
their clients’ defense lawyers, even though many public defenders work for
24 Iqbal, 556 U.S. at 678.
25 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137,
144 n.3 (1979)).
26 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
27 West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326
(1941)).
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public agencies and are paid with state funds.28 Further, “[t]his protection also
extends to [the attorney's] office, not just the individuals working in them.”29
Therefore, Plaintiff cannot maintain a Section 1983 claim against the Public
Defender Agency or Attorney Tom Ford. No other defendants could be substituted
under the alleged facts; therefore, amendment is futile and the Complaint must be
dismissed with prejudice.
B. Civil Actions Under 42 U.S.C. § 1985 (“Section 1985”)
Section 1985 creates a civil action for damages caused by two or more
persons who “conspire ... for the purpose of depriving” the injured person of “the
equal protection of the laws, or of equal privileges and immunities under the laws”
and take or cause to be taken “any act in furtherance of the object of such
conspiracy.” A Section 1985 claim must involve a racial or otherwise class-based
invidious discriminatory animus.30 Here, Plaintiff brings suit on behalf of himself
and does not allege discrimination based on his race or membership in any other
suspect class.
Further, “the absence of a Section 1983 deprivation of rights precludes a
Section 1985 conspiracy claim predicated on the same allegations.”31 Plaintiff’s
28 Polk Cnty. v. Dodson, 454 U.S. 312, 324–25 (1981); Miranda v. Clark Cnty., Nev., 319 F.3d 465,
468 (9th Cir. 2003) (en banc).
29 Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981).
30 Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 267-68 (1993).
31 Caldeira v. Cnty. of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989).
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conspiracy claims allege violations of underlying constitutional rights.32 As
discussed above, Plaintiff cannot pursue a Section 1983 claim against Defendants,
and consequently, he may not pursue a Section 1985 conspiracy claim.
C. State Violations
Plaintiff also brings state law claims, including violations of fiduciary duty,
malpractice, and contract law. Throughout his extensive narrative, Plaintiff also
describes multiple complaints regarding Attorney Ford’s representation and raises
additional allegations of fraud, professional misconduct, and criminal activity.
Under 28 U.S.C. § 1367, a federal district court may hear state law claims
by exercising supplemental jurisdiction, in cases where federal question
jurisdiction already exists and there are state law claims that derive from a common
nucleus of operative facts.33 Because Plaintiff has not pled a valid federal claim
for relief, the Court lacks subject matter jurisdiction over his state law claims.34
IV. Motion for Injunctive Relief
Plaintiff filed a “Motion for Immediate Emergency Injunctive Relief and
Complaint Seeking Warrant for Arrest” requesting the Court issue a warrant for the
arrest of Attorney Tom Ford.35 As an initial matter, the Court may issue a
32 Docket 1 at 21.
33 See United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966).
34 See 28 U.S.C. § 1367(c)(3); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (If “the
federal claims are dismissed before trial... the state claims should be dismissed as well.”).
35 Docket 6.
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preliminary injunction “only on notice to the adverse party.”36 In light of the
instant screening order, there is currently no active complaint and no defendant to
be served in this case. Further, injunctive relief is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff is entitled to such
relief.”37 Plaintiff cannot show that he will likely succeed on the merits of his claim,
because there is not a properly pled claim before the Court.
Even if Plaintiff alleged additional plausible facts to demonstrate a clear and
a certain claim, the Court cannot issue an arrest warrant. The Court recently
denied a similar request from Plaintiff in Egolf v. Schroeder.38 In Schroeder, the
Court denied Plaintiff’s request for mandamus relief explaining that the that federal
district courts cannot order a U.S. District Attorney to conduct an investigation or
initiate a prosecution because it would violate the doctrine of separation of
powers.39
The United States Constitution delegates powers of the Federal
Government into three defined categories: the Legislative Branch, the Executive
36 Fed. R. Civ. P. 65(a)(1).
37 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520
U.S. 968, 972 (1997) (per curiam)).
38 Case No. 4:22-cv-00003-SLG (D. Alaska June 2022).
39 Id. Docket 11 at 7 n.24 (citing O'Connor v. State of Nev., 507 F. Supp. 546, 549 (D. Nev. 1981),
aff'd, 686 F.2d 749 (9th Cir. 1982).
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Branch, and the Judicial Branch.40 The Executive Branch of the United States has
exclusive authority and absolute discretion to decide whether to prosecute a
case.41 As the Judicial Branch, this Court does not have the power to criminally
prosecute any individual or to issue an order for the arrest of an individual based
on Plaintiff’s request.42 Therefore, Plaintiff’s motion for injunction and arrest
warrant must be denied.
V. Conclusion
In summary, Plaintiff’s Complaint fails to state a claim upon which relief may
be granted. No other defendants could be substituted under the alleged facts.
Therefore, the Court finds amendment would be futile and the Complaint will be
dismissed without leave to amend. A dismissal under these circumstances would
be a strike.43
IT IS THEREFORE ORDERED:
40 Bowsher v. Synar, 478 U.S. 714, 721 (1986).
41 United States v. Nixon, 418 U.S. 683, 693 (1974).
42 See Latronica v. Merrill Lynch, 2016 WL 6967586, at *3 (E.D. Cal. 2016), report and
recommendation adopted sub nom. Latronica v. Lynch, 2016 WL 10654059 (E.D. Cal. 2016).
43 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 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 “imminent danger of
serious physical injury.”
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1. Plaintiff has 30 days to voluntarily dismiss this action in order to avoid
receiving a strike as required by 28 U.S.C. § 1915(g).
2. If Plaintiff does not respond, the Court will dismiss the action and issue
a strike.
3. The Motion for Immediate Emergency Injunctive Relief and Complaint
Seeking Warrant for Arrest at Docket 6 is DENIED.
4. The Clerk of Court is directed to send Plaintiff PS 90 Notice of
Voluntary Dismissal.
DATED this 6th day of December, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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