Stoltenberg v. Clark et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
EDWIN ALLEN STOLTENBERG
Plaintiff,
v.
TROY CLARK, et al.,
Defendants.
Case No. 3:20-cv-00267-JMK
CASE MANAGEMENT ORDER
Before the Court are three items: 	(1) Defendant Securus Technologies,
LLC’s (“Securus”) Motion to Dismiss at Docket 94; (2) Mr. Stoltenberg’s response
clarifying the named defendants in this suit; and (3) Mr. Stoltenberg’s motion titled
“Request Leave to Amend.” Both of Mr. Stoltenberg’s matters are in a single filing
at Docket 96.
I. 	Securus’s Motion to Dismiss
At Docket 94, (“Securus”) has filed a Motion to Dismiss. Securus moves to
dismiss pursuant to Rule 12(b)(6) of Federal Civil Procedure.1 	At Docket 95,
Securus renews a request that the Court take judicial notice of the exhibits lodged
at Docket 54. 	In brief summary, the exhibits include: 	(1) a public request for
proposals for telephone service for prisoners held by the Alaska Department of
Corrections (“DOC”); (2) the contract between the DOC and Securus; (3) DOC
1 Docket 94 at 10–11.
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Procedures and Policies; (4) screen captures of DOC’s public website; and (5) the
proceedings in United States v. Stoltenberg, Case No. 3:18-cr-00109-JMK.
Under Rule 12(b)(6), a defendant may move to dismiss a complaint for
failure to state a claim upon which relief can be granted. 	Plainly, this means that
a defendant argues that even if everything in the complaint is true, the defendant
did not violate the law. To determine whether a complaint states a valid claim for
relief, courts consider whether the complaint contains sufficient facts that, if
accepted as true, “state[s] a claim to relief that is plausible on its face.”2 	In
conducting its review, a court must liberally construe a self-represented plaintiff’s
pleading and give the plaintiff the benefit of the doubt.3
Generally, a court resolves a motion under 12(b)(6) only on the pleadings
before it.4 	However, two exceptions exist where a court may look beyond the
pleadings without converting the motion to dismiss into a motion for summary
judgment.5 	First, a document may be incorporated by reference, if “(1) the
complaint refers to the document; (2) the document is central to the plaintiff’s claim;
2 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)).
3 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)).
4 Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018).
5 United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
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and (3) no party questions the authenticity of the copy attached to the 12(b)(6)
motion.”6 Second, a court may take judicial notice of facts “generally known within
the trial court’s territorial jurisdiction; or can be accurately and readily determined
from sources whose accuracy cannot be reasonable be questioned.”7
The Court has reviewed the exhibits lodged at Docket 54. 	Docket 54’s
exhibits are appropriate to consider as part of the Motion to Dismiss at Docket 94.
The exhibits at Dockets 54-1 and 54-2 are incorporated by reference, because
they are the foundational, contract documents establishing Securus as the phone
provider of Anchorage Correctional Center, which is referenced and central to
Plaintiff’s complaint. The exhibits at Dockets 54-3, 54-4, 54-5, and 54-6 are subject
to judicial notice as publicly available policies, procedures, and information from
the DOC about telephone calls. 	The Court also takes judicial notice of United
States v. Stoltenberg, Case No. 3:19-cr-00109.8
6 Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006).
7 Fed. R. Evid. 201.
8 A court can take judicial notice of its own files and records. 	Fed. R. Evid. 201; see also
Headwaters Inc. v. U.S. Forest Service, 399 F.3d 1047, 1051 n.3 (9th Cir. 2005) (“Materials from
a proceeding in another tribunal are appropriate for judicial notice.”). Even where a party disputes
the factual or legal findings of a court order, however, a court may take judicial notice of “the fact
that the ... order issued and contained certain findings and conclusions.” 	Chatman v. Ferrell,
No. CV-17-03826-PHX-DLR, 2018 WL 3209389, at *1 (D. Ariz. June 29, 2018).
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II. 	Mr. Stoltenberg’s Response
Mr. Stoltenberg informs the Court that the United States Marshal Service “is
not a defendant to this lawsuit.”9 	The Court thanks Mr. Stoltenberg for this
clarification. 	Accordingly, the United States Marshal Service shall be terminated
from this action as a defendant.
III. 	Mr. Stoltenberg’s “Request Leave to Amend”
Mr. Stoltenberg informs the Court he has been in contact with prospective
counsel and awaits a representation contract.10 Mr. Stoltenberg requests leave to
amend his complaint in anticipation his new counsel filing an amended complaint.
Rule 15 of Federal Civil Procedure governs the amendment of Mr. Stoltenberg’s
complaints. 	Regardless of representation status, without a proposed amended
complaint before the Court, this request is premature.11
9 Docket 96 at 1 (all caps removed).
10 Docket 96 at 1–2.
11 Fed. R. Civ. P. 15(a)(2); Local Civil Rule 15.1.
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Mr. Stoltenberg also requests a delay in briefing deadlines.12 In the interest
of judicial economy and the Court’s inherent powers to control its own docket,13
the Court will issue a brief stay to allow for the possible appearance of counsel.14
IT IS THEREFORE ORDERED:
1. 	The Court accepts and will consider the exhibits at Docket 54, as part of
Securus’s Motion to Dismiss at Docket 94.
2. 	Mr. Stoltenberg’s response at Docket 96 clarifying the defendants in this
action is accepted. 	The Clerk of Court shall terminate the United States
Marshal Service as a defendant in this action. 	The Motion to Dismiss from
the United States Marshal Service at Docket 81 is DENIED AS MOOT.
3. 	The Motion at Docket 96 is DENIED IN PART and GRANTED IN PART.
a. 	The request for leave to amend is DENIED AS PREMATURE.
b. 	The request to delay briefing deadlines is GRANTED.
4. 	The Court STAYS this action for 90 days to facilitate a possible entry of
appearance and any applicable motions practice.
12 Docket 96 at 2.
13 Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010). 	A federal district
court’s inherent powers are the mechanisms “necessarily vested in courts to manage their own
affairs as so to achieve the orderly and expeditious disposition of cases.” Chambers v. NASCO,
Inc., 501 U.S. 32, 44 (1991) (quoting Link v. Wash R. Co., 370 U.S. 626, 630–31 (1962).
14 Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (holding “the power to stay proceedings is
incidental to the power inherent in every court to control the disposition of the causes on its docket
with economy of time and effort for itself, for counsel, and for litigants.”).
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a. 	Mr. Stoltenberg’s deadline for an opposition brief on the Federal
Defendant’s Motion to Dismiss at Docket 89 is paused.
b. 	Mr. Stoltenberg’s deadline for an opposition brief on Securus’s Motion
to Dismiss at Docket 94 with exhibits at Docket 54 is paused.
c. 	The 	responsive 	pleading 	deadline 	for 	Defendant 	Winkelman 	is
paused.
5. Mr. Stoltenberg remains a self-represented plaintiff and responsible for this
litigation.
6. If an attorney files a Notice of Appearance on behalf of Mr. Stoltenberg,
Mr. Stoltenberg will be relieved of his duties as a self-represented plaintiff.
All filings will need to be made by counsel. No motions, letters,
correspondence, or requests will be accepted by the Court once Plaintiff’s
counsel enters an appearance.
7. If counsel for plaintiff does not appear by July 19, 2023, briefing and
responsive pleading deadlines will resume on the following schedule:
a. Mr. Stoltenberg’s opposition brief on the Federal Defendant’s Motion
to Dismiss at Docket 89 will be due 8/28/2023. Local Civil Rule 7.4
requires that unless otherwise ordered, opposition memoranda must
not exceed 35 pages or 10,000 words.
b. Mr. Stoltenberg’s opposition brief on Securus’s Motion to Dismiss at
Docket 94, with exhibits at Docket 54, will be due 9/18/2023.
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Local Civil Rule 7.4 requires that unless otherwise ordered, opposition
memoranda must not exceed 35 pages or 10,000 words. 	Plaintiff
should not include exhibits or additional materials with his opposition
brief.
c. Defendant Winkelman’s responsive pleading will be due
8/28/2023.
d. Reply briefs from the Federal Defendants or Securus will be due 14
days after any opposition is filed, per Local Civil Rule 7.2(b)(2).
8. 	The Clerk of Court shall send a copy of Docket 54 and its exhibits to
Mr. Stoltenberg along with a copy of this order.
DATED this 21st day of April, 2023, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
UNITED STATES DISTRICT JUDGE
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