Bradshaw v. Dahlstrom et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JOSHUA JAMES BRADSHAW,
Plaintiff,
v.
NANCY DAHLSTROM, et al.,
Defendants.
No. 3:20-cv-00292-SLG-KFR
REPORT AND RECOMMENDATION Re PLAINTIFF’S
MOTION TO HOLD DEFENDANT IN CONTEMPT
The Court recommends Plaintiff’s Motion to Hold Defendants in Contempt be
DENIED. Plaintiff fails to meet his burden in proving that the statement in question
made by Defense Counsel was knowingly and intentionally false, or that it was made
with bad intent or for an improper purpose to constitute bad faith. Because the
Court recommends denial of Plaintiff’s motion, no sanction is warranted.
I. 	Procedural History
On November 16, 2020, pro se Plaintiff, Joshua James Bradshaw, filed a
Complaint against the Commissioner of the Alaska Department of Corrections (DOC),
Nancy Dahlstrom; the Governor of Alaska, Michael Dunleavy; and DOC alleging
violations of 42 U.S.C. § 1983 and the Alaska Constitution.1 On February 22, 2021,
the Court issued a screening order dismissing Mr. Bradshaw’s complaint without
prejudice, advising him of the elements he must plead if he chose to amend his
complaint, and granting him time to do so.2
On February 23, 2021, Plaintiff filed an “Application for temporary restraining
order and preliminary injunction,” which the Court denied.3 On March 22, 2021,
1 Doc. 1. Mr. Bradshaw also filed a Memorandum in Support of Complaint at Doc. 4.
2 Doc. 6.
3 Docs. 7 and 12.
Case 3:20-cv-00292-SLG-KFR Document 78 Filed 03/30/23 Page 1 of 10

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Final R&R on Motion to Compel
Bradshaw v. Winkelman, et al.
3:20-cv-000292-SLG-KFR
2
while awaiting a ruling on his application for a restraining order, Plaintiff filed his
First Amended Complaint.4 On April 5, 2021, the Court issued an order provisionally
appointing counsel and stayed the screening of Plaintiff’s First Amended Complaint
to give counsel time to meet with his client, file a notice of appearance, and review
and amend the complaint again if needed.5 Counsel for Plaintiff filed a Notice of
Appearance on April 12, 2021, followed by a Status Report on July 1, 2021, advising
the Court that Plaintiff wished to proceed on his First Amended Complaint as
previously filed.6
On October 12, 2021, Defendants filed a Motion to Dismiss.7 Plaintiff
responded in opposition, and Defendants responded with a motion to strike that
response.8 Plaintiff opposed Defendants’ Motion to Strike.9 After counsel for
Plaintiff filed a Rule 11 certification and a Notice of Withdrawal of Counsel, the Court
ordered counsel’s withdrawal and denied Defendants’ motion to strike.10 Defendants
replied to Plaintiff’s response to Defendants’ motion to dismiss, followed by a
supplemental response by Plaintiff.11 Defendants filed a motion to strike Plaintiff’s
supplemental response, and Plaintiff again opposed.12
After referral from the District Court,13 this Court sua sponte ordered
supplemental briefing on the issue of mootness.14 Specifically, the Court asked the
parties to address whether DOC’s revocation of the policies Plaintiff alleged to be
4 Doc. 10.
5 Doc. 13.
6 Docs. 14 and 16.
7 Doc. 24.
8 Docs. 25-29.
9 Doc. 30.
10 Docs. 32-35.
11 Docs. 36-37.
12 Docs. 38-39.
13 Docs. 40-41.
14 Doc. 42; see Students for a Conservative Am. v. Greenwood, 391 F.3d 978 (9th Cir. 2004)
(“We have an independent duty to consider sua sponte whether a case is moot.”) (citation
omitted).
Case 3:20-cv-00292-SLG-KFR Document 78 Filed 03/30/23 Page 2 of 10

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Final R&R on Motion to Compel
Bradshaw v. Winkelman, et al.
3:20-cv-000292-SLG-KFR
3
unconstitutional in his First Amended Complaint rendered his complaint moot.15 The
parties complied.16
The Court considered Defendants’ first Motion to Dismiss at Docket 24 and
recommended dismissing as moot each of the claims raised in Plaintiff’s First
Amended Complaint where he sought injunctive relief; specifically, his official
capacity claim against then DOC Commissioner Dahlstrom in Claim One,17 and
Claims Two and Three against Governor Dunleavy. The Court also recommended
granting Defendants’ motion as it related to the individual capacity claim against
then Commissioner Dahlstrom, but with leave to amend his complaint for that
distinct claim only. The District Court adopted the Court’s Report and
Recommendation.18
Plaintiff filed his Second Amended Complaint on October 14, 2022,
maintaining that Defendant Dahlstrom, in her individual capacity, violated his First
Amendment right to free exercise of religion under the Constitution.19 Defendant
responded with a Motion to Dismiss the Second Amended Complaint.20 Plaintiff
responded in opposition.21
Shortly after, Plaintiff filed a Motion to Compel seeking an order compelling
15 Id.
16 Docs. 44 and 49.
17 Id. Plaintiff originally named DOC Commissioner Nancy Dahlstrom in his First Amended
Complaint. On May 22, 2022, Commissioner Dahlstrom resigned. Pursuant to Fed. R. Civ.
P. 26(d), Commissioner Winkelman was “automatically substituted as a party” and the Court
considered her the proper defendant for Plaintiff’s original official capacity claim against
the DOC Commissioner. However, because Plaintiff also sued former Commissioner
Dahlstrom for money damages in her individual capacity, she remained a party as it related
to that distinct claim.
18 Doc. 53.
19 Doc. 54. Plaintiff captioned his Second Amended Complaint “Joshua James Bradshaw v.
Nancy Dahlstrom, et al.” However, former Commissioner Dahlstrom is the only remaining
defendant in this matter and the only person named in Plaintiff’s Second Amended
Complaint, thereby obviating the need for the use of the phrase “et al.” Defendant utilized
the same case caption, but the reply seeks dismissal by former Commissioner Dahlstrom
only. As such, Defendant will be referred to in the singular unless otherwise noted.
20 Docs. 56 and 57.
21 Docs. 63, 64, 66.
Case 3:20-cv-00292-SLG-KFR Document 78 Filed 03/30/23 Page 3 of 10

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Final R&R on Motion to Compel
Bradshaw v. Winkelman, et al.
3:20-cv-000292-SLG-KFR
4
DOC to return legal material confiscated as contraband by DOC when Plaintiff was
relocated to a different correctional center.22 Defendant responded in opposition.
On January 24, 2023, Plaintiff filed supplemental information relating to his Motion
to Compel,23 as well as a Status Report pursuant to the Court’s directive.24 This Court
considered Plaintiff’s Second Amended Complaint, Defendant’s Motion to Dismiss
Plaintiff’s Second Amended Complaint, and Plaintiff’s Motion to Compel, and
recommended granting Defendant’s Motion to Dismiss and denying Plaintiff’s
Motion to Compel.25
On January 30, 2023, Plaintiff filed a Motion to Hold Defendants in Contempt,
Defendant responded in opposition, and Plaintiff replied.26 The Court now considers
all filings related to Plaintiff’s Motion to Hold Defendants in Contempt.
II. 	Legal Standard
a. Framework for Imposing Sanctions under Inherent Authority
Federal courts possess certain inherent powers, not conferred by rule or
statute, to manage their own affairs to achieve the orderly and expeditious
disposition of cases, which includes the ability to fashion an appropriate sanction
for conduct that abuses the judicial process.27 This power includes the ability to
punish conduct before the court as well as actions beyond the court's confines,
regardless of whether that conduct interfered with courtroom proceedings.28 A
federal court may, among other things, dismiss a case in its entirety, bar witnesses,
22 DOC Procedure and Policy 811.05 states that a “prisoner may not possess property which
belongs to another prisoner under any circumstances.” DOC confiscated 46 documents of
Plaintiff’s which contained documents from three other inmates’ criminal matters and
their DOC institutional files. Plaintiff claimed that they were reference materials given to
him by his lawyer.
23 Doc. 67.
24 Docs. 65 and 68.
25 Doc. 71.
26 Docs. 69, 70, 72.
27 Goodyear Tire & Rubber Co. v. Haeger, ––– U.S. ––––, 137 S. Ct. 1178, 1186 (2017),
(quoting Link v. Wabash R. Co., 370 U.S. 626, 630–31, (1962)); see also America Unites for
Kids v. Rousseau, 985 F.3d 1075, 1088 (9th Cir. 2021).
28 Id. (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991).
Case 3:20-cv-00292-SLG-KFR Document 78 Filed 03/30/23 Page 4 of 10

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Final R&R on Motion to Compel
Bradshaw v. Winkelman, et al.
3:20-cv-000292-SLG-KFR
5
exclude other evidence, award attorneys’ fees, or assess fines.29 Although it is
preferable that courts use—and first consider—the range of federal rules and statutes
dealing with misconduct and abuse of the judicial system, “courts may rely upon
their inherent powers to sanction bad-faith conduct even where such statutes and
rules are in place.”30 “Because of their very potency, inherent powers must be
exercised with restraint and discretion.”31
When acting under its inherent authority to impose a sanction, as opposed to
applying a rule or statute, a court must find either: (1) a willful violation of a court
order; or (2) bad faith.32 A sanction may be awarded either for willful disobedience
of a court order or when a party has acted in bad faith, vexatiously, wantonly, or for
oppressive reasons.33 “A determination that a party was willfully disobedient is
different from a finding that a party acted in bad faith. Either supports the
imposition of sanctions.”34
Bad faith, including conduct done vexatiously, wantonly, or for oppressive
reasons, requires proof of bad intent or improper purpose.35 Bad faith also is not
restricted to situations where the action was filed in bad faith, but rather, may be
found in the conduct of the litigation.36 Finally, because a federal court's inherent
29 F.J. Hanshaw Enterprises, Inc. v. Emerald River Development, Inc., 244 F.3d 1128, 1136
(9th Cir. 2001).
30 Id. at 1136–37; see also Chambers, 501 U.S. at 50 (“[W]hen there is bad-faith conduct in
the course of litigation that could be adequately sanctioned under the Rules, the court
ordinarily should rely on the Rules rather than the inherent power. But if in the informed
discretion of the court, neither the statute nor the Rules are up to the task, the court may
safely rely on its inherent power.”).
31 Chambers, 501 U.S. at 44.
32 See Evon v. Law Officer of Sidney Mickell, 688 F.3d 1015, 1035 (9th Cir. 2012). The Court
notes that there are no allegations of Defendant, or Defendant’s Counsel, violating any
Court order, therefore the Court focuses its analysis specifically on whether any
statements were made in bad faith.
33 See Roadway Exp., Inc. v. Piper, 447 U.S. 752, 766 (1980); Fink v. Gomez, 239 F.3d 989,
991 (9th Cir. 2001).
34 Evon, 688 F.3d at 1035.
35 Id.; Fink, 239 F.3d at 993–94.
36 See Roadway Exp., 447 U.S. at 766.
Case 3:20-cv-00292-SLG-KFR Document 78 Filed 03/30/23 Page 5 of 10

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Final R&R on Motion to Compel
Bradshaw v. Winkelman, et al.
3:20-cv-000292-SLG-KFR
6
powers are so potent, the court must make an explicit finding that the sanctioned
party's conduct “constituted or was tantamount to bad faith” when imposing
sanctions based on such conduct.37
b. Alaska Local Rules
Alaska Local Civil Rule 1.1(c)(4) requires parties and their lawyers to conform
to the applicable rules of ethics and professional conduct. Alaska Local Civil Rule
11.2(a) empowers the Court to impose sanctions for violations of the Local Civil
Rules. Alaska Local Civil Rule 83.1 states, “[i]n all professional functions a lawyer
should be competent, prompt, and diligent.” Alaska Rule of Professional Conduct 3.3
states, “a lawyer shall not knowingly make a false statement of fact or law to a
tribunal.”
III. Discussion and Analysis
In his Motion to Hold Defendants in Contempt, Plaintiff asserts that Counsel
for Defendant, Ms. Mlcek, made a “knowing and intentional false statement, under
oath and in a sworn declaration to the Court”38 as part of Defendant’s Response to
Plaintiff’s Motion to Compel at Docket 66. Specifically, Plaintiff takes issue with Ms.
Mlcek’s statement:
“[o]n January 10, 2023, I contacted DOC to obtain a recording of the call
from Mr. Bradshaw to create a transcript for the Court but was
informed that the call was not recorded because Mr. Bradshaw
misrepresented his call to me as privileged. See Declaration Exhibit A,
phone call recording e-mail exchange with DOC.”39
Plaintiff next refers to Exhibit A, an e-mail exchange between a DOC official
and Ms. Mlcek, which informed Ms. Mlcek that DOC was “not able to send [Ms.
Mlcek] a recording of the call as it is privileged call, and our system doesn’t record
37 See Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648–50 (9th Cir. 1997) (quoting
Roadway Exp., 447 U.S. at 767); see also Rousseau, 985 F.3d at 1090.
38 Doc. 69 at 1.
39 Id. at 2 (quoting Doc. 66-3).
Case 3:20-cv-00292-SLG-KFR Document 78 Filed 03/30/23 Page 6 of 10

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Final R&R on Motion to Compel
Bradshaw v. Winkelman, et al.
3:20-cv-000292-SLG-KFR
7
them.”40 Plaintiff asserts that this email proves Ms. Mlcek’s statement is false and
that she made this statement knowing it was false.41 Plaintiff claims Ms. Mlcek’s
statement was “made in bad faith in what appears to be an attempt to make
[Plaintiff] appear dishonest and underhanded as he litigates this action pro se.”42
For relief, Plaintiff asks the Court to hold Defendants in contempt and issue
appropriate sanctions pursuant to the Court’s “Inherent Power and all applicable
Federal Statutes and Court Rules.”43 Additionally, Plaintiff asks the Court to strike
Defense counsel’s declaration from the record and remove or disqualify her as
Defendant’s counsel.44
In response, Defendant asks the Court to deny Plaintiff’s motion for several
reasons. First, Defendant asserts that the statement in question was made “upon
information and belief held at the time [the] statement was drafted, [and that]
undersigned counsel understood the assertion made therein regarding the reason
why the phone call was not recorded to be true and accurate.”45 Defendant goes on
to argue that “[a]fter receiving and reviewing [Plaintiff’s] Motion to Hold Defendant
in Contempt, undersigned counsel contacted DOC and learned that her
understanding of privileged prisoner calls was mistaken.46
Second, Defendant contends that the statement was not made in bad faith to
intentionally mislead the court, and that, “[o]ther than his own opinion,” Plaintiff
“provides no evidence that undersigned counsel acted intentionally, and not
mistakenly.”47 Lastly, Defendant asserts that Plaintiff fails to articulate how
“undersigned counsel’s (mistaken) assertion regarding when prisoner phone calls
40 Id. (quoting Doc. 66-5).
41 Id. at 2.
42 Id.
43 Id. at 1. Specifically, Plaintiff cites to Alaska Local Rules of Civil Procedure 1.1(c)(4),
11.2, 83.1, and Alaska Rule of Professional Conduct 3.3. See Doc. 72 at 3-4.
44 Id. at 4.
45 Doc. 70 at 2.
46 Id.
47 Id. at 2-3.
Case 3:20-cv-00292-SLG-KFR Document 78 Filed 03/30/23 Page 7 of 10

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Final R&R on Motion to Compel
Bradshaw v. Winkelman, et al.
3:20-cv-000292-SLG-KFR
8
are recorded has any bearing on the issue currently before the Court – whether DOC
should be compelled to allow [Plaintiff] to possess documents from three other
inmates’ criminal matters and DOC institutional files.”48 Further, Defendant states
that “no party’s credibility may bear on the Court’s decision [in determining the
Motion to Dismiss Plaintiff’s Second Amended Complaint], and, thus, the Defendant
would reap no benefit from an attempt to discredit [Plaintiff].”49
As cited by Plaintiff, “[sanctions] are appropriate where the Court finds that
a party has behaved in a way that constitutes or is tantamount to bad faith.”50
“Actions constituting a fraud upon the court are also sufficient to support a bad faith
finding.”51 The Court makes no such findings of bad faith in this case.
The Court accepts Defendant’s explanation as to the mistaken statement Ms.
Mlcek made about her understanding of the information DOC relayed to her
regarding Plaintiff’s privileged calls. There is no evidence in the record that Ms.
Mlcek acted intentionally, and not mistakenly as Ms. Mlcek admitted in her
opposition to Plaintiff’s motion for sanctions.52 Instead, Plaintiff merely offers his
opinion that the statement was made in bad faith, which is insufficient to invoke the
Court’s inherent power to sanction.
Plaintiff has not met his burden in proving Ms. Mlcek’s statement was made
with bad intent or for an improper purpose,53 nor is there any evidence in the record
sufficient to demonstrate that there has been an attempt to commit fraud upon the
Court.54 Indeed, as argued by Defendant, Ms. Mlcek would have no reason to attempt
to undermine Plaintiff’s credibility. This is so because any character attack Plaintiff
may have perceived as “an attempt to make [Plaintiff] appear dishonest and
48 Id. at 3.
49 Id. at 3.
50 Leon v. IDX Sys. Corp., 464 F.3d 951, 961 (9th Cir. 2006).
51 Chambers, 501 U.S. at 46.
52 Id. at 2-3.
53 See Evon, 688 F.3d at 1035; see also Fink, 239 F.3d at 993–94.
54 Chambers, 501 U.S. at 46.
Case 3:20-cv-00292-SLG-KFR Document 78 Filed 03/30/23 Page 8 of 10

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Final R&R on Motion to Compel
Bradshaw v. Winkelman, et al.
3:20-cv-000292-SLG-KFR
9
underhanded as he litigates this action pro se” based on Ms. Mlcek’s admittedly
mistaken statement regarding her conversation with DOC security officials would
have no effect on this Court’s Report and Recommendation to the District Court, nor
the District Court’s ultimate decision on Defendant’s Motion to Dismiss Plaintiff’s
Second Amended Complaint.55
Since the Court finds the challenged statement was not “knowingly false,” nor
was there any attempt to commit fraud upon the Court, the Court sees no violation
of Alaska Rules of Professional Conduct or the Local Rules. Furthermore, Ms. Mlcek’s
response to Plaintiff’s motion demonstrates that she followed up on the issue and
identified her mistake. As stated in Defendant’s opposition, “[a]fter receiving and
reviewing [Plaintiff’s] Motion to Hold Defendant in Contempt, [Ms. Mlcek] contacted
DOC and learned that her understanding of privileged prisoner calls was
mistaken.”56 The Court finds that such actions demonstrate Ms. Mlcek’s competency,
promptness, and diligence, and are in accordance with the Local Civil Rules.57
Finally, because the Court finds no evidence of bad faith on Ms. Mlcek’s part,
nor any evidence of a knowingly false statement, sanctions are unwarranted.
//
//
//
//
//
//
//
//
//
55 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
56 Doc. 70 at 2.
57 Alaska Local Civil Rule 83.1.
Case 3:20-cv-00292-SLG-KFR Document 78 Filed 03/30/23 Page 9 of 10

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Final R&R on Motion to Compel
Bradshaw v. Winkelman, et al.
3:20-cv-000292-SLG-KFR
10
IV. Conclusion
The Court recommends DENYING Plaintiff’s Motion to Hold Defendants in
Contempt at Docket 69. Plaintiff fails to prove that the statement in question made
by Ms. Mlcek was knowingly and intentionally false, made with bad intent or for an
improper purpose to constitute bad faith, as opposed to simply being an honest
mistake based upon a lack of knowledge. Since the Court finds no evidence of bad
faith on Ms. Mlcek’s part, the Court recommends no sanctions be issued.
DATED this 30th of March 2023, at Anchorage, Alaska.
s/ Kyle F. Reardon
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
NOTICE OF RIGHT TO OBJECT
Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate judge
to hear and determine matters pending before the Court. For dispositive matters, a
magistrate judge reports findings of fact and provides recommendations to the
presiding district court judge.58 A district court judge may accept, reject, or modify,
in whole or in part, the magistrate judge’s order.59
A party may file written objections to the magistrate judge’s order within 14
fourteen days.60 Objections and responses are limited to five (5) pages in length and
should not merely reargue positions previously presented. Rather, objections and
responses should specifically identify the findings or recommendations objected to,
the basis of the objection, and any legal authority in support. Reports and
recommendations are not appealable orders. Any notice of appeal pursuant to Fed.
R. App. P. 4(a)(1) should not be filed until entry of the district court’s judgment.61
58 28 U.S.C. § 636(b)(1)(B).
59 28 U.S.C. § 636(b)(1)(C).
60 Id.
61 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
Case 3:20-cv-00292-SLG-KFR Document 78 Filed 03/30/23 Page 10 of 10