Stern v. Marston et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JOACHIM STERN,
Plaintiff,
vs.
ERIN MARSTON, et al.,
Defendants. Case No. 3:21-cv-00130-RRB
ORDER OF DISMISSAL
Joachim Stern, representing himself, filed a Prisoner’s Complaint
Under the Civil Rights Act, 42 U.S.C. § 1983, alleging speedy trial claims against
the judge, the assistant district attorney, and Mr. Stern’s public advocate in his
state criminal case, State of Alaska v. Joachim Stern, Alaska Superior Court Case
No. 3AN-20-00935CR.1 Mr. Stern also filed an Application to Waive Prepayment
of the Filing Fee, and a Motion for Appointment of Counsel.2
In his Complaint, Mr. Stern claims that (1) Judge Erin Marston “did
allow my Constitutional right of a ‘speedy trial’ to be violated and also … became
an imposter of his Oath making [him] liable for penalties associated with his
criminal 	actions”;3 	(2) 	Assistant 	District 	Attorney 	“Patrick 	McKay 	did 	allow
1 Docket 1.
2 Dockets 3, 4.
3 Docket 1 at 3.
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[Mr. Stern’s] right to ‘speed[y] trial’ to be violated, and also Patrick McKay became
an imposter of office, makin[g] him personally liable for [Mr. Stern’s] injury and civil
penalties and should be arrested for his egregious acts”;4 and (3) his lawyer, “Jim
Corrigan assisted in the conspiratorial egregious act of denial of [Mr. Stern’s]
‘speedy trial’ right, personally injuring [him] and [his] family … and became an
imposter to oath [and] liable and should be arrested for such acts.”5
Mr. Stern seeks $10,000,000 in damages, plus punitive damages at
the “maximum,” an order to “produce for review all discovery for case 3AN-20-
00935CR,” as well as: 	“(1) Issue a bar to prosecution for alleged offense, [and]
(2) Return any funds to corporate entity as ‘charged.’”6
Earlier this year, Mr. Stern filed a habeas petition under 28 U.S.C.
§ 2241 in this Court, claiming the state court is denying his right to a speedy trial
in the same state criminal case.7 	In Mr. Stern’s 2241 case, he was appointed
counsel, but his lawyer determined that he had no non-frivolous grounds for relief,
and the Court dismissed the case on June 17, 2021.8
4 Id. at 4.
5 Id. at 3.
6 Id. at 8.
7 Stern v. Houser, 3:21-cv-00016-RRB, Docket 1 (challenging State of Alaska v. Joachim
Stern, Alaska Superior Court Case No. 3AN-20-00935CR).
8 3:21-cv-00016-RRB, Dockets 15, 17, 18.
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SCREENING REQUIREMENT
Federal law requires a court to conduct an initial screening of a civil
complaint filed by a plaintiff who seeks to waive prepayment of the filing fee. 	In
this screening, the Court shall dismiss the case if it 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.9
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.”10 	In conducting its
review, a court must liberally construe a self-represented plaintiff’s pleading and
give the plaintiff the benefit of the doubt.11 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
9 28 U.S.C. § 1915(e)(2)(B).
10 	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)).
11 	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.12
DISCUSSION
Under § 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.”13 	This federal statute “is not itself a source of substantive
rights,” but provides “a method for vindicating rights [found] elsewhere.”14
Failure 	to 	name 	appropriate 	“state 	actors,” 	judicial 	immunity,
prosecutorial immunity, res judicata,15 and abstention all require dismissal of this
case.
12 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)).
13 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
14 Graham v. Connor, 490 U.S. 386, 393–94 (1989) (quoting Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)).
15 Black’s Law Dictionary (11th ed. 2019) (Res Judicata: 	“1. An issue that has been
definitively settled by judicial decision. 2. An affirmative defense barring the same parties
from litigating a second lawsuit on the same claim, or any other claim arising from the
same transaction or series of transactions and that could have been — but was not —
raised in the first suit. 	The three essential elements are (1) an earlier decision on the
issue, (2) a final judgment on the merits, and (3) the involvement of the same parties, or
parties in privity with the original parties.”) (citing Restatement (Second) of Judgments
§§ 17, 24 (1982)).
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I. 	Public Defenders
A lawyer appointed to represent a criminal defendant in a state court
proceeding is “as a matter of law, ... not a state actor.”16 	Such a lawyer, whether
from the Alaska Office of Public Advocacy or the Public Defender’s Office, is “no
doubt, 	paid 	by 	government 	funds 	and 	hired 	by 	a 	government 	agency.
Nevertheless, his function was to represent his client, not the interests of the state
or county.”17 	It does not matter that a lawyer is paid from public funds. 	“Except
for the source of payment, ... the duties and obligations are the same whether the
lawyer is privately retained, appointed, or serving in a legal aid or defender
program.”18
Because the lawyer’s duty and loyalty are to the client, not the state,
a court appointed attorney is not “acting under color of state law” for purposes of
Section 1983. 	It therefore follows that any lawyer who represents Mr. Stern,
regardless of whether the lawyer is paid by the state, is not a state actor under
federal civil rights law and is not a proper defendant in this case. The claim against
16 Miranda v. Clark County, Nevada, 319 F.3d 465, 469 (9th Cir. 2003), cert. denied, 540
U.S. 814 (2003) (“[The attorney], in undertaking the actual defense of Miranda, entered
into an attorney-client relationship that placed him in a role that exempts him from liability
under § 1983 as a state actor.”).
17 Id.
18 Polk County v. Dodson, 454 U.S. 312, 318–19 (1981).
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his criminal defense attorney must, therefore, be dismissed for failure to state a
claim under 28 U.S.C. § 1915(e)(2)(B)(ii).
II. 	Judicial Immunity
Judges, and those performing judge-like functions, have absolute
immunity from § 1983 damages suits for judicial acts.19 Since 1872, the Court has
recognized that in order to ensure the proper administration of justice, a judge “in
exercising the authority vested in him, be free to act upon his own convictions,
without apprehension of personal consequences to himself.”20 A judge will not be
deprived 	of 	immunity 	because 	the 	action 	he 	took 	was 	in 	error, 	was 	done
maliciously, or was in excess of his authority; rather, he will be subject to liability
only when he has acted in the “clear absence of all jurisdiction.”21
19 See Stump v. Sparkman, 435 U.S. 349, 357–58 (1978) (holding that judge’s order
authorizing sterilization of 15-year-old girl without her knowledge was unconstitutional,
but judge was immune from suit because order was a judicial act); Ryan v. Bilby, 764
F.2d 1325, 1328 n.4 (9th Cir. 1985) (“Judicial immunity is not limited to judges. All those
who perform judge-like functions are immune from civil damages liability.”) (citations
omitted).
20 Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 337 (1872); Ashelman v. Pope, 793 F.2d
1072, 1075 (9th Cir. 1986) (“Judges are immune from damage actions for judicial acts
taken within the jurisdiction of their courts.”) (citing Bradley, 80 U.S. at 347).
21 Stump, 435 U.S. at 357–58 (quoting Bradley, 80 U.S. at 351); Ashelman, 793 F.2d at
1075–76 (When evaluating whether a judge’s act was performed within his or her judicial
authority, courts focus on whether “(1) the precise act is a normal judicial function; (2) the
events occurred in the judge’s chambers; (3) the controversy centered around a case
then pending before the judge; and (4) the events at issue arose directly and immediately
out of a confrontation with the judge in his or her official capacity.” 	And “[t]hese factors
are to be construed generously in favor of the judge and in light of the policies underlying
judicial immunity.”) (citations omitted).
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Judge Erin Marston has judicial immunity for his judicial actions in this
case. The claim for monetary damages must, therefore, be dismissed as required
by 28 U.S.C. § 1915(e)(2)(B)(iii).22
III. 	Prosecutorial Immunity
Prosecutors are also absolutely immune from liability under section
1983 for conduct that is “intimately associated with the judicial phase of the criminal
process.”23 The Supreme Court has decided that “acts undertaken by a prosecutor
in preparing for the initiation of judicial proceedings or for trial, and which occur in
the course of his role as an advocate for the State”—including “evaluating evidence
and interviewing witnesses as he prepares for trial”—“are entitled to the protections
of absolute immunity.”24
The 	Ninth 	Circuit 	has 	explained 	that 	“[w]hether 	the 	government
attorney is representing the plaintiff or the defendant, or is conducting a civil trial,
criminal prosecution or an agency hearing, absolute immunity is ‘necessary to
assure 	that 	... 	advocates 	... 	can 	perform 	their 	respective 	functions 	without
22 28 U.S.C. § 1915(e)(2)(B) (A court shall dismiss the case at any time if the court
determines that the action “(iii) seeks monetary relief against a defendant who is immune
from such relief.”).
23 Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Botello v. Gammick, 413 F.3d 971, 975
(9th Cir. 2005).
24 Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
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harassment or intimidation.”25 Because not all of a government lawyer’s activities
are covered by absolute immunity, “a functional comparison of the activities
performed is critical.”26 The Supreme Court has held, however, that “officials who
are responsible for the decision to initiate or continue a proceeding subject to
agency adjudication are entitled to absolute immunity from damages liability for
their parts in that decision.”27
Clearly, 	Mr. Stern 	is not complaining 	about 	an assistant 	district
attorney’s administrative duties such as “workplace hiring, payroll administration,
the maintenance of physical facilities, and the like.”28 	No facts indicate that the
assistant district attorney was engaged in anything other than conduct intimately
associated with adjudication. 	The claim for monetary damages against the
prosecutor must be dismissed, as required by 28 U.S.C. § 1915(e)(2)(B)(iii).
25 Fry v. Melaragno, 939 F.2d 832, 837 (9th Cir. 1991) (quoting Butz v. Economou, 438
U.S. 478, 512 (1978)).
26 Stapley v. Pestalozzi, 733 F.3d 804, 811 (9th Cir. 2013) (citing Imbler, 424 U.S. at 430).
27 Butz, 438 U.S. at 516.
28 	Van 	de 	Kamp 	v. 	Goldstein, 	555 	U.S. 	335, 	344 	(2009) 	(Even 	a 	prosecutor’s
administrative responsibilities that result in an error in a specific criminal trial constitute
“an essential element of the plaintiff’s claim [and] are thus unlike administrative duties
concerning, for example, workplace hiring, payroll administration, the maintenance of
physical facilities, and the like.” Thus, “absolute immunity must follow.”).
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IV. 	Abstention
As Mr. Stern was told in his habeas case, the Younger abstention
doctrine provides that federal courts may not generally exercise jurisdiction when
doing so would interfere with state judicial proceedings.29 	The core of Younger
abstention is that a federal court cannot interfere with pending state court criminal
proceedings, absent a “showing of bad faith, harassment, or any other unusual
circumstance that would call for equitable relief.”30 A federal court
must abstain under Younger if four requirements are met:
(1) 	a 	state-initiated 	proceeding 	is 	ongoing; 	(2) 	the
proceeding implicates 	important state interests; (3) the
federal 	plaintiff 	is 	not 	barred 	from 	litigating 	federal
constitutional issues in the state proceeding; and (4) the
federal court action would enjoin the proceeding or have
the practical effect of doing so, i.e., would interfere with
the 	state 	proceeding 	in 	a 	way 	that 	Younger
disapproves.31
29 See Younger v. Harris, 401 U.S. 37, 41 (1971).
30 Younger, 401 U.S. at 54; see also Carden v. Montana, 626 F.2d 82, 84 (9th Cir. 1980)
(In Perez v. Ledesma, 401 U.S. 82, 85 (1971), the Supreme Court “limited the category
of ‘extraordinary circumstances’ to encompass only ‘cases of proven harassment or
prosecutions undertaken by state officials in bad faith without hope of obtaining a valid
conviction,’ or where ‘irreparable injury can be shown.’”); Brown v. Ahern, 676 F.3d 899,
901 (9th Cir. 2012) (“Consistent with this observation, we specifically rejected in Carden
the argument that a claimed violation of the Speedy Trial Clause … sufficed in and of
itself as an independent ‘extraordinary circumstance’ 	necessitating pre-trial habeas
consideration.”) (citing Carden at 84).
31 San Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of
San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008).
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The State of Alaska has an important interest in enforcing its criminal
laws, and Mr. Stern’s criminal case in state court remains ongoing.32 	Mr. Stern’s
allegation, that he is being denied his right to a speedy trial in state court, should
normally be addressed in his state court criminal proceedings.33 This Court should
not interfere with the trial court’s fact-finding responsibilities and legal decisions in
that 	case, 	unless 	“full 	vindication 	of 	the 	petitioner’s 	pretrial 	rights 	requires
intervention before trial.”34
In Mr. Stern’s habeas action, his lawyer filed a Motion to Withdraw
under Anders v. California,35 concluding that “Mr. Stern does not have any non-
frivolous claims for federal court intervention based upon the State of Alaska’s
purported violations of his federal constitutional rights to due process and a speedy
trial as guaranteed under the Sixth and Fourteenth Amendments and the habeas
statute.”36 	Although Mr. Stern’s “loss of liberty for the time of pretrial detention is
32 See Alaska v. Stern, Case No. 3AN-20-00935CR.
33 See Brown, 676 F.3d at 900–01 (A “federal court’s exercise of jurisdiction over a habeas
petition that raises an affirmative defense to state prosecution before trial and conviction
can have the same effect as a direct injunction of ongoing state proceedings.”) (citing
Carden, 626 F.2d at 83).
34 Page v. King, 932 F.3d 898, 903 (9th Cir. 2019).
35 386 U.S. 738 (1967); see also United States v. Griffy, 895 F.2d 561 (9th Cir. 1990).
36 Stern v. Houser, 3:21-cv-00016-RRB, Docket 15 at 1, and Exhibit 1 (Affidavit of James
Corrigan).
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‘irretrievable’ regardless of the outcome at trial,”37 he received bail hearings on
February 26, 2020, March 24, 2020, and January 28, 2021.38 And Mr. Stern’s bail,
while he awaits trial for felony robbery, is currently reduced to “a $250 performance
bond and PED electronic monitoring with house arrest. 	However, Mr. Stern has
been unable to obtain a suitable address for the electronic monitoring conditions.
Consequently, he has remained incarcerated since he was charged on February 1,
2020.”39 And “[g]iven the seriousness of the charges that he faces, counsel cannot
state that Mr. Stern’s bail has been set in an amount higher than can be reasonably
calculated to assure Mr. Stern’s appearance at trial while at the same time assuring
the state’s compelling governmental interest in assuring public safety.”40
Moreover, continuances have been requested by Mr. Stern’s attorney
“due to discovery issues. Mr. Stern’s counsel has not yet obtained the entirety of
37 Page, 932 F.3d at 904 (quoting Arevalo, 882 F.3d at 766); see also United States v.
Henning, ___ F. Supp. 3d ___, 2021 WL 222355 at *8 (C.D. Cal. Jan. 19, 2021) (“The
Court also is acutely aware of the statistics of how many people continue to be infected,
hospitalized, and—tragically—die due to the coronavirus every day, all across the
country. But the Constitution does not turn on these considerations. Instead, to protect
the fundamental right to a speedy trial guaranteed by the Sixth Amendment, the
Constitution requires that a trial only be continued over a defendant’s objection if holding
the trial is impossible.”).
38 3:21-cv-00016-RRB, Docket 15 at 2.
39 Id.
40 Id. at 7.
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the discovery from the state of Alaska.”41 	Further, Mr. Stern’s state appointed
lawyer has filed a motion to dismiss the indictment in his criminal case.42 	As
pointed out by counsel in Mr. Stern’s federal habeas case, “in light of Mr. Stern’s
constitutional right to effective assistance of counsel, and opportunity to prepare a
defense under the Sixth Amendment, the period of delay caused as a result of
counsel’s preparation of the case would be an improper basis for a speedy trial
violation.”43
These 	facts 	indicate 	that 	the 	federal 	court 	should 	abstain 	from
intervening in Mr. Stern’s state criminal proceedings.
THEREFORE, IT IS HEREBY ORDERED:
1. 	The case is DISMISSED without prejudice to the continued litigation
of any appropriate issues in Mr. Stern’s state criminal case.44
2. 	All outstanding motions are DENIED as moot.
41 Id.
42 Id. at 3, 6.
43 Id. at 6.
44 See 3:21-cv-00016-RRB, Docket 17 at 9–10 (exhaustion of state court remedies).
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3. 	The Clerk of Court will enter a Judgment accordingly.
Dated at Anchorage, Alaska this 21st day of June, 2021.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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