Nordlund v. Beesley et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DAVID CHRISTOPHER NORDLUND,
Plaintiff,
vs.
OFC. BEESLEY, et al.,
Defendants. Case No. 3:21-cv-00134-RRB
ORDER REGARDING STATUS OF STATE COURT CASES
David Christopher Nordlund, representing himself, filed a Prisoner’s
Complaint Under the Civil Rights Act, 42 U.S.C. § 1983, alleging claims against
parole officers and parole board members who participated in revoking his parole
after his state criminal court judgment of conviction and sentence.1 Mr. Nordlund
also filed an Application to Waive Prepayment of the Filing Fee.2
In his Complaint, Mr. Nordlund asserts two claims for relief:
(1) 	On February 2, 2017 … Ofc. Beesley and Ofc.
Tigner seized [him] without probable cause … in violation
of plaintiff’s 4th Amendment rights[,] … transported [him]
to the local jail where he was held unlawfully … [and] …
made accusations they knew or should have known to be
false that plaintiff had violated the terms of his parole …
[which] expired on December 7, 2016, approximately two
months prior to [his] arrest.3
1 Docket 1.
2 Docket 3.
3 Docket 1 at 5.
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(2) 	On December 7, 2007, plaintiff was sentenced to
20 years imprisonment with 10 years suspended. 	The
maximum release date on the 10 year imposition of
sentence was calculated to end on December 7, 2016.
On January 1, 2017 the State of Alaska more narrowly
defined an already existing law to expressly notify the
board of parole that they could not extend a person’s
period of parole beyond the maximum release date as
originally calculated. 	On May 17, 2017, plaintiff was
ordered to 399 days of incarceration in excess of his
sentence, … violat[ing] double jeopardy…. While state
proceedings [challenging the parole board’s order] were
still ongoing plaintiff filed an action in federal court case
no. 3:18-cv-00013-RRB….4
Mr. Nordlund first attempted to file his claims in his previous civil rights
case, which was dismissed on February 25, 2019.5 	Because the case had been
closed for over two years, the Court explained that, “[i]f Mr. Nordlund wishes to
revive his previously dismissed claims, he will need to file a new complaint.”6 He
has now done so, attaching the May 3, 2021 “Order on Motion for Reconsideration
of Order Dismissing Appeal as Moot,” by the Court of Appeals for the State of
Alaska.7
4 Id. at 6.
5 Nordlund v. Chris Lyou, et al., 3:18-cv-00013-RRB, Dockets 19, 20.
6 Id., Docket 24 at 2 (4/27/21 Order).
7 Docket 1; Docket 1-1 (Alaska Court of Appeals No. A-13053).
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Mr. Nordlund seeks compensatory damages of $10,000,000, and
punitive damages in the amount of $10,000,000.8
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
8 Docket 1 at 9.
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)).
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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
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
The doctrine of abstention applies to this action if Mr. Nordlund’s
claims are pending in the Alaska state courts.
A. 	Abstention
The Younger abstention doctrine provides that federal courts may not
generally exercise jurisdiction when doing so would interfere with state judicial
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)).
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)).
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proceedings.15 	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.”16 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.17
The State of Alaska has an important interest in its criminal laws and
procedures. 	The Court takes judicial notice18 that the state proceedings relating
15 See Younger v. Harris, 401 U.S. 37, 41 (1971).
16 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.’”).
17 	San Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of
San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008).
18 	Judicial notice is the “court’s acceptance, for purposes of convenience and without
requiring a party’s proof, of a well-known and indisputable fact; the court’s power to accept
such a fact.” 	Black’s Law Dictionary (11th ed. 2019); see also Foster Poultry Farms v.
Alkar-Rapidpak-MP Equip., Inc., 868 F. Supp. 2d 983, 990 (E.D. Cal. 2012) (“Courts
routinely 	take 	judicial 	notice 	of 	publicly 	available 	records 	... 	from 	other 	court
proceedings.”) (citing Engine Mfrs. Ass’n v. South Coast Air Quality Management Dist.,
498 F.3d 1031, 1039 n. 2 (9th Cir. 2007) (additional citation omitted)); Fed. R. Evid. 201.
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to the duration of Mr. Nordlund’s confinement after his 2007 conviction in State of
Alaska v. David Nordlund, 3KE-06-01246CR, are ongoing.19 	In Mr. Nordlund’s
appeal of the revocation of his parole, his lawyer argued his claim regarding
revocation of parole after completion of his sentence:
Mr. 	Nordlund 	was 	originally 	sentenced 	on
December 7, 2007 to serve 10 years. 	When he first
released 	to 	parole 	on 	August 	27, 	2013, 	his 	parole
expiration date was December 7, 2016. 	After being
revoked and re-paroled, his parole expiration date was
extended to March 28, 2017. After being revoked and re-
paroled again, his parole expiration date was extended
to June 15, 2017. 	Then on May 17, 2017, the Parole
Board revoked and terminated Mr. Nordlund's parole,
which resulted in the imposition of 399 days to serve and
a release date of June 22, 2018. 	Thus, Mr. Nordlund
suffered from both problems of pre-Senate Bill 91 parole:
his parole was extended several times and his total
sentence 	exceeded 	the 	sentence 	imposed 	by 	his
sentencing court.
Accordingly, based on both the plain language and
the 	intent 	of 	the 	parole 	amendments, 	Mr. 	Nordlund
should have received the benefit of the Senate Bill 91
parole revisions at his May 2017 revocation.20
19 See https://appellate-records.courts.alaska.gov/CMSPublic/Search/PartyNameSearch
(party name search in Case Management System for Alaska Appellate Courts); see also
https://records.courts.alaska.gov/eaccess/searchresults.page 	(party 	name 	search 	in
Alaska trial courts).
20 Nordlund v. Alaska, No. A-13053, 2019 WL 9093487, at *14–15 (Alaska App.) (6/24/19
Appellate Brief, on appeal from Alaska Superior Court No. 1KE-17-00335CI) (citations to
the record omitted).
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The May 3, 2021 Court of Appeals Order dismissing that appeal as moot21 is
currently pending before the Supreme Court for the State of Alaska.22
In addition, Mr. Nordlund has another post-conviction petition pending
in the state courts, also making a challenge related to Mr. Nordlund’s 2006 criminal
case (with 2007 judgment of conviction and sentence).23 And he has an appeal in
the briefing stages before the Court of Appeals, which relates to the 2006 case.24
Thus, it appears that the federal court must currently abstain from
intervening in Mr. Nordlund’s state cases.25
21 Docket 1-1 (Alaska Court of Appeals No. A-13053).
22 https://appellate-records.courts.alaska.gov/CMSPublic/Case/General?caseID=26515,
David Nordlund v. State of Alaska, S-18093, Petition for Hearing filed 6/2/21, from
underlying appellate case, A-13053, pending.
23 https://records.courts.alaska.gov/eaccess/searchresults, David Nordlund v. State of
Alaska, 3PA-19-02187CI (Application for Post-Conviction Relief (Criminal Rule 35.1)
Criminal Case Number: 1KE-06-01246CR) (monthly status report filed 5/25/21).
24 https://appellate-records.courts.alaska.gov/CMSPublic/Case/General?caseID=26323,
Nordlund v. State, A-13783 (204 Appeal filed 12/16/20 from 1KE-06-01246CR, 12/10/20
judgment).
25 Although Heck v. Humphrey, 512 U.S. 477 (1994), usually precludes a § 1983 case
when the plaintiff’s state court conviction or sentence has not been overturned, there is
an exception when habeas relief is no longer available, but a plaintiff “timely pursu[ed] …
[previously] available habeas relief …. Even so, … relief from Heck ‘affects only former
prisoners challenging loss of good-time credits, revocation of parole or similar matters,’
not challenges to an underlying conviction.” 	Guerrero v. Gates, 442 F.3d 697, 705 (9th
Cir. 2006) (quoting Nonette v. Small, 316 F.3d 872, 878 n.7 (9th Cir. 2002)).
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B. 	Parole Officers
Mr. Nordlund is cautioned that parole officers have absolute quasi-
judicial immunity when they act in their judicial capacity in the context of parole
proceedings.26 And it is well established that witnesses, including parole officers,
who testify in state or federal court proceedings are immune from damages.27
Thus, to the extent Parole Officers Beesley and Tigner’s “false accusations” were
made in their judicial capacities in the context of parole proceedings, or as
witnesses at a parole hearing, they are immune from liability.28
However, parole officers are “not entitled to absolute immunity when
investigating 	parole 	violations, 	ordering 	the 	issuance 	of 	a 	parole 	hold 	or
orchestrating 	a 	parolee’s 	arrest, 	or 	recommending 	initiation 	of 	revocation
proceedings.”29 Immunity is thus unclear.
C. 	Parole Board Members
The Ninth Circuit has held that “parole board officials are entitled to
absolute immunity from suits by prisoners for actions taken when processing
26 See Bermudez v. Duenas, 936 F.2d 1064, 1066 (9th Cir. 1991) (per curiam).
27 See Briscoe v. LaHue, 460 U.S. 325, 329–46 (1983); Holt v. Castaneda, 832 F.2d 123,
127 (9th Cir.1987), cert. denied, 484 U.S. 979 (1988).
28 Docket 1 at 5.
29 Jones v. Nevada Board of Parole Commissioners, No. 3:21-cv-00004-MMD-WGC,
2021 WL 2406879, slip op. at *2 (D. Nev. May 18, 2021) (citing Swift v. California, 384
F.3d 1184, 1189 (9th Cir. 2004)).
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parole applications.”30 	Parole board members serve in a quasi-judicial function.
Thus, like judges, they are entitled to absolute immunity for actions taken with
respect to parole decisions,31 such as the actions challenged by Mr. Nordlund.
D. 	Possible State Claim
Although Mr. Nordlund may not have a cognizable federal claim at this
time, he may be able to assert a claim in the state courts. In Alaska, “[t]he elements
of the false arrest-imprisonment tort are (1) a restraint upon the plaintiff’s freedom,
(2) without proper legal authority.”32 	The Supreme Court for the State of Alaska
explains that “[f]alse arrest and false imprisonment are not separate torts. A false
arrest is one way to commit false imprisonment; since an arrest involves restraint,
it always involves imprisonment.”33 	The State of Alaska itself, however, may be
immune from liability under Alaska Stat. § 09.50.250(3).34
30 Sellars v. Procunier, 641 F.2d 1295, 1302 (9th Cir. 1981); see also Brown v. Cal. Dep't
of Corr., 554 F.3d 747, 751 (9th Cir. 2009).
31 Sellars, 641 F.3d at 1302–03.
32 	Yi v. Yang, 282 P.3d 340, 345 n.7 (Alaska 2012) (quoting Waskey v. Municipality of
Anchorage, 909 P.2d 342, 345 (Alaska 1996)) (further citation omitted).
33 Prentzel v. State, Dept. of Public Safety, 169 P.3d 573, 582 n.17 (Alaska 2007) (quoting
Waskey, 909 P.2d at 345) (further citation and internal quotation marks omitted).
34 	Alaska Stat. § 09.50.250 (“A … tort claim against the state … may not be brought if
the claim … (3) arises out of assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference
with contract rights”); but see Kinegak v. State, Dept. of Corrections, 129 P.3d 887, 893
(Alaska 2006) (“This decision should not be read as an endorsement of DOC’s conduct,
which the superior court described as ‘abhorrent,’ and which would be even more
abhorrent in a case involving a more significant miscalculation of a prisoner’s sentence.
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THEREFORE, IT IS HEREBY ORDERED:
1. 	On or before, July 30, 2021, Mr. Nordlund shall file either one
of the following:
a. 	Notice to the Court, attaching documentation showing
that he no longer has any claims pending in the state court regarding the
issues he currently brings in this case; OR
b. 	Notice 	of 	Voluntary 	Dismissal 	without 	prejudice 	to
bringing appropriate claims in state court.
2. 	If Mr. Nordlund does not file either a Notice to the Court or a
Notice of Voluntary Dismissal on or before July 30, 2021, this case will be
DISMISSED without further notice to him.
3. 	The Application to Waive Prepayment of the Filing Fee, at
Docket 3, is DEFERRED until Mr. Nordlund fully complies with this Order, or until
the time to comply has run.
It should also not be read as making the state immune in all cases where its tortious acts
could have been pleaded as one of the torts enumerated in Alaska Stat. § 09.50.250(3).
There may be cases where the state’s negligence constitutes a truly distinct wrong, even
though the victim was injured because of an act constituting an enumerated tort.”) (citation
omitted).
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4. 	At all times, Mr. Nordlund shall keep the Court informed of any
change of address. 	Such notice shall be titled “Notice of Change of Address.”35
The Notice shall contain only information about the change of address, and its
effective date. The Notice shall not include requests for any other relief. Failure
to file the Notice may result in the dismissal of the action for failure to prosecute
under Rule 41(b) of the Federal Rules of Civil Procedure.
5. 	Each 	litigant 	is 	responsible 	for 	keeping 	a 	copy 	of 	each
document filed with the Court. When you send a document to the Court, you will
receive a Notice of Electronic Filing (“NEF”) from the Court that will inform you of
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.
6. 	No party shall have any ex parte communication with a District
Court Judge or Magistrate Judge of this Court about the merits of this action. This
means that parties cannot communicate with any judge without the presence
and/or knowledge and consent of the other parties. 	For example, Mr. Nordlund
35 See Local Civil Rule 11.1(b) (requiring a notice of change of address to be filed “[s]elf-
represented parties must keep the court and other parties advised of the party’s current
address and telephone number.”).
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may not write letters to, or call, a judge directly. 	Any request for action by the
Court during these proceedings must be filed with the Clerk of Court as a motion.
7. 	A 	motion 	should 	contain 	the 	information 	identified 	in 	the
caption of this Order and should be titled “Motion for (add the relief requested).”
In a motion, a party should state specifically and concisely what he or she wants,
so that the Court understands what the party is requesting. 	This Court’s Local
Civil Rule 7.4 requires that motions be filed with a proposed order that the Court
can issue, if the motion is granted. The proposed order helps to clarify what the
moving party is asking the Court to do.
8. 	All documents filed with the Clerk of Court must contain an
original signature, and must be mailed to the Court at the following address:
U.S. District Court
222 West 7th Avenue, #4
Anchorage, Alaska 99513
9. 	The 	Clerk 	of 	Court 	is 	directed 	to 	send 	the 	following 	to
Mr. Nordlund with this Order: (1) form PS21, Notice to the Court; (2) PS09, Notice
of Voluntary Dismissal; (3) form PS23, Notice of Change of Address; and
(4) PS15, Motion.
Dated at Anchorage, Alaska this 29th day of June, 2021.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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