Moses v. Nesbett Courthouse et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
STEVEN R. MOSES,
Plaintiff,
v.
NESBETT COURTHOUSE,
Defendant.
Case No. 3:21-cv-00226-JMK
ORDER OF DISMISSAL
On 	October 	10, 	2021, 	Steven 	R. 	Moses, 	a 	self-represented 	prisoner
(hereinafter “Plaintiff”), sent a letter to the Clerk of Court along with several state
court forms and extensive informal briefing to the Court, which the Clerk of Court
docketed as “Motion to Transfer to District Court In the Matter of the Application of
Post-Conviction Relief of Steven R. Moses.”1 	On October 19, 2021, the Court
issued an Order Re: Deficient Filing providing instructions on how to file a
complaint in a civil action and an application to waive prepayment of the filing fee.2
Further, the Court’s Order instructed Plaintiff on the limits of subject matter
jurisdiction and that, “Generally, federal district courts cannot accept transfers of
state court cases in the interests of comity and abstention.”3 	On November 3,
2021, Plaintiff filed a Prisoner’s Complaint under the Civil Rights Act, 42 U.S.C.
1 Docket 1.
2 Docket 2.
3 Docket 2 at 2.
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§ 1983, along with a Prisoner’s Application to Waive Prepayment of the Filing Fee.4
Subsequently, Plaintiff filed numerous additional documents, most commonly titled
with “USCS Fed Rules Evid R 201(c)(2),”5 and others titled “Post-Conviction Relief
Affidavit,”6 “Writ of Mandamus – 28 USC 1361,”7 “Certificate of Service,”8 and
“Notice of Intent – US Supreme Court Review ‘Writ of Error.’”9 Additionally, Plaintiff
filed a motion titled “Request for Representation Through the United States
Attorney’s Office Under [Title 25 USC § 175].”10
On February 2, 2022, the Court screened the Complaint in accordance with
28 U.S.C. §§ 1915(e) and 1915A.11 	The Court dismissed the Complaint for
seeking monetary damages from defendants who are immune from suit and for
failing to state a claim.12 The Court granted leave to amend Claim 5, which failed
Rule 8 pleading standards, but may have concerned an infringement of Plaintiff’s
right to send outgoing mail from his correctional institution.13 	The Court also
denied the motion titled “Request for Representation Through the United States
Attorney’s Office Under [Title 25 USC § 175].”14
4 Dockets 3 & 4.
5 Dockets 5-9, 12-13, 15-17, 19-24, 26-31.
6 Docket 11.
7 Docket 14.
8 Docket 25.
9 Docket 32.
10 Docket 10.
11 Docket 33.
12 Docket 33 at 16.
13 Docket 33 at 5, 10–12.
14 Docket 33 at 17.
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Plaintiff 	has 	filed 	a 	First 	Amended 	Complaint,15 	another 	“Request 	for
Representation Through the United States Attorney’s Office,”16 14 additional
related documents under the guise of “judicial notice,”17 a certificate of service to
numerous state, federal, and private 	entities 	presumably 	regarding his First
Amended Complaint,18 and a “Notice of Direct Appeal to the United States
Supreme Court” directed at the Nesbett Courthouse, Attorney General for the State
of Alaska, and the Office of the Governor of the State of Alaska.19
The Court now screens Plaintiff’s First Amended Complaint in accordance
with 28 U.S.C. §§ 1915(e) and 1915A. 	The Court shall not consider any of the
additional documents filed with the Court, because that is not proper procedure to
amend a complaint.20
SCREENING REQUIREMENT
Federal law requires a court to conduct an initial screening of a civil
complaint filed by a self-represented prisoner or litigant. 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.21
15 Docket 38.
16 Docket 39.
17 Dockets 34–36, 41–48, 51–53.
18 Docket 40.
19 Docket 49.
20 See Fed. R. Civ. P. 15(a); see also Local Civil Rule 15.1.
21 28 U.S.C. § 1915A.
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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.”22 	In conducting its
review, a court must liberally construe a self-represented plaintiff’s pleading and
give the plaintiff the benefit of the doubt.23 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.24 Futility exists when “the allegation of other facts consistent with
the challenged pleading could not possibly cure the deficiency[.]”25
DISCUSSION
I. 	First Amended Complaint
Plaintiff names Nesbett Courthouse, “a branch of the Alaska Court System,”
and the Alaska Court System, “a [Statewide] entity operating Nesbett Courthouse,”
as defendants in their official capacities.26 Plaintiff alleges that April 29, 2020, he
completed and submitted a Release of Bail form in his Alaska State Court criminal
22 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)).
23 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)).
24 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)).
25 See Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th
Cir. 1986).
26 Docket 38 at 2.
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cases 3AN-17-05549CR and 3AN-19-10541CR.27 	He further alleges Nesbett
Courthouse returned the form to him with a Criminal Deficiency Memo citing to
Alaska Rule of Criminal Procedure 50 and Alaska Rule of Civil Procedure 81(c).28
Plaintiff then states:
Such ‘supporting facts’ are easily distinguished by the
DOCKET HISTORY and need not be subject to further
‘brief’ from this point forward within this Federal Petition.
FROM THIS POINT FORWARD IS CASE LAW THAT IS
SUPPORTIVE OF [ACCESS TO COURT] WITHIN THE
UNITED 	STATES 	COURT 	SYSTEM 	OF 	FEDERAL
COURTS AND IS BINDING UPON THIS COURT WITH
REGARDS TO [1st AMENDMENT § 1478] – WHICH
WAS NOT ADDRESS WITHIN THE FEBRUARY 2, 2022
SCREENING ORDER.29
The following 11 pages of Plaintiff’s Complaint are excerpts of case law, unrelated
district court orders, statutes, and references to “1st Amendment § 1478.”30 	In
brief summary, Plaintiff alleges that Defendants issued Criminal Deficiency Memos
that applied Alaska Rule of Criminal Procedure 50 and Alaska Rule of Civil
Procedure 81(c), which require represented parties file motions and pleadings
through counsel, and therefore violated his rights to access the courts under the
First and Fourteenth Amendments of the U.S. Constitution.31
For relief, Plaintiff requests (1) damages of $3,000.00 per day per case 3AN-
17-05549CR and 3AN-19-10541CR and $2,000.00 per day for 3AN-18-00120CN;
27 Docket 38 at 3.
28 Docket 38 at 3.
29 Docket 38 at 3.
30 See Docket 38 at 4–13.
31 See Docket 38 3–13.
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(2) punitive damages of $300 million dollars (firm); (3) an to “TERMINATE Criminal
Pursuit due to ‘multiple violations’ of ‘CLEARLY ESTABLISHED’ Constitutional
Rights 	executed 	by 	[1st 	Amendment 	§ 	1478]”; 	(4) a 	declaration 	that 	“[1st
Amendment § 1478] PREEMPTS Criminal Rule 50 & Civil Rule 81(c)”; and (5) that
“ALASKA COURT SYSTEM – AMEND Criminal Rule 50 & Civil Rule 81(c) to
comply with CONSTITUTIONAL RIGHTS for any PARTY of ALASKA COURT
SYSTEM.”32
The Court takes judicial notice33 of Plaintiff’s ongoing state criminal matters,
State of Alaska v. Steven R. Moses, Case No. 3AN-17-05549CR34 and State of
Alaska v. Steven R. Moses, Case No. 3AN-19-10541CR.35 	Further, the Court
takes judicial notice36 of Plaintiff’s post-conviction proceeding In the Matter of:
Steven R. Moses v. State of Alaska, Case No. 3AN-21-07436CI.37
32 Docket 3 at 16.
33 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.” B LACK ’S L AW DICTIONARY (11th ed. 2019); 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.”) (internal quotation marks and citation
omitted); see also Fed. R. Evid. 201.
34 State of Alaska v. Steven R. Moses, Case No. 3AN-17-05549CR (“Party Charge
Information: 	Charge #8 Probation/Parole Violation PTPR New Charge & Technical
Violation – Filed in Anchorage” and “Event: 	Adjudication Hearing: 	Superior Court
02/15/2022”).
35 State of Alaska v. Steven R. Moses, Case No. 	3AN-19-10541CR (Four counts of
felony and misdemeanor assault) (“Event: 	Trial Setting Conference: Superior Court
02/23/2022).
36 Supra note 33.
37 In the Matter of: 	Steven R. Moses v. State of Alaska, Case No. 3AN-21-07436CI
(Docket entry: “08/27/21 Application for Post-Conviction Relief (Criminal Rule 35.1)
Criminal Case Number: 3AN-17-05549CR”).
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The Court notes that Plaintiff mentions Case No. 3AN-18-00120CN in his
request for relief. 	No mention of this case number exists elsewhere in the
Complaint.38 CN case files are confidential with access only available to the parties
at the appropriate Alaskan courthouse.39 	Therefore, the Court takes no judicial
notice regarding this state court proceeding.
II. 	Civil Rights Claims Under 42 U.S.C. § 1983
42 U.S.C. § 1983 permits an individual to sue for a violation of constitutional
or civil rights in federal court. 42 U.S.C. § 1983 is a federal statute that “is not itself
a source of substantive rights,” but provides “a method for vindicating rights [found]
elsewhere.”40 	To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must
“plead that (1) defendants acting under color of state law (2) deprived plaintiff of
rights secured by the federal Constitution or federal statutes.”41
a. 	42 U.S.C. § 1983 requires a defendant to be a state actor
42 U.S.C. § 1983 requires that a defendant must be “acting under the color
of state law.”42 	A defendant has acted under color of state law where he or she
38 See generally Docket 38.
39 Alaska 	Court 	System, 	CourtView 	Online Information—Case Types, 	available at
https://courts.alaska.gov/trialcourts/cvinfo.htm#removed (last accessed May 31, 2022).
40 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)).
41 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
42 West v. Atkins, 487 U.S. 42, 49 (1988).
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has “exercised power ‘possessed by the virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.’”43
States or state agencies are not persons under 42 U.S.C. § 1983. 	States
have sovereign immunity due to the Eleventh Amendment of the U.S. Constitution,
which makes them immune from suit unless that immunity is waived.44 “States or
governmental 	entities 	that 	are 	considered 	‘arms 	of 	the 	State’ 	for 	Eleventh
Amendment purposes” are not ‘persons’ under [Section] 1983.”45 	The Alaska
Court System is the judicial “arm” of the State of Alaska, established by Article IV
of The Constitution of the State of Alaska. 	The Nesbett Courthouse is a building
operated by the Alaska Court System and houses operations of the Anchorage-
based Third Judicial District of the Alaska Superior Court.46 	A building is not
person and cannot act under the color of state law. 	The Alaska Court System,
including the Nesbett Courthouse, are arms of the state and not considered
persons under § 1983.
43 West, 487 U.S. at 49 (internal citations omitted); see also Tongol v. Usery, 601 F.2d
1091, 1097 (establishing that when state officials are administering a federal funded
program, the state officials are still acting under the color of state law).
44 In re New York, 256 U.S. 490, 497 (1921) (holding federal courts may not hear suits
against a state brought by their own citizens, “because of the fundamental rule of which
the [Eleventh] Amendment is but an exemplification.”); see also Hans v. Louisiana, 134
U.S. 1, 15 (1890).
45 Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997) (quoting Will
v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989)).
46 Alaska Court System, Court Directory—Anchorage, https://courts.alaska.gov/courtdir/
3an.htm (last accessed May 31, 2022).
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b. 	A state actor must violate a pre-existing federal constitutional or
statutory right
42 U.S.C. § 1983 does not confer federal constitutional or federal statutory
rights. 	Instead, it provides a mechanism for remedying violations of pre-existing
federal rights.47 Constitutional rights are those conferred by the U.S. Constitution
to individual citizens. Section 1983 can be used as a mechanism for enforcing the
rights guaranteed by a particular federal statute only if (1) the statute creates
enforceable rights and (2) Congress has not foreclosed the possibility of a § 1983
remedy for violations of the statute in question.48 	Section 1983 does not provide
a mechanism for remedying alleged violations of state law.49
The United States Supreme Court recognized “that the right to access the
courts is an aspect of the First Amendment right to petition the Government for
redress of grievances.”50 However, neither the First Amendment rights to speech,
nor petition are absolute.51 	“Although prisoners have a constitutional right of
access to the courts, the standard for access to the courts is ‘meaningful access'
47 Graham v. Connor, 490 U.S. 386, 393–94 (1989).
48 Blessing v. Freestone, 520 U.S. 329, 340–41 (1997); Dittman v. California, 191 F.3d
1020, 1027–28 (9th Cir. 1999).
49 Galen v. Cty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007).
50 Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 741, 103 S. Ct. 2161, 2169,
76 L. Ed. 2d 277 (1983) (relying on California Motor Transp. Co. v. Trucking Unlimited,
404 U.S. 508, 508, 92 S. Ct. 609, 611, 30 L. Ed. 2d 642 (1972)).
51 Bill Johnson's Restaurants, Inc., 461 U.S. at 743 (“Just as false statements are not
immunized by the First Amendment right to freedom of speech, baseless litigation is not
immunized by the First Amendment right to petition.”) (internal citations omitted).
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rather than total or unlimited access. 	Certainly, there is no requirement that local
[or state procedural] rules be suspended for every pro se plaintiff.”52
Additionally, prisoners have a unique First Amendment right to access the
courts.53 Two lines of case law has developed addressing these prisoner claims.
First, the United States Supreme Court created the “right to assistance” cases,
where a prisoner must be given sufficient tools to challenge their sentences or
conditions of confinement.54 Second, “active interference” cases developed which
prohibit a prison official or policy from impeding a prisoner’s ability to litigate a claim
with a reasonable basis in law or fact.55 	Plaintiff appears to rely on a variety of
case law, including many cases from this unique body of law. 	However, as a
threshold matter, the body of prisoner civil rights case law that Plaintiff relies upon
is not factually analogous to Plaintiff’s allegations.56
Here, Plaintiff disagrees with the application of the Alaska Rules of Criminal
and Civil Procedure in his attempted state court filings. 	Plaintiff attacks the
application of those rules, which were established to ensure consistent, fair, and
52 Fixel v. United States, 737 F. Supp. 593, 596 (D. Nev. 1990).
53 Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 2017); see also Rhodes v. Robinson,
408 F.3d 559, 567 (9th Cir. 2005).
54 Lewis v. Casey, 518 U.S. 343, 355 (1996); see also Bounds v. Smith, 430 U.S. 817,
828, (1977); Wolff v. McDonnell, 418 U.S. 539, 579-80 (1974); Johnson v. Avery, 393 U.S.
483, 490 (1969).
55 See Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011) (holding “prisoners have a
right under the First and Fourteenth Amendments to litigate claims challenging their
sentences of the conditions of their confinement without active interference by prison
officials.”).
56 See generally supra notes 53–55.
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speedy resolutions to criminal and civil matters in Alaska state courts.57 	Despite
the lack of supporting exhibits, the Court deduces from the allegations and the
referenced state court dockets that Plaintiff’s filings were restricted, because he
was represented by counsel. 	Both Rule 50 of Alaska Criminal Procedure and
Rule 81 of Alaska Civil Procedure govern that once a party is represented by
counsel, only counsel may file on that party’s behalf. These rules are a function of
basic court management and do not facially impede a litigant’s fundamental right
to petition. 	A litigant is not entitled to total or unlimited access to a court; and the
First Amendment should not be used as a cudgel to brow beat state court
procedural rules. 	Accordingly, Plaintiff does not have a viable First Amendment
access to the courts claim.
CONCLUSION
Plaintiff names defendants who are immune from suit and alleges facts that
do not, and cannot, fulfill a First Amendment access to the courts claim. 	No
defendants could be substituted under these facts; nor could the allegations be
differently plead to satisfy a constitutional violation. Therefore, the Court finds that
further amendment would be futile, and the First Amended Complaint will be
dismissed without leave to amend.58
IT IS THEREFORE ORDERED:
57 Alaska R. Crim. P. 2; Alaska R. Civ. P. 1.
58 Hartmann v. California Dep't of Corr. & Rehab., 707 F.3d 1114, 1130 (9th Cir. 2013)
(“A district court may deny leave to amend when amendment would be futile.”).
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1. This action shall be DISMISSED WITH PREJUDICE for failing to state a
claim upon which relief can be granted, seeking relief from a defendant
who is immune from suit, and the futility of amendment.
2. All pending motions are DENIED AS MOOT.
3. A dismissal under these circumstances would be a strike as required by
28 U.S.C. § 1915(g) and Lomax v. Ortiz-Marquez, et al., 590 U.S. ___,
140 S. Ct. 172 (2020).59
4. The Clerk of Court shall issue a final judgment.
DATED this 2nd day of June, 2022 at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
UNITED STATES DISTRICT JUDGE
59 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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