Copeland v. Volland

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ROGER DAIL COPELAND,
Plaintiff,
v.
SUPERIOR COURT JUDGE
PHILLIP VOLLAND,
Defendant.
Case No. 3:21-cv-00262-SLG-KFR
REPORT & RECOMMENDATION1
On December 2, 2021, Roger Dail Copeland, a self-represented prisoner
(hereinafter “Plaintiff”), filed a Prisoner’s Complaint under the Civil Rights
Act, 42 U.S.C. § 1983, along with a civil cover sheet and Prisoner’s Application
to Waive Prepayment of the Filing Fee.2
1 Under 28 U.S.C. § 636(b)(1), a District Court may designate a magistrate judge to hear and
determine any pretrial matter pending before the Court. Under the same provision, a
district court judge may reconsider any pretrial matter where it has been shown the
magistrate judge’s order is clearly erroneous or contrary to law. Within fourteen days after
being served with a copy of a magistrate judge’s order, any party may serve and file written
objections. Objections and responses shall not exceed five (5) pages in length and shall not
merely reargue positions presented in motion papers. Rather, objections and responses
shall specifically designate the findings or recommendations objected to, the basis of the
objection, and the points and authorities in support. A District Court judge may accept,
reject, or modify, in whole or in part, the magistrate judge’s order. 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. See Hilliard v.
Kincheloe, 796 F.2d 308 (9th Cir. 1986).
2 Dockets 1–3.
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The Court now screens Plaintiff’s Complaint 	in accordance 	with 28
U.S.C. §§ 1915(e) and 1915A and recommends this action be DISMISSED
WITH PREJUDICE.
SCREENING REQUIREMENT
Federal law requires a court to conduct an initial screening of a civil
complaint filed by a self-represented prisoner. 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.3
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.”4 	In
conducting 	its review, a court must 	liberally construe 	a self-represented
plaintiff’s pleading and give the plaintiff the benefit of the doubt.5 	Before a
3 28 U.S.C. § 1915A.
4 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)).
5 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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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.6 	Futility
exists when the “allegation 	of other facts consistent 	with the challenged
pleading could not possibility cure the deficiency[.]”7
DISCUSSION
I. 	Complaint
Plaintiff 	alleges 	that 	on 	September 	14, 	2009, 	Defendant 	Volland
violated his right to due process by denying his request for appeal.8 	Plaintiff
alleges that during a court hearing, he expressed a “verbal intent to file an
appeal.”9 	Plaintiff further alleges that Defendant Volland stated, “I currently
sit on the appeals panel so I’m denying your request for appeal,” and later
stated, “if you don’t like my decision then sue me.”10 	Plaintiff asserts that
these actions created a conflict of interest and a violated his right to appeal. 11
For relief, Plaintiff requests (1) $100,000.00 in damages; (2) $10,000.00 in
6 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)).
7 See Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th
Cir. 1986).
8 Docket 1 at 3.
9 Docket 1 at 3.
10 Docket 1 at 3.
11 Docket 1 at 3.
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punitive damages; (3) an order vacating the judgment; and (4) a declaration
that the “judgment is void.”12
The Court takes judicial notice of Plaintiff’s referenced state criminal
matter, 	State 	of 	Alaska 	v. 	Roger 	Dail 	Copeland, 	Sr., 	Case 	No. 	3AN-07-
09824CR.13 	Alaska Superior Court Judge Volland presided over this action
from Plaintiff’s Superior Court arraignment through sentencing.14 	In that
case, the State of Alaska charged Plaintiff with six counts of sexual abuse and
sexual assault of a minor.15 	After a jury trial, Plaintiff was convicted of two
felony counts relating to the sexual abuse of a minor.16
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
12 Docket 1 at 5.
13 See supra note 8; 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.
14 State of Alaska v. Roger Dail Copeland, Sr., Case No. 3AN-07-09824CR, see docket
generally.
15 State of Alaska v. Roger Dail Copeland, Sr., Case No. 3AN-07-09824CR, Party
Charge Information, Counts 1–6.
16 State of Alaska v. Roger Dail Copeland, Sr., Case No. 3AN-07-09824CR, Party
Charge Information, Counts 1–2; see also Event Entry 07/24/2009 “Sentencing:
Superior Court, Case Disposed.”
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method for vindicating rights [found] elsewhere.”17 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.”18
A defendant has acted under color of state law where he or she 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.’” 19
Additionally, a defendant must be eligible for suit.
A state court judicial officer is a state actor. 	However, “[j]udges and
those performing judge-like functions are absolutely immune from damage
liability for acts performed in their official capacities.”20 	Moreover, judicial
immunity extends to preclude prospective injunctive relief against a state
17 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443
U.S. 137, 144 n.3 (1979)).
18 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
19 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).
20 Ashelman v. Pope, 793 F.2d 1072, 1075-76 (9th Cir. 1986) (citations omitted) (in
determining if an action is judicial, 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.”). 	“These factors are to be construed generously in
favor of the judge and in 	light of the policies underlying 	judicial immunity.”
Ashelman, 793 F.2d at 1076.
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court judge for acts or omissions made in that judge’s official capacity.21 	This
judicial 	immunity 	is 	immunity 	from 	lawsuit, 	not 	just 	from 	ultimate
assessment of damages, and it cannot be overcome by allegations of bad faith
or malice.22
Defendant Volland is a judicial officer in the Alaska Superior Court and
was the presiding judge in Plaintiff’s state court criminal matter. 	Plaintiff’s
Complaint seeks damages and injunctive relief due to the alleged statements
made by Defendant during a court hearing. 	The alleged judicial ruling by
Judge Volland denying Plaintiff’s appeal about which Plaintiff complains, and
Judge Volland’s comments 	related to that ruling, were acts performed by
Judge Volland in his official capacity as a judicial officer. 	Defendant Volland
is therefore immune as a matter of law and cannot be sued under 42 U.S.C. §
1983.
CONCLUSION
Plaintiff fails to plead the requirements of a civil rights action under 42
U.S.C. § 1983 and therefore fails to state a claim upon which relief may be
21 42 U.S.C. § 1983.
22 Mireles v. Waco, 502 U.S. 9, 11 (1991) (citing Mitchell v. Forsyth, 472 U.S. 511, 526
(1985); Pierson v. Ray, 386 U.S. 547, 554 (1967)).
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granted. 	No defendant 	may be substituted 	under 	these facts; 	therefore,
amendment is futile.23
IT IS THEREFORE RECOMMENDED:
1. 	This action should be DISMISSED WITH PREJUDICE for failing to state a
claim upon which relief may be granted and the futility of amendment.
2. All pending motions should be DENIED AS MOOT.
3. A dismissal under these circumstances should 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).24
4. The Clerk of Court should issue a final judgment.
DATED this 8th day of March, 2022 at Anchorage, Alaska.
Kyle F. Reardon___________________
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
23 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.”).
24 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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