McDermott v. Hayes et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DANIEL JOSEF MCDERMOTT,
Plaintiff,
v.
RON HAYES, et al.,
Defendants.
Case No. 3:21-cv-00274-SLG-SAO
SCREENING ORDER AND
REPORT AND RECOMMENDATION REGARDING COMPLAINT
On December 23, 2021, Daniel Josef McDermott (hereinafter “Plaintiff”), a
self-represented prisoner, filed a Prisoner’s Complaint under the Civil Rights Act
42 U.S.C. § 1983, along with a civil cover sheet, a Prisoner’s Application to Waive
Prepayment of the Filing Fee, a Motion to Appoint Counsel, Financial Affidavit CJA
23, and a letter to the U.S. District Court for the District of Alaska.1 On January 11,
2022, Plaintiff filed a Notice to the Court requesting guidance on service, and a
Motion for Leave requesting 30 days to file an amended complaint.2
On March 3, 2022, Plaintiff filed a Motion to Accept Amended Complaint and
Withdraw 	Request 	for 	Court 	Appointed 	Attorney, 	Amended 	Complaint, 	Civil
Coversheet, Application to Waive Filing Fee, and Unissued Summons re All
1 Dockets 1–5, 7.
2 Dockets 8 & 9.
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Defendants.3 On March 8, 2022, the Court issued an Order resolving the motions
at Dockets 3, 4, 8, 9, and 11, and accepting Plaintiff’s First Amended Complaint at
Docket 11-1.4 	Subsequently, Plaintiff filed a Motion Asking the Court to Serve
Each Defendant A Summons and a Letter to the Clerk of Court.5
The Court now screens Plaintiff’s First Amended Complaint in accordance
with 28 U.S.C. §§ 1915(e) and 1915A.
SCREENING REQUIREMENT
Federal law requires a court to conduct an initial screening of a civil
complaint filed by a self-represented prisoner seeking a waiver of the prepayment
of the filing fee. 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.6
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.”7 	In conducting its
3 Docket 11.
4 Docket 12.
5 Dockets 13 & 14.
6 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(a), (b).
7 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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review, a court must liberally construe a self-represented plaintiff’s pleading and
give the plaintiff the benefit of the doubt.8 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.9 	Futility exists when “the allegation of other facts consistent with
the challenged pleading could not possibly cure the deficiency[.]”10
DISCUSSION
As pleaded, Plaintiff has not sufficiently alleged facts that, if proven true,
would state a claim on which relief may be granted. 42 U.S.C. § 1983 has specific
statutory requirements that require a plaintiff’s harm or injury to be caused by a
state actor in violation of a federal constitutional or civil right. 	Accordingly, the
Court dismisses the First Amended Complaint, but grants leave to amend in
accordance with the guidance of this order.
I. 	Allegations
In Claim 1, Plaintiff alleges that on December 17, 2020, Defendant Gilmour
violated his Fifth and Fourteenth Amendment rights and committed libel, slander,
and assault.11 Plaintiff alleges that Defendant Gilmour maliciously procured arrest
8 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)).
9 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)).
10 See Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.
1986).
11 Docket 11-1 at 4.
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warrants in state court criminal cases 3AN-20-09753CR and 3AN-20-10126CR,12
and coerced the judge by providing insufficient facts to establish probable cause.13
Plaintiff alleges Defendant Gilmour’s affidavit used to obtain the arrest warrant in
3AN-20-09753CR: (1) mispresented him as being investigated for a violent crime;
(2) mislead the judge to believe he was “identified as a suspect by a constitutionally
acceptable identification procedure”; (3) maliciously attempted to obtain a search
of his cell phone; (4) incorrectly stated Plaintiff’s criminal history relating to thefts;
and (5) incorrectly connects allegations of other of thefts to Plaintiff.14 	Plaintiff
alleges that Defendant Gilmour added to his affidavit to improperly obtain search
warrant 	3AN-20-04826SW 	for 	a 	red 	Ford 	Focus.15 	Plaintiff 	further 	alleges
Defendant Gilmour used the same “conclusory allegations, coercing the trial judge
to grant a second arrest warrant” for state court criminal case 3AN-20-10126CR.16
Additionally, 	Plaintiff 	alleges 	that 	the 	“unconstitutional 	identification” 	caused
criminal charges to be filed in state court criminal case 3PA-20-02790CR.17
Plaintiff also alleges that upon execution of the arrest warrant, he was taken
to the “Trooper post” and unconstitutionally interrogated.18 Plaintiff further alleges
Defendant Gilmour unconstitutionally searched Plaintiff’s apartment after Plaintiff’s
12 Docket 11-1 at 6.
13 Docket 11-1 at 4–5.
14 Docket 11-1 at 4.
15 Docket 11-1 at 5.
16 Docket 11-1 at 5.
17 Docket 11-1 at 6.
18 Docket 11-1 at 5.
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arrest.19 Lastly, Plaintiff alleges that Defendant Gilmour committed “libel, slander
and assault” by asking Plaintiff’s neighbor if Plaintiff had sold crab legs, showed
the neighbor surveillance footage, and stated to the neighbor that Plaintiff was a
suspect in shoplifting cases.20
In Claim 2, Plaintiff alleges that on December 18, 2020, Defendant Gilmour
violated his Fourth and Fourteenth Amendment rights to be free from unreasonable
search and seizure. Plaintiff alleges that Defendant Gilmour aided and abetted in
the illegal search and seizure of Plaintiff’s cell phone, as described in United States
v. Sam,21 by taking the phone from Defendant’s pocket, refusing to return it, and,
subsequently, took measures to search the contents of the phone without a
warrant.22 	Plaintiff alleges Defendant Gilmour seized his hat, shoes, and wallet
without 	a 	warrant.23 	Plaintiff 	alleges 	Defendant 	Gilmour 	illegally 	searched
Plaintiff’s apartment by conducting the search after Plaintiff’s arrest but without a
search warrant.24 	Finally, Plaintiff alleges Defendant Gilmour aided and abetted
in the “pretextual impoundment,” as described in United States v. Woodard,25 of a
red Ford Focus because the vehicle was on private property and the owner did not
consent to the impoundment.26
19 Docket 11-1 at 5.
20 Docket 11-1 at 6.
21 United States v. Sam, No. CR19-0115-JCC, 202 U.S. Dis. Lexis 87143, 2020 WL
2705415, at *1 (W.D. Wash. May 18, 2020).
22 Docket 11-1 at 7.
23 Docket 11-1 at 8.
24 Docket 11-1 at 8.
25 United States v. Woodard, 5 F.4th 1148 (10th Cir. 2021).
26 Docket 11-1 at 9.
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In Claim 3, Plaintiff alleges that on December 18, 2020, Defendant Gilmour
violated his Sixth and Fourteenth Amendment rights.27 	Plaintiff alleges that
Defendant Gilmour and other officers violated an arrest warrant issued in state
case number 3AN-20-09753CR by bringing Plaintiff to the Trooper post instead of
jail when the arrest warrant stated: “You are commanded to arrest the defendant
and bring the defendant to the nearest judicial officer without any…”28 	Plaintiff
further alleges Defendant Gilmour violated his right to counsel by interrogating him
without an attorney present.29
In Claim 4, Plaintiff alleges that on December 18, 2020, Defendant Hayes
violated his Fourth and Fourteenth Amendment rights to be free from unreasonable
searched and seizure.30 Plaintiff alleges Defendant Ron Hayes illegally seized and
searched Plaintiff’s cellphone by prohibiting Plaintiff from using his phone without
“intruding on the curtilage of my ‘face time call.’”31 Plaintiff alleges that Defendant
Hayes colluded with Defendant Gilmour in the execution of the arrest warrant
issued in state case number 3AN-20-09753CR.32 Plaintiff alleges that Defendant
Hayes violated the arrest warrant issued in state case number 3AN-20-09753CR
by assisting in the transportation of Plaintiff to the Trooper post instead of jail.33
Plaintiff alleges that Defendant Hayes assisted in the “pretextual impoundment”
27 Docket 11-1 at 11.
28 Docket 11-1 at 12.
29 Docket 11-1 at 12.
30 Docket 11-1 at 13.
31 Docket 11-1 at 13.
32 Docket 11-1 at 13.
33 Docket 11-1 at 13.
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and illegal search of the red Ford Focus.34 	Plaintiff further alleges Defendant
Hayes assisted in the seizure of Plaintiff’s hat, shoes, and wallet.35 Plaintiff further
alleges Defendant Hayes assisted in the search of Plaintiff’s apartment without a
warrant.36
In Claim 5, Plaintiff alleges that on December 18, 2020, Defendant Hayes
committed libel, slander, and assault, by accusing Plaintiff as a suspect in alleged
shoplifting offenses.37 Plaintiff alleges Defendant Hayes colluded with Defendant
Gilmour to obtain the arrest warrant in state case number 3AN-20-09753CR.38
Plaintiff alleges Defendant Hayes and other officers did not conduct a constitutional
identification procedure when accusing Plaintiff as a suspect.39
In Claim 6, Plaintiff alleges that on December 18, 2020, Defendant Hayes
violated his Sixth and Fourteenth Amendment rights.40 	Plaintiff alleges that
Defendant Hayes “assisted in the unconstitutional act of transporting me to the
Trooper post for an illegal interrogation, being that, the police are not permitted to
interrogate a criminal defendant when a case number is assigned.”41 	Plaintiff
further alleges Defendant Hayes colluded with Defendant Gilmour “to execute the
34 Docket 11-1 at 13.
35 Docket 11-1 at 13.
36 Docket 11-1 at 13.
37 Docket 11-1 at 16.
38 Docket 11-1 at 16.
39 Docket 11-1 at 16.
40 Docket 11-1 at 17.
41 Docket 11-1 at 17.
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arrest warrant the very next morning, after the warrant was granted the end of the
prior business day.”42
In Claim 7, Plaintiff alleges that on or about December 15, 2020, through
December 18, 2020, Defendant Helen Haverty committed libel, slander, and
assault.43 	Plaintiff alleges that Defendant Haverty stalked his residence by
performing routine checks of the location.44 	Plaintiff alleges that Defendant
Haverty left voicemail messages with his landlords labeling him as a shoplifting
suspect.45 	Plaintiff further alleges that Defendant Haverty “aided and [abetted] in
the investigation” and did not perform “any kind of constitutional identification
procedure 	that 	identified 	me 	as 	a 	confirmed 	suspect 	of 	alleged 	shoplifting
offenses.”46
In 	Claim 	8, 	Plaintiff 	alleges 	on 	February 	16, 	2021, 	Defendant 	Hegg
committed libel, slander, and assault. 	Plaintiff alleges that Defendant Hegg
testified before a grand jury and accused him of being a suspect in shoplifting
offenses that resulted in felony theft charges in State of Alaska v. Daniel Josef
McDermott, 	3PA-20-02790CR. 	Plaintiff 	alleges 	that 	Defendant 	Hegg
misrepresented that he had identified Plaintiff as a suspect in shoplifting offenses
occurring 	on 	December 	8, 	2020.47 	Plaintiff 	alleges 	that 	Defendant 	used
42 Docket 11-1 at 17.
43 Docket 11-1 at 18.
44 Docket 11-1 at 18.
45 Docket 11-1 at 18.
46 Docket 11-1 at 18.
47 Docket 11-1 at 19.
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unconstitutional procedures for identifying Plaintiff as a suspect when Defendant
Hegg reviewed surveillance footage and compared the person in the footage to a
state “O[perator][ ]L[icense] photo.”48 Plaintiff alleges that the surveillance footage
could not show the man because the individual in the footage was wearing a mask
and had a hat on.49 	Plaintiff further claims that Defendant Hegg violated the
Fourteenth Amendment by misrepresenting the dollar amount of the items stolen,
which is a misrepresentation of physical evidence under Miller v. Pate.50
In Claim 9, Plaintiff alleges that on February 16, 2021, Defendant Simmers
committed libel, slander, and assault by testifying before a grand jury. 	Plaintiff
alleges that Defendant Simmers testified that Plaintiff was a suspect in alleged
shoplifting incidents.51 Plaintiff alleges that Defendant Simmers violated Plaintiff’s
rights by including in the complaint filed on December 12, 2020, for case number
3PA-20-02790CR that Plaintiff was a suspect in a shoplifting event that occurred
while the officer already was present at the store for another shoplifting incident.52
Plaintiff alleges Defendant Simmers aided and abetted in the fabrication of the
sales receipt showing the total cost of items allegedly stolen.53 	Plaintiff further
alleges Defendant Simmers did not perform constitutional identification procedures
48 Docket 11-1 at 19.
49 Docket 11-1 at 19.
50 Miller v. Pate, 386 U.S. 1, 7 (1967).
51 Docket 11-1 at 20.
52 Docket 11-1 at 20.
53 Docket 11-1 at 20.
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when Defendant Simmers relied on surveillance footage, eyewitness identification,
and a connection made by a transaction at the liquor department of the store.54
In support of his First Amended Complaint, Plaintiff encloses multiple
exhibits, including: 	(1) an affidavit by Defendant Simmers in Case No. 3PA-20-
02790; (2) a receipt from Three Bears Alaska in Palmer, Alaska; (3) a transcript of
Grand Jury proceedings in Case No. 3PA-20-02790; and (4) an affidavit from
Defendant Gilmour dated December 17, 2020.
Plaintiff 	does 	not 	include 	a 	request 	for 	relief 	in 	his 	First 	Amended
Complaint.55 	Plaintiff’s request for relief is found at the close of his exhibits, and
the Court will liberally construe it as part of the First Amended Complaint.56 Plaintiff
requests $720,000.00 in damages.57
The Court takes judicial notice of the state court criminal proceedings
addressed in the First Amended Complaint.58 	State of Alaska v. Daniel Josef
McDermott, Case No. 3AN-20-09753CR is closed, with all five charges dismissed
pursuant to a plea agreement lodged in State of Alaska v. Daniel Josef McDermott,
Case No. 3AN-20-10126CR.59 	State of Alaska v. Daniel Josef McDermott, Case
54 Docket 11-1 at 20.
55 See Docket 11-1.
56 Docket 11-8 at 8.
57 Docket 11-8 at 8.
58 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.
59 State of Alaska v. Daniel Josef McDermott, Case No. 3AN-20-09753CR, see Party
Charge Disposition and Docket Information dated 01/06/2022.
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No. 3AN-20-10126CR resulted in guilty convictions after guilty pleas on three
Class A misdemeanors of Theft in the Third Degree, Criminal Trespass in the First
Degree, and Driving with a License Cancelled, Revoked, or Suspended for
Criminal Offenses.60 	A restitution hearing is scheduled for July 7, 2022.61 	State
of Alaska v. Daniel Josef McDermott, Case No. 3PA-20-02790CR, two counts of
Class C Felony theft and two misdemeanor charges of trespass, remains ongoing
with a scheduled trial week of August 29, 2022.62 	Mr. McDermott has been
released on bail.63
II. 	Failure to State a Claim
Rule 8 of the Federal Rules of Civil Procedure instructs that a complaint
must 	contain 	a 	“short 	and 	plain 	statement 	of 	the 	claim 	showing 	that 	the
[complainant] is entitled to relief” and “a demand for relief sought.”64 	Rule 8 also
requires that “each allegation must be simple, concise, and direct.”65 A complaint
should set out each claim for relief separately. 	Each claim should identify (1) the
specific harm that Plaintiff is alleging had occurred to him, (2) when that harm
occurred, (3) where that harm was caused, and (4) who he is alleging caused that
specific harm to him. 	Factual allegations may not be speculative but must plead
60 State of Alaska v. Daniel Josef McDermott, Case No. 3AN-20-10126CR, see Party
Charge Disposition.
61 Id., see Events 07/07/2022 “Restitution Hearing.”
62 State of Alaska v. Daniel Josef McDermott, Case No. 3PA-20-02790CR, Party Charge
Information.
63 Id., see Docket Information entries dated 06/06/2022.
64 Fed. R. Civ. P. 8(a).
65 Fed. R. Civ. P. 8(d).
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“factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”66 	While a complaint need not
contain 	every 	precise, 	factual 	detail, 	“unadorned, 	the 	defendant-unlawfully-
harmed-me accusation[s]” are insufficient to state a claim.67 	A complaint is
insufficiently 	plead 	if 	it 	offers 	“naked 	assertions 	devoid 	of 	further 	factual
enhancement.”68 	A complaint that offers legal conclusions or a simple recitation
of the elements of a cause of action does not meet the required pleading standard.
In order to sufficiently plead a claim, Plaintiff needed to explain sufficient
factual details to support the harm and legal violations alleged. 	Plaintiff has not
pleaded sufficient plausible facts that, if proven true, would fulfill required elements
of each legal claim as further explained below.
III. 	42 U.S.C. § 1983
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.”69
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.”70 	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
66 Iqbal, 556 U.S. at 678.
67 Id.
68 Id. (internal citations and quotations omitted).
69 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
70 West v. Atkins, 487 U.S. 42, 49 (1988).
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because 	the 	wrongdoer 	is 	clothed 	with 	the 	authority 	of 	state 	law.’”71 	Law
enforcement officers are persons for the purposes of § 1983.72 Plaintiff has fulfilled
this required element.
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.73 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.74 	Section 1983 does not provide
a mechanism for remedying alleged violations of state law.75
i. 	Implications of a related state court criminal case
When a plaintiff alleges civil rights claims that are related to a state court
criminal action, two important doctrines are implicated: 	(1) abstention under
Younger v. Harris,76 and (2) dismissal without prejudice under Heck v. Humphrey.77
71 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).
72 See generally Rice v. Morehouse, 989 F.3d 1112 (9th Cir. 2021).
73 Graham v. Connor, 490 U.S. 386, 393–94 (1989).
74 Blessing v. Freestone, 520 U.S. 329, 340–41 (1997); Dittman v. California, 191 F.3d
1020, 1027–28 (9th Cir. 1999).
75 Galen v. Cty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007).
76 Younger v. Harris, 401 U.S. 37 (1971).
77 Heck v. Humphrey, 512 U.S. 477, 486–87 (1994).
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(A) 	Younger abstention
The Younger abstention doctrine provides that federal courts may not
generally exercise jurisdiction when doing so would interfere with state judicial
proceedings.78 	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.”79
A federal court “must abstain under Younger if four requirements are met:
(1) a 	state-initiated 	proceeding 	is 	ongoing; 	(2) 	the 	proceeding 	implicates 	an
important state interest; (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.”80 	A 	state
proceeding is ongoing for the purposes of Younger until the state appellate review
process is complete.81
The Court must abstain as to the allegations made in Claims 8 and 9, which
allege that Defendants Hegg and Simmers, as Alaska State Troopers, committed
libel, slander, and assault when testifying before a grand jury that resulted in
78 Younger v. Harris, 401 U.S. 37 (1971).
79 Younger, 401 U.S. at 54.
80 San Jose Silicon Valley Chamber of Commerce v. City of San Jose, 546 F.3d 1087,
1092 (9th Cir. 2008); see also Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d
1048 (9th Cir. 2016).
81 Gilbertson v. Albright, 381 F.3d 965, 969 n.4 (9th Cir. 2004).
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charges being brought in State of Alaska v. Daniel Josef McDermott, Case
No. 3PA-20-02790CR. This proceeding is ongoing and the State of Alaska has an
important state interest in enforcing its laws. Furthermore, Plaintiff has a forum in
Alaska Superior Court to litigate any federal constitutional issues. Though, Plaintiff
pleads Claims 8 and 9 as torts, the practical intent of his pleadings serves to
undermine sworn testimony before a grand jury that issued criminal charges
against him and create interference, or practically enjoin, his ongoing state matter.
Accordingly, if this Court were to exercise jurisdiction over these claims—or likely
any other allegations related to Case No. 3PA-20-02790CR, it would have to
abstain.
(B) 	Heck v. Humphrey bar
If Plaintiff’s state court criminal actions have resulted in a conviction and
sentence, the Court may not be able to hear the claim at all. 	A prisoner, or
convicted person, may not bring a civil rights claim under 42 U.S.C. § 1983 that
collaterally attacks his state court conviction. 	In Heck v. Humphrey, the United
States Supreme Court held that:
[I]n 	order 	to 	recover 	damages 	for 	allegedly
unconstitutional conviction or imprisonment, or for other
harm 	caused 	by 	actions 	whose 	unlawfulness 	would
render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make
such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus . . . . A claim
for damages bearing that relationship to a conviction or
sentence 	that 	has 	not 	been 	so 	invalidated 	is 	not
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cognizable under § 1983. 	Thus, when a state prisoner
seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would
necessarily 	imply 	the 	invalidity 	of 	his 	conviction 	or
sentence; if it would, the complaint must be dismissed
. . . .82
Under this doctrine, when a plaintiff convicted of a state law crime seeks relief in a
§ 1983 suit, the federal district court must evaluate whether a judgment in the
plaintiff’s favor in the § 1983 suit would undermine the validity of the state court
conviction.83 	In practical application, Heck “bars a plaintiff’s action if it would
negate an element of the offense . . . or allege facts inconsistent with the plaintiff’s
conviction[.]84 This rule applies regardless of whether the prisoner seeks damages
or injunctive relief or who the target of the suit is, “if success in that action would
necessarily demonstrate the invalidity of confinement or its duration.”85
The Heck bar requires a criminal judgement or conviction and the absence
of which renders Heck inapplicable.86 This means if the state court criminal actions
resolve in a manner that is not a conviction, such as a dismissal, Heck is not
implicated because there is no underlying conviction.87 	Accordingly, the Court
cannot hear claims related to State of Alaska v. Daniel Josef McDermott, 3AN-20-
10126CR, because his conviction has not been reversed, expunged, declared
82 Heck v. Humphrey, 512 U.S. 477, 486–87 (1994).
83 Lemos v. Cty. of Sonoma, 5 F.4th 979, 983 (9th Cir. 2021).
84 Sanders v. City of Pittsburg, 14 F.4th 968, 970–71 (9th Cir. 2021) (relying on Smith v.
City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) and Beets v. Cnty. of Los Angeles, 669
F.3d 1038, 1046 (9th Cir. 2012).
85 Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005).
86 Roberts v. City of Fairbanks, 947 F.3d 1191, 1198 (9th Cir. 2020).
87 Id.
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invalid, or called into question by a writ of habeas corpus. However, because State
of Alaska v. Daniel Josef McDermott, 3AN-20-09753CR resulted in a dismissal,
the Court may be able to hear claims related to that case.
ii. 	Fourth Amendment
Plaintiff 	alleges 	that 	Defendants 	and 	other 	law 	enforcement 	officers
conducted illegal searches and seizures. In order to properly plead either of those
claims, Plaintiff must allege sufficient plausible facts that if proven true would fulfill
the required elements of the claim.
(A) 	Fourth Amendment—search
The Fourth Amendment of the U.S. Constitution guarantees individuals the
right to be free from unreasonable searches of their home and personal property.88
A search occurs “if the Government [or State] obtains information by physically
intruding on persons, houses, papers, or effects.”89 	A plaintiff must plead the
following elements to plead a search claim: (1) a state actor defendant searched
plaintiff’s [person] [home] [property]; (2) that defendant acted intentionally; and
(3) the search was unreasonable.90 	When determining whether a search is
reasonable, all of the circumstances are considered including, (1) the scope of the
intrusion; (2) the manner in which the search occurred; (3) the justification for
initiating the search; and (4) the place the search was conducted.91
88 U.S. CONST. amend. IV.
89 United States v. Thomas, 726 F.3d 1086, 1092–93 (9th Cir. 2013).
90 Bell v. Wolfish, 441 U.S. 520, 559 (1979); see also Byrd v. Maricopa Cnty. Sherriff’s
Dep’t, 629 F.3d 1135, 1141 (9th Cir. 2011) (en banc).
91 Bell at 559; see also Byrd at 1141.
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The Court notes as to Plaintiff’s allegations regarding his cell phone, the
United States Supreme Court has held that the phone itself may be searched
incident to an arrest to ensure it does not contain any weapons, but officers
generally must secure a search warrant before conducting a search of the data
stored on the cell phone.92
(B) 	Fourth Amendment—judicial deception
The Fourth Amendment of the U.S. Constitution guarantees a person to be
free from an unreasonable search.93 A search warrant is a written order signed by
a judge that permits a law enforcement officer to search a particular location and
seize specific items.94 To obtain a search warrant, a law enforcement officer must
show probable cause that a crime has been committed and that items related to
that crime are likely to be found in the place specified in the warrant.95 In deciding
whether to issue a search warrant, a judge generally relies on the facts stated in a
warrant affidavit signed by a law enforcement officer.96 	A plaintiff must plead the
following elements to plead a judicial deception claim: (1) the defendant submitted
to a judge an warrant affidavit that contained one or more misrepresentations or
omissions materials to the finding of probable cause; and (2) the defendant made
those misrepresentations or omissions intentionally or with reckless disregard for
92 Riley v. California, 134 S. Ct. 2473, 2493 (2014).
93 U.S. CONST. amend. IV.
94 B LACK ’S L AW DICTIONARY , (11th ed. 2019) (“search warrant”).
95 Supra note 93.
96 B LACK ’S L AW DICTIONARY , (11th ed. 2019) (“search warrant affidavit”).
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the truth.97 To show materiality, a plaintiff must demonstrate that the judge would
not have issued the warrant if the false information had been excluded, or if the
omitted information had been included.98
(C) 	Fourth Amendment—seizure
The Fourth Amendment of the U.S. Constitution guarantees individuals the
right to be free from unreasonable seizure of their personal property.99 “A ‘seizure’
of property occurs when there is some meaningful interference with an individual’s
possessory interests in that property.”100 	A plaintiff must plead the following
elements to sufficiently plead a property seizure claim: (1) a state actor defendant
seized plaintiff’s property; (2) that defendant acted intentionally; and (3) the seizure
was unreasonable. Plaintiff must plead sufficient facts that address each of these
elements by explaining when the defendants seized his property, the defendant’s
frame of mind (did they act intentionally), and why that defendant’s actions were
unreasonable.
Plaintiff alleges the seizure of the red Ford Focus was unreasonable and
constituted a “pretextual impoundment” as described by the Tenth Circuit.101 The
current Ninth Circuit authority holds that “police may, without a warrant, impound
and search a motor vehicle so long as they do so in conformance with the
97 Bravo v. City of Santa Maria, 665 F.3d 1076, 1083-88 (9th Cir. 2011).
98 See Smith v. Almada, 640 F.3d 931, 937–38 (9th Cir. 2011).
99 U.S. CONST. amend. IV.
100 Lavan v. City of Los Angeles, 693 F.3d 1022, 1027, 1030–33 (9th Cir. 2012)
(recognizing 	homeless 	person’s 	possessory 	interest 	in 	property 	left 	temporarily
unattended, even if person was in violation of city ordinance).
101 Docket 11-1 at 9 (citing United States v. Woodard, 5 F.4th 1148 (10th Cir. 2021)).
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standardized procedures of the local police department and in furtherance of a
community caretaking purpose, such as promoting public safety or the efficient
flow of traffic.”102 A plaintiff must plead the following elements: (1) the officers did
not have a warrant at the time of the search, (2) the officers impounded the vehicle,
(3) the officers searched the vehicle on the basis of something other than a
community caretaking function, 	and 	(4) the officers 	were 	not conforming to
standardized police procedures.103 The “mere presence of a criminal investigatory
motive or a dual motive—one valid, and one impermissible—does not render an
administrative stop or search invalid.”104
The Court also notes as to Plaintiff’s claims that officers unlawfully seized
the 	personal 	property 	on 	Plaintiff’s 	person 	after 	arriving 	at 	the 	Anchorage
Correctional Complex that law enforcement may search a person or seize their
property as part of the booking process.105
The Court notes that if Plaintiff is challenging a warrant, Plaintiff “must show
that the affiant deliberately or recklessly made false statements or omissions that
were material to the finding of probable cause.”106 	Furthermore, the Court notes
as to Plaintiff’s challenge against the execution of the warrant that officers did not
102 United States v. Johnson, 889 F.3d 1120, 1125 (9th Cir. 2018) (citing United States v.
Torres, 828 F.3d 1113, 1118 (9th Cir. 2016)).
103 United States v. Johnson, 889 F.3d 1120, 1126 (9th Cir. 2018).
104 United States v. Johnson, 889 F.3d 1120, 1126 (9th Cir. 2018) (internal citations
omitted); see also Rose v. Loos, 130 F. App’x 78, at *1 (9th Cir. 2005) (application of
general inventory rule to 42 U.S.C. §1983 claim).
105 Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 339 (2012); see also United
States v. Edwards, 415 U.S. 800, 808 (1974).
106 United States v. Ruiz, 758 F.3d 1144, 1148 (9th Cir. 2014).
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immediately take Plaintiff to jail that Alaska Rule of Criminal Procedure 4(b)(1)
provides that officers only must bring the defendant before an available judicial
officer without unnecessary delay.107
iii. 	Fifth and Sixth Amendment right to counsel
Plaintiff alleges law enforcement violated his right to counsel by transporting
Plaintiff to the Trooper post after his arrest and subjecting him to interrogation. The
Fifth Amendment prohibition on self-incrimination requires that an accused be
informed of his right to have counsel present during a custodial interrogation.
Plaintiff concedes that officers ceased their attempts at interrogation once Plaintiff
invoked his Miranda rights.108
In order to properly plead a Fifth Amendment right to counsel claim, a plaintiff
would need to allege sufficient plausible facts that if proven true would show,
(1) plaintiff was in custody; (2) subject to interrogation; and either (3) questioned
without notice of his right to have counsel present during questioning; or (4) plaintiff
invoked his right to counsel, but the questioning continued.109
The Sixth Amendment right to counsel attaches “at or after the initiation of
adversary 	judicial 	criminal 	proceedings—whether 	by 	way 	of 	formal 	charge,
107 Fed. R. Crim. P. 5(a)(1).
108 Docket 11-1 at 8.
109 See Rodriquez v. McDonald, 872 F.3d 908, 920–22 (2017); see generally Tobias v.
Arteaga, 996 F.3d 571 (9th Cir. 2021).
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preliminary hearing, indictment, information, or arraignment.”110 	Actual injury is
required to state a Sixth Amendment claim.111
iv. 	Fourteenth Amendment due process
Plaintiff alleges that law enforcement violated Plaintiff’s due process rights
by conducting unconstitutional identification procedures. In order to properly plead
this claim, Plaintiff must allege sufficient plausible facts that if proven true would
fulfill the required factors of the claim.
Where 	a 	defendant 	makes 	a 	due 	process 	claim 	regarding 	a 	pretrial,
suggestive, and unnecessary identification, the identification is not automatically
excluded 	from 	evidence.112 	The 	Court 	must 	analyze 	the 	totality 	of 	the
circumstances in determine whether the identification is reliable.113 The factors to
analyze to determine reliability include: 	(1) the opportunity of the witness to view
the defendant; (2) the witness’ degree of attention; (3) the accuracy of the witness’
prior 	description 	of 	the 	criminal; 	(4) 	the 	witness’ 	level 	of 	certainty 	with 	his
identification; and (5) the time between the crime and the identification.114
v. 	Libel or slander
Though the Court already has addressed its need to abstain from Claims 8
and 9, the Court provides the following guidance as to Plaintiff’s claims of libel and
110 McNeil v. Wisconsin, 501 U.S. 171, 75 (1991); see also Kirby v. Illinois, 406 U.S. 682
(1972).
111 Clark v. County of Tulare, 755 F. Supp. 2d 1075, 1089 (E.D. Cal. 2010).
112 See Manson v. Brathwaite, 432 U.S. 98 (1977).
113 Manson, 432 U.S. at 113.
114 Manson, 432 U.S. at 114.
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slander. Plaintiff alleges that law enforcement officers committed libel and slander
by identifying Plaintiff as a suspect to grocery store employees when investigating
the crimes committed and in drafting police reports.115 	Libel and slander are two
types of defamation. 	Defamatory statements that impose a stigma to reputation
are insufficient to invoke procedural due process.116 Alleged claims of defamation
under § 1983 must be accompanied by some deprivation of a federally protected
liberty or property interest.117 	Furthermore, the Fourteenth Amendment is not a
“font of tort law to be superimposed upon whatever systems may already be
administered by the States.”118 	Therefore, to succeed on a prima facie case of
defamation in a § 1983 suit, Plaintiff must show that (1) the state actors made
defamatory statements that imposed a stigma on the plaintiff and (2) the stigma
resulted in a deprivation of a recognizable liberty or property interest.119
INSTRUCTIONS FOR AMENDMENT
Plaintiff 	will 	be 	required 	to 	use 	the 	following 	format 	for 	his amended
complaint. 	For each claim against each defendant, Plaintiff must state the
following (organized by each defendant): 	(1) the name of the person or entity
Plaintiff claims to have caused the alleged deprivation of her constitutional rights;
(2) the facts showing that the defendant is a state actor (such as state employment
115 United States v. Johnson, 889 F.3d 1120, 1126 (9th Cir. 2018).
116 Paul v. Davis, 424 U.S. 693, 708 (1976); see also Krainski v. Nevada ex rel. Bd. of
Regents of Nevada Sys. of Higher Educ., 616 F.3d 963, 971 (9th Cir. 2010).
117 Paul v. Davis, 424 U.S. 693, 712 (1976).
118 Paul v. Davis, 424 U.S. 693, 701 (1976).
119 Krainski v. Nevada ex rel. Bd. of Regents of Nevada Sys. of Higher Educ., 616 F.3d
963, 971 (9th Cir. 2010).
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or a state contract) or a private entity/private individual acting under color of state
law; (3) the dates on which the conduct of the defendant allegedly took place;
(4) the 	specific 	conduct 	or 	action 	Plaintiff 	alleges 	is 	unconstitutional; 	(5) the
particular provision of the constitution Plaintiff alleges has been violated; (6) facts
alleging that the elements of the violation are met; (7) the injury or damages
Plaintiff personally suffered; and (8) the particular type of relief he is seeking from
each defendant.
Plaintiff may not bring claims that implicate any case where he has been
convicted or found guilty, or any claims that implicate any open state case.120 	If
Plaintiff’s amendment does not comply with Rule 8 or this Order, this case may be
dismissed without further notice.121 	If Plaintiff fails to file anything further, his
Complaint will be dismissed with prejudice (meaning it cannot be brought again),
pursuant to Federal Rule of Civil Procedure 41(b).
CONCLUSION
Plaintiff alleges claims pursuant to 42 U.S.C. § 1983 but fails to state a claim
upon 	which 	relief 	may 	be 	granted. 	Furthermore, 	Plaintiff’s 	First 	Amended
Complaint includes claims that implicate the Heck bar or Younger abstention.
Accordingly, the Court dismisses the First Amended Complaint, and grants leave
to amend, but only as described below.
IT IS THEREFORE ORDERED:
120 Supra see Discussion Section III.b.i.
121 Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013).
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1. 	The First Amended Complaint at Docket 11 is DISMISSED. 	The Court
grants leave to amend as to the various claims regarding 3AN-20-09753CR.
Any claims related to 3AN-20-10126CR are barred by Heck v. Humphrey
and must be dismissed without prejudice. 	The Court must abstain from
exercising jurisdiction over any claims related to 3PA-20-02790CR, thusly
Claims 8 and 9 are dismissed without prejudice.
2. 	The 	Prisoner’s 	Application 	to 	Waive 	Prepayment 	of 	the 	Filing 	Fee at
Docket 11-3 is GRANTED. If Plaintiff’s claims should pass out of screening,
the Court shall issue a separate order regarding the collection of the filing
fee. The Court reminds Plaintiff that the Court may only waive prepayment
of the fee, not the fee itself.122 Therefore, Plaintiff would be financially liable
for the incremental payment of the $402.00 filing fee.
3. 	Plaintiff’s Motion Asking This Court to Serve Each Defendant a Summons
and Complaint at Docket 13 is DENIED WITHOUT PREJUDICE as being
procedurally deficient. Should Plaintiff’s Second Amended Complaint pass
screening, the Court will issue a separate order with instructions on proper
service of any defendants.
4. 	Plaintiff has until July 25, 2022 to file one of the following:
a. 	Amended Complaint, in which Plaintiff would resubmit his claims to
the Court after correcting the deficiencies in accordance with this
122 28 U.S.C. § 1915(b).
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order. An amended complaint would replace the current complaint in
its entirety.123
b. 	Notice of Voluntary Dismissal, which would inform the Court that
Plaintiff no longer wishes to pursue his lawsuit and would dismiss the
entire action.
5. 	Any amended complaint should be on this Court’s form, which is being
provided to Plaintiff with this Order. 	As discussed above, an amended
complaint will replace the prior complaint in its entirety.124
6. 	If Plaintiff does not file either an Amended Complaint or Notice of Voluntary
Dismissal on the Court form by July 25, 2022, this case will be DISMISSED
WITH PREJUDICE under 28 U.S.C. § 1915(e)(2)(B). 	This dismissal will
count as a “strike” against Plaintiff under § 1915(g).125
7. 	At all times, Plaintiff must keep the Court informed of any change of address.
Such notice shall be titled “NOTICE OF CHANGE OF ADDRESS.” 	This
notice must not include any requests for any other relief, and it must be
served on any Defendant’s attorney who makes an appearance in this case.
123 See Fed. R. Civ. P. 15 and Local Civil Rule 15.1.
124 See Local Civil Rule 15.1.
125 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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Failure to file a notice of change of address may result in the dismissal of
this case under Rule 41(b) of the Federal Rules of Civil Procedure.
8. 	The Clerk of Court is directed to send Plaintiff the following forms with this
Order: 	(1) form PS01, with “SECOND AMENDED” written above the title
“Prisoner’s Complaint Under the Civil Rights Act 42 U.S.C. § 1983”; (2) form
PS09, Notice of Voluntary Dismissal; (3) form PS23, Notice of Change of
Address; and (4) the District Court’s handbook, “R EPRESENTING YOURSELF
IN ALASKA ’ S F EDERAL C OURT .”
DATED this 24th day of June, 2022 at Anchorage, Alaska.
/s/ Scott A. Oravec
SCOTT A. ORAVEC
United States Magistrate Judge
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.126 A district court judge may accept, reject, or
modify, in whole or in part, the magistrate judge’s order.127
A party may file written objections to the magistrate judge’s order within 14
fourteen days.128 Objections and responses are limited to five (5) pages in length
126 28 U.S.C. § 636(b)(1)(B).
127 28 U.S.C. § 636(b)(1)(C).
128 Id.
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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.129
129 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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