Burk v. Elmore et al.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JOHNNYLEE PRESTON BURK,
Plaintiff,
v.
THOMAS ELMORE, et al.,
Defendants.
Case No. 3:21-cv-00277-JMK
ORDER OF DISMISSAL
I. 	Background & Procedural History
On 	December 	28, 	2021, 	Johnnylee 	Preston 	Burk, 	a 	self-represented
prisoner (hereinafter “Plaintiff”), filed a Prisoner’s Complaint under the Civil Rights
Act, 42 U.S.C. § 1983, that included statutes 28 U.S.C. § 1331 and 42 U.S.C.
§§ 1985(3) and 1986, along with a civil cover sheet and Prisoner’s Application to
Waive Prepayment of the Filing Fee.1
The Court screened Plaintiff’s Complaint in accordance with 28 U.S.C.
§§ 1915(e) and 1915A. 	On June 27, 2022, the Court issued a Notice of Intent to
Dismiss.2 	The Court’s order explained that Plaintiff failed to state a claim upon
which 	relief 	may 	be 	granted 	for 	both 	procedural 	and 	substantive 	grounds.
Specifically, the Court found that Plaintiff’s Complaint (1) lacked sufficient plausible
1 Dockets 1–3.
2 Docket 7.
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facts to support any claim under Rule 8 of Federal Civil Procedure; (2) the federal
statutes relied upon failed to support Plaintiff’s legal theories; and (3) Plaintiff
attempted to collaterally attack a pre-existing federal criminal conviction via this
civil suit.3
The Court granted limited leave to amend “in the event Plaintiff can plead
allegations that are appropriate for a civil action and do not necessarily imply the
invalidity 	of 	his 	conviction 	in 	Case 	No. 	3:15-cr-00088-SLG-3.”4 	The 	Court
permitted leave until August 1, 2022, to either amend his complaint or voluntarily
dismiss this action.5 Additionally, the Court gave two additional relevant warnings:
7. 	If Plaintiff does not file either an amended
complaint or a Notice of Voluntary Dismissal on the Court
form by August 1, 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).6
8. 	At all times and as previously done, 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 other relief, and it must be served on any attorney for
Defendant 	who 	makes 	an 	appearance 	in 	this 	case.
Failure to file a notice of change of address may result in
3 Docket 7 at 6–13.
4 Docket 7 at 13.
5 Docket 7 at 14–15.
6 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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the dismissal of this case under Rule 41(b) of the Federal
Rules of Civil Procedure.
Concurrently, but unrelated to this civil action, Plaintiff was held in custody
on an Indictment of two counts of Assault, in violation of 18 U.S.C. § 111.7 	On
June 10, 2021, before this Court, Plaintiff entered into a Plea Agreement with the
Government.8 	After the Court advised Plaintiff of his rights, the charges alleged
against him, and the possible penalties, Plaintiff pled guilty to Count 2 of the
Indictment.9 	The Court then heard argument and proposals for Plaintiff to be
released pending sentencing.10 	On June 13, 2022, Plaintiff was released from
custody to Pretrial Services of U.S. Probation in accordance with the Court’s Order
Setting Conditions of Release.11 	Plaintiff’s conditions of release included GPS
monitoring, home detention, drug testing, and staying in contact with Pretrial
7 United States of America v. Burk, Case No. 3:19-cr-00117, Dockets 2 & 410. 	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 L AW DICTIONARY (11th ed. 2019). A court can take judicial notice of its own
files and records. Fed. R. Evid. 201.
8 Docket 419.
9 United States of America v. Burk, Case No. 3:19-cr-00117, Proposed Change of Plea
Hearing 	and 	Bail 	Review 	Hearing 	held 	before 	Joshua 	M. 	Kindred, 	Anchorage
Courtroom 3 (June 10, 2022); see also Minute Entry at Docket 415.
10 Id.
11 United States of America v. Burk, Case No. 3:19-cr-00117, Dockets 417, 418, & 421;
see also Docket 423 at 1 ((Ex Parte) Petition for Action on Conditions of Pretrial Release).
A court can take judicial notice of a court filing even if is sealed or otherwise in accessible
to the public. 	See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d, 741, 746 n.6
(“While some of these documents are filed under seal, they nonetheless are readily
verifiable and, therefore, the proper subject of judicial notice.”).
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Services.12 Also on June 13, 2022, Plaintiff signed a Notice of Change of Address
in both cases.13 The Notice in this case, received by the Court on June 16, 2022,
states:
Comes now, the Plaintiff, Johnny-lee Preston Burk,
by Pro Se filing, and hereby files this Notice of his current
change of both physical and mailing address to: 4570 S.
Navigators Circle, Wasilla, Alaska, 99623. From here on
forward, this Court and any other party will need to mail
any filings made here to that address.”14
On June 22, 2022, Plaintiff severed the strap of his ankle monitor and
attempts by Pretrial Services to contact Plaintiff or his uncle were unsuccessful.15
Plaintiff absconded from pretrial supervision and did not maintain contact with
Pretrial Services or the Court. As addressed above, the Court’s Order of Notice of
Intent to Dismiss issued on June 27, 2022. Plaintiff returned to custody pursuant
to a Warrant of Arrest on July 28, 2022.16 The Court’s Order was returned to the
Court as undeliverable on June 30, 2022.17
12 United States of America v. Burk, Case No. 3:19-cr-00117, Dockets 417 & 421.
13 Docket 6; United States of America v. Burk, Case No. 3:19-cr-00117, Docket 422.
14 Docket 6.
15 United States of America v. Burk, Case No. 3:19-cr-00117; Docket 423 at 1 ((Ex Parte)
Petition for Action on Conditions of Pretrial Release). See Reyn’s Pasta Bella, LLC, 442
F.3d at 746 n.6.
16 United States of America v. Burk, Case No. 3:19-cr-00117, Clerk’s Entry, “Notice of
Arrest of Johnny-Lee Preston Burk. The defendant was arrested 7/28/22 and is located
at Matsu Pretrial.” (July 29, 2022). See Reyn’s Pasta Bella, LLC, 442 F.3d at 746 n.6.
17 Dockets 7 & 9.
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On August 15, 2022, Plaintiff filed a Notice of Change of Address with the
Court, alleging good faith delay, because of his inability to access the correctional
facilities law library while in quarantine.18 On September 8, 2022, Plaintiff filed the
following: (1) Notice of Change of Address; (2) “Motion Requesting Permission to
Reply”; (3) “Declaration of Plaintiff”; (4) “Request for Order of Production”; and
(5) ”Motion Requesting Indigent Service.”19 On November 4, 2022, the Court held
a hearing sentencing Plaintiff in his criminal matter, Case No. 3:19-cr-00117, and
on the disposition of a Petition to Revoke Supervised Release in Case No. 3:15-
cr-00088.20 	On November 17, 2022, Plaintiff also filed “Plaintiff’s Supplemental
Claims Against Kindred,” broadly alleging the Court conspired with other federal
judges to deny Plaintiff his constitutional rights.21
Now before the Court are Plaintiff’s motions at Dockets 12, 14, and 15 made
well after his deadline to amend or voluntarily dismiss, as well as Plaintiff’s
“Supplemental Claims.”
II. 	Discussion
Plaintiff’s “Motion for Permission to Reply” at Docket 12 and “Declaration of
Plaintiff” 	at 	Docket 	13 	allege 	that 	upon 	his 	release 	from 	custody, 	Plaintiff
18 Docket 10.
19 Dockets 11–15.
20 United States of America v. Burk, Case No. 3:19-cr-00117, Docket 473 (Judgment);
United States of America v. Burk, Case No. 3:15-cr-00088, Docket 381 (Judgment for
Revocation of Supervised Release).
21 Docket 16.
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discovered he did not have access to his secured mailbox. Plaintiff alleges that he
diligently tried to contact the U.S. Post Office for a new mailbox key, even while he
had absconded from pretrial supervision. Further, he alleges that he remained at
the Navigator’s Circle address, but simply did not have mail access.22 	Plaintiff
does not address 	why he did not provide an alternate mailing address, or
alternatively contact the Court to check on the status of this case.23 	For relief,
Plaintiff requests the Court resend him the Court’s Notice of Intent to Dismiss and
permit an adequate time to respond.24
In addressing Docket 12, the Court must decide whether Plaintiff’s case
requires dismissal for failure to prosecute or should continue. 	Rule 41(b) of the
Federal Rules of Civil Procedure permits dismissal due to a plaintiff’s failure to
prosecute or comply with a court order. Furthermore, Local Civil Rule 41.1 states
that “failure to prosecute or to otherwise comply with the Federal Rules of Civil
Procedure, the Local Civil Rules, or with any court order may result in imposition
of sanctions authorized by law, including dismissal.”
In deciding whether to dismiss for failure to prosecute or comply with court
orders, a district court must consider five factors: 	“(1) the public’s interest in
expeditious resolution of litigation; (2) the court’s need to manage its docket;
22 Docket 13.
23 See Dockets 12–13.
24 Docket 12 at 2.
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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition
of cases on their merits; and (5) the availability of less drastic sanctions.”25
Here, the first three factors—(1) the public’s interest in expeditious resolution
of litigation; (2) the Court's need to manage its docket; and (3) risk of prejudice to
defendants—all weigh in favor of dismissal. 	Plaintiff failed to file an amended
complaint or a voluntary dismissal within the specified timeline. 	Moreover, the
claims alleged in the original Complaint lacked merit and the Court identified vast
structural barriers to Plaintiff’s legal theories.26
The Court is sympathetic to Plaintiff’s alleged barriers of rural mail service,
especially considering his extensive time spent in custody. Additionally, the Court
is sympathetic to the unfortunate timing that the Notice of Intent to Dismiss issued
during the complex window of Plaintiff’s release. Regardless, the undeniable fact
is that Plaintiff knowingly and purposefully avoided contact with the Court. 	He
removed 	his 	required 	GPS 	monitoring 	device, 	refused 	contact 	with 	Pretrial
Services, and made no attempt to call or otherwise contact the Clerk’s Office about
the status of this case. Plaintiff does not address why he did not check on this civil
action while in violation of the conditions of his release. However, the overarching
facts 	demonstrate 	that 	Plaintiff 	did 	not 	want 	to 	present 	himself 	to 	anyone
associated with the U.S. District Court for the District of Alaska, lest he be
25 Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (quoting Henderson
v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
26 See Docket 7.
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apprehended. 	Plaintiff 	absconded 	from 	his 	criminal 	case 	and 	effectively
abandoned this civil action in the process.
While the Court takes extensive measures to fairly facilitate self-represented
litigation, a self-represented litigant is not excused from the rules that govern court
proceedings.27 A federal district court is a trial court simultaneously addressing a
volume and variety of cases of varying priorities. Accordingly, a court cannot issue
orders and rulings purely on the best timeline for a litigant. A litigant must always
be diligent in pursuing their case, especially in situations where the litigant has
caused confusion, avoidance, or delay.28 While Plaintiff may be unhappy with the
Court’s 	timing, 	this 	disagreement 	is 	insufficient 	to 	excuse 	his 	purposeful
unavailability. 	To permit Plaintiff an attempt to amend now, countervails an
expeditious 	resolution, 	impedes 	judicial 	economy, 	and 	would 	prejudice
Defendants.
The fourth factor usually weighs against dismissal because public policy
favors disposition on the merits.29 	However, “this factor lends little support to a
party whose responsibility it is to move a case toward disposition on the merits but
27 Motoyama v. Hawaii, Dept. of Transp., 864 F. Supp. 2d 965, 976 (2012).
28 Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991) (a plaintiff has the
burden “to move toward . . . disposition at a reasonable pace, and to refrain from dilatory
and evasive tactics”).
29 Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002).
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whose conduct impedes progress in that direction,”30 which is the case here. Thus,
although this factor typically weighs against dismissal, it does not overcome
Plaintiff’s failure to amend his complaint or voluntarily dismiss.
The fifth factor is comprised of three subparts, which include “whether the
court has considered lesser sanctions, whether it tried them, and whether it warned
the recalcitrant party about the possibility of case-dispositive sanctions.”31 	The
Court’s Order of Notice of Intent to Dismiss provided Plaintiff guidance on relevant
law and an opportunity to amend his complaint.32 	Further, the Court expressly
warned Plaintiff that his failure to comply with the Court’s order would result in a
dismissal of this action.33 	Moreover, Plaintiff has been a frequent and persistent
litigant in this Court. 	In case Burk v. Nelson, Case No. 3:17-cv-00206, the
Screening Order dated December 17, 2017, gave the same warnings, almost
verbatim, that apply here:
4. 	If Mr. Burk does not file a First Amended
Complaint or Notice of Voluntary Dismissal on or before
January 26, 2018, this case will be DISMISSED WITH
PREJUDICE for failure to state a claim upon which relief
may be granted, and a judgment will issue that indicates
a “strike” is being entered against Mr. Burk pursuant to
28 U.S.C. § 1915(g).
30 In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th
Cir. 2006) (citing In re Exxon Valdez, 102 F.3d 429, 433 (9th Cir. 1996)).
31 Conn. Gen. Life Ins., 482 F.3d at 1096 (internal citation omitted).
32 Docket 7.
33 Docket 7 at 15.
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5. 	At all times, Mr. Burk must keep the court
informed of any change of address. Such notice shall be
titled “NOTICE of CHANGE of ADDRESS.” 	This notice
shall contain only information about Mr. Burk’s change of
address and its effective date. 	The notice must not
include any requests for any other relief and must be
served 	on 	any 	Defendant’s 	attorney 	who 	makes 	an
appearance in this action. 	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.34
More recently in Burk v. Blake, Case No. 3:21-cv-00043, on May 10, 2021, Plaintiff
received an order from this Court permitting him to submit a First Amended
Complaint 	or 	Notice 	of 	Voluntary 	Dismissal.35 	Again, 	that 	Order 	Granting
Reconsideration contained the following language:
3. If Mr. Burk does not file either a First Amended
Complaint, or a Notice of Voluntary Dismissal, on one of
the Court’s forms, by June 11, 2021, this case will be
DISMISSED 	WITH 	PREJUDICE 	under 	28 	U.S.C.
§ 1915(e)(2)(B). This dismissal will count as a “strike”
against Mr. Burk under § 1915(g).
. . . .
5. 	At all times, Mr. Burk 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. 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.
34 Docket 10 at 5.
35 Docket 10.
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Even accepting Plaintiff did not received the Order of Notice of Intent to Dismiss,
Plaintiff is well-aware of the standards expected of him and the risks to him, should
he fail to comply with this Court’s orders.
The Court cannot move the case toward disposition without Plaintiff's
compliance with Court orders. 	Additionally, Plaintiff had adequate warning that
dismissal could result from his noncompliance. Lastly, Plaintiff’s initial claims were
fundamentally barred as a collateral attack on a federal conviction.36 	The Court
could have simply dismissed the action outright with prejudice for futility.37 Instead,
the Court generously permitted Plaintiff two options: (1) limited leave to amend, or
(2) voluntarily dismiss to avoid receiving a third strike. This was a gift that Plaintiff
did not accept, because he was purposefully evading the Court.
All five factors support dismissal of this action. 	The Court finds no other
lesser sanction to be satisfactory or effective in this case. Accordingly, this action
must be dismissed for failure to prosecute.38
36 Heck v. Humphrey, 512 U.S. 477, 486–87 (1994); Martin v. Sias, 88 F.3d 774, 775 (9th
Cir. 1996) (extending the favorable termination rule of Heck v. Humphrey to federal civil
rights claims); see also Court’s reasoning at Docket 7 at 6–12 and Conclusion at 13
(“Plaintiff’s Complaint lacks sufficiently plead plausible, factual detail to state a claim.
Furthermore, 	even 	if 	Plaintiff 	were 	to 	allege 	sufficient 	plausible 	factual 	detail,
substantively, his allegations are a collateral attack on his convictions in United States v.
Johnnylee Preston Burk, Case No. 3:15-cv-00088-SLG-3 and likely cannot proceed in a
civil rights action in federal court. Plaintiff’s appropriate remedy is likely found through 28
U.S.C. § 2255.”)
37 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.”).
38 See, e.g., Henderson, 779 F.2d at 1424 (a district court need not exhaust every
sanction short of dismissal before finally dismissing a case but must explore possible and
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IT IS THEREFORE ORDERED:
1. 	The Motion Requesting Permission to Reply at Docket 12 is DENIED.
Accordingly, this action is DISMISSED WITH PREJUDICE for failure to
prosecute and comply with a court order.
2. 	All pending motions are DENIED AS MOOT.
3. 	This dismissal is Plaintiff’s Third Strike under 28 U.S.C. § 1915(g).39 	The
Court cautions Plaintiff as to his strike status and that he is now unable to
file 	future 	lawsuits 	in 	federal 	court 	without 	paying 	the 	filing 	fee 	or
demonstrating he is in imminent danger of serious physical injury with any
request to waive prepayment of the filing fee.
4. 	The Clerk of Court shall issue a final judgment.
5. 	Pursuant to the Federal Rules of Appellate Procedure 3 & 4, Plaintiff may
file a Notice of Appeal with the district court within 30 days of this Order of
meaningful 	alternatives) 	(internal 	citation 	omitted); 	Adriana 	International 	Corp. 	v.
Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990) (explaining despite all the elaboration of
factors, it is not always necessary for the court to impose less serious sanctions first, or
to give any explicit warning); Gleason v. World Sav. Bank, FSB, 2013 WL 3927799, at *2
(N.D. Cal. July 26, 2013) (finding dismissal under Rule 41(b) appropriate where the court
previously attempted the lesser sanction of issuing an order to show cause and giving the
plaintiff an additional opportunity to re-plead).
39 Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1722 (2020) (holding that Section 1915(g)’s
three-strikes provision refers to any dismissal for failure to state a claim, whether with
prejudice or without prejudice.). See Burk v. Nelson, Case No. 3:17-cv-00206-RRB, Doc.
17, 2018 WL 11081659, *2 (D. Alaska March 16, 2018) (“The case is DISMISSED WITH
PREJUDICE for failure to state a claim upon which relief may be granted, and a judgment
will issue that indicates a ‘strike’ is being entered against Mr. Burk pursuant to 28 U.S.C.
§ 1915(g).”); Burk v. Nelson, 771 Fed. Appx. 412, 413 2019 WL 2305588 (9th Cir. May
30, 2019) (Mem.) (affirming the district court’s dismissal for failure to state a claim).
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Dismissal, should he wish to seek review from the Ninth Circuit Court of
Appeals.
DATED this 15th day of February, 2023, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
UNITED STATES DISTRICT JUDGE
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