Miller v. Peterson et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
STEVEN JOHN MILLER,
Plaintiff,
v.
JUDGE ANDREW PETERSON, et al.,
Defendants.
Case No. 3:22-cv-00030-RRB
ORDER OF DISMISSAL
On February 17, 2022, Steven John Miller, a self-represented prisoner
(hereinafter “Plaintiff”), filed a “Notice of Intent to File Suit/Lien.”1 On February 24,
2022, Plaintiff filed a Prisoner’s Complaint under the Civil Rights Act 42 U.S.C.
§ 1983 (hereinafter “Complaint”), a civil cover sheet, and a Prisoner’s Application
to Waive Prepayment of the Filing Fee, an Affidavit with eight exhibits, and a
document 	titled 	“Truth 	Affidavit 	In 	the 	Nature 	of 	Supplement 	Rules 	for
Administrative and Maritime Claims under Rule C(6).” 2 	On February 28, 2022,
Plaintiff filed a copy of his prisoner trust account statement to complete his
Application to Waive Prepayment of the Filing Fee at Docket 4.
The Court now screens Plaintiff’s Complaint in accordance with 28 U.S.C.
§§ 1915(e) and 1915A. 	The Court will not consider Dockets 6 and 7 in the
1 Docket 1.
2 Dockets 2–4, 6–7.
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screening process, as filing additional documents into the record does not properly
amend a civil complaint.3
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.4
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.”5 In conducting its review, a
court must liberally construe a self-represented plaintiff’s pleading and give the
plaintiff the benefit of the doubt.6 	Before a court may dismiss any portion of a
complaint for failure to state a claim upon which relief may be granted, the court
3 See Local Civil Rule 15.1.
4 28 U.S.C. § 1915A.
5 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)).
6 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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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.7 	Futility exists when “the allegation of other facts consistent with the
challenged pleading could not possibly cure the deficiency[.]”8
DISCUSSION
I. 	Complaint
Plaintiff brings suit against Alaska Superior Court Judge Andrew Peterson,
Assistant District Attorneys Virginia Kain and Samuel Laffey, and Assistant Public
Defender Nathan Lockwood.9 	Plaintiff sues Defendants Peterson, Kain, and
Lockwood in their individual and official capacities.10 	Plaintiff does not plead
capacity as to Defendant Laffey.11
In Claim 1, Plaintiff alleges on March 31, 2021, Defendants violated his “6th
Amendment right, allowing the [suspension] of Rule 45 through the illegal and
unconstitutional ‘Special Order’ passed by Joel Bolger, thus implementing Rule 45
7 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)).
8 See Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.
1986).
9 Docket 1 at 2.
10 Docket 1 at 2.
11 Docket 1 at 3.
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when deemed convenient by the courts.”12 	Plaintiff further alleges he has not
“consented to any waiver of time related to my case.”13
In Claim 2, Plaintiff alleges that on March 31, 2021, Defendants “colluded
and conspired” to deprive him of this Fourteenth Amendment rights.14 	Plaintiff
alleges that Defendant Lockwood will not file the motions he requests and forbid
him 	from 	participating 	in 	an 	indictment 	hearing.15 	Plaintiff 	further 	alleges
Defendants Kain and Laffey did not indict him for almost eight months and refused
“to include me in any/all my indictments [despite] my demands to be included in
any/a’’ [of] the said proceedings.”16 	Though Plaintiff names Defendant Peterson,
he does not make any specific allegations him.
In Claim 3, Plaintiff alleges that the “Special Order” signed by Joel Bolger is
unconstitutional and illegal in violation of the Article I, Section 15 of the Alaska
Constitution and Article I, Section 10 of the U.S. Constitution.17 	Plaintiff further
alleges that “[a]nything stemming from the ‘Special Order’ . . . is thereby null and
12 Docket 1 at 4.
13 Docket 1 at 4.
14 Docket 1 at 5.
15 Docket 1 at 5.
16 Docket 1 at 5.
17 Docket 1 at 6.
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void [ab initio]” and that Defendants “have committed crimes against me making
me a crime victim[.]”18
Plaintiff does not provide any details about the “Special Order” referenced
in Claims 1 and 3. However, the Court takes judicial notice19 of the Special Orders
of the Chief Justice of the Alaska Supreme Court, beginning March 15, 2020,
through December 2, 2021;20 and Presiding Judge Order 901 of the Third Judicial
District. 	Presiding Judge Order 901 suspended jury trials within Alaska’s Third
Judicial District from September 16, 2021, until January 10, 2022, because of the
COVID-19 pandemic.21
The Court also takes judicial notice of two relevant proceedings.22 First, the
Court takes note of the state court criminal proceeding State of Alaska v. Steven
John Miller, Case No. 3AN-21-02317CR, in which Plaintiff was arraigned on
18 Docket 1 at 6.
19 Judicial notice is the “court’s acceptance, for purposes of convenience and without
requiring a party’s proof, of a well-known and indisputable fact; the court’s power to accept
such a fact.” BLACK’ S LAW DICTIONARY (11th ed. 2019); see also 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.
20 See Special Orders of the Chief Justice, Alaska Court System: COVID-19 Response,
available at: https://courts.alaska.gov/covid19/index.htm#socj
21 See Presiding Judge Order #901, Alaska Court System: 	COVID-19 Response,
available at: https://courts.alaska.gov/covid19/index.htm#socj
22 Supra note 19.
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March 31, 2021.23 	Second, the Court takes note of Plaintiff’s prior civil action in
federal district court, Miller v. Aarseth, et al., Case No. 3:22-cv-00003-RRB, which
made nearly identical claims and was dismissed with prejudice on March 29,
2022.24
For relief, Plaintiff requests: (1) $2,076,000.00 in punitive damages; and
(2) dismissal of Plaintiff’s charges with prejudice.25
II. 	Civil Rights Claims Under 42 U.S.C. § 1983
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.”26 For relief
under 42 U.S.C. § 1983, a plaintiff must “plead that (1) the defendants acting under
color of state law (2) deprived plaintiffs of rights secured by the Constitution or
federal statutes.”27 	To act under the color of state law, a complaint must allege
that the defendants acted with state authority as state actors.28 	Furthermore, a
defendant must be eligible for suit. None of the individuals sued by Plaintiff in this
23 State of Alaska v. Steven John Miller, Case No. 3AN-21-02317CR (“Events: 03/31/2021
Arraignment: State District Court (In Custody)”).
24 Miller v. Aarseth, et al., Case No. 3:22-cv-00003-RRB, Dockets 8 & 9.
25 Docket 1 at 9.
26 Graham v. Connor, 490 U.S. 386, 393–94 (1989) (quoting Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)).
27 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
28 West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299,
326 (1941)).
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case are proper defendants under 42 U.S.C. § 1983. 	Therefore, Plaintiff’s
Complaint must be dismissed.
a. Defendant Lockwood
A lawyer appointed to represent a criminal defendant in a state court
proceeding is "as a matter of law, . . . not a state actor."29 Such a lawyer, whether
from the Office of Public Advocacy, Public Defender’s Agency, or by contract is
“no doubt, paid by government funds and hired by a government agency.”30 This
method of payment and retention, however, does not matter, as the lawyer’s role
in this scenario is “to represent [their] client, not the interests of the [government
entity paying their fees].”31 	In this way, a court-appointed lawyer is no different
than a privately retained attorney, who in no way can be considered a state actor,
but whose “duties and obligations [to the client] are the same.”32
Nathan Lockwood is an attorney with the State of Alaska Public Defender
Agency. 	Plaintiff seeks damages from Defendant Lockwood due to his alleged
actions as a court appointed attorney complying with the operational orders from
29 See Miranda v. Clark County, Nevada, 319 F.3d 465, 468 (9th Cir. 2003), cert. denied,
540 U.S. 814 (2003).
30 Id., citing Polk County v. Dodson, 454 U.S. 312, 325 (1981) (recognizing that the public
defender performs “a lawyer’s traditional functions” in the lawyer’s traditional adversarial
role).
31 Id.
32 Polk County, 454 U.S. at 318–19.
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the Chief Justice of the Alaska Supreme Court and the Presiding Judge of the
Third Judicial District of the Alaska Court System. 	Additionally, Plaintiff seeks
damages and injunctive relief for his strategic decisions related to motions and
indictment hearings. 	These allegations are premised on Defendant Lockwood’s
role 	as 	Plaintiff’s 	court 	appointed 	attorney. 	Defendant 	Lockwood, 	as 	court
appointed counsel to an indigent defendant, is not a state actor as a matter of law.
Therefore, he cannot be sued under 42 U.S.C. § 1983.
b. Defendant Judge Peterson
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.”33 	Moreover, judicial immunity extends
to preclude prospective injunctive relief against a state court judge for acts or
omissions made in that judge’s official capacity.34 	This judicial immunity is
33 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.”
34 42 U.S.C. § 1983.
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immunity from lawsuit, not just from ultimate assessment of damages, and it
cannot be overcome by allegations of bad faith or malice.35
Defendant Judge Peterson is a judicial officer in the Alaska Superior Court.
Plaintiff seeks damages and injunctive relief due to Defendant Judge Peterson’s
application of the operational orders from the Chief Justice of the Alaska Supreme
Court and the Presiding Judge of the Third Judicial District of the Alaska Court
System. 	As a judicial officer acting in his official capacity in accordance with the
rules of the Alaska court system then in place to address the COVID-19 pandemic,
Defendant Judge Peterson is immune from suit as a matter of law. Therefore, he
cannot be sued under 42 U.S.C. § 1983.
c. Defendants Kain & Laffey
District attorneys are state actors; however, prosecuting attorneys are
immune from suit. 	Prosecutorial immunity protects government attorneys when
they are acting pursuant to their judicial role as an advocate for the state,
performing functions “intimately associated with the judicial phase of the criminal
process.”36 	A prosecutor’s absolute immunity extends to “initiating a prosecution
35 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)).
36 Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
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and presenting the State’s case,”37 including eliciting witness testimony, arguing
motions, and pretrial court appearances.38
However, “[a] prosecutor’s administrative duties and those investigatory
functions that do not relate to an advocate’s preparation for the initiation of a
prosecution or for judicial proceedings are not entitled to absolute immunity.”39
Further, a prosecutor can be held accountable for malicious prosecution. 	But for
any such claim to go forward, a claimant must provide plausible factual details and
more than just conclusory allegations.40 	Most importantly, a claim for malicious
prosecution cannot proceed until the termination of the prior criminal proceeding
has occurred in favor of the accused.41 	This “avoids parallel litigation over the
issue of probable cause and guilt . . . and it precludes the possibility of the claimant
[sic] succeeding in the tort action after having been convicted in the underlying
criminal prosecution, in contravention of a strong judicial policy against the creation
of two conflicting resolutions arising out of the same or identical transaction.”42
37 Id.
38 See Burns v. Reed, 500 U.S. 478, 490–91 (1991).
39 Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
40 Iqbal, 556 U.S. at 679 (stating that pleadings which “are no more than conclusions, are
not entitled to the assumption of truth. While legal conclusions can provide the framework
of a complaint, they must be supported by factual allegations.”).
41 Heck v. Humphrey, 512 U.S. 47, 484 (1994).
42 Heck, 512 U.S. at 484.
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Defendants Kain and Laffey are prosecuting attorneys for the State of
Alaska. 	Plaintiff seeks damages due to their alleged actions complying with the
operational orders from the Chief Justice of the Alaska Supreme Court and the
Presiding 	Judge 	of 	the 	Third 	Judicial 	District 	of 	the 	Alaska 	Court 	System.
Additionally, Plaintiff seeks damages and injunctive relief, because he was not
included in “any/all of my indictment” proceedings. 	As prosecuting governmental
attorneys complying with the rules and procedures imposed upon them as part of
the State of Alaska’s judicial process, Defendants Kain and Laffey are immune
from suit as a matter of law. 	Therefore, they cannot be sued under 42 U.S.C.
§ 1983.
CONCLUSION
Defendants are not proper defendants or are immune from suit. Therefore,
Plaintiff fails to state a claim upon which relief may be granted. 	In addition, no
defendants may be substituted under these facts; therefore, amendment is futile.43
IT IS THEREFORE ORDERED:
1. This action is DISMISSED WITH PREJUDICE for failing to state a claim upon
which relief may be granted and the futility of amendment.
2. All pending motions are DENIED AS MOOT.
43 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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3. A dismissal under these circumstances is 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).44 This is Plaintiff’s second strike.
4. The Clerk of Court shall issue a final judgment.
DATED this 3rd day of June, 2022, at Anchorage, Alaska.
s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
44 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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