Johnson v. John Brainerd, et al.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
BRYAN WEBB JOHNSON,
Plaintiff,
vs.
JOHN C. BRAINERD, et al.,
Defendants.
Case No. 4:21-cv-00027-JMK
ORDER REGARDING PENDING
MOTIONS
Pending before the Court are several motions. At Docket 37, Plaintiff Bryan
Webb Johnson seeks clarification of a prior order. 	At Docket 53, Defendant Tammy
Axelsson moves to dismiss Mr. Johnson’s claims against her in lieu of answering. 	At
Docket 55, Defendants Douglas Blankenship, Matthew Christian, Bethany Harbison,
Michael MacDonald, Michael McConahy, Earl Peterson, and Benjamin Seekins move to
dismiss Mr. Johnson’s claims against them in lieu of answering. 	At Docket 60,
Mr. Johnson moves the Court to reconsider its Order Regarding Motions to Dismiss at
Docket 56. 	And, at Docket 61, Mr. Johnson moves the Court to define the requirements
for requesting counsel.1
1 At Docket 59, Mr. Johnson also moves to “show receipt of certified mail/docs.” The
Court understands Mr. Johnson to indicate that he has received the Defendants’ motions to dismiss
and other papers. The Court will rule out the Motion as it does not have a role in the service of
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I. 	BACKGROUND
This is a civil rights action for damages arising from Bryan Webb Johnson’s
incarceration for over two years without trial in Fairbanks, Alaska.
On March 9, 2017, a grand jury indicted Mr. Johnson in State of Alaska v.
Bryan Webb Johnson, Case No. 4FA-17-00293CR.2 	On July 10, 2017, Mr. Johnson
appeared for his arraignment.3 Following the hearing, he was incarcerated by the State of
Alaska at the Fairbanks Correctional Center (“FCC”).4 	On July 19, 2017, Mr. Johnson
entered a not guilty plea in this case and a trial date was scheduled.5 	Mr. Johnson then
requested several continuances and next appeared in court on January 9, 2018.6 	But,
following this appearance, Mr. Johnson remained in custody with no future court dates.7
At the time, Mr. Johnson was also engaged in a separate criminal proceeding.
In State of Alaska v. Bryan Webb Johnson, Case No. 4FA-14-00321CR, the State of Alaska
moved to revoke probation based on Mr. Johnson’s indictment.8 At a hearing in that case
on August 11, 2017, the court determined it would not set a hearing date until the pending
criminal matter, Case No. 4FA-17-00293CR, was resolved.9
motions between the parties. If Mr. Johnson believes the Court has misunderstood his motion or
seeks some other relief, he may file another motion.
2 Docket 20-29 at 2.
3 Id.
4 Docket 20-2 at 7.
5 Docket 20-29 at 2.
6 Id. at 2.
7 Id. at 3.
8 Id. at 2.
9 Id.
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After over two years at FCC, on October 2, 2019, Mr. Johnson was appointed
new counsel when his former attorney took the bench and moved to dismiss his indictment
based on the court’s failure to comply with his speedy trial rights under Alaska Criminal
Rule 45.10
The 	court 	granted 	the 	motion 	and 	found 	that 	it 	failed 	to 	check 	if
Mr. Johnson’s counsel timely filed a change of plea request, that no new trial date was set
after Mr. Johnson’s court appearance on January 9, 2018, and that, as a result, he was held
at FCC with no action planned in either of his criminal cases.11 The court concluded that
the time for trial for purposes of Rule 45 was no longer tolled by Mr. Johnson’s requested
continuances as of March 12, 2018, and that his time incarcerated on October 2, 2019,
exceeded the day limit for time to trial.12 	It then dismissed his 2017 criminal matter for
failure to timely prosecute.13
Mr. Johnson was released from FCC on November 6, 2019, 849 days after
he initially was incarcerated to await trial.14 All told, Mr. Johnson was held for over two
years 	without 	trial 	due 	to 	the 	court’s 	errors 	and, 	as 	the 	Alaska 	Superior 	Court
acknowledged, absent intervention by Mr. Johnson’s new counsel, he could have remained
at FCC and neither of his criminal cases would have received any attention.15
10 See id. at 4.
11 Id. at 4.
12 Id. at 6.
13 Id.
14 Docket 20 at 5.
15 Docket 20-29 at 5.
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Mr. Johnson ultimately initiated this case to recover damages for the
violation of his speedy trial rights and for denial of essential medical treatment at FCC.16
With respect to his claim for denial of essential medical treatment, he alleges that, while
incarcerated at FCC, he suffered an injury to his back and was denied a “med-bed” for this
and other injuries.17 	Mr. Johnson later amended his complaint to add individual
defendants, including Tammy Axelsson, the Superintendent of FCC at the time of his
imprisonment, a number of judges who were involved in his criminal cases, his defense
attorney, the Medical Director at FCC, a probation officer, and others.18
Taken as true, Mr. Johnson’s allegations depict an egregious violation of his
rights as a criminal defendant. The question posed by this suit and the motions addressed
herein is whether, and against whom, Mr. Johnson may seek monetary damages.
II. 	LEGAL STANDARD
A party may move for dismissal when a plaintiff’s complaint “fails to state a
claim upon which relief can be granted.”19 	To survive a motion to dismiss under
Rule 12(b)(6), a complaint must contain enough facts that, if taken as true, would state a
legal claim to relief that is “plausible on its face.”20 Conclusory statements, unwarranted
inferences, and “[t]hreadbare recitals of the elements of a cause of action” will not defeat
dismissal; a plaintiff must “plead[] factual content that allows the court to draw the
16 Docket 1 at 2–3.
17 Id. at 2; Docket 20-2 at 23.
18 Docket 20-2 at 11–21.
19 Fed. R. Civ. P. 12(b)(6).
20 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and quotation marks omitted);
accord Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).
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reasonable inference that the defendant is liable for the misconduct alleged.”21 	In
reviewing the motion to dismiss, the court construes all facts alleged in the complaint in
the light most favorable to the plaintiff.22 Dismissal for failure to state a claim is proper
“if it appears beyond doubt that the plaintiff can prove no set of facts in support of [their]
claim which would entitle [them] to relief.”23
The court liberally construes the pleadings of pro se or self-represented
litigants.24 Nonetheless, a self-represented litigant’s complaint must comply with Federal
Rules of Civil Procedure.25
III. 	DISCUSSION
The Court will address each of the pending motions in turn.
A. 	Clarification of Court’s Prior Order
Mr. Johnson requests clarification of certain aspects of a prior order. 	In
particular, he seeks clarification regarding the screening requirements for self-represented
litigants, the ability of the state to participate in this case, and the scope of the state’s
sovereign immunity.26 	The Court provides the following clarifications and will rule out
the motion at Docket 37 as GRANTED.
21 Iqbal, 556 U.S. at 678.
22 Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015) (quoting Skilstaf, Inc. v.
CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir. 2012)).
23 Laborers’ Int’l Union of N. Am., Loc. 341 v. Main Bldg. Maint., Inc., 435 F. Supp. 3d
995, 1000 (D. Alaska 2020) (quoting Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912,
923 (9th Cir. 2001)).
24 Hebbe v. Pliler, 627 F.3d 338, 341–42 (9th Cir. 2010).
25 See Carter v. Commissioner of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986)
(noting that pro se litigants are “expected to abide by the rules of the court in which [they]
litigate[]”).
26 Docket 37 at 2–4.
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First, federal law requires that a court must review, or “screen,” a complaint
in a civil action in which a prisoner seeks redress from a governmental entity, a government
employee, or a government officer.27 	As part of its screening, the Court reviews the
complaint to determine if it states a viable claim and whether it seeks monetary damages
from a defendant who is immune from suit.28 	This Court mistakenly believed this
requirement applied to Mr. Johnson as an individual who formerly was incarcerated,
screened his complaint, and directed him to file an amended complaint.29 The Court has
not, and will not, screen Mr. Johnson’s Second Amended Complaint, filed at Docket 20.
Second, the State of Alaska has been dismissed as a defendant in this case
because a plaintiff may not sue a state for damages.30 Going forward, the state will not be
able to file in this case on its own behalf. 	However, the Alaska Department of Law
generally represents state employees. 	Therefore, in this case, the Department of Law is
representing the Defendant Judges and Defendant Tammy Axelsson and will submit filings
on their behalf.
Third, the State of Alaska has not waived its sovereign immunity in this case,
as Mr. Johnson suggests.31 	The Eleventh Amendment to the United States Constitution
bars citizens from bringing suits against a state for monetary damages unless the state’s
immunity has been waived or abrogated by the United States Congress.32 A plaintiff can
27 28 U.S.C. § 1915A
28 28 U.S.C. § 1915A(b).
29 Docket 6; Docket 10.
30 See Docket 10 at 5–6.
31 Docket 37 at 6.
32 Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 54–55 (1996).
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show that a state has waived its sovereign immunity by showing that the state has explicitly
consented to suit in particular circumstances in statute or by voluntarily submitting its
rights for judicial determination.33 Here, the State of Alaska has not consented to suit and
Congress has not abrogated the state’s immunity. 	Thus, the State of Alaska is immune
from suit, even though Mr. Johnson alleges that it violated his rights.
B. 	Defendant Tammy Axelsson’s Motion to Dismiss
Next, Defendant Tammy Axelsson, the former Superintendent of FCC,
moves to dismiss Mr. Johnson’s claim against her. She argues that Mr. Johnson’s claim is
barred by the statute of limitations because he did not file his amended complaint until
more than two years after his alleged injuries and the medical claim asserted in his Second
Amended Complaint does not “relate back” to his original complaint and thus is time-
barred.34 	Mr. Johnson responds in opposition and argues that a court has already found
that his rights were violated.35 	He further indicates that, upon his release for FCC, he
expected that the state would investigate the situation and offer him an opportunity to press
charges and that he delayed in filing this suit in order allow an investigation to be
conducted.36
A plaintiff must file their claim within a limited period from the time of their
injury. 	This period depends on the statute of limitations enacted for a particular type of
claim. 42 U.S.C. § 1983, under which Mr. Johnson asserts violations of his federal civil
33 Sossamon v. Texas, 563 U.S. 277, 284 (2011); Lapides v. Bd. of Regents of Univ. Sys.
of Georgia, 535 U.S. 613, 619 (2002).
34 Docket 53-1 at 8–10.
35 Docket 62 at 9.
36 Id. at 6.
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rights, does not contain its own statute of limitations. 	Instead, federal courts apply the
statute of limitations for personal injury actions under the law of the state in which the
federal court sits.37 In Alaska, the limitations period for personal injury actions is two years
from the time a cause of action accrues.38 “A cause of action accrues when a party knows
or should know that he has a claim”; ordinarily, the date on which the injury occurs.39
In some circumstances, a claim that is included as part of an amended
complaint “relates back” to the original complaint and is assessed as if it was filed on the
date of the original complaint for purposes of determining whether it was filed within the
statute of limitations.40 An amendment that adds a new party “relates back” to the date of
the original complaint if (1) “the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out--or attempted to be set out--in the original
pleading”; (2) within the time for service of the original complaint, the new party “received
such notice of the institution of the action that the party will not be prejudiced in
maintaining a defense on the merits”; (3) and knew or should have known of the action
against it.41
Ms. Axelsson argues that Mr. Johnson’s claim against her is barred by the
statute of limitations because he did not file either of his amended complaints within two
years of his alleged injuries.42 	Furthermore, she asserts that Mr. Johnson’s Second
37 Butler v. Nat’l Cmty. Renaissance of California, 766 F.3d 1191, 1198 (9th Cir. 2014).
38 Alaska Stat. § 09.10.070.
39 Yurioff v. Am. Honda Motor Co., 803 P.2d 386, 388 (Alaska 1990).
40 Fed. R. Civ. P. 15(c).
41 Fed. R. Civ. P. 15(c)(3).
42 Docket 53-1 at 8.
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Amended Complaint does not relate back to the initial complaint in this action and the
claims therein cannot be assessed as it filed at that time.43 Finally, Ms. Axelsson argues
that, even if the claims in Mr. Johnson’s Second Amended Complaint relate back to the
initial complaint, his medical negligence claim must be dismissed because it accrued before
November 1, 2019—two years prior to the filing of the initial complaint.44
Throughout this action, Mr. Johnson has asserted a claim for denial of
essential medical care under 42 U.S.C. § 1983.45 However, he did not name Ms. Axelsson
as a defendant until he filed an amended complaint.46 And Ms. Axelsson did not receive
notice of the claim against her until Mr. Johnson served her a summons and the Second
Amended Complaint on June 15, 2023.47 	Mr. Johnson’s Second Amended Complaint
alleges that he suffered a back injury after he was assaulted on July 8, 2017, and did not
receive adequate care. 	While the date or dates on which Mr. Johnson was denied care is
unclear, there is no question that it took place prior to his release from FCC on November 6,
2019. Therefore, his cause of action accrued no later than November 6, 2019, and the two-
year limitations period to assert this claim ran on November 6, 2021. 	Mr. Johnson’s
original complaint was filed within this period, on November 2, 2021.48
However, because Mr. Johnson added Ms. Axelsson as a new defendant, his
claims against her only relates back to the filing of his original complaint if the three
43 Docket 53-1 at 8–10.
44 Id. at 10.
45 See Docket 1 at 2; Docket 20-2 at 23.
46 See Docket 15 at 3.
47 Docket 51.
48 Docket 1.
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requirements of Rule 15(c)(3) are satisfied. 	These claims do not relate back because
Ms. Axelsson did not receive “such notice of the institution of the action that the party will
not be prejudiced in maintaining a defense on the merits” within the time for service of the
original complaint.49 	Indeed, Mr. Johnson served his Second Amended Complaint on
June 15, 2023, well beyond the prescribed time for service. “Although we construe
pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.”50
Therefore, Mr. Johnson’s claim for denial of essential medical care against Ms. Axelsson
was not timely filed and must be dismissed.
C. 	Judicial Defendants’ Motion to Dismiss
At 	Docket 	55, 	Defendant 	Alaska 	Superior 	Court 	Judges 	Douglas
Blankenship, 	Bethany 	Harbison, 	Matthew 	Christian, 	Michael 	MacDonald, 	Michael
McConahy, Earl Peterson, and Benjamin Seekins (collectively “Defendant Judges”) move
to dismiss Mr. Johnson’s claims against them. They argue that these claims are time barred,
that they do not relate back to the original complaint, and that the Defendant Judges are
entitled to judicial immunity.51 Mr. Johnson argues that immunity is not absolute.52
State judges are immune from suits for damages for their judicial acts.53 And
this judicial immunity applies “even when the judge is accused of acting maliciously and
49 Fed. R. Civ. P. 15(c)(3).
50 Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).
51 Docket 55-1 at 2.
52 Docket 62 at 11.
53 Swift v. California, 384 F.3d 1184, 1188 (9th Cir. 2004) (citing Pierson v. Ray, 386 U.S.
553–54 (1967)).
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corruptly. . . .”54 Judicial immunity does not apply in all circumstances. “A judge lacks
immunity where he acts in the ‘clear absence of all jurisdiction,’ or performs an act that is
not ‘judicial’ in nature.”55 “To determine if a given action is judicial, those 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.”56 	“To determine if the judge acted with
jurisdiction, courts focus on whether the judge was acting clearly beyond the scope of
subject matter jurisdiction in contrast to personal jurisdiction.”57
Mr. Johnson alleges that the Defendant Judges were each involved in some
manner in his criminal proceedings at the time of his incarceration. In particular, he alleges
that Judge Harbison presided over a July 19, 2017, hearing in Case No. 4FA-17-00293CR
in which Mr. Johnson entered a plea and that she set an electronic reminder in the case
rather 	than 	a 	trial 	date.58 	He 	further 	alleges 	that 	Judge 	Blankenship, 	following
reassignment of the case from Judge Harbison, should have noticed an electronic reminder
associated with the case and scheduled trial, and that his failure to do so allowed the case
to languish while Mr. Johnson awaited trial at FCC.59 	Additionally, he alleges either
54 Pierson, 386 U.S. at 554; see also Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.
1986) (internal quotations omitted) (“Judicial immunity applies however erroneous the act may
have been, and however injurious in its consequences it may have proved to the plaintiff.”).
55 Ashelman, 793 F.2d at 1075 (first quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871),
then quoting Stump v. Sparkman, 435 U.S. 349, 360 (1978)).
56 Id. at 1075–76.
57 Id. at 1076.
58 Docket 20-2 at 14.
59 Id. at 13.
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Judge Christian or Judge Seekins failed to set a future hearing when necessary, that
Judge McCohany did not address Rule 45 during a September 7, 2017, hearing, that
Judge MacDonald reassigned the case but did not notice that it had not received appropriate
attention, and that Judge Peterson, to whom the case was reassigned, neglected the case.60
Each defendant judge is immune from suit in this case. 	Mr. Johnson seeks
damages for acts which are the normal judicial functions of each judge, which occurred in
court or chambers, and were performed as part of the normal judicial function of presiding
over a case or as part of their administrative duties as judicial officers. Setting electronic
reminders with respect to cases, scheduling or failing to schedule hearings or trials,
conducting hearings, and assigning cases, which Mr. Johnson alleges occurred here, are all
judicial acts.
Furthermore, with respect to each alleged act, each judge was within their
jurisdiction. 	Mr. Johnson was a criminal defendant in cases over which the Court and
Defendant Judges had subject matter jurisdiction.
Accordingly, the Defendant Judges are immune from Mr. Johnson’s claims.
The Defendant Judges’ Motion to Dismiss is GRANTED and the claims asserted against
Alaska 	Superior 	Court 	Judges 	Douglas 	Blankenship, 	Bethany 	Harbison, 	Matthew
Christian, Michael MacDonald, Michael McConahy, Earl Peterson, and Benjamin Seekins
are DISMISSED.
60 Id. at 14–17.
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D. 	Mr. Johnson’s Motion for Reconsideration
At Docket 60, Mr. Johnson moves the Court to reconsider its prior order
dismissing Defendants Mary Bullis and John C. Brainerd for failure to serve. Mr. Johnson
argues that the Court should have first given him notice of the service issue and given him
the opportunity show good cause for his failure to timely serve.61
Reconsideration requires “showing of . . . manifest error of the law or fact;
discovery of new material facts not previously available; or intervening change in the
law.”62 	Reconsideration is “an extraordinary remedy, to be used sparingly and in the
interests of finality and conservation of judicial resources.”63 “[A] party must show more
than a disagreement with the Court’s decision, and recapitulation of the cases and
arguments considered by the court before rendering its original decision fails to carry the
moving party’s burden.”64 	Additionally, the three circumstances enumerated in Local
Rule 7.3(h)(1) “are the sole grounds for granting a motion for reconsideration; such a
motion ‘may not be used to raise arguments or present evidence for the first time when
they could reasonably have been raised earlier in the litigation.’”65
The Court has extended the time for service of the summons on multiple
occasions.66 	However, Mr. Johnson is correct that the Court did not allow him to show
good cause for his failure to serve Mr. Brainerd before dismissing his claim as required.
61 Docket 60 at 2.
62 D. Alaska Loc. Civ. R. 7.3(h)(1).
63 Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (quotations omitted).
64 Blakney v. Prasad, No. 3:18-CV-00098-TMB, 2019 WL 3253961, at *1 (D. Alaska
July 19, 2019) (internal quotations and citations omitted).
65 Id. (quoting Carroll, 342 F.3d at 945).
66 See Docket 25, Docket 30, Docket 36.
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Therefore, 	Mr. 	Johnson’s 	Motion 	for 	Reconsideration 	is 	GRANTED.
Mr. Johnson must show good cause for his failure to timely serve Mr. Brainerd within 30
days.
E. 	Mr. Johnson’s Motion to Define Requirements for Requesting and Assignment
of Counsel
Finally, Mr. Johnson moves the Court to clarify the requirements for it to
request volunteer counsel for him.67
A litigant has no federal right to an appointed attorney in a civil action.68
Under 28 U.S.C. § 1915(e)(1), a district court “may request an attorney to represent any
person unable to afford counsel.” However, a district court’s decision to request counsel
for a self-represented litigant in a civil action is discretionary. In order to request counsel,
[a] district court must determine whether a) there is a likelihood of success
on the merits; and b) the [litigant] is unable to articulate his claims in light of
the complexity of the legal issues involved. 	None of these factors is
dispositive; rather they must be considered cumulatively.69
Without these factors, there are no “exceptional circumstances” under which the Court may
request counsel for a civil litigant pursuant to 28 U.S.C. § 1915(e)(1).70
Mr. Johnson has not demonstrated he is likely to succeed on the merits of his
claims. Further, it appears that he might be able to adequately articulate his claims, even
67 Docket 61.
68 See Turner v. Rogers, 564 U.S. 431, 441, 131 S. Ct. 2507, 2516 (2011) (“[T]he Sixth
Amendment does not govern civil cases.”); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)
(“Generally, a person has no right to counsel in civil actions.”).
69 Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (citing Palmer, 560 F.3d at 970).
70 Id.; Palmer, 560 F.3d at 970 (citations omitted) (“[A] court may under ‘exceptional
circumstances’ appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).”).
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if those claims are not viable causes of action under § 1983. As such, the Court will not
request a volunteer attorney on Mr. Johnson’s behalf.
Finally, although Section 1915(e)(1) permits a court to request a volunteer
attorney, this Court currently has no list of volunteer attorneys from which it may request
counsel to represent Plaintiff. 	If a volunteer attorney comes forward to accept this case,
the Court may appoint counsel at that time.
Mr. Johnson’s motion at Docket 61 will be ruled out as DENIED.
IV. 	CONCLUSION
For the foregoing reasons, the Court rules as follows:
1. 	Mr. Johnson’s Motion for Clarification is GRANTED.
2. 	Ms. Axelsson’s Motion to Dismiss is GRANTED.
3. 	Defendant Judges’ Motion to Dismiss is GRANTED.
4. 	Mr. Johnson’s Motion for Reconsideration is GRANTED. He must
show good cause for his failure to timely serve Mr. Brainerd within 30 days of this order.
5. 	Mr. Johnson’s Motion to Define Requirements for Requesting and
Assignment Counsel is DENIED.
IT IS SO ORDERED this 24th day of January, 2024, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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