Harry v. The Alaska Parole Board et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KENNETH HARRY,
Plaintiff,
v.
THE ALASKA PAROLE BOARD, et al.,
Defendants.
Case No. 3:21-cv-00190-JMK
ORDER OF DISMISSAL
On August 10, 2021, Kenneth Harry, a self-represented litigant, filed a
“Letter of Intent to Sue by way of the U.S. Supremacy Clause in the United States
Supreme Court” and a “Motion for Emergency Injunction for Estoppel of the
Sentence and it’s [sic] effects in case no. 3AN-06-01028 C.R.”1 The Court issued
a Deficient Filing Order instructing Mr. Harry on how to properly commence a civil
suit 	and 	denied 	the 	motion.2 	Subsequently, 	Mr. 	Harry 	filed 	a 	Motion 	for
Clarification/Request, which the Court denied, because it cannot issue advisory
opinions.3 On September 7, 2021, Mr. Harry filed a Complaint on the Court’s civil
rights form and an Application to Waive Prepayment of the Filing Fee.4 	On
1 Dockets 1 & 2.
2 Docket 3.
3 Dockets 4 & 6.
4 Docket 7.
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October 7, 2021, he filed a “Motion for Clarification and to Proceed to Emergency
Injunction Phase of these Proceedings and to Waive any and or all filing fees.”5
I. 	Complaint
Mr. Harry alleges suit under the Supremacy Clause of the U.S. Constitution
and 42 U.S.C. § 1983. 	He names the (1) Alaska Parole Board; (2) Alaska Court
System; (3) Alaska Legislature; (4) Office of Special Prosecutions; (5) Office of
Public Advocacy; (6) Sidney Billingslea; (7) Alaska Department of Corrections;
(8) U.S. District Court for the District of Alaska; (9) Ninth Circuit Court of Appeals;
and (10) Alaska Sex Offender Registry, as defendants.
In essence, Mr. Harry’s Complaint arises from a state court criminal matter,
State of Alaska v. Harry, Case No. 3AN-06-01028CR. 	The Court takes judicial
notice that Mr. Harry was convicted after a jury trial of one count of felony Sexual
Assault 1, Penetration without Consent, and one count of misdemeanor Assault in
the 4th Degree.6 	Mr. Harry was sentenced on January 12, 2007.7 	Mr. Harry’s
various allegations are as follows:
5 Docket 10.
6 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); 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.
7 State of Alaska v. Harry, Case No. 3AN-06-01028CR docket entry dated January 12,
2007 (“Judgment of Conviction. Case Closed.” 	For a complete docket view of the state
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• 	Claim 1: 	The Alaska Parole Board violated his rights to due process
and to be free from cruel and unusual punishment in August 2013 by
usurping his “good time” and extending his sentence twice.8
• 	Claim 2: The Alaska Court System violated his rights to due process
and to be free from cruel and unusual punishment in 2006, because
the Alaska courts construed “without consent” in a manner to allow
conviction without any criminal conduct by the defendant; violated
principles of double jeopardy and res judicata to convict him with
insufficient evidence; and subjected him to over 16 years on a 12-year
sentence.9
• 	Claim 3: The Alaska Legislature violated his rights of free association
and to be to be free from cruel and unusual punishment in 2006,
because of careless drafting making “without consent” a “catch all
provision” and an action taken by the victim, not the perpetrator,
therefore removing the required actus reus of the crime. 10
• 	Claim 4: The Office of Special Prosecutions and Appeals violated his
rights to due process and equal protection in 2006, because the
prosecutor falsified and misrepresented evidence, which led to a
conviction based on insufficient evidence.11
• 	Claim 5: 	The Office of Public Advocacy violated his right to due
process in 2006 by “flat out refus[ing] to uphold their oath and duty to
do so on behalf of my defense.”12
litigation in this matter, individuals may search Alaska state online case records at
https://records.courts.alaska.gov/).
8 Docket 7 at 6.
9 Docket 7 at 7.
10 Docket 7 at 8.
11 Docket 7 at 9.
12 Docket 7 at 10.
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• 	Claim 6: 	Sidney Billingslea, his former attorney, violated his right to
due process in 2006, because of her ineffective assistance of counsel
leading to his wrongful conviction.13
• 	Claim 7: The Alaska Department of Corrections violated his rights to
due process and to be free from cruel and unusual punishment from
2015–2019 by holding him on the “seal of the parole board” past his
sentence.14
• 	Claim 8: The U.S. District Court for the District of Alaska violated his
rights 	to 	due 	process 	and 	to 	be 	free 	from 	cruel 	and 	unusual
punishment in 2010 and 2017 by aiding the Alaska Court System and
the Alaska Parole Board in his illegal detention and for denying his
prior attempts to recover damages and injunctive relief.15
• 	Claim 9: The Ninth Circuit Court of Appeals violated his right to due
process in 2010 and 2018 by denying his appeals and aiding in his
detention.16
• 	Claim 10: The Alaska Sex Offender Registry violated his rights to be
free from cruel and unusual punishment and freedom of association
in 2006, because the registry acts as a bill of attainder or a bill of pains,
subjected him to double jeopardy, and as a first offender he should
only be required to register for 15 years, not for life.17
For relief, Mr. Harry requests (1) damages of $10,000,000.00; (2) punitive
damages of $50,000,000.00; (3) an order to modify the statute relevant to his
conviction to “better clarify ‘without consent’ or change it back to: 	“Forcibly and
13 Docket 7 at 11.
14 Docket 7 at 12.
15 Docket 7 at 13.
16 Docket 7 at 14.
17 Docket 7 at 15.
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against the will of . . .’”; (4) a declaration that Mandatory Parole is invalid; (5) a
declaration that Alaska Stat. § 11.41.410(a)(1) is vague and overbroad; and (6) for
his “record to be expunged and other actions still to be named.”18
II. 	Screening Requirement
Federal law requires a court to conduct an initial screening of a civil
complaint filed by a self-represented litigant seeking to proceed in a lawsuit in
federal court without paying the filing fee.19 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.20
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.”21 	In conducting its
review, a court must liberally construe a self-represented plaintiff’s pleading and
18 Docket 7 at 16–17.
19 See, e.g., Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000).
20 28 U.S.C. § 1915(e)(2)(B).
21 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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give the plaintiff the benefit of the doubt.22 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.23
III. 	Discussion
For the reasons explained below, Mr. Harry fails to state a claim upon which
relief can be granted. Therefore, this action must be dismissed.
a. 	Supremacy Clause
The 	Supremacy 	Clause 	of 	the 	U.S. 	Constitution 	provides 	that 	when
Congress legislates pursuant to its powers federal law preempts any conflict with
state law.24 The Supremacy Clause is not a source of federal rights and does not
create a private cause of action.25 Plainly, individual litigants cannot sue under the
Supremacy 	Clause. 	Accordingly, 	Mr. 	Harry 	may 	not 	bring 	suit 	under 	the
Supremacy Clause of the U.S. Constitution.
22 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)).
23 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)).
24 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210–11 (1842).
25 Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 324–25 (2015).
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b. 	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 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.”27 	To act under color of state law, a complaint
must allege that the defendants acted with state authority as state actors.28 To be
deprived of a right, the defendant’s action needs to either violate a right guaranteed
by the Constitution or an enforceable right created by federal law.29
A convicted person may not bring a civil rights claim under 42 U.S.C. § 1983
that collaterally attacks his state court conviction. Where a § 1983 action alleges
constitutional violations that would necessarily question or concern the validity of
a state court conviction or sentence, the prisoner must establish that the underlying
sentence 	or 	conviction 	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
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)).
29 Buckley v. City of Redding, 66 F. 3d 188, 190 (9th Cir. 1995); Blessing v. Freestone,
520 U.S. 329, 340–41 (1997).
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habeas corpus.”30 	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.”31
As a threshold requirement in order for Mr. Harry to procced on these claims,
he must demonstrate that his conviction has been overturned on appeal, expunged
by executive order, declared invalid by a state tribunal, or called into question by
a writ of habeas corpus—which he has not and cannot do.32 	All of Mr. Harry’s
allegations grow out of his 2006 prosecution and 2007 convictions for Sexual
Assault and Assault. Mr. Harry’s express purpose of this suit is to undermine the
validity of his conviction as evidenced by the defendants named, his civil rights
allegations, and the relief requested. 	Mr. Harry disagrees with the method of his
conviction; the law under which he was convicted and sentenced; the execution of
his sentence and supervision; and that his prior requests for overturning that
conviction were denied by state and federal courts. Furthermore, he requests the
Court 	expunge 	his 	conviction. 	This 	is 	expressly 	the 	type 	of 	federal 	court
interference that Heck v. Humphrey prohibits. The Court cannot grant such relief
30 Heck v. Humphrey, 512 U.S. 477, 487 (1994).
31 Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005).
32 The Court also takes judicial notice that Mr. Harry has previously raised similar claims
and been instructed that he cannot proceed due to Heck v. Humphrey. 	See Harry v.
Alaska Parole Board, Case No. 3:20-cv-00261-RRB. See supra note 6.
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in a civil action, nor can these claims proceed due to the bar imposed by Heck v.
Humphrey.
Mr. Harry fails to state a claim upon which relief can be granted. Therefore,
this action must be dismissed.
IT IS THEREFORE ORDERED:
1. 	This action is DISMISSED WITHOUT PREJUDICE.
2. 	All pending motions are DENIED AS MOOT.
3. 	The Clerk of Court shall enter a final judgment.
DATED this 12th day of November, 2021, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
UNITED STATES DISTRICT JUDGE
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