Drew v. Hernandez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ADAM DREW,
Plaintiff,
v.
ARLANDO HERNANDEZ and
A. STRAWTHER,
Defendants.
Case No. 3:22-cv-00194-RRB
NOTICE OF INTENT TO DISMISS
On September 2, 2022, self-represented prisoner Adam Drew (“Plaintiff”)
filed a Complaint, a civil cover sheet, and an application to waive prepayment of
the filing fee.1 	Plaintiff also submitted summonses to the Clerk of Court and a
request for the U.S. Marshal to perform service.2 	Before the Court had an
opportunity to screen the Complaint, Plaintiff paid the filing fee on November 9,
2022.3 	On January 27, 2023, Plaintiff filed a copy of an unissued summons,4 a
“Declaration for Entry of Default” with copies of USPS tracking information and his
commissary request receipt for postage paid.5 On February 17, 2023, Plaintiff filed
1 Dockets 1–3.
2 Dockets 4–5.
3 Docket 1 (Filing fee: $402, receipt number 100019605).
4 Docket 7.
5 Docket 8.
Case 3:22-cv-00194-RRB Document 14 Filed 07/25/23 Page 1 of 8

Case No. 3:22-cv-00194-RRB, Drew v. Hernandez, et al
Notice of Intent to Dismiss
Page 2 of 8
a Motion for Default Judgment6 and a Civil Rule 4(f) Affidavit stating a copy of the
summons and complaint were served on both defendants.7 	On March 14, 2023,
this Court dismissed Plaintiff’s Complaint without prejudice for failure to state a
claim upon which relief may be granted, but granted leave to amend.8 The Court
dismissed Plaintiff’s motions at Dockets 2–3 as moot. In the same order, the Court
denied Plaintiff’s motions at Dockets 5, 8, and 9.9 	Plaintiff timely filed a First
Amended Prisoner’s Complaint Under the Civil Rights Act 42 U.S.C. § 1983 on the
Court’s form (“First Amended Complaint”).10 	The Court has screened the First
Amended Complaint in accordance with 28 U.S.C. §§ 1915(e) and 1915A. 	Upon
review, the First Amended Complaint also fails to state a claim upon which relief
could be granted. 	Therefore, as explained further below, the Court intends to
DISMISS this action with prejudice.
1. Plaintiff’s Amended Complaint
While the Court may act with leniency towards a self-represented litigant for
procedural violations, Plaintiff is not excused from the rules that govern court
proceedings. 	The Court previously provided Plaintiff with information and the
6 Docket 9.
7 Docket 10.
8 Docket 12.
9 Docket 11.
10 Docket 12.
Case 3:22-cv-00194-RRB Document 14 Filed 07/25/23 Page 2 of 8

Case No. 3:22-cv-00194-RRB, Drew v. Hernandez, et al
Notice of Intent to Dismiss
Page 3 of 8
opportunity to cure the deficiencies in his Complaint.11 Now, in his First Amended
Complaint, Plaintiff asserts that his due process claims were violated by Arlando
Hernandez, 	Superintendent 	of 	the 	Anchorage 	Correctional 	Complex, 	and
A. Strawther, 	a 	correctional 	officer 	for 	the 	State 	of 	Alaska’s 	Department 	of
Corrections 	assigned 	to 	the 	Anchorage 	Correctional 	Complex 	(jointly
“Defendants”). 	Both are sued in their official capacities.12 	Plaintiff alleges that
Defendants violated his due process rights by depriving him of his property, by
denying his request for interview, and by denying his grievance. 	He asserts that
Defendants violated 22 Alaska Admin. Code § 05.125 and Alaska Department of
Corrections’ policies 806.04 and 811.05D.13
Specifically, as Claim 1, Plaintiff states that “Sgt. Strawther deprived me of
my property.” Plaintiff then describes the administrative process he underwent to
report his grievance.14 	Next, as Claim 2, Plaintiff states that “A. Hernandez
deprived me of my property.” 	Again, Plaintiff describes the grievance process he
went through to assert his claims.15 He requests an order requiring Defendants to
11 Docket 11.
12 Docket 12 at 1.
13 Docket 12 at 4.
14 Docket 12 at 3.
15 Docket 12 at 4.
Case 3:22-cv-00194-RRB Document 14 Filed 07/25/23 Page 3 of 8

Case No. 3:22-cv-00194-RRB, Drew v. Hernandez, et al
Notice of Intent to Dismiss
Page 4 of 8
return his property. 	He also seeks a preliminary and permanent injunction and
recovery of his costs.16
2. Civil Rights Claims Under 42 U.S.C. § 1983 (“Section 1983”)
To state a claim for relief under Section § 1983, a plaintiff must allege
plausible facts that, if proven, would establish (1) the defendant acting under color
of state law (2) deprived the plaintiff of rights secured by the federal Constitution
or federal statutes.17 	Section 1983 is not itself a source of substantive rights, but
merely provides a method for vindicating federal rights conferred elsewhere.18
a. Due Process under the Fourteenth Amendment
As explained in the Court’s initial screening order, the standard analysis for
a claim of a violation of procedural due process “proceeds in two steps: 	We first
ask whether there exists a liberty or property interest of which a person has been
deprived, and if so we ask whether the procedures followed by the State were
constitutionally sufficient.”19 	In order to have a “property interest in a benefit, a
person 	clearly 	must 	have 	more 	than 	an 	abstract 	need 	or 	desire 	for 	it.”20
Additionally, authorized deprivations of property are permissible if carried out
16 Docket 12 at 8.
17 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
18 Graham v. Connor, 490 U.S. 386, 393–94 (1989).
19 Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam).
20 Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
Case 3:22-cv-00194-RRB Document 14 Filed 07/25/23 Page 4 of 8

Case No. 3:22-cv-00194-RRB, Drew v. Hernandez, et al
Notice of Intent to Dismiss
Page 5 of 8
pursuant to a regulation that is reasonably related to a legitimate penological
interest.21
Plaintiff has not pled sufficient facts to support a claim under the due process
clause of the Fourteenth Amendment. 	As pled, the deprivations he describes do
not constitute a significant and atypical hardship sufficient to confer a liberty
interest that due process would protect. Even construing Plaintiff’s claims liberally,
Plaintiff does not allege federally protected constitutional or civil rights, but rather
systemic grievances better resolved through the legislative and political processes.
Moreover, any deprivation of Plaintiff’s personal property by prison officials while
detained does not give rise to a viable claim because Plaintiff may avail himself of
“meaningful post-deprivation remedies,” such as the opportunity to file a state-law
tort claim.22
b. Claims Based on Alleged Violations of DOC Policies & Procedures
A violation of a prison regulation does not, by itself, give rise to a federal
constitutional 	claim 	cognizable 	under 	Section 	1983.23 	Only 	if 	the 	events
complained of rise to the level of a federal constitutional or statutory violation,
independent of whether or not the events constitute a failure to adhere to a
21 Turner v. Safley, 482 U.S. 78, 89 (1987).
22 Hudson v. Palmer, 468 U.S. 517, 534 (1984).
23 See, e.g., Sandin v. Conner, 515 U.S. 472, 482 (1995) (finding no constitutionally protected
liberty interest in prison regulations even when the regulations are phrased in mandatory terms);
Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir. 1981) (violations of prison rules or procedures alone
do not state federal constitutional claims).
Case 3:22-cv-00194-RRB Document 14 Filed 07/25/23 Page 5 of 8

Case No. 3:22-cv-00194-RRB, Drew v. Hernandez, et al
Notice of Intent to Dismiss
Page 6 of 8
prison regulation, 	will 	they 	support 	a 	claim 	under Section 	1983.24 	Plaintiff’s
allegations regarding violations of Alaska DOC policies, procedures, or regulations
are not actionable and are therefore DISMISSED.
CONCLUSION
For the reasons set forth above, the First Amended Complaint fails to state
a claim upon which relief may be granted.25 The Court finds amendment would be
futile, and therefore, intends to DISMISS THIS ACTION WITH PREJUDICE.26 The
Court finds no other lesser sanction to be satisfactory or effective in this case.27
24 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
25 In deciding whether to dismiss for failure to prosecute or comply with court orders, a district
court must consider five (5) factors: “(1) the public’s interest in expeditious resolution of litigation;
(2) the court’s need to manage its docket; (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.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (quoting Henderson v. Duncan, 779
F.2d 1421, 1423 (9th Cir. 1986)).
26 A “district court’s ‘decision to dismiss [an] amended complaint with prejudice [may be]
appropriate in light of [plaintiffs’] repeated failure to cure the deficiencies in [their] pleadings.’”
Destfino v. Reiswig, 630 F.3d 952, 959 (9th Cir. 2011) (quoting Neubronner v. Milken, 6F.3d 666,
672 (9th Cir. 1993)); see also Rule 41(b) of Federal Rules of Civil Procedure (permitting dismissal
due to a plaintiff’s failure to prosecute or comply with a court order).
27 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 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).
Case 3:22-cv-00194-RRB Document 14 Filed 07/25/23 Page 6 of 8

Case No. 3:22-cv-00194-RRB, Drew v. Hernandez, et al
Notice of Intent to Dismiss
Page 7 of 8
Plaintiff is cautioned that when a federal district court dismisses a prisoner’s
action at screening, a prisoner plaintiff28 must be given a strike.29 	After three
strikes, a prisoner plaintiff may no longer bring suits in federal courts without
prepayment of the filing fee unless the prisoner can demonstrate an “imminent
danger of serious physical injury.”30
Therefore, in the interest of fundamental fairness, the Court will provide
Plaintiff with 30 days to voluntarily dismiss this action in order to avoid receiving
a strike.31
IT IS THEREFORE ORDERED:
1. The First Amended Complaint at Docket 12 is DISMISSED for failing to
state a claim upon which relief may be granted. 	The Court finds
amendment would be futile.
2. Plaintiff has 30 days to voluntarily dismiss this action in order to avoid
receiving a strike as required by 28 U.S.C. § 1915(g).
3. All pending motions are DISMISSED as moot.
28 A “prisoner” for the purposes of 28 U.S.C. § 1915 is “any person incarcerated or detained in
any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations
of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary
program.” See 28 U.S.C. § 1915(h).
29 28 U.S.C. § 1915(g).
30 Id.
31 A voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1) is not a dismissal for
frivolity, maliciousness, or failure to state a claim upon which relief may be granted and, therefore,
does not count as a “strike” under 28 U.S.C. § 1915(g).
Case 3:22-cv-00194-RRB Document 14 Filed 07/25/23 Page 7 of 8

Case No. 3:22-cv-00194-RRB, Drew v. Hernandez, et al
Notice of Intent to Dismiss
Page 8 of 8
4. If Plaintiff does not respond, the Court will dismiss the action per the
required screening of 28 U.S.C. §§ 1915(e) and 1915A for the above
stated reasoning and issue a strike against Plaintiff per 28 U.S.C.
§ 1915(g) without further notice to Plaintiff.
5. The Clerk of Court is directed to send a Notice of Voluntary Dismissal
(PS 90) with this order.
DATED this 25th day of July, 2023, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
Case 3:22-cv-00194-RRB Document 14 Filed 07/25/23 Page 8 of 8