Carney v. Lapinskas et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
CRESS CARNEY,
Plaintiff,
v.
SUPERINTENDENT LAPINSKAS,
et al.,
Defendant.
Case No. 3:19-cv-00317-SLG-MMS
REPORT AND RECOMMENDATION
MOTION FOR SUMMARY
JUDGMENT
I. 	Motion Presented and Procedural History
On December 17, 2019, a complaint was filed by Mr. Cress Carney against
“Superintendant 	Lapinskas, 	Ssgt 	Stanley, 	Ssgt 	Ennis, 	[and] 	Ms. 	Gillmore”,
collectively referred to as Defendants. 	The complaint alleges that “[f]or several
years now the Department of Correction [sic] has been alienating parts of my
native checks and forcing my [sic] to give them money to pay for their bills/Fees.”1
After being served and directed to respond, Defendants responded to each of the
allegations on September 2, 2020 in their answer. Defendants assert, among other
things, that “all [o]ffender [t]rust [a]ccount deposits and disbursements with respect
to Mr. Carney’s account have at all times been in compliance with Department of
Corrections policies and procedures.”2 The answer addresses the procedure and
1 Docket 1.
2 Docket 12.
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regulations the Defendants followed for money that is deposited into a prisoner’s
‘general fund,’ and admitted that Mr. Carney used the grievance process to assert
his right to separate his native corporation check from being comingled into his
general fund.3
On September 2, 2020, this Court issued a scheduling order, which set the
deadline for any amended pleadings for November 2, 2020.4 	On November 2,
2020, Mr. Carney filed a “Motion for Exten[s]ion of Time for Scheduling Deadline
for Amended Pleadings.”5 Mr. Carney stated that because of COVID restrictions,
he was unable to access the law library.6 	The Defendants responded that
Mr. Carney filed his complaint 11 months ago, but did not object “to a short
extension of time.”7 	On November 30, 2020, the Defendants filed a Motion to
Dismiss (the “Motion”).8 An Order & Warning Notice to Pro Se Litigants was issued
by this Court on December 30, 2020. 	The Order granted Mr. Carney a brief
extension of time to amend his pleadings, and set a briefing schedule as to the
Motion.9 Additionally, the Court recognized that Defendants included exhibits and
3 Docket 12 at 3–4.
4 Docket 13.
5 Docket 14.
6 Docket 14 at 1.
7 Docket 15.
8 Docket 16.
9 Docket 18.
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materials outside of the pleadings, which converted the Motion under Federal Rule
of Civil Procedure 12(b)(6) to a Motion for Summary Judgment under Federal Rule
of Civil Procedure 56.10
After providing Mr. Carney with ample time to amend his pleadings and
respond to Defendants’ Motion, and taking into consideration the COVID-19
Pandemic,11 this Court has provided Mr. Carney a significant grace period. 	The
Court has received no response from Mr. Carney. The Court can wait no longer.
In light of Mr. Carney’s lack of response to this Court’s Order at Docket 18,
the Defendants’ Motion at Docket 16 is well taken. As mentioned in the Order and
Warning to Pro Se Litigant, the “Defendants’ Motion references facts outside of the
pleadings and requests that Mr. Carney’s action be dismissed with prejudice.” The
Court will consider the facts presented in the Defendants’ Motion and the facts
presented in the complaint and answer.
10 Dockets 18 at 3. See also Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule 56. All parties must be given a reasonable
opportunity to present all the material that is pertinent to the motion.”); see also Stratton v. Buck,
697 F.3d 1004, 1008 (2012) (holding that if/when a district court considers materials beyond the
pleadings when ruling upon a defendant’s motion to dismiss, a pro se prisoner plaintiff must
receive notice similar to that of Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc)).
11 See District of Alaska - Miscellaneous General Orders: MGO 20-11, MGO 20-12, MGO
20-13, MGO 20-17, MGO 20-18, MGO 20-19, MGO 20-20, MGO 20-21, MGO 20-22, MGO
20-23, MGO 20-24, MGO 20-26, MGO 20-27, MGO 20-28, MGO 20-29, MGO 20-32, MGO
20-34, MGO 20-37, MGO 20-38, MGO 20-39, MGO 20-40, MGO 21-05, MGO 21-09, and MGO
21-10. 	https://www.akd.uscourts.gov/news/covid-19-coronavirus-and-court-operations 	(last
accessed on April 9, 2021).
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For the following reasons, this Court recommends the District Court grant
the Motion for Summary Judgment at Docket 16.
II. 	Factual Allegations
Mr. Carney’s complaint states that his civil rights were violated by the
Defendants “[w]hile acting under the color of law, [because their] policy or custom
violated [his] rights…[by] tak[ing] [his] native check money.”12 	Mr. Carney seeks
injunctive relief and money damages against each Defendant.13
Mr. Carney alleges Defendants took improper deductions from his prisoner
trust account and violated his property rights to his native corporation dividend
funds.14 He advises that he exhausted the grievance process to resolve the issue
with the Department of Corrections, to no avail.15
Defendants 	“admit 	that 	all 	[o]ffender 	[t]rust 	[a]ccount 	deposits 	and
disbursements with respect to Mr. Carney’s account have at all times been in
compliance 	with 	Department 	of 	Corrections 	policies 	and 	procedures.”16 	In
addition, Defendants admit that Mr. Carney followed the grievance procedure, but
deny most statements made by Mr. Carney.17
12 Docket 1 at 3.
13 Docket 1 at 11.
14 U.S. CONST . amend. IVX.
15 Docket 1 at 11.
16 Docket 12 at 2.
17 Docket 12 at 3–4.
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In the Motion, Defendants state that “[n]o defendant alienated Mr. Carney’s
native corporation dividend funds by considering all funds deposited into Mr.
Carney’s [o]ffender [t]rust [a]ccount as fully comingled general funds that are
available for use to pay for Mr. Carney’s expenses.”18 Further and more broadly,
Defendants assert that Mr. Carney’s allegations are “conclusory allegations,
unjustified 	deductions 	of 	fact, 	or 	unreasonable 	inferences.”19 	Defendants
acknowledge that prisoners have a protected property interest in their personal
property, including funds in a prisoner’s offender trust account.20 	However,
Defendants assert that this property interest is not absolute. Rather, administrative
and procedural pre-deprivation processes temper prisoner property rights.21
III. 	Legal Standard
A defendant may seek dismissal of an action for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6).
Generally, when reviewing a Rule 12(b)(6) motion, a court considers only
the pleadings and documents incorporated into the pleadings by reference, as well
as matters on which a court may take judicial notice.22 	Rule 12(b)(6) motions
18 Docket 16 at 2.
19 Docket 12; Docket 17 at 2.
20 Docket 17 at 4–5.
21 Docket 17 at 5.
22 Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1061 (9th Cir. 2008) (citing
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).
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supported by exhibits or information outside of the pleadings may be considered
by a court.23 Yet, if the additional materials are not excluded, “the motion must be
treated as one for summary judgment under Rule 56.”24 The Court converted the
Motion to Dismiss at Docket 16 to Motion for Summary Judgment in its Order &
Warning Notice to Pro Se Litigant at Docket 18.
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary
judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” 	The burden of
showing the absence of a genuine dispute of material fact lies with the moving
party.25 If the moving party meets this burden, the non-moving party must present
specific factual evidence demonstrating the existence of a genuine issue of fact.26
The non-moving party may not rely on mere allegations or denials.27 Rather, that
party must demonstrate that enough evidence supports the alleged factual dispute
to require a finder of fact to make a determination at trial between the parties’
differing versions of the truth.28
23 D.W.J. v. Wausau Bus. Ins. Co., 192 F. Supp. 3d 1014, 1018 (D. Alaska 2016) (stating a
court has discretion to accept or reject materials); see Rule 12(d).
24 Fed. R. Civ. P. 12(d).
25 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
26 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
27 Id.
28 Id. (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968)).
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When considering a motion for summary judgment, a court views the facts
in the light most favorable to the non-moving party and draws “all justifiable
inferences” in the non-moving party’s favor.29 	To reach the level of a genuine
dispute, the evidence must be such “that a reasonable jury could return a verdict
for the non-moving party.”30 	If the evidence provided by the non-moving party is
“merely 	colorable” 	or 	“not 	significantly 	probative,” 	summary 	judgment 	is
appropriate.31
IV. 	Discussion
As discussed above supra II, this Court has reviewed the facts presented in
the complaint most favorable to Mr. Carney. That Mr. Carney’s native corporation
dividend check has been deposited into his offender trust account is not in dispute.
Moreover, the fact that the Department of Corrections administers the offender
trust account, on behalf of incarcerated prisoners is not in dispute. 	Additionally,
this 	Court 	takes 	judicial 	notice 	of 	the 	regulations 	and 	policies 	the 	Alaska
Department of Corrections follows for Prisoner Accounts 	under 302.12 (last
updated 	11/05/2018) 	and 	medical 	expenses 	under 	807.07 	(last 	updated
01/01/2017).32
29 Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).
30 Anderson, 477 U.S. at 248.
31 Id. at 249.
32 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 Fed. R. Evid. 201.
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Defendants 	demonstrate 	that 	Department 	of 	Corrections 	policies 	and
processes govern deposits and withdrawals from a prisoner’s offender trust
account. This includes the deduction of a prisoner’s expenses for medical services
and restitution. 	Defendants have provided additional information regarding Mr.
Carney’s ability to dispute medical expenses, if he so choses, within three days of
receiving medical services. He has not done so for the period of his incarceration;
even though he has followed the same procedural process to dispute the deposit
of his native corporation dividend funds into his offender trust account general
fund.33 	These processes provide the notice and process required to protect a
property interest under the Fourteenth Amendment.
Defendants also provided additional information about the Alaska Native
Claims 	Settlement 	Act 	(ANCSA), 	43 	U.S.C 	§ 	1602, 	et 	seq. 	Although 	not
referenced directly by Mr. Carney, the language he uses is very similar to 43 U.S.C.
§ 1606(h)(1)(B).34 The restrictions provided in ANCSA focus on a shareholder’s
33 Docket 17 at 6
34 Docket 1 at 4 (“no part of my native check can be sold pledged, subjected to a lien or judgement
execution, assigned in present or future, treated as an asset or otherwise alienated”); see also 43
U.S.C. § 1606(h)(1)(B):
(B) Except as otherwise provided in this subsection, Settlement Common Stock,
inchoate rights thereto, and rights to dividends or distributions declared with
respect thereto shall not be—
(i) sold;
(ii) pledged;
(iii) subjected to a lien or judgment execution;
(iv) assigned in present or future;
(v) treated as an asset under—
(I) title 11 of the United States Code or any successor statute,
(II) any other insolvency or moratorium law, or
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right to receive a dividend. 	Specifically, a shareholder cannot be deprived of the
right to native corporation dividends.35
What Mr. Carney failed to provide in his complaint was the fact that he
deposits the native corporation dividend funds into his offender trust account. The
offender trust account is used like a savings account at a bank. This Court
recognizes the potential difficulties of an inmate using a savings account outside
the Department of Corrections, but that is an option if Mr. Carney does not want
his dividend funds comingled or accessed by the Department of Corrections.
Additionally, Mr. Carney failed to respond to Defendants’ Motion; thereby making
it unopposed.
Accordingly, 	Defendants 	have 	demonstrated 	that 	there 	is 	no 	genuine
dispute as to any material fact, and the Defendants are entitled to judgment as a
matter of law.
//
//
//
//
//
(III) other laws generally affecting creditors’ rights; or
(vi) otherwise alienated.
35 43 U.S.C. § 1606(h)(1)(B)
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IV. Conclusion
Therefore, 	this 	Court 	recommends 	the 	District 	Judge 	GRANT 	the
Defendants’ Motion for Summary Judgment at Docket 16, for reasons explained in
this Court’s order. 	Any party may serve and file specific written objections to this
recommendation within fourteen (14) business days after being served with a copy.
28 U.S.C. § 636(b)(1); Federal Rule of Civil Procedure 72(b); Local Magistrate
Judge Rule 5(b). Failure to file objections within the specified time may waive the
right to appeal the District Court’s order.
DATED this 3rd day of August 2021, at Anchorage, Alaska.
/s/ Matthew M. Scoble
United States Magistrate Judge
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