Burns v. Miranda

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SULTAN STEPHON BURNS,
Plaintiff,
v.
M. MIRANDA and ALASKA
DEPARTMENT OF
CORRECTIONS,
Defendants.
Case No. 3:20-cv-00227-JMK
ORDER DIRECTING SERVICE AND RESPONSE
Sultan Stephon Burns, a self-represented state prisoner, has filed a Prisoner
Civil Rights Complaint under 42 U.S.C. § 1983, alleging retaliation for filing a
grievance.1 	As a prisoner litigant, Mr. Burns’s Complaint is subject to screening
under 28 U.S.C. § 1915(e). The Complaint, liberally construed,2 appears to state
1 Docket 1.
2 See Hebbe v. Plier, 627 F.3d 338, 342 (9th Cir. 2010) (“[O]ur ‘obligation’ remains [after
Ashcroft v. Iqbal, 556 U.S. 662 (2009)], ‘where the petitioner is pro se, particularly in civil
rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of
any doubt.’”) (citation omitted).
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a plausible claim3 for the violation of Mr. Burns’s First Amendment rights under the
U.S. Constitution against Assistant Superintendent Miranda.4
Mr. Burns also names the Alaska Department of Corrections as a defendant.
However, a State or a state agency is not a “person” under Section 1983.5
Therefore, the Alaska Department of Corrections is not a proper defendant and is
terminated from this suit.
This Court has jurisdiction under 28 U.S.C. § 1343.
IT IS THEREFORE ORDERED:
1. 	The Alaska Department of Corrections is terminated as a defendant.
2. 	The Clerk of Court is directed to change the caption of this suit to reflect M.
Miranda as the only defendant, and the case is to be renamed Burns v.
Miranda.
3. 	Mr. Burns is directed to use the updated caption on all future motions and
filings.
3 See Cook v. Brewer, 637 F.3d 1002, 1006 (9th Cir. 2011) (“While the pleading standard
for Rule 8(a) is liberal, the ‘[f]actual allegations must be enough to raise a right to relief
above the speculative level.’. . . 	In Iqbal, the Court noted that ‘[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a
claim to relief that is plausible on its face.”’”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007), and Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570)).
4 See Docket 1.
5 Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997) (“‘States or
governmental entities that are considered ‘arms of the State’ for Eleventh Amendment
purposes are ‘not persons’ under 1983.’”) (quoting Will v. Mich. Dep’t of State Police, 491
U.S. 58, 70 (1989)).
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4. 	The Application to Waive Prepayment of the Filing Fee is GRANTED. 	A
separate order shall issue regarding collection of the filing fee.
5. 	Mr. Burns’s Complaint was subject to screening and service must be
effectuated in accordance with this order. Accordingly, the Motion for Entry
of Default is DENIED AS PREMATURE.
6. 	Prior to docketing this order, the Clerk of Court shall provide electronic notice
via 	CM/ECF 	to 	the 	State 	of 	Alaska, 	Civil 	Division, 	of 	all 	orders 	and
documents issued in this case.
7. 	The Clerk of Court shall immediately send a copy of this order and the
Complaint to:
Mandee Mlcek
Assistant Attorney General
Civil Division
1031 W. 4 th Ave.
Anchorage, Alaska 99501
8. 	On or before 21 days from the date of service of this order, the Attorney
General for the State of Alaska or his designee shall file an appearance for
each named Defendant that the Attorney General has decided to represent.
9. 	Each Defendant represented by the Attorney General for the State of Alaska
shall have 60 days after the entry of appearances to file an Answer or
otherwise respond. 	The Court will issue an additional order with service
instructions for any Defendant that the Attorney General of the State of
Alaska has not appeared for.
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10. 	At all times, Mr. Burns shall keep the Court informed of any change of
address. 	Such notice shall be titled “Notice of Change of Address.”6 	The
Notice shall contain only information about the change of address, and its
effective date. 	The Notice shall not include requests for any other relief.
Failure to file the Notice may result in the dismissal of the action for failure
to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.
11. 	After service of the Complaint, all future papers sent to the Court must be
identified with the name of the Court, the case number, the name of the
Plaintiff and name of the first the Defendant, and the title of the document,
as illustrated on the first page of this order.7
12. 	Mr. Burns shall serve a copy of all further filings submitted to the Court upon
each Defendant or, if an appearance has been entered by counsel for
Defendant, on the Defendant’s attorney(s). Mr. Burns shall include, with any
original paper filed with the Clerk of Court, a certificate stating the date that
an exact copy of the document was mailed to the Defendant or her counsel.
A Certificate of Service may be written in the following form at the end of the
document:
6 See Local Civil Rule 11.1(b) (requiring a notice of change of address to be filed; “[s]elf-
represented parties must keep the court and other parties advised of the party’s current
address and telephone number.”). A Notice of Change of Address form, PS23, may be
obtained from the Clerk of Court, if needed.
7 See Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the parties; the title
of other pleadings, after naming the first party on each side, may refer generally to other
parties.”).
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I hereby certify that a copy of the above (name of document)
was mailed, first class, U.S. mail, to (name of opposing party or
counsel) 	at 	(address) 	on 	(date 	of 	delivery 	for 	mailing 	to
correctional officer). (Signature)
Any paper received by a District Court Judge or Magistrate Judge which
does not include a Certificate of Service indicating that each Defendant was
served with a copy of that document will be disregarded by the Court.
13. 	Each litigant is responsible for keeping a copy of each document filed with
the Court. When you send a document to the Court, you will receive a Notice
of Electronic Filing (“NEF”) from the Court that will inform you of when that
document was filed on the docket and the docket number of the document.
Copies of documents that have been filed with the Court may be obtained
from 	the 	Clerk’s 	Office 	for 	$0.50 	per 	page. 	In 	the 	event 	of 	special
circumstances or serious financial need, a party may file a motion asking for
the cost of copies to be waived or reduced.
14. 	No party shall have any ex parte communication with a District Court Judge
or Magistrate Judge of this Court about the merits of this action. This means
that parties cannot communicate with any judge without the presence and/or
knowledge and consent of the other parties. 	For example, Mr. Burns may
not write letters to, or call, a judge directly. 	Any request for action by the
Court during these proceedings must be filed with the Clerk of Court as a
motion.
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15. 	A motion should contain the information identified in the caption of this Order
and should be titled “Motion for (add the relief requested).” 	In a motion, a
party should state specifically and concisely what he or she wants, so that
the Court understands what the party is requesting. This Court’s Local Civil
Rule 7.4 requires that motions be filed with a proposed order that the Court
can issue, if the motion is granted. The proposed order helps to clarify what
the moving party is asking the Court to do.
16. 	The Clerk of Court is directed to send a copy of the Court’s Motion form,
PS15, to Mr. Burns with this order.
17. 	All 	documents 	filed 	with 	the 	Clerk 	of 	Court 	must 	contain 	an 	original
signature, and must be mailed to the Court at the following address:
U.S. District Court
222 West 7th Avenue, #4
Anchorage, Alaska 99513
18. 	The Clerk of Court is directed to send Mr. Burns a copy of the District Court’s
handbook, “Representing Yourself in Alaska’s Federal Court,” with this
order.
19. 	Mr. Burns is warned that, if the Defendant prevails in this action, he may be
ordered to pay costs and attorney’s fees to the Defendant.8
8 See 28 U.S.C. § 1915(f); Fed. R. Civ. P. 54(d).
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DATED this 6th day of November, 2020 at Anchorage, Alaska.
/s/Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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