Keith-Joseph v. Saxby et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KEITH JOSEPH TRACEY,1
Plaintiff,
v.
JUDGE SAXBY, et al.,
Defendants.
Case No. 3:21-cv-00249-SLG-KFR
REPORT & RECOMMENDATION2
On November 9, 2021, Keith Joseph Tracey, a self-represented prisoner
(hereinafter 	“Plaintiff”), 	filed a “Notice of Intent 	to File Suit/Lien.”3 	On
November 	18, 2021, the Court issued an Order Re: 	Deficient Filing that
1 Plaintiff’s Complaint at Docket 3 clarified that his name is Keith Joseph Tracey. The Court
updates the caption, accordingly.
2 Under 28 U.S.C. § 636(b)(1), a District Court may designate a magistrate judge to hear
and determine any pretrial matter pending before the Court. Under the same provision, a
district court judge may reconsider any pretrial matter where it has been shown the
magistrate judge’s order is clearly erroneous or contrary to law. Within fourteen days
after being served with a copy of a magistrate judge’s order, any party may serve and file
written objections. Objections and responses shall not exceed five (5) pages in length and
shall not merely reargue positions presented in motion papers. Rather, objections and
responses shall specifically designate the findings or recommendations objected to, the
basis of the objection, and the points and authorities in support. A District Court judge
may accept, reject, or modify, in whole or in part, the magistrate judge’s order. Reports
and recommendations are not appealable orders. Any notice of appeal pursuant to Fed. R.
App. P. 4(a)(1) should not be filed until entry of the district court’s judgment. See Hilliard
v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
3 Docket 1.
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instructed Plaintiff on how to file a complaint and to either pay the filing fee
or file an application to waive the filing fee in order to properly commence a
civil action.4 	On November 18, 2021, Plaintiff filed a Prisoner’s Complaint
under the Civil Rights Act 42 U.S.C. § 1983 (hereinafter “Complaint”), a civil
cover sheet, and a Prisoner’s Application to Waive Prepayment of the Filing
Fee.5 	Subsequently, 	Plaintiff filed two large affidavits and a “List of Just
Compensation.”6
The Court now screens Plaintiff’s Complaint 	in accordance 	with 28
U.S.C. §§ 1915(e) and 1915A. The Court will not consider Dockets 8–10 in the
screening process, as filing additional documents into the record does not
properly amend a civil complaint.7
SCREENING REQUIREMENT
Federal law requires a court to conduct an initial screening of a civil
complaint filed by a self-represented prisoner. In this screening, a court shall
dismiss the case at any time if the court determines that the action:
4 Docket 2.
5 Dockets 4–6.
6 Dockets 8–10.
7 See Local Civil Rule 15.1.
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(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.8
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.”9 	In
conducting its review, a court must liberally construe a self-represented
plaintiff’s pleading and give the plaintiff the benefit of the doubt.10 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.11
8 28 U.S.C. § 1915A.
9 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)).
10 	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)).
11 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)).
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Futility exists when “the allegation of other facts consistent with the
challenged pleading could not possibly cure the deficiency[.]”12
DISCUSSION
I. 	Complaint
Plaintiff brings suit against Alaska Superior Court Judge Saxby, Alaska
Court System Clerk L. Wilson, Assistant Public Defender John Zelinsky, and
Assistant District Attorney Katholyn Runnels.13 	Plaintiff sues Defendants in
their individual and official capacities.14
In Claim 1, Plaintiff alleges all Defendants violated his First Amendment
right to access the courts by using an unconstitutional 	“special order” to
“deny[ him] access to the courts.”15 Plaintiff 	alleges “all defendants 	have
violated Ak. Stat. § 11.56.850, Ak Stat. § 11.56.200, AK Stat. § 11.76.110, 18
U.S. Code § 4, 18 U.S. Code § 1621, 18 U.S. Code Part 1, Chapter 13 § 241 &
242[,] with the clerk [also] violating 18 U.S. Code § 2071.”16 Plaintiff further
12 See Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.
1986).
13 Docket 1 at 2–3.
14 Docket 1 at 2–3.
15 Docket 1 at 4.
16 Docket 1 at 4.
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alleges that “[t]he judge acted out of his jurisdiction and assumed the role of
a public health expert/official.”17
In Claim 2, Plaintiff alleges that Defendants Judge Saxby, Zelinsky, and
Runnels violated his Sixth Amendment 	right to a speedy and public trial.
Plaintiff asserts that “the substantive policy decision, re-implemented each
time it is reconsidered, is an abuse clearly demonstrated by the deception of
the court that their power to stop, pause, and state 	[R]ule 45 keeps the
integrity of the 6th [A]mendment intact.”18
In Claim 3, Plaintiff alleges that Defendants Judge Saxby, Zelinsky, and
Runnels violated his Ninth Amendment 	right to be free from government
tyranny due to the “special order.”19
In Claim 4, Plaintiff alleges that all Defendants violated his Fourteenth
Amendment right to due process “[b]y implementing 	this unconstitutional
‘special 	order’ they 	have 	denied my 	access 	to 	the 	courts, 	the 	discovery
concerning my case, my right to a speedy and public trial, my ability to
17 Id.
18 Docket 1 at 5.
19 Docket 1 at 6.
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exhaust [administrative] remedies and the people[‘s] right to be free from
government tyranny[.]”20
Plaintiff 	does 	not 	provide 	any 	details 	about 	the 	“special 	order”
referenced 	in 	Claims 	1, 	2 	and 	4, 	or 	the 	“substantive 	policy 	decision”
mentioned in Claim 2. However, the Court takes judicial notice of the Special
Orders of the Chief Justice of the Alaska Supreme Court, beginning March 15,
2020, through December 2, 2021;21 and Presiding Judge Order 901 of the
Third Judicial District. 	Presiding Judge Order 	901 suspended 	jury trials
within Alaska’s Third Judicial District from September 16, 2021, until January
10, 2022, because of the COVID-19 pandemic, 	thereby limiting Plaintiff’s
ability to 	make in-person appearances 	on the 	charges22 	for which 	he is
currently detained by the State of Alaska.23
Plaintiff does not enclose the page of the Prisoner’s Complaint that
generally articulates the relief sought. 	However, Plaintiff’s Notice of Intent
20 Docket 1 at 7.
21 See Special Orders of the Chief Justice, Alaska Court System: COVID-19 Response, available
at: https://courts.alaska.gov/covid19/index.htm#socj
22 See infra at 27-29
23 See Presiding Judge Order #901, Alaska Court System: COVID-19 Response, available at:
https://courts.alaska.gov/covid19/index.htm#socj
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to File Suit includes 	a demand for relief of: (1) $173,000.00 in punitive
damages per constitutional violation; 2) a cease and desist order as to the
“special order;” and (3) dismissal of Plaintiff’s 	charges with prejudice.24
Additionally, 	Plaintiff 	includes 	an 	affidavit 	that 	states, 	“I’m 	suing 	all
defendants 	in 	their 	individual 	capacities 	for 	punitive 	damages 	as 	just
compensation for [the] violation of my [Constitutional] Rights.”25
In 	support 	of 	his 	Complaint, 	Plaintiff 	includes 	several 	exhibits,
including: (1) a statement explaining why Exhibits A and B, an affidavit filed
in state court and the clerk’s notice denying that filing, respectively, which
are referenced in Claim 1, are not enclosed; (2) a Criminal Deficiency Memo
from the Alaska Court System; (3) a letter to a known entity dated October
29, 2021; (4) a “Notice of Intent to File Suit/Lien” filed in Alaska Superior
Court; (5) an affidavit; and (6) a typed “Supplemental Affidavit.”26
The 	Court 	takes 	judicial 	notice 	of 	Plaintiff’s 	three 	pending 	state
criminal matters. 	A trial setting conference is scheduled for March 14, 2022,
24 Docket 3-1 at 4.
25 Docket 3-2 at 1.
26 Dockets 3-1 & 3-2.
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in State of Alaska v. Keith J. Tracy, Case No. 3AN-19-10566CR.27 	A pre-trial
conference is scheduled for April 18, 2022, in State of Alaska v. Keith Joseph
Tracy, Case No. 3AN-20-01781CR.28 	A pre-indictment hearing is scheduled
for March 3, 2022, in State of Alaska v. Keith Joseph Tracey, Case No. 3AN-20-
05112CR.29
II. 	Civil Rights Claims Under 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.”30 	For relief under 42 U.S.C. § 1983, a plaintiff must “plead that
(1) the defendants acting under color of state law (2) deprived plaintiffs of
rights secured by the Constitution or federal statutes.”31 	To act under the
color of state law, a complaint must allege that the defendants acted with
27 State of Alaska v. Keith J. Tracy, Case No. 3AN-19-10566CR (“Events: 03/14/2022 Trial
Setting Conference: Superior Court”).
28 State of Alaska v. Keith Joseph Tracy, Case No. 3AN-20-01781CR (“Events: 02/14/2022
Pre-trial Conference: District Court Criminal”).
29 State of Alaska v. Keith Joseph Tracey, Case No. 3AN-20-05112CR (“Events: 03/02/2022
Pre-Indictment Hearing”).
30 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137,
144 n.3 (1979)).
31 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
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state authority as state actors.32 	Furthermore, a defendant must be eligible
for suit. 	None of the individuals sued by Plaintiff in this case are proper
defendants under 42 U.S.C. § 1983. Therefore, Plaintiff’s Complaint must be
dismissed.
a. Defendant Zelinsky
A lawyer appointed to represent a criminal defendant in a state court
proceeding is "as a matter of law, ... not a state actor."33 	Such a lawyer,
whether from the Office of Public Advocacy, Public Defender’s Agency, or by
contract is “no doubt, paid by government funds and hired by a government
agency.”34 	This method of payment and retention, however, does not matter,
as the lawyer’s role in this scenario is “to represent [their] client, not the
interests of the [government entity paying their fees].”35 In this way, a court-
appointed lawyer is no different than a privately retained attorney, who in
32 West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326
(1941)).
33 See Miranda v. Clark County, Nevada, 319 F.3d 465, 468 (9th Cir. 2003), cert. denied, 540
U.S. 814 (2003).
34 Id., citing Polk County v. Dodson, 454 U.S. 312, 325 (1981) (recognizing that the public
defender performs “a lawyer’s traditional functions” in the lawyer’s traditional adversarial
role).
35 Id.
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no way can be considered a state actor, but whose “duties and obligations [to
the client] are the same.”36 	.
John Zelinsky is an attorney with the State of Alaska Public Defender
Agency. 	Plaintiff seeks damages from Defendant Zelinsky due to his alleged
actions as a court appointed attorney complying with the operational orders
from the Chief Justice of the Alaska Supreme Court and the Presiding Judge
of the Third Judicial District of the Alaska Court System. 	Defendant Zelinsky,
as court appointed counsel to an indigent defendant, is not a state actor as a
matter of law. 	Therefore, he cannot be sued under 42 U.S.C. § 1983.
b. Defendant Judge Saxby
A state court judicial officer is a state actor. 	However, “[j]udges and
those performing judge-like functions are absolutely immune from damage
liability for acts performed in their official capacities.”37 	Moreover, judicial
immunity extends to preclude prospective injunctive relief against a state
36 Polk County, 454 U.S. at 318-19.
37 Ashelman v. Pope, 793 F.2d 1072, 1075-76 (9th Cir. 1986) (citations omitted) (in
determining if an action is judicial, 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.”). “These factors are to be construed generously in favor of the judge and in light
of the policies underlying judicial immunity.”
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court judge for acts or omissions made in that judge’s official capacity.38 This
judicial 	immunity 	is 	immunity 	from 	lawsuit, 	not 	just 	from 	ultimate
assessment of damages, and it cannot be overcome by allegations of bad faith
or malice.39
Defendant Judge Saxby is a judicial officer in the Alaska Superior Court.
Plaintiff seeks damages and injunctive relief due to Defendant Judge Saxby’s
application of the operational orders from the Chief Justice of the Alaska
Supreme Court and the Presiding Judge of the Third Judicial District of the
Alaska Court System, which Plaintiff asserts led to delays in his in-court
appearances and trial. 	As a judicial officer acting in his official capacity in
accordance with the rules of the Alaska court system then in place to address
the COVID-19 pandemic, Defendant 	Judge Saxby is immune from suit as a
matter of law. 	Therefore, he cannot be sued under 42 U.S.C. § 1983.
c. 	Defendant Wilson
A court clerk is a state actor. However like judges, "[c]ourt clerks have
absolute quasi-judicial immunity 	from damages 	for civil rights violations
38 42 U.S.C. § 1983.
39 Mireles v. Waco, 502 U.S. 9, 11 (1991) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985);
Pierson v. Ray, 386 U.S. 547, 554 (1967)).
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when they perform tasks that are an integral part of the judicial process."40
A mistake does not abrogate this immunity 	even if it results in 	"grave
procedural errors."41 The Court of Appeals for the Ninth Circuit has held that
"when a person who is alleged to have caused a deprivation of constitutional
rights while acting under color of federal law can successfully assert judicial
or 	quasi-judicial 	immunity 	from 	damages, 	that 	immunity 	also 	will 	bar
declaratory and injunctive relief.”42
Defendant Wilson is a court clerk in the Alaska Court System. 	Plaintiff
seeks relief due to Defendant Wilson’s alleged actions applying the procedural
rules of the Alaska Court System in his pending criminal cases. 	As a court
clerk performing administrative tasks that are part of Plaintiff’s ongoing state
court criminal matter, Defendant Wilson is immune from suit as a matter of
law. 	Therefore, she cannot be sued under 42 U.S.C. § 1983.
d. Defendant Runnels
District attorneys are state actors; however, prosecuting attorneys are
immune from suit. 	Prosecutorial immunity protects government attorneys
40 Mullis v. U.S. Bankruptcy Court for the Dist. of Nevada, 828 F.2d 1385, 1390 (9th Cir.
1987).
41 Stump v. Sparkman, 435 U.S. 349, 359 (1978).
42 Mullis, 828 F.2d at 1394.
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when they are acting pursuant to their judicial role as an advocate for the
state, performing functions “intimately associated with the judicial phase of
the 	criminal 	process.”43 	A 	prosecutor’s 	absolute 	immunity 	extends 	to
“initiating a prosecution and presenting the State’s case,”44 including eliciting
witness testimony, arguing motions, and pretrial court appearances.45
However, 	“[a] 	prosecutor's 	administrative 	duties 	and 	those
investigatory functions that do not relate to an advocate's preparation for the
initiation of a prosecution or for judicial proceedings are not entitled 	to
absolute immunity.”46 	Further, a prosecutor can be held accountable 	for
malicious prosecution. But for any such claim to go forward, a claimant must
provide plausible factual details and more than just conclusory allegations. 47
Most importantly, a claim for malicious prosecution cannot proceed until the
termination of the prior criminal proceeding has occurred in favor of the
43 Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
44 Id.
45 See Burns v. Reed, 500 U.S. 478, 490-91 (1991).
46 Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
47 Iqbal, 556 U.S. at 679 (stating that pleadings which “are no more than conclusions, are
not entitled to the assumption of truth. While legal conclusions can provide the framework
of a complaint, they must be supported by factual allegations.”).
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accused.48 	This “avoids parallel litigation over the issue of probable cause
and guilt . . . and it precludes the possibility of the claimant [sic] succeeding
in the tort action after having been convicted in the underlying 	criminal
prosecution, in contravention of a strong judicial policy against the creation
of 	two 	conflicting 	resolutions 	arising 	out 	of 	the 	same 	or 	identical
transaction.”49
Defendant Runnels is a prosecuting attorney for the State of Alaska.
Plaintiff 	seeks damages 	due 	to 	her 	alleged 	actions 	complying 	with 	the
operational orders from the Chief Justice of the Alaska Supreme Court and
the Presiding Judge of the Third Judicial District of the Alaska Court System.
As a prosecuting governmental attorney complying with the rules imposed
upon her as part of a judicial proceeding, Defendant Runnels is immune from
suit as a matter of law. Therefore, she cannot be sued under 42 U.S.C. § 1983.
CONCLUSION
Defendants 	are 	not 	proper 	defendants 	or 	are 	immune 	from 	suit.
Therefore, Plaintiff fails to state a claim upon which relief may be granted.
48 Heck v. Humphrey, 512 U.S. 47, 484 (1994).
49 Heck, 512 U.S. at 484.
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In addition, no defendants may be substituted under these facts; therefore,
amendment is futile.50
IT IS THEREFORE RECOMMENDED:
1. 	This action should be DISMISSED WITH PREJUDICE for failing to state a
claim upon which relief may be granted and the futility of amendment.
2. All pending motions should be DENIED AS MOOT.
3. A dismissal under these circumstances should be a strike as required by
28 U.S.C. § 1915(g) and Lomax v. Ortiz-Marquez, et al., 590 U.S. ___, 140
S.Ct. 172 (2020).51
4. The Clerk of Court should issue a final judgment.
DATED this 1 st day of March, 2022 at Anchorage, Alaska.
s/ Kyle F. Reardon
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
50 Hartmann v. California Dep't of Corr. & Rehab., 707 F.3d 1114, 1130 (9th Cir. 2013) (“A
district court may deny leave to amend when amendment would be futile.”).
51 28 U.S.C. § 1915(g) prohibits a prisoner who files more than three actions or appeals in
any federal court in the United States which are dismissed as frivolous or malicious or for
failure to state a claim upon which relief may be granted, from bringing any other actions
without prepayment of fees unless the prisoner can demonstrate that he or she is in
“imminent danger of serious physical injury.”
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