Ludvick v. Reigh et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
LEE J. LUDVICK,
Plaintiff,
v.
CHRISTINA L. REIGH, et al.,
Defendants.
Case No. 3:22-cv-00036-SLG-KFR
SCREENING ORDER AND REPORT AND RECOMMENDATION
On February 25, 2022, Lee J. Ludvick, a self-represented prisoner
(hereinafter “Plaintiff”), filed a Notice of Intent to File Suit/Lien.1 On March
31, 2022, Plaintiff filed a Prisoner’s Complaint under the Civil Rights Act, 42
U.S.C. § 1983 (hereinafter “Complaint”), and a civil cover sheet.2 	The Court
now screens Plaintiff’s Complaint in accordance with 28 U.S.C. §§ 1915(e)
and 1915A.
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:
1 Dkt. 1.
2 Dkt. 3-4.
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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.3
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.”4 	In
conducting its review, a court must liberally construe a self-represented
plaintiff’s pleading and give the plaintiff the benefit of the doubt.5
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
3 28 U.S.C. § 1915A.
4 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)).
5 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)).
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would be futile.6 Futility exists when “the allegation of other facts consistent
with the challenged pleading could not possibly cure the deficiency[.]”7
DISCUSSION
I. 	Complaint
Plaintiff brings suit against Third Judicial District Judge Christina L.
Reigh, 	Dillingham 	Public 	Defender 	Christopher 	S. 	Lesch, 	and 	Assistant
District Attorney William Vitkus.8 	Plaintiff sues Defendants in their official
capacities.9
Generally, Plaintiff alleges that Defendants violated his right to a
speedy and public trial and access to the courts under the Sixth Amendment
of the United States Constitution, as well as his right to due process under
the Fourteenth Amendment.10
Specifically, in Claim 1, Plaintiff alleges Defendant Reigh violated his
Sixth Amendment right to a speedy and public trial and that she failed to
deliver grand jury paperwork or his indictment to him. 	Plaintiff claims that
6 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)).
7 See Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th
Cir. 1986).
8 Dkt. 3 at 2.
9 Id.
10 Id. at 3-5.
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Defendant Reigh uses the COVID-19 Pandemic as an excuse to delay trial while
he has been incarcerated for over years.11
In claim 2, Plaintiff alleges that Defendant Lesch violated his Sixth
Amendment 	right 	to 	access 	the 	courts 	by 	not 	filing 	a 	motion 	Plaintiff
requested 	be 	filed, 	not 	sending 	Plaintiff 	all 	discovery, 	not 	answering
Plaintiff’s phone calls or visiting him in jail to discuss the case, and by
withholding information. Plaintiff likewise asserts that Defendant Lesch uses
the 	COVID-19 	Pandemic 	as 	an 	excuse 	to 	deprive 	Plaintiff 	of 	his 	Sixth
Amendment rights.12
In claim 3, Plaintiff alleges that Defendant Vitkus violated his Due
Process right under the Fourteenth Amendment “by using false and drunk
statements” against him while using the COVID-19 Pandemic as an excuse to
not begin trial promptly.13
For relief, Plaintiff seeks damages in the amount of “three hundred
thousand dollars per defendant,” and demands a trial by jury.14 	Though
Plaintiff sues Defendants in their official capacities, he does not specify the
injunctive relief, if any, that he seeks.
11 Id. at 3.
12 Id. at 4.
13 Id. at 5.
14 Id. at 8.
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The 	Court 	takes 	judicial 	notice 	of 	Plaintiff’s 	three 	pending 	state
criminal matters.15 	In State of Alaska v. Lee J. Ludvick, Case No. 3AN-16-
09915CR, the State of Alaska charged Plaintiff with one count of Felony
Driving under the Influence, one count of Leaving Accident without Providing
Information, and six counts of Violating a Condition of Release. 	A status
hearing is scheduled for June 29, 2022. 16
Plaintiff faces criminal charges in State of Alaska v. Lee J. Ludvick, Case
No. 3NA-15-00157CR. In that case, the State of Alaska charged Plaintiff with
one count of “Misc/Weapons 3-Armed, Drunk, Trespassing”; one count of
“Criminal Mischief 3-Damage $750+”; two counts of Assault in the Third
Degree; and six counts of Violating a Condition of Release. A status hearing
is scheduled for June 29, 2022.17
Additionally, Plaintiff faces criminal charges in State of Alaska v. Lee J.
Ludvick, Case No. 3NA-20-00040CR. In that case, the State of Alaska charged
15 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 D ICTIONARY (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.
16 State of Alaska v. Lee J. Ludvick, Case No. 3AN-16-09915CR (“Party Charge
Information” & “Events”).
17 State of Alaska v. Lee J. Ludvick, Case No. 3NA-15-00157CR (“Party Charge
Information” & “Events”).
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Plaintiff with one count of Assault in the Second Degree; three counts of
Assault in the Third Degree; and two counts of Assault in the Fourth Degree.
A status hearing is scheduled for June 29, 2022. 18
II. 	Civil Rights Claims Under 42 U.S.C. § 1983
Claims under 42 U.S.C. § 1983 have specific required elements that a
plaintiff must plead. 	Title 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.”19 	In order to plead a proper § 1983 claim, a
plaintiff must allege plausible facts that if proven would establish each of the
required elements of: “(1) a violation of rights protected by the Constitution
or created by federal statute, (2) proximately caused (3) by conduct of a
‘person’ (4) acting under color of state law.”20
To act under the color of state law, a complaint must allege that the
defendants acted with state authority as state actors.21 	Furthermore, a
defendant must be eligible for suit. None of the individuals sued by Plaintiff
18 State of Alaska v. Lee J. Ludvick, Case No. 3NA-20-00040CR (“Party Charge
Information” & “Events”).
19 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443
U.S. 137, 144 n.3 (1979))
21 West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S.
299, 326 (1941)).
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in this case are proper defendants under 42 U.S.C. § 1983. 	Therefore,
Plaintiff’s Complaint must be dismissed.
a. Defendant Lesch
A lawyer appointed to represent a criminal defendant in a state court
proceeding is "as a matter of law, ... not a state actor."22 	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.”23 	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].”24 In this way, a court-
appointed lawyer is no different than a privately retained attorney, who in
no way can be considered a state actor, but whose “duties and obligations [to
the client] are the same.”25
Defendant Lesch is an attorney with the State of Alaska Public Defender
Agency. 	Plaintiff seeks damages from Defendant Lesch due to his alleged
22 See Miranda v. Clark County, Nevada, 319 F.3d 465, 468 (9th Cir. 2003), cert.
denied, 540 U.S. 814 (2003).
23 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).
24 Id.
25 Polk County, 454 U.S. at 318-19.
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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 Lesch, 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 Reigh
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.”26 	Moreover, judicial
immunity extends to preclude prospective injunctive relief against a state
court judge for acts or omissions made in that judge’s official capacity.27 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.28
26 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.”
27 42 U.S.C. § 1983.
28 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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Defendant Judge Reigh is a judicial officer in the Alaska Superior Court.
Plaintiff seeks unspecified injunctive relief due to Defendant Judge Reigh’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 and
in accordance with the rules of the Alaska court system then in place to
address the COVID-19 pandemic, Defendant Judge Reigh is immune from suit
as a matter of law. Therefore, she cannot be sued under 42 U.S.C. § 1983.
c. 	Defendant Vitkus
District attorneys are state actors; however, prosecuting attorneys are
immune from suit. 	Prosecutorial immunity protects government attorneys
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.”29 	A 	prosecutor’s 	absolute 	immunity 	extends 	to
29 Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
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“initiating a prosecution and presenting the State’s case,”30 including eliciting
witness testimony, arguing motions, and pretrial court appearances.31
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.”32 	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.33
Most importantly, a claim for malicious prosecution cannot proceed
until the termination of the prior criminal proceeding has occurred in favor
of the accused.34 	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
30 Id.
31 See Burns v. Reed, 500 U.S. 478, 490-91 (1991).
32 Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
33 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.”).
34 Heck v. Humphrey, 512 U.S. 47, 484 (1994).
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creation of two conflicting resolutions arising out of the same or identical
transaction.”35
Defendant Vitkus is a prosecuting attorney for the State of Alaska.
Plaintiff 	seeks 	unspecified 	injunctive 	relief 	and 	damages 	due 	to 	the
statements 	Defendant 	Vitkus 	allegedly 	utilized 	against 	Plaintiff 	and
Defendant Vitkus’ 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 him as part
of an ongoing judicial proceeding, Defendant Vitkus is immune from suit as a
matter of law. Therefore, he 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.
In addition, no defendants may be substituted under these facts; therefore,
amendment is futile.36
/ /
35 Heck, 512 U.S. at 484.
36 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.”).
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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).37
4. The Clerk of Court should issue a final judgment.
DATED this 5th day of July, 2022 at Anchorage, Alaska.
s/ Kyle F. Reardon
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
NOTICE OF RIGHT TO OBJECT
Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate
judge 	to 	hear 	and 	determine 	matters 	pending 	before 	the 	Court. 	For
37 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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dispositive matters, a magistrate judge reports findings of fact and provides
recommendations to the presiding district court judge.38 A district court judge
may accept, reject, or modify, in whole or in part, the magistrate judge’s
order.39
A party may file written objections to the magistrate judge’s order
within 14 fourteen days.40 Objections and responses are limited to five (5)
pages 	in 	length 	and 	should 	not 	merely 	reargue 	positions 	previously
presented. 	Rather, objections and responses should specifically identify the
findings or recommendations objected to, the basis of the objection, and any
legal authority in support. 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.41
38 28 U.S.C. § 636(b)(1)(B).
39 28 U.S.C. § 636(b)(1)(C).
40 Id.
41 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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