Thompson v. Allard et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
CARL K. THOMPSON,
Plaintiff,
v.
MARJORIE K. ALLARD, et al.,
Defendants.
Case No. 3:22-cv-00075-SLG-KFR
SCREENING ORDER AND
REPORT AND RECOMMENDATON
On 	April 	4, 	2022, 	Carl 	K. 	Thompson, 	a 	self-represented 	prisoner
(hereinafter “Plaintiff”), filed a Prisoner’s Complaint under the Civil Rights
Act, 42 U.S.C. § 1983 (hereinafter “Complaint”), a civil cover sheet, and an
Application to Waive Prepayment of the Filing Fee.1 	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 Dkts. 1-3.
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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.2
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.”3 	In
conducting its review, a court must liberally construe a self-represented
plaintiff’s pleading and give the plaintiff the benefit of the doubt.4
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
2 28 U.S.C. § 1915A.
3 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)).
4 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.5 Futility exists when “the allegation of other facts consistent
with the challenged pleading could not possibly cure the deficiency[.]”6
DISCUSSION
I. 	Complaint
Plaintiff brings suit against Marjorie K. Allard, Chief Judge of the Alaska
Court of Appeals; Tracey Wollenberg, Judge of the Alaska Court of Appeals;
and Timothy W. Terrell, Judge Sitting by Designation on the Alaska Court of
Appeals 	(collectively 	“Defendants”).7 	Plaintiff 	sues 	Defendants 	in 	their
official capacities.8
In 	Claim 	1, 	Plaintiff 	alleges 	Defendants 	acted 	with 	deliberate
indifference to Plaintiff’s liberty interest by converting his writ of habeas
corpus to a post-conviction relief application, under Alaska Rule of Criminal
Procedure 35.1, then denying it under the provisions of Alaska Statute (AS)
12.72.020(a). Plaintiff claims this action violated both the Suspension Clause
5 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)).
6 See Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th
Cir. 1986).
7 Dkt. 1
8 Id.
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of Article I, § 13 of Alaska’s Constitution and his liberty interest under the
Fourteenth Amendment to the United States Constitution.9
In 	Claims 	2 	and 	3, 	Plaintiff 	alleges 	that 	Defendants 	violated 	the
Separation of Power doctrine under Alaska’s Constitution, and his liberty
interest under the Fourteenth Amendment by creating caselaw stating the
statutory writ of habeas corpus had been “superseded” by Criminal Rule 35.1
and Alaska Rule of Civil Procedure 86(m), thereby suspending Plaintiff’s writ
of habeas corpus, which the Superior Court then accepted when it dismissed
Plaintiff’s writ of habeas corpus in 2020.10
Plaintiff seeks declaratory relief that Defendants’ interpretation of case
law as it relates to his claimed writ of habeas corpus was unconstitutional, as
well as “any other relief which the Court finds is just and equitable, in the
interest of justice.”11
In support of his claims, Plaintiff provides three exhibits: 	Exhibit A –
Order Granting Motion to Dismiss in Thompson v. Williams, Case No. 4FA-18-
02504CI; Exhibit B – Summary Disposition in Thompson v. State of Alaska,
Court of Appeals Case No. A-13634; and Exhibit C – Order denying Petition
9 Dkt. 1 at 8.
10 Dkt. 1 at 8.
11 Dkt. 1 at 9.
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for Hearing in Thompson v. State of Alaska, Supreme Court Case No. S-
18164.12
II. 	Civil Rights Claims Under 42 U.S.C. § 1983
Claims under 42 U.S.C. § 1983 (“Section 1983”) have specific required
elements that a plaintiff must plead. Section 1983 is a federal statute that “is
not 	itself 	a 	source 	of 	substantive 	rights,” 	but 	provides 	“a 	method 	for
vindicating rights [found] elsewhere.”13 	In order to plead a proper Section
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.”14
To act under the color of state law, a complaint must allege that the
defendants acted with state authority as state actors.15 	Furthermore, a
defendant must be eligible for suit. 	Because none of the individuals sued by
Plaintiff in this case are proper defendants under Section 1983, Plaintiff’s
Complaint must be dismissed.
12 Dkt. 1-1, 1-2, and 1-3.
13 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443
U.S. 137, 144 n.3 (1979))
15 West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S.
299, 326 (1941)).
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a. Defendant Judges Allard, Wollenberg, and Terrell
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.”16 	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.17 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.18
Defendant 	Judges 	Allard, 	Wollenberg, 	and 	Terrell 	are 	all 	judicial
officers in the Alaska Court of Appeals. Defendants are bound by Alaska Rules
of Criminal Procedure, Alaska Statutes, the Alaska Constitution, and their
duties as judicial officers to preside over appeal cases in the Alaska Court of
Appeals. Any rulings or decisions Defendants may have made while presiding
16 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.”
17 42 U.S.C. § 1983.
18 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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over appeal cases, including Plaintiff’s appeal, are acts performed in their
official 	capacity. 	As 	judicial 	officers 	acting 	in 	their 	official 	capacity,
Defendants are immune from suit as a matter of law. Therefore, they cannot
be sued under 42 U.S.C. § 1983.19
CONCLUSION
Defendants 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.20
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.
19 The Court notes that even if Defendants were not immune from suit, this Court
would lack jurisdiction over Plaintiff’s claims, because the Rooker-Feldman doctrine
“prohibits a federal district court from exercising subject matter jurisdiction over a
suit that is a de facto appeal from a state court judgment.” Kougasian v. TMSL, Inc.,
359 F.3d 1136, 1139 (9th Cir. 2004).
20 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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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).21
4. The Clerk of Court should issue a final judgment.
DATED this 15th 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
dispositive matters, a magistrate judge reports findings of fact and provides
recommendations to the presiding district court judge.22 A district court judge
may accept, reject, or modify, in whole or in part, the magistrate judge’s
order.23
21 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.”
22 28 U.S.C. § 636(b)(1)(B).
23 28 U.S.C. § 636(b)(1)(C).
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A party may file written objections to the magistrate judge’s order
within 14 fourteen days.24 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.25
24 Id.
25 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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