Drew v. Hernandez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ADAM DREW,
Plaintiff,
v.
ARLANDO HERNANDEZ and
A. STRAWTHER,
Defendants.
Case No. 3:22-cv-00194-RRB
SCREENING ORDER
On September 2, 2022, self-represented prisoner, Adam Drew (“Plaintiff”)
filed a Complaint, a civil cover sheet, and an application to waive prepayment of
the filing fee.1 	Plaintiff also submitted summonses to the Clerk of Court and a
request for the U.S. Marshal to perform service.2 	Before the Court had an
opportunity to screen the Complaint, Plaintiff paid filing fee on November 9, 2022.3
On 	January 	27, 	2023, 	Plaintiff 	filed 	a 	copy 	of 	an 	unissued 	summons,4 	a
“Declaration for Entry of Default” with copies of USPS tracking information and his
commissary request receipt for postage paid.5 On February 17, 2023, Plaintiff filed
1 Dockets 1–3.
2 Dockets 4–5.
3 Docket 1 (Filing fee: $402, receipt number 100019605).
4 Docket 7.
5 Docket 8.
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a Motion for Default Judgment6 and a Civil Rule 4(f) Affidavit stating a copy of the
summons and complaint were served on both defendants.7 	The Court now
screens Plaintiff’s Complaint and addresses his pending motions.
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:
(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 which relief may
be granted, 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
6 Docket 9.
7 Docket 10.
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)).
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plaintiff’s pleading and give the plaintiff the benefit of the doubt.10 	Rule 8 of the
Federal Rules of Civil Procedure instructs that a complaint must contain a “short
and plain statement of the claim showing that the [complainant] is entitled to relief.”
A complaint should set out each claim for relief separately. 	Factual allegations
must not be speculative; rather, a plaintiff must plead “factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”11 While a complaint need not, and should not, contain every
precise, 	factual 	detail, 	“unadorned, 	the 	defendant-unlawfully-harmed-me
accusation[s]” are insufficient to state a claim.12
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.13 	Futility exists
when “the allegation of other facts consistent with the challenged pleading could
not possibly cure the deficiency[.]” 14
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 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
12 Id.
13 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)).
14 See Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
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DISCUSSION
I. 	Complaint
Plaintiff 	brings 	suit 	against 	Arlando 	Hernandez, 	Superintendent 	of 	the
Anchorage Correctional Complex and A. Strawther, a correctional officer for the
State 	of 	Alaska’s 	Department 	of 	Corrections 	assigned 	to 	the 	Anchorage
Correctional Complex (jointly “Defendants”).15 	Both are sued in their official
capacity.16
Plaintiff 	alleges 	Defendants 	violate 	Alaska 	Statutes 	§§ 	33.30.011,
33.30.015, 	22 	Alaska 	Admin. 	Code 	§ 	05.125, 	and 	“policy 	and 	procedures
established by the commissioner to interpret and implement relevant sections of
Alaska statutes and policy and procedures.”17 	Plaintiff alleges Defendants are
violating his and other prisoner’s rights by not allowing them to wear personal
clothing and denying them access to items purchased from the commissary.18 For
relief, Plaintiff seeks a preliminary and permanent injunction, a jury trial, recovery
of his costs, and any additional relief the Court deems just, proper, and equitable.19
15 Docket 1 at 1.
16 Id.
17 Docket 1 at 2 (cleaned up).
18 Docket 1-5 at 1; 1-12 at 1.
19 Docket 1 at 2–3.
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Plaintiff has failed to plead sufficient plausible facts to meet the requirements
of Rule 8 of the Federal Rules of Civil Procedure for a civil rights action under 42
U.S.C. § 1983. 	The Court grants Plaintiff the opportunity to file an amended
complaint in accordance with the guidance provided below.
II. 	Claims on Behalf of Other Prisoners
As a threshold matter, self-represented litigants have no authority to represent
anyone other than themselves.20 Plaintiff only lists himself in the case caption, but in his
narrative asserts violations of other prisoner’s rights.21 	In any amended complaint,
Plaintiff may only bring claims on his own behalf.
III. 	Failure to State a Claim
Rule 8 of the Federal Rules of Civil Procedure instructs that a complaint
must 	contain 	a 	“short 	and 	plain 	statement 	of 	the 	claim 	showing 	that 	the
[complainant] is entitled to relief[.]” Each claim should identify (1) the specific harm
that Plaintiff is alleging has occurred to him, (2) when that harm occurred, (3) where
that harm was caused, and (4) who he is alleging caused that specific harm to him.
While a complaint need not contain every precise, factual detail, “unadorned, the
defendant-unlawfully-harmed-me accusation[s]” are insufficient to state a claim.22
20 See Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (non-attorney plaintiff may
not attempt to pursue claim on behalf of others in a representative capacity).
21 Docket 1.
22 Id.
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To state a claim, a complaint must demonstrate that a defendant caused the
plaintiff harm.23 	Plaintiff claims Defendants are violating his rights to equal
treatment and subjecting him to cruel and unusual punishment but does not
provide details about any harm or injury he has incurred. Accordingly, Plaintiff has
not met the basic Rule 8 pleading requirements to state a claim upon which relief
may granted. Additionally, claims under 42 U.S.C. § 1983 have specific, elemental
pleading requirements. 	The Court now provides the following guidance to assist
Plaintiff in the event Plaintiff elects to file an amended complaint.
IV. 	Civil Rights Claims Under 42 U.S.C. § 1983 (“Section 1983”)
To state a claim for relief under Section § 1983, a plaintiff must allege
plausible facts that, if proven, would establish (1) the defendant acting under color
of state law (2) deprived the plaintiff of rights secured by the federal Constitution
or federal statutes.24 To act under color of state law, a complaint must allege that
the defendant acted with state authority as a state actor.25 	To be deprived of a
right, the defendant’s action needs to either violate rights guaranteed by the
23 To establish Article III standing, a plaintiff must show that (1) he has suffered an injury in fact
that is concrete and particularized and actual or imminent, not conjectural or hypothetical, (2) the
injury is fairly traceable to the challenged action of the defendant, and (3) it is likely, as opposed
to merely speculative, that the injury will be redressed by a favorable decision. U.S.C.A. Const.
Art. 3, § 2, cl. 1.
24 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
25 West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326
(1941)).
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Constitution or an enforceable right created by federal law.26 	Section 1983 does
not confer federal constitutional or federal statutory rights. 	Instead, it provides a
mechanism for remedying violations of pre-existing federal rights.27 Section 1983
does not provide a mechanism for remedying alleged violations of state law.28
A. 	Equal Protection under the 14th Amendment
The equal protection clause requires that persons who are similarly situated
be treated alike.29 	This does not mean, however, that all prisoners must receive
identical treatment and resources.30 	To prevail on an Equal Protection claim
brought 	under 	§ 	1983, 	Plaintiff 	must 	show 	that 	Defendants 	intentionally
discriminated against him based on his membership in a protected class,31 and the
difference in treatment was not reasonably related to a legitimate penological
26 Buckley v. City of Redding, 66 F. 3d 188, 190 (9th Cir. 1995); Blessing v. Freestone, 520 U.S.
329, 340–41 (1997).
27 Graham v. Connor, 490 U.S. 386, 393–94 (1989).
28 Galen v. Cty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007).
29 City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Hartmann v.
California Dep't of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 705
F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008).
30 See Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972); Ward v. Walsh, 1 F.3d 873, 880 (9th Cir.
1993); Allen v. Toombs, 827 F.2d 563, 568–69 (9th Cir. 1987).
31 Hartmann, 707 F.3d at 1123.
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interest.32 Inmates are not a protected class.33 Plaintiff has not alleged any facts
that, if proven, would demonstrate he was treated differently from similarly situated
persons. 	In fact, as mentioned above, he stated other prisoners were also being
denied access to their commissary purchases. 	Therefore, his allegations are
insufficient to support an equal protection claim.
B. 	Property Interests
Plaintiff alleges he is being subjected to cruel and unusual punishment due
to the deprivations of his property. 	As a threshold matter, the Cruel and Unusual
Clause of the Eighth Amendment only protects convicted prisoners and does not
apply to pretrial detainees.34 	If a plaintiff has not been convicted of a crime, then
his rights derive from the due process clause rather than the Eighth Amendment's
protection against cruel and unusual punishment.35 	The standard analysis for a
claim of a violation of procedural due process “proceeds in two steps: We first ask
32 FDIC v. Henderson, 940 F.2d 465, 471 (9th Cir. 1991) (clarifying that the Equal Protection
Clause protects against intentional discrimination); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir.
2008) (applying the Turner standard, which inquires whether a prison condition or regulation is
“reasonably related to legitimate penological interests”).
33 Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir. 1998); Veenstra v. Idaho State Bd. of
Correction, 785 F. App'x 390, 391 (9th Cir. 2019).
34 Graham v. Connor, 490 U.S. 386, 396 n.10 (1989); Bell v. Wolfish, 441 U.S. 520, 535 (1861);
Stone v. City of San Francisco, 968 F.2d 850, 857 n.10 (9th Cir. 1992).
35 Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002); see also Bell v. Wolfish, 441
U.S. 520, 537 n.16 (1979) (noting that “the Due Process Clause rather than the Eighth
Amendment” is relied upon in considering claims of pretrial detainees because “Eighth
Amendment scrutiny is appropriate only after the State has complied with the constitutional
guarantees traditionally associated with criminal prosecutions”).
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whether there exists a liberty or property interest of which a person has been
deprived, and if so we ask whether the procedures followed by the State were
constitutionally sufficient.”36 	For a prisoner, such a deprivation occurs when the
prison “imposes atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.”37 In order to have a “property interest in a benefit,
a person clearly must have more than an abstract need or desire for it.”38
Additionally, authorized deprivations of property are permissible if carried out
pursuant to a regulation that is reasonably related to a legitimate penological
interest.39 	As pled, Plaintiff’s alleged deprivations do not constitute a significant
and atypical hardship sufficient to confer a liberty interest that due process would
protect. 	Even construing Plaintiff’s claims liberally, Plaintiff does not allege
federally protected constitutional or civil rights, but rather systemic grievances best
addressed 	through 	the 	legislative 	and 	political 	processes. 	Therefore, 	his
Complaint must be dismissed. However, the Court grants leave to amend.
36 Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam).
37 Sandin v. Connor, 515 U.S. at 472, 484 (1995).
38 Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
39 Turner v. Safley, 482 U.S. 78, 89 (1987).
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PRELIMINARY AND PERMANENT INJUNCTION
The Court may issue a preliminary injunction “only on notice to the adverse
party.”40 	In light 	of 	the instant screening order, there is currently no 	active
complaint; 	and 	as 	discussed 	below, 	although 	Plaintiff 	attempted 	to 	serve
Defendants, service has not been perfected. 	Further, injunctive relief is “an
extraordinary remedy that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief.”41 Plaintiff cannot show that he will likely succeed
on the merits of his claim, because there is not a properly pled claim before the
Court. 	Moreover, Plaintiff's property is being held by state officials, not a federal
official, and the Court cannot mandate a state official to take the requested action,
even if proper.42
PLAINTIFF’S PENDING MOTIONS
As explained above, federal law requires a court to conduct an initial
screening of a civil complaint filed by a self-represented prisoner.43 	Until a
screening order has been issued, the Court discourages additional filings or
attempts to serve other parties. If the Court finds that plausible claims exist in the
40 Fed. R. Civ. P. 65(a)(1).
41 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520
U.S. 968, 972 (1997) (per curiam)).
42 See Demons v. U.S. District Court, 925 F.2d 1160, 1161–62 (9th Cir. 1991) (mandamus relief
to compel a state court or official to take or refrain from some action is frivolous as matter of law).
43 28 U.S.C. §§ 1915(e) and 1915A.
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filings and the case can proceed to the next stage of litigation, the Court will issue
an 	Order 	Directing 	Service 	and 	Response 	explaining 	the 	requirements 	of
completing the summonses and completing service on the opposing party. 	If the
Court grants a plaintiff’s request to proceed without paying the filing fee, the U.S.
Marshals Service will complete service of process pursuant to 28 U.S.C. § 1915(d).
If a plaintiff paid the filing fee, or the Court denies plaintiff’s request to proceed
without paying the filing fee, the Court will direct a plaintiff how to proceed so as to
properly effect service on the named defendants.
Here, Plaintiff initially filed applications to waive prepayment of the filing fee.
Plaintiff should be advised federal law requires that a prisoner may only waive
prepayment of the fees associated with civil lawsuits. 	A Plaintiff proceeding in
forma pauperis would be obligated to pay the filing fee incrementally until the
$402.00 filing fee is paid in full.44 	Plaintiff has already paid the filing fee in full.
Accordingly, 	Plaintiff’s 	Motions 	to 	Waive 	Prepayment 	of 	the 	Filing 	Fee 	at
Dockets 2–3 are DENIED AS MOOT. 	Likewise, because Plaintiff paid the filing
fee and because the service process has not yet begun, a request for service by
the U.S. Marshals is not merited. 	Accordingly, Plaintiff’s Motion at Docket 5 is
DENIED.
44 28 U.S.C. § 1915(b)(1).
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Further, because service has not been properly effectuated,45 a default
judgment is not appropriate at this time.46 Plaintiff’s summonses were not issued
because the Clerk of Court determined they were not in proper form, and the Court
had not issued an Order Directing Service and Response. 	“[S]ervice of a valid
summons is necessary before the district court may exercise personal jurisdiction
over [a] defendant.”47 Therefore, Plaintiff’s Motions at Dockets 8-9 are DENIED.
While the Court takes extensive measures to fairly facilitate self-represented
litigation, a self-represented litigant is not excused from the rules that govern court
proceedings.48 A federal district court is a trial court simultaneously addressing a
volume and variety of cases of varying priorities. Accordingly, a court cannot issue
orders and rulings purely on the best timeline for a litigant. 	While the Court
appreciates Plaintiff’s attempts to diligently pursue his case, should Plaintiff amend
his complaint, he should not attempt service on Defendants until directed by the
Court.
IT IS THEREFORE ORDERED:
45 See Federal Rules of Civil Procedure 4(c)(1) and 4(j)(2); Alaska Rules of Civil Procedure 4(d)(7)
and (8).
46 See Fed. R. Civ. P. 55.
47 Silbaugh v. Chao, 942 F.3d 911, 914 (9th Cir. 2019).
48 Motoyama v. Hawaii, Dept. of Transp., 864 F. Supp. 2d 965, 976 (2012).
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1. 	Plaintiff’s Complaint at Docket 1 is DISMISSED without prejudice for failing
to state a claim upon which relief may be granted. 	The Court grants leave
to amend.
2. 	Plaintiff’s Motions at Dockets 2–3 are DENIED AS MOOT. Plaintiff has paid
the filing fee.
3. 	Plaintiff’s Motions at Dockets 8–9 are DENIED.
4. 	Plaintiff shall not attempt service until directed by the Court.
5. 	Plaintiff is accorded 30 days to file one of the following:
a. 	First Amended Complaint, in which Plaintiff restates his claims to
address 	the 	deficiencies 	identified 	in 	this 	order. 	An 	amended
complaint should be on the Court’s form, which is being provided to
Plaintiff with this order. 	An amended complaint replaces the prior
complaints in its entirety.49 	Plaintiff need not supply legal research,
only the facts that he alleges in support of an amended complaint.
Plaintiff must include all of the claims he seeks to bring in an amended
complaint. Any claims not included in the amended complaint will be
considered waived. Any exhibits attached to the amended complaint
should be submitted without alteration by Plaintiff; OR
49 See Fed. R. Civ. P. 15 and Local Civil Rule 15.1.
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b. 	Notice of Voluntary Dismissal, in which Plaintiff elects to close and
end this case.
6. 	If Plaintiff does not file either an Amended Complaint or Notice of Voluntary
Dismissal on the Court form within 30 days, this case may be dismissed
with prejudice under 28 U.S.C. § 1915(e)(2)(B) without further notice to
Plaintiff. 	This dismissal would count as a “strike” against Plaintiff under
§ 1915(g).50 	A voluntary dismissal does not count as a “strike” under 28
U.S.C. § 1915(g).
7. 	At all times, Plaintiff must keep the Court informed of any change of address.
Such notice shall be titled “NOTICE OF CHANGE OF ADDRESS.” 	This
notice must not include any requests for any other relief, and it must be
served on any Defendant’s attorney who makes an appearance in this case.
Failure to file a notice of change of address may result in the dismissal of
this case under Rule 41(b) of the Federal Rules of Civil Procedure without
further notice to Plaintiff.
8. 	Each litigant is responsible for keeping a copy of each document filed with
the Court. When a litigant mails a document to the Court, the Court will mail
to the litigant a Notice of Electronic Filing (“NEF”) that will indicate when that
50 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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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.
9. 	The Clerk of Court is directed to send Plaintiff the following forms with this
order: 	(1) form PS01, with “FIRST AMENDED” written above the title
“Prisoner’s Complaint Under the Civil Rights Act 42 U.S.C. § 1983”; (2) form
PS09, Notice of Voluntary Dismissal; (3) form PS23, Notice of Change of
Address; and (4) the District Court’s handbook, “R EPRESENTING YOURSELF
IN ALASKA ’ S F EDERAL COURT.”
DATED this 14th day of March, 2023, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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