Hess v. Webb

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
RALPH GUY HESS,
Plaintiff,
v.
MEGAN R. WEBB,
Defendant.
Case No. 3:20-cv-00221-JMK
ORDER OF DISMISSAL
Self-represented litigant Ralph Guy Hess filed a Complaint under the Civil
Rights Act, 42 U.S.C. § 1983, on September 8, 2020.1 Additionally, Mr. Hess filed
an Application to Waive Prepayment of the Filing Fee.2
In his complaint, Mr. Hess names Megan R. Webb as the sole defendant.
Ms. Webb is an Assistant Public Defender with the Public Defender Agency for the
State of Alaska. 	The Public Defender Agency represented Mr. Hess on a state
court post-conviction relief action in criminal case, 2KB-06-00670CR, and a
subsequent appeal, A-12705.3 The Court takes judicial notice that Mr. Hess was
charged with three counts of first-degree sexual assault and two counts of burglary
1 Docket 1.
2 Docket 2.
3 Docket 1-1 at 1–14.
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in 2KB-06-00670CR.4 	Mr. Hess pleaded guilty to a single count of first-degree
burglary.5 	He filed an application under AS 12.73.020, requesting the DNA
evidence of his case be tested, and he was appointed counsel through the Public
Defender Agency.6
The complaint alleges that Ms. Webb “fail[ed] to address medical issue on
operation on testicles.”7 Mr. Hess alleges that “I had asked from the beginning of
my trial for my attorneys to address my medical issues for me, telling them I could
not commit a crime like this,” describes the details of his arrest, and alleges that
after a nurse and doctor were removed from his jury panel “I had no choice but to
take the states deal.”8 	After review of Mr. Hess’s Complaint and 305 pages of
exhibits, the Court recognizes the core of Mr. Hess’s allegation is that his post-
conviction counsel—Ms. Webb—did not raise the medical issue he believes should
have been raised at multiple phases of litigation.
4 Docket 1-1 at 10 (Hess v. State of Alaska, Alaska Court of Appeals No. A-12705,
Memorandum Opinion). 	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 L AW DICTIONARY (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.
5 Docket 1-1 at 10.
6 Id.
7 Docket 1 at 3.
8 Docket 1 at 3–4.
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For relief, Mr. Hess requests (1) $26,000.00 in damages; (2) $24,000,000.00
in punitive damages; (3) an order to “address my medical issues”; and (4) a
declaration to “please use my real birthdate on all my documents.9 	Mr. Hess
demands a jury trial.
SCREENING REQUIREMENT
Federal law requires a court to conduct an initial screening of a civil
complaint filed by a self-represented prisoner seeking a waiver of the prepayment
of the filing fee. 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.10
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.”11 	In conducting its
review, a court must liberally construe a self-represented plaintiff’s pleading and
9 Docket 1 at 6–7.
10 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(a), (b).
11 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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give the plaintiff the benefit of the doubt.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 In this case, for the reasons discussed below, amendment would
be futile.
DISCUSSION
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.”14 For relief
under 42 U.S.C. § 1983, a plaintiff must “plead that (1) defendants acting under
color of state law (2) deprived plaintiff[s] of rights secured by the Constitution or
federal statutes.”15 	To act under the color of state law, a complaint must allege
that the defendants acted with state authority as state actors.16 	Mr. Hess cannot
plead this required element; therefore his complaint must be dismissed.
12 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)).
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 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)).
15 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
16 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 lawyer appointed to represent a criminal defendant in a state court
proceeding is “as a matter of law, . . . not a state actor.”17 Such a lawyer, whether
from the Public Defender’s Agency or the Office of Public Advocacy is “no doubt,
paid by government funds and hired by a government agency. 	Nevertheless, his
function was to represent his client, not the interests of the state or county.”18 	It
does not matter that a state criminal defense lawyer is paid from public funds.
“Except for the source of payment, . . . the duties and obligations are the same
whether [the client was] privately retained, appointed, or serving in a legal aid or
defender program.”19 	This means that because a criminal defense lawyer’s duty
and loyalty are to his client, not the state, a court-appointed attorney is not a state
actor for purposes of Section 1983.
The complaint names Megan R. Webb, an attorney with the Public Defender
Agency, as the sole defendant. 	The complaint seeks damages from her due to
her alleged actions while representing Mr. Hess as Assistant Public Defender for
the Public Defender Agency. However, Ms. Webb, as court-appointed counsel to
the indigent, is not a state actor as a matter of law.
17 See Miranda v. Clark County, Nevada, 319 F.3d 465, 468 (9th Cir.), cert. denied, 540
U.S. 814 (2003).
18 Id., citing Polk County v. Dodson, 454 U.S. 312, 325 (1981) (recognizing that the public
defender performs “traditional lawyer’s functions” in the lawyer’s traditional adversarial
role).
19 Polk County, 454 U.S. at 318.
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42 U.S.C. § 1983 requires a defendant to be a state actor. Mr. Hess has not
named a state actor; therefore, he has failed to meet an essential element of 42
U.S.C. § 1983. No other defendants could be substituted under the alleged facts;
therefore, amendment is futile and the § 1983 complaint must be dismissed with
prejudice.
IT IS THEREFORE ORDERED:
1. This action is DISMISSED WITH PREJUDICE for failure to state a claim upon
which relief may be granted.
2. The Application to Waive Prepayment of the Filing Fee, at Docket 2, is DENIED
AS MOOT.
3. The Clerk of Court is directed to enter a Final Judgment in this case.
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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