Bradshaw v. Dahlstrom et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JOSHUA JAMES BRADSHAW,
Plaintiff,
v.
NANCY DAHLSTROM, et al.,
Defendants.
No. 3:20-cv-00292-SLG-KFR
FINDINGS AND RECOMMENDATIONS
The Court recommends that Plaintiff’s First Amended Complaint seeking
injunctive relief against restrictions on gatherings and visitation inside Alaska
correctional facilities imposed in March 2020 in response to the COVID-19 pandemic
be dismissed as moot. 	In April 2021, during the pendency of this case, the Alaska
Department of Corrections voluntarily withdrew the challenged regulations, thereby
permitting gatherings and visitation within Plaintiff’s correctional facility. 	Given
that group gatherings and visitation have been restored, that the restoration of those
activities was not a response to Plaintiff’s complaint, and that the reimposition of
similar restrictions is unlikely to recur, there is no longer a live case or controversy
for this Court to adjudicate. 	Accordingly, as it relates to Plaintiff’s demands for
injunctive relief, the First Amended Complaint should be dismissed as moot.
Plaintiff 	also 	seeks 	money 	damages 	from 	former 	DOC 	Commissioner
Dahlstrom for her role in limiting religious gatherings within Plaintiff’s place of
confinement. 	However, 	Plaintiff 	fails 	to 	state 	how 	Commissioner 	Dahlstrom
personally participated in violating his rights. 	As a result, the Court recommends
granting in part Defendants’ motion to dismiss Plaintiff’s claim for money damages
against Commissioner Dahlstrom in her individual capacity, and giving Plaintiff
leave to amend this claim.
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I. 	Procedural History
On November 16, 2020, pro se Plaintiff, Joshua James Bradshaw, filed a
complaint against the Commissioner of the Department of Corrections (“DOC”),
Nancy Dahlstrom; the Governor of Alaska, Michael Dunleavy; and DOC alleging
violation of 42 U.S.C. § 1983 and the Alaska Constitution.1 	On February 22, 2021,
the Court issued a screening order dismissing Mr. Bradshaw’s complaint without
prejudice, advising him of the elements he must plead if he chose to amend his
complaint, and granting him time to do so.2
On February 23, 2021, Plaintiff filed a motion for a temporary restraining
order and preliminary injunction, which the Court denied.3 	Plaintiff then filed his
First Amended Complaint on March 22, 2021.4 Plaintiff alleges in his First Amended
Complaint that broad policies implemented by Defendants in response to the COVID-
19 pandemic limiting group gatherings inside DOC facilities and restricting visitation
violated his First Amendment and Fourteenth Amendment rights, in addition to
violating the Alaska Constitution and a previously-imposed Alaska state court order.
Specifically, Plaintiff alleges in Claim One that Commissioner Dahlstrom’s ban on
religious gatherings within DOC facilities violated his right to free exercise of
religion under the First Amendment. In Claim Two, Plaintiff alleges that mandates
imposed by Governor Dunleavy limiting rehabilitation programming and visitation
within DOC facilities violated his rights under the Alaska Constitution and the Cleary
Settlement Agreement. Finally, Plaintiff alleges that Governor Dunleavy violated his
right to procedural due process under the Fourteenth Amendment as it relates to his
First Amendment free exercise claim.5 Plaintiff requested a trial by jury and sought
injunctive relief from all Defendants for each claim, as well as money damages from
1 Dkt. 1. Mr. Bradshaw also filed a Memorandum in Support of Complaint at Dkt. 4.
2 Dkt. 6.
3 Dkts. 7 and 12.
4 Dkt. 10.
5 Id.
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Commissioner Dahlstrom as it related to his allegations in Claim One.
On April 5, 2021, the Court issued an order provisionally appointing counsel
and stayed the screening of Plaintiff’s First Amended Complaint to give counsel time
to meet with his client, file a notice of appearance, and review and amend the
complaint again if needed.6 Counsel for Plaintiff filed a notice of appearance on April
12, 2021, followed by a status report advising the Court that Plaintiff wished to
proceed on his First Amended Complaint as previously filed.7
On October 12, 2021, Defendants filed a motion to dismiss.8 After requesting
additional time to respond, Plaintiff filed his response on December 6, 2021, and
Defendants responded with a motion to strike that response.9 	Plaintiff opposed
Defendants’ motion to strike.10 After counsel for Plaintiff filed a Rule 11 certification
and a notice of withdrawal, the Court ordered counsel’s withdrawal and denied
Defendants’ motion to strike.11
Defendants replied to Plaintiff’s response to Defendants’ motion to dismiss,
followed by a supplemental response by Plaintiff.12 	Defendants filed a motion to
strike Plaintiff’s supplemental response, and Plaintiff again opposed.13
On June 29, 2022, this Court sua sponte ordered supplemental briefing on the
issue of mootness.14 	Specifically, the Court asked the parties to address whether
DOC’s 	revocation 	of 	the 	policies 	complained 	about 	by 	Plaintiff 	rendered 	his
complaint moot.15 Plaintiff timely filed his supplemental briefing on July 29, 2022.16
6 Dkt. 13.
7 Dkts. 14 and 16.
8 Dkt. 24.
9 Dkts. 25-29.
10 Dkt. 30.
11 Dkts. 32-35.
12 Dkts. 36-37.
13 Dkts. 38-39.
14 Dkt. 42; see Students for a Conservative Am. v. Greenwood, 391 F.3d 978 (9th Cir. 2004)
(“We have an independent duty to consider sua sponte whether a case is moot.”) (citation
omitted).
15 Id.
16 Dkt. 44.
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After being granted an extension, Defendants filed their supplemental briefing on
August 29, 2022.17
After referral from the District Court,18 this Court now considers Defendants’
Motion 	to 	Dismiss 	at 	Docket 	24. 	For 	the 	reasons 	stated 	herein, 	this 	Court
recommends dismissing as moot each of the claims raised in Plaintiff’s First
Amended Complaint at Docket 10 where he seeks injunctive relief; specifically, his
official capacity claim against Acting DOC Commissioner Winkelman in Claim One,19
and Claims Two and Three against Governor Dunleavy. The Court also recommends
granting Defendants’ Motion to Dismiss as it relates to the individual capacity claim
against 	Commissioner 	Dahlstrom, 	but 	granting 	Plaintiff 	leave 	to 	amend 	his
complaint for this distinct claim only.
II. 	Statement of Facts20
On March 11, 2020, Governor Dunleavy, pursuant to his authority under
Alaska 	Statute 	26.23.020(c), 	declared 	a 	“public 	health 	disaster 	emergency”
(hereinafter “Disaster Declaration”).21 On March 13, 2020, pursuant to his authority
under the Disaster Declaration, Governor Dunleavy issued COVID-19 Health Mandate
17 The Court granted Defendant’s late-filed motion for an extension of time to file their
supplemental briefing. On August 16, 2022, Plaintiff filed an opposition to Defendant’s
motion for an extension of time. Dkt. 49.
18 Dkts. 40-41.
19 Id. Plaintiff originally named Department of Corrections Commissioner Nancy
Dahlstrom in his First Amended Complaint. On May 22, 2022, Commissioner Dahlstrom
resigned. Pursuant to Fed. R. Civ. P. 26(d), Acting Commissioner Winkelman is
“automatically substituted as a party” and the Court considers her the proper defendant in
Claim One for Plaintiff’s official capacity claim against the DOC Commissioner. However,
because Plaintiff has sued Commissioner Dahlstrom for money damages in her individual
capacity, she remains a party as it relates to that distinct claim.
20 The Court takes judicial notice of the facts described herein detailing the State of
Alaska’s response to the COVID-19 pandemic. This information consists of public
documents issued by State of Alaska officials that are readily available online and whose
accuracy are not subject to reasonable dispute. For purposes of this order, the Court
assumes as true Plaintiff’s statements regarding his loss of access to religious services and
visitation.
21 See https://gov.alaska.gov/newsroom/2020/03/11/governor-issues-public-health-
disaster-emergency-declaration-for-covid-19/ (containing link to online copy of
proclamation) (all websites cited herein were last visited August 31, 2022).
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1.1 suspending visitation at all DOC facilities effective March 14, 2020.22 	On that
same day, DOC issued a press release stating that all visitation to DOC facilities was
“temporarily suspended,” to include visitation by “outside volunteers and other
tours and groups who routinely come into the institutions.”23 	On March 18, 2020,
DOC suspended “non-essential contract services and all volunteers.”24
Plaintiff is an inmate at Lemon Creek Correctional Center (LCCC), a DOC
facility located in Juneau, Alaska, and has been since at least April 15, 2020.25 As a
result 	of the 	suspension of 	visitation, Plaintiff 	lost access to 	group 	religious
gatherings within LCCC, visitation by volunteer groups performing religious and
rehabilitative services, and personal contact visits.26
On April 19, 2021, DOC reopened public visitation at LCCC and many other
facilities for those inmates who had been fully vaccinated, and on April 28, 2021,
DOC reopened visitation to all inmates regardless of vaccination status at all
facilities other than the Anchorage Correctional Complex.27 	On April 30, 2021,
Governor 	Dunleavy 	signed 	an 	executive 	proclamation 	ending 	the 	Disaster
Declaration “effective immediately.”28
//
//
//
//
22 See https://gov.alaska.gov/newsroom/2020/03/13/governor-issues-first-covid-19-
health-mandate/ (containing link to online copy of proclamation).
23 See https://doc.alaska.gov/covid-19, Department of Corrections Implements Mitigation &
Response Plan for COVID-19.
24 See https://doc.alaska.gov/covid-19, Department of Corrections Suspends All Non-
Essential Activity.
25 See Dkt. 1.
26 Dkt. 10 at 3-5, 8-10, and 13-15.
27 See https://doc.alaska.gov/covid-19 (DOC Reopens Public Visitation) and
https://doc.alaska.gov/covid-19 (DOC Fully Opens Visitation).
28 See https://gov.alaska.gov/newsroom/2021/04/30/governor-dunleavy-ends-alaska-
covid-19-emergency-declaration-signs-house-bill-76/ (containing link to online copy of
proclamation).
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III. 	Legal Standard and Analysis
a. Mootness
“The mootness doctrine ‘requires that an actual, ongoing controversy exist at
all stages of federal court proceedings.’ ‘[I]f events subsequent to the filing of the
case resolve the parties’ dispute, [the court] must dismiss the case as moot[.]’”29
“Mootness is a jurisdictional issue, and federal courts have no jurisdiction to hear a
case that is moot.”30 A claim is moot “when the issues presented are no longer live
or the parties lack a legally cognizable interest in the outcome.”31
A case may be mooted when one party stops performing or enforcing the
challenged activity. However, “[t]he voluntary cessation of challenged conduct does
not ordinarily render a case moot because a dismissal for mootness would permit a
resumption of the challenged conduct as soon as the case is dismissed.”32 Voluntary
cessation can yield mootness if a “stringent” standard is met: “A case might become
moot if subsequent events made it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.”33
In addition to the voluntary cessation doctrine, an exception to mootness
exists when an issue is “capable of repetition, yet evading review.”34 “In order for
[this] exception to apply, (1) the duration of the challenged action or injury must be
too short to be fully litigated; and (2) there must be a reasonable likelihood that the
same party will be subject to the action again.”35 	Like the voluntary cessation
doctrine, the “capable of repetition, yet evading review” doctrine “traces to the
29 Leigh v. Salazar, 677 F.3d 892, 896 (9th Cir. 2012) (alterations in Leigh) (internal
citation omitted) (quoting Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir.
2011)).
30 Johnson v. Oishi, 362 F.Supp.3d 843, 848 (E.D. Cal. 2019).
31 Id.
32 Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2015); see also Already, LLC. v. Nike,
Inc., 568 U.S. 85, 91 (2013) (“[A] defendant cannot automatically moot a case simply by
ending its unlawful conduct once sued.”)
33 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000).
34 Native Village of Nuiqsut v. Bureau of Land Mgmt., 9 F.4th 1201, 1209 (9th Cir. 2021).
35 Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1287 (9th Cir. 2013) (cleaned up).
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principle that a party should not be able to evade judicial review, or to defeat a
judgment, by temporarily altering questionable behavior.”36
i. 	The Voluntary Cessation Exception to Mootness Is
Inapplicable.
Plaintiff 	admits 	that 	DOC 	has 	reinstated 	visitation 	and 	group 	religious
services.37 Nonetheless, Plaintiff seeks an “order [from the Court that Defendants]
comply with the Cleary Final Settlement agreement,” and “an official judgment”
from this Court that Defendants “pay attention and change their bad behavior and
their policies.”38 Plaintiff argues that such an order is necessary, in part, to prevent
Defendants from “commit[ing] the same acts again,” thereby forcing Plaintiff “to go
through the litigation process again.”
The Court finds that DOC’s rescission of the policies at issue in this case, and
the resumption of visitation, along with the religious and rehabilitative programs
Plaintiff claims were denied to him unlawfully during the height of the COVID-19
pandemic, renders his case moot for those causes of action in which he seeks
injunctive relief, thereby denying the Court jurisdiction over those matters. 	This
includes Plaintiff’s claims for injunctive relief against Commissioner Winkelman in
Claim One, and the entirety of his claims against Governor Dunleavy in Claims Two
and Three.
It is true that Defendants rescinded their group gathering and visitation
policies approximately one month after Plaintiff filed his First Amended Complaint
on 	March 	22, 	2021.39 	However, 	the 	voluntary 	cessation 	doctrine 	precluding
mootness does not apply as there is no evidence in the record DOC temporarily
rescinded its COVID policies in response to either Plaintiff’s original complaint or
his First Amended Complaint. 	Rather, the evidence indicates that this action was
36 City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001).
37 Dkt. 44 at 8, 10.
38 Id. at 3-4.
39 Dkts. 1, 10.
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taken in response to public health conditions that existed in the State of Alaska and
within DOC facilities at the time of the policies’ rescission, not as a result of any
pending litigation.40
Moreover, even if the voluntary cessation doctrine did apply, the Court finds
that Defendants have met their burden of demonstrating that “the challenged
behavior cannot reasonably be expected to recur.”41 This is so for two reasons.
First, unlike other cases in which mootness has not been found, no policy
remains on the books to be reinstated.42 By virtue of Governor Dunleavy’s April 30,
2021 proclamation, the Disaster Declaration and Health Mandate 1.1 no longer
remain in effect. 	Moreover, the Alaska legislature has expressly withdrawn the
authority under which the Disaster Declaration persisted beyond its initial 30-day
implementation.43
Second, DOC has reopened correctional facilities even while COVID variants
linger 	within 	the 	State 	of 	Alaska 	with 	sometimes 	high 	levels 	of 	community
transmission.44 DOC facilities have remained open despite the fact that COVID case
counts have ebbed and surged at various times since the rescission of Health
40 See https://gov.alaska.gov/newsroom/2021/04/30/governor-dunleavy-ends-alaska-
covid-19-emergency-declaration-signs-house-bill-76/ (containing link to online copy of
proclamation which cites mitigation efforts by state and introduction and distribution of
effective vaccines as reasons to withdraw disaster declaration).
41 Already, 568 U.S. at 96.
42 Compare Department of Fish and Game v. Federal Subsistence Board, 501 F.Supp.3d 671,
684-85 (D. Alaska, Nov. 18 , 2020) (denying mootness challenge in case in which hunt was
completed, but complained of delegation remained in effect for 9 additional months).
43 See Alaska House Bill (HB) 76, extending public health disaster emergency until
December 31, 2021, but stating that the governor shall proclaim an emergency no longer
exists upon a certification by the commissioner of health and social services of such a
situation); see also Brach v. Newsom, 38 F.4th 6, 13 (9th Cir. 2022) (finding that the fact
that the legislature included a “sunset provision” and “self-repeal” trigger in the bill
authorizing pandemic shutdowns of schools weighed in favor of concluding that the State
of California’s actions “cannot reasonably be expected to recur.”)
44 See https://health.alaska.gov/dph/Epi/id/Pages/COVID-19/covidandflu.aspx describing
“widespread” transmission of COVID-19 “in most parts of Alaska); see also Brach, 38 F.4th
at 14 (citing the fact that California kept schools open through the COVID omicron surge as
evidence that voluntary cessation of challenged policy was not pretextual).
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Mandate 1.1.45 	This indicates to the Court a desire among State of Alaska officials
to move away – and stay away - from pandemic restrictions in an effort to return as
quickly as possible to a pre-COVID normal.46 	This is not a case in which Plaintiff
“remains under constant threat” that DOC will reinstate the challenged policies.47
The Court recognizes that Defendants retain the power to declare future
emergencies or reimpose limits on visitation and group gatherings within DOC
facilities. 	However, 	such 	executive 	power 	“cannot 	itself 	be 	enough 	to 	skirt
mootness, because then no suit against the government would ever be moot.”48 The
recent practice of DOC to maintain group gatherings and visitation in the face of
recent COVID-19 surges, and the government’s representation in Docket 50 that the
circumstances 	which 	precipitated 	the 	March 	13, 	2020 	public 	health 	disaster
declaration were “limited,” “unique,” and “extraordinary” makes any concern that
such policies might be reenacted too “remote and speculative” to provide a basis for
this court’s jurisdiction.49 	There is simply insufficient evidence in the record to
45 See State of Alaska COVID-19 Cases Dashboard at
https://experience.arcgis.com/experience/af2efc8bffbf4cdc83c2d1a134354074/ (showing
an increase from 23 daily cases on June 10, 2021, to 939 cases on September 21, 2021,
followed by a decrease to 118 cases on December 19, 2021, followed by a surge to 3,021
cases on January 21, 2022).
46 Tandon v. Newsom, ---- U.S. ----, 141 S.Ct. 1294, 1297 (2021) (denying mootness
challenge where California officials had a “track record of ‘moving the goalposts’” (quoting
South Bay United Pentecostal Church v. Newsom, 592 U.S. ---, 141 S.Ct. 716, 720 (2021)
(statement of GORSUCH, J.))); see also Roman Catholic Diocese of Brooklyn, 592 U.S. ----, --
--, 141 S.Ct. 63, 68 (2020) (per curiam) (denying mootness challenge where New York
regulations were frequently changed and Plaintiff’s lived under “constant threat” that
restrictions would be reimposed).
47 See Tandon, ---- U.S. ----, 141 S.Ct. at 1294 (quoting Roman Catholic Diocese of Brooklyn,
592 U.S. at ----, 141 S.Ct. at 68 (2020) (per curiam); see also High Plains Harvest Church v.
Polis, 592 U. S. ---, 141 S.Ct. 527 (2020).
48 Brach, 38 F.4th at 14 (quoting Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 10 (1st Cir. 2021).
49 Id. (quoting Lee v. Schmidt-Wenzel, 766 F.2d 1387, 1390 (9th Cir. 1985)). The Court
notes that while the burden remains the same, the voluntary cessation of challenged
activity by government officials is treated “with more solicitude ... than similar action by
private parties.” See Bd. of Trs. of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195,
1198 (9th Cir. 2019) (en banc) (omission in original) (internal quotation marks omitted);
see also Bell v. City of Boise, 709 F.3d 890, 898–99 & n.13 (9th Cir. 2013).
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“indict[e] that the challenged [policies] likely will be reenacted.”50
ii. 	The Capable of Repetition Yet Evading Review Doctrine Does
Not Apply.
Similarly, there is no indication that the challenged restrictions meet the
necessary elements to escape mootness under the “capable of repetition yet escaping
review” doctrine. For the reasons described above, this Court cannot find that there
is a “reasonable likelihood” that Plaintiff will be subject to the same restrictions on
gatherings, rehabilitation programs, and visitation that were previously imposed.51
The regulations limiting gatherings and visitation within DOC have been rescinded,
the authority for those restrictions has been withdrawn by the legislature, and the
State of Alaska has demonstrated a desire not to reimpose the restrictions even while
the COVID-19 pandemic that necessitated the State’s action persists. 	The mere
possibility that Defendants may reinstate restrictions on Plaintiff’s activities in
response to future events is an insufficient basis upon which to argue that a live
controversy exists.52
b. 42 U.S.C. § 1983 Standard
Mootness does not generally apply to claims for monetary damages.53 	As a
result, the Court is left to analyze Plaintiff’s remaining claim – that Commissioner
Dahlstrom should be held liable for money damages in her individual capacity as the
person who “created and implemented” the policy Plaintiff claims “unjustly and
50 Id. (quoting Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) (citation omitted)).
51 See Armster v. U.S. Dist. Ct. for Cent. Dist. of Cal., 806 F.2d 1347, 1360 n. 20 (9th Cir.
1986) (noting that the voluntary cessation and the capable of repetition yet evading review
exceptions are “analogous”).
52 See Foster v. Carson, 347 F.3d 742, 748 (9th Cir. 2003) (“[A] mere possibility that
something might happen is too remote to keep alive a case as an active controversy.”); see
also Murphy v. Hunt, 455 U.S. 478, 482 (1982) (stating that a “[r]easonable expectation
means something more than a mere physical or theoretical possibility.”); Best Supplement
Guide, LLC v. Newsom, 2022 WL 2703404 (9th Cir. July 12, 2022);
53 See Lokey v. Richardson, 600 F.2d 1265, 1266 (9th Cir. 1979) (per curiam) (holding that,
although claim for injunctive relief was mooted, case was not moot because plaintiff
prayed for damages and, regardless of actual damages, plaintiff could be entitled to
nominal damages).
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without reason restricted [him] from participating in any group religious activities
inside any Alaska correctional institution.”54 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.”55 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.”56 	To act under
the color of state law, a complaint must allege that the defendants acted with state
authority as state actors.57
In a § 1983 action, a defendant may be sued in either their individual or official
capacity. A defendant sued in her individual capacity may be held liable for money
damages.58 	In order for a defendant to be individually liable under § 1983, that
defendant must personally participate in an alleged rights deprivation.59 	“In a §
1983 action, the plaintiff must also demonstrate that the defendant’s conduct was
the actionable cause of the claimed injury.”60
Plaintiff fails to meet this standard. In substance, Claim One of Plaintiff’s First
Amended Complaint against Commissioner Dahlstrom in her individual capacity
mirrors the allegations contained in his original Complaint as they relate to this
defendant, which the Court previously screened and dismissed without prejudice,
and for which the Court provided guidance to Plaintiff about the elements needed in
a properly pled § 1983 claim.61 While Plaintiff does include additional information
about his own religious beliefs and practices in his First Amended Complaint, he
54 Dkt 10 at 4.
55 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)).
56 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
57 West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299,
326 (1941)).
58 See Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016).
59 Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010).
60 Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).
61 Dkt. 6.
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once again fails to articulate how Commissioner Dahlstrom personally participated
in depriving him of his rights or causing his alleged injury, which he must for an
individual capacity claim.62 	A claim that Commissioner Dahlstrom “created and
implemented” the policy about which Plaintiff complains is insufficient to establish
individual liability under § 1983.63
IV. 	Conclusion
The Court recommends that Plaintiff’s First Amended Complaint as it relates
to the injunctive relief sought against Acting Commissioner Winkelman in Claim
One, and against Governor Dunleavy in Claims Two and Three be DISMISSED AS
MOOT. The DOC policies limiting gatherings, rehabilitation programs, and visitation
within DOC no longer remain in effect and there is no indication that they are
reasonably likely to be reenacted. There is no longer a live case or controversy as it
relates to these claims and the Court no longer has jurisdiction over them.
The Court also recommends GRANTING IN PART Defendants’ Motion to
Dismiss at Docket 24 as it relates to Plaintiff’s Claim One against Commissioner
Dahlstrom in her individual capacity. 	Plaintiff’s First Amended Complaint fails to
state how Commissioner Dahlstrom personally participated in the deprivation of his
rights, and therefore fails to state a claim upon which relief can be granted.
However, given Plaintiff’s pro se status, the Court recommends Plaintiff be afforded
leave to amend as it relates to this distinct claim only, and be provided with
appropriate guidance on how to either amend his complaint or file a voluntary notice
of dismissal, along with the appropriate paperwork from the Clerk’s Office for
completing either action.64 	The Court recommends DENYING IN PART AS MOOT
62 Dkt. 10 at 3-5.
63 Id. at 4
64 In the event the District Court adopts the Court’s Findings and Recommendations as they
relate to the recommendation to dismiss the individual capacity claim against
Commissioner Dahlstrom with leave to amend, the Court directs Plaintiff to the original
screening order at Docket 6 for guidance on the elements necessary for a properly pled
claim.
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the remainder of Defendants’ Motion to Dismiss as it relates to the official capacity
claims in light of the recommendation to dismiss as moot those claims in Plaintiff’s
First Amended Complaint.
DATED this 2nd of September 2022, at Anchorage, Alaska.
s/ Kyle F. Reardon
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
This Report and Recommendation is being issued as a Final Report and
Recommendation. 	Pursuant to Fed. R. Crim P. 59(b)(3), any objections will be
considered by the District Court Judge who will accept, reject, or modify the
recommendation following de novo review. 	Any objections must be filed within
seven (7) days from the date of service of this Report and Recommendation. 	The
shortened objection deadline is due to the request of the District Court Judge. Fed.
R. Crim P. 59(b)(2) and D. Ak. L.M.R. 6(a) authorizes the court to alter the standard
objection deadlines.
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.65
65 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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