Talmadge v. Zwink et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
BRETT ALAN JAMES TALMADGE,
Plaintiff,
v.
MAGISTRATE ZWINK, et al.,
Defendants.
Case No. 3:21-cv-00002-RRB
ORDER OF DISMISSAL
Brett Alan James Talmadge, representing himself, has filed a Prisoner’s Civil
Rights Complaint, under 42 U.S.C. § 1983, and has paid the filing fee in this case.1
Mr. Talmadge asserts claims occurring in 2008, leading to his state court criminal
indictment, trial, conviction, and sentence; and in 2019, involving revocation of his
probation in that case.2 As Defendants, Mr. Talmadge names individuals involved
in his criminal case.3 	The Court takes judicial notice4 that Mr. Talmadge filed a
similar case in this Court in 2019, which is now on appeal.5
1 Docket 1.
2 Id. at 5–25.
3 Id. at 2–4.
4 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 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.”) (citation omitted); Fed.
R. Evid. 201.
5 Talmadge v. Williams, et al., 3:19-cv-00318-TMB, Dockets 1, 8, 13–16, 18.
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In his current case, Mr. Talmadge seeks damages to be determined by a
jury, and injunctive and declaratory relief prohibiting Glass Warrants.6 	A “Glass
warrant . . . under [t]he Alaska constitution requires that a warrant issue before
surreptitiously recording a conversation. Under federal constitutional and statutory
law, by contrast, no warrant is necessary so long as one of the two parties to the
conversation consents to the recording.”7
SCREENING REQUIREMENT
Federal law requires a court to conduct an initial screening of a civil
complaint filed by a prisoner seeking redress against “a governmental entity or
officer of employee of a governmental entity.”8 	In this screening “the court shall
identify cognizable claims or dismiss the complaint, or any portion of the complaint,
if the complaint--
(1) is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or
6 Docket 1 at 28; see State v. Glass, 583 P.2d 872, 881 (Alaska 1978) (requiring
that a warrant be obtained to record a conversation, unless all parties consent to the
recording).
7 Armstrong v. Asselin, 734 F.3d 984, 987, 988 (9th Cir. 2013) (citing Glass, 583
P.2d at 881) (“Alaska’s Constitution mandates that its people be free from invasions of
privacy by means of surreptitious monitoring of conversations.”); United States v. White,
401 U.S. 745 (1971); United States v. Caceres, 440 U.S. 741, 744 (1979) (“Neither the
Constitution nor any Act of Congress requires that official approval be secured before
conversations are overheard or recorded by Government agents with the consent of one
of the conversants.”); 18 U.S.C. § 2511(2)(c) (“It shall not be unlawful under this chapter
for 	a 	person 	acting 	under 	color 	of 	law 	to 	intercept 	a 	wire, 	oral, 	or 	electronic
communication, where such person is a party to the communication or one of the parties
to the communication has given prior consent to such interception.”)).
8 28 U.S.C. § 1915A(a).
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(2) seeks monetary relief from a defendant who is immune from such
relief.”9
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.10 	In conducting its
review, a court must liberally construe a self-represented plaintiff’s pleading and
give the plaintiff the benefit of the doubt.11 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.12
DISCUSSION
The Court takes judicial notice that neither Mr. Talmadge’s state criminal
conviction 	and 	sentence, 	nor 	the 	revocation 	of 	his 	probation, 	have 	been
9 28 U.S.C. § 1915A (b).
10 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)).
11 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)).
12 	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)).
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invalidated.13 	Thus, he cannot currently bring civil rights claims in federal court.
And before bringing a federal habeas action challenging the fact or duration of his
confinement, he must exhaust his state court remedies.
I. 	Heck v. Humphrey
“Title 42 U.S.C. § 1983, provides a remedy for deprivations of rights secured
by the Constitution and laws of the United States when that deprivation takes place
‘under color of any [law] . . . of any State or Territory . . . .’”14 This federal statute
“is not itself a source of substantive rights,” but provides “a method for vindicating
rights [found] elsewhere.”15 	Under § 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.”16
Mr. Talmadge’s Claims numbered 1–9 date back to 2008, after which he
was indicted in January of 2009, and was convicted and sentenced in April 2010,
13 See https://records.courts.alaska.gov/eaccess/search, State of Alaska v. Brett
Brett A.J. Talmadge, 3PA-09-00125CR; Talmadge v. State of Alaska, No. A-10765, 2013
WL 784884 (Alaska App. Feb 27, 2013) (unpublished); Talmadge v. State of Alaska,
No. A10765, 2014 WL 5305987 (Alaska App. Oct. 15, 2014) (unpublished); Talmadge v.
State 	of Alaska, 	No. A-12835, 	2018 	WL 4361153 	(Alaska App. 	Sept. 	12, 	2018)
(unpublished).
14 Lugar v. Edmondson Oil, Co., 457 U.S. 922, 924 (1982) (citing § 1983); see also
U.S. Const. amend. XIV (“No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.”).
15 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan,
443 U.S. 137, 144 n.3 (1979)).
16 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
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for felony sexual abuse of a minor.17 	Mr. Talmadge claims that, in June 2008,
Magistrate Zwink “issued a search warrant . . . [in] violat[ion] [of] the Fourth
Amendment . . . [with the intention [of] circumvent[ing] [Mr. Talmadge’s] right to be
questioned with counsel present . . . to elicit incriminating statements . . . [through]
threats, moral and psychological inducement by an agent of the state, with the
coaching of officer Rick Martinez.”18 Mr. Talmadge alleges that Magistrate Rachel
Gerna[]t also 	violated 	his rights 	by authorizing a “Glass warrant,”19 and by
“disclos[ing] [an] illegal recording to the grand jury and at trial.”20 	And he alleges
that Rick Martinez “circumvented [his] right to be questioned with counsel present[]
[b]y secretly recording his conversation for the express intent to elicit statements
about a crime,” and to “intentionally . . . violate [his] 5th Amendment right not to
incriminate,” and that Mr. Manrique “disclosed these illegal recording[s] to the
grand jury.”21
However, a prisoner may not initially bring a claim that collaterally attacks
his state court conviction or sentence under 42 U.S.C. § 1983. 	Where a § 1983
action alleges constitutional violations that would necessarily question or concern
the validity of a state court conviction or sentence, the prisoner must establish that
17 Docket 1 at 5–13; Alaska v. Talmadge, 3PA-09-00125CR.
18 Id. at 5–6.
19 Glass, 583 P.2d at 881 (requiring probable cause and a warrant in Alaska, to
record a conversation, unless all parties consent to the recording).
20 Docket 1 at 8–9.
21 Id. at 10–12.
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the underlying sentence or conviction has been “reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance of
a writ of habeas corpus.”22 	This rule applies regardless of whether the prisoner
seeks damages or injunctive relief, or who the target of the suit is, “if success in
that action would necessarily demonstrate the invalidity of confinement or its
duration.”23
Mr. Talmadge’s first nine claims assert facts involved in his 2009 criminal
conviction and sentence. Because neither his conviction nor sentence in that case
have been invalidated, this Court may not entertain his civil rights claims.
II. 	Younger Abstention
Mr. Talmadge’s Claims numbered 10–21 concern the 2019–20 revocation
of his probation.24 	Those claims include assertions that Defendants Magistrate
Conde and Assistant District Attorney Linda Burton issued search warrant(s) in
violation 	of 	his 	rights 	under 	the 	Fourth 	Amendment, 	his 	right 	against 	self-
incrimination, his right to an attorney during questioning, and his right to Due
Process and Equal Protection, and that Linda Burton shared illegal information
22 Heck v. Humphrey, 512 U.S. 477, 487 (1994).
23 Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005).
24 Docket 1 at 14–25; see also Alaska v. Talmadge, 3PA-09-00125CR, 9/19/19,
9/27/19, 1/14/20 docket notes, and hearing scheduled for 3/18/21.
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with a grand jury.25 	Mr. Talmadge further alleges that Defendant Sherry Ferno
requested a private party to elicit incriminating statements from Mr. Talmadge, in
violation of his Fifth, Sixth and Fourteenth Amendment rights.26 	And he alleges
that Defendants Velvet Bieswinger and Ellesaundra McIver gave false information
to Sherry Ferno, resulting in the issuance of Glass warrants.27
The Younger abstention doctrine, however, provides that federal courts may
not generally exercise jurisdiction when doing so would interfere with state judicial
proceedings.28 	The core of Younger abstention is that a federal court cannot
interfere with pending state court criminal proceedings, absent a “showing of bad
faith, harassment, or any other unusual circumstance that would call for equitable
relief.”29 A federal court
must abstain under Younger if four requirements are met: (1) a state-
initiated 	proceeding 	is 	ongoing; 	(2) 	the 	proceeding 	implicates
important state interests; (3) the federal plaintiff is not barred from
litigating federal constitutional issues in the state proceeding; and
(4) the federal court action would enjoin the proceeding or have the
practical 	effect 	of 	doing 	so, 	i.e., 	would 	interfere 	with 	the 	state
proceeding in a way that Younger disapproves.30
25 Id. at 14–19.
26 Id. at 20–23.
27 Id. at 24–25. 	In his Amended Complaint in Case No. 3:19-cv-00318-TMB,
Docket 8 at 9, Mr. Talmadge claims that Ellesaundra McIver is his daughter.
28 See Younger v. Harris, 401 U.S. 37, 41 (1971).
29 Younger, 401 U.S. at 54.
30 San Jose Silicon Valley Chamber of Commerce Political Action Committee v.
City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008).
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Dismissal under Younger has been extended to suits for damages.31
The State of Alaska has an important interest in enforcing its criminal laws.
To the extent that Mr. Talmadge seeks to challenge the revocation of his probation
in his State of Alaska Superior Court criminal case, his challenge should be
addressed in those proceedings.32 Otherwise, the relief Mr. Talmadge requests in
this Court, if it could be granted,33 would interfere with the state trial court’s fact-
finding responsibilities, which would have the practical effect of enjoining the
ongoing state criminal court action.34
31 Washington v. Los Angeles County Sheriff’s Department, 833 F.3d 1048, 1058
(9th Cir. 2016) (“‘Younger principles apply in an action for damages pursuant to 42 U.S.C.
§ 1983 in which the federal plaintiff brings a constitutional challenge to a state proceeding
when that proceeding is ongoing; the state proceeding is of a judicial nature, implicating
important state interests; and the federal plaintiff is not barred from litigating his federal
constitutional issues in that proceeding.’”) (quoting Gilbert v. Albright, 381 F.3d 965, 984
(9th Cir. 2004)).
32 See, e.g., Alaska v. Talmadge, 3PA-09-00125CR, 3/18/21 hearing.
33 See Armstrong, 734 F.3d at 998 (“Since [the] § 1983 civil rights claim must rely
on the deprivation of any rights ‘secured by the Constitution and laws’ of the United
States, violation of the Alaska constitution alone does not establish a basis for a § 1983
lawsuit. The absence of a good warrant for the recorded conversations with Armstrong
is immaterial to this federal case.”) (citations omitted).
34 If “bad faith, harassment, or any other unusual circumstance that would call for
equitable relief,” Younger, 401 U.S. at 54, is involved in the revocation of his probation,
Mr. Talmadge should begin by appealing the trial court’s decision to the state appellate
courts. See discussion regarding exhaustion, below.
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III. 	Exhaustion Required to Bring Federal Habeas Case
To challenge a conviction or sentence, or both, in federal court, one may file
a habeas petition under 28 U.S.C. § 2254.35 	But first, a petitioner must either
(A) exhaust “the remedies available in the courts of the State” or (B) show “there
is an absence of available State corrective process; or circumstances exist that
render such process ineffective to protect the rights of the applicant.”36 To satisfy
the “fairly present” requirement, the petitioner actually must present his or her
federal claim to “each appropriate state court (including a state supreme court with
powers of discretionary review),” so that each court is alerted to the federal nature
of the claim.37 	In Alaska, this means that a claim must first be presented to the
Alaska Superior Court. 	If the petitioner disagrees with that result, the claim should
be raised to the Alaska Court of Appeals, and if the petitioner disagrees with that
result, the claim should be raised in a petition for hearing to the Alaska Supreme
Court. 	A federal court may not entertain a habeas petition unless the petitioner
35 A challenge to the revocation of state probation or parole should be done through
a federal petition for habeas corpus. 	See Rules Governing Section 2254 Cases in the
United States District Courts (“Habeas Rules”), Rule 1(a)(2) (explaining that the Habeas
Rules govern § 2254 petitions filed by “a person in custody under a state-court . . .
judgment who seeks a determination that future custody under a state-court judgment
would violate the Constitution, laws, or treaties of the United States”); Rose v. Morris, 619
F.2d 42, 44 (9th Cir. 1980) (holding that petitioner was sufficiently “in custody” for
purposes of Section 2254 petition where petitioner was in federal custody challenging a
state probation revocation).
36 28 U.S.C. § 2254(b)(1).
37 Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364,
365–66 (1995) (per curiam)).
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has exhausted all available and adequate state court remedies for every claim in
the petition.38
Because neither Mr. Talmadge’s state court conviction, nor the fact or
duration of his current confinement, have been invalidated, this Court may not
review the merits of the case.39
Accordingly, IT IS HEREBY ORDERED:
1. This 	case, 	involving 	claims 	concerning 	Mr. 	Talmadge’s 	state 	criminal
indictment, 	conviction, 	sentence, 	and 	the 	duration 	of 	his 	confinement,
including revocation of probation, is DISMISSED WITHOUT PREJUDICE.
This dismissal will not count as a “strike” against Mr. Talmadge under
§ 1915(g).40
38 Rose v. Lundy, 455 U.S. 509, 510 (1982).
39 	See 	westlaw.com; 	https://records.courts.alaska.gov/eaccess/search; 	https://
appellate-records.courts.alaska.gov/CMSPublic/Search. 	Mr. 	Talmadge 	may
appropriately appeal a decision of the trial court, and discuss his position regarding Glass
warrants, as he has previously. 	See Talmadge v. Alaska, No. A-10765, 2012 WL
4512783, 3/14/12 Opening Brief at 8 (“During the Glass warrant conversation, Talmadge
told Theresa that he had fallen in love with C.B., wanted to marry her, and admitted that
he had sex with her four or five times. . . . Talmadge told Theresa that he only had sex
with C.B. at his house, but he did not specify whether he was referring to his house in
Alaska or Wyoming.”); Talmadge v. Alaska, No. A-12835, 2017 WL 10186542 (Alaska
App.), 10/25/17 Opening Brief on post-conviction appeal at 32 (“PCR counsel relied
entirely on Mr. Talmadge’s appellate attorney’s analysis regarding the Glass claim.”).
40 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.” 	See Washington, 833 F.3d
at 1057 (“Because Washington’s Heck-barred damages claims are thus intertwined with
his habeas challenge to the underlying sentence, we decline to impose a strike with
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2. All outstanding motions are DENIED as MOOT.
3. The Clerk of Court is directed to enter a judgment accordingly.
DATED this 9th day of March, 2021 at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
respect to his entire action.”); see also id. at 1058 (“We hold that a dismissal due to
Younger abstention, similar to a dismissal under Rule 12(b)(1) for lack of subject-matter
jurisdiction, is not a strike under the PLRA.”).
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