Harry v. Municipality of Anchorage et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KENNETH HARRY,
Plaintiff,
v.
MUNICIPALITY OF ANCHORAGE, et
al.,
Defendants.
Case No. 3:21-cv-00205-JMK
ORDER OF DISMISSAL
On September 9, 2021, Kenneth Harry, a self-represented litigant, filed a
Complaint under The Civil Rights Act, 42 U.S.C. § 1983, along with a civil cover
sheet and an Application to Waive Prepayment of the Filing Fee.1 On October 7,
2021, he filed a “Motion for Clarification and to Proceed to Emergency Injunction
Phase of these Proceedings and to Waive any and or all filing fees.”2
I. 	Complaint
Mr. Harry alleges suit under the Supremacy Clause of the U.S. Constitution
and 42 U.S.C. § 1983.3 	He names the (1) Municipality of Anchorage, (2) Alaska
Legislature, and (3) Anchorage Police Department as defendants.4
1 Dockets 1–3.
2 Docket 5.
3 Docket 1 at 1.
4 Docket 1 at 2.
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In essence, Mr. Harry’s Complaint centers on his state court criminal matter,
Municipality of Anchorage v. Harry, Case No. 3AN-16-09213CR. The Court takes
judicial 	notice 	that 	Mr. 	Harry 	pleaded 	no 	contest 	and 	was 	sentenced 	to
misdemeanor Operating Under the Influence on June 2, 2017.5 In brief summary,
Mr. Harry alleges:
• 	Claim 1: 	The Municipality of Anchorage violated Mr. Harry’s right to due
process from 2015–2016 by arresting and prosecuting him for Operating
Under the Influence in a vehicle that could not physically operate.6
• 	Claim 2: The Alaska Legislature violated his right to be free from cruel and
unusual 	punishment 	from 	2015–2016 	by 	“it’s 	vague 	[nonsensical]
terminology” and legislating the requirement of an ignition interlock device,
which is a bill of pains and violates double jeopardy.7
• 	Claim 3: 	The Anchorage Police Department arrested and convicted him
“where [he] had committed no crime” and “at no juncture did APD witness
me, or have report, that I operated a vehicle under the influence.”8
5 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. Municipality of Anchorage v. Harry, Case No. 3AN-
16-09213CR docket entry dated June 2, 2017 (“Case Closed. 	Case closed after
disposition of No Contest Plea After Arraignment on 06/02/2017.” For a complete docket
view of the state litigation in this matter, individuals may search Alaska state online case
records at https://records.courts.alaska.gov/).
6 Docket 1 at 3.
7 Docket 1 at 4.
8 Docket 1 at 5.
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For relief, Mr. Harry requests (1) damages of $10,000,000.00; (2) punitive
damages of $50,000,000.00; (3) an order to “[cease] and desist the harmful
actions”; (4) a declaration that “the term operating is overbroad”; (5) a declaration
that Alaska Stat. § 11.41.410(a)(1) is vague and overbroad; and (6) “an emergency
injunction that halts the continuing injury.”9
II. 	Screening Requirement
Federal law requires a court to conduct an initial screening of a civil
complaint filed by a self-represented litigant seeking to proceed in a lawsuit in
federal court without paying the filing fee.10 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.11
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.”12 	In conducting its
9 Docket 1 at 7.
10 See, e.g., Lopez v. Smith, 203 F.3d 1122, 1126 n.7 (9th Cir. 2000).
11 28 U.S.C. § 1915(e)(2)(B).
12 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
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review, a court must liberally construe a self-represented plaintiff’s pleading and
give the plaintiff the benefit of the doubt.13 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.14
III. 	Discussion
For the reasons explained below, Mr. Harry fails to state a claim upon which
relief can be granted. Therefore, this action must be dismissed.
a. 	Supremacy Clause
The 	Supremacy 	Clause 	of 	the 	U.S. 	Constitution 	provides 	that 	when
Congress legislates pursuant to its powers federal law preempts any conflict with
state law.15 The Supremacy Clause is not a source of federal rights and does not
create a private cause of action.16 Plainly, individual litigants cannot sue under the
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)).
13 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)).
14 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)).
15 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210–11 (1842).
16 Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 324–25 (2015).
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Supremacy 	Clause. 	Accordingly, 	Mr. 	Harry 	may 	not 	bring 	suit 	under 	the
Supremacy Clause of the U.S. Constitution.
b. 	42 U.S.C. § 1983
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.”17 To state
a claim for relief under 42 U.S.C. § 1983, a plaintiff must “plead that (1) defendants
acting under color of state law (2) deprived plaintiff of rights secured by the federal
Constitution or federal statutes.”18 	To act under color of state law, a complaint
must allege that the defendants acted with state authority as state actors.19 To be
deprived of a right, the defendant’s action needs to either violate a right guaranteed
by the Constitution or an enforceable right created by federal law.20
A convicted person may not bring a civil rights claim under 42 U.S.C. § 1983
that collaterally attacks his state court conviction. 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 the underlying
sentence 	or 	conviction 	has 	been 	“reversed 	on 	direct 	appeal, 	expunged 	by
17 Graham v. Connor, 490 U.S. 386, 393–94 (1989) (quoting Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)).
18 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
19 West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299,
326 (1941)).
20 Buckley v. City of Redding, 66 F. 3d 188, 190 (9th Cir. 1995); Blessing v. Freestone,
520 U.S. 329, 340–41 (1997).
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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.”21 	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.”22
As a threshold requirement in order for Mr. Harry to procced on these claims,
he must demonstrate that his conviction has been overturned on appeal, expunged
by executive order, declared invalid by a state tribunal, or called into question by
a writ of habeas corpus—which he has not and cannot do. 	All of Mr. Harry’s
allegations grow out of his June 2, 2017, conviction to misdemeanor Operating
Under the Influence. 	Mr. Harry’s express purpose of this suit is to undermine the
validity of his conviction as evidenced by the defendants named, his civil rights
allegations, and the relief requested. 	Mr. Harry disagrees with the facts by which
he plead no contest; the law under which he was convicted and sentenced; and
that 	Alaska 	law 	requires 	an 	ignition 	interlock 	device 	for 	those 	convicted 	of
operating under the influence. 	Heck v. Humphrey expressly prohibits federal
district courts from entertaining these types of allegations, because they seek to
undermine state court determinations and sentences. 	The Court cannot grant
21 Heck v. Humphrey, 512 U.S. 477, 487 (1994).
22 Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005).
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such relief in a civil action, nor can these claims proceed due to the bar imposed
by Heck v. Humphrey.
Mr. Harry fails to state a claim upon which relief can be granted. Therefore,
this action must be dismissed.
IT IS THEREFORE ORDERED:
1. This action is DISMISSED WITHOUT PREJUDICE.
2. All pending motions are DENIED AS MOOT.
3. The Clerk of Court shall enter a final judgment.
DATED this 12th day of November, 2021, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
UNITED STATES DISTRICT JUDGE
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