Lott v. Metzger et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MIKE LOTT,
Plaintiff,
v.
JULIA METZGER; the STATE OF
ALASKA; and the STATE OF ALASKA,
DEPARTMENT OF CORRECTIONS ,
Defendants.
Case No. 4:22-cv-00001-JMK
NOTICE OF INTENT TO DISMISS
Mike Lott (“Plaintiff”), a self-represented prisoner, initially filed a Prisoner’s
Complaint under the Civil Rights Act (42 U.S.C. § 1983) on January 11, 2022.1 He
then filed a First and Second Amended Complaint and several motions.2 	The
Court screened Plaintiff’s filings pursuant to 28 U.S.C. § 1915A. 	In the Second
Screening Order, the Court again found Plaintiff’s filings deficient, denied all the
pending motions, dismissed Plaintiff’s Second Amended Complaint, and granted
“limited, conditional leave to amend.”3
1 Docket 1.
2 Dockets 5–10, 12–18.
3 Docket 19 at 13. An amended complaint replaces the prior complaint in its entity. See Local
Civil Rule 15.1; Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015).
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Notice of Intent to Dismiss
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On November 4, 2022, Plaintiff Mike Lott, a self-represented prisoner, filed
a “NOTICE of Filing State Court Documents,” which included four pages of
documents.4 	The first page is handwritten and formatted as a federal court filing
with the case caption, Plaintiff’s signature, and the date. However, the body of the
document appears to be a table of contents describing the two documents
provided in the following pages. The next pages contain a copy of Superior Court
Judgment of Acquittal in State of Alaska v. Lott, Case No. 4BE-21-00626CR dated
11/07/2022,5 and a Dismissal Order in State of Alaska v. Lott, Case No. 4BE-21-
1125CR dated 10/07/2022.6
While the Court may act with leniency towards a self-represented litigant for
procedural violations, Plaintiff is not excused from the rules that govern court
proceedings. 	The Court previously has provided Plaintiff with information and
opportunities to cure the deficiencies in his filings. In the Second Screening Order,
Plaintiff was cautioned that if he did not file a Third Amended Complaint or Notice
of Voluntary Dismissal by November 14, 2022, “this case may be dismissed
without further notice to Plaintiff, and he risks receiving a strike.”7
4 Docket 21.
5 Docket 21 at 2.
6 Docket 21 at 3–4.
7 Docket 19 at 13–14.
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Although Plaintiff filed documents before the deadline, “Notices” to the Court
are not the proper way to request relief from the Court and will not be considered.8
If Plaintiff’s intent was to amend his Complaint, this fails under Rule 15 of the
Federal Rules of Civil Procedure.9 	If 	Plaintiff’s intent was to submit these
documents as evidence, this also is improper and premature. 	In federal cases,
evidence is provided to the Court either through dispositive motions or at trial in
accordance with the Federal Rules of Civil Procedure and the Federal Rules of
Evidence.10
Plaintiff has failed to properly amend his complaint and has shown he either
is unwilling or unable to comply with Court orders by failing to timely file responsive
documents or otherwise cooperate in prosecuting this action.11 	Therefore, the
8 Notices of Appearance made by an attorney do not request relief from the Court, but only
provides notice and critical information to the Court and the Clerk of Court as to the representation
of parties appearing before the Court.
9 Rule 15(a) of the Federal Rules of Civil Procedure and Local Civil Rule 15.1 govern the process
for amending pleadings. In this Court, an amended complaint replaces the prior complaint in its
entirety. In order to amend a complaint, a plaintiff must submit a new complaint with all the claims
the plaintiff seeks to allege.
10 See Fed. R. Civ. P. 56 (Summary Judgment); see generally Fed. R. Civ. P. 38–53; see also Fed.
R. Evid.
11 In deciding whether to dismiss for failure to prosecute or comply with court orders, a district
court must consider five (5) factors: “(1) the public’s interest in expeditious resolution of litigation;
(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.
Hernandez v. City of El Monte, 138 F.3d 393, 399 (quoting Henderson v. Duncan, 779 F.2d 1421,
1423 (9th Cir. 1986).
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Court intends to DISMISS THIS ACTION WITH PREJUDICE.12 	The Court finds
no other lesser sanction to be satisfactory or effective in this case.13
Plaintiff should be cautioned that when a federal district court dismisses a
prisoner’s action at screening, a prisoner plaintiff must be given a strike.14 	After
three strikes, a prisoner plaintiff may no longer bring suits in federal courts without
prepayment of the filing fee unless the prisoner can demonstrate an “imminent
danger of serious physical injury.”15
Therefore, in the interest of fundamental fairness, the Court will provide
Plaintiff with 30 days to voluntarily dismiss this action, in order to preserve his
claims for later litigation and avoid receiving a strike.16
IT IS THEREFORE ORDERED:
12 A “district court’s ‘decision to dismiss [an] amended complaint with prejudice [may be]
appropriate in light of [plaintiffs’] repeated failure to cure the deficiencies in [their] pleadings.’”
Destfino v. Reiswig, 630 F.3d 952, 959 (9th Cir. 2011) (quoting Neubronner v. Milken, 6 F.3d 666,
672 (9th Cir. 1993)); see also Rule 41(b) of Federal Rules of Civil Procedure (permitting dismissal
due to a plaintiff’s failure to prosecute or comply with a court order).
13 See, e.g., Henderson, 779 F.2d at 1424 (a district court need not exhaust every sanction short
of dismissal before finally dismissing a case but must explore possible and meaningful
alternatives) (internal citation omitted); Adriana International Corp. v. Thoeren, 913 F.2d 1406,
1412 (9th Cir. 1990) (explaining despite all the elaboration of factors, it is not always necessary
for the court to impose less serious sanctions first, or to give any explicit warning); Gleason v.
World Sav. Bank, FSB, 2013 WL 3927799, at *2 (N.D. Cal. July 26, 2013) (finding dismissal under
Rule 41(b) appropriate where the court previously attempted the lesser sanction of issuing an
order to show cause and giving the plaintiff an additional opportunity to re-plead).
14 28 U.S.C. § 1915(g).
15 Id.
16 A voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1) is not a dismissal for
frivolity, maliciousness, or failure to state a claim upon which relief may be granted and, therefore,
does not count as a “strike” under 28 U.S.C. § 1915(g).
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1. 	Plaintiff has 30 days to voluntarily dismiss this action in order to preserve his
claims for later litigation and avoid receiving a strike as required by 28 U.S.C.
§ 1915(g).
2. 	If Plaintiff does not respond, the Court will dismiss the action per the required
screening 	of 	28 	U.S.C. 	§§ 	1915(e) 	and 	1915A 	for 	the 	above 	stated
reasoning and issue a strike against Plaintiff per 28 U.S.C. §1915(g).
3. 	The Clerk of Court is directed to send Plaintiff PS 90 Notice of Voluntary
Dismissal.
DATED this 10th day of January, 2023, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
UNITED STATES DISTRICT JUDGE
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