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Harmon v. Dunleavy

United States District Court, D. Alaska

September 13, 2019

MIKE DUNLEAVY, et al., Defendants.



         Stephen Harmon, a self-represented prisoner, has filed a Civil Rights Complaint under 42 U.S.C. § 1983, and an Application to Waive the Filing Fee under 28 U.S.C. §1915(a).[1] Defendants, Alaska Governor Mike Dunleavy and Alaska Attorney General Clarkson, are both sued in their official capacities.[2] For relief, Mr. Harmon requests a declaration that the Governor and Attorney General have not complied with their constitutional obligations to faithfully execute the laws and that they have knowingly and intentionally denied basic constitutional rights and due process to Mr. Harmon and all Alaskans for over fifteen years.[3] Mr. Harmon also requests that Alaska's presumptive sentencing[4] and felony sentencing[5] statutes be changed so as to be in accordance with United States Supreme Court law, [6] in an emergency session of the legislature to be called within thirty days of a court order, and that the rewritten statutes be applied retroactively.[7]

         The Court takes judicial notice[8] that Mr. Harmon was convicted of sexual assault and murder, [9] sentenced to 129 years with parole eligibility restricted to 99 years, and has been denied state post-conviction relief several times.[10] He has been denied habeas relief as well.[11] Mr. Harmon maintains, however, that he is not challenging his conviction or sentence in this case.[12]

         Screening Requirements

         Federal law requires a court to conduct an initial screening of a complaint brought by a self-represented plaintiff who has not paid 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.[13]

         To determine whether a complaint states a valid claim for relief, a court considers if it contains sufficient factual matter that if accepted as true “state[s] a claim to relief that is plausible on its face.”[14] In conducting its review, the court is mindful that it must liberally construe a self-represented plaintiff's pleading and give the plaintiff the benefit of any doubt.[15] 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.[16]


         In both of his claims for relief Mr. Harmon alleges that, in about mid-2013, he was made aware that his Due Process rights were being continually denied by the Governor (in Claim 1) and Attorney General (in Claim 2) of the State of Alaska by the imposition of unconstitutional laws.[17]

         1. Establishing this Court's Jurisdiction Over the Case.

         Jurisdiction is “[a] court's power to decide a case or issue a decree[.]”[18] As explained by the United States Supreme Court, “[f]ederal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.”[19] That is, the United States Constitution or a federal statute must generally be at issue to establish this Court's jurisdiction. It is Mr. Harmon's burden, as the plaintiff, to show that this Court has jurisdiction to hear his claims.[20]Mr. Harmon has filed claims under 42 U.S.C. § 1983.

         2. Requirements for Filing an Action Under the Civil Rights Act.

         42 U.S.C. § 1983 “provides a cause of action for state deprivations of federal rights.”[21] That is, a plaintiff has “a cause of action against [1] state actors who [2] violate an individual's rights under federal law.”[22] Critically, a plaintiff must establish a causal link between the state action and the alleged violation of his or her rights.[23] These essential elements must be alleged in a § 1983 claim.

         Section 1983 “is not itself a source of substantive rights, ” but provides “a method for vindicating rights [found] elsewhere.”[24] That is, § 1983 provides a mechanism for remedying violations of pre-existing constitutional or federal rights. To be deprived of a right, the defendant's action needs to either violate rights guaranteed by the Constitution or an enforceable right created by federal law.[25]Constitutional rights are those conferred by the U.S. Constitution to individual citizens.

         Thus, to plead a proper § 1983 claim, a plaintiff must allege plausible facts that if proven would establish each of the following elements: (1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a person (4) acting under color of state law. All of these elements must be alleged in a complaint in order to maintain a § 1983 claim.

         3. Heck v. Humphrey bars any claim as to the validity of Mr. Harmon's state conviction and/or sentence.

         The Supreme Court, in Wilkinson v. Dotson held that Heck v. Humphrey[26] and its progeny bar § 1983 suits, absent prior invalidation of the conviction or sentence, even when the relief sought is prospective injunctive or declaratory relief, “if success in that action would necessarily demonstrate the invalidity of confinement or its duration.”[27]

         Although Mr. Harmon expressly and repeatedly states that he is not challenging the fact or duration of his conviction or sentence, he is challenging two sentencing statutes that he claims were unconstitutional as applied to himself and other Alaskans and seeking retroactive relief. A decision invalidating either of those statutes would invalidate the terms of Mr. Harmon's confinement; therefore, Heck precludes Mr. Harmon from proceeding with this Section 1983 action.

         5. Claim and Issue Preclusion.

         Mr. Harmon claims that, after he “became aware of this denial of unlawful/unconstitutional state statutes for any Alaskan, from 2013 to recently 2019 [he] tried to bring attention to varies Alaska Courts (Trial Ct./Appeal Supreme Ct. Ak.) and ‘NONE' would want or consider to hear the Claim/ground … instead knowingly allow the Courts to continue with acknowledged and ruled unconstitutional law in/on the proceedings denying all Alaska due process and lawful constitutional state statutes as required by the State and Federal Constitutions.”[28]

         Mr. Harmon's repeated challenges to “the legality of his sentence in light of the United States Supreme Court's opinion in Blakely v. Washington[29] have each been denied. On February 8, 2017, ...

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