Tholson v. Hises et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
LEON THOLSON,
Plaintiff,
v.
TIMOTHY HISES, et al.,
Defendants
Case No. 3:21-cv-00164-SLG
SCREENING ORDER
Leon Tholson, representing himself, filed a Complaint against two
correctional officers at the Anchorage Correctional Complex, in both their individual
and official capacities, and the Alaska Department of Corrections, “alleging the
deprivation of constitutional rights as well as personal injury under State claims.”1
Mr. Tholson also filed an Application to Waive the Filing Fee and a CJA Financial
Affidavit in support.2
In Claim One, Mr. Tholson alleges that, on January 13, 2020, while he was
on “suicide protocol,” Correctional Officer Timothy Hises,3 when asked to help Mr.
Tholson call his attorney, told him that “[p]risoners who tried to contact attorneys
1 Docket 1 at 1.
2 Dockets 3, 4.
3 Mr. Tholson spells Defendant’s name as Timothy Hises in the caption of the Complaint,
and as “Timothy heights,” and “Timothy Hiese” in the body of the Complaint. In this order,
the Court will use the spelling used in the caption. Docket 1 at 1-3.
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to sue us don’t get to use the phone,” and “we will destroy the evidence like we did
the last time.”4 Then, instead of providing Mr. Tholson with adequate clothing as
requested, C.O. Hises had Mr. Tholson escorted naked to the showers with a hood
over his head.5 Mr. Tholson asserts that C.O. Hises confirmed that these actions
were taken because Mr. Tholson “tried to call an attorney.”6
In Claim Two, Mr. Tholson claims that, on January 26, 2001,7 after being
“placed in administrative segregation under protective custody because of
accusations of possession of child pornography … defendant Chris Lyou restricted
4 Docket 1 at 2.
5 Id.
6 Id. at 2-3.
7 The Court takes judicial notice that public records for the State of Alaska show no
criminal cases under Mr. Tholson’s name in which he could have been incarcerated on
January 26, 2001. See https://records.courts.alaska.gov/eaccess/searchresults. On
December 3, 2019, Mr. Tholson was arraigned in State of Alaska v. Leon Michael Tholson,
3AN-19-11387CR, on charges of child pornography; and on December 18, 2020, while
out of custody, he was arraigned in State of Alaska v. Leon Michael Tholson, 3AN-20-
08497CR, on a charge of misdemeanor harassment. The Alaska court dockets in those
cases show Mr. Tholson as being in custody from his December 3, 2019 arraignment until
November 12, 2020, from February 2, 2021 – March 9, 2021, and from April 9, 2021 –
July 26, 2021; and he is now on supervised release. Thus, it is possible that Mr. Tholson
intended to state January 26, 2020 as the date for his allegation in Claim 2.
“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. . ..” Black’s Law Dictionary
(11th ed. 2019); see also Foster Poultry Farms v. Alkar-Rapidpak-MP Equip., Inc., 868 F.
Supp. 2d 983, 990 (E.D. Cal. 2012) (“Courts routinely take judicial notice of publicly
available records . . . from other court proceedings.”) (citing Engine Mfrs. Ass’n v. South
Coast Air Quality Management Dist., 498 F.3d 1031, 1039 n.2 (9th Cir. 2007) (additional
citation omitted)); Fed. R. Evid. 201.
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[his] phone calls to [his] attorney without any legitimate penological interest
whatsoever.”8
Mr. Tholson claims that the actions of the correctional officers “created
ongoing severe mental and emotional injuries … that substantially affect his ability
to perform day-to-day activities.”9
Mr. Tholson states no facts in support of any claim against the Alaska
Department of Corrections, named under “the superior respondent doctrine of
law.”10
Mr. Tholson requests compensatory and punitive damages to be decided at
trial, and a “declaration from the court stating in specific what legal and
constitutional rights were violated and by what defendants.”11
Thereafter, Mr. Tholson filed a Notice of Intent to Amend Complaint to add
claims against “Defendant Lyou and Jane Dow for ordering the Correctional
Officers to only provide [him] access to use the phone to call an attorney if a
Correctional Officer was able to stand by and listen … in Jan. of 2020”; and against
8 Docket 1 at 3.
9 Id.
10 Id. at 1.
11 Id. at 3.
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two “John Dows in Feb. of 2021[,]” “[f]or only providing access to make attorney
call at about 6:30 a.m.”12
On August 24, 2021, Mr. Tholson also filed three motions: (1) a “Motion for
the Court to Order Defendants to locate and preserve sound and video recordings”
of “Defendant Hises on [Mr. Tholson’s] housing unit on 1-13-2020”;13 a (2) “2[]nd
Request for Clarification,” asking when the Court would have him file an amended
complaint;14 and (3) a motion requesting “the Court to Provide Documents and for
Clarification,” explaining that when he previously filed cases with the Court, he was
“always … provided a copy of the filings with the Court stamp at the bottom [but
that he has] only got the cover sheets to the documents in this case.”15
12 Docket 8.
13 Docket 7 at 1, 3.
14 Docket 9.
15 Docket 10 at 1.
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The Court takes judicial notice that Mr. Tholson frequently files lawsuits in
this Court claiming that his rights have been violated when he is incarcerated.16
To date, he has one “strike” under 28 U.S.C. § 1915(g).17
The Court also takes judicial notice that Mr. Tholson was incarcerated as a
pretrial detainee from December 3, 2019 – November 12, 2020, from February 2,
2021 – March 9, 2021, and from April 9, 2021 – July 26, 2021;18 and that he is
currently on supervised release.19
16 See Tholson v. Dillon, et al., 3:16-cv-00243-RRB (retaliation), 12/5/17 Dismissal (failure
to prosecute), Dockets 26, 27; Tholson v. Alaska DOC, et al., 3:16-cv-00086-SLG (failure
to protect, verbal harassment, sexual harassment, medical care, tort against DOC,
medical malpractice, retaliation, religious freedom, unreasonable search, sexual assault),
9/19/16 Voluntary Dismissal, Dockets 9, 10; Tholson v. Sullivan, et al., 3:16-cv-00010-
SLG (retaliation for exercise of 1st Amendment rights), 7/29/16 Voluntary Dismissal,
Dockets 6, 7, 8; Tholson v. Taylor, 3:15-cv-00049-SLG (protection from harm), 8/18/15
Dismissal (failure to prosecute), Docket 12; Tholson v. Taylor, et al., 3:15-cv-00033-SLG
(8th Amendment medical care), 8/17/15 Dismissal (failure to prosecute), Docket 21;
Tholson v. Long, et al., 3:14-cv-00257-SLG (failure to investigate state crime), 3/5/15
Dismissal under 28 U.S.C. § 1915(e)(B)(ii), for failure to state a claim, Dockets 5, 6;
Tholson v. Schmidt (terminated), Williams & Kriger, 3:14-cv-00216-SLG (religious
freedom), 6/8/17 Stipulated Dismissal, approved, 6/9/17, Dockets 85, 86; Tholson v.
Schmidt (terminated), Hubbard & Thomas, 3:13-cv-00043-SLG, 6/8/17 Stipulated
Dismissal, approved 6/9/17, Dockets 444, 445.
17 See Tholson v. Long, et al., 3:14-cv-00257-SLG, Docket 5 at 5 (“DISMISSED, under
28 U.S.C. § 1915(e)(B)(ii), for failure to state a claim”). 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.”
18 State v. Tholson, 3AN-19-11387CR; State v. Tholson, 3AN-20-08497CR.
19 See Tholson cases, supra; see also https://vinelink.vineapps.com/search/persons.
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SCREENING REQUIREMENT
Federal law requires a court to conduct an initial screening of a civil
complaint filed by a self-represented plaintiff who seeks to waive the $402.00 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. 20
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.”21 In conducting its
review, a court must liberally construe a self-represented plaintiff’s pleading and
give the plaintiff the benefit of the doubt.22 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
20 28 U.S.C. § 1915(e)(2)(B).
21 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. City of Los Angeles, 250 F.3d 668, 688
(9th Cir. 2001)).
22 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)).
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and an opportunity to amend or otherwise address the problems, unless to do so
would be futile.23
DISCUSSION
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.”24 This federal statute “is not itself a source of substantive rights,”
but provides “a method for vindicating rights [found] elsewhere.”25
Because state agencies are immune from suit in federal court, the Alaska
Department of Corrections must be dismissed without leave to amend. With
respect to the two individual defendants, the Complaint will be dismissed as to the
claims against them, but Mr. Tholson will be given an opportunity to file an
amended complaint that cures the deficiencies explained below, or to file a
voluntary dismissal without prejudice.
I. State Immunity
Mr. Tholson asserts that he is bringing a claim against the State of Alaska’s
Department of Corrections. However, “the Constitution does not provide for
23 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)).
24 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).
25 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)).
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federal jurisdiction over suits against nonconsenting States.”26 While § 1983
imposes liability on state actors who deprive a person of his or her civil rights, the
Supreme Court has held that a state agency is not a “person” under § 1983.27 The
Eleventh Amendment bars suit regardless of the relief sought.28 Therefore, the
Department of Corrections must be dismissed from this case. And this dismissal
will be with prejudice and without leave to amend, as it would be futile to give leave
to amend as to this state agency.
II. Retaliation
Prisoners are protected from retaliation for exercising their First Amendment
right to file prison grievances, complaints, or lawsuits.29 “Retaliation against
prisoners for their exercise of this right is itself a constitutional violation, and
26 Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 726 (2003) (citations
omitted); see also Sossamon v. Texas, 563 U.S. 277, 284 (2011) (“This Court has
consistently made clear that ‘federal jurisdiction over suits against unconsenting States
“was not contemplated by the Constitution when establishing the judicial power of the
United States.”’”) (citations omitted).
27 Will v. Mich. Dep't of State Police, 491 U.S. 58, 64–66 (1989) (“That Congress, in
passing § 1983, had no intention to disturb the States' Eleventh Amendment immunity
and so to alter the federal-state balance ....”); see also Northern Ins. Co. of New York v.
Chatham County, Ga., 547 U.S. 189, 193 (2006) (“States and arms of the State possess
immunity from suits authorized by federal law.”) (citations omitted).
28 Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Buckwalter v.
Nevada Bd. of Medical Examiners, 678 F.3d 737, 740 n. 1 (9th Cir. 2012) (“The Eleventh
Amendment proscribes § 1983 claims against the Board itself, whether for damages or
injunctive relief.”).
29 As a pretrial detainee, Mr. Tholson’s rights were protected through the Fourteenth
Amendment to the United States Constitution. See Frost v. Agnos, 152 F.3d 1124, 1128
(9th Cir. 1998) (citing Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979)).
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prohibited as a matter of ‘clearly established law.’”30 There are five elements that
a prisoner must meet when bringing a First Amendment claim for retaliation:
(1) An assertion that a state actor took some adverse action
against an inmate (2) because of (3) that prisoner’s protected conduct,
and that such action (4) chilled the inmate’s exercise of his First
Amendment rights, and (5) the action did not reasonably advance a
legitimate correctional goal.31
Further, “a plaintiff must show that his protected conduct was the
‘substantial’ or ‘motivating’ factor behind the defendant’s conduct.”32 But the Ninth
Circuit has also stated that “a plaintiff who fails to allege a chilling effect may still
state a claim if he alleges he suffered some other harm.”33 The harm must be
more than minimal.34
Mr. Tholson claims that the actions of the correctional officers have caused
him psychological injuries that inhibit “his ability to perform day-to-day activities.”35
Mr. Tholson’s vague claim of an injury must be more specific.
30 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (quoting Rhodes v. Robinson,
408 F.3d 559, 567–68 (9th Cir. 2005)).
31 Id.; accord Nyland v. Calaveres Cty Sheriff’s Jail, 688 F.App’x 483, 485 (9th Cir. 2017)
(applying the Rhodes elements to a pretrial detainee).
32 Brodheim, 584 F.3d at 1271 (citation and quotation marks omitted).
33 Id. (citing Rhodes, 408 F.3d at 568 n. 11).
34 Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012).
35 Docket 1 at 3.
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III. Personal and Official Capacity
Individual suits “seek to impose personal liability upon a government official
for actions [the official] takes under color of state law.”36 Liability in an individual
capacity suit for money damages can be demonstrated by showing that the official
caused the alleged injury. 37 Thus, in order to state a viable civil rights claim against
state officials in their individual capacities, allegations of personal participation are
required.38
In an official capacity suit, a plaintiff must demonstrate that a policy or
custom of the government entity of which the official is an agent was the moving
force behind the violation.39 If state officials are sued in their official capacity for
injunctive relief, rather than money damages, the Eleventh Amendment (which
does not allow damage suits against the states) does not bar suit. State officials
sued in their official capacity are persons for purposes of § 1983, “because official-
36 Kentucky v. Graham, 473 U.S. 159, 165 (1985).
37 See id. at 166.
38 See Richards v. Harper, 864 F.2d 85, 88 (9th Cir. 1988).
39 See Kentucky v. Graham, 473 U.S. at 166; see also Coalition to Defend Affirmative
Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012) (“The individual state official sued
‘must have some connection with the enforcement of the act.’ Ex parte Young, 209 U.S.
[123,] 157 [(1908)]. In addition, that connection ‘must be fairly direct; a generalized duty
to enforce state law or general supervisory power over the persons responsible for
enforcing the challenged provision will not subject an official to suit.’ L.A. Cnty. Bar Ass’n
v. Eu, 979 F.2d 697, 704 (1992).”).
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capacity actions for prospective relief are not treated as actions against the
State.”40
Mr. Tholson has brought claims against each individual defendant in both
their individual and official capacities.41 He must decide, for each individual he
names as a defendant, whether that defendant is being sued in his or her individual
capacity (requesting money damages for his or her personal participation), or
official capacity (requesting injunctive relief from someone in a position of authority
who can grant that relief);42 only rarely will both apply.
III. Stating a Claim for Relief
Rule 8 of the Federal Rules of Civil Procedure instructs that a complaint
must contain a “short and plain statement of the claim showing that the
[complainant] is entitled to relief.” A complaint should set out each claim for relief
separately. Each claim should identify (1) the specific harm that Mr. Tholson
alleges he has suffered, (2) when that harm occurred, (3) where that harm was
40 Kentucky v. Graham, 473 U.S. at 167 n. 14; see also Coalition to Defend Affirmative
Action, 674 F.3d at 1133-34 (The Eleventh Amendment “does not … bar actions for
prospective declaratory or injunctive relief against state officers in their official capacities
for their alleged violations of federal law.”) (citations omitted).
41 Docket 1 at 1.
42 See Wolfe v. Strankman, 392 F.3d 358, 365 (9th Cir. 2004) (“[A] state official in his or
her official capacity, when sued for injunctive relief, [is] a person under § 1983”) (citing
Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n. 10 (1989)) (further citation and
internal quotation marks omitted). Thus, a prison superintendent who is able to make
policy changes, for example, can be sued in his or her official capacity for injunctive relief.
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caused, (4) who caused that specific harm to him, and (5) what specific statute or
constitutional provision was violated as to that specific claim.43
To properly state a claim, Mr. Tholson needs to explain what happened
regarding each legal claim he makes. Mr. Tholson does not need to make legal
arguments. Mr. Tholson needs to set forth the factual details, stating who and
what he believes harmed him for each claim. There is space on the Court’s form
to state facts regarding each separate claim against each individual defendant.
Therefore, IT IS HEREBY ORDERED:
1. The Complaint, at Docket 1, is DISMISSED44 with leave to amend as to the
individual defendants only. The claims against the Department of
Corrections are dismissed with prejudice and without leave to amend.
2. On or before September 30, 2021, Mr. Tholson must file one of the
following:
43 See, e.g., In re New Century, 588 F. Supp. 2d 1206, 1218-19 (C.D. Calif. 2008) (The
Court states that it “will not hesitate to dismiss long, unwieldy pleadings…. Neither courts
nor defendants should have to wade through the morass of ‘puzzle pleadings’ as this
wastes judicial resources and undermines the requisite notice for a defendant to
respond.”) (citation omitted); Gurman v. Metro Hous. & Redevelopment Auth., 842
F.Supp.2d 1151, 1153 (D. Minn. 2011) (A pleading is often characterized as a “shotgun”
or “kitchen-sink” complaint when “a plaintiff brings every conceivable claim against every
conceivable defendant.”) (footnote omitted).
44 See 28 U.S.C. § 1915(e)(2)(B)(ii) (failure to state a claim).
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a. First Amended Complaint, in which Mr. Tholson states all cognizable
claims against appropriate individuals, correcting the deficiencies
explained in this order; OR
b. Notice of Voluntary Dismissal, which informs the Court that Mr.
Tholson no longer wishes to pursue this lawsuit and voluntarily
dismisses the entire action without prejudice.
3. If Mr. Tholson does not file either a First Amended Complaint, or a Notice of
Voluntary Dismissal, on one of the Court’s forms, by September 30, 2021,
this case may be DISMISSED WITH PREJUDICE under 28 U.S.C.
§ 1915(e)(2)(B), without further notice to Mr. Tholson. This dismissal may
count as a “strike” against Mr. Tholson under § 1915(g).45
4. A First Amended Complaint must be on this Court’s form, with one claim per
page against each person who violated Mr. Tholson’s federal rights. Any
amended complaint will entirely replace the initial Complaint.46 Mr. Tholson
must include all claims he seeks to bring in the First Amended Complaint.
Any claims not included in an amended complaint are waived.
45 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.”
46 See Fed. R. Civ. P. 15; Local Civil Rule 15.1.
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5. The time given to file a First Amended Complaint makes MOOT the Motion
at Docket 9. Mr. Tholson must file a First Amended Complaint or Voluntary
Dismissal on or before September 30, 2021, and he need not know the
names of any John Doe individuals at the time of his filing.
6. The Motion to Order the Defendants to Locate and Preserve Sound and
Video Recordings, at Docket 7, is DEFERRED until such time as Mr.
Tholson files a cognizable amended pleading.
7. The Application to Waive the Filing Fee, at Docket 3, is DEFERRED.
8. The Motion at Docket 10 is GRANTED in part. The Court’s current policy
regarding copies is set forth in paragraph 9 of this order. The Clerk of Court
will send Mr. Tholson a copy of his Complaint with this order. If Mr. Tholson
wants copies of additional documents he files in this case, he should explain
why each document is necessary, as well as his financial need. Providing
copies of Dockets 2, 3, 4, 5, 6, 7, 8, 9, and 10 to Mr. Tholson does not appear
necessary at this stage of the case.
9. Each litigant is responsible for keeping a copy of each document filed with
the Court. When a litigant sends a document to the Court, the litigant will
receive a Notice of Electronic Filing (“NEF”) from the Court that will inform
the litigant of when that document was filed on the docket and the docket
number of the document. Copies of documents that have been filed with the
Court may be obtained from the Clerk’s Office for $0.50 per page. In the
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event of special circumstances or serious financial need, a party may file a
motion asking for the cost of copies to be waived or reduced.
10. At all times, Mr. Tholson must keep the Court informed of any change of
address. Such notice shall be titled “NOTICE OF CHANGE OF ADDRESS.”
This notice must not include any requests for any other relief, and it must be
served on any Defendant’s attorney who makes an appearance in this case.
Failure to file a notice of change of address may result in the dismissal of
this case under Rule 41(b) of the Federal Rules of Civil Procedure.
11. The Clerk of Court is directed to send Mr. Tholson the following forms with
this Order: (1) form PS01, with “FIRST AMENDED” written above the title
“Prisoner’s Complaint Under the Civil Rights Act”; (2) a copy of the
Complaint filed at Docket 1; (3) form PS09, Notice of Voluntary Dismissal;
(4) form PS23, Notice of Change of Address; and (5) the District Court’s
handbook, “REPRESENTING YOURSELF IN ALASKA’S FEDERAL COURT.”
DATED this 31st day of August, 2021 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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