Miller v. Sandahl et al

Filing 31

ORDER denying 24 Motion ; denying 25 Motion ; granting 7 Motion to Dismiss. Signed by Judge Timothy M. Burgess on 7/15/14. (RMC, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

RICHARD I. MILLER,
Plaintiff,
vs.
CHIEF GUSTAF SANDAHL, et al.,
Defendants.

Case No. 3:14-cv-00068-TMB

ORDER GRANTING MOTION TO DISMISS
On February 4, 2014, Richard I. Miller, a self-represented prisoner, filed a
Civil Rights Complaint in the Superior Court for the State of Alaska. 1 The
Defendants removed the case to this Court on April 8, 2014. 2 The Defendants
filed a Motion to Dismiss, Miller filed a Response, and the Defendants filed a
Reply. 3 In addition, Miller filed a Motion to Overrule, a Motion to Postpone
Proceedings, and Notices of Voluntary Dismissal without prejudice. 4
The Defendants moved “to dismiss Millers’ new complaint with prejudice
for the following two reasons: (1) the claims are barred by the applicable two

1

Docket 1-1; Alaska Superior Case No. 3KN-14-00098-CI.

2

Docket 1. The Defendants state that they were served on or about March 19, 2014.
Id. at 2.

3

Docket 7, 22, 26.

4

Dockets 22-3, 24, 25.

year statutes of limitation; and (2) the claims are barred by the doctrine of res
judicata.” 5
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), "a well-pleaded complaint
may proceed even if it strikes a savvy judge that actual proof of those facts [pled]
is improbable, and 'that a recovery is very remote and unlikely.'" 6 But the
complaint must allege at least "enough facts to state a claim to relief that is
plausible on its face.” 7 The Supreme Court explains that "the pleading standard
Rule 8 announces does not require 'detailed factual allegations,' but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation." 8
The Court of Appeals for the Ninth Circuit states that “[d]ismissal can be based
on the lack of a cognizable legal theory or the absence of sufficient facts alleged
under a cognizable legal theory.” 9 However, when a court is asked to “consider[]

5

Docket 7 at 2.

6

Bell Atlantic Corp. v. Twombly, 550 U.S. 555 (2007) (citations omitted).

7

Twombly, 550 U.S. at 547 ("Because the plaintiffs here have not nudged their claims
across the line from conceivable to plausible, their complaint must be dismissed.");
Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009) ("A pleading that offers 'labels and
conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'")
(quoting Twombly at 555); but see Hebbe v. Plier, 627 F.3d 338, 342 (9th Cir. 2010)
("[O]ur 'obligation' remains [after Iqbal], 'where the petitioner is pro se, particularly in civil
rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of
any doubt.'") (citation omitted).
8

Iqbal, 566 U.S. at 678, quoting Twombly at 555.

9

Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990) (citations omitted);
Shroyer v. New Cingular Wireless Services, Inc., 622 F.3d 1035, 1041 (9th Cir. 2010)
("We have held that dismissal for failure to state a claim is 'proper only where there is
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Order Granting Motion to Dismiss
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materials outside of the pleadings ...the 12(b)(6) motion should be converted into
one for summary judgment, and the parties should be given an opportunity to
present related materials.” 10 No “outside materials” are relevant in this case.
FACTS
Miller alleges that the Defendants recorded and copied his conversations
with counsel, while he was incarcerated, in violation of his federal and state
rights. 11 Miller states that he discovered the recordings, which took place from
April 4-9, 2008, on February 2, 2012. 12 The Court takes judicial notice 13 that, on
July 16, 2012, Miller was convicted of 116 counts of possession of child
pornography. 14 Miller filed an appeal on or about July 20, 2012, and the appeal
appears to be pending. 15

no cognizable legal theory or an absence of sufficient facts alleged to support a
cognizable legal theory.'") (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001)).
10

Shroyer v. New Cingular Wireless Services, Inc., 622 F.3d at 1041 n. 6 (citing Lee v.
City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001)).

11

Docket 1-1.

12

Id. at pp. 2-4.

13

Judicial notice is “[a] 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 (9th ed. 2009); 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).
14

State of Alaska v. Richard I. Miller, 3AN-08-00568CR, 3AN-08-00740CR.

15

Richard I. Miller v. State of Alaska, A-11320; http://www.appellate.courts.state.ak.us.
In addition, Miller’s post-conviction petition in the state court was stayed, by motion of
the petitioner, on August 19, 2013. Miller v. Alaska, 3KN-12-01051CI.

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DISCUSSION
Res Judicata Precludes Re-Litigation of the Issues in this Case
“Under res judicata, a final judgment on the merits of an action precludes
the parties or their privies from relitigating issues that were or could have been
raised in that action. . . . Under collateral estoppel, once a court has decided an
issue of fact or law necessary to its judgment, that decision may preclude
relitigation of the issue in a suit on a different cause of action involving a party to
the first case.” 16 The Supreme Court explains that “res judicata and collateral
estoppels relieve parties of the cost and vexation of multiple law suits, conserve
judicial resources, and, by preventing inconsistent decisions, encourage reliance
on adjudication.” 17 The Ninth Circuit further explains that “an opportunity to
reach the merits is sufficient to invoke a preclusive effect.” 18
In the previous action which was also removed to this Court, Vladamir
Martushev, et al. v. Gustaf Sandahl, et al., the three current Defendants were
named as defendants, and Miller was one of the plaintiffs. 19 In both cases, Miller
claims that “while incarcerated, Miller made 16 telephone calls to his Attorney
which were recorded and a copy of which were obtained by Officer Mitch

16

Allen v. McCurry, 449 U.S. 90, 94 (1980) (citations omitted).

17

Id.

18

Clark v. Yosemite Community College Dist., 785 F.2d 781, 786 (9th Cir. 1986).

19

Case No. 3:10-cv-00035-JWS.

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Langseth.” 20 In the previous action, the Court granted summary judgment
against Miller and his co-plaintiffs, and in favor of the current Defendants. 21
Judgment was entered with prejudice, and the Defendants were awarded costs
of $461.61, and attorneys’ fees of $21,236.70. 22
Miller argues that he has “not received ANY information from the District
Court, or from Defense Counsel Ryman since before [his] trial in January 2012.
The first information [he] received from the Defense and the Court was in the
Defense Counsel's ‘Notice of Related Case[,]’ [and that] [t]he only information
[he] received was the notation on the bottom of the Motions the boys filed stating
that the case had been closed.” 23 So, Miller claims, he has “been denied justice
as [he] was not properly notified and was not provided with an opportunity to
respond.” 24
In their Reply, the Defendants argue:
In August 2012, after protracted litigation, Judge Sedwick granted
the Defendants’ Motion for Summary Judgment. Judge Sedwick
explained that the defendants’ motion was “well reasoned and amply
supported by the exhibits provided. Because the motion . . . clearly
20

Id., Docket 61 at 7; Case No. 3:14-cv-00068-TMB, Docket 1-1 at pp. 2-4.

21

Id., Docket 77.

22

Id., Dockets 78-80, 88, 93. “IT IS ORDERED AND ADJUDGED: THAT all claims
against defendants Chief Gustov Sandahl, Officer Mitchell Langseth, Officer Ben
Langham and Sargent David Ross are dismissed with prejudice.” Docket 78 at 1.

23

Docket 22 at 2-3.

24

Id. at 3.

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appears to have merit and is not opposed, [it] is granted.” Since the
requisites of the res judicata doctrine are met, Miller’s complaint
should be dismissed on this ground. Miller had over three years to
address his current claims in the previous long-drawn-out litigation.
He cannot circumvent the important purposes of the res judicata
doctrine merely because he does not like the outcome of that
litigation. 25
The Court agrees. The decision in the previous case was issued in
2012. 26 A different judge in this Court cannot “overrule” that decision, as Miller
requests. 27 And there is no reason to “postpone further proceedings on this case
until Plaintiff's appeal is completed.” 28
Miller had an opportunity to address the issues he raises here. 29 If he
does not like the Court’s previous decision, he must seek relief in that case. 30

25

Docket 26 at 7-8 (citations omitted).

26

Case No. 3:10-cv-00035-JWS, Dockets 77, 78.

27

Docket 24.

28

Docket 25 at 1.

29

See Allen v. McCurry, 449 U.S. at 94 (“Under res judicata, a final judgment on the
merits of an action precludes the parties or their privies from relitigating issues that were
or could have been raised in that action.”).
30

See Fed.R.Civ.P. 60 (“(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
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But the current action must be dismissed. 31 Also, the Court provided Miller with
an opportunity to voluntarily dismiss this action, without prejudice. 32 Because he
chose to litigate instead, and the Defendants have also spent time litigating this
case, the Court will not allow Miller to voluntarily dismiss without prejudice now. 33

IT IS THEREFORE ORDERED:
1.

The Motion to Dismiss with Prejudice, at Docket 7, is GRANTED. 34

(5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
(c) Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60(b) must be made within a reasonable time--and for
reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or
the date of the proceeding.
(2) Effect on Finality. The motion does not affect the judgment's finality or suspend its
operation.”).
31

Although the two-year statute of limitations appears to have run, the Court need not
reach this issue, to which equitable tolling applies. See Douglas v. Noelle, 567 F.3d
1103, 1109 (9th Cir. 2009) (citation omitted); see also Fred Meyer of Alaska, Inc. v.
Bailey, 100 P.3d 881, 886 (Alaska 2004).
32

Docket 12 at 3 (“Miller may file the enclosed Notice of Voluntary Dismissal, without
prejudice, on or before May 23, 2014. Otherwise, Miller must file an opposition to the
Motion to Dismiss on or before May 23, 2014.”); see also id. at 2, n. 7, warning Miller
about the bar of res judicata.
33

See Dockets 22-3, 24-1, 25-1.

34

See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (dismissal, with
prejudice, upheld after "weigh[ing] the following 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 defendants/respondents; (4) the availability of less drastic alternatives;
and (5) the public policy favoring disposition of cases on their merits.") (citation omitted).
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2.

The Motions at Dockets 24 and 25 are DENIED.

3.

Any other outstanding motions are DENIED.

4.

The Clerk of Court will enter a Judgment in this action.
DATED at Anchorage, Alaska, this 15th day of July, 2014.
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE

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