govinfo:USCOURTS-akd-3_25-cv-00094-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ALASKA 
 
RILEY ANDERSON, 
 
Plaintiff, 
v. 
 
OSBURT JOHN LORENZO, 
individually and in his official capacity, 
acting under the color of state law, et 
al., 
 
Defendants. 
 
 
 
 
 
 
 

 
 
 
 
ORDER ON MOTIONS TO DISMISS 
Before the Court at Docket 19 is Defendant Brian Penner’s Motion to 
Dismiss. Plaintiff Riley Anderson responded in opposition at Docket 24. 1 
Defendant Penner did not file a reply. Also before the Court at Docket 20 is 
Defendant Osburt John Lorenzo’s Motion to Dismiss. 2 Plaintiff responded in 
 
1 An identical response in opposition is also at Docket 27. 
2 The Court refers collectively to Mr. Lorenzo and Mr. Penner as Defendants. Because both 
Defendants’ Motion to Dismiss are functionally identical, the Court cites to only the Motion at 
Docket 19 throughout this order. 
Plaintiff also alleges claims against Tricia Tank, Defendant Lorenzo’s supervisor. Docket 17 at ¶ 
9. Defendant Tank has not appeared, and the Clerk of Court has entered default against her. 
Docket 44. Although not named as a Defendant in the case caption, Plaintiff may also be 
seeking to bring claims against the State of Alaska. See Docket 17 at ¶¶ 114-30. The Court 
does not consider any claims against the State of Alaska, as presently before the Court are only 
the Motions to Dismiss by Defendants, except to note that such claims would be barred by the 
Eleventh Amendment. Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997) 
(“States or governmental entities that are considered ‘arms of the State’ for Eleventh 
Amendment purposes are not ‘persons’ under § 1983.” (quoting Will v. Mich. Dep’t of State 
Police, 491 U.S. 58, 70 (1989))). 

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opposition at Docket 25. 3 Defendant Lorenzo did not file a reply. Oral argument 
was not requested and was not necessary to the Court’s determinations. 
BACKGROUND 
The claims in this case arise out of events that occurred in January 2013. 
The following facts are as alleged in the Amended Verified Complaint and 
accepted as true for the purposes of this order on Defendants’ motions to dismiss: 
Plaintiff was born in May 2005 in Anchorage, Alaska. 4 In January 2013, 
Plaintiff was living with his mother, Desree Kendall, and his stepfather, Jesse 
Kendall, in Anchorage. 5 At that time, Defendant Lorenzo was a social worker 
employed by the Alaska Office of Children’s Services (“OCS”).6 On January 10, 
2013, Defendant Lorenzo entered an “Activity Note” recounting that he had spoken 
with Plaintiff’s teacher who had noticed red marks on Plaintiff’s face. 7 The note 
indicates that when Plaintiff’s teacher asked Plaintiff about the red marks, Plaintiff 
told her that “something bad happened last night” and that his stepfather had 
slapped him once on the cheek and once on the chest.
8 The note further recounts 
that Defendant Lorenzo visited Plaintiff at his school and Plaintiff reported that his 
 
3 An identical response in opposition is also at Docket 28. 
4 Docket 17 at ¶ 15. 
5 Docket 17 at ¶ 16. 
6 Docket 17 at ¶ 8. 
7 Docket 17 at ¶ 17; see Docket 1-1 at 1. 
8 Docket 17 at ¶ 17. 

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stepfather had hit him on the cheek and on the chest.9 The note states that Plaintiff 
indicated that it was the first time that his stepfather had “physically disciplined him 
in a harsh manner” and that Plaintiff’s mother was home during the incident but 
was in another room.
10 In the note, Defendant Lorenzo concluded that there was 
“[n]o present or impending danger at this time, will continue to assess for present 
or impending danger.”
11 
After this investigation into the incident —and despite noting that physical 
discipline that leaves red marks “is excessive and poses the threat of significant 
further injuries to the child”— Defendant Lorenzo concluded that “ [t]he case was 
substantiated, but no further intervention needed, due to a protective mother in the 
home.”
12 Defendant Lorenzo issued a Safety Plan on January 16, 2013, which 
was signed by Plaintiff’s mother, that provided that Plaintiff would be cared for by 
his mother, would not be left unattended with his stepfather, and only Plaintiff’s 
mother would discipline Plaintiff. 13 Defendant Penner reviewed Defendant 
Lorenzo’s investigation summary and “assented to Lorenzo’s determination that 
‘no further intervention needed, due to a protective mother in the home.’”
14 
 
9 Docket 17 at ¶ 17. 
10 Docket 17 at ¶ 18; see Docket 1-2 at 1. 
11 Docket 17 at ¶ 18; see Docket 1-2 at 1. 
12 Docket 17 at ¶ 19; see Docket 1-3 at 1. 
13 Docket 1-4. 
14 Docket 17 at ¶ 10. 

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On or about February 5, 2013, Plaintiff, his mother, and his stepfather moved 
to Buffalo, New York.15 While in New York, in May 2019, Plaintiff’s stepfather held 
Plaintiff against the wall by his neck, strangling him; Plaintiff did not tell anyone 
about the incident and he “didn’t really tell [Child Protective Services] about 
anything that happened at the house.”16 Further, while Plaintiff and his family were 
living in Texas, Plaintiff’s stepfather hit Plaintiff with a belt, threw him onto a 
concrete floor, and left Plaintiff and his sister to walk home after they got out of the 
car.17 
A licensed psychologist in Arizona performed an evaluation of Plaintiff and 
noted in his report that when Plaintiff was younger, he “was terrified of his 
stepfather” and was “afraid to go home.”18 
Against Defendant Lorenzo, Plaintiff alleges a Due Process claim pursuant 
to the Fourteenth Amendment, contending that Defendant Lorenzo had a duty to 
“protect [Plaintiff] from further mental injury and/or emotional harm by Jesse after 
Jesse physically abused [Plaintiff].”19 Plaintiff alleges that the following “affirmative 
actions” by Defendant Lorenzo violated Plaintiff’s Due Process rights: failing to 
refer Jesse to the Anchorage Police Department or the Anchorage District 
 
15 Docket 17 at ¶¶ 21, 33(h). 
16 Docket 17 at ¶ 23. 
17 Docket 17 at ¶ 24. 
18 Docket 17 at ¶ 25. 
19 Docket 17 at ¶¶ 27-36. 

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Attorney’s Office; allowing Jesse to continue living with Plaintiff; relying on 
Plaintiff’s mother to protect Plaintiff from physical and emotional harm; failing to 
notify Child Protective Services in Buffalo about “Jesse’s child abuse of Plaintiff”; 
failing to investigate whether Jesse had a history of domestic violence before 
allowing Jesse to have continued contact with Plaintiff; failing to take custody of 
Plaintiff; finding that Plaintiff’s parents were in compliance with a safety plan 
without contacting Plaintiff and his parents after they moved to Buffalo ; allowing 
Plaintiff and his parents to move to Buffalo without first adequately protecting 
Plaintiff from further abuse; failing to investigate Jesse further after speaking with 
Plaintiff in January 2013; and failing to take appropriate steps to protect Plaintiff.20 
Plaintiff alleges that “[a]s a result of defendant Lorenzo’s affirmative actions or 
combination of affirmative actions, defendant Lorenzo placed Plaintiff in a position 
of an actual, particularized danger.”21 Plaintiff also brings state law claims against 
Defendant Lorenzo for Intentional Infliction of Emotional Distress (“IIED”) and 
Negligent Infliction of Emotional Distress (“NIED”).22 
Against Defendant Penner, Plaintiff also alleges a federal Due Process 
claim.23 The affirmative actions allegedly taken by Defendant Penner are the same 
 
20 Docket 17 at ¶ 33. 
21 Docket 17 at ¶ 34. Plaintiff’s federal Due Process claim against Defendant Lorenzo appears 
to be substantially repeated at Docket 17 at ¶¶ 85-94. 
22 Docket 17 at ¶¶ 37-55. Plaintiff’s IIED and NIED claims against Defendant Lorenzo appear to 
be substantially repeated at Docket 17 at ¶¶ 95-113. 
23 Docket 17 at ¶¶ 56-65. Plaintiff’s federal Due Process claim against Defendant Penner 

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as alleged against Defendant Lorenzo above. 24 Plaintiff alleges that Defendant 
Penner’s “affirmative actions or combination of affirmative actions . . . placed 
Plaintiff in a position of actual, particularized danger. ”25 Plaintiff also brings IIED 
and NIED claims against Defendant Penner. 26 As relief, Plaintiff seeks 
compensatory and punitive damages, and attorneys’ fees and costs.27 
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 
1331 because this is a civil action with certain claims arising under federal law: 42 
U.S.C. § 1983 and the Fourteenth Amendment of the Constitution. The Court may 
exercise supplemental jurisdiction over Plaintiffs’ state law claims pursuant to 28 
U.S.C. § 1367. However, the Court does not have diversity jurisdiction over 
Plaintiff’s state law claims, as there is not complete diversity of citizenship as 
between Plaintiff and Defendants.
28 
LEGAL STANDARD 
A party may seek dismissal under Federal Rule of Civil Procedure 12(b)(6) 
for a complaint’s “failure to state a claim for which relief can be granted.” “To 
 
appears to be substantially repeated at Docket 17 at ¶¶ 85-94. 
24 Compare Docket 17 at ¶ 62 with Docket 17 at ¶ 33. 
25 Docket 17 at ¶ 63. 
26 Docket 17 at ¶¶ 66-84. Plaintiff’s IIED and NIED claims against Defendant Penner appear to 
be substantially repeated at Docket 17 at ¶¶ 95-113. 
27 Docket 17 at 54-57. 
28 The Declaration of Service at Docket 31 shows that Defendant Tank was served in Arizona; 
Plaintiff is also a citizen of Arizona. Docket 17 at ¶ 7. 

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survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain 
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 
on its face.’”
29 Nonetheless, “the trial court does not have to accept as true 
conclusory allegations in a complaint or legal claims asserted in the form of factual 
allegations.”30 
When a motion to dismiss for failure to state a claim is granted, a court 
“should freely give leave when justice so requires.” 31 However, “leave may be 
denied if amendment of the complaint would be futile.”32 Futility exists when “the 
allegation of other facts consistent with the challenged pleading could not possibly 
cure the deficiency.”33 
DISCUSSION 
 Defendants contend that Plaintiff’s Due Process and state tort claims against 
them must be dismissed.34 First, as to the claims against Defendants Lorenzo and 
Penner in their official capacities , Defendants contend that those claims must be 
 
29 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 
570 (2007)). 
30 In re Tracht Gut, LLC, 836 F.3d 1146, 1150 (9th Cir. 2016). 
31 Fed. R. Civ. P. 15(a). 
32 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)). 
33 Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986) (citation 
omitted). 
34 Docket 19 at 5. 

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dismissed because Plaintiff is not seeking injunctive relief. 35 Plaintiff correctly 
“concedes that his claim against [Defendants in their official capacities] should be 
dismissed.”36 Therefore, Plaintiff’s claims against Defendants Lorenzo and Penner 
in their official capacities are DISMISSED with prejudice. 
 Next, Defendants maintain that Plaintiff’s Due Process claim against them 
seeking damages must be dismissed because ”Plaintiff has failed to allege” that 
either Defendant “took any affirmative action, which is required for relief under the 
Fourteenth Amendment.”
37 Defendants rely on DeShaney v. Winnebago County 
Dept. of Social Services, in which the Supreme Court considered whether a 
government social worker “had deprived [a child] of his liberty without due process 
of law, in violation of his rights under the Fourteenth Amendment, by failing to 
intervene to protect him against a risk of violence at his father's hands of which 
they knew or should have known.”38 The Supreme Court held that “nothing in the 
language of the Due Process Clause itself requires the State to protect the life, 
liberty, and property of its citizens against invasion by private actors.”
39 The 
Supreme Court reasoned that “[i]f the Due Process Clause does not require the 
State to provide its citizens with particular protective services, it follows that the 
 
35 Docket 19 at 5 (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989)). 
36 Docket 24 at 1; Docket 25 at 1. 
37 Docket 19 at 5. 
38 Docket 19 at 6 (quoting 489 U.S. 189, 193 (1989)). 
39 DeShaney, 489 U.S. at 195. 

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State cannot be held liable under the Clause for injuries that could have been 
averted had it chosen to provide them. As a general matter, then, [the Supreme 
Court] conclude[d] that a State's failure to protect an individual against private 
violence simply does not constitute a violation of the Due Process Clause.”40 
The Supreme Court also rejected the child’s argument that the State owed 
the child a duty that arose out of the “special relationship” between the State and 
the child “because the State knew that [the child] faced a special danger of abuse 
at his father's hands, and specifically proclaimed, by word and by deed, its intention 
to protect him against that danger. ”
41 Rather, the Supreme Court held that only 
“when the State takes a person into its custody and holds him there against his 
will, the Constitution imposes upon it a corresponding duty to assume some 
responsibility for his safety and general well-being .”
42 But that principle does not 
apply when “the State may have been aware of the dangers that [the child] faced 
in the free world, [but the State] played no part in their creation, nor did it do 
anything to render him any more vulnerable to them.”43 
 The Court agrees with Defendants that DeShaney is on point and compels 
a finding that there was no “special relationship” between Plaintiff and Defendants 
 
40 Id. at 196-97. 
41 Id. at 197 (citation omitted). 
42 Id. at 199-200 (citing Youngberg v. Romeo, 457 U.S. 307, 317 (1982)). 
43 Id. at 201. 

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during the events alleged in the Amended Complaint . Plaintiff’s Amended 
Complaint does not allege that in January 2013 Plaintiff was in OCS custody; to 
the contrary, it alleges Defendants “chose not to take custody of Plaintiff.” 44 
Therefore, Plaintiff’s Due Process claims—that Defendants failed to protect him 
from his stepfather even after becoming aware of the danger of violence —is 
identical to the claim that the Supreme Court rejected in DeShaney.45 
Plaintiff maintains that DeShaney does not require dismissal of his Due 
Process claims because the Ninth Circuit has “made an exception to DeShaney 
when a state is responsible for worsening the danger to an individual.” 46 Plaintiff 
cites Hernandez v. City of San Jose , in which the Ninth Circuit held that “[a]n 
exception to the rule applies when government employees ‘affirmatively place[ ] 
the plaintiff in a position of danger, that is, where [their] action[s] create[ ] or 
expose[ ] an individual to a danger which he or she would not have otherwise 
faced.’”47 The Hernandez Court explained that liability may attach when a public 
employee, by his “affirmative act,” “create[s] an actual, particularized danger” “that 
was more dangerous than the one in which they found him. ”48 In Hernandez, the 
 
44 Docket 17 at ¶ 33(f). 
45 See Docket 17 at ¶ 33. 
46 Docket 27 at 5 (first citing Hernandez v. City of San Jose, 897 F.3d 1125, 1133 (9th Cir. 2018) 
(alterations in original); and then citing Murguia v. Langdon, 61 F.4th 1096 (9th Cir. 2023)). 
47 Hernandez, 897 F.3d at 1133 (alterations in original) (quoting Kennedy v. City of Ridgefield, 
439 F.3d 1055, 1061 (9th Cir. 2006)). 
48 Id. (first citing Kennedy, 439 F.3d at 1063; and then quoting Munger v. City of Glasgow Police 

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Ninth Circuit held that the plaintiffs had sufficiently alleged such affirmative acts by 
police officers who had actively prevented pro-Trump rally attendees from leaving 
the rally through safe exits and instead required them “to proceed . . . into the 
crowd of violent anti-Trump protestors.”
49 
 Plaintiff also cites Murguia v. Langdon, in which the Ninth Circuit held that 
“the only two exceptions to the general rule against failure-to-act liability for § 1983 
claims presently recognized by this court are the special- relationship exception 
and the state- created danger exception. ”50 In Murguia, the plaintiff brought a § 
1983 suit against various city and county officers and the city and county itself after 
the plaintiff’s two infant sons were killed by their mother during a mental health 
crisis.51 The Ninth Circuit held that “[u]nlike the special-relationship exception, the 
state-created danger exception does not require that the state actor have custody 
of the plaintiffs.”
52 To determine whether the plaintiff had adequately pled a state-
created danger claim, the Ninth Circuit examined “‘whether the officers left the 
[twins] in a situation that was more dangerous than the one in which they found 
[them].’”
53 The Murguia Court held that the plaintiff had adequately stated a claim 
 
Dep't, 227 F.3d 1082, 1086 (9th Cir. 2000)). 
49 Id. at 1129, 1133. 
50 Murguia, 61 F.4th at 1108 (citations omitted). 
51 Id. at 1100-05. 
52 Id. at 1112. 
53 Id. (alterations in original) (quoting Munger, 227 F.3d at 1086). 

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against two defendants. 54 One defendant —a police sergeant —was alleged to 
have secured a motel room for the twins and their mother, transported them to the 
motel, and left them there, which “rendered the twins more vulnerable to physical 
injury by [their mother] as a result of their isolation with her.” 55 The other 
defendant— a social worker— was alleged to have provided false information to the 
police sergeant: For example, he reported falsely that the mother did not have a 
history of child abuse and that the mother was homeless.56 The Ninth Circuit held 
that these allegations “rendered the twins more vulnerable to physical injury by 
[their mother] by eliminating the most obvious solution to ensuring the twins' safety: 
returning them to [their father’s] custody.”
57 The Ninth Circuit also held that the 
plaintiff had alleged sufficient facts to show that those two defendants knew about 
the risk faced by the twins from their mother and that those two defendants were 
deliberately indifferent to that risk.
58 
Here, Plaintiff has not alleged affirmative acts by Defendants that plausibly 
state a claim for relief under the Due Process Clause. Plaintiff alleges 18 
“affirmative actions” by Defendants.
59 These include ten alleged “affirmative 
 
54 Id. at 1113-17. 
55 Id. at 1113 (citing Penilla v. City of Huntington Park, 115 F.3d 707, 710 (9th Cir. 1997)). 
56 Id. at 1105, 1115-16. 
57 Id. at 1115. 
58 Id. at 1114-15. 
59 Docket 17 at ¶¶ 33, 62. 

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actions” that regard actions Defendants “chose not to” take.60 But these alleged 
acts describe omissions, not affirmative actions. Plaintiff also alleges that 
Defendants “allowed [Plaintiff’s stepfather] to continue residing with Plaintiff and 
[Plaintiff’s mother]” and that Defendants “chose to allow [Plaintiff and his stepfather 
and mother] to move to New York without first adequately protecting Plaintiff.”
61 
However, Plaintiff was already living with his stepfather and mother such that this 
allegation also asserts a failure to act, not an affirmative act. Further, Plaintiff was 
not in OCS custody such that Defendants had no authority or legal responsibility 
to prevent Plaintiff’s parents from moving with him to another state.
62 Plaintiff 
further alleges that Defendants “relied on Plaintiff’s mother . . . to protect him from 
further physical and emotional harm.”
63 Again, Plaintiff essentially alleges that 
Defendants did nothing to further protect him from his stepfather. This is not an 
affirmative act. Plaintiff also alleges that Defendant Lorenzo “decided to stop his 
effort to provide adequate notice to the Buf falo, New York, Child Protective 
Services’ personnel concerning” Plaintiff’s stepfather.
64 Again, this is an allegation 
about an omission , not an affirmative act. Plaintiff also alleges that Defendants 
“found that Plaintiff’s ‘parents were in full compliance of [sic] the safety plan that 
 
60 Docket 17 at ¶ 33(a), (e), (f), (l)-(r). 
61 Docket 17 at ¶ 33(b), (k). 
62 See Docket 17 at ¶ 33(f). 
63 Docket 17 at ¶ 33(c). 
64 Docket 17 at ¶ 33(d). 

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was put in place’ when they had no further contact with the parents, Plaintiff, or” 
government employees in Buffalo. 65 But Plaintiff fails to allege any facts 
suggesting that after Defendants put the safety plan in place and before Plaintiff 
and his family moved to Buffalo, any violations of the safety plan occurred. And 
any alleged failure to follow up with the family after they moved to Buffalo is an 
omission, not an affirmative act. The remaining affirmative acts alleged by Plaintiff 
regard Defendants’ investigative findings and process: Defendants “found ‘no 
maltreatment (of Plaintiff) identified”; “closed the Initial Assessment without 
adequately determining that [Plaintiff’s parents] had complied with the Case Plan”; 
and “erroneously determined the FRAN neglect score,” abuse score, and /or risk 
level.
66 These allegations describe findings made by Defendants; the Court finds 
that they, as a matter of law, alone or in combination, do not constitute affirmative 
actions taken by Defendants that placed Plaintiff in greater danger so as to state 
a plausible claim of Plaintiff’s Due Process rights. 
Moreover, even if some of the actions allegedly taken by Defendants 
constituted affirmative acts, nothing in the Amended Verified Complaint suggests 
that any of these actions enhanced the danger that Plaintiff already faced by living 
with his stepfather. Rather, at its core, Plaintiff asserts that Defendants left him in 
 
65 Docket 17 at ¶ 33(h) (alteration in original). 
66 Docket 17 at ¶ 33(g), (i), (j) (alteration in original). 

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the house with his stepfather.67 Compared to the affirmative actions taken by the 
defendants in Murguia—affirmative actions that “rendered the twins more 
vulnerable to physical injury”— Defendants’ conduct here, or, more accurately, 
their alleged inactions, did not plausibly enhance the danger faced by Plaintiff. 68 
As such, Plaintiff has failed to state a claim for a violation of his Due Process rights 
pursuant to the state-created danger exception. 
Further, a Due Process claim requires a plaintiff to allege facts that support 
a plausible claim that a defendant’s conduct was egregious; as official conduct only 
violates substantive due process when the official acts with deliberate indifference 
such that the “official conduct ‘shocks the conscience.’”69 Here, Plaintiff alleges 
that he told Defendant Lorenzo that the January 2013 incident was the first time 
that his stepfather had hit him, and Defendant Lorenzo established a safety plan 
with Plaintiff’s parents based on that one report .
70 Based on these allegations , 
Defendant Lorenzo’s failure to investigate further, to remove Plaintiff from his 
home, or to take any of the other actions alleged in the Amended Complaint do not 
constitute deliberate indifference. And Plaintiff and his family moved to New York 
one month after the January 2013 incident , at which time New York government 
 
67 Docket 28 at 2. 
68 Murguia, 61 F.4th at 1115. 
69 Gantt v. City of Los Angeles, 717 F.3d 702, 707 (9th Cir. 2013) (quoting Wilkinson v. Torres, 
610 F.3d 546, 554 (9th Cir. 2010)). 
70 Docket 17 at ¶ 17; see Docket 1-1 at 1. 

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employees would have been responsible for investigating Plaintiff’s well-being. 
The Court therefore finds that the Amended Verified Complaint does not satisfy 
Plaintiff’s burden to allege plausible facts that if proven would show that 
Defendants Lorenzo or Penner violated his Fourteenth Amendment Due Process 
rights. 
 As for Plaintiff’s state law claims for IIED and NIED against Defendants, 
Defendants maintain that those claims must also be dismissed because 
Defendants did not owe Plaintiff a duty and, in any event, Defendants are entitled 
to qualified immunity.
71 In light of the Court’s dismissal of Plaintiff’s federal claims, 
the Court declines to exercise supplemental jurisdiction over Plaintiffs’ state law 
claims. Pursuant to 28 U.S.C. § 1367, a “federal court has supplemental 
jurisdiction over state-law claims sharing a ‘common nucleus of operative fact’ with 
the federal-law ones.”
72 However, “subsection (c) [of this statute] explains that the 
supplemental jurisdiction just conferred is in some measure discretionary. That 
subsection provides that a district court ‘may decline to exercise supplemental 
jurisdiction’ in three specific situations: (1) if the supplemental claim ‘raises a novel 
or complex issue of State law’; (2) if the supplemental claim ‘substantially 
predominates’ over the claims within the court’s original jurisdiction; and (3) if the 
 
71 Docket 19 at 7-8. 
72 Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22, 31 (2025) (quoting United Mine 
Workers v. Gibbs, 383 U.S. 715, 725 (1966)). 

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district court ‘has dismissed all claims over which it has original jurisdiction.’”73 “In 
all those contexts, federal law is not where the real action is. So although 
supplemental jurisdiction persists, the district court need not exercise it: Instead, 
the court may (and indeed, ordinarily should) kick the case to state court.”
74 Here, 
because the Court grants Defendant s’ motions to dismiss as to Plaintiff’s federal 
Due Process claims, the Court declines to exercise supplemental jurisdiction over 
Plaintiff’s state IIED and NIED claims against these Defendants at this time. 
LEAVE TO AMEND 
Rule 15 requires that leave to amend “be freely given when justice so 
requires.”75 “This policy is to be applied with extreme liberality.”76 The Supreme 
Court has identified five factors a court should consider when deciding whether to 
grant leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing 
party, (4) futility of amendment, and (5) whether the plaintiff has previously 
amended its complaint.
77 Of these, “the consideration of prejudice to the opposing 
party carries the greatest weight.” 78 Here, there is no evidence of bad faith , 
 
73 Id. at 31-32. 
74 Id. at 32 (citing Gibbs, 383 U.S. at 726-27). 
75 Fed. R. Civ. P. 15(a)(2). 
76 Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (internal quotation 
omitted) (citing Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)). 
77 See Foman v. Davis, 371 U.S. 178, 182 (1962). 
78 Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma County, 708 F.3d 1109, 1117 (9th Cir. 2013) 
(quoting Eminence Cap., LLC, 316 F.3d at 1052); see also Sharkey v. O’Neal, 778 F.3d 767, 
774 (9th Cir. 2015) (indicating a court should explain reasons for denying leave to amend). 

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amendment would be unlikely to cause undue delay , and no prejudice to 
Defendants has been shown. While Plaintiff has previously amended h is 
complaint, it was pursuant to a Court order granting his motion to be substituted 
as Plaintiff in this case.79 
While the Court finds that amendment is likely futile given the Supreme 
Court’s holding in DeShaney and the Ninth Circuit’s holding in Murguia, in applying 
leave to amend with the extreme liberality required, the Court grants Plaintiff leave 
to amend his complaint. Plaintiff might be able to plead affirmative actions that 
were taken by one or both Defendants not inconsistent with the allegations in the 
verified complaint such that they created or exposed Plaintiff to a danger which he 
would not have otherwise faced so as to plausibly allege a Due Process claim. He 
could then replead his NIED and IIED claims. Plaintiff is therefore accorded an 
opportunity to file a Second Amended Complaint (“SAC”). 
An amended pleading replaces the prior pleading in its entirety. 80 
Accordingly, if Plaintiff chooses to file a SAC, the SAC must replead any claims 
against Defendants that Plaintiff intends to pursue. Any claim not repled in the 
SAC will be deemed waived.81 
 
79 Docket 17; Docket 14 at 1-2. 
80 See Fed. R. Civ. P . 15; L.Civ.R. 15.1. 
81 See Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc) (claims voluntarily 
dismissed are waived if not repled) ; Chubb Custom Ins. Co. v. Space Sys./Loral, Inc. , 710 F.3d 
946, 973 n.14 (9th Cir. 2013) ( “Because [the plaintiff] did not voluntarily renew these claims, 
however, it effectively abandoned them.”). 

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CONCLUSION 
IT IS ORDERED that Defendants’ Motions to Dismiss at Docket 19 and 
Docket 20 are each GRANTED and that Plaintiff is accorded leave to amend. 
Plaintiff may file a SAC within thirty (30 ) days from the date of this order . 
Plaintiff must not bring claims against Defendants Lorenzo or Penner in their 
official capacities. Failure to file a SAC by that date will be deemed a decision by 
Plaintiff to stand upon the existing allegations and the Court will then dismiss these 
Defendants for failure to state a federal claim with prejudice and without prejudice 
to the filing of Plaintiff’s state law claims against these Defendants in state court. 
Defendants Lorenzo and Penner shall file an Answer or otherwise respond 
to the SAC within twenty-one (21) days of the date the SAC is filed. 
DATED this 1st day of June, 2026, at Anchorage, Alaska. 
/s/ Sharon L. Gleason 
UNITED STATES DISTRICT JUDGE 
 

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