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Brown v. Ely (12/15/00) sp-5347

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


FRANK G. BROWN, SR.,          )
                              )    Supreme Court No. S-8763
             Appellant,       )
                              )    Superior Court No.
     v.                       )    1JU-97-00296 CI
                              )
RICHARD ELY; MILTON HAKEN;    )    O P I N I O N  
HOONAH POLICE DEPARTMENT;     )
JOHN DOES 1-10; DOE           )    [No. 5347 - December 15, 2000]
CORPORATIONS 1-10; and        )
DOE PARTNERSHIPS 1-10,        )
                              )
             Appellees.       )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
                     Thomas M. Jahnke, Judge.


          Appearances: Paul H. Grant, Juneau, and Jack
          Schweigert, Honolulu, Hawaii, for Appellant. 
T.G. Batchelor, Batchelor & Associates, P.C., Juneau, for
Appellees.


          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.


          EASTAUGH, Justice.


I.   INTRODUCTION
          After police searched Frank Brown's home for marijuana,
he filed a federal Civil Rights Act suit under 42 U.S.C. sec. 1983, 
alleging that the search violated Alaska's constitutional right to
privacy.  Because the search violated no federal right and because
the state right Brown invokes would directly conflict with federal
law, we hold that the superior court correctly dismissed Brown's
sec. 
1983 claim.  But we also conclude that it was error to deny Brown
an opportunity to assert a state law claim against the city police
chief who authorized the search.  We therefore affirm in part and
reverse in part.  We also vacate defendants' Civil Rule 82 award of
partial attorney's fees.
II.  FACTS AND PROCEEDINGS
          On February 8, 1995, State of Alaska Fish and Wildlife
Protection Officer Andy Savland and Hoonah City Police Officer
Richard Ely went to Frank Brown's Hoonah home to investigate a game
violation.  As Officer Savland stood outside and questioned Brown's
wife, [Fn. 1] he detected a suspicious aroma wafting from inside
the home. The officers conferred, concluded that the smell was
marijuana, and questioned Mrs. Brown about the odor.  She told them
that Brown had been smoking marijuana.  The officers then
questioned Brown, who admitted to smoking marijuana.  The officers
asked permission to search the residence, but Mrs. Brown refused.
          Officers Savland and Ely consulted with Hoonah City
Police Chief Milton Haken, who suggested that they seek a search
warrant.  The magistrate issued a warrant authorizing the officers
to search Brown's residence for marijuana and marijuana
paraphernalia.  Chief Haken then instructed Officer Ely to ask
Hoonah City Police Officer Michael See to assist in the search.
Officers Ely, See, and Savland returned to Brown's residence and
searched the property, but found no marijuana or marijuana
paraphernalia. 
          Brown was cited for violating AS 11.71.060(a)(1),
misconduct involving a controlled substance in the sixth degree.
When he appeared in court on February 21, 1995, the court appointed
counsel for him, and he was released on his own recognizance.
Brown's counsel soon filed a motion to dismiss.  The prosecutor
dismissed the charges twelve days later.
          On February 5, 1997, Brown filed a complaint for damages,
alleging that the February 8, 1995 search and seizure violated his
rights to "privacy and to be free from unreasonable searches and
seizures."  His complaint alleged a cause of action under 42 U.S.C.
sec.sec. 1983 and 1988.  It named Officers Ely, Haken, and the
Hoonah
Police Department as defendants (collectively "defendants") and
also named several "John Doe"defendants. [Fn. 2]
          On September 29, 1997, Brown moved for leave to file an
amended complaint.  Brown sought to add a new defendant, the City
of Hoonah, to add a new claim for malicious prosecution, and to
delete the "John Doe"defendants.  The superior court granted
Brown's request to delete the "John Doe"defendants but denied his
request to add the new claim and the new party.  The superior court
granted summary judgment to defendants and dismissed all of Brown's
claims.
          Defendants moved for full attorney's fees under 42 U.S.C.
sec. 1988 and alternatively moved for partial fees incurred
defeating
Brown's motion to amend under Alaska Civil Rule 82.  The superior
court denied defendants' sec. 1988 fees request, but awarded
partial
fees of $5,605.20 under Rule 82.
III. DISCUSSION
     A.   Standard of Review
          We review grants of summary judgment de novo and will
affirm if there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. [Fn. 3] 
We draw all reasonable inferences of fact from the proffered
evidence "against the moving party and in favor of the nonmoving
party."[Fn. 4]

          The elements and defenses to a federal cause of action
are defined by federal law. [Fn. 5]  Thus, we look to federal law
to determine the scope of Brown's rights and defendants' qualified
immunity. [Fn. 6] 
          A decision to grant or deny a motion to amend after the
initial limitations period has passed under Alaska Civil Rule 15(a)
is a matter within the broad discretion of the trial court and is
reviewed for abuse of discretion. [Fn. 7]  We exercise our
independent judgment when interpreting a civil rule. [Fn. 8]  
          An award of attorney's fees under Alaska Civil Rule 82
"will be overturned only upon a showing of abuse of discretion or
a showing that the award [was] manifestly unreasonable."[Fn. 9] 
     B.   The Superior Court Correctly Granted Summary Judgment
Against Brown on His sec. 1983 Claims.
          Brown pled a civil rights claim under 42 U.S.C. sec.
1983,
alleging that defendants violated his Fourth Amendment rights under
color of state law. [Fn. 10]  It is undisputed that defendants,
acting as uniformed officers of the Hoonah Police Department, acted
"under color of state law."  In reviewing defendants' summary
judgment, we must therefore decide whether the allegations in
Brown's complaint encompassed any federal constitutional or
statutory violations. [Fn. 11] 
          Brown asserts that, if our decision in Ravin v. State
[Fn. 12] "is still good constitutional law,"the Alaska
Constitution protects his right to possess and consume marijuana in
his home.  He also argues that recently-amended AS 11.71.060, which
prohibits all use of marijuana, is unconstitutional in light of
Ravin.  He therefore argues that defendants' observations that he
had used marijuana did not provide them probable cause to search
his residence.  He claims that this lack of probable cause rendered
the search unreasonable under the Fourth Amendment. [Fn. 13]
          In 1975 this court held in Ravin that the interest of the
State of Alaska in regulating the use of marijuana in the home was
not sufficient to overcome the fundamental right to privacy article
II, section 22 of the Alaska Constitution provides adult citizens.
[Fn. 14]  We have not overruled Ravin. [Fn. 15]  In 1982 the Alaska
legislature codified Ravin by amending AS 11.71.060 to legalize
possession of up to four ounces of marijuana in a private place.
[Fn. 16]  But in 1990 the voters passed an initiative re-
criminalizing all use and possession of marijuana. [Fn. 17]  The
legislature consequently amended AS 11.71.060 in 1990 to re-
criminalize the possession of four ounces or less of marijuana in
a private place. [Fn. 18]  We have yet to address any conflict
between Ravin and AS 11.71.060. [Fn. 19] 
          Brown claims that the question of whether he suffered a
federal civil rights violation depends solely on the contours of
his right to use marijuana under state law.  Defendants argue that
a claim arising from state law is not actionable under sec. 1983.
Brown responds that resort to state law to determine federal rights
is commonplace in sec. 1983 litigation and that state law can
define
the boundaries of federal rights.
          State law may create federal liberty interests under the
Fourteenth Amendment, [Fn. 20] and in some circumstances, determine
the validity of a search and seizure. [Fn. 21]  But here the right
allegedly protected by state law -- private marijuana possession --
is expressly prohibited by federal law. [Fn. 22]  Defendants had
probable cause under federal law to search Brown's residence based
on Brown's admission that he had been smoking marijuana. [Fn. 23] 
Therefore, the officers did not perform an illegal search under the
Fourth Amendment, regardless of whether Alaska law provides
additional protections. [Fn. 24] 
          Furthermore, Officer Ely or Chief Haken could have
referred the search results to a federal prosecutor who could have
prosecuted Brown under federal law.  Under those circumstances,
Brown would have no sec. 1983 claim.  Brown's attempt to extend
sec. 1983
protection to conduct that is explicitly criminal under federal law
must fail. 
          Thus, violating rights recognized in Ravin does not
generate a cause of action under sec. 1983.  We therefore rule that
Brown's complaint does not state a sec. 1983 cause of action.  This
failure to state a permissible sec. 1983 claim eliminates the need
to
address defendants' qualified immunity arguments and moots Brown's
request to add a sec. 1983 claim against the City of Hoonah.
     C.   Brown Did Not Successfully Allege a State Law
Constitutional Tort Claim.

          We next consider whether Brown successfully alleged a
state law constitutional claim.  The federal courts, under Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, [Fn.
25] have recognized direct tort actions for violations of certain
provisions of the federal constitution.  We have neither adopted
nor rejected the Bivens approach with respect to state
constitutional violations. [Fn. 26]  We have noted that federal
courts have not permitted the Bivens remedy if alternative remedies
are available. [Fn. 27]  
          Brown alleges that he stated an independent cause of
action for a violation of his right to privacy under article I,
section 22 of the Alaska Constitution.  But Brown's complaint reads
otherwise.  The complaint states "[t]he Defendants' conduct . . .
violated Plaintiff's civil rights to privacy and to be free from
unreasonable searches and seizures, so as to warrant relief under
42 U.S.C. sec.sec. 1983 and 1988."  Nowhere in the complaint did
Brown
seek relief under the Alaska Constitution.  Moreover, Brown failed
to raise this issue until his reply brief on appeal and even then
provided no substantive argument on why we should recognize a
Bivens-style tort cause of action for violations of the Alaska
Constitution.  Consequently, Brown has waived this issue. [Fn. 28]
     D.   It Was Error to Deny Brown's Request to Amend His
Complaint to Add a State Law Tort Claim.
          Brown requested leave on September 29, 1997 to amend his
complaint to add a malicious prosecution claim against Chief Haken.
[Fn. 29]  The search took place on February 8, 1995.  The charges
against Brown were dismissed on April 10, 1995.  Since favorable
termination of a proceeding alleged to have been maliciously
brought is an element for any malicious prosecution claim, [Fn. 30]
Brown's malicious prosecution claim did not accrue until that date. 
The two-year statute of limitations for any malicious prosecution
claims therefore expired on April 10, 1997. [Fn. 31]  Brown claimed
that his proposed amendments related back to his timely original
complaint, in accordance with Alaska Civil Rule 15(c). [Fn. 32] 
          The amendment would have added a new claim against a
defendant, Chief Haken, named in the original complaint.  To relate
back, a new claim must arise out of the same conduct, transaction,
or occurrence alleged in the original complaint. [Fn. 33]  In these
circumstances, Rule 15(c) receives a liberal construction [Fn. 34]
and not the strict construction applied when a claimant seeks to
add a new party. [Fn. 35]  A decision to grant or deny a motion to
amend is a matter within the broad discretion of the trial court.
[Fn. 36]
          The superior court framed the issue as whether Chief
Haken had adequate notice of the new claim.  The court reasoned
that, for Chief Haken to have received notice, Brown's original
complaint must have alleged facts satisfying all legal elements of
a malicious prosecution claim. [Fn. 37]  The court determined that
Brown's original complaint alleged that the proceedings against him
were terminated in his favor and were brought without probable
cause but did not allege facts indicating that the proceedings were
brought with malice.  The court therefore denied Brown's request.
          But in these circumstances Rule 15(c) focuses on the
facts alleged in the original complaint, not on whether the
defendant knew that the facts alleged satisfied the legal elements
of the new claim.  Rule 15(c) provides that "[w]henever the claim
or defense asserted in the amended pleading arose out of the
conduct, transaction or occurrence set forth or attempted to be set
forth in the original pleading, the amendment relates back to the
date of the original pleading."[Fn. 38]  We stated in Magestro v.
State that a named party given notice of the facts of the
underlying occurrence has been given "all the notice that the
statutes of limitation are intended to afford."[Fn. 39] 
Accordingly, the only relevant question is whether the new claim
involves the same transaction or occurrence alleged in the original
complaint.  
          Brown argues that his malicious prosecution claim was
merely a new legal theory that fit into the facts originally pled. 
We agree.  Brown's malicious prosecution claim arose from some of
the same facts that his original complaint alleged, specifically
the issuance of the criminal complaint and its subsequent
dismissal.  Brown's failure to allege malice with specificity does
not mean that Chief Haken was not on notice of the general facts
that gave rise to Brown's malicious prosecution claim. [Fn. 40]  We
therefore reverse the denial of Brown's motion to amend his
complaint to add a claim of malicious prosecution against Chief
Haken.
     E.   On Remand, Defendants' Rule 82 Attorney's Fee Award May
Not Include Fees Incurred Defending Against the sec. 1983 Claims. 

          Because we remand so Brown can assert a malicious
prosecution claim against Chief Haken, Chief Haken is no longer a
prevailing party.  We must therefore vacate the attorney's fee
award and remand the fees issue.
          Two other considerations also apply when the issue is
revisited on remand.
          First, any recalculated award must distinguish between
fees incurred litigating federal claims and fees incurred
litigating state claims.
          Defendants sought actual incurred fees of $23,963.50
under 42 U.S.C. sec. 1988 [Fn. 41] and Alaska Civil Rule 11 for
defending against Brown's federal cause of action.  They also
sought actual fees of $4,062.50 under Alaska Civil Rule 82 for
"resisting Plaintiff's efforts to join state causes of action and
additional parties to this case."  The total sought was $28,026.
          The superior court concluded that defendants failed to
satisfy the federal standards for awarding attorney's fees to a
prevailing defendant in a federal civil rights action. [Fn. 42]
Accordingly, it based its award exclusively on Civil Rule 82(b)(2).
It discussed Rule 82(b)(3) factors and awarded defendants
$5,605.20, twenty percent of the total sought.
           Attorney's fee awards for sec. 1983 actions brought in
state court are governed by 42 U.S.C. sec. 1988 and federal case
law
interpreting that statute. [Fn. 43]  Alaska law does not allow an
award under Civil Rule 82 if the award would conflict with federal
law. [Fn. 44]  We will uphold the superior court's fee award absent
an abuse of discretion. [Fn. 45]
          A Rule 82 award may not reimburse the expense of
defending against sec. 1983 claims. [Fn. 46]  Having concluded that
defendants were not entitled to an award under sec. 1988, the
superior
court should have based its Rule 82 award exclusively on the amount
-- $4,062.50 -- spent opposing Brown's motion to amend, and not on
the amount -- $23,963.50 -- spent opposing Brown's sec. 1983 claim. 
On remand the Rule 82 award cannot be based on fees incurred
defending against the sec. 1983 claim. [Fn. 47]
          Second, Brown correctly argues that expenses incurred in
opposing Brown's motion to add the City of Hoonah was spent
defending against a sec. 1983 claim, not a state law claim. [Fn.
48] 
Part of the $4,062.50 was therefore actually incurred opposing
Brown's sec. 1983 claim.  The court must also take this
circumstance
into account on remand.
IV.  CONCLUSION
          We conclude that Brown failed to state a claim under sec. 
1983 because the alleged right Brown asserts under the Alaska
Constitution directly conflicts with federal law.  We further
conclude that Brown waived any argument for a possible state
constitutional tort claim analogous to a Bivens claim.   We also
hold that Brown's motion to amend his complaint to add a malicious
prosecution claim against Chief Haken should have been granted
because the facts giving rise to this claim arose out of the same
facts alleged in Brown's original complaint.  Finally, the
attorney's fees award must be vacated and the fees issue
reconsidered.  We therefore AFFIRM the dismissal of Brown's sec.
1983
claim, REVERSE the denial of Brown's motion to amend his complaint
to add a state law tort claim against Chief Haken, VACATE the
attorney's fees award, and REMAND for proceedings consistent with
this opinion.


                            FOOTNOTES


Footnote 1:

     There is apparent confusion in the record over whether this
woman was actually Brown's wife.  Brown holds her out as his wife
in his briefs.  Her exact relationship to Brown is not important,
and the opinion refers to her as his wife for clarity.


Footnote 2:

     State officials acting in their "official capacity"are not
"persons"for the purposes of sec. 1983.  See Will v. Michigan
Dep't
of State Police, 491 U.S. 58, 70-71 (1989).  Ely and Haken are not
state officials but are officials of the City of Hoonah.  Local
government officials sued in their official capacity are "persons"
under sec. 1983 when a local government is suable in its own name. 
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978). 


Footnote 3:

     See Lane v. City of Kotzebue, 982 P.2d 1270, 1272 (Alaska
1999).


Footnote 4:

     Taranto v. North Slope Borough, 909 P.2d 354, 355 (Alaska
1996).


Footnote 5:

     See Howlett v. Rose, 496 U.S. 356, 375-76 (1990).


Footnote 6:

     See Van Sandt v. Brown, 944 P.2d 449, 452 n.5 (Alaska 1997).


Footnote 7:

     See Rutledge v. Alyeska Pipeline Serv. Co., 727 P.2d 1050,
1054 (Alaska 1986).


Footnote 8:

     See Ford v. Municipality of Anchorage, 813 P.2d 654, 655
(Alaska 1991).


Footnote 9:

     Feichtinger v. Conant, 893 P.2d 1266, 1268 (Alaska 1995).


Footnote 10:

     42 U.S.C. sec. 1983 (1994 & Supp. II 1996) provides in
pertinent
part:

          Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress. 


Footnote 11:

     Cf. Thoma v. Hickel, 947 P.2d 816, 819 (Alaska 1997).


Footnote 12:

     537 P.2d 494 (Alaska 1975).


Footnote 13:

     The Fourth Amendment to the United States Constitution
protects the "right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures."  U.S. Const. amend. IV.


Footnote 14:

     See Ravin, 537 P.2d at 504-12.


Footnote 15:

     See generally Andrew S. Winters, Note, Ravin Revisited: Do
Alaskans Still Have a Constitutional Right to Possess Marijuana in
the Privacy of Their Homes?, 15 Alaska L. Rev. 315 (1998).


Footnote 16:

     See ch. 45, sec. 2, SLA 1982; Winters, supra note 15, at 315. 
 


Footnote 17:

     See 1990 Initiative Proposal No. 2, sec. 1; Winters, supranote
15, at 326-27.


Footnote 18:

     See Init. Meas. 88 MARI, SLA 1990; AS 11.71.060; see also
Winters, supra note 15, at 327.


Footnote 19:

     See Winters, supra note 15, at 340. 


Footnote 20:

     See, e.g., Richardson v. Town of Eastover, 922 F.2d 1152,
1156-57 (4th Cir. 1991) (recognizing that policies, practices, and
understandings under state law could create protectable property
interest in business license); Galvan v. Carothers, 855 F. Supp.
285, 289 (D. Alaska 1994), aff'd, 122 F.3d 1071 (9th Cir. 1997)
(stating liberty interest created where state regulation regarding
prisoner classification for custody purposes placed substantive
limits on official discretion); see also Smith v. Sumner, 994 F.2d
1401, 1405 (9th Cir. 1993) (noting that "[p]rotected liberty
interests may arise from . . . the laws of the States.") (quoting
Kentucky Dep't Corrections v. Thompson, 490 U.S. 454, 460 (1989)).


Footnote 21:

     See Reed v. Hoy, 909 F.2d 324, 330 (9th Cir. 1989) (noting
that state law is often relevant in analyzing reasonableness of
police activities under Fourth Amendment) (citing Tennessee v.
Garner, 471 U.S. 1, 15-16 (1985)); see also Cole v. Nebraska State
Bd. of Parole, 997 F.2d 442, 444 (8th Cir. 1993) ("An arrest by a
state actor that is not authorized by state law is actionable under
sec. 1983 as a seizure contrary to the Fourth Amendment.");
Bissonette
v. Haig, 800 F.2d 812, 816 (8th Cir. 1986) (en banc), aff'd by
operation of law, 485 U.S. 264 (1984) ("[A] search unauthorized by
state law would ipso facto violate the Fourth Amendment."). 


Footnote 22:

     See 21 U.S.C. sec. 812(c)(Schedule I)(c)(10)(1999).


Footnote 23:

     Under federal law, "[p]robable cause exists when, under the
totality of the circumstances known to the arresting officers, a
prudent person would have concluded that there was a fair
probability that [the defendant] had committed a crime."United
States v. Garza, 980 F.2d 546, 550 (9th Cir. 1992) (second
alteration in original) (citations and internal quotes omitted). 


Footnote 24:

     See Devereaux v. Perez, 218 F.3d 1045 (9th Cir. 2000)
("[S]tate law may serve as a basis for sec. 1983 liability only
where
such violation is cognizable under federal law.").


Footnote 25:

     403 U.S. 388 (1971).


Footnote 26:

     See Vest v. Schafer, 757 P.2d 588, 598 (Alaska 1988).


Footnote 27:

     See Dick Fischer Dev. No. 2, Inc. v. Department of Admin., 838
P.2d 263, 268 (Alaska 1992).


Footnote 28:

     See Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 158
(Alaska 1992) (waiver because argument not raised until reply
brief); State v. O'Neill Investigations, Inc., 609 P.2d 520, 528
(Alaska 1980) (waiver because of insufficient briefing).


Footnote 29:

     Claims against the state for malicious prosecution are barred
under the state tort claims act.  See AS 09.50.250(3); cf. Waskey
v. Municipality of Anchorage, 909 P.2d 342, 344 (Alaska 1996). 
This statute does not apply here because Brown is asserting this
claim against Haken individually, not as a representative of the
state.  See Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 162
n.29 (Alaska 1987) (noting that statute provides no immunity for
public officials).


Footnote 30:

     See Caudle v. Mendel, 994 P.2d 372, 376 (Alaska 1999).


Footnote 31:

     See AS 09.10.070(a)-(b).  The statutory limitation period was
three years under former AS 09.10.060(a) but this section was
repealed in 1996.  See ch. 70, sec. 1-3, SLA 1996.  Brown's cause
of
action accrued in 1995 but in repealing the old statute of
limitations the legislature stated "[t]his Act applies to civil
actions commenced on or after the effective date of this Act
regardless of when the cause of action may have arisen."  Ch. 70,
sec. 3, SLA 1996.


Footnote 32:

     Alaska Civil Rule 15(c) provides:

          Whenever the claim or defense asserted in the
amended pleading arose out of the conduct, transaction or
occurrence set forth or attempted to be set forth in the original
pleading, the amendment relates back to the date of the original
pleading.  An amendment changing the party against whom a claim is
asserted relates back if the foregoing provision is satisfied and,
within the period provided by law for commencing the action against
the party to be brought in by amendment, that party (1) has
received such notice of the institution of the action that the
party will not be prejudiced in maintaining a defense on the
merits, and (2) knew or should have known that, but for a mistake
concerning the identity of the proper party, the action would have
been brought against the party.


Footnote 33:

     See Alaska R. Civ. P. 15(c); see also T.P.D. v. A.C.D., 981
P.2d 116, 122 (Alaska 1999); Farmer v. State, 788 P.2d 43, 49
(Alaska 1990) (citing Schiavone v. Fortune, 477 U.S. 21, 29
(1986)).


Footnote 34:

     See Farmer, 788 P.2d at 47, 48 n.13. 


Footnote 35:

     See McCutcheon v. State, 746 P.2d 461, 469 n.16 (Alaska 
1987).


Footnote 36:

     See Rutledge v. Alyeska Pipeline Serv. Co., 727 P.2d 1050,
1054 (Alaska 1986).


Footnote 37:

     To prevail in an action for malicious prosecution, a party
must prove that the initial proceeding "(1) terminated in his/her
favor, (2) was brought without probable cause, and (3) was
initiated with malice."  Kollodge v. State, 757 P.2d 1024, 1026
(Alaska 1988).


Footnote 38:

     Alaska R. Civ. P. 15(c).


Footnote 39:

     785 P.2d 1211, 1213 (Alaska 1990) ("[A] party who is notified
of the litigation concerning a given transaction or occurrence has
been given all the notice that statutes of limitation intended to
afford . . . .") (quoting Estate of Thompson v. Mercedez-Benz,
Inc., 514 P.2d 1269, 1273 (Alaska 1973)).


Footnote 40:

     See Alaska R. Civ. P. 9(b) (providing that malice and other
condition of mind of a person "may be averred generally"); see also 
Magestro, 785 P.2d at 1213 ("The fact that a new legal theory or
new claim is advanced in the amended complaint, based on the same
factual occurrence set out in the original complaint, has not
heretofore been considered a reason for denying leave to amend
under Rule 15(c)."); Jakoski v. Holland, 520 P.2d 569, 576 (Alaska
1974) (concluding that amendment related back when new claim was
based on same conduct, transaction, or occurrence alleged in
original pleading).


Footnote 41:

     42 U.S.C. sec. 1988(b) (1994 & Supp. II 1996) provides: "In
any
action or proceeding to enforce a provision of sectio[n] . . . 1983
. . . of this title . . . the court, in its discretion, may allow
the prevailing party . . . a reasonable attorney's fee as part of
the costs."


Footnote 42:

     Fees may be awarded against an unsuccessful plaintiff under
sec.
1988 only if the action is "meritless, in the sense it is
groundless or without foundation."  Elks Nat'l Found. v. Weber, 942
F.2d 1480, 1485 (9th Cir. 1991).


Footnote 43:

     See Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 270
(Alaska 2000) ("[A]ny attorney's fees for federal claims must be
awarded pursuant to 42 U.S.C. sec. 1988."); see also Hughes v.
Foster
Wheeler Co., 932 P.2d 784, 788-91 (Alaska 1997) (holding that Civil
Rule 82 applied in federal cause of action brought in state court
because Rule 82 is not contrary to federal law or specific federal
statute governing attorney's fees).  Defendants concede that Rule
82 does not apply to Brown's sec. 1983 claim.


Footnote 44:

     See Hughes, 932 P.2d at 790.


Footnote 45:

     See Feichtinger, 893 P.2d at 1268.


Footnote 46:

     See Balough, 995 P.2d at 270 (superior court may award fees
for state-law claims segregated from sec. 1983 claims); Lyman v.
State, 824 P.2d 703, 707 (Alaska 1992) (superior court may require
party seeking costs to identify and segregate state-law claims from
federal-law claims).


Footnote 47:

     Cf. Lyman, 824 P.2d at 707 (reversing attorney's fee award in
case involving both sec. 1983 claims and state law claims because
record did not include sufficient information to determine whether
the costs and fees derived from defending state law claim as
distinguished from federal claim).


Footnote 48:

     In their brief, defendants characterize their state law
expenses as solely consisting of fees incurred opposing Brown's
motion to add a new state law tort claim.