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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Prentzel v. Alaska Dep't of Public Safety (8/23/2002) sp-5615

Prentzel v. Alaska Dep't of Public Safety (8/23/2002) sp-5615

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


H. THOMPSON PRENTZEL, III,    )
                              )    Supreme Court No. S-9979
             Appellant,            )
                              )    Superior Court No. 4FA-99-2423
CI
     v.                       )
                              )    O P I N I O N
STATE OF ALASKA, DEPARTMENT)
OF PUBLIC SAFETY, TROOPER     )    [No. 5615 - August 23, 2002]
DANIEL SCOTT, TROOPER DANE    )
GILMORE, CAPTAIN WARREN  )
TANNER, and COLONEL GLEN )
GODFREY,                      )
                              )
             Appellees.            )
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Ralph R. Beistline, Judge.

          Appearances:  H. Thompson Prentzel, III,  pro
          se.    Richard   Keck,   Assistant   Attorney
          General,  Fairbanks, and  Bruce  M.  Botelho,
          Attorney General, Juneau, for Appellees.

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

          EASTAUGH, Justice.

I.   INTRODUCTION

          State troopers arrested a man without a warrant because

they  thought  he was violating his court-imposed  conditions  of

release from a prior charge.  He was never charged with violating

the  release  conditions.  The man sued the State of  Alaska  and

individual Alaska State Troopers.  Was it error to dismiss on the

pleadings  his  negligence  claims  against  the  state  and  his

negligence  and  42  U.S.C.  1983 claims against  the  individual

troopers?  Because the pleadings alone do not allow us to  decide

the  resulting  issues, we reverse in part the dismissal  of  his

claims and remand for further proceedings.

II.  FACTS AND PROCEEDINGS

          Alaska State Troopers Daniel Scott and Dane Gilmore saw

H.  Thompson Prentzel III walk down College Road in Fairbanks  at

3:30  a.m.  in  October  1998 with a bottle  of  alcohol  in  his

possession.1  The trooper dispatcher informed Troopers Scott  and

Gilmore  that  Prentzel,  who had previously  been  charged  with

driving  while  intoxicated (DWI), was subject to a court-ordered

condition of release that precluded him from possessing  alcohol.

Troopers  Scott  and  Gilmore then arrested  Prentzel  without  a

warrant for violating his DWI release conditions.2  Prentzel  was

later  released without being charged with violating his  release

conditions.

          Prentzel  filed a civil action in October 1999  against

the  Alaska  Department of Public Safety, Trooper Scott,  Trooper

Gilmore,  Captain  Warren Tanner, and Colonel Glen  Godfrey  (the

"state  defendants"), alleging false arrest, false  imprisonment,

trespass  to  chattels, conversion, and negligence.  The  parties

disagree   about  the  circumstances  surrounding   the   arrest.

Prentzel's complaint stated that he was:

          humiliatingly handcuffed in public  for  more
          than  10 min.; detained in an unsanitary cell
          without  sink  or  toilet for  more  than  12
          hours;  manhandled  by officers  who  falsely
          charged  [him] with resisting arrest  .  .  .
          [and]  drug possession, [had] the humiliation
          of  having these false charges . . .  printed
          in the local newspaper . . . all resulting in
          increased stress.
          
          The  state  defendants  denied  these  allegations  and

asserted  instead that Prentzel had resisted arrest.   The  state

filed  an  Alaska  Civil  Rule 12(c) motion  to  dismiss  on  the

pleadings.  Prentzel then moved to amend his complaint  to  claim

civil  rights  violations under 42 U.S.C.  1983, attorney's  fees

under  42 U.S.C.  1988, and violations of his civil rights  under

the  Alaska  Constitution.  The state defendants did  not  oppose

amendment.   The  state  defendants moved to  dismiss  the  civil

rights claim and the state constitutional claim in June and  July

2000  and  to  consolidate and dismiss Prentzel's  other  claims.

Prentzel opposed dismissal.  On August 7, 2000 Prentzel moved for

permission  to  file  a  second  amended  complaint  to  add   an

additional  unknown state trooper as a defendant, and  to  allege

that  the state defendants' actions were willful and carried  out

with  malice.  On August 10 the superior court granted the  state

defendants' motion to dismiss the amended complaint and held that

the  second amended complaint would not change the outcome of the

ruling.   The  superior court also awarded the  state  defendants

prevailing party attorney's fees of $1,000.

          Prentzel appeals.

III. DISCUSSION

     A.   Standard of Review

          We  review de novo the grant of a Rule 12(c) motion for

judgment  on  the pleadings.3  The state defendants  can  prevail

only  if  Prentzel's pleadings contain no allegations that  would

permit recovery if proven.4

     B.    It  Was  Error  To Dismiss Prentzel's  Claims  Against

Troopers  Gilmore          and Scott on the Grounds  of  Official

Immunity.

          Prentzel  argues  that  the  superior  court  erred  in

dismissing  on  official  immunity  grounds  his  claims  against

Troopers Scott and Gilmore.  Prentzel argues that Troopers  Scott

and  Gilmore  exceeded  the  scope of  their  authority,  thereby

forfeiting  immunity,  when  they  arrested  Prentzel  without  a

          warrant.  Prentzel argues that AS 12.25.030 does not authorize

warrantless arrests for violations of DWI conditions of  release.

He  also  argues  that the allegation of malice in  his  proposed

second amended complaint created a factual dispute that precluded

judgment  on  the  pleadings.  The state  defendants  argue  that

Troopers Scott and Gilmore "are immune from liability for  making

an  error  in their personal deliberation, decision, and judgment

regarding  the  scope  of  their arrest  authority."   The  state

defendants conclude that this immunity extends to state officials

who misinterpret the law.

          The superior court ruled that Prentzel's arrest was "an

exercise  of Trooper discretion," and that governmental  immunity

protects   Troopers   Scott  and  Gilmore  from   liability   for

misinterpreting  their  authority to  arrest  Prentzel  under  AS

12.25.030.5   The  superior court also denied  Prentzel's  August

2000 motion to amend his complaint to add a charge of willful and

malicious conduct because it ruled that the amendment would  "not

change the outcome herein."

          Alaska  Civil Rule 15(a) allows parties to amend  their

pleadings by leave of court; leave is to be granted when  justice

requires.6   We  have  held  that  "the  trial  court  has  broad

discretion in allowing or denying proposed amendments  after  the

initial  period has passed under [Rule 15(a)]."7  Typical reasons

for  denying  leave  to  amend  include  the  added  expense  and

increased burden the opposing party is likely to face as a result

of  the amendment.8  But a party should be permitted to amend  if

there is no showing that amending would cause injustice.9

          It  does  not appear that the superior court based  its

decision to deny Prentzel's second attempted amendment on grounds

of increased burden, added expense, or potential injustice to the

state  defendants.   Instead, the superior court  concluded  that

Prentzel's  second amended complaint would not  alter  the  legal

grounds for dismissing Prentzel's claims.

          The superior court's ruling would have been correct  if

          Prentzel's amendment would have been fruitless.10  This would have

been  the  case  if  the immunity protecting Troopers  Scott  and

Gilmore  were absolute, because an allegation of malice will  not

defeat absolute immunity.11  But if the officers are entitled  to

immunity it must be qualified, not absolute, immunity.12  We have

stated  that  "[u]nder  a rule of qualified  immunity,  a  public

official is shielded from liability only when discretionary  acts

within  the  scope of the official's authority are done  in  good

faith  and are not malicious or corrupt."13  Prentzel claimed  in

his  rejected  second  amended  complaint  that  the  actions  of

Troopers  Gilmore  and  Scott  "were  made  with  malice   toward

[Prentzel]."   Whether  they  acted  maliciously  is  a   factual

question  not  suitable for disposition on the pleadings  when  a

complaint properly pleads malice.14  We therefore hold that it was

error  to  deny  the amendment and to rule that the  doctrine  of

official immunity entitled Troopers Gilmore and Scott to judgment

on the pleadings.

     C.    It  Was  Error To Dismiss Prentzel's Negligence  Claim
Against the State        and Officers Tanner and Godfrey.
          1.   The pleadings do not preclude the possibility that
the  state                 defendants owed Prentzel an actionable
duty.
          Prentzel  contends  that  Captain  Tanner  and  Colonel
Godfrey  "failed  in  their duty to train and supervise  Sergeant
John  Doe, Trooper Scott and Trooper Gilmore concerning the scope
of  their  lawful authority to arrest a person without a  warrant
when  such  person  is  not committing an  offense."   The  state
defendants  argue  that Captain Tanner and Colonel  Godfrey  owed
Prentzel  no  duty  to  be error-free in  their  supervision  and
training of Troopers Scott and Gilmore because Troopers Scott and
Gilmore  themselves owed no duty to Prentzel to be error-free  in
their  arrest.   But whether Captain Tanner and  Colonel  Godfrey
owed Prentzel a duty cannot be conclusively resolved by resort to
this   simple  syllogism.   Instead,  we  have  stated  that   an
actionable duty of care is a public policy question involving:
          the  foreseeability of harm to the plaintiff,
          the  degree  of certainty that the  plaintiff
          suffered   injury,  the  closeness   of   the
          connection  between  the defendant's  conduct
          and  the  injury  suffered, the  moral  blame
          attached  to  the  defendant's  conduct,  the
          policy  of preventing future harm, the extent
          of   the   burden   to  the   defendant   and
          consequences to the community of  imposing  a
          duty   to   exercise  care   with   resulting
          liability  for  breach, and the availability,
          cost and prevalence of insurance for the risk
          involved.[15]
          Prentzel urges us to hold that the state owes a duty to
its  citizens to supervise and train state troopers so that  they
do  not  make  mistakes like the one made by Troopers  Scott  and
Gilmore.  Inadequate police training can be actionable,16 but  we
are  reluctant to decide whether any duty was owed in  this  case
based  on  the  limited  fact  inferences  permissible  from  the
pleadings alone.  Although determining whether an actionable duty
exists is a legal question,17 the factual context can be a helpful
indicator  of the public policy questions at issue.18  Prentzel's
amended  complaint does not rule out the existence of  actionable
training and supervision duties.19  We hold that the dismissal of
the  training  and  supervision claim cannot be  sustained  on  a
theory the pleadings alleged no actionable duty.
          2.   Determining  whether Captain  Tanner  and  Colonel
               Godfrey  are  entitled to immunity for supervision
               and  training  of the arresting officers  requires
               further development of the underlying facts.
          Prentzel next argues that the state is not entitled  to
discretionary  function  immunity under  AS  09.50.250(1).20   He
asserts  that "[n]o discretion" in the matter of his arrest  "was
vested  in [the state], Colonel Godfrey, Captain Tanner, Sergeant
Doe, Trooper Scott or Trooper Gilmore."
          We  have adopted a "planning/operational" dichotomy for
          identifying those governmental acts entitled to discretionary
function immunity under AS 09.50.250.21  "A planning decision  is
one  that  involves  policy formulation, whereas  an  operational
decision involves policy execution or implementation."22  Planning
decisions   are  entitled  to  discretionary  function  immunity;
operational  decisions  are  not.   Prentzel  argues   that   any
decisions made by the state in supervising and training  troopers
in  making arrests - specifically arrests for violations  of  DWI
bail conditions - are operational.
          Distinguishing   between   operational   and   planning
decisions  is  a  legal  question.  Nonetheless,  "our  decisions
identifying  discretionary  functions  have  invariably  involved
cases  decided  on  summary judgment; we have  never  affirmed  a
dismissal based on the pleadings alone."23  We recognize that some
facets of training and supervising are more likely than others to
involve planning, rather than operational, activities.24  But  we
cannot  decide without some factual context whether the  training
and  supervisory activities Prentzel attributes to Captain Tanner
and Colonel Godfrey involved planning functions entitling them to
discretionary   function  immunity.   They  were  therefore   not
entitled to dismissal of those claims on a discretionary function
immunity theory.
     D.    Prentzel's Pleadings Do Not Require Dismissal  of  the
1983  Claim          Against the Individually Named Officers  and
Troopers.
          Prentzel's  amended complaint sought money damages  and
injunctive relief against the "defendants" under 42 U.S.C.   1983
for  certain  alleged customs and policies of  the  Alaska  State
Troopers.25   The  superior  court  dismissed  Prentzel's    1983
damages claim, stating:
          Because  states and state agencies cannot  be
          sued   under   1983,  since  they   are   not
          "persons" for  1983 purposes, and the  Alaska
          State  Troopers are an agency, created  by  a
          statute  as  a division of the Department  of
          [Public] Safety, Prentzel's [ 1983 claim]  is
          dismissed  to  the  extent  that  [it]  seeks
          monetary damages from a state agency.
          Prentzel  does not argue that the superior court  erred
by  dismissing his  1983 claim against the state.  But he  argues
that  the superior court erred by not construing his  1983  claim
to  cover  the  individual defendants,  as  well  as  the  state.
Prentzel's   amended  complaint  and  proposed   second   amended
complaint  sought  relief  against "defendants."   Prentzel  here
contends that "defendants" included not only the state, but  also
the individual troopers and officers.26
          Allegations in a pro se complaint are sometimes held to
less  stringent  standards  than  formal  pleadings  drafted   by
lawyers.27  As such, we consider whether the superior court should
have  read  the  term  "defendants" in  Prentzel's  complaint  to
include the individually named troopers and officers.28
          Because  federal  law  defines  the  elements  of   and
defenses to a federal cause of action, we look to federal law  to
determine   the  scope  of  Prentzel's  rights  and   defendants'
qualified immunity.29
          Prentzel's   1983  claim can be broken  down  into  two
categories:  a claim against the arresting troopers and  a  claim
against  the  troopers'  supervisors.   Before  addressing  these
categories,  however, we first must consider  a  threshold  legal
question applicable to both categories: whether Prentzel intended
to  sue  the individual defendants in their personal or in  their
official capacities.
          Prentzel's  1983 claim did not specifically  allege  in
what  capacities the defendants acted.  If his complaint is  read
to  allege that the troopers simply executed official policy, the
troopers  could  not  be  held liable for  damages  under   1983,
because  officials acting in their official capacities cannot  be
the  subjects of  1983 damages suits.30  But if his complaint  is
read  to  assert  that  the  troopers  acted  in  their  personal
capacities  when they allegedly violated his federal  rights,  it
may  assert  a  actionable  1983 damages  claim.31   Because  the
parties did not brief this issue below and have not briefed it on
          appeal, and because the limited proceedings to date do not permit
us  to  decide  it as a matter of law, we decline  to  reach  the
issue.  But the following comments are appropriate.
          We  look to the nature of Prentzel's claim, the  relief
sought,  and  the course of proceedings to determine  whether  he
intended  to  sue  the defendants in their personal  or  official
capacities.32  Prentzel's  amended complaint and proposed  second
amended  complaint allege that the "defendants" were effectuating
"customs  or  policies"  under  color  of  state  law  when  they
allegedly  violated  his  federal  rights.   This  implies   that
Prentzel  claimed  that  the  defendants  were  acting  in  their
official   capacities  when  they  committed  the   complained-of
actions.  Prentzel's opposition to the state's motion to  dismiss
his   1983 claim expresses no intention to sue the defendants  in
their personal capacities.  But Prentzel's pleadings request both
monetary  and  injunctive  relief, and monetary  relief  is  only
available  in  personal-capacity  lawsuits.33   Furthermore,  the
parties  do  not  agree  on  appeal whether  the  defendants  are
entitled  to  qualified  immunity,  and  qualified  immunity   is
likewise only available in personal-capacity lawsuits.34
          1.   Troopers Scott and Gilmore
          The   state  defendants  argue  that  Prentzel's  claim
against  Troopers  Scott  and Gilmore is  "preposterous"  because
neither of these arresting troopers "had ever engaged in  any  of
[the]  so-called  customs and policies of the AST  that  Prentzel
alleges."35   If  the  troopers were  simply  executing  official
policy,  they could not be held liable under  1983.  But  if,  as
Prentzel's pleadings impliedly allege, Troopers Scott and Gilmore
violated  Prentzel's  federally created rights  while  they  were
acting  under color of state law, they could be personally liable
under  1983.36
          The  distinction between personal and official capacity
is  critical  in determining liability under  1983.  If  Troopers
Scott  and Gilmore acted in their official capacities there would
be  no   1983 liability for damages because "neither a State  nor
its  officials acting in their official capacities are  `persons'
          under  1983."37  Prentzel's amended complaint and proposed second
amended complaint allege that the "defendants" violated  1983  by
effectuating under color of state law "customs or policies"  that
deprived  him of federally created rights.  The state  defendants
argue that Troopers Scott and Gilmore believed that Prentzel  was
either  committing  a crime in their presence  or  violating  his
conditions  of  release.   They argue  that  Troopers  Scott  and
Gilmore  carried out the arrest in their official  capacity.   We
cannot determine from the pleadings alone whether Troopers  Scott
and  Gilmore acted beyond the scope of their official  capacities
in  arresting  Prentzel.  We therefore cannot determine  at  this
stage  of  the  litigation whether Prentzel has  a  viable   1983
claim for damages against Troopers Scott and Gilmore.38
          Prentzel  further  argues  that  it  was  an  abuse  of
discretion  to deny his motion to amend his complaint  to  allege
malice expressly.  We held in Part III.C in context of the  state
tort claim against Troopers Scott and Gilmore that denial was  an
abuse  of  discretion.  But it was not an abuse of discretion  in
context   of  the   1983  claim.   The  Supreme  Court  purposely
disposed  of the subjective element of the immunity defense,  and
"[b]are allegations of malice" are now effectively irrelevant  to
a  1983 claim.39
          We hold that it is not obvious from the pleadings alone
that  Prentzel's   1983 claim against Troopers Scott and  Gilmore
is  without merit.40  We remand for reinstatement of that  claim.
But  we also hold as to the  1983 claim that it was not error  to
deny the motion to amend to allege malice.
          2.   Captain Tanner and Colonel Godfrey
          Prentzel  argues  that the  1983  claims  against  "the
individual defendants were improperly dismissed."  His  argument,
as  discussed  above,  is  that  the  term  "defendants"  in  his
complaint included the individual defendants and was not  limited
to  the  state agency.  Prentzel's brief does not mention Captain
Tanner and Colonel Godfrey with respect to his  1983 claim.   But
his  proposed  second amended complaint states that the  "customs
and/or  policies of defendants deprive[d] [him] of rights secured
          to him under the United States Constitution."  He does not
specify the customs or policies to which he refers, but he is not
required to specify them at the pleading stage.41
          The  Supreme  Court  has held that "the  inadequacy  of

police  training may serve as the basis of  1983  liability  only

where the failure to train amounts to deliberate indifference  to

the  rights of persons with whom the police come into contact."42

We  held  in Hildebrandt v. City of Fairbanks that "training  can

justifiably  be said to represent . . . policy . . . [when]  `the

need  for  more  or  different training is so  obvious,  and  the

inadequacy so likely to result in the violation of constitutional

rights,  that the policy-makers . . . can reasonably be  said  to

have  been deliberately indifferent to the need.' "43  We allowed

the   1983  claim  to go forward in Hildebrandt  because  it  was

against  the City of Fairbanks, which is a "person" for  purposes

of  1983.44  But Captain Tanner and Colonel Godfrey are employees

of  a state agency, which is not a "person" for purposes of  1983

suits.45

          A   1983  claim  would lie against Captain  Tanner  and

Colonel Godfrey if Prentzel could show that they adopted, outside

their  official capacities, the customs or policies  he  alleges,

causing  violations  of his civil rights.46  This  would  require

evidence  of  their  personal  involvement  in  a  violation   of

Prentzel's  rights, and not simply evidence of  their  status  as

supervisors of Troopers Scott and Gilmore.  "A supervisor may  be

liable  under  1983 only if there exists either (1)  his  or  her

personal involvement in the constitutional deprivation, or (2)  a

sufficient  causal  connection between the supervisor's  wrongful

conduct and the constitutional violation."47  A sufficient showing

of  personal involvement could include demonstrating that Captain

Tanner  and  Colonel Godfrey "created a policy  or  custom  under

which   unconstitutional  practices  occurred,  or  allowed   the

continuance  of such a policy or custom,"48 or showed  deliberate

indifference in supervising Troopers Scott and Gilmore.49

          It  is not apparent from Prentzel's brief how he thinks

          Captain Tanner and Colonel Godfrey acted in their personal

capacities  in allegedly violating his federally created  rights.

The  amended  complaint and proposed second amended complaint  do

not  allow us to determine whether the actions of Captain  Tanner

and  Colonel  Godfrey were outside the scope  of  their  official

capacities,  and they do not permit us to ascertain the  possible

merits  of  Prentzel's claim.  But on remand Captain  Tanner  and

Colonel  Godfrey will be entitled to learn through discovery  how

Prentzel  believes  they violated his federally  created  rights.

Prentzel's responses may well make his  1983 claim vulnerable  to

an immunity defense on summary judgment.

     E.    We Do Not Reach Prentzel's "Bivens" Claim Because  the
Issue Is       Inadequately Briefed.
          Citing  Bivens v. Six Unknown Named Agents  of  Federal
Bureau of Narcotics,50 Prentzel urges us to "recognize a cause of
action arising directly under the Alaska Constitution" due to  "a
flagrant   violation  [for  which  Prentzel]  has  no   available
alternative  remedy."   The  state  defendants  argue  that   the
superior  court  "correctly found that  the  conduct  alleged  by
Prentzel was not a flagrant violation of Prentzel's rights,"  and
that  Prentzel's claims are "identical to those already  asserted
by Prentzel as common law torts."
          Prentzel  has  inadequately briefed this  issue.   Even
applying a more relaxed standard for a pro se appellant, we  will
not  consider  this  issue on appeal.51  We have  not  previously
decided  whether to recognize such a cause of action,52 and  this
case does not provide a suitable opportunity to do so.
IV.  CONCLUSION
          We  REVERSE  the  dismissal  of  Prentzel's  negligence
claims  against the state defendants and his  1983 claim  against
Troopers  Scott and Gilmore, Captain Tanner, and Colonel Godfrey,
and  REMAND for further proceedings.  We consequently also VACATE
the  superior  court's  award of attorney's  fees  to  the  state
defendants.  We AFFIRM the dismissal of Prentzel's damages  claim
alleging a violation of the Alaska Constitution.
_______________________________
     1     Because this appeal is taken from an Alaska Civil Rule
12(c)  dismissal, we read the facts alleged in the pleadings  and
the inferences to be drawn therefrom in a light most favorable to
the  non-movant.   Hebert  v. Honest Bingo,  18  P.3d  43,  46-47
(Alaska 2001).

     2     The  troopers  also  arrested Prentzel  for  resisting
arrest and possessing marijuana.

     3    Hebert, 18 P.3d at 46 (citing Noey v. Bledsoe, 978 P.2d
1264, 1271 n.19 (Alaska 1999)).

     4     Id. at 47 (citing CHARLES ALAN WRIGHT & ARTHUR MILLER,
FEDERAL PRACTICE & PROCEDURE  1368, at 527-28 (2d ed. 1990)).

     5    AS 12.25.030 addresses, among other things, grounds for
arrest  by  a  peace officer without a warrant.  At the  time  of
Prentzel's  arrest,  AS  12.25.030 did  not  include  arrest  for
violating the conditions of release from a DWI charge.

     6     The  rule states in part that "a party may  amend  the
party's pleading only by leave of court . . . and leave shall  be
freely given when justice so requires."  Alaska R. Civ. P. 15(a).

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

     8     Thompson's  Estate v. Mercedes-Benz,  Inc.,  514  P.2d
1269, 1271 (Alaska 1973) (citation omitted).

     9    Id.

     10     See Kleinhans v. Lisle Sav. Profit Sharing Trust, 810
F.2d  618,  627 (7th Cir. 1987) (affirming denial  of  motion  to
amend  ERISA  complaint  under Federal  Civil  Rule  15(a)  where
amendment  to  add  punitive damages  claim  would  be  fruitless
because statute did not permit recovery of punitive damages).

     11    Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 160
(Alaska 1987).

     12     Samaniego v. City of Kodiak, 2 P.3d 78, 83-84 (Alaska
2000)  ("[P]olice  officers, as municipal officers,  concurrently
enjoy  qualified  immunity for certain discretionary  actions.");
see  also  1  CIVIL  ACTIONS AGAINST STATE AND  LOCAL  GOVERNMENT
4.5,  at  308  (Shephard's Editorial Staff  eds.,  2d  ed.  1992)
("Generally speaking, absolute immunity applies only  to  judges,
legislators, and the highest executive officers of various levels
of state government[;] . . . other public officers are covered by
qualified immunity.").

     13     See  Aspen  Exploration, 739 P.2d  at  158  (citation
omitted) (explaining that allegations of malice generally  create
factual disputes precluding summary adjudication).

     14    Id. at 160 & n.24.

     15     Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250,  254
(Alaska  2000) (quoting D.S.W. v. Fairbanks N. Star Borough  Sch.
Dist., 628 P.2d 554, 555 (Alaska 1981)).

     16    See Hildebrandt v. City of Fairbanks, 863 P.2d 240, 245-
46  (Alaska  1993)  (remanding  1983 inadequate  police  training
claim  because  genuine issues of material fact preclude  summary
judgment).

     17    Guerrero, 6 P.3d at 255.

     18     Angnabooguk v. State, 26 P.3d 447, 452 & n.18 (Alaska
2001) (holding that internal rules and guidelines of state agency
do  not create duty of care);  Estate of Day v. Willis, 897  P.2d
78,  81  n.7  (Alaska 1995) (holding that internal administrative
and training manual used by police did not impose duty of care to
fleeing suspects).

     19      Our  decisions  addressing  duties  owed  by  public
officials  and  related immunity issues usually  do  not  involve
dismissals  at the pleadings stage.  Guerrero, 6 P.3d  at  261  &
n.77  (holding  that  dismissal  on  pleadings  on  discretionary
function   immunity   grounds  was  inappropriate).    See   also
Hildebrandt, 863 P.2d at 245 (holding that material fact relating
to  adequacy  of  supervision defeats summary judgment  on   1983
inadequate training claim).

     20    AS 09.50.250 provides in part:

          A  person  .  . . having a . . .  tort  claim
          against the state may bring an action against
          the   state  in  a  state  court   that   has
          jurisdiction over the claim. . .  .  However,
          an  action  may  not  be brought  under  this
          section if the claim
          (1)   .  .  . is an action for tort,  and  is
          based upon the exercise or performance or the
          failure    to   exercise   or    perform    a
          discretionary function or duty on the part of
          a  state agency or an employee of the  state,
          whether  or  not the discretion  involved  is
          abused . . . .
          
     21     E.g.,  Guerrero, 6 P.3d at 259; State v. Abbott,  498
P.2d  712,  721  (Alaska  1972) (adopting  "planning/operational"
approach).

     22    Guerrero, 6 P.3d at 259.

     23    Id. at 261.

     24       See    generally   id.   at   261-62    (discussing
planning/operational distinction); CIVIL ACTIONS   2.7,  at  113-
14,   2.10,  at  125-26  (same).  But  see  Biscoe  v.  Arlington
County,  738  F.2d  1352,  1363 (D.C. Cir.  1984)  (holding  that
supervising and instructing is operational, not planning).

     25    42 U.S.C.  1983 provides, in 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.
          
     26    Prentzel's proposed second amended complaint includes a
claim  against "Sergeant John Doe."  Because the parties  do  not
discuss  whether this unnamed officer may properly be a defendant
in this current action, we do not reach this issue.

     27    E.g., Haines v. Kerner, 404 U.S. 519, 520 (1972).

     28     The  parties  do  not brief the issue  of  injunctive
relief,  and  we  do not reach it.  We refer throughout  only  to
Prentzel's  1983 damages claim.

     29    Brown v. Ely, 14 P.3d 257, 259 (Alaska 2000).

     30     In  Will v. Michigan Department of State Police,  the
Supreme Court held that "neither a State nor its officials acting
in  their  official capacities are `persons' under   1983."   491
U.S.  58,  71  (1989).   The Court reasoned  that  damages  suits
against  officials in their official capacities are no  different
from  suits  against the state itself.  Id.  On the  other  hand,
suits  for  injunctive relief under  1983 may be brought  against
officials acting in their official capacities because " `official-
capacity  actions  for  prospective relief  are  not  treated  as
actions against the state.' "  Id. at n.10 (citation omitted).

     31    Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citation
omitted); see also Okwa v. Harper, 757 A.2d 118, 135 (Md. 2000).

     32     Biggs  v. Meadows, 66 F.3d 56, 61-62 (4th Cir.  1995)
(describing and adopting majority approach to determining  nature
of   1983  claim  when  plaintiff fails  to  specifically  allege
capacity).

     33    Kentucky, 473 U.S. at 166.

     34    Id.

     35     The  state  defendants add that  Troopers  Scott  and
Gilmore arrested Prentzel on only a single occasion.  Arrest on a
single  occasion  is  not  likely to  constitute  a  "custom"  or
"policy."  See 1 SHELDON NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES
LITIGATION  6:38, at 6-129 (4th ed. 1997) ("A single incident  of
police officer misconduct . . . is clearly not sufficient.").

     36     Kentucky, 473 U.S. at 166; see also Okwa, 757 A.2d at
135.

     37    Will, 491 U.S. at 71.

     38     We do not reach the issue whether Troopers Scott  and
Gilmore  are  entitled to qualified immunity  because  there  are
unresolved  factual  issues as to whether  they  acted  in  their
official or personal capacities.

     39     Harlow  v.  Fitzgerald, 457 U.S. 800, 817-18  &  n.30
(1982); see also Okwa, 757 A.2d at 138.

     40     Troopers Scott and Gilmore are entitled to protection
from  the   1983 claim on official immunity grounds if  they  can
establish  that  a  reasonable officer could have  believed  that
their conduct was lawful, even if it actually was not.  But as  a
pleading  matter Prentzel did not have to allege both that  their
conduct  was unlawful and that no reasonable officer  could  have
thought that it was lawful.

     41     To  survive  dismissal of  the   1983  claim  against
Captain  Tanner and Colonel Godfrey, the complaint must at  least
allege  training or supervision failures.  Meza v.  Lee,  699  F.
Supp. 325, 326-27 (D. Nev. 1987).  Prentzel's complaint satisfies
this  minimal  requirement by alleging that  Captain  Tanner  and
Colonel   Godfrey  negligently  failed  to  train  and  supervise
Troopers Scott and Gilmore.

     42    City of Canton v. Harris, 489 U.S. 378, 388 (1989); see
generally  NAHMOD,   6:33 to 6:37, at 6-117 to 6-129  (discussing
requirements for pleading custom).

     43    863 P.2d 240, 246 (Alaska 1993) (quoting City of Canton
v. Harris, 489 U.S. 378, 390 (1989)).

     44    Monell v. Dep't of Soc. Servs. of City of New York, 436
U.S.  658, 690 (1978) (holding that local governments may be sued
as   "persons"   under    1983  for  unconstitutional   policies,
practices, and customs); see also NAHMOD  6:5, at 6-15 to 6-19.

     45    Will, 491 U.S. at 65-66.

     46     Respondeat superior does not apply in  1983  actions.
Monell,  436 U.S. at 691; see also NAHMOD  3:91, at 3-246  to  3-
247.

     47    Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001).

     48     Colon  v. Coughlin, 58 F.3d 865, 873 (2d  Cir.  1995)
(citations omitted); see also NAHMOD  6:38, at 6-129 to 6-130.

     49    See City of Canton, 489 U.S. at 388.

     50    403 U.S. 388 (1971).

     51     Martinson  v. ARCO Alaska, Inc., 989  P.2d  733,  737
(Alaska 1999) (citation omitted).

     52    Brown, 14 P.3d at 261-62.