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Midgett v. Cook Inlet Pretrial Facility (8/30/2002) sp-5620
Midgett v. Cook Inlet Pretrial Facility (8/30/2002) sp-5620
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
ABRAHAM L. MIDGETT, III, )
) Supreme Court No. S-9948
Appellant, )
) Superior Court No.
v. ) 3AN-98-11552 CI
)
COOK INLET PRE-TRIAL ) O P I N I O N
FACILITY, ALLAN TERREAULT, )
NATHANIEL SMITH, and LISATI ) [No. 5620 - August 30,
2002]
AUGAFA, )
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Rene J. Gonzalez, Judge.
Appearances: Abraham L. Midgett, III, pro
se, Estill, South Carolina. William F.
Morse, Assistant Attorney General, Anchorage,
and Bruce M. Botelho, Attorney General,
Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. While awaiting sentencing as a federal prisoner at Cook
Inlet Pretrial Facility, Abraham L. Midgett, III got into a fight
with another inmate. During the melee, Midgett broke his ankle.
He sued the state in federal court on various theories. After
failing to gain relief there, Midgett filed suit in superior
court alleging negligence, violations of his constitutional
rights, breach of contract, and medical malpractice. The
superior court ruled that Midgetts constitutional claims were
barred by collateral estoppel, granted summary judgment to the
state on his contract claims, dismissed his medical malpractice
claim, and found that Midgett did not carry his burden of proof
on his claim of negligence. Because the superior court did not
err in its determinations, we affirm.
II. FACTS AND PROCEEDINGS
A. The Fight
Abraham L. Midgett, III was a federal prisoner awaiting
sentence at Cook Inlet Pretrial Facility (Cook Inlet) in
Anchorage. Midgett was housed in the Bravo Module of Cook Inlet
and was the module worker, unlike the other module inmates who
were in administrative or disciplinary segregation. As the
module worker, Midgett had greater freedom and responsibilities
than the other Bravo inmates, including greater freedom of
movement, a hinged swinging door that locked by key, which
Midgett could lock and unlock himself, and the responsibility to
deliver food and other items to other inmates and to clean up the
common area.
On June 8, 1998 Officer Nathaniel Smith was the only
correctional officer in Bravo. Officer Smith observed Midgett
exchanging words with Inmate Kelly Smith (Inmate Smith) at Inmate
Smiths locked cell door. Midgett then reported to Officer Smith
that Inmate Smith spit on him. Thirty minutes after the
interaction between Midgett and Inmate Smith, it was Inmate
Smiths turn to be escorted to the showers.
Inmate Smith was classified as a maximum custody
prisoner who, by regulation, was required to be under the
supervision of two staff members and to wear handcuffs when he
was outside his cell. Before opening Inmate Smiths cell, Officer
Smith radioed for another officer. After Officer Lisati Augafa
entered Bravo, Inmate Smiths door was opened. Inmate Smith,
however, was not handcuffed, as required by Cook Inlets Standard
Operating Procedure, before his door was opened. When Inmate
Smith was taken out of his cell, Midgett was in his own cell, two
doors down from Inmate Smith on the first tier of the Bravo
module.
The trial court heard conflicting testimony about how
the fight between Inmate Smith and Midgett began. Midgett
testified that Inmate Smith was the aggressor, that Midgett acted
in self-defense, and that the fight was more of a wrestling
match. Officers Smith and Augafa testified that Midgett was the
aggressor, approaching Inmate Smith with a squeegee, a glass-
cleaning tool, that had been altered. Officer Smith testified
that Inmate Smith kicked Midgett in self-defense. Officer Smith
radioed for assistance because of the fight in Bravo. Both
officers testified that Inmate Smith broke away from Officer
Smith, ran upstairs, grabbed a broomstick, and was subdued before
he could reach Midgett.
B. The Injury
During the course of the fight, Midgett injured his
ankle. Midgett and another inmate testified that the injury
occurred when Officer Smith stepped on his ankle in the course of
trying to break up the fight. Midgett was eventually diagnosed
with a broken, though not displaced, ankle by Dr. Christopher
Horton, an orthopedic surgeon. Dr. Horton placed Midgetts ankle
into a soft air cast due to the lack of displacement and the
amount of swelling. Midgett was told not to place weight on the
ankle and to keep his leg elevated. Midgett did not follow this
advice, the fracture became displaced, and surgery became
necessary. On July 18, 1996 Midgett underwent surgery to repair
his now displaced ankle. Dr. Horton testified that the ankle had
healed after surgery as he expected it to and that he saw no
evidence of a permanent disability.
C. The Proceedings
Midgett filed suit in federal district court under 42
U.S.C. 1983, alleging that Officers Smith and Augafa used
excessive force in breaking up the fight, thereby violating the
Eighth Amendment and depriving Midgett of his civil and
constitutional rights under the Fourteenth Amendment. United
States District Court Judge James K. Singleton found that Midgett
did not have a constitutional claim and dismissed the case with
prejudice as to the constitutional claims. However, Judge
Singleton stated that the dismissal did not affect any actions
Midgett wished to bring in state court under Alaskas Tort Claims
Act.
Midgett filed suit against Cook Inlet, Officers Smith
and Augafa, and Allan Terreault, superintendent of Cook Inlet, in
state court. Midgett claimed that disregard of standard
operating procedures by Officers Smith and Augafa caused his
injury and amounted to constitutional violations under the Eighth
and Fourteenth Amendments. Concluding that Midgetts
constitutional claims were barred by collateral estoppel,
Superior Court Judge Rene J. Gonzalez dismissed those claims.
Judge Gonzalez allowed Midgett to amend his complaint to include
any state causes of action that he may have had against the
defendants.
Midgett then filed an amended complaint, apparently
claiming breach of contract, negligence, and violations of his
constitutional rights. Midgett also filed motions for the
appointment of counsel and to appear before the court during
trial, both of which Judge Gonzalez denied. The defendants moved
for partial summary judgment on Midgetts claims of breach of
contract, negligence, and a possible claim of medical
malpractice, noting that the constitutional claims had already
been adjudicated in federal court. Judge Gonzalez granted
summary judgment on the breach of contract claim. A court trial
ensued on the medical malpractice and negligence claims.
Judge Gonzalez issued his findings of fact and
conclusions of law on October 23, 2000. Judge Gonzalez found
that the evidence presented at trial did not support the medical
malpractice cause of action and dismissed it.1 On the negligence
cause of action, Judge Gonzalez found that Midgett failed to meet
his burden of proof by a preponderance of the evidence. Final
judgment was entered on Cook Inlets behalf on November 17.
Midgett appeals.
III. STANDARD OF REVIEW
Issues of collateral estoppel are questions of
law, which we review using our independent judgment.2 The
decision to appoint counsel for a civil litigant is a procedural
decision, which we review for abuse of discretion.3 Decisions
concerning the telephonic appearance of a party are also reviewed
for abuse of discretion.4 Reversal is warranted only if we are
left with a definite and firm conviction, after reviewing the
entire record, that a mistake has been made.5 We review a courts
factual findings under the clearly erroneous standard.6
We review a superior courts grant of summary judgment
de novo, drawing all reasonable factual inferences in favor of
the non-moving party and granting summary judgment where no
genuine issues of material fact exist and where the moving party
is entitled to judgment as a matter of law.7 When reviewing
questions of law, we apply our independent judgment and adopt the
rule of law that is most persuasive in light of precedent,
reason, and policy.8
IV. DISCUSSION
A. Midgetts Constitutional Claims Are Barred by
Collateral Estoppel.
Judge Gonzalez held that Midgetts constitutional claims
were barred by collateral estoppel, as they had already been
adjudicated and dismissed by the federal court. Midgett now
argues that his Eighth Amendment right to be free from cruel and
unusual punishment, his Fourteenth Amendment right to equal
protection, and a general right to due process were violated by
the officers at Cook Inlet.
We require four elements to be met before collateral
estoppel applies:
(1) the party against whom the preclusion is
employed was a party to or in privity with a
party to the first action; (2) the issue
precluded from relitigation is identical to
the issue decided in the first action; (3)
the issue was resolved in the first action by
a final judgment on the merits; and (4) the
determination of the issue was essential to
the final judgment.[9]
Midgett filed suit against Cook Inlet, Officers Smith
and Augafa, and Superintendent Terreault in federal court,10
apparently alleging violations of his Eighth and Fourteenth
Amendment rights, including (1) that the prison officials
handling of his broken ankle constituted a failure to attend to
serious medical needs; (2) that one of the officers stepping on
his ankle and breaking it constituted cruel and unusual
punishment; and (3) that the prison officials failed to exercise
the appropriate standard of care in protecting Midgett from
Inmate Smith and in this way violated the Eighth Amendment, made
applicable to the states by the Fourteenth Amendment.11
In granting summary judgment to Officer Smith, Judge
Singleton held that Midgett failed to raise a genuine issue of
material fact on his Eighth and Fourteenth Amendment claims. In
granting summary judgment to Officer Augafa and Superintendent
Terreault, Judge Singleton concluded (1) that there was no
evidence to support a finding that any official was deliberately
indifferent to Midgetts medical needs; (2) that even if the
evidence supported the argument that an officer stepped on
Midgetts ankle, such a finding would be insufficient to support a
finding of cruel and unusual punishment, as such an action would
only support an inference that the force was applied in good
faith while attempting to restore discipline; and (3) that the
situation did not present the type of conscious indifference the
U.S. Supreme Court required when imposing a duty on prison
officials to take reasonable measures to guarantee the safety of
inmates.
Midgetts claims in federal court satisfy the
requirements of collateral estoppel: (1) He was the plaintiff in
the federal action; (2) he brought Eighth and Fourteenth
Amendment claims in federal court; (3) the federal courts order
was a grant of summary judgment, a final judgment on the merits;
and (4) the determination of those constitutional claims were
essential to the judgment, as they were the basis of the
judgment. Given that Midgetts constitutional claims met the four
requirements of collateral estoppel, Judge Gonzalez did not err
in granting summary judgment to Cook Inlet.
Midgett also argues in his reply brief that his Fifth
and Sixth Amendment rights were violated in that he was not
granted a jury trial. He had not previously made this claim to
either the superior court or this court. As the issue was raised
for the first time in Midgetts reply brief, we need not consider
it.12
B. Midgett Was Not Entitled to Appointed Counsel.
In November 1999 Midgett moved for appointment of
counsel. Judge Gonzalez denied the motion, stating that the
courts authority to appoint counsel for pro se litigants was
limited to specific classes of cases within which Midgetts claim
did not fall. Midgett again asked for counsel to assist him in
taking depositions of several witnesses prior to trial. Judge
Gonzalez again denied Midgetts motion on grounds of timeliness,
as discovery had closed, and because of the previous denial of
Midgetts motion for counsel. Midgett now argues that he should
have been appointed counsel, as it is the only way for him to
obtain his right to due process.
While an indigent person does not have a right to
appointed counsel in most civil cases, we have allowed
appointment of counsel in certain civil cases or quasi-civil
proceedings by relying on the principles that justify appointment
of counsel in criminal proceedings.13 We have required
appointment of counsel in cases involving termination of parental
rights,14 child custody,15 paternity suits,16 and civil contempt
proceedings for nonpayment of child support.17
As Midgetts claim does not fall into one of the already
recognized exceptions for appointment of counsel in a civil
proceeding, we must determine whether Midgetts due process rights
were violated by the superior courts failure to appoint counsel.
We have adopted the balancing test used by the U.S. Supreme Court
in Mathews v. Eldridge18 to determine what process is due:19
Identification of the specific dictates of
due process generally involves consideration
of three distinct factors: the private
interest affected by the official action; the
risk of an erroneous deprivation of such
interest through the procedures used and the
probable value, if any, of additional or
substitute procedural safeguards; and
finally, the governments interest, including
the fiscal and administrative burdens that
additional or substitute procedural
requirements would entail.[20]
The private interest of a litigant in having counsel in
a tort case is not as strong as the interests involved in cases
where we have already afforded appointed counsel. While an
unlitigated tort claim is a species of property,21 it is not
nearly as compelling as the right to have children, the right to
custody of children, or the right to oppose the deprivation of
liberty. A claimants economic interest in recovering money
damages is not particularly compelling under Mathews v. Eldridge.
Morever, Midgett failed to make any case-specific showing of
exceptional circumstances warranting the appointment of counsel.
While Midgett would undoubtedly have had a better
chance with a lawyer, the failure of the superior court to
appoint counsel in his tort claim did not violate his due process
rights. The superior courts decision was not in error.
C. The Superior Court Did Not Err in Requiring Midgett To
Participate Telephonically and by Videotape.
Midgett requested that the court issue an order
that he be brought before the court for his trial from his
placement at the Federal Correctional Institution in South
Carolina. Judge Gonzalez denied Midgetts motion due to the cost
and inconvenience of transport, the potential danger and security
risk that would have to be guarded against, the fact that
Midgetts physical presence was not essential for a just
disposition, the fact that telephonic and videotaped
participation gave Midgett his right of access to the state
courts, and because delaying the trial until Midgetts release
from a 262-month sentence was not a viable option. Midgett now
appears to argue that the trial court erred in refusing to order
Midgetts transport.
We have not yet decided the extent to which an inmate
has the right to attend a civil trial in which that inmate is a
party and is not represented by counsel.22 Generally, a prisoner
has a due process right to reasonable access to the courts which
cannot be limited unless the states interests in security and
rehabilitation of prisoners cannot be protected by less
restrictive means.23 Courts in Alabama and Texas have held that
trial courts did not err in barring a prisoner from attending
future proceedings in tort cases in which that inmate was a
party.24
In other causes of action, many courts have held that a
trial court has the discretion to permit an inmate to be brought
before the court, taking into account the costs and inconvenience
of transporting a prisoner, the potential danger and security
risks, the need for an early determination of the matter, the
possibility of delay until the prisoner is released, and the
probability of success on the merits.25
Here, the trial court allowed Midgett to participate
telephonically, with his deposition taken by videotape. Alaska
Rule of Civil Procedure 99 authorizes telephonic participation in
cases where there is good cause and there is not substantial
prejudice to the parties.26 Here, good cause to allow Midgetts
telephonic participation existed: The cost of transporting
Midgett from his place of incarceration in South Carolina would
have included two round-trip tickets each for two state troopers
(one round-trip ticket to pick up Midgett and one round-trip
ticket to return Midgett to South Carolina), at a cost of $1,800
to $2,500 per ticket. Additionally, the time it would take to
transport Midgett would total twelve officer days. The trial
court found that the cost and inconvenience of transporting
Midgett were very substantial. Judge Gonzalez also found that
the presence of two court security personnel would be required at
all times in court and that delaying the trial until Midgett was
released from custody was not a viable option.
Judge Gonzalez found that allowing Midgett to
participate telephonically would not substantially prejudice his
claim. Judge Gonzalez found that Midgetts physical presence was
not essential for a just disposition where Midgett could
participate both through an audio-visual deposition and
telephonic participation at trial. Judge Gonzalezs disposition
of Midgetts request to be transported from South Carolina to
personally appear at trial was therefore not an abuse of
discretion.
D. The Superior Court Did Not Err in Finding Midgett Failed To
Meet His Burden in His Negligence Action.
Midgett argues that the trial court erred in finding
that he did not meet the burden of proof on his negligence claim.
Midgett also states that the officers deviation from the standard
operating procedures (SOPs) was evidence of negligence.
Midgett needed to prove that it was more likely than
not (1) that the defendants were negligent, (2) that the
negligence was a legal cause of Midgetts harm, and (3) that
Midgett was actually harmed. Judge Gonzalez found that, based on
evidence the court found credible, Midgett was the initial
aggressor in the confrontation between Midgett and Inmate Smith.
He also found that Midgetts injury was the foreseeable
consequence of his aggressive conduct and that there was no
evidence that the officers who separated the two inmates used a
degree of force beyond what was necessary to separate Midgett and
Inmate Smith.
Judge Gonzalez found the testimony of Officers Smith
and Augafa to be more credible than the testimony of Midgett and
other inmates. We give due regard to the opportunity of a trial
judge to weigh the credibility of witnesses.27 Officer Augafa
testified that Midgett, sounding angry and holding a squeegee,28
confronted Inmate Smith. Officer Augafa testified that he was
aware that some officers encourage inmates to fight but that did
not occur this time. Rather, Officer Augafa stated, Midgett
started the fight.
Officer Smith also testified that Midgett was the
aggressor. Officer Smith stated that Midgett rushed down towards
Inmate Smith when Inmate Smith exited his cell saying Come on,
and that Midgett was using the squeegee as a weapon, acting as
the aggressor during the incident.
Given the testimony of Officers Smith and Augafa and
the special ability of the trial court to judge the credibility
of the witnesses, the trial court did not err in finding that
Midgett failed to meet his burden in proving that the defendants
acted negligently.
Midgett also apparently argued that the officers
failure to handcuff Inmate Smith, a violation of Cook Inlets
SOPs, was negligence per se. But Judge Gonzalez correctly
observed that Midgett still had to show that the violation was
the legal cause of his injury. As Midgett failed to show the
causal connection between the violation of the procedures and his
injury, Judge Gonzalez found that Midgett did not meet his burden
of proof. Judge Gonzalez pointed to his finding that Midgett was
the aggressor in the action; therefore, if Inmate Smith had been
handcuffed, Judge Gonzalez found that Midgett would merely have
attacked someone who would have been unable to protect himself.
As Judge Gonzalezs finding that Midgett was the aggressor was not
clearly erroneous, he did not err in concluding that Midgett did
not carry his burden of proof on the negligence per se claim.
E. The Superior Court Did Not Err in Dismissing Midgetts Breach
of Contract Claim.
Midgett argues that the superior court erred in
dismissing his breach of contract claim, as an inmate has a right
to expect prison officials to follow the policies and regulations
of the prison. Judge Gonzalez held that [t]he evidence presented
at trial does not support a cognizable cause of action against
these defendants on the theor[y] of breach of contract . . .,
therefore [it is] dismissed. However, on the first day of trial,
Judge Gonzalez had granted summary judgment to the defendants on
the breach of contract claim. As Judge Gonzalez dismissed the
claim prior to the beginning of trial and did not hear any
evidence on it during trial, we read his findings and conclusions
as stating that the breach of contract claim was dismissed with
his grant of summary judgment to the defendants.
The parties acknowledged that Officers Smith and Augafa
did not follow Cook Inlets SOPs when they brought Inmate Smith
out of his cell. As the parties stipulated to not following this
SOP during litigation of the motions for summary judgment, Judge
Gonzalez only had to determine if the SOP constituted a contract
between Cook Inlet and Midgett. To establish the existence of a
contract, four elements must be shown: (1) an offer that
encompasses the agreements essential terms; (2) unequivocal
acceptance; (3) consideration; and (4) mutual intent to be bound.29
The SOPs promulgated by Cook Inlet do not constitute a
contract between Cook Inlet and Midgett. In 1990, the
Commissioner of the Department of Corrections established a
policy for SOPs.30 Under this policy, each correctional facility
develops and maintains its own SOPs in order to implement
Department of Corrections policies.31 Therefore the SOPs were
neither implemented after consultation with Midgett nor did
Midgett agree to their terms. Without an agreement and
acceptance between Cook Inlet and Midgett, there can be no
contract upon which Midgett can base a breach of contract claim.
Judge Gonzalez did not err in dismissing Midgetts breach of
contract claim.
F. The Superior Court Did Not Err in Dismissing Midgetts
Medical Malpractice Claim.
Midgett argues that the superior court erred in
dismissing his medical malpractice claim. Judge Gonzalez held
that in Midgetts amended complaint, Midgett asserted a cause of
action for medical malpractice. Judge Gonzalez stated that
because [t]he evidence presented at trial [did] not support a
cognizable cause of action against these defendants on that
theory, the claim was dismissed.
Given that there was substantial evidence adduced at
trial on Midgetts medical malpractice claim, Judge Gonzalezs
dismissal of it is best characterized as a finding that Midgett
failed to carry his statutory burden on the claim. Under AS
09.55.540, a plaintiff in a medical malpractice action must (1)
establish a standard of care, (2) show that the defendant failed
to exercise this standard of care, and (3) establish that the
failure was the proximate cause of the defendants injuries.32 We
have held that, where negligence is not evident to lay people,
the plaintiff in a medical malpractice action must present expert
testimony to establish the claim.33
The only medical testimony presented by Midgett at
trial was that of Dr. Christopher Horton, the orthopedist who
treated Midgett. Dr. Horton testified that the air cast Midgett
was initially fitted with immobilized his foot and that, with the
use of crutches, his fracture, which had not displaced, would
heal properly. Dr. Horton further testified that it was Midgetts
walking on his leg, against medical advice, that resulted in
Midgetts ankle requiring surgery. Dr. Horton testified on cross
examination by the state that, given the amount of swelling
around the ankle, the physicians assistants use of an air cast
was proper, as a hard cast could have caused permanent damage.
He also testified that Midgett told him he had been bearing
weight on his foot, against doctors orders. As Midgett did not
present any evidence showing that the air cast contributed to his
injury or to dispute the evidence that it was Midgetts walking on
his ankle that caused the more severe injury requiring surgery,
the superior court did not err in dismissing Midgetts claim for
medical malpractice.
V. CONCLUSION
Because the superior court did not err in any respect,
we AFFIRM the superior courts decision.
_______________________________
1 Judge Gonzalez also found the evidence insufficient on
the breach of contract claim and dismissed that claim; this was
the claim that had previously been dismissed on summary judgment.
2 Griswold v. City of Homer, 34 P.3d 1280, 1283 (Alaska
2001).
3 Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 254
(Alaska 2000).
4 Silvers v. Silvers, 999 P.2d 786, 789 (Alaska 2000).
5 Id.
6 Bennett v. Artus, 20 P.3d 560, 562 (Alaska 2001).
7 Wongittilin v. State, 36 P.3d 678, 680 (Alaska 2001)..
8 Id. at 680-81.
9 Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995)
(citing Johnson v. State, Dept of Fish & Game, 836 P.2d 896, 906
(Alaska 1991)).
10 It appears that Midgett filed suit against a number of
people in his first federal complaint. Service, however, was
only perfected against Officer Smith. Judge Singleton dismissed
the case against two individuals (Art Tyrol and Paoli-Paoli) that
are not identified anywhere else in the record. Judge Singleton
also dismissed the case against Cook Inlet, finding that it was
not a person under 42 U.S.C. 1983. Judge Singleton went on to
grant Officer Smith summary judgment, at which time Midgett may
have filed his amended complaint against Officer Augafa and
Superintendent Terreault.
11 These claims are taken from the federal courts orders
dismissing Midgetts claims.
12 Leuthe v. State, Commercial Fisheries Entry Commn, 20
P.3d 547, 552 n.23 (Alaska 2001).
13 Reynolds v. Kimmons, 569 P.2d 799, 801 (Alaska 1977).
14 V.F. v. State, 666 P.2d 42, 44-45 (Alaska 1983).
15 Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979).
16 Reynolds, 569 P.2d at 803.
17 Otton v. Zaborac, 525 P.2d 537, 538 (Alaska 1974).
18 424 U.S. 319 (1976).
19 In the Matter of K.L.J., 813 P.2d 276, 279 (Alaska
1991).
20 Id. (quoting Keyes v. Humana Hosp. Alaska, Inc., 750
P.2d 343, 353 (Alaska 1988)).
21 Patrick v. Lynden Transp., Inc., 765 P.2d 1375, 1378
(Alaska 1988).
22 We have held that due process requires a personal
hearing in administrative license-revocation proceedings where
testimonial credibility is at issue. Whitesides v. State, Dept
of Pub. Safety, Div. of Motor Vehicles, 20 P.3d 1130, 1139
(Alaska 2001). But Whitesides is distinguishable for three
reasons: First, unlike Whitesides, in which the state
affirmatively prosecuted an administrative action against a
private person, Midgett has elected to sue here, placing the
state in a purely defensive posture. Second, the state sought to
deprive Whitesides of a valuable license; Midgett, on the other
hand, simply asserts his economic interest in recovering money
damages. Third, Whitesides required the state to allow in-person
testimony in the absence of any case-specific circumstances
compelling telephonic proceedings. Here, by contrast, the state
has shown compelling and case-specific reasons for a telephonic
hearing: the extraordinary costs and security risk associated
with transporting an out-of-state prisoner to Alaska for trial.
23 Jay M. Zitter, Annotation, State Prisoners Right to
Personally Appear at Civil Trial to Which He Is a Party State
Court Cases, 82 A.L.R.4th 1063 (1990) (collection and discussion
of state cases in which courts have considered circumstances
under which prisoner in state institution has right to appear in
person at civil trial not arising out of incarceration where
prisoner is direct or named party).
24 Lightfoot v. McDonald, 587 So. 2d 936, 938 (Ala. 1991)
(holding that prisoners do not have right to attend proceedings
in civil actions initiated by them that are unrelated to their
confinement and that superior courts denial of prisoners request
to attend malpractice action initiated by him against attorney
who represented him in criminal prosecution was not abuse of
discretion); Brewer v. Taylor, 737 S.W.2d 421 (Tex. App. 1987)
(holding that inmate sentenced to life failed to satisfy burden
of showing why his personal appearance was justified to allow him
to personally appear in pro se malpractice action filed against
his criminal defense attorney where he was being held more than
eighty miles from district court and risks of him attending trial
were obvious and real).
25 Zitter, supra note 23, at 1068-73 (citing cases from
Arizona, California, Florida, Illinois, Louisiana, Michigan,
Missouri, Nebraska, New York, North Dakota, Ohio, Pennsylvania,
Tennessee, Washington, West Virginia, and Wisconsin).
26 Alaska R. Civ. P. 99(a) states, in part:
The court may allow one or more parties,
counsel, witnesses or the judge to
participate telephonically in any hearing or
deposition for good cause and in the absence
of substantial prejudice to opposing parties.
27 Barios v. Brooks Range Supply, Inc., 26 P.3d 1082, 1085
(Alaska 2001).
28 Following a disciplinary hearing concerning this
incident, the Disciplinary Committee indicated in its report that
Midgett was armed with an altered squeegee when he approached
Smith.
29 Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1167
(Alaska 1998).
30 Mathis v. Sauser, 942 P.2d 1117, 1123 (Alaska 1997).
31 Id.
32 AS 09.55.540(a) states:
In a malpractice action based on the
negligence or wilful misconduct of a health
care provider, the plaintiff has the burden
of proving by a preponderance of the evidence
(1) the degree of knowledge or skill
possessed or the degree of care ordinarily
exercised under the circumstances, at the
time of the act complained of, by health care
providers in the field or specialty in which
the defendant is practicing; (2) that
the defendant either lacked this degree of
knowledge or skill or failed to exercise this
degree of care; and (3) that as a
proximate result of this lack of knowledge or
skill or the failure to exercise this degree
of care the plaintiff suffered injuries that
would not otherwise have been incurred.
33 Kendall v. State, Div. of Corr., 692 P.2d 953, 955
(Alaska 1984) (citing Clary Ins. Agency v. Doyle, 620 P.2d 194,
200 (Alaska 1980)).
