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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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)).