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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Carlson v. Renkes (06/03/2005) sp-5903

Carlson v. Renkes (06/03/2005) sp-5903

     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,


                              		)    Supreme Court No. S-11492
          Appellant,               	)
                              		)     Superior  Court  No.  3AN-03-12351 CI
     v.                       		)
                              		)    O P I N I O N
GREGG D. RENKES, Alaska       )
Attorney General; NANCY R.       )    [No. 5903 - June 3, 2005]
GORDON, Chief Assistant Attorney   )
General; MARC ANTRIM,         )
Commissioner, Alaska Department    )
of Corrections; and FRANK LUNA,    )
Warden, Correctional Corporation   )
of America, Florence Correctional  )
Center,                       		)
          Appellees.               	)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:   Russell D.  Carlson,  pro  se,
          Florence, Arizona.  John K. Bodick, Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for

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

          EASTAUGH, Justice.

          Russell  D.  Carlson filed a pro se  complaint  in  the

superior  court  alleging that his administrative  classification

hearing,  which  resulted  in  his  transfer  to  a  correctional

facility  in  Arizona, violated his right to  due  process.   The

superior court ruled that his complaint should have been filed as

an  administrative appeal and dismissed it as untimely.   Because

the  administrative agency did not adequately inform  Carlson  of

his  right to appeal his transfer, we vacate the order dismissing

the appeal and remand to the superior court for reinstatement  of

his appeal and for further proceedings.


     A.   Background

          In  July  2001  Russell Carlson pleaded no  contest  to

second  degree murder after a drunk driving accident resulted  in

the  death  of  another person.  He was sentenced  to  prison  in

November 2001.  He is scheduled for release in 2010.  In November

2001  the  Alaska  Department of Corrections  (DOC)  conducted  a

classification  hearing  for Carlson at the  Palmer  Correctional

Center.  Ruben A. Foster, a parole officer, conducted the hearing

and recommended that Carlsons custody be changed from maximum  to

medium;  he  also found that Carlson meets AZ [Arizona]  criteria

for  transfer  and  it  would  not  impede  his  rehab[ilitation]

efforts.    The   institutional   superintendent   approved   the

recommendation and the finding.

          Carlson  objected  to  being  transferred  to  Arizona,

citing separation from family, medical concerns, and a desire  to

participate in the Wildwood Correctional Center alcohol treatment

program.1   Bill  Parker,  Deputy  Commissioner  of  Corrections,

rejected  Carlsons  appeal  on  December  3,  2001.   The  deputy

commissioners letter stated that [t]he Department of  Corrections

remains overcrowded and we continue to send prisoners outside the

state  to reduce our prison population and informed Carlson  that

he  met  the  transfer criteria.  It also stated that the  deputy

          commissioner had found no procedural error regarding the

classification process and that he did not believe that  transfer

to [the Central Arizona Detention Center] would negatively impact

[Carlsons] rehabilitation.

          Carlson was then transferred to and now resides in  the

Central Arizona Detention Center.

     B.   Prior Proceedings

          Carlson filed a pro se complaint in the superior  court

on  October 10, 2003, alleging that his right to due process  was

violated  in the classification hearing.  In a pro se  memorandum

filed with his complaint, Carlson alleged that he was filing  the

complaint  as  a civil action under AS 09.19.100(1)  because  his

Individual  Fundamental Right of rehabilitation and  Due  Process

had  been  violated,  and  under AS 09.19.100(1)(B)  because  the

violation  relates to the plaintiffs status and  treatment  as  a

prisoner,  as  well  as to his constitutional  rights.   Carlsons

memorandum  also stated that [t]he [i]ssues plaintiff raises  are

(a) plaintiff was denied Due Process in the adjudicative phase of

the  classification hearing, [and] (b) plaintiff  and  plaintiffs

family were denied rehabilitative visitation privileges protected

by  Alaskas  Constitutional Article 112.   He  requested  a  jury

trial.   Carlson  also  asked  the  superior  court  to  issue  a

Reparative Injunction instructing DOC to return him to the Palmer

Correctional Center.2

          Carlson also sent a letter to DOC asking for a copy  of

the  tape  recording  of  his  classification  hearing.   He  was

informed by a prison staff member that the state no longer had  a

tape of his hearing.  Carlson filed a motion to compel production

of  the  tape; the superior court granted his motion on  February

20,  2004.   On March 4 the state sent Carlson a letter informing

him  that  a  tape of his classification hearing  was  no  longer


          The state moved for dismissal of Carlsons complaint for

failure to state a claim upon which relief could be granted.  The

          state argued that Carlson was required to bring his claim as an

administrative appeal and that he failed to file such  an  appeal

within  thirty days of the final agency decision.  Carlson argued

in   opposition  that  he  had  filed  a  civil  action,  not  an

administrative appeal.  The superior court denied the  motion  to

dismiss.  The state moved for reconsideration.

          Over  Carlsons  opposition, the superior court  granted

the  states reconsideration motion.  The order on reconsideration

held  that  this  case  is  an  administrative  appeal  and  that

plaintiff Carlsons failure to bring this appeal within the thirty

days  of the final agency decision under Appellate Rule 602(a)(2)

requires this case to be DISMISSED.

          Carlson then sought reconsideration, alleging that  the

superior  court did not consider (a) the due process  issue,  (b)

the deprivation of a liberty [interest], and (c) AS 09.19.100(1),

and  AS 09.19.100(1)(b).  Carlson also alleged that the court did

not  consider  whether the state had violated his  right  to  due

process  by  destroying  the tape of his classification  hearing,

thereby  denying him access to the evidence he sought to  present

to prove his case.

          The   superior   court  denied  Carlsons   motion   for

reconsideration.  Carlson appeals.


     A.   Standard of Review

          We  review  de  novo a superior courts dismissal  of  a

complaint for failure to state a claim upon which relief could be

granted.3  To survive an Alaska Civil Rule 12(b)(6) motion, it is

enough   that  the  complaint  set  forth  allegations  of   fact

consistent  with  and  appropriate to some enforceable  cause  of

action.4   We  review for abuse of discretion a  superior  courts

decision  to strictly enforce the thirty-day deadline for  filing

an administrative appeal under Alaska Appellate Rule 602(a)(2).5

     B.    The  Superior  Court Did Not Err by Treating  Carlsons
Complaint as        an Administrative Appeal.

          Carlson  argues  that  the  superior  court  erred   in

          characterizing his complaint as an administrative appeal rather

than a civil action under AS 09.19.100(1) and AS 09.19.100(1)(b).

          Alaska  Statute  09.19.100  is  part  of  Chapter   19,

entitled  Prisoner  and Correctional Facility Litigation  Against

the State, and provides in part:

          In this chapter,
          (1)  litigation  against the  state  means  a
          civil action or an appeal from a civil action
          or    from   the   final   decision   of   an
          administrative agency, a petition for review,
          a   petition   for   hearing,   an   original
          application  for  relief, or  another  action
          filed  under  the Alaska Rules  of  Appellate
          Procedure that
               (A)  involves the state, an  officer  or
          agent of the state, or a state employee, or a
          former officer or agent of the state or state
          employee,  regarding  conduct  that  occurred
          during  that  former  officers,  agents,   or
          employees state employment or agency, whether
          the officer, agent, or employee is sued in an
          official or a personal capacity; and
               (B)  is  related to a persons status  or
          treatment as a prisoner, to a criminal charge
          against  or involving the person,  or  to  an
          alleged     violation    of    the    persons
          constitutional rights . . . .
This statute does not create a cause of action; it merely defines

words  and  phrases used in the remainder of  the  chapter.   The

superior court did not err in rejecting Carlsons contention  that

his complaint asserted an independent action under this statute.

          The  superior  court treated Carlsons complaint  as  an

administrative  appeal.   A  number  of  Alaska  decisions   have

discussed when the superior court should convert an independently

filed  lawsuit  into  an  administrative  appeal.6   A  claim  is

functionally an administrative appeal if it requires the court to

consider  the propriety of an agency determination.7 A review  on

the  record, as distinct from the de novo reception of  evidence,

is a characteristic of appeals.8

          Most of Carlsons complaint asked the superior court  to

review  the procedure at his classification hearing to  determine

          whether it violated his right to due process.9  His complaint

alleged  that:   (1) he did not receive adequate  notice  of  the

classification hearing; (2) he was not informed of the agenda for

the  classification hearing; (3) the state did not inform him  of

the  opportunity to stay the transfer decision; (4)  he  was  not

informed   of   his   right  to  legal  assistance   during   his

classification  hearing; (5) he was not informed  that  he  could

request a twenty-day continuance to prepare for the hearing;  and

(6) his hearing was improperly conducted because he was judged by

only one person instead of a committee.

          DOC    classification   hearings    are    adjudicative

proceedings  and  a  classification  order  can  consequently  be

appealed to the superior court.10  Each of Carlsons allegations of

a  due  process violation required the superior court  to  review

DOCs  classification hearing.  The superior court did not err  by

treating Carlsons complaint as an administrative appeal.

     C.    It  Was  an  Abuse of Discretion To  Dismiss  Carlsons
Complaint as        Untimely.

          The superior court dismissed Carlsons complaint because

it  was  filed more than thirty days after the agency distributed

its final decision.

          [I]f  an  action in superior court seeks  to  review  a

prior  administrative decision, it must be treated as  an  appeal

fully  subject  to the appellate rules.11  Alaska Appellate  Rule

602(a)(2)  states that [a]n appeal may be taken to  the  superior

court from an administrative agency within 30 days from the  date

that   the   decision  appealed  from  is  mailed  or   otherwise

distributed  to  the  appellant.  Per that rule,  the  thirty-day

period  does  not  begin to run until the  agency  has  issued  a

decision that clearly states that it is a final decision and that

the   claimant   has   thirty  days  to   appeal.    [W]here   an

administrative agencys decision is communicated in a letter  that

fails  to do either of these things, it is an abuse of discretion

not to relax Rule 602(a)(2)s thirty-day appeal deadline.12

          Following his classification hearing, Carlson  appealed

          his  transfer to DOCs deputy commissioner.  The  deputy

commissioners  December 3, 2001 letter rejected Carlsons  appeal.

The  letter did not state that it was a final decision or  advise

Carlson of his right to appeal within thirty days.

          Carlsons thirty-day period for filing an administrative

appeal  has  therefore not begun to run.  It was consequently  an

abuse of discretion to dismiss his appeal as untimely.

     D.   The  Superior  Court  Should Try To  Recreate  Carlsons
          Administrative Record on Remand.
          After the superior court compelled the state to release

Carlsons classification hearing tape, the state notified  Carlson

that the tape was no longer available.  Carlson asserts that  the

states  inability to produce the tape violated Alaska Civil  Rule

26(a)(5),13  Civil Rule 26(b)(1),14 and 22 Alaska  Administrative

Code  (AAC)   05.216(b)(4).15  Carlson  claims  that  the  states

violation  of these provisions interfered with his right  to  due


          The loss of an administrative record is in itself not a

violation of due process.16  On remand, the superior court should

attempt   to  recreate  the  administrative  record  of  Carlsons

classification  hearing.  Alaska Appellate Rule 210(b)(8)  states

that when no electronic recording of the proceeding is available,

the  appellant  may  prepare  a  statement  of  the  evidence  of

proceedings   from  the  best  available  means,  including   the

appellants recollection.  Appellants statement should  be  served

on  the  appellees,  who  can  then  object  or  submit  proposed

amendments.17  Alaska Appellate Rule 210(i) grants  the  superior

court  the  discretion to settle any disagreement concerning  the

content  and form of the record.  Per that rule, if the  superior

court  cannot faithfully recreate the administrative  record,  it

should remand to DOC for recreation of the record.18


          We  VACATE  the  order dismissing Carlsons  appeal  and

REMAND for the reasons discussed above.19

     1     While he was housed at the Palmer Correctional Center,
a  patient care monitoring assessment was completed for  Carlson.
It  found  that  Carlson  met  the DSM-IV  criteria  for  alcohol
dependence and recommended that he complete a long-term level-3.5
residential  treatment  program, such as  the  RSAT  [residential
substance abuse treatment] program at Wildwood Corrections or  at
the Akeela Residential Treatment Program in Anchorage.

     2    Carlsons complaint sought relief in the following form:

          Reparative    Injunction,    An    injunction
          requiring  [defendants] to restore  plaintiff
          to   the  position  he  occupied  before  the
          [defendants]  committed  the  wrong   against
          plaintiff.  Plaintiff was incarcerated at the
          Palmer  Correctional  Center  prior  to  this
          wrong,  plaintiff  [requests]  this  type  of
          injunction with his family in mind as it  was
          relatively  easy  for  plaintiffs  family  to
          [travel]  to  Palmer  from  Anchorage   where
          plaintiffs family lives.
A  reparative  injunction is an equitable  remedy  that  order[s]
defendants not only to refrain from engaging in wrongful  conduct
in  the  future, but also to take actions that alleviate some  of
the  harm caused by their past conduct.  Rhonda Wasserman, Equity
Transformed:  Preliminary Injunctions to Require the  Payment  of
Money, 70 B.U. L. Rev. 623, 630 n.23 (1990).

     3     Valdez  Fisheries Dev. Assn, Inc. v. Alyeska  Pipeline
Serv. Co., 45 P.3d 657, 664 (Alaska 2002).

     4     Caudle  v.  Mendel, 994 P.2d 372,  374  (Alaska  1999)
(quoting  Kollodge  v.  State, 757  P.2d  1024,  1025-26  (Alaska

     5     Manning  v.  Alaska R.R. Corp., 853  P.2d  1120,  1124
(Alaska 1993).

     6     Kleven v. Yukon-Koyukuk Sch. Dist., 853 P.2d 518, 523-
24 (Alaska 1993) (affirming superior courts conversion of request
to  review  school  board  decision  to  administrative  appeal);
Diedrich v. City of Ketchikan, 805 P.2d 362, 365-66 (Alaska 1991)
(holding   superior  court  did  not  err  in  treating   lawsuit
challenging  utility  boards  decision  not  to  fund  plaintiffs
position  as administrative appeal); Dept of Corr. v. Kraus,  759
P.2d   539,  540  (Alaska  1988)  (holding  review  of   prisoner
disciplinary  proceedings  should be  brought  as  administrative
appeal);  Ballard  v.  Stich, 628 P.2d  918,  920  (Alaska  1981)
(affirming  dismissal  of  lawsuit  stemming  from  school  board
decision  as untimely administrative appeal); Owsichek v.  State,
Guide  License  &  Control Bd., 627 P.2d 616, 620  (Alaska  1981)
([W]hen  an action for injunctive relief seeks exactly  the  same
review  by  the superior court as could be had in an appeal  from
the  administrative order, the action should  be  treated  as  an
appeal.); Higgins v. Briggs, 876 P.2d 539, 542 (Alaska App. 1994)
(holding that request for review of lost good time credit  should
have been filed as administrative appeal).

     7     Haynes v. State, Commercial Fisheries Entry Commn, 746
P.2d 892, 893 (Alaska 1987).

     8    Kraus, 759 P.2d at 540.

     9     Carlson also argues that his constitutional  right  to
rehabilitation was violated because he was unable to  visit  with
his family after his transfer to Arizona. Because he alleges that
this  violation  resulted from a violation  of  his  due  process
rights during his classification hearing, the superior court  did
not err in classifying this argument as an administrative appeal.

     10     Brandon v. State, Dept of Corr., 938 P.2d 1029,  1033
(Alaska  1997)  (holding  that  prisoner  has  right  to   appeal
classification hearing decision because it affects constitutional
right to rehabilitation).

     11     FEDPAC Intl, Inc. v. State, Dept of Revenue, 646 P.2d
240, 241 (Alaska 1982).

     12    Skudrzyk v. Reynolds, 856 P.2d 462, 463 (Alaska 1993).

     13     Alaska  Civil Rule 26(a)(5) outlines the  methods  of
discovery, including production of documents.

     14    Alaska Civil Rule 26(b)(1) governs the scope and limits
of discovery and states:

          Parties  may  obtain discovery regarding  any
          matter,  not privileged which is relevant  to
          the  subject  matter involved in the  pending
          action,  whether it relates to the  claim  or
          defense of the party seeking discovery or  to
          the claim or defense of any other party . . .
          .    The  information  sought  need  not   be
          admissible  at  the trial if the  information
          sought appears reasonably calculated to  lead
          to the discovery of admissible evidence.
     15    22 AAC 05.216(b)(4) provides in part:

          (b)  The prisoner is entitled to at least  48
          hours   advance   written   notice    of    a
          classification  hearing.  The   notice   must
          inform the prisoner
          . . . .
               (4)  that, if the purpose of the hearing
          is  consideration of continued assignment  to
          administrative segregation, termination of  a
          furlough,    placement   in   a   psychiatric
          facility,  or transfer to a facility  outside
          of  Alaska, the hearing will be tape recorded
          and  kept in transcribable form for       (A)
          12  months  if the classification  action  is
          appealed  within the department;          (B)
          three  years if the classification action  is
          appealed  to  the  Superior  Court   or   the
          classification action resulted in a  transfer
          to   a   facility  outside  of   Alaska;   or
          (C)  30 days if the classification action  is
          not appealed . . . .
     16    John v. Baker, 30 P.3d 68, 74 (Alaska 2001) (rejecting
petitioners claim that tribal courts loss of case record violated
due process).

     17    Alaska R. App. P. 210(b)(8).

     18     John,  30  P.3d  at 78 n.40 ([T]he general  rule  for
records which are so incomplete as to preclude meaningful  review
calls  for remand to the factfinder.).  See also State,  Dept  of
Revenue v. Merriouns, 894 P.2d 623, 627 n.4 (Alaska 1995) ([W]hen
the  factual  record is incomplete or improperly  developed,  the
proper  course  is a remand to the factfinder, in this  case  the

     19    On remand, the superior court should advise Carlson on
the  appropriate  procedure for filing an administrative  appeal.
See  Sopko  v.  Dowell Schlumberger, Inc.,  21  P.3d  1265,  1273
(Alaska 2001) (noting that courts have limited duty to advise pro
se  litigants  of  procedural defects in pleadings);  Collins  v.
Arctic  Builders, 957 P.2d 980, 982 (Alaska 1998)  (holding  that
superior  court had duty to inform pro se litigant of  defect  in
notice of appeal and to provide opportunity to remedy).