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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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
RUSSELL D. CARLSON, )
) 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
Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
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.
II. FACTS AND 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
available.
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.
III. DISCUSSION
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
process.
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
IV. CONCLUSION
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
1988)).
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
agency.).
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).
