Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
®, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Weber v. State (09/07/2007) sp-6157

Weber v. State (09/07/2007) sp-6157, 166 P3d 849

     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- 12270
Appellant, )
) Superior Court No.
v. ) 3AN-05-09463 CI
Appellees. ) No. 6157 - September 7, 2007
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Craig F. Stowers, Judge.

          Appearances:  Arno Weber, pro se,  Anchorage.
          David  D.  Floerchinger,  Assistant  Attorney
          General,  Anchorage, and  David  W.  M rquez,
          Attorney General, Juneau, for Appellees.

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

          CARPENETI, Justice.

          I.   This is the fourth iteration of a pro se prisoners
complaint against the state arising out of an incident  in  which
the  prisoner alleges that he was stabbed in the eye  by  another
inmate.   The  superior court determined that  the  prisoner  was
barred by res judicata from bringing the litigation.  Because res
judicata  applies  to the majority of the prisoners  claims,  and
because   his  new  claim,  which  sought  to  add  three   named
defendants, including two superior court judges and the assistant
attorney  general, is barred by judicial immunity and failure  to
state  a  claim, we affirm the superior courts dismissal  of  the
inmates complaint.
          Arno  Weber  claims that while he was  incarcerated  at
Cook  Inlet Pretrial Facility on May 20, 1998, he was stabbed  in
the  eye  by a fellow inmate.  In May 2001 Weber filed his  first
complaint1  involving this incident against  the  state  in  case
number 3AN-00-1295, seeking punitive and compensatory damages for
intentional  and negligent infliction of emotional  distress  and
permanent  physical  injury (first lawsuit). Shortly  thereafter,
Superior   Court  Judge  Peter  A.  Michalski  dismissed   Webers
complaint  on the grounds that it was filed beyond the applicable
two-year statute of limitations provided in AS 09.10.070(a)(2).
          Weber  appealed to this court.  We issued a  memorandum
opinion  and  judgment (MO&J) in May 2002 affirming the  superior
courts dismissal.2  We concluded that the superior court did  not
err  in  refusing  to apply the ten-year statute  of  limitations
provided  for  criminal prosecutions in AS  12.10.010  to  Webers
claim because he had filed a civil suit, and that the statute  of
limitations commenced on the date of Webers alleged injury.
          In  April  2004  Weber filed a second  complaint,  case
number 3AN-04-6659 (second lawsuit).  Weber alleged that his case
should  not be dismissed because he claimed he had been diagnosed
with schizophrenia, which tolled the statute of limitations under
AS  09.10.140(a).  In July 2004 Superior Court Judge  William  F.
Morse  dismissed the second lawsuit for failure to state a claim,
concluding that Weber had previously litigated the basic  assault
claim  (which  was resolved by judgment in the first  case),  and
that  [a]ny  additional claims to be found  were  barred  by  the
statute  of limitations.  Judge Morse rejected Webers claim  that
the  statute  of  limitations should be tolled.   Weber  did  not
appeal the dismissal.
          Weber  then  filed a third complaint in May 2005,  case
number 3AN-05-7937 (third lawsuit).  Judge Morse recognized  that
Webers  third complaint was identical to his second one   and  in
July  2005  dismissed  the  complaint on  the  grounds  that  the
litigation was barred as a result of the previous judgment.
          On  July  7, 2005, Weber then filed a fourth  complaint
which  is the underlying subject of this appeal (fourth lawsuit).
This  complaint  named  three additional  individual  defendants:
Judge  Michalski (who dismissed the first lawsuit),  Judge  Morse
(who  dismissed  the  second and third lawsuits),  and  Assistant
Attorney General Venable Vermont (who defended the state  in  the
first, second, and third lawsuits).  The state filed a motion  to
dismiss  pursuant  to  Alaska Civil Rule 12(b)(6).   After  Weber
filed  a  one-page document which he titled a motion for  summary
judgment  in October 2005, the state informed the court  that  no
response  was necessary to Webers motion and requested  that  the
court dismiss Webers claims.
          In  March  2006 Superior Court Judge Craig  F.  Stowers
rejected  Webers  motion for summary judgment,  dismissed  Webers
complaint  on the grounds of res judicata, and ordered  Weber  to
post  a  $5,000  bond with the clerk of court  in  the  event  he
attempted to file another complaint alleging injuries arising out
          of the stabbing incident.  A final judgment was entered by Judge
Stowers  on April 24, 2006.  Weber appeals the dismissal  of  his
          We  review  a  superior courts dismissal  under  Alaska
Civil  Rule 12(b)(6) de novo, deeming all facts in the  complaint
true  and provable.4  In order to survive a Rule 12(b)(6)  motion
to  dismiss, a complaint need only show a set of facts consistent
with and appropriate to some enforceable cause of action.5
          Whether   res  judicata  precludes  a  plaintiff   from
bringing an action is a question of law that we review de novo.6
          The  applicability and scope of immunity is a  question
of law to which we apply our independent judgment.7
     A.   Res  Judicata  Bars  Webers Claims  from  His  Previous
          Three  of Webers arguments on appeal attempt to  obtain
substantive review of the previous court orders dismissing Webers
prior lawsuits.  Weber contends on appeal that the superior court
erred in its most recent order by: (1) improperly dismissing  his
complaint  because  his  schizophrenia  tolled  the  statute   of
limitations; (2) disregarding AS 12.10.010 and refusing  to  find
that Weber was entitled to a ten-year statute of limitations; and
(3)  determining that the statute of limitations commenced on the
day of the stabbing.  Webers fourth allegation contends that even
if   his   complaint  was  untimely,  he  remains   entitled   to
compensation.  The state asserts that each of Webers  claims  was
properly dismissed on the grounds of res judicata.
          Once  a  judgment on the merits of an action  has  been
entered, res judicata applies to bar relitigation of later claims
between  the  same  parties on the claims that  could  have  been
brought in the first proceeding.8  Res judicata will apply to bar
a   subsequent   action  where:   (1)  a   court   of   competent
jurisdiction,  (2) has rendered a final judgment on  the  merits,
and  (3)  the  same  cause of action and same  parties  or  their
privies  were  involved in both suits.9  The doctrine  implements
the  generally recognized public policy that there must  be  some
final and conclusive end to litigation.10
          Weber  does not dispute on appeal that the courts  that
rendered  the previous judgments dismissing his prior  complaints
were  of  competent  jurisdiction, or that  the  courts  previous
rulings  on  the  issues are final judgments.  Moreover,  because
Webers  fourth  complaint is a near-verbatim  recitation  of  his
second  and  third complaints, the same cause(s) of  action  were
clearly  involved in both suits: indeed, Weber concedes that  the
complaint is identical because 95% of it has never been addressed
in open court  and states that he keeps filing the same complaint
because  they keep ignoring the claims.  Webers claims  are  thus
squarely barred by res judicata.11
          Webers  remaining argument on appeal is that he  should
be  compensated for damages even in the event that  his  suit  is
untimely.  He provides no legal basis or support for this  claim.
And  as noted above, res judicata precludes not only relitigation
          of claims raised in the first proceeding, but also claims arising
from the same transactions.12  A prior judgment extinguishes  all
claims including rights of the plaintiff to remedies against  the
defendant with respect to all or any part of the transaction .  .
. out of which the action arose.13  To the extent that there could
be  any  conceivable  legal basis for Webers  damages  claim,  it
clearly  arose  out  of  the  same  transaction  (Webers  alleged
stabbing) and is thus properly barred.
     B.   Webers New Claim Against the Three Named Defendants  Is
          Also Barred.
          Webers  fourth complaint is different in  two  material
respects  from  his  previous  three,  in  that  he  added  three
individually  named  defendants  Judge Michalski  (who  dismissed
Webers  first complaint), Judge Morse (who dismissed  the  second
and  third  complaints), and Assistant Attorney  General  Vermont
and  he  added a new claim.  Webers new claim, pertaining to  the
individual  named defendants, states: Defendants have engaged  in
obstruction  of justice.  Not only do they know about  the  crime
and  stubbornly  refuse to assist in its prosecution,  they  have
engaged  in  retribution against Plaintiff for trying  to  attain
basic,   fair   justice.   To  the  extent  that  Weber   alleges
obstruction of justice, this allegation may properly be construed
as  an  abuse of process claim.14  A party alleging an  abuse  of
process  claim  must prove that the defendant used legal  process
for an end other than that which it was designed to accomplish.15
          The  superior court dismissed Webers complaint  without
discussion of Webers new claim or the addition of the  three  new
named  defendants.  But because Webers new claim is barred  as  a
result  of judicial immunity and for failure to state a cause  of
action,  we  conclude  that the superior court  did  not  err  in
dismissing Webers fourth complaint.
          1.   Judicial immunity precludes Webers claims against Judge
               Morse and Judge Michalski.
          1.   Judicial immunity protects judges from liability for their
judicial  acts,  and hence a judge will only  be  liable  if  the
judges  actions were not judicial or were outside of  the  judges
subject  matter jurisdiction.16  No allegation was made,  nor  is
there  any  evidence  which would support  the  contention,  that
either judge acted outside of his judicial capacity in dismissing
Webers  complaints.  Indeed, the only action Weber  complains  of
pertains  to  the  judges substantive decisions  to  dismiss  his
complaints, decisions which are properly within the scope and are
a  routine  exercise  of  a  judges jurisdiction  and  authority.
Webers  claims  against  both  judges  are  therefore  barred  by
judicial   immunity.   Although  the  superior  court   did   not
explicitly base its decision on these grounds, we may  affirm  on
          2.   Webers claim against Assistant Attorney General Vermont is
               barred for failure to state a claim.
          Webers   abuse  of  process  claim  against   Assistant
Attorney General Vermont is also barred for failure to allege any
facts  that  would give rise to an abuse of process claim.18   An
          abuse of process claim requires two distinct elements: first, an
ulterior  purpose, and second, a willful act in the  use  of  the
process not proper in the regular conduct of the proceeding.19  In
other words:
          [A]n  action for abuse of process is intended
          to  prevent parties from using litigation  to
          pursue objectives other than those claimed in
          the suit, such as using a courts process as a
          weapon  to  compel another  party  to  pay  a
          different  debt  or to take  some  action  or
          refrain from it.  Thus the essence of a cause
          of   action  for  abuse  of  process   is   a
          perversion of the process to accomplish  some
          improper purpose.[20]
Weber,  however, points to no act to support his  claim,  instead
making a general allegation that defendants know about the  crime
and stubbornly refuse to assist in its prosecution, and that they
have  engaged in retribution against [Weber] for trying to attain
basic,  fair  justice.   The only willful  act  implicit  in  his
allegation  is the motion to dismiss Webers repeated  complaints.
But  in  Meidinger v. Koniag21 we held that actions taken in  the
regular  course of litigation . . . cannot be a proper basis  for
an  abuse of process claim.22  Vermonts action of filing a motion
to dismiss a complaint initiated by Weber is a routine step taken
in  the course of litigation and in no way can be construed as an
invalid  use  of  the  judicial  process.23   Webers  allegations
therefore fail to make out a cognizable abuse of process claim.24

          Because  the  superior court did not err in  dismissing
Webers  suit on grounds of res judicata, and because  Webers  new
claim  against the three individually named defendants is  barred
on  the  grounds of judicial immunity and for failure to state  a
claim upon which relief can be granted, we AFFIRM the dismissal.

     1     Webers initial attempt to file a complaint in December
2000 was rejected.

     2     Weber v. State, Mem. Op. & J. No. 1079 (Alaska May 29,
2002).  Webers first complaint is not included in the record, and
discussion of its contents is drawn from our May 2002 MO&J.

     3     Weber  declined to appeal the imposition of  a  $5,000
cost bond.

     4     McGrew v. State, Dept of Health & Social Servs.,  Div.
of  Family  &  Youth  Servs., 106 P.3d  319,  322  (Alaska  2005)
(internal quotation omitted).

     5    Odom v. Fairbanks Meml Hosp., 999 P.2d 123, 128 (Alaska
2000) (internal quotation omitted).

     6     Alaska  Wildlife Alliance v. State, 74 P.3d  201,  205
(Alaska 2003).

     7    Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 154
(Alaska 1987).

     8    Calhoun v. Greening, 636 P.2d 69, 72 (Alaska 1981).

     9    DeNardo v. Municipality of Anchorage, 775 P.2d 515, 517
(Alaska 1989).

     10     Nelson  v.  Jones, 787 P.2d 1031, 1033 (Alaska  1990)
(quotation omitted).

     11    As we explain below in Part IV. B., although Weber has
added  a  new claim to his fourth action that involves three  new
parties, namely an assistant attorney general and two new judges,
the  new  claim was properly dismissed on grounds other than  res

     12    White v. State, Dept of Natural Res., 14 P.3d 956, 959
(Alaska 2000).

     13     Nelson v. Jones, 787 P.2d 1031, 1033-34 (Alaska 1990)
(internal quotation omitted).

     14     DeNardo  v. Calista Corp., 111 P.3d 326, 331  (Alaska
2005)  (noting courts lenient interpretation of pro se  litigants

     15    W. Keeton & W. Prosser, The Law of Torts  121 (5th ed.
1984); see Kollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988).

     16     DeNardo v. Michalski, 811 P.2d 315, 316 (Alaska 1991)
(holding that only judicial actions taken in the clear absence of
all jurisdiction will deprive a judge of judicial immunity).

     17    This court can affirm a judgment on alternative grounds
not relied on by the superior court.  Marshall v. First Natl Bank
Alaska, 97 P.3d 830, 835 (Alaska 2004).

     18    We do not decide whether Webers abuse of process claim
is  barred  by claim preclusion or res judicata.  It  is  unclear
whether  Webers  abuse of process claim arose  out  of  the  same
transaction  as  Webers previous cause of action  or  whether  it
commenced only upon dismissal of his complaint(s).  See  Hall  v.
Tucker, 829 N.E.2d 1259, 1272 (Ohio App. 2005) (concluding  abuse
of  process claim not barred by claim preclusion because it arose
from  events  occurring during course of underlying  litigation);
Executive Mgmt., Ltd. v. Ticor Title Ins. Co., 963 P.2d 465,  478
(Nev.  1998) (holding claim preclusion to be inapplicable because
abuse  of  process  claim not necessarily and actually  litigated
during first proceeding).

     19     Kollodge v. State, 757 P.2d 1024, 1026 (Alaska  1988)
(internal quotations omitted).

     20     1  Am.  Jur. 2d Abuse of Process 1 (2005)  (footnotes

     21    31 P.3d 77 (Alaska 2001).

     22    Id. at 86.

     23     See Caudle v. Mendel, 994 P.2d 372, 376 (Alaska 1999)
(holding  that  filing interim motion to evict allegedly  abusive
spouse acceptable objective in divorce proceeding).

     24     See  Meidinger,  31 P.3d at 86 (holding  that  second
element contemplates some overt actand therefore the mere  filing
or  maintenance of a lawsuit - even for an improper  purpose   is
not a basis for an abuse of process action ) (quoting DeNardo  v.
Michalski, 811 P.2d 315, 317 (Alaska 1991)).

This site is possible because of the following site sponsors. Please support them with your business.
Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights