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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Prentzel v. State, Dept. of Public Safety (09/14/2007) sp-6165

Prentzel v. State, Dept. of Public Safety (09/14/2007) sp-6165, 169 P3d 573

     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- 12031
Appellant, )
) Superior Court No. 4FA-99-2423 CI
v. )
SAFETY, TROOPER DANIEL ) No. 6165 September 14, 2007
Appellees. )
Appeal    from     the
          Superior Court of the State of Alaska, Fourth
          Judicial  District, Fairbanks, Mark I.  Wood,

          Appearances: H. Thompson Prentzel,  III,  pro
          se,    Fairbanks.   Venable   Vermont,   Jr.,
          Anchorage, and Mary Ann Lundquist, Fairbanks,
          Assistant  Attorneys General,  and  David  W.
          M rquez,   Attorney  General,   Juneau,   for

          Before:   Fabe,   Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.
          BRYNER, Justice.
          In  1998  Alaska  State Troopers arrested  H.  Thompson
Prentzel,  III,  without a warrant, for violating  conditions  of
release imposed under a DWI charge.  The troopers relied  on  the
Alaska Public Safety Information Network (APSIN) and records from
the  Fairbanks Correctional Center (FCC) in determining  that  he
was  subject  to  conditions. There were two problems  with  this
arrest.   First, it was not authorized by the warrantless  arrest
statute,  AS  12.25.030, which allowed arrests for violations  of
conditions of release for some charges, but not a charge of  DWI.
In  addition,  violation of conditions of  release  was  not  yet
specifically defined as a criminal offense; the legislature first
made  it  a  crime  when AS 11.56.757 went into effect  in  2000.
Second, Prentzel was not even subject to conditions of release at
the time of the arrest  he had pled no contest four days earlier.
These  APSIN  and FCC records had not been promptly updated  with
Prentzels  judgment.  Prentzel sued  the  State  of  Alaska,  the
arresting   troopers,  and  supervising  Alaska  State  Troopers,
asserting  state-law  tort claims and  violations  of  his  civil
rights  under  42 U.S.C.  1983.  In January 2005, Superior  Court
Judge  Mark  I.  Wood  granted summary  judgment  to  the  state.
Prentzel appeals.  We affirm in all respects but one, reversing a
portion of the attorneys fees awarded against Prentzel.
     A.   Facts
          Many  of  the relevant facts have previously  been  set
forth in Prentzel v. State, Department of Public Safety (Prentzel
I).1  In October 1998 Alaska State Troopers Daniel Scott and Dane
Gilmore  were  dispatched to the Blue Marlin Bar in Fairbanks  in
response  to  a reported disturbance.  Near the bar the  troopers
saw  Prentzel with a bottle of liquor; Prentzel appeared to  have
been  drinking.   The  troopers learned  Prentzels  identity  and
called  their  dispatcher, who informed them  that  Prentzel  was
currently  on  bail  release conditions for a  recent  charge  of
driving while intoxicated (DWI) and that his conditions precluded
him  from  possessing alcohol.  The dispatchers information  came
from  the  computerized  records  in  the  Alaska  Public  Safety
Information Network (APSIN).
          Troopers  Scott  and Gilmore asked  the  dispatcher  to
confirm   this   information  by  checking  with  the   Fairbanks
Correctional  Center  (FCC).   FCC  confirmed  the  bail  release
conditions  of no consumption and no possession of alcohol.   The
troopers then asked the dispatcher for a consultation with Alaska
State  Trooper  Sergeant  John  Papasodora.  Sergeant  Papasodora
reviewed the APSIN records, noted the FCCs confirmation of  those
records,  and  directed  them to arrest  Prentzel  for  violating
conditions of release.
          As   it  turned  out,  Prentzel  was  no  longer  under
conditions of release because four days before the arrest he  had
pled  no  contest  to  the  DWI charge.   The  judgment  was  not
distributed  by  the  court until six days after  his  arrest  by
Troopers Scott and Gilmore.
          In  October 1999 Prentzel filed a civil action  against
the  Alaska  Department  of  Public Safety,  Troopers  Scott  and
          Gilmore, Captain Warren Tanner, and Colonel Glenn Godfrey2
alleging  false arrest, false imprisonment, trespass to chattels,
conversion,  and  negligence.3  The state defendants  denied  the
allegations and the state filed an Alaska Civil Rule 12(c) motion
for  judgment  on  the pleadings.  Prentzel moved  to  amend  his
complaint to claim civil rights violations under 42 U.S.C.  1983,
attorneys fees under 42 U.S.C.  1988, and civil rights violations
under   the  Alaska  Constitution.   Prentzel  later  moved   for
permission  to  file  a second amended complaint  to  add  claims
against  an  unknown Sergeant John Doe, and to  allege  that  the
defendants  actions were willful and malicious.  Soon after,  the
superior court granted the state defendants motion to dismiss the
amended  complaint  and ruled that the second  amended  complaint
would not change the outcome of its ruling.
          Prentzel  appealed.   We  reversed  the  dismissal   of
Prentzels negligence claims against the state defendants and  his
1983  claim  against Troopers Scott and Gilmore, Captain  Tanner,
and  Colonel  Godfrey.4  We ruled that Prentzels  claims  against
Troopers  Gilmore  and  Scott were improperly  dismissed  on  the
ground  of official immunity because the troopers would  only  be
entitled  to  qualified immunity.5  We noted  that  Prentzel  had
responded to the qualified immunity defense by alleging that  the
troopers  acted with malice  a factual question not suitable  for
disposition  on  the  pleadings.  We  also  held  that  Prentzels
negligence  claims  against the troopers and Captain  Tanner  and
Colonel  Godfrey were improperly dismissed because the  pleadings
did  not  rule  out  the  possibility of  actionable  claims  for
negligent  training and supervision.6  We further held  that  any
defect  in Prentzels pleadings did not require dismissal  of  the
1983 claims against the individually named officers and troopers.7
Last,  we  affirmed  the dismissal of Prentzels  claim  based  on
alleged  violations of the Alaska Constitution because the  issue
was inadequately briefed.8
     B.   Proceedings After Remand
          Following remand, trial was scheduled for the  week  of
December  1, 2003. In a pretrial order dated November  25,  2002,
the  superior  court ordered that motions to amend the  pleadings
were due by February 24, 2003 and dispositive motions were due by
August  1,  2003.   In  November  2003  Prentzel  moved   for   a
continuance of trial because he did not have sufficient funds  to
conduct  discovery.  The superior court granted  the  motion  and
continued  the  trial  to  the week of September  13,  2004.   On
November  25, 2003, the superior court informed Prentzel  on  the
record   that  no  further  amendments  to  the  pleadings   were
authorized  and dispositive motions were due by July 2,  2004;  a
pretrial   order   dated  December  16,  2003,  confirmed   these
          In  spite of the courts pretrial order, Prentzel  moved
to  amend his complaint in June 2004.  He sought to name Sergeant
John  Papasodora in place of Sergeant John Doe and  attempted  to
clarify  that  he  was  suing the troopers  in  their  individual
capacities for money damages.  In addition, Prentzel proposed  to
add  a  claim  that  the Alaska State Troopers  are  deliberately
indifferent to the inevitable false arrest of persons whose  bail
          has been exonerated for violation of bail conditions of release.
The  court  granted Prentzels motion, and the state answered  the
third amended complaint on August 19, 2004.
          Meanwhile,  the  state had filed a motion  for  summary
judgment  on  July  2, 2004, the deadline for filing  dispositive
motions.  On August 5 Prentzel indicated that he was not prepared
for  trial and requested another continuance. The superior  court
granted the request and set the trial for the week of January 17,
          The  court  further  specified that amendments  to  the
pleadings were due by September 20, 2004, and dispositive motions
were  due by October 4, 2004.  The court also gave Prentzel until
September 24, 2004, to file his opposition to the states  summary
judgment motion.
          Prentzel  failed  to  respond to the  summary  judgment
motion  and  filed  no  other pleadings by these  newly  extended
deadlines.   He also failed to appear on November  9,  2004,  for
oral argument on the summary judgment motion.
          The  next  day, the superior court issued a  notice  of
intent  to grant the troopers motion for summary judgment  unless
Prentzel  filed a responsive pleading by November 24,  2004.   On
November  23, 2004, Prentzel filed a motion for summary judgment;
a  motion for extensions of time to oppose the defendants  motion
for  summary  judgment  and to file his own  motion  for  summary
judgment;  a motion for a permanent injunction; and a  motion  to
file a fourth amended complaint to include a contingent cause  of
action  based  on an alleged violation of the Alaska Constitution
that  he  could  pursue  if  his  other  causes  of  action  were
          The  state moved to dismiss Prentzels complaint and  to
strike  his   November  23  motions.  It  argued  that  Prentzels
pleadings  contained  nothing  that  amounts  to  a  response  or
opposition  to  the  defendants motion for summary  judgment.  It
further  contended  that many of Prentzels requests  were  simply
untimely  and  without good cause.  Prentzel opposed  the  states
motion,  countering  that his motions were  responsive  pleadings
within  the  intention,  if  not  the  letter,  of  the  [c]ourts
November 12, 2004 Order.
     C.   The Superior Courts Orders
          1.   Order  granting  summary  judgment  to  the  state
          The superior court granted summary judgment in favor of
the state defendants.  The court first determined that the state,
Troopers  Scott and Gilmore, Captain Tanner, and Colonel  Godfrey
were  immune  in their official capacities from false-arrest  and
false-imprisonment claims.  The court relied on  AS  09.50.250(1)
in  determining  that  the  individually  named  defendants  were
statutorily immune in their official capacities from claims based
on  the  exercise or performance of a discretionary  function  or
duty, regardless of whether they abused their discretion.9
          The  court  also ruled that Troopers Scott and  Gilmore
were  immune  from suit even though they admittedly misunderstood
the  law  by  failing  to recognize that  AS  12.25.030  did  not
authorize  warrantless arrests for violations of misdemeanor  DWI
          bail conditions.  It reasoned that Troopers Scott and Gilmore
were  entitled  to qualified immunity unless their  actions  were
corrupt,  malicious or otherwise taken in bad  faith.  The  court
reviewed  the affidavits of Prentzel, Troopers Scott and Gilmore,
Sergeant  Papasodora,  and Captain Tanner  to  determine  if  any
evidence  suggesting malice in the arrest of  Prentzel  had  been
presented.  It found no evidence of malice.
          The  court  next determined whether Troopers Scott  and
Gilmore  were entitled to official immunity from Prentzels   1983
claims, using the framework for official immunity we set  out  in
Prentzel  I.10  The court looked at the troopers affidavits:  the
troopers  believed that Prentzel was violating the law  in  their
presence;  they  consulted with APSIN and the FCC records,  which
confirmed  that Prentzel was committing an offense they  believed
to  be  subject to a warrantless arrest; they checked with  their
sergeant who directed them to arrest Prentzel; and they  knew  of
no  unlawful customs or policies directed against Prentzel.   The
court concluded that it was apparent that a reasonable officer in
the same circumstances would have concluded that it was proper to
arrest  Prentzel, so Troopers Scott and Gilmore were entitled  to
official immunity protection from the  1983 claims.
          The  court similarly concluded that Colonel Godfrey and
Captain  Tanner were entitled to official immunity on  the   1983
claim.   The court observed that because supervision and training
of  troopers  are official conduct of supervising officers,  this
conduct  was  covered  by  immunity under  AS  09.50.250(1).   In
addition,  the  court  stated  that Captain  Tanner  and  Colonel
Godfrey were immune from the claims of negligent supervision  and
training because they could not be held liable for immune conduct
of  other  troopers.   The  court also noted  that  even  without
official immunity, the state and the individual defendants  would
not be liable, because [t]he State does not owe a duty of care to
proceed without error in bringing legal action against a citizen.
          Finally,  the court determined that Captain Tanner  and
Colonel Godfrey were entitled to official immunity from Prentzels
 1983 claim alleging that, while acting outside of their official
capacities,  they  had adopted customs and policies  directed  at
violating Prentzels civil rights.
          2.   Order regarding miscellaneous motions
          In  a  separate Order Regarding Miscellaneous  Motions,
the  superior  court clarified some of the reasoning  behind  its
order  granting  summary  judgment; it also  ruled  on  Prentzels
recent  motions.   The  court stated that  it  treated  Prentzels
November  23, 2004 motion for summary judgment as his  opposition
to the states motion for summary judgment.  It struck as untimely
Prentzels  motion  to  amend his complaint;  it  also  struck  as
untimely his motion for summary judgment but specified that  this
ruling   applied  only  to  the  extent  that  the   motion   was
unresponsive to the states summary judgment motion and raised new
matters beyond the third amended complaint.
          The  court supported this decision by listing the  many
continuances Prentzel received and the numerous filing  deadlines
he missed:
          While  the  court  has  considered  Prentzels
          Motion  for  Summary Judgment as a responsive
          pleading in opposition to the States  motion,
          [it]  will not allow a dispositive motion  on
          the  eve of trial where three deadlines [had]
          been ignored by Prentzel, nor will [it] allow
          a  motion to amend the complaint filed on the
          eve of trial that raises new issues requiring
          additional discovery and the continuance  yet
          again of this trial.
          The  court further explained that it had given Prentzel
every  opportunity to litigate his claims.  But  the  rules  have
been relaxed long enough.  While acknowledging that striking  the
late-filed  pleadings was indeed a sanction, the court emphasized
that  it  was not a litigation-ending sanction.  Rather,  in  the
courts  view  the  litigation ended because of the  courts  order
granting the states summary judgment motion on its merit.
          The court later found that the state was the prevailing
party  and awarded attorneys fees totaling $13,662.02 under Civil
Rules 68 and 82.
          The  court then issued an Amended Final Judgment.   The
judgment listed each defendant by name and declared that judgment
was  entered  in  the  defendants favor.  The  listed  defendants
included Sergeant Papasodora, who had not been expressly  granted
immunity  in the superior courts order granting summary  judgment
to the state defendants.
          Prentzel appeals.
     A.   The States Motion for Summary Judgment
          1.    Proper  standard for deciding motion for  summary
          We  independently  review  an  order  granting  summary
judgment,  determining whether there are any  genuine  issues  of
material  fact  and  whether  the moving  party  is  entitled  to
judgment as a matter of law.11  We consider the entire record  in
the light most favorable to the non-moving party.12  We have held:
          The  moving  party has the entire  burden  of
          proving   that  it  is  entitled  to  summary
          judgment.   That is, unless the moving  party
          points  to  undisputed  facts  or  admissible
          evidence  establishing  a  prima  facie  case
          entitling it to summary judgment as a  matter
          of  law, the opposing party has no obligation
          to   produce  evidence  supporting  its   own
          Prentzel  argues  that the superior  court  applied  an
improper standard when considering the states motion for  summary
judgment because it failed to look at all of the arguments in his
motion for summary judgment.  But the trial court is not bound by
the  formal issues framed in the pleadings when deciding a motion
for  summary judgment under Rule 56; instead, as we explained  in
Jennings v. State,
          the  court must consider the issues presented
          by  the other material offered by the parties
          on  the motion to determine whether the  Rule
          56 request should be granted.  Thus the court
          will  examine the pleadings to ascertain what
          issues of fact they present and then consider
          the   affidavits,  depositions,   admissions,
          answers   to   interrogatories  and   similar
          material  to determine whether any  of  these
          issues  are real and genuine and whether  any
          of  the  post-pleading material suggests  the
          existence of any other triable genuine issues
          of material fact.[14]
          Prentzel  claims  that the superior  court  abused  its
discretion  under Jennings because it failed to consider  two  of
his  arguments: that the supervising officers violated   1983  by
being  deliberately indifferent to the rights of persons recently
exonerated from bail conditions to be free from wrongful  arrest;
and  that  the  state  failed to inform  state  troopers  of  the
temporal  gap  that existed between actual court dispositions  of
criminal  cases  and  the  information  contained  in  the  APSIN
computer database and FCC records.
          But while the superior court did not explicitly address
these  arguments,  it  had no duty to fully explain  its  summary
judgment decision.  Because summary judgment rulings resolve pure
questions of law and are subject to independent review  based  on
the  entire  trial  court  record,  the  Alaska  Rules  of  Civil
Procedure do not require rulings on motions for summary  judgment
to  include findings of fact or conclusions of law.15   Here,  we
find no indication that the superior court failed to fulfill  its
duty  to  go outside the pleadings to consider the entire setting
of  the  case to the extent that the material was brought to  the
courts  attention by the parties on the motion.16  Moreover,  the
court  stated  that  it considered Prentzels motion  for  summary
judgment as an opposition to the states motion to the extent that
it  was  responsive; it also referred to Prentzels affidavit  and
memorandum of law in its order granting summary judgment.
          The  court  further  made it clear that  it  would  not
permit  Prentzel  to raise new issues on the eve  of  trial  that
might  require more delay.  Prentzels untimely motion for summary
judgment and fourth amended complaint were the first pleadings in
which  he  asserted a claim that the state failed  to  adequately
train  and warn officers about delays in entering information  on
APSIN  and  at  FCC.   In  support of  this  new  allegation,  he
submitted  copies of notices of dismissal from  his  own  various
arrests as well as deposition testimony of the troopers.  Because
this new evidence was untimely and could easily have resulted  in
delaying  discovery and trial, the court could  justifiably  have
declined to consider it in ruling on the pending summary judgment
          2.   Claims  against  Troopers Scott  and  Gilmore  and
               Sergeant Papasodora
               a.   False  arrest/false imprisonment and trespass
                    to chattels claims
          Prentzel  argues  that the superior court  should  have
          granted summary judgment to him on his claims of false arrest17
and trespass to chattels against his arresting officers  Troopers
Daniel  Scott  and Dane Gilmore and Sergeant John Papasodora.   A
claim of false arrest is established by showing a restraint  upon
the plaintiffs freedom without proper legal authority.18  Prentzel
insists that this claim has been established; he points out  that
the  troopers arrested him without a warrant and claims that they
lacked  authority to make the arrest because a warrantless arrest
was not authorized by statute and his conduct did not amount to a
crime.   Trespass to chattels is a lesser form of conversion:  it
can  be committed when a party intentionally dispossesses another
of the chattel or intentionally uses or interferes with a chattel
in anothers possession.19  Prentzel argues that because the arrest
was  unlawful,  seizing  his  property  incident  to  the  arrest
necessarily  violated  the  law  and  resulted  in   a   tortious
deprivation of his property.
          The  state  responds that the troopers are entitled  to
qualified  immunity  because  governmental  immunity  applies  to
situations where state officials misinterpret the law and because
the  record  demonstrated  that  the  troopers  acted  reasonably
without  malice.    The  state points to the three-step  immunity
analysis set out in Aspen Exploration Corp. v. Sheffield,20 which
the superior court applied on remand following Prentzel I.
          As we later summarized it in Alpine Industries, Inc. v.
Feyk,21 the Aspen test for official immunity from a state-law tort
claim asks three questions:
          First, does the doctrine of official immunity
          apply   to   the  state  officials   conduct?
          Second,  if  it does apply, is  the  immunity
          absolute or qualified?  And third, if  it  is
          only  a  qualified immunity,  did  the  state
          official  act corruptly, maliciously,  or  in
          bad faith?[22]
Below,  we  consider each of these questions  as  they  apply  to
Prentzels case.

                    (1)  Does  the  doctrine of official immunity
                         apply to the troopers conduct?
          In  answering the Aspen tests first question, we stated
in  Alpine  Industries  that  official  immunity  applies  to  an
officials  conduct if (1) it is within the scope of the officials
authority, and (2) it is a discretionary act.23  Prentzel  argues
that  these  requirements are absent here because his arrest  was
for  a  nonexistent  offense; he reasons  that  his  arrest  thus
exceeded  the troopers authority and that the troopers could  not
have had any discretion to decide that probable cause existed for
non-existing crimes.
          The  state responds that making an arrest is within the
scope  of a troopers authority, even if that authority is  abused
because  an abuse of authority is not synonymous with a  lack  of
authority.24   The state points to Aspen, where the governor  was
alleged to have made defamatory statements in connection  with  a
matter of public debate.25  We stated that the critical inquiry is
          not whether the governor is authorized to make defamatory
remarks,  but  whether  he has the authority  to  engage  in  the
underlying conduct out of which the alleged defamation  arises.26
We  held  that  it  was certainly within the governors  scope  of
authority to make statements on matters of public interest.27  The
state  argues, similarly, that making arrests is certainly within
the  scope of authority of the state troopers.  The state  relies
on  AS 18.65.080, which provides that a peace officer may make an
arrest  without  a  warrant for a violation of law  committed  in
the[ir] presence.28  Likewise, seizing contraband or other  items
found  on  an  arrestee  falls within the scope  of  an  officers
authority when making an arrest: Search [and seizure] incident to
lawful  arrest allows the warrantless search of the area   within
[the  arrestees] immediate control at the time of the  arrest  to
ensure  officer  safety and to preserve evidence related  to  the
          We  agree  that  making  arrests and  seizing  property
incident  to  arrests is conduct that falls within  the  troopers
usual  authority.  The legislature had already determined  before
Prentzels arrest that officers could make warrantless arrests for
certain violations of conditions of release.  The relevant  parts
of AS 12.25.030 provided that:
          (b)  In addition to the authority granted  by
          (a) of this section, a peace officer
          . . . .
          (2)  without a warrant may arrest a person if
          the officer has probable cause to believe the
          person has, either in or outside the presence
          of the officer,
          . . . .

          (C)   violated a condition of release imposed
          under AS 12.30.025[30] or 12.30.027;[31]
          (3)   without a warrant may arrest  a  person
          when  the peace officer has reasonable  cause
          for believing that the person has
          (A)   committed  a  crime under  or  violated
          conditions  imposed as part  of  the  persons
          release  before trial on misdemeanor  charges
          brought under AS 11.41.270[.][32]
          The   troopers   decision  to  arrest   Prentzel   thus
demonstrated their  misunderstanding of the specific conduct  the
legislature  had  included  in AS 12.25.030.   The  troopers  all
testified  that they simply believed that Prentzel was  violating
the law. We noted in Aspen that
          to separate the activity that constitutes the
          wrong   from  its  surrounding  context    an
          otherwise proper exercise of authority  would
          effectively emasculate the immunity  defense.
          Once  tortious  acts  are  excluded  from  an
          exercise   of   authority,   only   innocuous
          activity  remains to which immunity would  be
          available.   Thus,  the defense  would  apply
          only  to  conduct for which it would  not  be
In  other words, if immunity only applied to the troopers conduct
when  they correctly interpreted the law of arrest, the  immunity
defense would never be needed.
                    (2)  Does   absolute  or  qualified  immunity
                         apply to the troopers conduct?
          The  second question of the Aspen test asks whether the
immunity should be absolute or qualified.34  The state argues that
the troopers are entitled to qualified immunity.
          To  determine whether immunity is absolute or qualified
we must balance three factors:
          (1)    The  nature  and  importance  of   the
          function  that the officer performed  to  the
          administration   of  government   (i.e.   the
          importance  to the public that this  function
          be performed; that it be performed correctly;
          that  it  be performed according to the  best
          judgment   of   the  officer  unimpaired   by
          extraneous matters);
          (2)  The likelihood that the officer will  be
          subjected to frequent accusations of wrongful
          motives and how easily the officer can defend
          against these allegations; and
          (3)  The availability to the injured party of
          other remedies or other forms of relief (i.e.
          whether  the  injured party can  obtain  some
          other   kind  of  judicial  review   of   the
          correctness  or  validity  of  the   officers
          On  balance,  we  agree that qualified immunity  rather
than  absolute immunity should apply to the conduct at issue here
the discretionary act of making arrests and seizing contraband in
the course of arrest.36
          First,  as  the superior court put it, it is  of  great
societal  importance  that  officers be  able  to  perform  their
investigatory  and  law  enforcement  duties,  without  fear   of
retribution  for  mistakes made in good faith.   Second,  without
immunity,  arresting  officers  could  be  subject  to   frequent
accusations  of  wrongful  motives  when  performing  their   law
enforcement  duties.  And third, under qualified immunity  relief
would be available to Prentzel if he could show that the troopers
acted corruptly, maliciously, or in bad faith.
                    (3)  Did    the   troopers   act   corruptly,
                         maliciously, or in bad faith?
          Prentzel  argues that the troopers are not entitled  to
immunity,  because their conduct was malicious.   He  rests  this
claim   on  his  subjective  belief  that  the  troopers  enjoyed
arresting him:
          Upon   information  and  belief,  Scott   and
          Gilmore were enjoying arresting me.   When  I
          was  informed by my criminal attorney that  I
          was  arrested for a nonexistent offense, this
          sealed  my  impression that  I  was  arrested
          maliciously  by  these  police  officers  who
          couldnt find a lawful basis to arrest  me  so
          they  just manufactured one.  I believe  that
          this  is ample evidence of malice and that  a
          jury should be permitted to hear it.
Prentzel also claimed in an unsworn statement that Trooper  Scott
used  a gleeful tone of voice when deciding to transport Prentzel
to jail.
          Prentzels   conclusory   statements   describing    his
subjective  impressions  do  not  raise  disputed  questions   of
material  fact.37   After we remanded his case in  Prentzel  I,38
Prentzel had the opportunity to depose Troopers Scott and Gilmore
and  to collect other evidence bolstering his personal impression
of  the troopers alleged malice.  As the superior court correctly
observed,  despite  this  opportunity Prentzel  made  only  vague
conclusory allegations of malice.
          In  his  briefing, Prentzel observes that malice  is  a
question  of  fact inappropriate for resolution on a  motion  for
summary  judgment.  But this observation misses a crucial  point:
before  malice can become a disputed question of fact, the record
must  contain at least some objective evidence establishing facts
capable of supporting an inference of malice.  The need for a non-
conclusory factual basis is especially important when,  as  here,
the ultimate question involves immunity; as we have emphasized on
other  occasions, official immunity shields government  officials
not  just  from  liability, but from  suit.39   Indeed,  we  have
stressed  that  although the existence or absence  of  malice  is
generally a question of fact for the jury, when this question has
been  removed  from the case by uncontroverted affidavits  and/or
depositions, summary judgment may be granted.40
          There  is ample record evidence that the troopers acted
without malice, and, in fact, did everything they could to ensure
that  Prentzels arrest was appropriate.  The troopers  relied  on
APSIN  and FCC information about Prentzel being on conditions  of
release   before  arresting  him;  they  believed  Prentzel   was
violating the law in their presence; they consulted with Sergeant
Papasodora  before arresting him; they had not heard of  Prentzel
except for the DWI arrest by Trooper Scott two weeks before; they
were unaware of any of his other past arrests; and they had never
heard  of  any  Alaska State Trooper policy  aimed  at  violating
Prentzels  rights.  Because Prentzels subjective conclusion  that
the  troopers  enjoyed arresting him finds no  objective  support
from  the facts in the record, it fails to raise a genuine  issue
of  material fact disputing the strong evidence tending  to  show
that the troopers acted without malice.
          In  light of the three-factor Aspen analysis, we affirm
the  superior  courts summary judgment order  adopting  qualified
immunity  as  a  ground for dismissing Prentzels  state-law  tort
          claims against the troopers.
               b.    Section  1983  claim against  the  arresting
          Prentzel  argues that the superior court erred  in  not
awarding  him  summary judgment on his cause of  action  alleging
that  Troopers Scott and Gilmore and Sergeant Papasodora violated
42 U.S.C.  1983.41  He claims that the troopers violated his civil
rights  when, acting under color of state law, they violated  his
Fourth Amendment rights by subjecting him to a warrantless arrest
without probable cause and seizing his property incident  to  the
          To  sustain an action under  1983, Prentzel must  show:
(1)  that  the conduct complained of was committed  by  a  person
acting under color of state law and (2) that the conduct deprived
[him] of a [federal] constitutional right.42  Prentzel argues that
he  made  out a prima facie case under  1983 by showing that  the
officers acted under color of state law and deprived him  of  his
Fourth Amendment right to be free  from unreasonable searches and
seizures  by  arresting  him  and seizing  his  property  without
probable  cause, without a warrant, and without any circumstances
creating  an  exception  to  the warrant  requirement.   Prentzel
further  argues that the officers are not entitled  to  qualified
immunity under the standards governing  1983 claims.  He contends
that, because Alaska law did not authorize his arrest, the arrest
was  a  per  se  violation of his Fourth  Amendment  rights.   We
          Under   federal  law  governing  constitutional  claims
brought  under   1983, a law enforcement officer is  entitled  to
qualified  immunity if, in light of clearly established  law  and
the  information  available  to  the  officer  at  the  time,   a
reasonable  officer could have believed the arrest was  lawful.43
The  law is clearly established if the contours of the right  are
sufficiently  clear that a reasonable official  would  understand
that his actions violate that right.44  The United States Supreme
Court has held that officers must be granted immunity under  this
standard when they are reasonably mistaken as to the legality  of
their  actions.45  In other words, [i]f the law did not  put  the
officer  on  notice  that his conduct would be clearly  unlawful,
summary judgment based on qualified immunity is appropriate.46
          Although  it  is undisputed that the troopers  arrested
Prentzel  without a warrant and that no provision of  Alaska  law
specifically authorized the warrantless arrest, we agree with the
superior  courts  conclusion that the  troopers  are  nonetheless
entitled to qualified immunity from the  1983 claim.
          In  general, a violation of state law does not lead  to
liability under  1983.47  Thus, a violation of AS 12.25.030   the
Alaska arrest statute that limits warrantless misdemeanor arrests
does  not  by itself establish a per se violation of the  federal
constitution.   To  defeat  the  troopers  claim   of   qualified
immunity,   Prentzel  must  instead  show   that   the   troopers
warrantless  arrest  amounted  to  a  violation  of  the   Fourth
Amendment  under clearly established federal law  governing  that
amendments  meaning  and  scope.  Prentzel  fails  to  make  this
          The United States Supreme Courts decision in Atwater v.
City  of  Lago Vista48 controls the point.  There, the  claimant,
Atwater,  challenged  the constitutionality  of  her  arrest  for
violating  a Texas law by failing to use a seatbelt to protect  a
child  seated in the right front passenger seat of Atwaters  car.
Relying  on  founding-era  common-law rules,  Atwater  urged  the
Supreme  Court  to  hold  that the Fourth Amendments  prohibition
against unreasonable seizures forbids peace officers from  making
warrantless misdemeanor arrests except in cases of breach of  the
peace   that is, offenses involving or tending toward violence.49
The  Supreme Court rejected this argument, holding that  [i]f  an
officer  has  probable cause to believe that  an  individual  has
committed even a very minor criminal offense in his presence,  he
may, without violating the Fourth Amendment, arrest the offender.50
          In arriving at this conclusion, the Court relied on the
historic   common  law  tradition  allowing  officers   to   make
warrantless  arrests for minor violations.  The Court  emphasized
that  both  the  legislative tradition  of  granting  warrantless
misdemeanor  arrest  authority  and  the  judicial  tradition  of
sustaining  such  statutes  against  constitutional  attack   are
buttressed by legal commentary that, for more than a century now,
has   almost   uniformly  recognized  the  constitutionality   of
extending  warrantless  arrest  power  to  misdemeanors   without
limitation to breaches of the peace.51
          Although  the  Court  in  Atwater  found  that  history
convincingly  supported  the view that a warrantless  misdemeanor
arrest  does not violate the Fourth Amendment, the Court went  on
to  consider  whether  a  more modern arrest  rule  barring  this
practice should be adopted.52  In considering this question,  the
Court  recognized  that when Fourth Amendment claims  arise  from
police conduct that was not definitely unlawful under common  law
at  the time of the Constitutions framing, courts must decide the
constitutional question by striking a balance between  individual
and societal interests.53
          Applying  this  balance to cases involving  warrantless
misdemeanor arrests, the Court reasoned that a responsible Fourth
Amendment  balance  is  not well served  by  standards  requiring
sensitive,  case-by-case determinations of government need,  lest
every  discretionary judgment in the field be converted  into  an
occasion for constitutional review.54  In other words, the  court
held,  the law has never jelled . . . [in a way suggesting  that]
warrantless misdemeanor arrests need constitutional attention.55
          Given Atwaters holding that the Fourth Amendment is not
implicated  when  police  make  warrantless  arrests  for   minor
offenses,  it  follows that the troopers failure to  comply  with
AS  12.25.030  cannot by itself establish that  Prentzels  arrest
violated the Fourth Amendment.
          In  addition,  even  though, at the time  of  Prentzels
arrest,  Alaskas  criminal  code  did  not  make  violations   of
conditions  of  release a punishable offense, the troopers  could
reasonably  believe  that  they had probable  cause  to  think  a
violation  was being committed.  The bail provisions  of  Alaskas
Code  of Criminal Procedure required all accused persons released
on  conditions before trial to be advised that a warrant for  the
          persons arrest will be issued immediately upon a violation or
that the person may be arrested without a warrant for a violation
of conditions of release.56  This provision strongly suggests that
the  legislature  considered all violations of  pretrial  release
conditions to be conduct that would justify an arrest, regardless
of  whether a specific criminal statute required compliance  with
the particular condition violated.
          Support for this view of the legislatures intent can be
found  in  a  related  provision in  Alaskas  bail  statutes,  AS
12.30.070.  Section .070 states: Nothing in this chapter  [Alaska
Statutes,  Title 12, Chapter 30, governing bail] shall prevent  a
court from exercising its power to punish for contempt.57  Relying
on this provision, the court of appeals has observed:
          When  a defendant violates the conditions  of
          release,  the court may issue a  warrant  for
          the  defendants arrest, the court may  revise
          the  conditions of release to make them  more
          onerous,  and the court can initiate contempt
          proceedings against the defendant.[58]
          Thus,  AS  12.30.070 generally characterizes violations
of  conditions of release as conduct punishable as contempt.  The
contempt  provisions in Alaskas Code of Civil Procedure bear  out
this  conclusion.  Specifically, AS 09.50.010(5) defines contempt
to  include disobedience of a lawful judgment, order, or  process
of  the  court.59  Under the provisions existing at the  time  of
Prentzels arrest, this form of contempt was punishable by a  fine
of not more than $100.60
          Because the troopers in this case had ample grounds  to
believe   albeit  incorrectly  that Prentzel  was  violating  his
conditions  of release on a pending DWI charge, and because  this
conduct  amounted  to  a  contempt  under  AS  09.50.010(5),  the
troopers  had  probable  cause  to  believe  that  Prentzel   was
committing a violation punishable under Alaska law at the time of
his  arrest.   Thus,  Prentzel  is incorrect  in  asserting  that
probable cause could not have arisen because his conduct was  not
expressly proscribed.
          For  present  purposes, it is unnecessary  to  consider
whether  Alaska law authorized a warrantless arrest for Prentzels
apparent act of contempt.  The crucial  point here, and the  only
point  we  decide,  is that, under Atwater, the troopers  conduct
would  not have violated the Fourth Amendment even if Alaska  law
did  not  expressly  authorize  a  warrantless  arrest  based  on
probable  cause  under these circumstances:  If  an  officer  has
probable cause to believe that an individual has committed even a
very  minor  criminal offense in his presence,  he  may,  without
violating the Fourth Amendment, arrest the offender.61
          We thus affirm the superior courts ruling that Sergeant
Papasodora  and  Troopers  Scott  and  Gilmore  are  entitled  to
qualified immunity from Prentzels claim under  1983.
          3.   Claims  against the supervising officers  and  the
               a.   Section  1983  claim against the  supervising
          Prentzel argues that Colonel Godfrey and Captain Tanner
          violated  his rights under  1983 by showing  deliberate
indifference  to  the  troopers practice of  making  unauthorized
arrests  for  violations of conditions  of  release  and  to  the
troopers  continued reliance on stale APSIN and  FCC  records  in
making those arrests.
          To  act with deliberate indifference, an official  must
be aware of facts from which the inference could be drawn that  a
substantial risk of serious harm exists, must actually  draw  the
inference,  and then must disregard the risk.62  In other  words,
Prentzels  evidence  must  show  that  Tanner  and  Godfrey  were
subjectively  aware  of the risk of ongoing system-wide  problems
and  consciously  disregarded that risk.63   In  Prentzel  I,  we
          A   1983  claim  would  lie  against  Captain
          Tanner and Colonel Godfrey if Prentzel  could
          show   that   they  adopted,  outside   their
          official  capacities, the customs or policies
          he  alleges, causing violations of his  civil
          rights.  This would require evidence of their
          personal   involvement  in  a  violation   of
          Prentzels rights, and not simply evidence  of
          their status as supervisors of Troopers Scott
          and  Gilmore.   A supervisor  may  be  liable
          under   1983 only if there exists either  (1)
          his   or  her  personal  involvement  in  the
          constitutional   deprivation,   or   (2)    a
          sufficient  causal  connection  between   the
          supervisors   wrongful   conduct   and    the
          constitutional   violation.   A    sufficient
          showing of personal involvement could include
          demonstrating that Captain Tanner and Colonel
          Godfrey  created  a policy  or  custom  under
          which unconstitutional practices occurred, or
          allowed  the continuance of such a policy  or
          custom, or showed deliberate indifference  in
          supervising Troopers Scott and Gilmore.[64]
          Prentzel  presented no evidence to the  superior  court
that  Tanner and Godfrey were personally involved in his  arrest.
He  bases his claim on the failure of the supervising officers to
properly   train  the  line  troopers  in  the  law   authorizing
warrantless  arrests.  In addition, Prentzel argues that  it  was
part  of  the  ordinary course of business  that  APSIN  and  FCC
records  were  not  updated  for days or  weeks  following  court
dispositions.   Prentzel  maintains that the  troopers  continued
reliance  on  the  stale records and the  harm  caused  by  their
reliance is so obvious that Tanner and Godfrey are either plainly
incompetent  or  deliberately indifferent to  the  constitutional
rights  of citizens.  He argues that the trier of fact should  be
permitted   to   infer   that  the  supervising   officers   were
deliberately indifferent based on his evidence.
          Prentzels  1983 claims against the supervising officers
fail  for  several reasons.  First, Prentzel has failed  to  show
that Tanner and Godfrey were personally involved in his arrest or
          that they were subjectively aware of and deliberately indifferent
to  the risk that his rights would be violated.  Prentzel did not
present  any evidence concerning policy-level decisions  made  by
Tanner  and  Godfrey  involving officer  training.   The  closest
Prentzel came to showing the existence or awareness of an ongoing
problem   involving  warrantless  arrests  is   Captain   Tanners
deposition testimony, which acknowledged that Gilmore  and  Scott
were  high  producer[s]   meaning they made  many  arrests.   But
Prentzel has failed to show what those arrests were for  or  what
information the troopers relied on in making them.  A history  of
frequent  arrests  does not by itself support an  inference  that
unlawful  arrests  were routinely occurring,  that  the  troopers
regularly  misinterpreted the law, that they  often  based  their
arrests  on stale information, that they were improperly trained,
or that their supervisors knew of these problems.
          Moreover,  the  superior  court  could  properly   have
declined  to  consider Prentzels claim of delay in  updating  the
APSIN  and FCC records because the claim was untimely.  And  even
if  it  had  been  timely, it would have failed because  Prentzel
offered  no  evidence  that the delays were system-wide  or  that
Tanner and Godfrey knew that the delays were occurring.  Prentzel
simply submitted copies of court dispositions for sixteen of  his
own  arrests between 1986 and 2002; a stamp at the bottom of each
disposition  showed  when it was forwarded to  the  FCC  and  the
police  department.   Prentzels case history is  insufficient  to
support a reasonable inference that Tanner and Godfrey were aware
of and consciously disregarded system-wide recordkeeping delays.
          As  the  superior  court  put it,  [b]ecause  Prentzels
allegations   towards   Tanner  and   Godfrey   are   generalized
allegations of their status as supervisors, they are insufficient
to support a claim under  1983.65
               b.   State-law  claims for negligent training  and
          Prentzel  argues  that the state, Captain  Tanner,  and
Colonel  Godfrey owed a duty under Alaska law (1)  to  adequately
train  state troopers so they would not arrest persons without  a
warrant  for  nonexistent offenses, and (2) to  adequately  train
state  troopers  concerning  the  delay  in  updating  the  APSIN
computer  databases  and  FCC  records  regarding  conditions  of
release.   He alleges that the state and the supervising officers
negligently  performed these duties and that he  is  entitled  to
summary judgment for negligent supervision and training.66
          These  arguments  fail for the same basic  reason  that
Prentzels  federal supervisory claims failed:  Prentzel  did  not
provide  any  evidence of system-wide problems involving  delayed
recordkeeping resulting in unlawful arrests or of any supervisory
negligence in creating or failing to correct such problems.
          In his deposition of Trooper Dane Gilmore, Prentzel did
not question Gilmore about the training he had received regarding
the laws of arrest.  Prentzel merely asked Gilmore whether he had
been  trained  to  look to APSIN as a source of information  when
making arrests; Gilmore answered that he had been.  Prentzel  did
not  ask  Gilmore  about any specific training he  received  from
Captain  Tanner or Colonel Godfrey.  In Prentzels  deposition  of
          Trooper Daniel Scott, Scott testified that he had been trained to
consider  the FCC as a potential source of information  regarding
conditions  of release.  Scott also testified that  he  had  been
trained to rely on FCC and APSIN records when making arrests, but
he  did not state that he received this training from Godfrey  or
Tanner.   Finally,  in the deposition of Captain  Tanner,  Tanner
testified  that state troopers receive their initial training  in
the  public  safety  academy  and that  he  was  responsible  for
ensuring  that  state troopers were annually  retrained.   Tanner
further testified that during his tenure as captain from 1997  to
1999, he made sure that the troopers under his command, including
Troopers Gilmore and Scott, received this regular retraining.
          Apart  from  this brief deposition testimony,  Prentzel
presented no other evidence regarding the training procedures and
policies  of  the  Alaska State Troopers.  Furthermore,  Prentzel
failed  to show that the APSIN and FCC records were so inaccurate
that there was a need to train troopers not to rely on them.   To
show   that  the  databases  were  inaccurate,  Prentzel   merely
presented copies of the court dispositions for sixteen of his own
arrests  between  1986  and  2002.   Of  the  sixteen,  one   was
transmitted  the  day  after disposition, five  were  transmitted
within seven days, five were transmitted within one to two weeks,
two  were transmitted between two to three weeks, and three after
three  weeks.  Although there were apparent delays in  forwarding
Prentzels records, this isolated evidence does not establish that
the system as a whole was inaccurate and unreliable.  And Trooper
Scott  testified  that  he had never been aware  of  APSIN  being
inaccurate  and, based on his experience, believed  that  it  was
updated quickly.
          In  sum,  none  of the evidence presented  by  Prentzel
leads  to  the inference that the defendants breached a  duty  of
care  to  properly  supervise and train  the  troopers.   By  all
accounts,  the  troopers  received regular  annual  training  and
Captain Tanner ensured that this training occurred.
          We  affirm  the superior courts order granting  summary
judgment to the state defendants on all of Prentzels claims.
     B.   Prentzels Late Motions and Fourth Amended Complaint
          The  superior court struck as untimely Prentzels motion
to  file  a fourth amended complaint, his motion for an extension
of time, and his motion for summary judgment.  Prentzel attempted
to  justify  his  tardy filings by showing that  they  were  late
because of  excusable neglect.  He asserted below that four  days
before the October 4 filing deadline, he was called out for a job
that  he  could  not  refuse because it was his  first  and  only
opportunity  for substantial gainful employment  this  year.   He
also  claimed  that  he had underestimated  the  amount  of  time
required to perform all the work involved in articulating all  of
his claims and defenses in a memorandum of law.
          The court explained its decision to strike the untimely
motions  by  stating that [t]he sanction of striking these  late-
filed  pleadings following two previous continuances of the trial
to  allow  Prentzel  to  be  prepared  is  reasonable  under  the
circumstances and does not alone end this litigation.   Moreover,
the  court stated that it would consider Prentzels late pleadings
to  the  extent that they responded to the states pending  motion
for summary judgment.
          Prentzel  argues  that the superior  court  abused  its
discretion in striking his motions as untimely.  He characterizes
this  action as litigation-ending sanctions, which are  generally
disfavored and only permitted in extreme circumstances.  He  also
claims,  mistakenly,  that the court actually  struck  the  third
amended complaint, rather than just the third motion to amend the
complaint.   Under  this  view, the  courts  decision  ended  the
litigation  because  it had the effect of deciding  the  [states]
motion   for  summary  judgment  without  considering  plaintiffs
admissible  evidence concerning the deficient system relied  upon
by the troopers to obtain information about conditions of release
imposed on persons.67
          We  review  procedural decisions of the superior  court
for abuse of discretion.68  This includes review of decisions  to
deny  leave to file an amended complaint,69 to grant or  deny  an
extension,70  and  to deny late dispositive motions.71   We  will
reverse  a ruling for abuse of discretion only when left  with  a
definite  and firm conviction, after reviewing the whole  record,
that the trial court erred in its ruling.72
          1.   Motion to amend the complaint
          In general, in the absence of a motion filed on the eve
of trial, leave to amend is freely granted unless it would result
in  an injustice.73  Here, Prentzels motion to amend was filed on
the  eve  of  trial  in fact, on the eve of the  third  scheduled
trial. We are not persuaded that denying Prentzel leave to  amend
his complaint again resulted in an injustice.  The superior court
pointed  to  all  the continuances it had granted  and  deadlines
Prentzel  had missed, and appropriately concluded that  it  would
not  allow  a motion to amend the complaint filed on the  eve  of
trial  that raises new issues requiring additional discovery  and
the  continuance yet again of this trial.  We conclude  that  the
superior court did not abuse its discretion in refusing to  grant
Prentzel leave to file a fourth amended complaint.
          2.   Motion for summary judgment
            Prentzel  argues  that  striking  his  other  motions
impermissibly ended the litigation because the court decided  the
states   summary   judgment   motion  without   giving   adequate
consideration  to the admissible materials he had presented  with
the rejected motions.  In Sandstrom & Sons, Inc. v. State we held
that  the  superior  court improperly assessed  litigation-ending
sanctions  against a party when it dismissed the case after  that
party  failed  to comply with a discovery order.74  Although  the
partys  conduct  did  deserve sanction, we  determined  that  the
superior   court  should  have  explored  sanctions  other   than
dismissal.75    The  superior  court  in  this   case   correctly
distinguished Sandstrom & Sons, Inc. from Prentzels situation.
          The  court  indicated that it treated Prentzels  motion
for summary judgment as an opposition to the states motion to the
extent that the motion was responsive. Although the court did not
address  every  issue raised in the third amended  complaint,  it
stated  that  it had reviewed all of the pleadings  and  attached
affidavits,  including  Plaintiffs  most  recent  opposition   to
          Defendants motion for summary judgment.  The order granting
summary  judgment  to  the  troopers  directly  quotes  Prentzels
affidavit  and  also discusses and distinguishes  cases  Prentzel
cited  in his brief.  Moreover, the court itself noted that  what
ended  the  litigation was the courts ruling granting the  States
Motion for Summary Judgment on its merit[s].
          3.   Motion for an extension of time to file motion for
               summary judgment
          Prentzel also argues that the superior court abused its
discretion in denying his motion for an extension of time to file
a  motion  for  summary judgment.  He cites  several  factors  to
support  his contention: he filed his motion before the  deadline
for  opposing the troopers motion for summary judgment and before
the  court  actually  granted  summary  judgment;  he  diligently
conducted  and  provided  discovery throughout  the  action;  his
papers clearly established a prima facie case for denial of civil
rights; and economic necessity compelled him to take a job, which
caused  his  late  filing.  Prentzel further  contends  that  his
status  as a pro se litigant excuses his tardiness, arguing  that
the  pleadings  of  pro  se litigants should  be  held  to   less
stringent standards than those of lawyers, particularly when lack
of  familiarity with the rules rather than gross neglect or  lack
of good faith underlies litigants errors.
          We  have held that the superior court must inform a pro
se  litigant of the specific defects in his [pleadings] and  give
him an opportunity to remedy those defects.76  But there were  no
specific  defects in Prentzels late-filed motions  that  required
correction:  the motions were simply late.  Prentzel  cannot  and
does  not claim that the court failed to notify him of the filing
deadlines;  on the contrary, the court continued the trial  twice
at  Prentzels request and issued new filing deadlines each  time.
Whats  more,  while  the court did not grant Prentzel  additional
time  to  refine his motion for summary judgment, it nevertheless
considered  the  motion  that  Prentzel  actually  filed,   which
consisted  of  an affidavit, supporting exhibits, and  a  lengthy
          Ordinarily,  pro  se  litigants  who  make  good  faith
efforts  to comply with court rules should not be held to  strict
procedural  requirements.77  But Prentzel does not show  that  he
made  a  good  faith  effort to comply with the  superior  courts
deadlines.  Prentzel claims that he underestimated the amount  of
work  a  motion  for  summary judgment  would  require  and  then
unexpectedly  received a job offer that he could  not  afford  to
decline.    But  while these circumstances may be understandable,
Prentzel  made no effort to inform the court of his  difficulties
in  a  timely  fashion.   He thus fails to provide  a  persuasive
justification  for  his untimely filings in the  third  round  of
deadlines provided by the court.  This failure, combined with the
superior  courts  decision to accept the  untimely  materials  as
responsive  pleadings, persuades us that the superior  court  did
not  abuse  its  discretion in denying Prentzels  motion  for  an
extension to file his motion for summary judgment.
     C.   Request for Deposition
          The states pretrial witness list named Randy Olsen.  By
the  time of Prentzels last scheduled trial, Olsen was a superior
court  judge  in Fairbanks; but he had previously  served  as  an
assistant  attorney  general  and, in  that  capacity,  had  been
assigned  to  represent the state in opposing  Prentzels  claims.
While  working on the case, Olsen learned that Prentzel had never
been credited for the two days he spent in jail after his October
1998 arrest.  Olsen then arranged for him to be released two days
early  in  a  new case for which he was serving a  sentence.   In
listing  Olsen as a witness, the state evidently planned to  have
him testify about these efforts to mitigate Prentzels damages.
          Before  the first scheduled trial date, Prentzel sought
a  continuance  of  trial  in order  to  conduct  discovery.   In
addition  to deposing the named defendants, he sought  to  depose
Judge  Olsen  to  gain  information  about  this  custody-release
arrangement,  which  Prentzel  characterized  as  an  affirmative
defense of the state.  The state did not oppose the extension  of
time  to depose the named defendants but took no position  as  to
Judge  Olsen.  The  superior court granted  Prentzels  motion  to
extend  the deadline for deposing the named defendants,  but  did
not authorize an extension of time to depose Judge Olsen.
          Prentzel    nevertheless   scheduled    Judge    Olsens
deposition.  The state moved to cancel it, arguing that the court
was  authorized under Civil Rule 26(c) to issue an order limiting
discovery  in order to protect a party or person from  annoyance,
embarrassment, oppression, or undue burden or expense.  The state
also  pointed  out  that  the court was  authorized  under  Civil
Rule  45(b)  to void or modify a subpoena if it was  unreasonable
and  oppressive.  The superior court granted the states order  to
quash the subpoena and cancel the deposition.
          On  appeal  Prentzel  argues that  the  superior  court
abused  its discretion in denying him the opportunity  to  depose
Judge  Olsen because [c]ertainly his testimony was relevant.   He
notes  that  Olsen was on the states witness list, had  testimony
regarding the states mitigation of Prentzels damages based on the
early  release  from custody, and had knowledge  of  the  trooper
practice  of  making  arrests without a  warrant.  Prentzel  also
argues that allowing the deposition to go forward would not  have
prejudiced  the  state  and would not have  caused  undue  delay,
because discovery remained open on other issues.
          We  review discovery orders and sanctions for abuse  of
discretion, but review de novo whether the trial court considered
the  appropriate factors when issuing a discovery order.78  Under
Civil  Rule  26(b)(2), the superior court may limit  the  use  of
discovery methods such as depositions if it determines that
          the   burden  or  expense  of  the   proposed
          discovery   outweighs  its  likely   benefit,
          taking  into account the needs of  the  case,
          the   amount  in  controversy,  the   parties
          resources,  the importance of the  issues  at
          stake  in  the litigation, and the importance
          of  the  proposed discovery in resolving  the
The  court may order that disclosure or discovery not be had when
necessary   to   protect  a  party  or  person  from   annoyance,
embarrassment, oppression, or undue burden or expense.80
            We  hold that the limit on discovery in this case was
not  manifestly unreasonable, and that the superior court did not
abuse  its  discretion in declining to allow Prentzel  to  depose
Olsen.  Prentzel argues that he needed to depose Olsen because he
had  knowledge  of  the troopers practice of  making  warrantless
arrests.  But Prentzel failed to raise this issue in the superior
court.  The only purpose for deposing Olsen he offered below  was
to  learn  about  an  affirmative defense of  the  defendants   a
purpose  that  is  moot in light of the superior  courts  summary
judgment  ruling.   We reject Prentzels newly  raised  theory  of
relevance  as waived and find no abuse of discretion  in  denying
the deposition for the purpose Prentzel advocated below.81
          D.   Attorneys Fees and Costs
          In  March  2000 the state made of an offer of  judgment
for  $1,000,  which  Prentzel rejected.  After  granting  summary
judgment  to the state, the superior court found that  the  state
was  the  prevailing  party.   The court  awarded  $13,662.02  in
attorneys  fees  to the state  $1,609.42 in pre-offer-of-judgment
fees under Civil Rule 82(b)(2), and $12,052.60 in post-offer fees
enhanced under Civil Rule 68(b)(2).  This award was significantly
less than the original amount requested by the state because  the
court  omitted  time  related to the  1983 claim  and  the  first
appeal and lowered the states hourly rate to fifty percent of the
amount  originally  requested by the state.  Prentzel  challenges
the award.
          After  the  superior court entered  the  attorneys  fee
award  in  June  2005, we held in Ellison v. Plumbers  and  Steam
Fitters  Union Local 375 that Rule 68(c) allows a party to  elect
the  greater  of  Rule 82 or Rule 68 fees, but not  both.82   Our
ruling  in  Ellison is controlling here and precludes  the  state
from  claiming  Rule 82 fees in addition to the larger  award  it
received under Rule 68.
          Apart  from  this error, we find no abuse of discretion
in calculating the award of attorneys fees.  Prentzel argues that
the  states fee bill was padded.  But the state attested that  it
eliminated fees for duplicative efforts resulting from  the  case
getting  passed to many attorneys, and did not charge for general
research  or  general procedures that benefitted  the  state;  in
total,  the  state requested fees for less than fifty percent  of
the total hours that it actually spent in defending the case.
          Prentzel  also argues that the award of attorneys  fees
should  have been declined because it could deter other similarly
situated  civil-rights litigants from bringing  actions  in  good
faith.  But the superior court accounted for Prentzels status  as
a  pro  se indigent litigant by cutting the states hourly billing
rate  in  half.  Moreover, the court ensured that time  spent  on
Prentzels  civil  rights claim and on his first  appeal  was  not
included in the award.  Considering that the attorneys fee  award
will  be  reduced even more once the Rule 82 fees are eliminated,
we  cannot say that the award is manifestly unreasonable.   Thus,
although we vacate the fees awarded under Rule 82, we affirm  the
award  under Rule 68 and remand for entry of a modified  judgment
          reflecting only that award.
          For  these reasons, we AFFIRM the superior courts order
granting  summary judgment and all other rulings  encompassed  in
its  final  judgment  except the award of  attorneys  fees  under
Rule  82.   We  VACATE  that award and REMAND  for  entry  of  an
attorneys fees award consistent with this opinion.
     1     Prentzel  v. State, Dept of Pub. Safety, 53  P.3d  587
(Alaska 2002) (Prentzel I).

     2    Colonel Glenn Godfrey is deceased.

     3     Prentzels  complaint stated that as a  result  of  the

arrest, he was:

          humiliatingly handcuffed in public  for  more
          than  10 min.; detained in an unsanitary cell
          without  sink  or  toilet for  more  than  12
          hours;  manhandled  by officers  who  falsely
          charged  [him] with resisting arrest  .  .  .
          [and]  drug possession, [had] the humiliation
          of  having these false charges . . .  printed
          in the local newspaper . . . all resulting in
          increased stress.
     4    Prentzel I, 53 P.3d at 596.

     5    Id. at 591.

     6    Id. at 592.

     7    Id. at 595-96.

     8    Id. at 596.

     9    AS 09.50.250(1) provides in relevant part:

          [A]n  action may not be brought [against  the
          state under this section] if the claim
          (1)  .  . . is an action for tort, and  based
          upon  the  exercise  or  performance  or  the
          failure    to   exercise   or    perform    a
          discretionary function or duty on the part of
          a  state agency or an employee of the  state,
          whether  or  not the discretion  involved  is
     10    In Prentzel I, we noted that

          Troopers  Scott and Gilmore are  entitled  to
          protection  from the  1983 claim on  official
          immunity grounds if they can establish that a
          reasonable  officer could have believed  that
          their conduct was lawful, even if it actually
          was not.
Prentzel I, 53 P.3d at 595 n.40.

     11     In  re Estate of Maldonado, 117 P.3d 720, 722 (Alaska

     12     Olson v. Teck Cominco Alaska, Inc., 144 P.3d 459, 463
(Alaska 2006).

     13    B.R. v. State, Dept of Corr., 144 P.3d 431, 433 (Alaska
2006)  (citing  Barry v. Univ. of Alaska, 85 P.3d  1022,  1025-26
(Alaska 2004)).

     14     Jennings v. State, 566 P.2d 1304, 1310 (Alaska  1977)
(quoting  10  C.  Wright  &  A.  Miller,  Federal  Practice   and
Procedure: Civil  2721, at 475-76 (1973)).

     15     See  Alaska R. Civ. P. 52(a) (Findings  of  fact  and
conclusions of law are unnecessary on decisions of motions  under
Rules 12 or 56 . . . .).

     16    Jennings, 566 P.2d at 1310.

     17     We  refer to Prentzels claim as a false arrest  claim
because  [f]alse arrest and false imprisonment are  not  separate
torts.   A  false arrest is one way to commit false imprisonment;
since   an   arrest   involves  restraint,  it  always   involves
imprisonment.  Waskey v. Municipality of Anchorage, 909 P.2d 342,
345  (Alaska 1996) (quoting City of Nome v. Ailak, 570 P.2d  162,
168 (Alaska 1977)) (internal quotation marks omitted).

     18    Id.

     19    K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702,
717  &  n.26 (Alaska 2003) (citing Restatement (Second) of  Torts
217 (1965)).

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

     21    Alpine Indus., Inc. v. Feyk, 22 P.3d 445 (Alaska 2001).

     22    Id. at 447-48 (citations omitted).

     23    Id. at 448.

     24    Aspen, 739 P.2d at 155 n.11.

     25    Id. at 155.

     26    Id.

     27    Id.

     28    AS 18.65.080.

     29     Crawford  v. State, 138 P.3d 254, 258  (Alaska  2006)
(quoting McCoy v. State, 491 P.2d 127, 133 (Alaska 1971)) (second
alteration in original).

     30     AS 12.30.025 (release before trial in cases involving

     31    AS 12.30.027 (release in domestic violence cases).

     32    AS 11.41.270 (stalking in the second degree).

     33    Aspen, 739 P.2d at 154.

     34    Id. at 159.

     35    Id. at 159-60.

     36     Cf.  Hunter v. Bryant, 502 U.S. 224, 227 (1991)  (per
curiam)  (Even  law  enforcement  officials  who  reasonably  but
mistakenly  conclude that probable cause is present are  entitled
to  immunity.) (quoting Anderson v. Creighton, 483 U.S. 635,  641

     37    See Keen v. Ruddy, 784 P.2d 653, 656 (Alaska 1989) (The
Keens  vague allegations of malice are insufficient, absent  some
showing of specific facts, to preclude summary judgment.).

     38    Prentzel I, 53 P.3d at 591.

     39     See  Karen L. v. State, Dept of Health & Soc. Servs.,
Div.  of  Family & Youth Servs., 953 P.2d 871, 879 (Alaska  1998)
(citing Mitchell v. Forsyth,  472 U.S. 511, 526 (1985)) (emphasis
in original).

     40    Aspen, 739 P.2d at 160 n.24.

     41    We note that the superior courts order granting summary
judgment  does  not  mention  Sergeant  Papasodora   he  is   not
identified as a defendant in the text and does not appear in  the
caption.  This was apparently an oversight.  On July 2, 2004, the
state  filed its motion for summary judgment; on August 5,  2004,
the  superior  court accepted Prentzels third amended  complaint,
which  identified Sergeant Papasodora by name for the first  time
and  substituted  his name for the John Doe trooper  included  in
Prentzels  earlier complaint.  On January 10, 2005, the  superior
court  issued the order granting summary judgment, but  neglected
to reflect the substitution.  In an amended final judgment issued
June  24,  2005, however, the superior court entered judgment  in
favor  of Sergeant Papasodora by name.  Because Prentzel advances
no  actual or legal basis for concluding that the  1983  immunity
analysis should apply differently to Sergeant Papasodora than  it
applies  to Troopers Scott and Gilmore, we use the same  analysis
of the  1983 claim for all three defendants.

     42     Crawford  v. Kemp, 139 P.3d 1249, 1255  n.10  (Alaska

     43    Id. at 1255.  We stated in Prentzel I:

          Troopers  Scott and Gilmore are  entitled  to
          protection  from the  1983 claim on  official
          immunity grounds if they can establish that a
          reasonable  officer could have believed  that
          their conduct was lawful, even if it actually
          was not.
Prentzel I, 53 P.3d at 595 n.40.

     44    Crawford, 139 P.3d at 1255 (quoting Van Sandt v. Brown,
944  P.2d  449,  452  (Alaska  1997)) (internal  quotation  marks

     45    Saucier v. Katz, 533 U.S. 194, 206 (2001).

     46    Id. at 202.

     47     Campbell v. Burt, 141 F.3d 927, 930 (9th  Cir.  1998)
(citing  Davis  v.  Scherer, 468 U.S. 183, 194 (1984)  (Officials
sued  for  constitutional violations do not lose their  qualified
immunity merely because their conduct violates some statutory  or
administrative provision.)).

     48    Atwater v. City of Lago Vista, 532 U.S. 318 (2001).

     49    Id. at 326-27.

     50    Id. at 354.

     51    For example, the Court cites White v. Kent, 11 Ohio St.
550  (1860),  where the state court upheld a municipal  ordinance
permitting  warrantless arrest of any person found violating  any
city  ordinance or state law.  Atwater, 532 U.S. at 342-45.   The
court also cites 1 J. Bishop, New Criminal Procedure  183, at 103
(4th  ed.  1895), where the commentator stated that the power  of
arrest  extends,  possibly,  to  any  indictable  wrong  in   [an
officers] presence.  Atwater, 532 U.S. at 344.

     52    Id. at 345-47.

     53     Id. at 346 (citing Wyoming v. Houghton, 526 U.S. 295,
299-300 (1999)).

     54    Id. at 346-47.

     55    Id. at 351-52.

     56    AS 12.30.020(e).

     57    AS 12.30.070.

     58     Lonis v. State, 998 P.2d 441, 445 (Alaska App.  2000)
(citing AS 12.30.070) (emphasis added).

     59    AS 09.50.010 provides in relevant part:

               The  following  acts or  omissions  with
          respect  to  a  court  of  justice  or  court
          proceedings are contempts of the authority of
          the court:
               . . . .
               (5)  disobedience of a lawful  judgment,
          order, or process of the court[.]
     60    See former AS 09.50.020(a) amended by ch. 132,  3, SLA
1998.   This  fine  would  have  qualified  the  contempt  to  be
considered  a  violation under Alaska Rule of Criminal  Procedure
56(f), which defines violation as:

          (1)    an   offense   as   defined   in    AS
          (2)  a traffic infraction as defined in Title
               28 of the Alaska Statutes; or
          (3)  any  other offense under state or  local
               law which is punishable only by a fine.
     61     Atwater,  532  U.S.  at 354.  We  note  that  Atwater
recognized  an  exception to the general  rule  that  the  Fourth
Amendment  would  not  be  implicated by warrantless  misdemeanor
arrests.   Under Atwater, such arrests might violate  the  Fourth
Amendment if performed in an extraordinary manner causing unusual
harm  to  physical and privacy interests.  Id.  at  354-55.   But
here,  as  we  have  seen,  the  only  potentially  extraordinary
circumstance  Prentzel  alleges is his own subjective  conclusion
that the troopers enjoyed performing his arrest; moreover, as  we
have  already  pointed  out,  Prentzel  failed  to  support  this
allegation with any evidence raising a disputed question of fact.
Accordingly,  we find no arguable basis here for concluding  that
the  troopers  performed  Prentzels arrest  in  an  extraordinary

     62    Farmer v. Brennan, 511 U.S. 825, 837 (1994).

     63    Id. at 829.

     64    Prentzel I, 53 P.3d at 595-96 (internal quotation marks
and footnotes omitted).

     65     See id. at 596 (noting that Prentzels arguments as to
how  Godfrey and Tanner acted outside the scope of their official
capacities  could  well  make his  1983 claim  vulnerable  to  an
immunity defense on summary judgment); see also Jeffers v. Gomez,
267  F.3d  895, 916 (9th Cir. 2001) (holding that prison director
was  entitled  to  qualified immunity from  1983 failure-to-train
claim because plaintiff failed to show direct involvement in  his
injury or deliberate actions at the policy-making level).

     66     In  his reply brief Prentzel attempts to fashion  his
negligent   supervision  and  training  claim  as   a   negligent
recordkeeping  claim;  that is, he argues  that  in  addition  to
training  the  troopers in the limitations of the APSIN  and  FCC
databases,  the state and the supervising officers  also  owed  a
duty to maintain those records adequately.  But Prentzel did  not
make  that  argument  to the superior court  in  his  motion  for
summary  judgment.  Accordingly, we  need  not  consider  it  now
because  [a]s  a  rule,  a party may not advance  new  issues  or
theories  on appeal to secure reversal of a lower court decision.
Clark v. Greater Anchorage, Inc., 780 P.2d 1031, 1035 n.4 (Alaska
1989)  (citing Zeman v. Lufthansa German Airlines, 699 P.2d 1274,
1280 (Alaska 1985)).

     67    The record shows that the superior court did not strike
the  third  amended  complaint.  The court  had  already  granted
Prentzel  leave to file a third amended complaint and  the  state
had  already  answered.   In  its Order  Regarding  Miscellaneous
Motions,  the court stated that it was striking the Third  Motion
to  Amend  the Complaint  in other words, the motion  to  file  a
fourth amended complaint.  The court also stated that it rejected
Prentzels  motion for summary judgment to the extent it  raise[d]
new matters beyond the Third Amended Complaint.

     68    Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 254
(Alaska 2000).

     69     Ruckle  v. Anchorage Sch. Dist., 85 P.3d  1030,  1034
(Alaska 2004).

     70    Sheehan v. Univ. of Alaska, 700 P.2d 1295, 1297 (Alaska

     71     See Taranto v. N. Slope Borough, 992 P.2d 1111,  1112
(Alaska 1999).

     72    Ruckle, 85 P.3d at 1034 (quoting DeSalvo v. Bryant, 42
P.3d 525, 527-28 (Alaska 2002)).

     73     Miller  v. Safeway, Inc., 102 P.3d 282,  293  (Alaska

     74     Sandstrom  & Sons, Inc. v. State, 843 P.2d  645,  648
(Alaska 1992).

     75    Id.

     76     Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska

     77    Noey v. Bledsoe, 978 P.2d 1264, 1270 (Alaska 1999).

     78     Peter v. Progressive Corp., 986 P.2d 865, 867 (Alaska

     79    Alaska R. Civ. P. 26(b)(2)(iii).

     80    Alaska R. Civ. P. 26(c).

     81     Our order affirming the superior courts dismissal  of
Prentzels  claims also makes it unnecessary to consider Prentzels
conclusory argument that the court erred on  denying his  request
for an injunction precluding the troopers from arresting Prentzel
in  the future.  To the extent that the injunctive relief depends
on  the merits of Prentzels primary claims, Prentzels request  is
moot.   To the extent that the relief is unrelated to the  merits
of  Prentzels  principal claims, it is not properly requested  in
the context of this action.

     82     Ellison v. Plumbers & Steam Fitters Union Local  375,
118 P.3d 1070, 1078 (Alaska 2005).

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