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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bauer v. State, Dept. of Corrections (10/16/2008) sp-6316

Bauer v. State, Dept. of Corrections (10/16/2008) sp-6316, 193 P3d 1180

     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- 12789
Appellant, )
) Superior Court No. 3AN-06-4791 CI
v. )
) No. 6316 October 16, 2008
Appellee. )
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial   District,  Anchorage,   Craig   F.
          Stowers, Judge.

          Appearances:  Henry J. Bauer, pro se, Seward.
          Marilyn  J. Kamm, Assistant Attorney General,
          and   Talis  J.  Colberg,  Attorney  General,
          Juneau, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, and Winfree, Justices.  [Carpeneti,
          Justice, not participating]

          WINFREE, Justice.

          The  State  of Alaska, Department of Corrections  (DOC)
found  inmate Henry J. Bauer guilty of disobeying a direct  order
and  sentenced  him to fifteen days of segregation  time.   Bauer
appealed  to the superior court.  The court dismissed the  appeal
as  moot after DOC represented that it would provide Bauer a  new
administrative hearing.  But instead, DOC went one  step  further
and  reduced  the  original disciplinary incident  report  to  an
informational item in Bauers file.  According to DOC, this was  a
remedial  action  that obviated the need for a rehearing.   Bauer
argues that this is inadequate relief because he would have  been
entitled  to  have all record of the underlying incident  removed
from  his  file if he successfully defended against the  original
disciplinary charge.  We remand for consideration of whether  the
relief  Bauer may obtain through his administrative appeal  would
be  greater  than what DOC has already provided.   If  Bauer  may
obtain  greater  relief  than he has been  afforded,  his  appeal
should not be dismissed as moot.
          Bauer  has  been an inmate at Spring Creek Correctional
Center  (SCCC) since 1996.  In December 2005 SCCC staff  summoned
Bauer, then a member of the prisons bio-hazard cleaning crew,  to
clean a blood spill.  In light of safety protocol requiring  that
cleaning  be  completed  by  two  trained  crew  members,   Bauer
requested  the assistance of another crew member.  A trainee  was
available  to  assist, but without another  trained  crew  member
present,  Bauer  refused  to clean up  the  blood  spill.   Bauer
received  a  disciplinary notice for failing  to  comply  with  a
direct order.
          Bauer  pled  not  guilty.  His  defense  was  that  the
conditions  under which he was ordered to clean  up  the  spilled
blood  were unsafe and that complying with the direct order would
have  required him to violate his safety training.  Bauer  argued
that these conditions rendered the order illegal.
          Bauer was appointed a hearing advisor to prepare for  a
disciplinary hearing.  Bauer identified the witnesses  he  wanted
to have testify, and he claims his advisor told him the witnesses
would   be  made  available.   No  witnesses  appeared   at   the
disciplinary hearing; Bauer was told this was due to his  failure
to   submit  a  written  request.   Bauers  hearing  advisor  had
interviewed  the witnesses, and he recounted their statements  at
the hearing.
          The  disciplinary  hearing officer concluded  that  the
available trainee would have been capable of assisting Bauer  and
that  Bauer had effectively requested a third crew member  rather
than  a  second.   The  hearing officer  found  Bauer  guilty  of
disobeying  a  direct order and imposed thirty days  segregation.
Bauer   appealed  to  the  prison  superintendent.   The   acting
superintendent denied Bauers appeal but reduced the  sanction  to
fifteen  days  segregation, which Bauer  was  required  to  serve
despite his right of appeal to the superior court.
          Bauer   appealed   to  the  superior  court,   alleging
constitutional  violations in the disciplinary hearing  process.1
Repeatedly  citing lack of adequate time to prepare a  responsive
brief, DOC was granted three consecutive thirty-day extensions of
the  filing deadline.  When DOC moved for a fourth extension, the
court  granted  the request over Bauers objection  but  noted  it
would be the final extension.
          DOC  did  not submit a brief, moving instead to dismiss
the  appeal  as  moot  because SCCCs  acting  superintendent  had
reconsidered  [Bauers] appeal from the final agency decision  and
ordered  a re-hearing.  Within days, DOC notified Bauer that  the
original  disciplinary report had been reduced  to  informational
and that the scheduled disciplinary hearing . . . [would] not  be
          Bauer  then opposed DOCs motion to dismiss the  appeal,
contending  that:   (1) DOC was acting in bad  faith;2  (2)  DOCs
actions did not cure the constitutional defect[s] at issue in the
appeal;  (3) DOC no longer had jurisdiction once the  appeal  was
initiated  in  superior court; and (4) the appeal  was  not  moot
because  a live controversy and collateral consequences continued
to  exist.  Shortly thereafter, Bauer filed an application for  a
default judgment.
          In  its  reply, DOC asserted that it had acted in  good
faith  once it was advised that at least one of the appeal issues
likely had merit.  DOC contended that [t]he only relief available
to  Bauer  in  this appeal was . . . a remand for a new  hearing.
DOC  has now gone one step further, and reduced the report to  an
informational  report.  Bauer has no right to  appeal  from  this
reduction . . . .
          The superior court granted DOCs motion to dismiss.  The
court signed DOCs proposed order that the appeal was moot because
SCCCs acting superintendent had granted reconsideration of Bauers
appeal  and  had ordered a rehearing.  The court did not  address
DOCs  reduction  of  the  original  disciplinary  report  to   an
informational  item  in  Bauers file,  the  cancellation  of  the
rehearing, or Bauers request for a default judgment.
          Bauer  appeals, asserting that the superior court erred
in  dismissing  his  appeal and in failing  to  enter  a  default
judgment against DOC.
     A.   Bauers Appeal May Not Be Moot.
          Courts  generally decline to decide a question  of  law
where  the  facts of the case have rendered the  issue  moot.   A
claim is moot where a decision on the issue is no longer relevant
to  resolving the litigation, or where it has lost its  character
as  a  present, live controversy, that is, where a party bringing
the  action would not be entitled to any relief even if he or she
prevailed.  3  Bauers appeal is not moot if he might be  entitled
to  greater relief through appeal than DOC already has  provided.
Review of applicable prison policies and procedures suggests this
may be the case.
          When  a  prison staff member witnesses or has knowledge
of  an  instance of prisoner misconduct, that staff  member  must
write a report.4  The superintendent has discretion to refer  the
incident report to the Disciplinary Committee/Hearing Officer for
formal  action, refer it for informal resolution, or file  it  in
the  prisoners  case  record  as an  informational  report.5   An
informational  report  must  include,  among  other   things,   a
description  of  the  alleged  infraction  and  details  of   the
incident.6   Although [t]he Department may not take any  punitive
action  against a prisoner . . . because of an Information Report
in  the  prisoners  case  record,7 the  Department  may  consider
verified  acts  of  misbehavior in the  dispositive  phase  of  a
disciplinary  action.8   Whether  an  incident  described  in  an
informational report amounts to a verified act is not clear.
          If a disciplinary hearing officer finds that a prisoner
did not commit an infraction or if a finding of guilt is reversed
on appeal, the Superintendent must remove the disciplinary report
          and related documents from the prisoners case record.9  No
statute,   regulation,  or  provision  in  the  DOC  Policies   &
Procedures   specifically  allows  for   a   reduction   or   re-
classification  of  a  disciplinary report  to  an  informational
report.  But there is some ambiguity on this point:  DOC policies
state  that the superintendent shall file information reports  in
the  prisoners  case record for purposes of program assessment.10
It  is  not  clear whether informational reports  are  filed  and
maintained  in the record regardless of a not-guilty finding,  or
whether  an  informational  report  is  removed  under  the  same
circumstances as a disciplinary report.
          DOC  portrays reduction of Bauers original disciplinary
report to an informational item as complete relief.  Bauer argues
that  an  informational  report has both  direct  and  collateral
consequences.   He  describes the report  as  being  used  during
annual  classifications  to determine the  security  and  custody
levels of the prisoner . . . [and] during a parole hearing or any
other  hearings in the prisoners future.  Bauer claims  that  DOC
reduced  the  disciplinary report by simply marking the  original
disciplinary report as informational.11  Bauer contends that when
this  report is considered at future proceedings, any  effort  he
makes  to  explain  the  circumstances of  the  report  could  be
negatively  construed as not accepting responsibility  for  [his]
actions.   Bauer  fears  that this will  impact  his  ability  to
progress  to a medium or minimum [security] institution where  he
can receive more reformation.
          Had Bauer been found not guilty at his initial hearing,
or  at a new hearing ordered by the superior court, prison policy
seems  to require removal of all record of the incident from  his
file.12  If this is correct, merely re-characterizing the original
disciplinary report or reducing it to informational  is  not  the
most  favorable  relief available to Bauer in these  proceedings.
We  remand  to  the superior court to determine if  DOCs  actions
afforded Bauer full and complete relief,13 or if Bauer may obtain
greater relief through full consideration of his appeal or a  new
administrative hearing on the original disciplinary charges.14  If
a  new  administrative  hearing is ordered,  the  superior  court
should  determine what procedural infirmities DOC admits occurred
during  the  first  hearing  and how those  infirmities  will  be
remedied during a second hearing.15  Alternatively, the court may
determine  that a decision on the merits of Bauers constitutional
claims is warranted to provide guidance for the second hearing.
     B.   Bauer Was Not Entitled to a Default Judgment.
          Bauer  asserts  that the superior court  erred  in  not
ruling  on  his  application  for a default  judgment,  which  he
believed was properly brought under Alaska Civil Rule 55.16  Bauer
correctly  notes  that pro se litigants should be  held  to  less
stringent  standards than those of lawyers,17 but even  liberally
construed,  Bauers  request  for a  default  judgment  cannot  be
          Appeals of administrative actions are governed  not  by
the  Civil  Rules,  but  by Part Six of the  Rules  of  Appellate
Procedure.   Where,  as  here,  Part  Six  does  not  address   a
particular issue, the general Rules of Appellate Procedure apply.18
          Appellate Rule 212(c)(10) states that when an appellee fails to
file a brief as required, the appellee shall not be heard at oral
argument  except  by  appellant consent or court  request.   This
would have been an appropriate sanction for DOCs failure to  file
a  brief, not a default judgment granting all of the relief Bauer
sought.   The  superior  court did not  err  by  ignoring  Bauers
request  for a default judgment when it dismissed the  appeal  as
          We  VACATE the superior courts order dismissing  Bauers
appeal and REMAND for further consideration of whether it is moot
and  for  further  proceedings as  appropriate.   We  AFFIRM  the
superior  courts implicit denial of Bauers request for a  default
     1     On appeal, Bauer argued that:  (1) he was deprived  of
his  constitutional rights to confront his accusers and  to  call
witnesses  to  testify on his behalf; (2) the  prison  relied  on
evidence not properly in the record; and (3) the prison failed to
issue a written disciplinary hearing report based on findings  of
fact  that were consistent with the record.  Bauer also  asserted
that the disciplinary hearing report was inadequate and that  the
direct order itself was illegal and in violation of his right  to
a safe environment.

     2     From  Bauers  perspective,  he  was:   (1)  wrongfully
charged  with  misconduct;  (2) wrongfully  convicted  through  a
constitutionally  infirm  disciplinary  hearing;  (3)  wrongfully
sentenced  to   and actually served  fifteen days  in  segregated
detention;  and  (4) facing future difficulties  because  of  the
wrongful  disciplinary record in his prison file.  As  Bauer  saw
it,  he  was  about  to  prevail on  appeal,  but  after  already
physically  punishing him, DOC was conceding in a way that  would
keep  the same wrongful record in his prison file and would  deny
him all right of judicial review.

     3     See  Clark v. State, Dept of Corr., 156 P.3d 384,  387
(Alaska 2007) (quoting Ulmer v. Alaska Rest. & Beverage Assn,  33
P.3d  773,  776 (Alaska 2001)).  Whether an issue is  moot  is  a
matter of law to which we apply our independent judgment.   Akpik
v.  State,  Office of Mgmt. & Budget, 115 P.3d 532,  534  (Alaska
2005) (citing Ulmer, 33 P.3d at 776).

     4     See  22  Alaska  Administrative Code (AAC)  05.410(a);
State of Alaska Department of Corrections Policies and Procedures
(P&P) Procedure 809.03(A) (1995).

     5     P&P  Procedure  809.03(B).  But see 22  AAC  05.410(a)
(stating that informal resolution and denomination of reports  as
informational are not separate courses of action, but  sequential
steps of same action).

     6    P&P Procedure 809.03(A)(1)(a)-(b); 809.03(B)(3)(a); see
also 22 AAC 05.410(e).

     7     P&P Procedure 809.03(C)(4); 22 AAC 05.465(d); see also
22 AAC 05.455(a).

     8     P&P Procedure 809.03(C)(4); 22 AAC 05.465(d); see also
22 AAC 05.455(a).

     9    P&P Procedure 809.03(C)(2); see also 22 AAC 05.465(a).

     10    P&P Procedure 809.03(C)(3); see also 22 AAC 05.465(c).

     11    The report itself was not included in the record before

     12    P&P Procedure 809.03(C)(2); 22 AAC 05.465(a).

     13     Courts may consider the merits of moot claims  either
because  it  is in the public interest to resolve the issue,  see
Peter A. v. State, Department of Public Health & Social Services,
Office of Childrens Services, 146 P.3d 991, 996-97 (Alaska 2006),
or   because  collateral  consequences  exist  for  the  litigant
bringing  the  claim.   Id. at 994-95.   Because  we  remand  for
consideration of whether the appeal actually is moot, we need not
consider  whether  either  of these exceptions  to  the  mootness
doctrine  applies  here.  If on remand the superior  court  again
concludes  that  Bauers  appeal is moot, the  court  should  then
consider whether Bauers claims should be considered under  either

     14    Bauer emphasizes that he never requested a new hearing
and does not want a new hearing, arguing that a new hearing would
be  prohibited by law.  He requests instead that we  expunge  his
record.   But  that remedy would be inappropriate  here.   Bauers
appeal  focuses on procedural error.  If he prevails, the  proper
remedy  would be remand to the administrative agency for  a  due-
process-compliant hearing, not dismissal and expungement.

     15     DOC appears to concede that an error occurred in  the
course  of  Bauers disciplinary hearing, stating to the  superior
court  that at least one of the appeal issues likely [has] merit.
But  DOC did not specify what error it acknowledges, nor does  it
clarify its statement on appeal.  Instead, DOC states only that a
hearing  officer would know that error(s) had been  made  at  the
initial hearing and would presumably try to correct them.

     16    Alaska R. Civ. P. 55 (when party against whom judgment
for  affirmative relief is sought has failed to appear and answer
or  otherwise  defend as shown by affidavit or  otherwise,  clerk
shall enter default).

     17    Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) (emphasis

     18    See Alaska R. App. P. 601(c).

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