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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Adkins v. Stansel (04/10/2009) sp-6360

Adkins v. Stansel (04/10/2009) sp-6360, 204 P3d 1031

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

CHET ADKINS, )
) Supreme Court No. S- 13114
Appellant,)
) Superior Court No. 3AN-07- 11891 CI
v. )
) O P I N I O N
)
KARL STANSEL, Individually and as ) No. 6360 - April 10, 2009
Assistant Warden of Florence)
Correctional Center,)
)
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:  Chet Adkins, Appellant.   Craig
          S.  Howard, Richmond & Quinn, Anchorage,  for
          Appellee.

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

          WINFREE, Justice.

I.   INTRODUCTION
          An Alaska prisoner in a private Arizona prison facility
sued a prison official for allegedly violating his constitutional
rights  by  denying visitation with a relative who  had  traveled
from  Alaska.  The superior court dismissed the suit for  failure
to  state  a cause of action upon which relief might be  granted,
stating that an isolated incident which prevented visitation  due
to  an  acknowledged  oversight by  prison  officials  is  not  a
Constitutional violation under Alaska law.  Because the prisoners
complaint  must be read to allege an intentional  rather  than  a
mistaken  denial of visitation, it was error to dismiss the  suit
on  the  basis that the prison officials action was mere mistake.
We reverse and remand for further proceedings.
II.  FACTS AND PROCEEDINGS
          Chet  Adkins  is an Alaska prisoner incarcerated  in  a
private  Arizona  correctional facility operated  by  Corrections
Corporation  of America (CCA).  In November 2005 Adkinss  cousin,
James Guinn, contacted Adkins about visiting the prison during an
upcoming  trip  Guinn  and his wife were making  from  Bethel  to
Denver,  Colorado.   Guinn then scheduled  a  visit  with  Adkins
through  CCA  employee Karl Stansel, an assistant warden  at  the
Arizona  facility.  The Guinns arrived at the prison as scheduled
but were denied access to Adkins, and visitation did not occur.
          Adkins  wrote a letter to the prison warden complaining
of  the incident and asking that:  (1) an apology be extended  to
the  Guinns;  (2)  the Guinns be reimbursed for  their  time  and
expense in traveling to Arizona for the failed visit; and (3) CCA
[u]ndertake  a  thorough  and  unflinching  examination  of  [the
prisons]  policies  and possible cultural prejudices  toward  the
family  and  community ties of prisoner[s].  In reply the  warden
apologized  to  Adkins but stated he was unable  to  approve  the
reimbursement   request,  characterizing  the   incident   as   a
miscommunication . . . between the supervisors and an unfortunate
oversight on our part.
          Adkins filed a prison grievance, seeking:  (1) monetary
compensation  to  the  Guinns  for their  time  and  expenses  in
attempting  to  visit Adkins; and (2) compensatory  and  punitive
damages  to Adkins for violation of his constitutional  right  to
rehabilitation  and  for  breach of CCAs and  Stansels  fiduciary
obligations  to  protect  his  rights.   The  State  of   Alaska,
Department   of  Corrections  (DOC)  denied  Adkinss   grievance,
referring to the unfortunate incident as an oversight and  noting
that the warden has apologized . . . for the mistake.  The Office
of  the  Commissioner  of DOC upheld the denial  of  the  appeal,
stating that [a]n error was made, apologies have been given,  and
assurances have been extended to try to prevent a reoccurrence of
the problem.
          Adkins  then sued Stansel in his personal and  official
capacities,   alleging   Stansel  violated   Adkinss   right   to
rehabilitation, as provided by the Alaska State Constitution  and
breached  his  fiduciary  duty to protect Adkinss  constitutional
right  to rehabilitation.  Attached to Adkinss verified complaint
were:   (1)  his letter to the warden; (2) the wardens  response;
(3)  his grievance; (4) DOCs denial of his grievance; and (5) the
DOC Commissioners Offices denial of his appeal.
          Stansel  filed  a  motion  to  dismiss,  conceding  the
incident of failed visitation but arguing that no relief could be
granted.   Stansel  asserted  that he  owed  Adkins  no  relevant
fiduciary  duty  and that one inadvertent isolated  incident  [of
failed visitation] stemming from a miscommunication does not rise
to  the  level  of a constitutional violation [of  the  right  to
rehabilitation].
          In opposition to the dismissal motion, Adkins clarified
that  his  suit was based solely on his constitutional  right  to
rehabilitation  under  article  I,  section  12  of  the   Alaska
Constitution.1  Adkins stressed the importance of visitation to a
prisoners  rehabilitation efforts, noting that even  an  isolated
denial  of  visitation is important when visitation opportunities
are  infrequent.  Adkins stated that through affidavit  testimony
he  could establish the denied visitations adverse impact on  his
familys willingness to attempt subsequent visitations.
          The  superior court granted Stansels motion to  dismiss
Adkinss  suit.   The  court  did  not  directly  address  Adkinss
fiduciary duty claim, presumably considering it a part of Adkinss
constitutional  claim, but concluded that  an  isolated  incident
which  prevented visitation due to an acknowledged  oversight  by
prison  officials is not a Constitutional violation under  Alaska
law.
          Adkins  appeals  the  dismissal of  his  constitutional
claim.
III. STANDARD OF REVIEW
          We review de novo decisions granting or denying motions
to dismiss.2  We have explained that:  [i]f, within the framework
of the complaint, evidence may be introduced which will sustain a
grant  of  relief to the plaintiff, the complaint is  sufficient.
We  must presume all factual allegations of the complaint  to  be
true  and  make all reasonable inferences in favor  of  the  non-
moving  party.3   Because motions to dismiss are disfavored,  [a]
complaint  should not be dismissed for failure to state  a  claim
unless  it appears beyond doubt that the plaintiff can  prove  no
set  of  facts that would entitle him or her to relief.4 Even  if
the  relief  demanded  is unavailable, the claim  should  not  be
dismissed as long as some relief might be available on the  basis
of the alleged facts.5
     


     Pleadings  of  pro se litigants are held to  less  stringent
standards than those of lawyers.6  When the essence of a  pro  se
litigants  argument is easily discerned  from the  briefing,  the
trial court should consider that argument when the applicable law
is   well  established  and  the  opposing  party  would  not  be
prejudiced by consideration of the issues raised.7
IV.  DISCUSSION
     A.   Constitutional Background
          Article  I,  section  12  of  the  Alaska  Constitution
provides  prisoners  a  fundamental  rehabilitation  right.8   In
Brandon v. State, Department of Corrections we recognized that  a
prisoners  right to visitation is an important component  of  the
fundamental right to rehabilitation,9 but we declined  to  define
the  required  scope  or possible limitations  of  the  right  to
visitation, leaving that for future adjudications.10  In Larson v.
Cooper  we  upheld  a  prisons security-based policy  prohibiting
physical  contact between prisoners and visitors  other  than   a
short  embrace upon initial contact and again upon departure,  11
concluding  that  reasonable limits  on  contact  visitation  for
prisoners   were   within   the  sound   discretion   of   prison
administrators  and did not violate the constitutional  right  to
          rehabilitation.12  We also held that temporary suspension of
contact  visitation as a form of discipline does not violate  the
constitutional  right to rehabilitation,13 noting that  temporary
and   non-arbitrary  withdrawals  of  visitation  privileges  are
accepted methods of prison discipline.14
          In  Rathke v. Corrections Corp. of America we held that
an  Alaska prisoner housed in an Arizona CCA prison had the right
to  bring  certain  constitutional claims  against  CCA  and  its
employees.15  Although federal law allows direct tort actions for
some  violations  of  the  federal  constitution,  we  have   not
recognized  a  private right of action for  damages  based  on  a
violation  of the Alaska Constitution.16  We have indicated  only
that  we  will  not recognize such a remedy if the constitutional
violation is not flagrant or if alternative remedies exist.17
     B.   Adkinss Complaint
          Adkins  alleged in his complaint that:  (1) the  Guinns
wanted  to  visit him during a trip from Bethel  to  Denver;  (2)
Stansel  approved  the  visit  and the  Guinns  were  on  Adkinss
approved  visitor list; (3) the Guinns took the time and incurred
the  expense to detour through Arizona to visit Adkins;  and  (4)
the  Guinns arrived at the prison to visit Adkins but were turned
away.   Adkins  alleged that [p]roviding the  State  and  Federal
rights  of  its  detainees is an operating expense  that  reduces
profits.  Adkins also alleged that CCA has complete control  over
the  circumstances and conditions of confinement at  the  Arizona
prison.   Adkins  described his letter  to  the  warden  and  the
response  he received as well as the grievance he filed regarding
the  incident;  he attached copies of relevant documents  to  his
complaint.
          Adkinss  attached letter to the prison warden contained
the following statement:
          What  compounds  this [denial  of  visitation
          rights]   is  that  it  is  not  an  isolated
          incident.  It is only the latest in a  string
          of   events,   which  taken  separately   can
          reasonably  be explained away.   Together,  I
          feel    they    demonstrate   a    disturbing
          indifference toward the family and  community
          ties of those in your care and custody.
          
Adkinss  letter also referred to a systemic lack of  concern  for
prisoners family ties and suggested possible cultural prejudices,
citing  as  examples  the  rescheduling  of  the  prisons  Native
Potlatch  and  Black History Month celebrations.  Adkinss  letter
asserted  that moving the celebrations from weekends to  weekdays
made relatives participation more difficult.  Adkinss letter also
referred  to  a  specific denial of requested  contact-visitation
with his son, who was about to be re-deployed to Iraq.
          Adkins  concluded his complaint by asserting  that  the
facts   sufficiently  demonstrated  Stansel  had   violated   his
constitutional   right  to  rehabilitation.    Adkins   requested
compensatory and punitive damages and [o]ther such relief as  the
Court deems just and proper.

     C.   Stansels Dismissal Motion and Arguments on Appeal
          In   the  superior  court  Stansel  acknowledged   that
visitation   is   an   important   component   of   a   prisoners
constitutional right to rehabilitation.  Stansel then pointed out
that limited withdrawal of visitation privileges for disciplinary
purposes is an acceptable limitation on the constitutional  right
to  rehabilitation and extrapolated that one inadvertent isolated
incident  stemming from a miscommunication does not rise  to  the
level of a constitutional violation.18
          Citing Brandon19 for the proposition that visitation is
a  critical  element  of  a  prisoners  constitutional  right  to
rehabilitation,  Adkins  argued in  his  opposition  to  Stansels
motion to dismiss that:  (1) even small amounts of visitation are
important   to   a   prisoners  rehabilitation;  (2)   visitation
opportunities  for  Alaska  prisoners  housed  in   Arizona   are
infrequent;   and  (3)  he  could  establish  through   affidavit
testimony that the Guinns decided not to make additional trips to
the  prison to try to see Adkins because of the incident.  Adkins
concluded  that  any impingement on visitation  has  a  corrosive
effect on the relationships upon which a prisoners success  after
release is proven to depend.  At no point did Adkins concede  the
failed visitation was the result of a mere mistake.
          As  noted  the  superior  court granted  the  dismissal
motion,   stating  that  an  isolated  incident  which  prevented
visitation  due to an acknowledged oversight by prison  officials
is not a Constitutional violation under Alaska law.

          On  appeal  Adkins  maintains he should  be  given  the
opportunity  to prove that Stansels actions were more  than  mere
negligence  and to show a pattern of conduct regarding visitation
denials  for  Alaska  prisoners  in  the  Arizona  CCA  facility.
Stansel maintains the denial of the Guinns visitation with Adkins
resulted from an admittedly inadvertent miscommunication and that
the single mistaken denial of visitation cannot be the foundation
of  a  claim  that Adkinss constitutional right to rehabilitation
was violated.
     D.   Disposition of Appeal
           Viewing Adkinss complaint (with its attachments20)  in
the  light  most favorable to him, and taking into  account  that
Adkins  is a pro se litigant, we conclude Adkins alleged  (1)  an
intentional  and  unjustified denial of visitation  motivated  by
CCAs concern about costs, and (2) that this denial was part of  a
pattern  of  conduct  showing  deliberate  indifference  to   the
visitation rights of Adkins and other Alaska prisoners housed  in
Arizona.   We  do  not  express  an  opinion  on  whether   these
allegations  of  intentional  misconduct  provide  a  basis   for
injunctive,  declarative,  or monetary  relief  under  the  state
constitution  this was not raised either in the superior court or
on appeal.21
          We   do  conclude  it  was  error  to  dismiss  Adkinss
constitutional claim at the pleading stage on the rationale  that
the  failed visitation was the result of mere mistake rather than
of intentional misconduct.  Adkins never alleged or conceded that
Stansel  made  a  mistake.   Although  Adkins  attached  to   his
          complaint copies of communications from prison and DOC officials
in  which persons other than Stansel stated in conclusory fashion
that  the  failed  visitation was the  result  of  a  mistake  by
unidentified   supervisors,  those  conclusory  and   unsupported
statements are insufficient to demonstrate that Stansel  actually
made  a  mistake and cannot be used against Adkins in that manner
to support a motion to dismiss.22
          It  may  be  that denial of the Guinns visitation  with
Adkins  was the result of a mere mistake by Stansel.  It  may  be
that  an inadvertent and isolated denial of visitation, even when
visitation  is a rare commodity for Alaska prisoners  in  Arizona
prisons,  cannot  be  a  violation of a prisoners  constitutional
right  to  rehabilitation redressable by injunctive, declaratory,
or  monetary relief.  These conclusions might be reached  upon  a
summary  judgment  motion  in which Stansel  presents  sufficient
admissible  and uncontradicted evidence to prove he made  a  mere
mistake  that was not part of a pattern of visitation denials  to
Alaska  prisoners held in the Arizona prison.  These  conclusions
cannot  be  reached  on  Adkinss pleadings alone,  and  therefore
Stansels motion to dismiss should not have been granted.23
V.   CONCLUSION
          We  REVERSE  the superior courts dismissal  of  Adkinss
constitutional  claim and REMAND for proceedings consistent  with
this opinion.
_______________________________
     1     Article  I,   12 provides in relevant  part,  Criminal
administration shall be based upon the following:  the  need  for
protecting  the public, community condemnation of  the  offender,
the  rights of victims of crimes, restitution from the  offender,
and the principle of reformation.

     2     Varilek v. City of Houston, 104 P.3d 849, 851  (Alaska
2004).

     3     Belluomini  v. Fred Meyer of Alaska,  Inc.,  993  P.2d
1009,  1014  (Alaska 1999) (quoting Kollodge v. State,  757  P.2d
1024, 1026 (Alaska 1988) (internal punctuation omitted)).

     4    Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d 719,
722 (Alaska 2006).

     5    Miller v. Johnson, 370 P.2d 171, 172 (Alaska 1962).

     6     Rathke  v.  Corr. Corp. of Am., 153 P.3d  303,  308-09
(Alaska 2007).

     7    Id. at 309.

     8    Abraham v. State, 585 P.2d 526, 531-33 (Alaska 1978).

     9    938 P.2d 1029, 1032 n.2 (Alaska 1997).

     10    Id.

     11    90 P.3d 125, 126 (Alaska 2004).

     12    Id. at 133-34.

     13    Id. at 135.

     14    Id. at 135-36 (citing Overton v. Bazzetta, 539 U.S. 126
(2003)).

     15    153 P.3d 303, 309.

     16    Lowell v. Hayes, 117 P.3d 745, 753 (Alaska 2005); Thoma
v.  Hickel,  947  P.2d 816, 824 n.5 (Alaska  1997)  (Direct  tort
actions  for  violation  of  certain provisions  of  the  federal
constitution have been recognized.  The leading case is Bivens v.
Six  Unknown Named Agents of the Federal Bureau of Narcotics [403
U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)].  We have neither
adopted  nor rejected the Bivens approach with respect  to  state
constitutional violations. (citations omitted)).

     17    Lowell, 117 P.3d at 753 (quoting Dick Fischer Dev. No.
2 v. State,Dept of Admin., 838 P.2d 263, 268 (Alaska 1992)).

     18     Stansel did not suggest that the denial of the Guinns
visit  with  Adkins was pursuant to a prison policy  or  for  any
purpose  legitimate to the proper functioning and  administration
of a correctional facility.

     19     938  P.2d  1029,  1032 n.2 (stating  that  visitation
privileges   are   an   important  component   of   a   prisoners
constitutional right to rehabilitation).

     20     Attachments to a complaint are properly considered  a
part  of  the  complaint in connection with a motion to  dismiss.
Kaiser v. Umialik Ins., 108 P.3d 876, 878 n.1 (Alaska 2005).

     21    We do note that we have consistently stated a plaintiff
would  have to show both a flagrant constitutional violation  and
the  unavailability of other remedies to establish  a  claim  for
damages based on a constitutional violation.  Lowell, 117 P.3d at
753  (quoting Dick Fischer Dev. No. 2, 838 P.2d at 268); see also
Peoples  v. CCA Det. Ctrs., 422 F.3d 1090, 1101 (10th Cir.  2005)
(en  banc)  (holding that there is no implied  private  right  of
action  for damages under Bivens against employees of  a  private
prison  for  alleged constitutional deprivations when alternative
state  or  federal causes of action for damages are available  to
the  plaintiff  and  reasoning that [s]uch a claim  is  therefore
properly dismissed under Rule 12(b)(6)).  Thus, even if Adkins is
able  to  demonstrate that the denied visitation was not  a  mere
mistake but was intentional and part of a pattern of conduct,  he
still  may not have a claim for damages based on a constitutional
violation.

     22    Cf. Odom v. Fairbanks Mem. Hosp., 999 P.2d 123, 130-31
(Alaska  2000)  (affirming grant of motion to dismiss  physicians
defamation  claim based on allegedly false report  to  a  medical
data  bank  when  allegations  of  and  attachment  to  complaint
unequivocally demonstrated facial truth of the report).

     23    Our resolution of this appeal does not bar Stansel from
again  moving to dismiss Adkinss claims for failure  to  state  a
claim  upon which relief can be granted, but the motion  must  be
based  on our stated interpretation of Adkinss complaint.  Alaska
R. Civ. P. 12(g), (h)(2).

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