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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept. of Corrections v. Anthoney (4/16/2010) sp-6470

State, Dept. of Corrections v. Anthoney (4/16/2010) sp-6470, 229 P3d 164

     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

STATE OF ALASKA, )
DEPARTMENT OF ) Supreme Court No. S- 13396
CORRECTIONS, )
) Superior Court No. 3AN-06-12520 CI
Appellant, )
) O P I N I O N
v. )
) No. 6470 April 16, 2010
KIRBY D. ANTHONEY, )
)
Appellee. )
)
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial    District,    Anchorage,    Morgan
          Christen, Judge.

          Appearances:   Marilyn  J.  Kamm,   Assistant
          Attorney  General,  and Daniel  S.  Sullivan,
          Attorney   General,  Juneau,  for  Appellant.
          Kirby D. Anthoney, pro se, Seward.

          Before: Fabe, Winfree, and Stowers, Justices.
          [Carpeneti,  Chief  Justice,  and   Christen,
          Justice, not participating.]

          FABE, Justice.

I.   INTRODUCTION
          Kirby   Anthoney,  an  inmate  at  the   Spring   Creek
Correctional Center (SCCC), was charged with and found guilty  by
the  SCCC  disciplinary  committee of  mutual  combat.   Anthoney
appealed,  arguing  that he was not guilty of mutual  combat  and
that  the  Department of Corrections had violated his  procedural
due  process rights.  The superior court concluded that  Anthoney
had  been  charged  with  the  wrong offense,  ordered  that  his
disciplinary record be changed to reflect a guilty finding for  a
lesser   infraction,  and  affirmed  the  disciplinary  committee
decision  in all other respects.  The superior court  then  named
Anthoney  the prevailing party and awarded him costs.  The  State
only  appealed the superior courts prevailing party  designation.
Because  we conclude that the superior court correctly designated
Anthoney  as the prevailing party, we affirm the superior  courts
ruling.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Kirby   Anthoney   is  an  inmate   at   Spring   Creek
Correctional Center.  While working in the SCCC kitchen  on  July
20,  2006,  Anthoney was involved in an altercation  with  fellow
inmate  Fernando  Jimenez.  Erik Nielsen, a maintenance  plumber,
witnessed  and reported the altercation over the radio and  later
described  the  altercation in an incident  report.   As  Nielsen
reported, Anthoney said to Jimenez something to the effect of You
must  be  one  of  the  dumbest guys in the United  States,   and
Jimenez  responded by running the 10 to 15 feet distance  between
them  and  hit  [Anthoney] on the side  of  his  face.   Anthoney
disputed  this series of events.  He claimed that Jimenez  asked,
You got a problem, you got a problem, he then accused Jimenez  of
acting  like a jerk, and Jimenez then called him a rat and  swung
at him.1  Anthoney also claimed that he called Jimenez one of the
stupidest  guys  in the institution only after Jimenez  swung  at
him,  and because Jimenez did so in front of the security camera.
Both Nielsen and Anthoney agreed that Anthoney never struck back.
          At  least one officer responded to Nielsens radio call,
escorted both inmates away in hard restraints, and placed them in
administrative segregation.  Anthoney requested that the security
video footage from the kitchen at the time of the altercation  be
saved  for viewing by the disciplinary committee, but the footage
was not saved.
     B.   Proceedings
          On  July 28, 2006, the SCCC disciplinary committee held
Anthoneys  disciplinary hearing.  Anthoney was charged  with  the
high-moderate  infraction of mutual combat but pled  not  guilty.
At  the hearing, Anthoney presented his story of the altercation,
insisted that the security video would have verified that  story,
requested  that inmate Michael McCullough testify on his  behalf,
and  requested  leniency in light of his history  of  appropriate
behavior.  The disciplinary committee did not view the video  and
apparently  did not allow Anthoneys witness to testify.   Relying
on  Nielsens  incident report, the disciplinary  committee  found
Anthoney guilty of mutual combat and sentenced him to thirty days
of  punitive  segregation.  The committee  reasoned  that  either
physical or verbal assault could constitute mutual combat because
an  inmate  must respond to either type of assault or risk  being
considered a punk.
          Anthoney  appealed the committees decision to the  SCCC
superintendent.  Also  relying on Nielsens incident  report,  the
superintendent  affirmed the finding of  guilt  but  reduced  the
sanction to fifteen days of punitive segregation due to otherwise
appropriate   behavior.    Anthoney  requested   reconsideration,
stating  that  after  the  denial  of  his  appeal,  he  obtained
testimony  from inmate Michael Flynn who had been in the  kitchen
          at the time of the altercation and who would corroborate
Anthoneys  version  of  the  events.   The  request  was  denied.
Because  Anthoney  had  exhausted all  [d]epartmental  levels  of
appeal,  he  was placed in punitive segregation from November  27
through December 12.
          Anthoney  appealed to the superior court.  On June  21,
2007,  Superior  Court Judge Stephanie E. Joannides  ordered  the
State  to file a notice of preservation of the security video  or
an affidavit explaining what happened to it.  In response to that
order,  the  SCCC superintendent filed an affidavit stating  that
video footage is not shown to inmates for security reasons,  that
no  relevant  video footage existed because security cameras  did
not  record the area where the altercation occurred, and that all
video  footage is recorded over every thirty days.   On  May  23,
2008,  the  case  was reassigned to Superior Court  Judge  Morgan
Christen.
          Anthoney raised twenty-four points in his appeal.   The
superior  court  concluded that four of  those  had  been  waived
because  Anthoney  had not raised them in the proceedings  below.
It  grouped  the  remaining points into  seven  categories:   (1)
failure to write a proper incident report; (2) failure to allow a
witness  to  be called, to allow state of mind evidence,  and  to
explain  reasons for denial in writing and on record; (3) failure
to  admit video footage and to explain reasons in writing and  on
record;  (4)  failure  to  write a report  stating  the  specific
evidence  used to find appellant guilty; (5) incorrect definition
of  mutual  combat;  (6) insufficient evidence  and  reliance  on
hearsay; and (7) denial of appellants motion for reconsideration.
Anthoney  also  claimed  the  State knowingly  and  intentionally
violated  his rights.  He requested amendment of his disciplinary
record, reinstatement to the position he occupied before  he  was
found guilty, and lost wages.
          On  September  22,  2008,  the superior  court  granted
Anthoneys appeal on his claim that the State improperly  included
a  verbal  assault within the definition of mutual combat.    The
superior court reasoned that [u]sing abusive language in  such  a
way  that  invites retaliation is not mutual and .  .  .  is  not
combat  and concluded that the evidence did not support a finding
of guilt for mutual combat but for the lesser infraction of using
abusive or obscene language.2  As the superior court indicated, a
charge  for the lesser infraction was supported both by  Nielsens
statement that Anthoney called Jimenez one of the dumbest guys in
the  United  States  before  Jimenez hit  him  and  by  Anthoneys
statement  that he accused Jimenez of acting like a  jerk  before
Jimenez  hit  him.   The  superior court ordered  that  Anthoneys
disciplinary record be amended to reflect a finding of guilt  for
the low-moderate infraction set out in 22 AAC 05.400(d)(13).3  It
denied   Anthoneys   other  appeal  points   and   affirmed   the
disciplinary committees decision in all other respects.4
          On  October  20, 2008, Anthoney filed a motion  for  an
award of costs.  The State made two arguments in opposition:  (1)
that Anthoneys motion was untimely and (2) that Anthoney was  not
the  prevailing party.  The superior court found that because the
clerk  of court did not provide Anthoney with the necessary  form
          regarding costs and attorneys fees until October 10, Anthoneys
motion  was  timely.  The superior court also found  that,  while
Anthoney  did raise twenty-four appeal points, the primary  issue
on  appeal was whether Anthoney had been charged with the correct
offense, and Anthoney prevailed on this main claim.  The superior
court  awarded Anthoney $411.44 in costs. The State  appeals  the
superior  courts designation of Anthoney as the prevailing  party
and its order awarding him costs.
III. STANDARD OF REVIEW
          We  review  for  abuse  of discretion  a  trial  courts
determination  of the prevailing party for purposes  of  awarding
attorneys  fees and costs.5  This is the appropriate standard  of
review  even  where the trial court is acting as an  intermediate
appellate  court  and awarding fees and costs  under  the  Alaska
Rules  of  Appellate  Procedure.6  We overturn  prevailing  party
determinations only if they are manifestly unreasonable.7
IV.  DISCUSSION
          Alaska Appellate Rule 508(c) provides that, [i]n  cases
of  partial  affirmance  and partial  reversal,  the  court  will
determine  which party, if any, shall be allowed  costs.   As  we
have  held,  the  prevailing party is the  one  who  successfully
prosecutes  the  action  or  successfully  defends  against   it,
prevailing  on the main issue, even though not to the  extent  of
the  original contention.8  The superior court in this case found
that  Anthoney  prevailed on the main issue  on  appeal   whether
Anthoney  had  been  charged with the  wrong  offense   and  that
[a]lthough  the  State  succeeded on more points  than  Anthoney,
these  points  combined  were  less significant  than  the  point
affirmed by the Court in favor of Anthoney.
          The  State  disputes both of these findings and  argues
that  the  superior  court abused its discretion  in  designating
Anthoney  the  prevailing  party.  In  its  briefing,  the  State
characterizes  the  main issue in the case as whether  [Anthoney]
was  guilty of violating 22 AAC [05.]400.  The State argues  that
because  Anthoney was found guilty of the low-moderate infraction
defined  in  22  AAC 05.440(d)(13), the State prevailed  on  this
issue.  We disagree.
          As  Anthoney  explains in his reply brief,  the  States
argument  focuses on Anthoneys original belief that  he  was  not
guilty  of any infraction instead of his main argument on  appeal
that  he was wrongfully found guilty of mutual combat.  From  our
review  of  the  record below, it is clear to  us  that  Anthoney
appealed  his conviction because he had been found guilty  of  an
infraction  that  he  believed he had not  committed.   Anthoneys
initial  appeal  to  the superintendent was titled,  Grounds  for
Appeal  of  Infraction 22 AAC 05.440(c)(1),  indicating  that  he
specifically appealed his mutual combat charge.  Anthoneys  first
point  under  that  title was, Insufficient Evidence  To  Support
Charged  Infraction, under which he asserted that the  definition
of  mutual  combat  necessarily  included  a  physical  exchange.
(Emphasis in original.)  Although Anthoney also argued  that  his
actions did not even rise to the level of an infraction under  22
AAC  05.440(d),  he  had  never  been  charged  with  any  lesser
infraction and thus was not appealing a guilty finding  involving
          the lesser infraction.  For these reasons, the superior court
appears to have been correct in its finding that whether Anthoney
had  been charged with the wrong offense . . . was the main issue
on  appeal.   Certainly, the superior court  did  not  abuse  its
discretion in making this finding.
          The   State  also  asserts  that  the  superior  courts
decision  favors  the State in an overall sense because  Anthoney
did  not prevail on any of his procedural due process claims  and
because Anthoney was not granted all the relief he sought.   This
argument is without merit.
          We  have  consistently held that to be  designated  the
prevailing  party, a party need only prevail on  the  main  legal
issues  in the case.9  Even a plaintiff who recovers on only  one
claim  may  be designated the prevailing party.10  And while  the
State is correct that receiving an affirmative recovery does  not
guarantee  prevailing  party status,11 we  have  also  held  that
plaintiffs should not be penalized for recovering less than  what
they  originally sought.12  In Progressive Corp. v. Peter ex rel.
Peter,  the  plaintiff  lost fourteen  of  his  original  sixteen
claims, including one large punitive damages claim, and prevailed
on  only one claim.13  The lower court nonetheless concluded that
the plaintiff had prevailed on the main issue in the case and, on
appeal,  we  held  that  the  lower  court  had  not  abused  its
discretion.14  That courts should not count claims  to  determine
prevailing party status is particularly apparent where, as  here,
the  plaintiff  is pro se and may not know which of  his  or  her
possible  claims are likely to be successful.  For these reasons,
the  superior  court  did  not abuse  its  discretion  in  naming
Anthoney  the prevailing party [a]lthough the State succeeded  on
more points than Anthoney.
V.   CONCLUSION
          Because  the superior court acted within its discretion
when it designated Anthoney the prevailing party and awarded  him
costs, we AFFIRM the superior courts judgment.
_______________________________
     1     This  description of Anthoneys version  of  events  is
drawn   from   his  request  for  reconsideration  mentioned   in
subsection B, infra.  Anthoney did not admit accusing Jimenez  of
acting like a jerk during his disciplinary hearing.

     2     In  relevant part, 22 Alaska Administrative Code (AAC)
05.400 provides:

          (c)   High-moderate infractions  include  the
          following:
          
               (1)  fighting (i.e., mutual combat) with
          a person;
          
               . . .
          
          (d)   Low-moderate  infractions  include  the
          following:
          
               . . .

               (13)  using abusive or obscene  language
          or  gesture that is likely to provoke a fight
          or  that clearly disrupts or interferes  with
          the security or orderly administration of the
          facility . . . .
          
     3     The superior court concluded that Anthoneys punishment
of fifteen days punitive segregation, reduced from thirty days by
the SCCC supervisor, was not excessive for this lesser infraction
because 22 AAC 05.470 provides that a prisoner not be confined in
punitive  segregation for a period exceeding 20 days for  a  low-
moderate infraction.

     4     As  Anthoney points out in his briefing, the  superior
court  did  not conclude that all of his procedural  due  process
claims  were  without  merit.  Regarding  the  SCCCs  failure  to
preserve  security  video  footage  and  seeming  limitation   of
Anthoneys ability to call a witness at his hearing, the  superior
court  simply  found that, because Anthoney had already  admitted
accusing Jimenez of acting like a jerk, neither action could have
prejudiced Anthoney in his hearing.

     5     Hutchins  v.  Schwartz, 724 P.2d  1194,  1204  (Alaska
1986).

     6     Rosen v. State Bd. of Pub. Accountancy, 689 P.2d  478,
482 (Alaska 1984).

     7     Progressive  Corp. v. Peter ex rel.  Peter,  195  P.3d
1083, 1092 (Alaska 2008) (citing Interior Cabaret, Hotel, Rest. &
Retailers Assn v. Fairbanks N. Star Borough, 135 P.3d 1000,  1002
(Alaska 2006)).

     8     K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702,
721  (Alaska  2003); see also Blumenshine v. Baptiste,  869  P.2d
470,  474  (Alaska  1994)  (We have consistently  held  that  the
prevailing party is the one who prevailed on the main issues.   A
plaintiff may prevail even if he or she failed to recover all  of
the relief prayed for.).

     9     K & K Recycling, 80 P.3d at 721; Blumenshine, 869 P.2d
at 474.

     10    See Progressive Corp., 195 P.3d at 1093.

     11     See  Hutchins v. Schwartz, 724 P.2d 1194, 1196,  1204
(Alaska  1986)  (holding  that trial  court  did  not  abuse  its
discretion  by  naming  defendant  the  prevailing  party   where
plaintiff  recovered $1,937.09 less forty percent on a claim  for
$275,000); Owen Jones & Sons, Inc. v. C. R. Lewis Co.,  497  P.2d
312,  313-14 (Alaska 1972) (affirming trial courts decision  that
defendant  who  prevailed on main legal issue was the  prevailing
party despite plaintiffs recovery of $7,363.12).

     12      Progressive   Corp.,  195  P.3d  at   1093   (citing
Blumenshine, 869 P.2d at 474).

     13    Id. at 1086, 1092.

     14     Id. at 1093-94.  The defendant insurer agreed to  pay
$75,681.27 on one of the plaintiffs claims after losing a summary
judgment  motion  and having its  petition  for  review  of  that
decision   denied.  The  plaintiff  continued  to  litigate   and
eventually  lost  on his remaining claims, but  the  lower  court
concluded  that  the main issue in the case was resolved  by  its
summary judgment ruling in the plaintiffs favor.  Id.

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