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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Schug v. Moore (7/2/2010) sp-6487

Schug v. Moore (7/2/2010) sp-6487, 233 P3d 1114

     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

FRANKLIN SCHUG, )
) Supreme Court No. S- 13162
Appellant,)
) Superior Court No. 3AN-07- 06330 CI
v. )
) O P I N I O N
STEPHANIE GALBRAITH MOORE,)
) No. 6487 July 2, 2010
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, William F. Morse, Judge.

          Appearances:    Franklin   Schug,   pro   se,
          Anchorage,  Appellant.   Laura  C.   Bottger,
          Assistant  Attorney General,  Anchorage,  and
          Daniel S. Sullivan, Attorney General, Juneau,
          for Appellee.

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

          CHRISTEN, Justice.

I.   INTRODUCTION
          In  2004  Franklin Schug sued the Alaska Department  of
Corrections (DOC) for negligently causing him to suffer  personal
injury  while  being  transported from an  Alaska  prison  to  an
Arizona  prison.  Assistant Attorney General Stephanie  Galbraith
Moore  defended DOC in that suit, and the jury entered a  verdict
in  DOCs  favor.  Schug then sued Moore, alleging she engaged  in
fraud,  deception, and conspiracy in connection with his personal
injury  case.   The  superior  court granted  Moores  motion  for
summary  judgment because Moore is absolutely immune  from  these
claims  and Schugs claims against Moore were unsustainable  as  a
matter  of  law.   Although we do not decide  whether  Moore  has
absolute  or qualified immunity, we agree that Moore is protected
by  official immunity and that Schugs claims are unsustainable as
a  matter of law.  Therefore, we affirm the superior courts order
granting summary judgment.
II.  FACTS AND PROCEEDINGS
          The  State  of Alaska incarcerated Schug in Alaska  and
Arizona  from  2000 until 2008.  Schug filed a complaint  against
DOC  in 2004 seeking compensation for injuries allegedly suffered
while  being  transported by air from  an  Alaska  prison  to  an
Arizona prison.  Attorney Joe Josephson represented Schug in  the
personal  injury suit.  A jury returned a verdict in DOCs  favor.
Schug  did  not  file  a timely appeal, but he  did  subsequently
initiate  two separate actions against Josephson and Moore.   All
of  Schugs  claims  against Moore for attorney malpractice  arose
from  her role as DOCs defense attorney in Schugs personal injury
case.
          Moore  filed a motion for summary judgment that grouped
Schugs allegations against her into three categories.  The  first
category  encompasses  Schugs claims that  during  discovery  and
trial of the personal injury case, Moore engaged in multiple acts
of deceit that deprived him of a fair trial.  The second category
includes  Schugs  claims that Moore conspired with  Josephson  to
hide evidence, to prevent Schug from pursuing certain claims, and
to  prevent  him from filing a timely appeal of the verdict.   In
the third category of claims, Schug alleges that Moore knew of  a
grand conspiracy between Cornell Prison Systems and Josephson  to
keep Schug confined and deny him medical care.
          Moore filed a motion for summary judgment arguing  that
her  actions  as  the attorney defending DOC  were  protected  by
qualified or absolute official immunity and, alternatively,  that
Schugs allegations were factually baseless and unsupportable as a
matter  of  law.   The materials Schug filed in response  to  the
summary   judgment   motion  reasserted   the   same   conclusory
allegations  made  in  his complaint.  He offered  no  admissible
evidence to support his claims against Moore.
          On  January 25, 2008, the superior court granted Moores
motion  for  summary  judgment because all  three  categories  of
claims  are  unsustainable  as a matter  of  law  and  Moore  had
absolute  immunity  as  to the first two  categories  of  claims.
Schug  only  appeals  the superior courts ruling  dismissing  the
first two categories of his claims.
III.      STANDARD OF REVIEW
          We  review  the  grant  of summary  judgment  de  novo,
reading  the record in the light most favorable to the non-moving
party  and  making all reasonable inferences in its  favor.1   We
will affirm a grant of summary judgment when there are no genuine
issues  of  material  fact and the moving party  is  entitled  to
judgment as a matter of law.2 The party opposing summary judgment
must  set forth specific facts showing genuine issues and  cannot
rest   on  mere  allegations.3   These  facts  must  arise   from
admissible  evidence.4  To determine whether the nonmoving  party
can  produce  admissible  evidence  creating  a  genuine  factual
dispute,   we   will   consider  the   affidavits,   depositions,
          admissions, answers to interrogatories and similar material.5
          The  applicability and scope of official immunity raise
only questions of law to which we are free to substitute our  own
judgment for that of the trial court.6
IV.  DISCUSSION
     A.   The Trial Court Correctly Concluded That Moores Actions
          As  DOCs  Defense Attorney Were Shielded From  Suit  By
          Official Immunity.
          
          We use a three-part test to determine the existence and
scope of official immunity:  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?7
          Official immunity applies to Moores conduct if  it  (1)
was  within  the scope of her authority as an assistant  attorney
general,   and   (2)  consisted  of  discretionary   acts.8   The
allegations against Moore satisfy both parts of this  test.   Her
job as an assistant attorney general is to represent the state in
all  civil litigation in which the state is a party.9  All of the
activities described in Schugs complaint and in his opposition to
Moores motion for summary judgment involved Moores representation
of  DOC in litigation against him; they were therefore within the
scope  of  Moores  authority as DOCs attorney.  Moreover,  Moores
decisions to object to the presentation of evidence (or not),  to
present witnesses, to hire expert witnesses, and to take all  the
other   challenged  actions  to  defend  DOC  in  the  underlying
litigation    were   discretionary   acts   requiring    personal
deliberation,  decision  and  judgment.10   For  these   reasons,
official  immunity  applies to Moores  actions  as  DOCs  defense
attorney.
          Because  we conclude that official immunity applies  to
Moores  conduct  as DOCs attorney and because  Schug  offered  no
evidence that Moore acted corruptly, maliciously, or in bad faith
during  her  defense  of DOC, we agree with the  superior  courts
conclusion  that  Moore  was  protected  from  suit  by  official
immunity.   We  do  not  decide whether Moore  was  protected  by
absolute  or qualified immunity when she represented DOC  in  the
underlying litigation.
     B.   Schugs Claims Are Unsupportable As A Matter Of Law.
          Schug   alleges   Moore  committed  fraud,   deception,
bribery,  and  conspiracy before and during the  personal  injury
trial.  His unsupported allegations of wrongdoing do not rise  to
the level of disputed issues of material fact unless the record .
.  .  contain[s]  at  least some objective evidence  establishing
facts   capable  of  supporting  an  inference  of  wrongdoing.11
[C]onclusory   statements  describing   [a   partys]   subjective
impressions do not raise disputed questions of material fact.12
          Schug  failed  to  carry his burden  to  defeat  Moores
motion  for  summary judgment.  He offered no objective  evidence
establishing facts capable of supporting an inference that  Moore
engaged in wrongdoing before or during the 2006 trial.  At  best,
his  allegations  against  Moore appear  to  be  the  product  of
          confusion about her role as a defense attorney.  Because Schug
failed  to offer admissible evidence that could give rise  to  an
inference of a conspiracy or other wrongful conduct by Moore,  we
affirm the trial courts order granting summary judgment in Moores
favor.
V.   CONCLUSION
          We  AFFIRM  the superior courts order granting  summary
judgment and dismissing Schugs complaint.
_______________________________
     1     Witt  v.  State,  Dept of Corr., 75  P.3d  1030,  1033
(Alaska 2003) (citing Spindle v. Sisters of Providence in  Wash.,
61 P.3d 431, 436 (Alaska 2002)).

     2    Id. (citing Spindle, 61 P.3d at 436).

     3     Braun v. Alaska Comm. Fishing & Agric. Bank, 816  P.2d
140, 144 (Alaska 1991).

     4    Witt, 75 P.3d at 1033 (internal citations omitted).

     5     Charles v. Interior Regl Hous. Auth., 55 P.3d  57,  59
(Alaska 2002) (internal citations omitted).

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

     7     Smith  v. Stafford, 189 P.3d 1065, 1072 (Alaska  2008)
(citing  Alpine Indus., Inc. v. Feyk, 22 P.3d 445, 447-48 (Alaska
2001)).

     8     See  Aspen Exploration Corp., 739 P.2d at 156 (stating
that  because the governors actions were within the scope of  his
authority  and  discretionary in nature. .  .   the  doctrine  of
official immunity is applicable to the facts of this case).

     9    AS 44.23.020(b)(3).

     10    Aspen Exploration Corp., 739 P.2d at 155 (discretionary
acts  are  those  requiring personal deliberation,  decision  and
judgment).

     11    See Prentzel v. Dept of Pub. Safety, 169 P.3d 573, 585
(Alaska 2007).

     12    Id.

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