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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Larson v. State, Dept. of Corrections (8/31/2012) sp-6703

Larson v. State, Dept. of Corrections (8/31/2012) sp-6703

        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, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



LOREN J. LARSON, JR.,                            ) 

                                                 )        Supreme Court Nos. S-14110/14129 

                Appellant,                       )        (Consolidated) 

                                                 ) 

        v.                                       )        Superior Court No. 3AN-09-07540 CI 

                                                 ) 

STATE OF ALASKA,                                 )        O P I N I O N 

DEPARTMENT OF CORRECTIONS, )
 

                                                 )
      No. 6703 - August 31, 2012 

                Appellee.                        )
 

                                                 )
 

                                                 ) 

LOREN J. LARSON, JR.,                            ) 

                                                 ) 

                Appellant,                       )        Superior Court No. 3AN-10-09348 CI 

                                                 ) 

        v.                                       ) 

                                                 ) 

CRAIG TURNBULL,                                  ) 

                                                 ) 

                Appellee.                        ) 

_______________________________ )
 



                Appeal in File No. S-14110 from the Superior Court of the 

                 State of Alaska, Third Judicial District, Anchorage, Peter A. 

                Michalski,   Judge.        Appeal   in   File   No.   S-14129   from   the 

                 Superior Court of the State of Alaska, Third Judicial District, 

                Anchorage, Eric A. Aarseth, Judge. 



                Appearances:         Loren.     J.  Larson,     Jr.,  pro   se,  Seward, 

                Appellant.     Marilyn J. Kamm, Assistant Attorney General, 

                 and John J. Burns, Attorney General, Juneau, for Appellees. 


----------------------- Page 2-----------------------

                Before:    Fabe, Winfree, and Stowers, Justices. [Carpeneti, 

                Chief Justice, and Christen, Justice, not participating.] 



                STOWERS, Justice. 



I.      INTRODUCTION 



                Loren J. Larson, Jr. is incarcerated at the Spring Creek Correctional Center 



in Seward.     Acting pro se, he filed two separate complaints alleging violations of his 



constitutional   rights.     His   first   complaint   alleged   that   he   suffers   from   paruresis,   a 



condition that makes it impossible for him to urinate in the presence of others, and the 



correctional facility had violated state and federal constitutional prohibitions against 



cruel and unusual punishment by failing to accommodate his condition with alternative 



urinalysis    testing   procedures.     His   second    complaint     alleged   that   the  correctional 



facility's revised visitor application form for minors violates his state constitutional right 



to   rehabilitation    because    it  is  more  restrictive   than   the  administrative     regulation 



governing visitation rights.  Both complaints were dismissed for failure to state a claim 



under Alaska Civil Rule 12(b)(6). 



                We consolidated these two appeals to address an issue common to both - 



the procedure for properly evaluating a Rule 12(b)(6) motion to dismiss the complaint 



of   a   pro   se   prisoner   alleging   constitutional   violations. We   take   this   opportunity   to 



emphasize that a complaint must be liberally construed and a motion to dismiss under 



Rule 12(b)(6) is viewed with disfavor and should rarely be granted.                  Because both of 



Larson's complaints alleged facts which, if proven, are sufficient to entitle him to some 



form of relief, and we find no merit in the arguments that Larson lacks standing or is 



otherwise barred from bringing a direct cause of action for these alleged constitutional 



violations, we reverse the dismissal of both of Larson's complaints. 



                                                  -2-                                             6703
 


----------------------- Page 3-----------------------

II.     FACTS 



        A.      Cruel And Unusual Punishment Claims 



                In May 2009 Larson filed a civil complaint against the Alaska Department 



of Corrections alleging violations of the state and federal constitutional prohibitions 



against   cruel   and   unusual   punishment.       Although   Larson   named   Joe   Schmidt,   the 



Commissioner of the Department of Corrections, in his summons, his complaint named 



only the Department of Corrections as a defendant. 



                Specifically, Larson alleged that he suffers from paruresis, a condition that 



makes it physically impossible for him to urinate while another person is watching, and 



that he is required to provide a urine sample for random urinalysis testing every three to 



four months.   He alleged that in order to provide a sample while an officer is watching, 



he "must drink water until the volume of urine makes the bladder so intensely painful, 



urination   becomes   an   involuntary   function,"   and   this   process   amounts   to   "physical 



torture."   Larson requested:       (1) a declaratory judgment that forcing him to urinate in 



front of an officer violates his constitutional rights under the Eighth Amendment to the 



                                                                                    1 

federal constitution and article I, section 12 of the state constitution;  (2) an injunction 



preventing the Department of Corrections from forcing him to urinate in the presence of 



another person; and (3) "all costs associated with the filing of this complaint, and any 



other as deemed by the Court." 



                Larson   attached   several   documents   to   his   complaint,   including   letters, 



correspondence with correctional facility staff, and affidavits.  His attachments showed 



that he had repeatedly brought this issue to the attention of correctional officers, medical 



staff, and the superintendent, requesting permission to either drink as much water as he 



        1       Both     article  I,  section  12   of  the  Alaska    Constitution     and   the  Eighth 



Amendment to the federal constitution provide:              "Excessive bail shall not be required, 

nor excessive fines imposed, nor cruel and unusual punishments inflicted." 



                                                   -3-                                                6703 


----------------------- Page 4-----------------------

needed to provide a urine sample, substitute blood or saliva testing for urinalysis, or be 



placed   in   a   dry   cell   by   himself   to   provide   a   urine   sample. He   also   filed   a   formal 



grievance.   Medical staff responded, "[T]his is a security issue (not a medical issue), as 



security does your UA's."         A correctional officer granted Larson's request to drink as 



much water as he needed to provide a urine sample, but   when Larson subsequently 



attempted to drink two glasses of water before urinalysis testing another officer ordered 



him to pour the second glass out.         A third officer denied Larson's request to substitute 



blood testing for urinalysis, stating, "[T]here is no record in your medical file to support 



this request."    Larson's formal grievance and subsequent appeals were also denied. 



                The State filed a motion to dismiss Larson's complaint under Civil Rule 



12(b)(6) for failure to state a claim upon which relief could be granted, arguing Larson's 



constitutional claims were essentially 42 U.S.C.  1983 claims and an individual cannot 



bring a direct cause of action against the State under that statute.  Larson filed a motion 



for summary judgment and a motion for a preliminary injunction, attaching the same 



documents that he had attached to his complaint.  The State opposed Larson's motions, 



again arguing that he could not bring a direct cause of action against the State under 



42   U.S.C.      1983.   Larson   argued   in   reply   that   he   had   filed   his   complaint   against 



Commissioner Schmidt and requested an opportunity to correct his filings if they were 



incorrect in some way. 



                In a single order, the superior court granted the State's motion to dismiss 



and denied Larson's motion for summary judgment.   The court first granted the State's 



motion     on   the  grounds     that  Larson's    federal   constitutional    claim    was    properly 



characterized as a 42 U.S.C.  1983 suit and Larson had improperly named the State, 



rather than an individual, as the defendant in his complaint. The court reasoned that even 



if Larson had correctly named Commissioner Schmidt in his complaint, as he had in his 



summons, his federal constitutional claims did not have merit. The court then proceeded 



                                                   -4-                                             6703
 


----------------------- Page 5-----------------------

to   analyze   Larson's   summary   judgment   motion   and   ruled   that   Larson   had   failed   to 



establish a constitutional violation under either the federal or state constitutions. Finally, 



the court denied Larson's application for a preliminary injunction, ruling he had failed 



to show probable success on the merits of his claims. 



                The superior court later clarified that it had dismissed Larson's federal 



constitutional claim only, because the State had moved to dismiss on the grounds that the 



State was not a proper defendant in a  1983 suit and this argument provided no basis for 



dismissing Larson's state constitutional claim.  The State then filed a motion to dismiss 

Larson's state constitutional claim, relying on Hertz v. Beach2 to argue that Larson had 



failed to state a claim for relief because there is no private cause of action under the 



Alaska   Constitution.      The   court   granted   the   State's   motion   and   dismissed   Larson's 



remaining state constitutional claim. 



        B.      Right To Rehabilitation Claim 



                In June 2010 Larson filed a separate complaint against Craig Turnbull, the 



superintendent   of   the   Spring   Creek   Correctional   Center,   alleging   a   violation   of   his 



constitutional right to rehabilitation under article I, section 12 of the state constitution. 



Specifically, his complaint alleged that the correctional center had revised its visitor 



application     form    in  March     2010    and   the   revised   application     form    violated   his 



constitutional right to rehabilitation by being more restrictive than 22 AAC 05.130, the 



administrative regulation governing visitation.             Larson also alleged that he had filed a 



grievance regarding this issue, which was rejected and his appeal denied.  He requested: 



(1) a declaratory judgment that Superintendent Turnbull had violated his constitutional 



right to rehabilitation by implementing a visitor application form that is more restrictive 



than the governing administrative regulation; (2) an injunction ordering Superintendent 



        2       211 P.3d 677 (Alaska 2009). 



                                                   -5-                                                6703 


----------------------- Page 6-----------------------

Turnbull to implement a visitor application form that is not more restrictive than the 



governing administrative regulation; (3) $15,000 in punitive damages; and (4) $15,000 



in compensatory damages. 



                Larson attached several documents to his complaint, including a letter that 



he had sent to Sergeant Tiffany Stillers in March 2009 requesting several revisions to the 



revised application form.       In the letter, Larson objected to the requirement that minors 



and their custodial parent or legal guardian must be on a prisoner's approved visitation 



list before being allowed to visit, and the provision that a minor would automatically be 



removed from the visitation list on his or her 18th birthday without prior notice.  He 



argued that family members were also allowed to accompany minor children, even if the 



                                                                                             3 

child's parent or legal guardian was not on the inmate's approved visitation list,  and that 



there should be a process for pre-approving minors for visitation as adults one month 



prior to their 18th birthday to avoid gaps in their ability to visit.              Larson expressed 



concern that this revised application form would affect his son, who was turning 18 in 



June 2010.  Larson also attached to his complaint the grievance that he had filed with the 



correctional facility.  He also attached a superior court order from a 2009 case in which 



he had complained of an inconsistency between two regulations affecting the visitation 



procedure for his minor daughter when accompanied by a non-parent family member; 



in the 2009 order, the superior court ruled that Larson's complaint had been resolved 

because the Department of Corrections had agreed to amend the regulations.4 



        3       See  22   AAC   05.130(d)(7)   ("A   visitor   may   be   excluded   for   any   of   the 



following reasons: . . . being under the age of 18, unless the visitor is a family member 

of the prisoner escorted by an adult family member . . . .") (emphasis added). 



        4       Larson v. State, Dep't of Corr. , No. 3AN-09-10280 CI (Alaska Super., 



May 17, 2010). 



                                                  -6-                                             6703
 


----------------------- Page 7-----------------------

                Superintendent Turnbull filed a motion to dismiss Larson's complaint under 



Civil Rule 12(b)(6) for failure to state a claim upon which relief could be granted.  He 



relied on Hertz to argue there is no private cause of action under the Alaska Constitution, 



and also argued that Larson had failed to allege his right to rehabilitation was actually 



impacted by the revised visitor application form. Larson opposed the State's motion and 



attached the correctional facility's visitor application form to his opposition brief.  The 



State filed a reply brief and attached several documents as well, including an April 2010 



memorandum notifying inmates that previously approved visitors would not be required 



to submit a new visitor application, an affidavit from Sergeant Stillers stating she had 



personally sent two approval forms to Larson's son before his 18th birthday to prevent 



any interruption in his visits with his father, and a May 2009 note from Superintendent 



Turnbull   to   Larson   giving   permission   for   Larson's   mother   to   accompany   his   minor 



children on visitations. 



                The superior court granted the State's motion to dismiss, ruling:  "Plaintiff 



has failed to state a claim for relief.   There is no private cause of action under the Alaska 



Constitution.  The alleged failure to comply with an administrative regulation is an issue 



of administrative law, not constitutional law.          This case is dismissed with prejudice." 



                Larson appeals the dismissal of both of his complaints. 



III.    STANDARD OF REVIEW 



                We review a superior court's dismissal of a complaint for failure to state a 

claim   under   Alaska   Civil   Rule   12(b)(6)   de   novo.5   The   complaint   must   be   liberally 



construed and we treat all factual allegations as true.6            "[A] motion to dismiss under 



        5        Guerrero   v.   Alaska   Hous.   Fin.   Corp.,   6   P.3d   250,   253   (Alaska   2000) 



(citing Kollodge v. State , 757 P.2d 1024, 1026 n.4 (Alaska 1988)). 



        6       Clemensen       v.  Providence      Alaska    Med.    Ctr.,  203    P.3d   1148,     1151 



                                                                                         (continued...) 



                                                   -7-                                               6703 


----------------------- Page 8-----------------------

Rule 12(b)(6) is viewed with disfavor and should rarely be granted."7                      To survive a 



motion   to   dismiss,   a   complaint   "need   only   allege   a   set   of   facts   consistent   with   and 

appropriate to some enforceable cause of action."8            A complaint should not be dismissed 



"unless it appears beyond doubt that the plaintiff can prove no set of facts in support of 



his claim" that would entitle him to some form of relief, even if the plaintiff requests a 

type of relief he is not entitled to obtain.9 



                 In reviewing a motion to dismiss, we generally do not consider matters 

outside the complaint,10  although we may consider attachments to the complaint.11                  When 



        6(...continued) 



(Alaska 2009) (citing Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 177 P.3d 1181, 1184 (Alaska 2008));  Guerrero, 6 P.3d at 253 (citing Kollodge , 

757 P.2d at 1026). 



        7        Guerrero,   6   P.3d   at   253   (citing Kollodge ,   757   P.2d   at   1026); see   also 



Clemensen,   203   P.3d   at   1151   (quoting Jacob ,   177   P.3d   at   1184)   ("[Rule   12(b)(6)] 

dismissals are viewed with disfavor and should only be granted on the rare occasion 

where it appears beyond doubt that the plaintiff can prove no set of facts in support of 

the claims that would entitle the plaintiff to relief."). 



        8        Guerrero, 6 P.3d at 253-54 (quoting Odom v. Fairbanks Mem'l Hosp., 999 



P.2d 123, 128 (Alaska 2000)) (internal quotation marks omitted). 



        9       Id. at 254 (quoting Martin v. Mears , 602 P.2d 421, 429 (Alaska 1979)); see 



also Shooshanian v. Wagner, 672 P.2d 455, 461 n.5 (Alaska 1983) (citing Miller v. 

Johnson , 370 P.2d 171, 172 (Alaska 1962)) ("[G]ranting the Rule 12(b)(6) motion would 

be improper if the [plaintiff's] complaint states a claim upon which some relief may be 

granted, although the relief demanded may not be the kind to which the party is in fact 

entitled to obtain."). 



        10      Dworkin       v.  First   Nat'l   Bank    of   Fairbanks ,    444    P.2d   777,     779-80 



(Alaska 1968). 



        11      Adkins v. Stansel , 204 P.3d 1031, 1035 n.20 (Alaska 2009) (citing Kaiser 



v. Umialik Ins., 108 P.3d 876, 878 n.1 (Alaska 2005)) ("Attachments to a complaint are 

                                                                                           (continued...) 



                                                    -8-                                              6703
 


----------------------- Page 9-----------------------

parties present additional materials outside of the pleadings in connection with a motion 



to dismiss, the superior court must expressly exclude the materials or convert the motion 



into a motion for summary judgment under Alaska Civil Rule 56 and allow all parties a 

reasonable   opportunity   to   submit materials   pertinent to   such   a   motion.12       When   the 



superior court does neither, but instead decides the motion under Rule 12(b)(6) without 



stating whether it considered materials outside the pleadings, we have three options:  we 



may elect to reverse and remand for proper consideration; we may review the superior 



court's decision as if the motion for dismissal had been granted after exclusion of outside 



materials; or we may review the decision as if summary judgment had been granted after 

conversion of the motion to dismiss into one for summary judgment.13 



        11(...continued) 



properly considered a part of the complaint in connection with a motion to dismiss."); 

see also Ahwinona v. State, 922 P.2d 884, 886 (Alaska 1996) (stating the trial court could 

properly rely on documents attached to the plaintiff's complaint without converting the 

defendant's motion to dismiss to a motion for summary judgment). 



        12      See Alaska R. Civ. P. 12(b) ("If, on a motion . . . to dismiss for failure of 



the   pleading   to   state   a   claim   upon   which   relief   can   be   granted,   matters   outside   the 

pleading are presented to and not excluded by the court, the motion shall be treated as 

one for summary judgment and disposed of as provided in Rule 56, and all parties shall 

be given reasonable opportunity to present all material made pertinent to such a motion 

by Rule 56."); see also Kaiser, 108 P.3d at 879. 



        13      See Kaiser, 108 P.3d at 879 (quoting Reed v. Municipality of Anchorage , 



741 P.2d 1181, 1184 (Alaska 1987)); see also Phillips v. Gieringer, 108 P.3d 889, 892- 

93 (Alaska 2005) (electing to review a motion to dismiss   as a motion for summary 

judgment).        For  example     where    parties   had   a  reasonable    opportunity     to  present 

evidentiary   material   pertinent   to   a   summary   judgment   motion,   we   have   reviewed   a 

superior court's ruling as an entry of summary judgment.                 See Brice v. State, Div. of 

Forest, Land & Water Mgmt. , 669 P.2d 1311, 1314 (Alaska 1983).                     Where parties did 

not have sufficient notice or an adequate opportunity to respond prior to dismissal as 

required for summary judgment motions under Rule 56, we have treated the superior 

                                                                                         (continued...) 



                                                   -9-                                             6703
 


----------------------- Page 10-----------------------

IV.	    DISCUSSION 



        A.	     Cruel And Unusual Punishment Claims 



                1.	     The State's motion to dismiss Larson's federal constitutional 

                        claim for failure to name the proper defendant under  1983 



                Larson challenges the dismissal of his complaint against the Department of 



Corrections, arguing the superior court erred by failing to give him an opportunity to 



amend his complaint and by ruling that his federal and state constitutional claims lacked 



merit.   The State initially moved to dismiss Larson's complaint on the grounds that he 



had incorrectly named the State as the defendant in a 42 U.S.C.  1983 suit.  The statute 



provides: 



                Every   person   who,   under   color   of   any   statute,   ordinance, 

                regulation, custom, or usage, of any State or Territory . . . , 

                subjects, or causes to be subjected, any citizen of the United 

                States   .   .   .   to   the   deprivation   of   any   rights,   privileges,   or 

                immunities secured by the Constitution and laws, shall be 

                liable to the party injured in an action at law, suit in equity, or 

                other proper proceeding for redress . . . .[14] 



We have stated that "neither a State nor its officials acting in their official capacities are 

'persons'     under        1983."15     The    superior    court   agreed    that  Larson's     federal 



constitutional claim was properly characterized as a  1983 claim and that Larson had 



incorrectly named the State as a defendant. 



        13(...continued) 



court's decision as a dismissal for failure to state a claim and declined to review materials 

outside the pleadings.      See Shooshanian, 672 P.2d at 460-61. 



        14      42 U.S.C.  1983 (2006). 



        15      Prentzel v. State, Dep't of Pub. Safety , 53 P.3d 587, 594 n.30 (Alaska 2002) 



(quoting Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989)). 



                                                  -10-	                                           6703
 


----------------------- Page 11-----------------------

                However, a state official may be sued for injunctive relief under  1983.16 



Larson stated in the briefing supporting his summary judgment motion that he believed 



he had filed his complaint against Commissioner Schmidt and specifically requested an 



opportunity to correct his filings if necessary.  The pleadings of pro se litigants are "held 



to less stringent standards than those of lawyers," and the superior court must "inform 



a pro se litigant of the proper procedure for the action he or she is obviously attempting 

to accomplish."17     But the superior court did not give Larson an opportunity to amend his 



complaint      because    the  court   concluded     that  even    if  Larson   had   properly    named 



Commissioner         Schmidt     in  his  complaint      as  well   as  his   summons,      his   federal 



constitutional claim failed on its merits. 



                The Eighth Amendment's prohibition of "cruel and unusual punishment" 



imposes a duty on prison officials to provide "humane conditions of confinement," which 

includes   ensuring   that   inmates   receive   adequate   medical   care.18     A   prison   official's 



"deliberate indifference" to an inmate's "serious medical needs" violates the Eighth 

Amendment.19       To prevail on a deliberate indifference claim, an inmate must first show 



a serious medical need by demonstrating that failure to treat the condition could result 



        16       Will, 491 U.S. at 71 n.10 (quoting Kentucky v. Graham , 473 U.S. 159, 



167 n.14 (1985)) ("Of course a state official in his or her official capacity, when sued for 

injunctive relief, would be a person under  1983 because 'official-capacity actions for 

prospective relief are not treated as actions against the State.' "). 



        17       Capolicchio v. Levy, 194 P.3d 373, 378 (Alaska 2008) (quoting Breck v. 



Ulmer, 745 P.2d 66, 75 (Alaska 1987)). 



        18      Farmer v. Brennan , 511 U.S. 825, 832 (1994). 



        19      Hertz   v.   Beach ,   211   P.3d   668,   677   (Alaska   2009)   (quoting  Estelle   v. 



Gamble, 429 U.S. 97, 106 (1976)); see also Farmer, 511 U.S. at 828, 835. 



                                                  -11-                                             6703
 


----------------------- Page 12-----------------------

in "further significant injury or the unnecessary and wanton infliction of pain."20                 The 



inmate must then show that a prison official was deliberately indifferent to that need, 



meaning the official "knows of and disregards an excessive risk to inmate health and 

safety."21   Here, the superior court concluded:          "Even assuming that Larson's alleged 



paruresis constitutes a serious medical need, it is clear from the filings that the prison 



officials did not exhibit deliberate indifference to his condition."              This conclusion is 



problematic for several reasons. 



                First, the State never challenged the substance of Larson's allegations or 



argued that his allegations were insufficient to support his federal constitutional claim. 



As the superior court observed, the State's first motion to dismiss was based solely on 



the grounds that Larson had named the wrong defendant for a  1983 claim.  But naming 



the wrong defendant is an insufficient basis for dismissing Larson's complaint.  As a pro 



se plaintiff, Larson must be informed of the proper procedure for the action he was 

obviously attempting to accomplish.22         Therefore, he should have been allowed to amend 



his complaint to name a proper defendant.23 



        20      Hertz , 211 P.3d at 677-78 (quoting Jett v. Penner , 439 F.3d 1091, 1096 



(9th Cir. 2006)) (emphasis added). 



        21      Id . at 678 (quoting Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)). 



        22      See Capolicchio, 194 P.3d at 378 (quoting Breck , 744 P.2d at 75). 



        23      We also note that to prevail on a deliberate indifference claim, Larson must 



name   as   a   defendant   a   prison   official   who   was   aware   of   his   alleged   condition   and 

disregarded his requests for alternative testing procedures. See Hertz, 211 P.3d at 678-79 

("For deliberate indifference, the prison official must not only be aware of facts from 

which the inference could be drawn that a substantial risk of serious harm exists, but that 

person must also draw the inference.  Deliberate indifference to medical needs may be 

shown by circumstantial evidence when the facts are sufficient to demonstrate that a 

defendant actually knew of a risk of harm.  When the facts do not demonstrate that the 

                                                                                        (continued...) 



                                                  -12-                                            6703
 


----------------------- Page 13-----------------------

                But the superior court did not deny the State's motion and allow Larson to 



amend his complaint.        Instead, the court relied on the materials that Larson submitted 



with his complaint and summary judgment motion to conclude that Larson's federal 



constitutional   claim     lacked    merit,   even  though    the  State   raised   only  a  procedural 



argument   and   made   no   attempt   to   challenge   the   substance   of   Larson's   claims,   and 



Larson, a pro se litigant, was given no opportunity to respond to such a challenge. 



                Finally, we disagree with the superior court's conclusion that, assuming 



Larson suffers from paruresis and experiences pain when providing urine samples for 



urinalysis,   his   pleadings   and   attachments   demonstrate   that   prison   officials   were   not 



deliberately indifferent to his condition.        The court reasoned:         "Larson's own exhibits 



show that he was examined   by various mental health professionals numerous times. 



Their conclusions are unclear, but the fact that the examinations took place shows that 



officials were not deliberately indifferent to Larson's complaints."                The State relies on 

Chapman v. Raemisch24 to argue that the fact the examinations took place, combined 



with    correspondence       between      Larson    and   prison    officials   about   his   condition, 



demonstrates the officials were not deliberately indifferent to his condition. In Raemisch , 



prison   officials   accommodated   an   inmate's   paruresis   by        implementing      a   modified 



urinalysis testing procedure (allowing him to provide a sample in a closed bathroom stall 



with an officer standing quietly outside the door), and provided the inmate with a number 

of treatment options to help alleviate his condition.25             The district court rejected the 



        23(...continued) 



defendants had this knowledge, however, a deliberate indifference claim must fail.") 

(internal quotation marks and citations omitted). 



        24      No. 05-C-1254, 2009 WL 425813 (E.D. Wis., Feb. 20, 2009). 



        25      Id . at *3, 6. 



                                                  -13-                                             6703
 


----------------------- Page 14-----------------------

inmate's argument that he should be allowed to use an alternate form of drug testing, 



such as blood or saliva testing, holding, "even if plaintiff would prefer a form of testing 



that did not include urinalysis, it does not follow that any urinalysis test constitutes 

deliberate indifference to his [condition]."26         Unlike Raemisch , Larson's allegations and 



exhibits   show   that   prison   officials   were   aware   of   his   complaint   and   did   nothing   to 



accommodate his condition.           Assuming Larson suffers from paruresis and experiences 



extreme      pain   when    providing     urinalysis    samples,    as   we   must    for  purposes     of  a 

Rule 12(b)(6) motion to dismiss,27 the mere fact that medical staff examined Larson is 



insufficient to conclusively establish that prison officials were not deliberately indifferent 



to his condition. 



                 2.	     The State's motion to dismiss Larson's state constitutional claim 

                         under Hertz v. Beach 



                 For    Larson's     state   constitutional      claim,    the   State   filed   a  second 



Rule 12(b)(6) motion relying on Hertz to argue that "[t]here is no private cause of action 



under   the   Alaska   Constitution."      The   superior   court   agreed   and   granted   the   State's 



motion. 



        26	      Id . at *6. 



        27       We note that Larson submitted no evidence of a medical diagnosis, and his 



own   affidavits   are   insufficient   to   establish   that   he   actually   suffers   from   paruresis. 

Larson's attachments show that he met with mental health clinicians and medical staff 

at the correctional facility, although, as the superior court observed, "[t]heir conclusions 

are unclear."     The record shows that Larson submitted a discovery request to the State 

attempting to obtain all information documenting or associated with these meetings, but 

the State failed to provide him with the requested documents.  At oral argument the State 

admitted that the requested documents were never produced. If the State fails to respond 

to Larson's discovery requests, Larson should file a motion to compel discovery under 

Civil Rule 37. 



                                                    -14-	                                             6703
 


----------------------- Page 15-----------------------

                 In Hertz , an inmate filed a civil suit against prison medical staff, alleging 



he    had   received    inadequate     dental   treatment    in  violation    of  his  state  and   federal 

constitutional rights and seeking both damages and injunctive relief.28                   At the time of 



appeal, the inmate had received the dental procedure he requested, which "mooted his 

request for injunctive relief, leaving only his claim for damages."29                 We construed the 



inmate's deliberate indifference claim as a federal constitutional claim, observing that 



his parallel claim for damages under the Alaska Constitution would not be viable: "[W]e 



will   not   imply   a   private   cause   of   action   for   damages   under   the   Alaska   Constitution 



'except   in   cases   of   flagrant   constitutional   violations   where      little   or   no  alternative 



remedies are available.'         Medical malpractice and federal constitutional law provide 

adequate remedies to redress inadequate dental treatment."30 



                 Hertz and the cases it relies on stem from the Supreme Court's decision in 

Bivens   v.   Six   Unknown   Named   Agents   of   Federal   Bureau   of   Narcotics31         allowing   a 



plaintiff to claim monetary damages against federal agents based on a violation of his 

rights under the Fourth Amendment to the federal constitution.32                  Hertz did not address 



        28       211 P.3d 668, 672-74 (Alaska 2009). 



        29       Id . at 674 n.1. 



        30       Id. at 677 n.12 (quoting Lowell v. Hayes , 117 P.3d 745, 753 (Alaska 2005)) 



(internal citations omitted). 



        31       403 U.S. 388 (1971). 



        32       Id . at 397; see Lowell, 117 P.3d at 753-54 ("We have never recognized a 



Bivens-type private right of action for constitutional torts under the Alaska Constitution. 

We have stated that we will not allow a constitutional claim for damages, except in cases 

of flagrant constitutional violations where little or no alternative remedies are available.") 

(internal quotations marks omitted); Dick Fischer Dev. No. 2, Inc. v. State, Dep't of 

Admin. , 838 P.2d 263, 268 (Alaska 1992) (observing "federal courts have been reluctant 

                                                                                           (continued...) 



                                                    -15-                                              6703
 


----------------------- Page 16-----------------------

or   restrict   claims   for   injunctive   relief   based   on   constitutional   violations.   We   have 



previously recognized that injunctive relief is an "available and appropriate remedy" for 



violations   under   the   state   constitution,   even   where   a  Bivens   claim   for   damages   is 

unavailable.33     And we have previously affirmed the right of a prison inmate to sue the 



State and prison officials for violations of the inmate's constitutional rights.34 



                 Here,   Larson   requested   declaratory   and   injunctive   relief   and   "all   costs 



associated in the filing of this complaint."           Larson did not actually request damages; 



therefore Hertz does not apply.         Even if Larson had requested some form of relief that 



he   was   not   entitled   to   obtain,   his   complaint   should   not   have   been   dismissed   under 



Rule 12(b)(6) unless it appeared that he could prove no set of facts in support of his 

claim that would entitle him to some other form of relief.35 



(...continued) 

to extend the Bivens  decision where alternative remedies are available" and holding 

"[w]e are also hesitant to extend the Bivens decision, and will not allow a claim for 

damages except in cases of flagrant constitutional violations where little or no alternative 

remedies are available"). 



        33       See Herrick's Aero-Auto-Aqua Repair Serv. v. State, Dep't of Transp. & 



Pub. Serv. , 754 P.2d 1111, 1116 (Alaska 1988) ("[U]nlike Bivens , injunctive relief is an 

available and appropriate remedy for righting any wrong done to the [plaintiffs].                     As a 

result, we hold the Bivens remedy of damages inapplicable to the case at bar."). 



        34       See Rathke v. Corr. Corp. of Am., 153 P.3d 303, 309 (Alaska 2007) (citing 



Ferguson v. State, Dep't of Corr. , 816 P.2d 134 (Alaska 1991)). 



        35       See Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 254 (Alaska 2000) 



(quoting Martin v. Mears , 602 P.2d 421, 429 (Alaska 1979)); Shooshanian v. Wagner, 

672   P.2d   455, 461   n.5   (Alaska   1983)   (citing Miller   v.   Johnson ,   370   P.2d   171,   172 

(Alaska     1962))    ("[G]ranting     the   Rule   12(b)(6)    motion    would     be  improper     if  the 

[plaintiff's] complaint states a claim upon which some relief may be granted, although 

the relief demanded may not be the kind to which the party is in fact entitled to obtain."). 



                                                   -16-                                              6703
 


----------------------- Page 17-----------------------

                 For    these    reasons,    we    reverse    the   superior    court's    rulings    under 



Rule 12(b)(6) dismissing Larson's federal and state constitutional claims and remand for 



further proceedings, including allowing Larson to file an amended complaint.                         If the 



State wishes to challenge the sufficiency of the evidence supporting Larson's claims, the 



State can file a summary judgment motion and Larson will have an adequate opportunity 



to respond, including obtaining appropriate discovery in support of his claims. 



                 Larson   also   challenges   the   superior   court's   denial   of   his   motion   for   a 



preliminary injunction. In denying Larson's motion, the superior court ruled that Larson 



had failed to make a clear showing of probable success on the merits, given the court's 



previous   ruling   that   his   claims   lacked   merit.   Because   we   disagree   with   the   court's 



analysis, we also reverse the court's ruling on Larson's preliminary injunction motion 



and remand for the court to reconsider whether Larson demonstrated probable success 



on the merits. 



        B.       Right To Rehabilitation Claim Under The State Constitution 



                 1.      Motion to dismiss and trial court order 



                 Larson      also    challenges      the   dismissal     of    his   complaint      against 



Superintendent Turnbull under Rule 12(b)(6).  In his motion to dismiss, Superintendent 



Turnbull argued that:         (1) under Hertz  there is no private cause of action under the 



Alaska      Constitution;     (2)  the   correctional     facility's   alleged    failure   to  follow    an 



administrative regulation was an issue of administrative law, not constitutional law; and 



(3)  Larson   failed   to   allege   he   was   actually   harmed   by   the   adoption   of   the   revised 



visitation form.  The superior court agreed, ruling:   "There is no private cause of action 



under the Alaska Constitution.            The alleged failure to comply with an administrative 



regulation is an issue of administrative law, not constitutional law." 



                 As discussed above, Hertz restricts a Bivens claim for damages under the 



Alaska   Constitution   to   "cases   of   flagrant   constitutional   violations   where   little   or   no 



                                                    -17-                                              6703
 


----------------------- Page 18-----------------------

alternative remedies are available."36  Before dismissing Larson's claims for punitive and 



compensatory damages, the superior court was required to determine whether Larson had 



alleged   a   "flagrant"   constitutional   violation   and   whether   alternative   remedies   were 



available to him.  Larson also requested injunctive and declaratory relief.   As discussed 



above, Hertz   does   not   apply   to   such   claims.     Furthermore,   Superintendent   Turnbull 



correctly conceded at oral argument that Larson's claims for declaratory and injunctive 



relief were not barred by Hertz , and that whether the revised visitation application form 



violated   Larson's   right   to   rehabilitation   under   the   state   constitution   was   an   issue   of 



constitutional law, not administrative law.  However, Superintendent Turnbull urges us 



to   affirm   the   superior   court's   ruling    dismissing     Larson's   complaint   on       alternative 



grounds,   arguing   that   Larson   lacks   standing   and   his   claims   are   barred   by   collateral 



estoppel. 



                 2.       Standing 



                 Superintendent        Turnbull     argues    that   Larson    has   not   demonstrated       a 



sufficient personal stake in this litigation because he failed to allege that his visitation 



rights have actually been impacted by the revised visitor application form.  We disagree. 



                 Superintendent   Turnbull   relies   on   the   attachments   submitted   with   his 



briefing   to   the   superior   court   in   support   of   his   motion   to   dismiss   to   argue   that   the 



correctional facility has taken steps to ensure Larson's visitation with his minor children 



has not been interrupted since the adoption of the revised visitation form. Such materials 



were not properly before the superior court on a Rule 12(b)(6) motion to dismiss, and the 



superior court did not expressly convert Superintendent Turnbull's motion into a motion 



        36       Hertz v. Beach , 211 P.3d 668, 677 n.12 (Alaska 2009) (quoting Lowell , 117 



P.3d at 753). 



                                                    -18-                                                  6703 


----------------------- Page 19-----------------------

for   summary  judgment. 37       "The   terms   of   Rule   12(b)   make    conversion    mandatory 



whenever matters outside the pleadings are presented to and not excluded by the court."38 



Although we could elect to review the superior court's decision as an order granting 

summary judgment,39 we decline to do so when there is no indication that the superior 



court considered these materials in granting Superintendent Turnbull's motion.40 



                Furthermore,      we    have   interpreted    the  concept    of  standing    broadly, 

"favoring increased accessibility to judicial forums."41          We have identified two types of 



standing:    interest-injury and taxpayer-citizen standing.42          To establish interest-injury 



standing, a party must demonstrate "a sufficient personal stake in the outcome of the 

controversy to ensure the requisite adversity."43  However, the degree of injury to interest 



        37      See Alaska R. Civ. P. 12(b); Kaiser v. Umialik Ins. , 108 P.3d 876, 879 



(Alaska   2005);  Dworkin   v.   First   Nat'l   Bank   of   Fairbanks ,   444    P.2d   777,   779-80 

(Alaska 1968). 



        38       Martin v. Mears, 602 P.2d 421, 426 (Alaska 1979) (internal quotation 



marks omitted). 



        39      See Kaiser, 108 P.3d at 879 (quoting Reed v. Municipality of Anchorage , 



741 P.2d 1181, 1184 (Alaska 1987)). 



        40      See Kaiser, 108 P.3d at 879 (noting the superior court's order indicated the 



court had reviewed the motion as a summary judgment motion); Shooshanian, 672 P.2d 

at 460-61 (noting it was clear from the superior court's order that court had considered 

matters outside the pleadings). 



        41      See Bowers Office Prods., Inc. v. Univ. of Alaska, 755 P.2d 1095, 1097 



(Alaska 1988) (quoting Trustees for Alaska v. State, Dep't of Natural Res., 736 P.2d 324, 

327 (Alaska 1987)). 



        42      Kleven v. Yukon-Koyukuk Sch. Dist. , 853 P.2d 518, 526 (Alaska 1993). 



        43      Id .   (quoting  Hoblit   v.   Comm'r   of   Natural   Res. ,   678   P.2d   1337,   1340 



(Alaska 1984)) (internal quotation marks omitted). 



                                                 -19-                                            6703
 


----------------------- Page 20-----------------------

need not be great:  "an identifiable trifle is enough for standing to fight out a question of 

principle."44 



                Similarly, AS 44.62.300 provides that "[a]n interested person may get a 



judicial declaration on the validity of a regulation by bringing an action for declaratory 

relief in the superior court."     In Bowers Office Products, Inc. v. University of Alaska ,45 



we    held   that  a  company     challenging    the  university's   grievance    process    after  the 



university rejected the company's bid in favor of another supplier was an "interested 



person" under this statute, even though the company requested prospective declaratory 



relief only, reasoning that "as a continuing bidder to the University, [the company] will 

continue to be subjected to the rules it seeks to have reviewed."46          In contrast, in Kleven 



v.  Yukon-Koyukuk   School   District,47       we   held   that   an   employee   who   had   started   a 



grievance process and then subsequently resigned from the school district did not have 



standing to challenge the school district's grievance procedure because he was no longer 



an employee and, therefore, was no longer subject to the contested grievance procedures 

or threatened by the alleged safety violations.48 



                Here, Larson's complaint alleged that the correctional facility's revised 



visitor application form violates his right to rehabilitation under the state constitution 



because it is more restrictive than the administrative regulation governing visitation.  The 



attachments   to   Larson's   complaint   show   that   he   was   concerned   this   revision   would 



        44      Bowers , 755 P.2d at 1097 (quoting Trustees for Alaska, 736 P.2d at 327).
 



        45      755 P.2d 1095 (Alaska 1988).
 



        46
     Id . at 1098. 



        47      853 P.2d 518 (Alaska 1993). 



        48      Id . at 526 (comparing Bowers , 755 P.2d at 1098 with Rutter v. State , 668 



P.2d 1343, 1346 (Alaska 1983)). 



                                                 -20-                                           6703
 


----------------------- Page 21-----------------------

impact his visitation with his son, and that he had previously filed a complaint alleging 

violations of his visitation rights with his minor daughter.49            As an inmate with minor 



children   who   continues   to   be   subject   to   the   contested   visitation   form,   Larson   has 



demonstrated a "sufficient personal stake in the outcome of the controversy" to establish 



standing under our broad standing principles. 



                3.      Collateral estoppel 



                Finally, Superintendent Turnbull argues that Larson is collaterally estopped 



from claiming damages under the Alaska Constitution by Larson v. State, Department 

of   Corrections,50    the   earlier   superior   court   case   in   which   Larson   complained   of   an 



inconsistency between two regulations affecting the visitation procedure for his minor 



daughter when accompanied by a non-parent family member, because in that case the 



superior court also dismissed Larson's claim for monetary damages based on an alleged 



violation of his constitutional right to rehabilitation.  Collateral estoppel applies where: 



"(1) the issue decided in the prior adjudication was precisely the same  as that presented 



in the action in question; (2) the prior litigation must have resulted in a final judgment 

on the merits; and (3) there must be 'mutuality' of parties."51            Larson's prior case was 



based on a visitation incident with his minor daughter that occurred in 2009.  His present 



        49      We   may   consider   the   attachments   to   Larson's   complaint   because   such 



attachments "are properly considered a part of a complaint in connection with a motion 

to dismiss."    Adkins v. Stansel , 204 P.3d 1031, 1035 n.20 (Alaska 2009).                We do not 

consider the attachments that Superintendent Turnbull submitted with his motion to 

dismiss because such attachments are materials outside the pleadings and, therefore, were 

not properly before the superior court on a motion to dismiss.                See Alaska R. Civ. P. 

12(b); Dworkin v. First Nat'l Bank of Fairbanks , 444 P.2d 777, 779-80 (Alaska 1968). 



        50      No. 3AN-09-10280 CI (Alaska Super., May 17, 2010). 



        51      Snyder v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 31 P.3d 770, 



774 n.17 (Alaska 2001) (quoting Briggs v. State, Dep't of Pub. Safety, Div. of Motor 

Vehicles, 732 P.2d 1078, 1081 (Alaska 1987)) (emphasis added). 



                                                  -21-                                            6703
 


----------------------- Page 22-----------------------

complaint is based on a 2010 revision to the correctional facility's visitor application 



form.  The issues are not identical and collateral estoppel does not apply.  However, we 



reiterate that Larson is only entitled to damages under the Alaska Constitution if the 



superior court finds that Larson's present allegations amount to a flagrant constitutional 

violation and there are no alternative remedies available.52 



V.      CONCLUSION 



               We   REVERSE   both   of   the   superior   court   orders   dismissing   Larson's 



complaints for failure to state a claim under Rule 12(b)(6), and REMAND for further 



proceedings consistent with this opinion. 



        52     See Hertz v. Beach, 211 P.3d 668, 677 n.12 (Alaska 2009). 



                                              -22-                                           6703 

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