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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Richardson v. Municipality of Anchorage (10/30/2015) sp-7061

Richardson v. Municipality of Anchorage (10/30/2015) sp-7061

        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@akcourts.us.  



                 THE SUPREME COURT OF THE STATE OF ALASKA 



                                                      )  

JOSHUA C. RICHARDSON,                                 )   Supreme Court Nos. S-15211/15221  

                                                      )   (Consolidated)  

                         Appellant,                   )  

                                                      )   Superior Court No.  3AN-12-08693 CI  

        v.                                            )  

                                                      )   O P I N I O N 

                                                      ) 

                                                      )   No. 7061 - October 30, 2015  

MUNICIPALITY OF ANCHORAGE,                            )  

STATE OF ALASKA, ANCHORAGE                            )  

POLICE DEPARTMENT, OFFICER                            )  

JUSTIN BLAKE, DIMOND CENTER                           )  

BEST BUY, DAVID LIGATICH,                             )  

BEST BUY CORPORATION,                                 )  

                                                      )  

                         Appellees.                   )  

                                                      ) 

                                                      )  

JOSHUA C. RICHARDSON,                                 )  

                                                      )  

                         Appellant,                   ))  Superior Court No.  3AN-12-08963 CI  

        v.                                            )  

                                                      ) 

                                                      ) 

                                                      )  

STATE OF ALASKA, MUNICIPALITY  )  

OF ANCHORAGE, ANCHORAGE                               )  

POLICE DEPARTMENT, OFFICERS                           )  

LUIS F. SOTO, EARL L. ERNEST,                         )  

DARRELL EVANS, CHRISTOPHER                            )  

SIMMONS, GLEN DAILY, TIMOTHY                          )  

E. LANDEIS, RYAN McNAMARA,                            )  


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

DENIELLE HROVAT, JASON M.                               )  

WHETSELL, BRANDON C. OTTS,                              )  

RAFAEL ROBINSON, SHAUN P.                               )  

HENRY, CLINTON S. PECK, JASON                           )  

A. SCHMIT, STEPHEN M. ONDRA,                            )  

and K-9 JIMMY LEE,                                      )  

                                                        )  

                          Appellees.	                 )  

                                                        )  



                 Appeal in File No. S-15211 from the Superior Court of the  

                  State    of   Alaska,      Third     Judicial    District,     Anchorage,  

                  Catherine  M.  Easter,  Judge.    Appeal  in  File  No.  S-15221  

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

                 District, Anchorage, Mark Rindner, Judge.  



                 Appearances:  Joshua  C.  Richardson,  pro  se,  Anchorage,  

                 Appellant.    Joyce  Weaver  Johnson,  Assistant  Municipal  

                 Attorney,  and  Dennis  A.  Wheeler,  Municipal  Attorney,  

                                                  

                 Anchorage,   for   Appellees   Municipality   of   Anchorage,  

                 Anchorage  Police  Department,  and  Officers  Justin  Blake,  

                 Luis  F.  Soto,  Earl  L.  Ernest,  Darrell  Evans,  Christopher  

                  Simmons, Glen Daily, Timothy E. Landeis, Ryan McNamara,  

                 Denielle Hrovat, Jason M. Whetsell, Brandon C. Otts, Rafael  

                                                                  

                 Robinson, Shaun P. Henry, Clinton S. Peck, Jason A. Schmit,  

                                                                                   

                  Stephen  M.  Ondra,  and  K-9  Jimmy  Lee.    Mark  Cucci,  

                                                                      

                 Assistant   Attorney   General,   Anchorage,   and   Craig   W.  

                 Richards, Attorney General, Juneau, for Appellee State of  

                                                                                      

                 Alaska.  Marc G. Wilhelm, Richmond & Quinn, Anchorage,  

                  for Appellees Dimond Center Best Buy, David Ligatich, and  

                                                                       

                 Best Buy Corporation.  



                 Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and  

                                                            

                 Bolger, Justices.  



                 BOLGER, Justice.  



                                                       -2-	                                                7061
  


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

I.        INTRODUCTION
  



                     The  Anchorage  Police  Department  identified  Joshua  Richardson  as  a  



suspect in a shoplifting incident at Best Buy.  When the police went to Richardson's   



home to make an arrest, Richardson hid in the crawlspace and allegedly incurred injuries  



                                                                                                               

from a police canine. The misdemeanor theft charges against Richardson were dismissed  



                                                                                                                

shortly after his arrest.  About two years after these events, Richardson filed two civil  



suits  against  the  Anchorage  Police  Department,  various  police  officers,  the  State  of  



                                                                                                         

Alaska,  Best  Buy,  and  the  Best  Buy  employee  who  reported  the  theft.    In  separate  



proceedings, one before Judge Catherine M. Easter and one before Judge Mark Rindner,  



                                                                           

the superior court dismissed both complaints as untimely under the two-year statute of  



limitations.  Richardson appeals these dismissals and we address them both here.  



                     Richardson argues that the statute of limitations should have been tolled due  



                                                                                           

to his alleged mental incompetency and separation from his legal documents during  



                                                                                                                            

unrelated incarceration, but we conclude there is no genuine dispute of material fact as  



                                                                    

to these issues.  Nor was the superior court required to appoint Richardson an attorney  



                                                                                                                   

or more liberally construe his pro se pleadings.  We therefore affirm the dismissal of  



Richardson's suit before Judge Easter.   



                                                                                                     

                     In the suit before Judge Rindner, however, there was credible evidence that  



Richardson filed his complaint - albeit with technical deficiencies - before the statute  



                                                                                                                       

of limitations ran.  This created a genuine issue of material fact. We therefore vacate the  



                                  

dismissal in that case and remand for further proceedings to determine when Richardson  



commenced his suit.  



                                                                -3-                                                          7061
  


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

II.      FACTS AND PROCEEDINGS
  



         A.        Richardson's Complaints  

                   1.       The suit before Judge Easter1  



                   Richardson filed a complaint alleging that on July 7, 2010, the Anchorage  



                                                                                                              

Police Department responded to the theft of a laptop computer reported by a Best Buy  



                  

employee.   According to Richardson, this employee "conspired" with an Anchorage  



                                                                                  

police officer to "present a fraudulent line up on or about July 8," at which Richardson  



                                                                                     

was identified as a perpetrator.  Richardson alleged that on July 8, this officer perjured  



himself by filing a false complaint against Richardson accusing him of third-degree theft.  



                                                                                                

This  theft  charge  against  Richardson  was  ultimately  dismissed.                          Richardson  further  



claimed  that  this  false  complaint  caused  the  Anchorage  police  to  "de[s]cend  upon  



[Richardson's] property and . . . [make] an unreasonable search and seizure[]."  



                   Along with the Best Buy employee and the police officer who responded  



to  the  alleged  theft,  Richardson  named  the  State  of  Alaska,  the  Anchorage  Police  



Department, the Municipality of Anchorage, the "Dimond Center Best Buy," and the  



                                                          2  

"Best Buy Corp[o]ration" as defendants.   Seeking millions of dollars in damages, he  



                                                                                      

alleged numerous causes of action including obstruction of justice, extortion, trespass,  



unlawful arrest, and false imprisonment.  



          1        We refer to the suit before Judge Easter as "the first suit" and the suit before     



Judge Rindner as "the second suit," because that is the order in which the court accepted     

them for filing.  However, as we discuss in Part IV.A.2, the effective filing date of the  

second suit is at issue in this appeal.  



         2         When  discussing  the  first  suit,  we  will  use  "the  Municipality"  to  refer  



collectively to the Municipality of Anchorage and the Anchorage Police Department.  

And we refer to Best Buy Stores LP and the Best Buy employee collectively as "Best  

Buy."  



                                                           -4-                                                     7061
  


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

                   2.        The suit before Judge Rindner  



                                                                                                  

                   Richardson filed a separate complaint based on events beginning late in the  



evening of July 13, 2010, when the Anchorage police allegedly arrived at Richardson's  



                                  

home.    According  to  Richardson,  the  police  initially  arrived  without  a  warrant  and  



                                                              

entered his residence without permission.  Richardson claimed that the police obtained  



a warrant early the next morning and sent a police canine into the crawl space of the  



residence, where Richardson was hiding.  By Richardson's account, he got into a "fist  



                                                    

fight"  with  the  canine,  sustained  dog  bite  injuries  to  his  arms  and  legs,  and  was  



transported  to  the  hospital  for  treatment.    After  being  released  from  the  hospital,  



                                                                                                    

Richardson was booked at the Anchorage Correctional Complex, but the charges against  



him were ultimately dismissed.  



                                                                             

                   Richardson alleged the same causes of action as in his first complaint and  



similarly sought millions of dollars in damages.  Richardson named the State of Alaska,  



                                                                                                 

the Municipality of Anchorage, the Anchorage Police Department, fifteen police officers  



                                                                                                                    3  

who purportedly participated in his arrest, and "K-9 Jimmy Lee" as defendants.    



          B.       Proceedings  



                                                                                                               

                   Richardson was unrepresented throughout the proceedings in both cases,  



and he remains so on appeal.  



                    1.       The suit before Judge Easter  



                    Shortly  after  filing  his  first  complaint,  Richardson  filed  a  request  for  



appointed counsel.  The superior court denied this request.  



          3        When discussing the second suit, we will use "the Municipality" to refer   



collectively to the Municipality of Anchorage, the Anchorage Police Department, the  

fifteen named police officers, and K-9 Officer Jimmy Lee.  



                                                             -5-                                                       7061
  


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

                      The Municipality and Best Buy moved to dismiss Richardson's complaint  



                                                                                         4 

                                                                                            arguing that the alleged wrongs  

as untimely under the two-year statute of limitations, 



                                                         

occurred on July 7, 2010, but that Richardson filed his complaint - at the earliest - on  



                        5  

July 17, 2012.   Richardson then filed several motions arguing that his complaint was  



                                                                                           

timely under the statute of limitations:  an opposition to Best Buy's motion to dismiss,  



                                                        

a "Motion for Tolling the Statute of Limitations and Receiving Equitable Tolling,"  and  



                                                                                                                                  

motions requesting a judgment of default under Alaska Civil Rule 55 against Best Buy  



                                                                                              

and the Municipality.  He also filed a motion requesting an evidentiary hearing that was  



technically styled as a response to defendants' motions to dismiss.  



                            

                      In these motions and attached memoranda Richardson raised numerous  



                                                                                                                              

arguments, only three of which are relevant to this appeal.  First, Richardson claimed that  



                                                                                                      

his cause of action did not accrue until September 23, 2010, when his theft charge was  



                                                                                      

dismissed.  Second, Richardson appeared to argue that he was mentally incompetent to  



file suit due to his "mental disorder and eighth grade education."  Finally, Richardson  



claimed that "the restrictions of imprisonment" and his pro se status prevented earlier  



filing of his complaint.  



           4          See AS 09.10.070(a) ("Except as otherwise provided by law, a person may                               



not bring an action . . . for personal injury or death . . . unless the action is commenced           

within two years of the accrual of the cause of action.").  



           5  

                                                                                                           

                      Richardson claims that he delivered his complaint on July 17, 2012, to the  

                                                                                                 

"legal mail box" at the facility where he was incarcerated, but it was not accepted by the  

                                                                                                     

court for filing until July 23. On appeal Richardson asks this court to apply the "mailbox  

rule," under which filing would have been effective upon delivery to the prison's legal  

mailbox.  See 4 CHARLES ALAN  WRIGHT &  ARTHUR R.  MILLER ,  FEDERAL PRACTICE AND  

PROCEDURE   1052 (3d ed. 2015) ("[I]ndividuals who are incarcerated and are filing  

their legal documents pro se may benefit from a special 'mailbox rule' . . . .").  Because  

                                                                     

we ultimately agree with the superior court that the statute of limitations expired on  

                                             

July 14, we do not need to decide whether the "mailbox rule" should apply.  



                                                                      -6-                                                               7061
  


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

                                                                                                   

                      The superior court granted the Municipality's and Best Buy's motions to  



dismiss, finding that Richardson's cause of action accrued on July 14, 2010, "at the  



                                                                                                             6  

latest" and that Richardson filed his complaint on July 23, 2012.   The court did not  



                                                                        

expressly address Richardson's arguments regarding his mental competency to file suit  



and  difficulties  due  to  incarceration,  but  it  did  deny  the  motions  through  which  



                     

Richardson had raised these issues.  The court did not specifically rule on Richardson's  



request for an evidentiary hearing.  



                                                                                                                             

                      Richardson filed a motion for reconsideration, which the court denied.  He  



then filed several other motions, including one that more specifically articulated his  



mental incompetency argument.  The court did not rule on this motion, and it entered  



final judgment in the defendants' favor in June 2013.  



                      2.         The suit before Judge Rindner  



                      The court accepted Richardson's second complaint for filing on July 30,  



                                                                                                                              

2012.  Shortly thereafter Richardson filed a request for appointed counsel, which the  



                                                                                                                    

superior court denied, explaining that "[t]here is no constitutional right to counsel" in "a  



civil case seeking damages."  



                      The Municipality filed a motion to dismiss based on the two-year statute  



     

of limitations, arguing that the alleged wrongs occurred on July 13, 2010, but that the  



                                                                                                                           

complaint was not filed until July 30, 2012.  Richardson filed an opposition arguing that  



                                              

his cause of action did not accrue until the theft charge against him was dismissed on  



                                     

September 23, 2010.  The superior court granted the Municipality's motion to dismiss,  



                                                                                               

finding that Richardson's claims involved acts occurring on July 13 and 14, 2010, but  



that the complaint was not filed until July 30, 2012.  



           6          The State of Alaska also filed motions to dismiss in both of Richardson's   



cases, which the court granted.  We reserve further discussion of these proceedings for       

Part IV.E.  



                                                                     -7-                                                              7061
  


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

                    After  this  dismissal  Richardson  filed  two  motions  for  reconsideration,  



arguing  that  he  "met  the  [r]equirements  to  prove  extenuating  circumstance[s]"  and  



                                           7  

invoking the discovery rule.   He also filed a motion identical to one filed in the first  



                                                                                                       

case,  impliedly  arguing  that  he  was  mentally  incompetent  to  file  suit  and  citing  his  



incarceration-related difficulties.  Finally, he filed a motion requesting an evidentiary  



                                                              

hearing that was again technically styled as a response to defendants' motions to dismiss.  



                    The superior court issued an order responding to these motions.  The court  



                                                                                                      

recognized that Richardson was pro se and noted its acceptance of his untimely motion  



                                                                       

for reconsideration, but explained it could not "cut him some slack" as to the statute of  



                                                                                 

limitations.  The court noted that Richardson's claims involved acts occurring on July 13  



                      

and 14, 2010, and that Richardson filed his complaint on July 30, 2012.  After explaining  



                                                                                   

the relevant case law, the court rejected Richardson's invocation of the discovery rule.  



                                                                              

Richardson then filed several additional motions,  including two that more expressly  



                                                                                           

articulated his claim of mental incompetence.  In one of its written orders, the superior  



court rejected Richardson's mental incompetence claim as "not adequately supported,"  



noting that the emergency room records Richardson submitted showed he was fully  



"alert and oriented."   



                                        

                    Richardson  also  filed  a  motion  presenting  a  new  statute  of  limitations  



                                                           

argument, for the first time explaining that he attempted to file his complaint prior  to the  



                      

expiration of the statutory period on July 14, 2012.  The issue of when Richardson  



          7         See   John's  Heating  Serv.  v.  Lamb,  46  P.3d  1024,  1031  (Alaska  2002)  



("[T]he  statute  of  limitations  does  not  begin  to  run  until  the  claimant  discovers,  or  

reasonably should have discovered, the existence of all elements essential to the cause  

                                                                                                                  

of action." (quoting Mine Safety Appliances Co. v. Stiles , 756 P.2d 288, 291 (Alaska  

                                                                                                                 

1988))).  



                                                               -8-                                                         7061
  


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

commenced  his  suit  touched  off  several  months  of  further  proceedings,  successive  



requests for reconsideration, and seven more court orders.  



                                                         

                   In July 2013 Richardson filed his final motion for reconsideration, which  



      

the court denied, concluding that "[b]ased on the current record before the court there is  



no basis for further review."   



III.      STANDARD OF REVIEW  



                    "This  court  exercises  its  independent  judgment  when  interpreting  and  

applying statutes of limitation."8  



                    "The decision to appoint counsel for a civil litigant is a procedural decision,  

                                                                                  



which we review for abuse of discretion. . . . 'Reversal is warranted only if we are left  

                                          

with a definite and firm conviction . . . that a mistake has been made.' "9  



                                                            

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



outside the complaint . . . . When 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  



                                             10  

                                                                                              

Alaska  Civil  Rule  56  .  .  .  ."               We  explained  in  Larson  v.  State,  Department  of  



Corrections that  



                    [w]hen the superior court does neither, but instead decides  

                   the motion under [Alaska Civil] 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  

                                        



          8        Brotherton v. Brotherton , 142 P.3d 1187, 1189 (Alaska 2006).  



          9        Midgett v. Cook Inlet Pre-Trial Facility , 53 P.3d 1105, 1109-10 (Alaska  



2002) (quoting Silvers v. Silvers, 999 P.2d 786, 789 (Alaska 2000)).  



          10       Larson v. State, Dep't of Corr. , 284 P.3d 1, 7 (Alaska 2012).  



                                                             -9-                                                       7061
  


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

                                                                                                     

                           exclusion of outside materials; or we may review the decision  

                                                                            

                           as if summary judgment had been granted after conversion of  

                                                                                                                                        [11]  

                           the motion to dismiss into one for summary judgment.  



                           In both proceedings Richardson submitted a number of motions - along                      



with accompanying evidence - that could be considered supplemental responses to the      



 defendants' motions to dismiss.  In granting the Municipality's and Best Buy's motions                                        



to dismiss in the first case, Judge Easter listed these various motions and noted which she       



was denying. We therefore assume the court considered these materials, and accordingly       



review the decision under the summary judgment standard.  In the case before Judge  



                                                                                                                                                     

Rindner, the court expressly excluded materials outside the pleadings in granting the  



 defendants' motions to dismiss.  But the court issued six subsequent orders responding  



                                                                                                          

to Richardson's requests for reconsideration, three of which referenced evidence outside  



 of the pleadings.  Therefore, we also review the decision in the second case as if the  



Municipality's motion to dismiss under Rule 12(b)(6) had been converted to a motion  



 for summary judgment.  



                                                                                                                                         

                           This court "review[s] a grant of summary judgment de novo, 'affirming if  



                                                                                                                                                    

the record presents no genuine issue of material fact and if the movant is entitled to  

                                                             12  The court "must determine 'whether any genuine issue  

                                                                                                                                           

judgment as a matter of law.' " 



 of material fact exists,' and in so doing all factual inferences must be drawn in favor of  

                                                                                                                                     



- and the facts must be viewed in the light most favorable to - the party against whom  

                                                                                                                                       



              11           Id .  



              12           Kelly  v.  Municipality  of  Anchorage ,  270  P.3d  801,  803  (Alaska  2012)  



 (quoting Beegan v. State, Dep't of Transp. & Pub. Facilities , 195 P.3d 134, 138 (Alaska  

                                                                                                                          

2008)).  



                                                                                   -10-                                                                            7061
  


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

                                                  13  

                                     

summary  judgment  was  granted."                       "These  same  ground  rules  apply  in  summary  

judgment cases involving statute-of-limitations defenses." 14  



IV.	      DISCUSSION  



          A.	      Statute Of Limitations Issues  



                   1.	      The superior court did not err by concluding that Richardson's  

                            cause of action accrued on July 14, 2010.  



                   "A cause of action accrues when a party knows or should know that he has  

                                                                                                            

                                                                                                                  

a claim.  Ordinarily, this is the date on which the injury occurs."15  

                                                                                             Under the discovery  



rule, "the statute of limitations does not begin to run until the claimant discovers, or  



                                                    

reasonably should have discovered, the existence of all elements essential to the cause  



               16  

of action."        



                   In   both   of   Richardson's   suits,   the   superior   court   concluded   that  



                                          

Richardson's cause of action accrued no later than July 14, 2010, when Richardson was  



allegedly arrested at his home and injured by the police canine.  Although Richardson  



                                                                                       

argued below that his cause of action did not accrue until the theft charges against him  



                                                                                                        

were dismissed on September 23, he abandons this argument on appeal, stating in his  



                                                                                      

opening briefs that "the incident that started [his] injuries . . . happened on July 14, 2010  



- what amounts to a false arrest."  



                   Richardson does, however, appear to invoke the discovery rule on appeal  



for the proposition that his cause of action accrued after July 14.  Citing Catholic Bishop  



          13       Id . (quoting Nielson v. Benton , 903 P.2d 1049, 1051-52 (Alaska 1995)).  



          14       Cikan v. ARCO Alaska, Inc., 125 P.3d 335, 339 (Alaska 2005).  



          15       Yurioff v. Am. Honda Motor Co.,  803 P.2d 386,  388 (Alaska 1990) (citation  



omitted).  



          16       John's Heating Serv.  v. Lamb, 46 P.3d 1024, 1031 (Alaska 2002) (quoting  



Mine Safety Appliances Co. v. Stiles , 756 P.2d 288, 291 (Alaska 1988)).  



                                                          -11-	                                                   7061
  


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

                              

of Northern Alaska v. Does 1-6, he states that "under rules of discovery, the date the  

statute of limitations begins to run is a question of fact."17  He also states that his "mental  



                              

disorder" was "part of the injury he did not know about until being seen by a doctor on  



                                                                    

the outside July 20th, 2010," and "also should  toll the statute."  (Emphasis added.)  But  



                                             

Richardson does not articulate how his alleged mental disorder is an "essential element"  



                      

of any claim.   Nor does Richardson explain which element or elements of his claims  



remained undiscovered after his July 14 arrest.  Any implied argument regarding the  



discovery rule is therefore unavailing.  



                                                                                                  

                   2.	       In the case before Judge Rindner, there was a genuine issue of  

                             material fact as to when Richardson commenced his suit.  



                   Under Alaska Civil Rule 3(a), "[a] civil action is commenced by filing a  



                                                                                                                 

complaint with the court."  Here, Richardson's complaint was not accepted for filing by  



the superior court until July 30, 2012 - more than two years after his cause of action  



accrued on July 14, 2010.  But Richardson argues that his complaint was nonetheless  



timely  because  it  was  first  received  by  the  court  -  admittedly  with  technical  



                 18  

deficiencies        - by July 12, 2012, before the statute of limitations ran.  In light of the  



evidence supporting Richardson's assertions, we conclude there is a genuine issue of  



material fact as to when Richardson commenced his suit.  



                                        

                   Renewing  an  argument  he  made  before  the  superior  court,  Richardson  



                                                                                         

claims that he mistakenly filed his complaint in district court rather than superior court  



                                                                                                 

and that his complaint was returned to him with a deficiency notice dated July 12, 2012.  



Richardson   attached   this   deficiency   notice   to   one   of   his   several   motions   for  



          17       See 141 P.3d 719, 725 (Alaska 2006).  



          18       See  Mullin v. State , 996 P.2d 737, 738 (Alaska App. 2000) ("[A] pleading  



may satisfy a filing deadline even though the pleading is technically deficient.").  



                                                           -12-	                                                     7061
  


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

                         19  

                                                                                                 

reconsideration.             The deficiency notice listed the case name, "Richardson vs. State of  



                                                                                                                     

Alaska et al.," and described three problems with Richardson's complaint:  1) the lack  



                                                                       

of district court jurisdiction over the case due to claimed damages exceeding $100,000;  



                                                                                                  

2) the omission of a "case description"; and 3) the absence of a form requesting a filing  



fee exemption.  The notice indicated that Richardson's documents were being returned  



to him.  



                            

                     The      superior        court      concluded          that    "[t]his      might       be     proof      that  



                                                                                                                 

Mr. Richardson's effort to litigate the case should be considered timely."  (Emphasis in  



                               

original.)    But  the  court  found  it  "[could  not]  decide  this  on  the  record  before  it,"  



                                                                     

particularly given that Richardson had filed another case involving similar allegations.  



                                                                            

The court therefore asked Richardson to provide a copy of the complaint he had tried to  



                                                                                  

file in district court, in order to show that the July 12, 2012 deficiency notice was indeed  



                                                                             

issued in the suit pending before Judge Rindner.  Richardson never produced a copy of  



                                                                

his complaint, and explained that he no longer had his original complaint because he  



                                                                                                

fixed the deficiency by altering the first page of the complaint and mailing it back to the  



                                                                                                                          

clerk.  But Richardson attested in an affidavit that the complaint he initially  filed in  



district court was the one pending before Judge Rindner.  



                     The superior court also considered a "legal mail report" from the Wildwood  



                                           

Correction  Center,  where  Richardson  was  incarcerated.    According  to  this  report,  



                                                                         

Richardson mailed items addressed to the "AK Court System, Clerk of Court - Anch"  



                                                                                                            

on July 3 and July 19 and received mail from "AK Court System, Anchorage Trial  



          19         We note that Richardson submitted this evidence only after the superior  



court denied his motion for reconsideration. But the superior court expressly considered  

                                                                                                      

Richardson's  subsequent  requests  for  reconsideration,  along   with   evidence   and  

                                                                                           

arguments from both parties.  We therefore evaluate the evidence as if the superior court  

were ruling on a timely motion for reconsideration under Alaska Civil Rule 77(k).  



                                                               -13-                                                          7061
  


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

                                                                                                                       

Court" on July 13.  These dates are consistent with Richardson's account of events: he  



                                                                                                                     

claims that he signed  his original complaint and  placed  it in  prison  mail on  July  2,  



                                                                                                                  

received his complaint back on July 13 with a deficiency notice dated  July 12, and  



                                                                      

mailed the corrected complaint on July 19.  But the superior court concluded that the  



legal mail report did "not establish the contents of the mail or whether the mail was  



                                                                                                                      

generated in a particular case."  The court noted that the legal mail report did not satisfy  



its prior request for evidence showing that Richardson's complaint in  that case was  



received within the statute of limitations.  



                     Because we are treating the Municipality's motion to dismiss as if it had  



                                                                                 20 

                                                                                     "all factual inferences must be  

been converted to a motion for summary judgment, 



                                                                                                 

drawn in favor of - and the facts must be viewed in the light most favorable to - the  

                                                                                  21   Even if the evidence described  

                                                                                        

party against whom summary judgment was granted."  



above was insufficient to foreclose  other possibilities, it strongly supports Richardson's  

                                                                                      



version  of  events.    And  the  Municipality  presented  no  evidence  to  suggest  that  the  

                                                                                    



July 12, 2012 deficiency notice was issued in any case other than the one pending before  

                                                                                   



Judge Rindner.  Accordingly, we conclude that the evidence before the superior court  

                          



raised  a  genuine  issue  of  fact  as  to  whether  the  court  system  effectively  received  



                                       

Richardson's complaint prior to July 14, 2012.  We therefore vacate the superior court's  



order granting the Municipality's motion to dismiss and remand for further proceedings  



on this issue.  



          20        See Larson v. State, Dep't of Corr., 284 P.3d 1, 7 (Alaska 2012) ("When     



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 . . . .").  



          21        Kelly v. Municipality of Anchorage , 270 P.3d 801, 803 (Alaska 2012).  



                                                               -14-                                                          7061
  


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

                    3.	      The   statute   of   limitations   was   not   tolled   due   to   mental  

                                                                                          

                             incompetency.  



                    Richardson argues that the statute of limitations should have been tolled due  



to  a  mental  disability  that  prevented  him  from  filing  his  complaint  earlier.  Under  

                                                                 



AS 09.10.140(a),  



                                      

                    if  a  person  entitled  to  bring  an  action  mentioned  in  this  

                    chapter  is  at  the  time  the  cause  of  action  accrues  .  .  .  

                    incompetent by reason of mental illness or mental disability,  

                                                          

                   the time of [the] disability identified . . . is not a part of the  

                   time limit for the commencement of the action.  



The  "general  test"  for  mental  incompetency  is  "whether  a  person  could  know  or  

                                                                     

understand his legal rights sufficiently well to manage his personal affairs."22  



                    We have emphasized that this test does not measure whether a litigant did  



understand his or her legal rights, but whether he or she is  capable of understanding  



        23  

them.        In  Cikan v. ARCO Alaska, Inc., for instance, we reversed a grant of summary  

                               



judgment against a slip-and-fall plaintiff who filed suit eight years after incurring head  

                                                



injuries, where a psychiatrist had attested that the plaintiff failed to understand her "post- 

                                                            



                                                                             24  

concussion syndrome" until years after the accident.                             But in Hernandez-Robaina v.  



State,  we  held  that  an  inability  to  understand  English  was  insufficient  to  show  

incompetence for purposes of tolling the statute of limitations.25  



          22        Cikan v. ARCO Alaska, Inc.               , 125 P.3d 335, 340 (Alaska 2005) (quoting  



Adkins v. Nabors Alaska Drilling, Inc. , 609 P.2d 15, 23 (Alaska 1980)).  



          23       Hernandez-Robaina  v.  State ,  849  P.2d  783,  785  (Alaska  1993)  (citing  



Adkins , 609 P.2d at 23).  



          24        Cikan, 125 P.3d at 337-38.  



          25       Hernandez-Robaina , 849 P.2d at 785.  



                                                            -15-	                                                     7061
  


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

                                                                                                 

                     We  find  Hernandez-Robaina  to  be  the  closer  analogy  to  Richardson's  



                                                           

allegations of mental incompetence.  In both of his suits, Richardson filed a "Motion for  



Tolling  the  Statute  of  Limitations  and  [for]  Receiving  Equitable  Tolling"  raising  a  



                                                                                             

number of arguments related to the statute of limitations.  In an attached affidavit, he  



                                 

made the following statements: 1) that "being held falsely in prison for charges he did  



                                                                                            

not commit . . . caused him mental anguish"; 2) that his cell mate committed suicide three  



                                                                                      

days after Richardson's arrest; 3) that Richardson was being treated by "[Department of  



Corrections]  mental  health  to  this  day,  for  PTSD,  and  depression  that  he  lives  with  



                                                                        

everyday";  4)  that  he  has  an  "eighth  grade  education";  and  5)  that  he  "is  mentally  



                                            

hand[i]capped,  from  head  trauma."    In  addition,  Richardson  referenced  his  "mental  



                                                                                                                 

handicaps"  in  a  subsequent  request  for  an  evidentiary  hearing  on  the  statute  of  



limitations.  



                                                                  

                     When Judge Easter granted the defendants' motions to dismiss in the first  



suit and denied Richardson's subsequent motion for reconsideration, there was no other  



                                      

evidence in the record  regarding Richardson's mental incompetency.  Because Best  



Buy's and the Municipality's motions had been effectively converted to motions for  



                                                                                                                 

summary judgment, Richardson was required "to set forth specific facts showing that he  



                                                                          

could  produce  evidence  reasonably  tending  to  dispute  or  contradict  the  movant's  



                                                                                                             26  

evidence and thus demonstrate that a material issue of fact exists."                                             And although  



                                                                                                           

"[c]ourts have interpreted liberally the type of mental condition that will toll a statute of  



          26         See Christensen v. Alaska Sales & Serv., Inc.                          , 335 P.3d 514, 517 (Alaska  



2014) (quoting  State, Dep't of Highways v. Green, 586 P.2d 595, 606 n.32 (Alaska   

1978)).  



                                                                 -16-                                                           7061
  


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

                      27 

                                                                                    

limitations,"            Richardson's descriptions of his mental disabilities were insufficient to  

show that he could produce evidence of an inability to understand his legal rights.28  



                       In the suit before Judge Rindner, the superior court considered additional  



                                                                                                     

evidence not taken under advisement in Richardson's first suit.  In particular, Richardson  



                                           

filed a motion expressly arguing that AS 09.10.140(a)(2) should be invoked because his  



                                                                                                                   

"mental disability caused [him] confusion, personal[i]ty changes, [and] disorganization  



                                                                 

that [led him to file] bankruptcy and caused [him] not to communicate effectively with  



                                                                                                                    

[his] attorney at trial."  And in an attached affidavit, Richardson stated: "[My arrest]  



caused me to be traumatized to the point of me not being in my proper state of mind for  



                                                                                                   

many months to come.  It took me until October [2010] before I was even made aware  



                      

that I could file a [l]awsuit [against the] Anchorage Police Department . . . ."  Perhaps  



                                                                                                                 

most notably, Richardson submitted medical records from July 21, 2010, just a week  



following his arrest.  



                                                 

                       The evidence that Richardson himself submitted illustrated an ability to  



understand his legal rights.  In particular, one medical record notes, "[Patient] states  



falsely accused & attacked by police dogs."  Another doctor's notation reads:  



                        [Richardson]  spent  the  entire  time  explaining  what  had  

                                                                                                             

                       happened and how he was innocent.  Apparently there was a  

                       case of suspected involvement in a theft.  I will not go into  

                                                                                                                

                       the details of everything that he explained to me . . . [,]but he  

                       states that he is innocent but nonetheless the police had the  



            27         Cikan, 125 P.3d at 340 (alteration in original) (quoting Adkins, 609 P.2d  



at 23).  



            28         As for the evidence Richardson submitted                                   after  the superior court denied  



his motion for reconsideration, the court was under no obligation to consider what were,   

in essence, a series of untimely and successive requests for reconsideration.                                                       See Alaska  

R. Civ. P. 77(k) (requiring that a motion to reconsider be made within ten days of notice  

of a ruling).  



                                                                        -17-                                                                  7061
  


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

                      dogs all over him . . . .  He is paranoid because of how he was     

                      treated, knowing that he was innocent, and because things  

                      were removed from his home by the police and he does not  

                      know  why.           He  states  that  even  his  surveillance  cameras,  

                                                  

                      which would have recorded everything[,] were removed.  



Richardson's apparent ability to relay what had happened to him and communicate the  

                                                                        



alleged wrongfulness of the police's conduct undermines his mental incompetency claim.  



It also distinguishes this case from                     Cikan, where there was credible evidence that "the  



picture of the [plaintiff's] symptoms . . . did not become evident to either [the plaintiff]   

or her physicians until a number of years after the accident."                                  29  In contrast, Richardson's  



                                                                                                                      

medical records indicate that he appreciated the nature of his injuries in the immediate  



                                                             

aftermath of his arrest.  We therefore conclude that neither superior court judge erred in  



rejecting Richardson's mental incompetency claim.    



                      4.	       The  statute  of  limitations  was  not  equitably  tolled  based  on  

                                                                                                                             

                                Richardson's  separation  from  his  legal  documents  or  other  

                                hardships of incarceration.  



                                        

                      In each of his appeals, Richardson argues that the statute of limitations  



should  have  been  equitably  tolled  due  "extraordinary  circumstances"  based  on  



separation from his legal documents during a six-day "lockdown" at the Anchorage  



Correctional Complex following his cell mate's suicide, and during a nine-day period  



                                                                                                                                   

surrounding  his  transfer  to  Wildwood  Correctional  Center.                                        Even  assuming  all  of  



                                                                                                                                

Richardson's alleged facts to be true, however, equitable tolling would not - as a matter  



of law - bar the statute of limitations defense.  



                                                                          

                      As we explained in Fred Meyer of Alaska, Inc. v. Bailey , "[t]he doctrine of  



                                                                                                         

equitable tolling 'relieve[s] a plaintiff from the bar of the statute of limitations when he  



           29         125 P.3d at 338.  



                                                                   -18-	                                                                7061  


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

                                                                                        30  

has more than one legal remedy available to him' . . . ."                                   "[A]fter the plaintiff 'adopts  

                                                                                             



a single course of action which is dismissed or otherwise fails, courts generally allow the  

                                                                                                            

plaintiff to pursue a second remedy based on the same right or claim.' "31 Therefore we  

                                                                                       



have explained that "[t]he statute of limitations is . . . tolled during the pendency of the  

                                           



initial defective action, giving the plaintiff the full statutory period to file once tolling  

             32  Accordingly, equitable tolling requires a key element missing in Richardson's  

ceases."                               



case:    "that  the  party  have  pursued  a  past  claim  in  a  'judicial  or  quasi-judicial  

governmental forum.' "33  



                     In the proceedings below, Richardson argued that the statute of limitations  

                                                                                                                     



should  be  tolled  because  he  had  "exhausted  administrative  remedies"  by  sending  a  



                                                                                                   

complaint to Anchorage Police Department Risk Management and cooperating with the  



                                                                       

Municipality's investigation.  But on appeal, he neither recounts these efforts nor argues  



                                                                                                                                       34  

                                                                                      

that  his  pursuit  of  an  alternative  remedy  served  to  toll  the  statute  of  limitations. 



Richardson likewise fails to reference his "administrative remedies" argument in his  

                                                               



extensive recitation of the pleadings he submitted below. We therefore conclude that on  

                                                                                                 



appeal, Richardson has abandoned any argument that the statute of limitations should  

                                 



           30         100 P.3d 881, 886 (Alaska 2004) (second alteration in original) (quoting       



Dayhoff v. Temsco Helicopters, Inc. , 772 P.2d 1085, 1087 (Alaska 1989)).  



           31        Id .  (quoting  Gudenau  &  Co.  v.  Sweeney  Ins.,  Inc.,  736  P.2d  763,  768  

                                                               

(Alaska 1987)).  



           32        Id . (citing Gudenau, 736 P.2d at 768).  



           33        Christianson v. Conrad-Houston Ins., 318 P.3d 390, 408 (Alaska 2014)  



(quoting Gudenau, 736 P.2d at 768).  



           34        Richardson  does  mention  his  communications  to  the  Municipality  of  



Anchorage and the State of Alaska, but only in stating that he had to recruit another  

inmate to assist with these communications due to his own mental disability.  



                                                                 -19-                                                            7061
  


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

                                                                                        

have  been  tolled  based  on  pursuit  of  his  claim  in  a  "judicial  or  quasi-judicial  

governmental forum."35  



                     Richardson  also  seems  to  be  arguing  for  equitable  tolling  based  on  



                                                             

"extraordinary circumstances."  Some jurisdictions apply this doctrine to equitably toll  



a plaintiff's claims "where extraordinary circumstances outside the plaintiff's control  



                                                                                                           36  

                                                                                                              but "[w]e have  

make it impossible for the plaintiff to timely assert his or her claim" 



                                                                              37 

                                                                                 Likewise this case does not require  

neither accepted nor rejected this theory of tolling." 



us to decide whether we will toll claims based on extraordinary circumstances because  



                                                                                     

Richardson's claims would not meet the high standard required to toll claims under this  

doctrine.38  



                     Instead,  Richardson's  equitable  tolling  arguments  on  appeal  are  based  



solely on his alleged separation from his legal documents as a result of his incarceration,  



                                                                                   

in addition to his claim of mental incompetence.  In federal habeas cases, a prisoner's  



separation         from      legal      documents          will     sometimes           serve      as    an    "extraordinary  



                                                                    39  

circumstance" warranting equitable tolling.                             But this court has never adopted such a  



          35         See Christianson, 318 P.3d at 408 (quoting Gudenau, 736 P.2d at 768).  



          36         Kaiser v. Umialik Ins.            , 108 P.3d 876, 882 (Alaska 2005) (quoting                          Abbott  



v. State, 979 P.2d 994, 998 (Alaska 1999)) (internal quotation marks omitted).  



          37        Id .  



          38  

                                                            

                     See  id. (explaining that for a claim to be tolled based on extraordinary  

                                                                                 

circumstances, "the plaintiff [must] have been kept from the courts by legal barriers or  

by truly extraordinary events, like wars").  



          39  

                                                                                                                          

                     See, e.g., Espinoza-Matthews v. California , 432 F.3d 1021, 1028 (9th Cir.  

                                                                                 

2005) (holding that habeas petitioner was entitled to equitable tolling where "[f]or nearly  

                                    

11 months, despite his diligence, [he] could not obtain his legal papers"); Lott v. Mueller ,  

                                                 

304 F.3d 918, 922-25 (9th Cir. 2002) (holding that separation from legal papers during  

                                                                                                                 (continued...)  



                                                                -20-                                                          7061
  


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

rule  for  civil  suits  brought  by  inmates,  and  the  legislature  specifically  removed  



                                                                                                 40  

                                                                                                     Accordingly, we  

incarceration as a ground for tolling a statute of limitations in 1986.  



                                                         

conclude that Richardson's separation from his legal documents was not grounds to toll  



the statute of limitations.  



          B.	      The Superior Court Was Not Required To More Liberally Construe  

                   Richardson's Pleadings.  



                                                                                                          

                   In both appeals, Richardson argues that the superior court "was in error  



when it failed to construe liberally the motions of a pro-se litigant."  In particular, he  



                                                                                                      

asserts that "[t]he court should have construed liberally [his] motions and other filings  



                                                         

where he indicated he was on 23 hour lockdown at Anchorage Jail for 6 days when his  



                                                      

cell mate had committed suicide and everything in [his] cell was held as evidence . . . ."  



                                                         

It is true that neither Judge Easter nor Judge Rindner expressly addressed this precise  



issue.  But as we conclude above, separation from legal papers does not provide a basis  



for  equitably  tolling  the  statute  of  limitations  under  Alaska  law.    Accordingly,  



                                                                                             

Richardson was not prejudiced by any failure to more liberally construe his pleadings.  



                   Similarly, Richardson appears to argue that in both cases, the court should  



                                                                              

have more liberally construed his motions regarding his alleged mental incompetence.  



          39       (...continued)  



two institutional transfers could warrant equitable tolling).  



          40	      See ch. 88,  1, SLA 1986.  The statute used to provide,  



                           

                   If  a  person  entitled  to  bring  an  action  mentioned  in  this  

                                                                                       

                   chapter  is  at  the  time  the  cause  of  action  accrues  .  .  .  

                   imprisoned  on  a  criminal  charge,  or  in  execution  under  

                   sentence of a court for a term less than the person's natural  

                                  

                   life, the time of the disability is not a part of the time limited  

                   for the commencement of the action.  



Former AS 09.10.140 (1986).  



                                                            -21-	                                                     7061
  


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

But because Richardson failed to raise a genuine issue of material fact as to his mental  



competency, a more liberal construction of his motions would not affect the ultimate  



disposition of his case.  



                                                                                                              

          C.	       The  Superior  Court  Was  Not  Required  To  Appoint  Counsel  For  

                    Richardson.  



                                                                                                           

                    "There is no general right to counsel in civil cases under the United States  

or Alaska Constitutions,"41 though under Alaska law, "[t]he provision of publicly-funded  



counsel   in   some   child   custody,   parental   [rights]   termination,   and   involuntary  



                                                                                  42  

commitment cases is a notable exception to this rule."                                 In Midgett v. Cook Inlet Pre- 



Trial  Facility,  we  considered  an  analogous  case  of  an  indigent  pro  se  plaintiff  who  



                                                                                           43  

                                                                                                Because "[the inmate's]  

brought an excessive force suit against a correctional facility. 



                                                 

claim [did] not fall into one of the already recognized exceptions for appointment of  



counsel  in  a  civil  proceeding,"  this  court  applied  the  balancing  test  articulated  in  



                                                                                                44  

                                                                                                     This court noted that  

Mathews v. Eldridge to "determine what process [was] due . . . ." 



"[t]he private interest of a litigant in having counsel in a tort case is not as strong as the  



interests involved in cases where we have already afforded appointed counsel," and that  



          41	       Azimi v. Johns , 254 P.3d 1054, 1061 (Alaska 2011).  



          42        Id . at 1061 n.19. Richardson argues that his alleged mental incompetence   



is another exception.  Even if this were the case, Richardson failed to raise a genuine   

issue of material fact as to his mental competence.  



          43	       53 P.3d 1105 (Alaska 2002).  



          44        Id .  at  1111;  see  Mathews  v.  Eldridge,  424  U.S.  319,  335  (1976)  



("[I]dentification of the specific dictates of due process generally requires consideration  

of three distinct factors: First, the private interest that will be affected by the official  

action;  second,  the  risk  of  an  erroneous  deprivation  of  such  interest  through  the  

procedures used, and the probable value, if any, of additional or substitute procedural  

safeguards; and finally, the Government's interest . . . .").  



                                                               -22-	                                                       7061
  


----------------------- Page 23-----------------------

"[a]  claimant's   economic  interest  in  recovering  money  damages  is  not  particularly  



                                                              45  

compelling  under Mathews  v.  Eldridge."                           Accordingly,  we  held  that  although  the  



inmate "would undoubtedly have had a better chance with a lawyer, the failure of the  



superior  court  to  appoint  counsel  in  his  tort  claim  did  not  violate  his  due  process  

rights."46  



                    Under this well-established precedent, Richardson had no right to appointed  



counsel in this case, and neither superior court erred by denying his request.  



                                                            

          D.	       An Evidentiary Hearing Was Required Only In Richardson's Case  

                    Before Judge Rindner.  



                                                                                                       

                    As this court has explained, "the task of interpreting and applying a statute  



of limitations traditionally falls within the province of the courts; so when a factual  



                                                                                                               

dispute precludes entry of summary judgment the dispute must ordinarily be resolved by  



                                                                                                47  

                                                                                                    Richardson argues  

the court at a preliminary evidentiary hearing in advance of trial."  



                                                                                    

in both appeals that the superior court erred by denying his requests for an evidentiary  



                                                                   

hearing.  He argues that such a hearing would have allowed him to "more fully develop[]  



                                                                    

the record" regarding his mental competency, his diligence in pursuing his claim, and the  



circumstances entitling him to equitable tolling.  



                                         

                    We conclude that further proceedings were indeed necessary in the case  



                                                                    

before Judge Rindner on the disputed issue of when Richardson commenced his second  



                                            

suit. Because Judge Rindner correctly rejected Richardson's other arguments regarding  



                                                                                                          

the statute of limitations, however, no evidentiary hearing was required on these issues.  



                                                                           

Because Richardson failed to raise a genuine issue of material fact countering the statute  



          45       Midgett , 53 P.3d at 1111-12.  



          46        Id. at 1112.  



          47        Cikan v. ARCO Alaska, Inc., 125 P.3d 335, 339 (Alaska 2005).  



                                                             -23-	                                                      7061
  


----------------------- Page 24-----------------------

of limitations defense in his case before Judge Easter, the court was not required to grant  

                                      



Richardson an evidentiary hearing in that suit.  



         E.	      Richardson Waived Any Argument Regarding The State Of Alaska's  

                  Motions To Dismiss.  



                  The State argues that Richardson fails to raise any argument regarding the  

                                                



State's dismissal from his suits, and we agree.  In both proceedings below, the State  



moved   to   dismiss  on  the  grounds  that  Richardson  failed  to  allege  any  facts  in  his  



complaints relating to the State's conduct.  On appeal, Richardson neither addresses this  



                                                                             

argument nor mentions any aspect of the State's alleged conduct.  He therefore fails to  



properly raise this issue on appeal.  



V.	      CONCLUSION  



                                                                   

                  In  the  case  before  Judge  Easter,  we  AFFIRM  the  order  dismissing  



Richardson's case in its entirety.  



                  In the case before Judge Rindner, we VACATE the order granting the  



Municipality's  motion  to  dismiss  and  remand  for  further  proceedings  regarding  



                                                                                                    

Richardson's date of filing.  On all other issues, including the dismissal of the State, we  



AFFIRM.  



                                                       -24-	                                                  7061
  

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