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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Patterson v. Walker (10/19/2018) sp-7310

Patterson v. Walker (10/19/2018) sp-7310

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                      THE SUPREME COURT OF THE STATE OF ALASKA                                       



KEVIN PATTERSON,                                                   )
  

                                                                   )
                                       

                                                                           Supreme Court No. S-16569  

                                Appellant,                        )
  

                                                                   )
                                                               

                                                                           Superior Court No. 1JU-15-00692 CI  

                     v.                                            )  

                                                                   )                           

                                                                           O P I N I O N  

                                                        

GOVERNOR BILL WALKER in his                                        )  

                                                                                                                  

official capacity, PAST ATTORNEY                                   )      No. 7310 - October 19, 2018  

                                                            

GENERAL CRAIG RICHARDS in his                                      )  

                                        

official capacity, PAST ATTORNEY                                   )  

                                        

GENERAL MICHAEL GERAGHTY                                           )  

                                       

in his official capacity, PAST                                     )  

                                                           

ATTORNEY GENERAL DANIEL S.                                        )  

                                                            

SULLIVAN in his official capacity,                                 )  

                                               

PAST GOVERNOR SEAN PARNELL   )  

                                                 

in his official capacity, PAST                                     )  

                                              

ASSISTANT ATTORNEY GENERAL  )  

                                             

MARIKA ATHENS in her official                                      )  

                                                    

capacity, BETH GOLDSTEIN,                                          )  

                                     

OFFICE OF PUBLIC ADVOCACY,                                         )  

                                                           

in her official capacity, and STATE OF   )  

                            

ALASKA, as an entity,                                              )  

                                                                   )  

                                Appellees.                         )  

                                                                   )  



                                                                                                               

                     Appeal from the Superior Court of the State of Alaska, First  

                                                                                               

                     Judicial District, Juneau, Louis J. Menendez, Judge.  



                                                                                                                       

                     Appearances:  Kevin Patterson, pro se, Wasilla, Appellant.  

                                                                                                          

                     Elizabeth M. Bakalar, Assistant Attorney General, Juneau,  

                                                                                                               

                     and   Jahna   Lindemuth,   Attorney   General,   Juneau,   for  

                                         

                     Appellees.  


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

                     Before:     Stowers,   Chief   Justice,   Maassen,   Bolger,   and  

                      Carney, Justices. [Winfree, Justice, not participating.]           



                     MAASSEN, Justice.   



I.         INTRODUCTION  



                     The superior court dismissed a prisoner's complaint seeking damages from  

                                                                                                                                    



a  number  of  state  actors  on  grounds  that  his  conviction  and  prison  sentence  for  

                                                                                                                                      



possession of child pornography violated various provisions of the Alaska Constitution.  

                                                                                                                                             



The prisoner appeals.  

                      



                     We  hold  that  a  civil  suit  for  damages  allegedly  caused  by  a  criminal  

                                                                                                                              



conviction  or  sentence  may  not  be  maintained  if  judgment  for  the  plaintiff  would  

                                                                                                                                 



necessarily imply the invalidity of the conviction or sentence, unless the conviction or  

                    



sentence has first been set aside in the course of the criminal proceedings. We also reject  

                                                                                                                                   



the prisoner's claim that the superior court demonstrated an unfair bias against him. For  

                                                                                                                                      



these reasons we affirm dismissal of the complaint.  

                                                                  



II.        FACTS AND PROCEEDINGS  

                                    



                     Kevin Patterson has been incarcerated since 2013, having been convicted  

                                                                                                                            



after a bench trial of seven counts of possession of child pornography. The Alaska Court  

                                                                                                                                   

of Appeals affirmed his conviction in 2017.1  

                                                              



                     In May 2015 Patterson filed a 121-page civil complaint in superior court  

                                            



in Juneau.  The complaint named as defendants the governor and his predecessor, the  

                                                                                                                                       



Alaska Legislature, a state senator, the then-current and two former attorneys general,  

                                                                                                                               



an assistant attorney general, an attorney with the Office of Public Advocacy, and the  

                                                                                                             



           1         Patterson v. State, No. A-11816, 2017 WL 2392428, at *1 (Alaska App.  



May 31, 2017).  

               



                                                                   -2-                                                                 7310  


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 State of Alaska. The complaint alleged that these state officials and entities had "directly  



                                                                                                                              

harmed . . . Patterson in numerous ways and [had] violated his Constitutional Rights over  



                                                                                                                     

and over."   It sought damages for Patterson's incarceration, violence and emotional  



                                                                                                                                    

distress he allegedly suffered while in prison, and the alleged denial of medical care.  



                                                                                                                                 

                     Patterson's complaint elaborated on his legal theories. He asserted that his  



                                                                                                                                   

sentence violated the prohibition against double jeopardy because it was enhanced by a  



                                                                                                                     

prior misdemeanor conviction, in another state, that was treated as a felony conviction  



                                                                                                                               

for purposes of sentencing in Alaska.  He argued that his conviction violated the due  



                                                                                                                              

process clause because the child  pornography  he was convicted  of possessing  was  



                                                                                                                     

createdoutside Alaska; he contended that AS 11.61.127 criminalizes only thepossession  



                                                                                                                     

of images created in the state.  He argued that his right to a presumption of innocence  



                                                                                                                                

was violated because the sentences for possession of child pornography assume that the  



                                                                                                                                 

typical sex offender has committed many other offenses that have gone undetected.  He  



                                                                                                                               

argued that the sentencing statutes are based on flawed studies of sexual predation and  



                                                                                                                          

that the legislature made sentencing distinctions based on an unwarranted animus toward  



                                                                                                                               

sex  offenders.          He claimed  that the criminal statutes do  not give  fair  warning that  



                                                                                                                                  

possession of child pornography will be punished more severely than other class C  



                                                                                                                             

felonies and that it violates due process to punish his crimes more severely than some  



                                                                                       

class B sexual and violent felonies.  He asserted that he was unconstitutionally denied  



                                             

access to certain evidence at trial.  



                                                                                                                                

                     Patterson also claimed it was a violation ofequal protection to deny himthe  



                                                                                                                             

right to a sentence review by a three-judge panel.  He asserted that denying him good  



                                                                                                                          

time  credit  on  his  sentence  violated  equal  protection,  due  process,  and  the  double  



                                                                                                                                 

jeopardy prohibition.  He asserted that the sentencing statutes were unlawful bills of  



                                                                -3-                                                         7310
  


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

attainder    and    that    they    unconstitutionally    failed    to    consider    his    potential    for  

rehabilitation.    He also contended that his sentence violated                                               Blakely v. Washington                   2  



because he was given a higher sentence based on his prior misdemeanor conviction  

                                                                                                                                     



without a jury finding that the enhancement was necessary.  He asserted that the length  

                                                                                                                                             



of time he was required to register as a sex offender under the Alaska Sex Offender  

                                                                                                                                        

Registry Act was unconstitutional because it was based in part on out-of-state conduct.3  

                                                                                                                                                          



Finally, he asserted that convicted sex offenders are treated unfairly in proceedings  

                                                                                                                                   



involving the termination of their parental rights.  

                                                                                        



                       The Alaska Legislature and the state senator moved for dismissal of the  

                                                                                                                                                   



claims against them for failure to state a claim upon which relief could be granted; the  

                                                                                                                                                   



court granted their motion based on legislative immunity.  The State then moved for  

                                                                                                                                                   



dismissal of the remaining claims or, alternatively, for a more definite statement.  The  

                                                                                                                                                 



superior court ordered Patterson to file a more definite statement, and he submitted a 29- 

                                                                                                                                                  



page document that further explained his claims.   The State renewed its motion to  

                                                                                                                                                    



dismiss, and the superior court granted the motion, concluding that Patterson had not  

                                                                                                                                                  



demonstrated that any of the challenged laws and actions were unconstitutional and he  

                                                                                                                                                    



had therefore failed to state a claim upon which relief could be granted.   After the  

                                                                                                                                                  



superior court denied reconsideration, Patterson filed this appeal.  

                                                                                                       



            2           542 U.S. 296 (2004).       



            3          Patterson does not pursue the sex-offender registration claim on appeal; he                                                  



informs us in his reply brief that he is preserving the issue for a later petition for post-  

conviction relief.  

                                 



                                                                         -4-                                                                   7310
  


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

 III.         STANDARD OF REVIEW
                    



                            "A grant of a motion to dismiss a complaint for failure to state a claim                                                                  



under Alaska Civil Rule 12(b)(6) is reviewed de novo.                                                               In reviewing a Rule 12(b)(6)                



 dismissal, we liberally construe the complaint and treat all factual allegations in the                                                     



                                      4  

 complaint as true."                                                                                                                                                       

                                          "Because motions to dismiss are disfavored, a complaint should not  



                                                                                                                                                                 

be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff  



                                                                                                                                       5  

                                                                                                                                                                             

 can prove no set of facts that would entitle him or her to relief."                                                                        And the claims of  



                                                                                                      6  

                                                                                                                                                                               

unrepresented litigants are "liberally construed."                                                         "A constitutional issue presents a  



                                                                                                                                                        

 question of law which we review de novo, and to which we apply our independent  

judgment."7  



                                                                                                                                                                              

                            "A judge's decision that he is actually capable of conducting a fair trial is  



                                                                                                                                                                 

reviewed  for  abuse  of  discretion,"  but  "[t]he  separate  question  whether  a  judge's  



                                                                                                                                                                              

participation in a case would lead reasonable people to question his ability to be fair is  



                                                                             8  

                                                                                

 a question of law reviewed de novo." 



              4            Bachner Co. v. State                       , 387 P.3d 16, 20 (Alaska 2016) (quoting                                            Clemensen  



 v.  Providence Alaska Med. Ctr.                                 , 203 P.3d 1148, 1151 (Alaska 2009)).                           



              5            Id. (quoting Roberson v. Southwood Manor Assocs., LLC, 249 P.3d 1059,  

                                                                                                                                                                      

 1060 (Alaska 2011)).  

                              



              6            Barber v. Schmidt, 354 P.3d 158, 162 (Alaska 2015) (quoting Larson v.  

                                                                                                                                                                              

State, Dep't of Corr., 284 P.3d 1, 6 (Alaska 2012)).  

                                                                                            



              7            Debra P. v. Laurence S., 309 P.3d 1258, 1260 (Alaska 2013) (quoting  

                                                                                                                                                                

Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska 1998)).  

                                                                                                              



              8            Pederson v. Arctic Slope Reg'l Corp., 421 P.3d 58, 65 (Alaska 2018)  

                                                                                                                                                                     

 (quoting Heber v. Heber, 330 P.3d 926, 934 (Alaska 2014)).  

                                                                                                              



                                                                                      -5-                                                                              7310
  


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

IV.	       DISCUSSION  



                                                                                                                                         

           A.	        Patterson May Not Use A Civil Suit For Damages To Attack The  

                                                                                               

                      Validity Of His Criminal Conviction Or Sentence.  



                                                                                                                                              

                      Patterson challenges the superior court's decision that his claims must be  



                                                                                                                                          

dismissed  because  the  statutes  under  which  he  was  convicted  and  sentenced  pass  



                                                                                                                                   

constitutional muster.   We affirm the superior court's judgment, though on different  



                                                                                                                                               

grounds.   We hold that Patterson may not maintain a civil suit for damages when a  



                                                                                                                                                   

judgment in his favor would necessarily implytheinvalidity ofhis conviction or sentence.  



                                                                                                                                              

                      The United States Supreme Court addressed a similar issue in Heck v.  



                                                                                      9  

                                                                                                                                            

Humphrey, a civil suit filed under 28 U.S.C.  1983.                                     While his criminal appeal was still  



                                                                                                                                       

pending, Heck, a convicted felon, filed a complaint alleging that a variety of state actors,  



                                                                                                                                    

"acting under color of state law, had engaged in an 'unlawful, unreasonable, and arbitrary  



                                                                                                                                           

investigation' leading to [Heck's] arrest; 'knowingly destroyed' evidence 'which was  



                                                                                                                                        

exculpatory in nature and could have proved [Heck's] innocence'; and caused 'an illegal  



                                                                                                                         10  

                                                                                                                                      

and unlawful voice identification procedure' to be used at [Heck's] trial."                                                   The district  



                                                                                                                        11  

                                                                                                        

court dismissed the suit, and the court of appeals affirmed the dismissal. 

                      The Supreme Court also affirmed the dismissal.12                                        It analogized Heck's  

                                                                                                                                      



  1983 claims to a malicious prosecution action, in which the plaintiff is traditionally  

                                                                                                                             



required to allege and prove "termination of the prior criminal proceeding in favor of the  

                                                                                                                                             



           9           512 U.S. 477, 478-79 (1994).
         



           10         Id.
  



           11
        Id.  at 479.   



           12         Id. at 490.  

                                 



                                                                      -6-	                                                             7310
  


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

                    13  

accused."               The Court noted that "[t]his requirement 'avoids parallel litigation over the                                                                     



issues of probable cause and guilt[,] . . . and it precludes the possibility of the claimant . . .                                                                             



succeeding in the tort action after having been convicted in the underlying criminal                                                                           



prosecution, in contravention of a strong judicial policy against the creation of two                                                                                   



                                                                                                                                                                            14  

conflicting               resolutions               arising          out        of      the       same          or      identical            transaction.'                "       



Acknowledging the "hoary principle that civil tort actions are not appropriate vehicles for  

                                                                                                                                                                           



challenging the validity of outstanding criminal judgments," the Court concluded that the  

                                                                                                                                                                          



same analysis should apply "to  1983 damages actions that necessarily require the  

                                                                                                                                                                         

plaintiff to prove the unlawfulness of his conviction or confinement."15  It held, therefore,  

                                                                                                                                                             



that  "in  order  to  recover  damages  for  allegedly  unconstitutional  conviction  or  

                                                                                                                                                                          



imprisonment, or for other harm caused by actions whose unlawfulness would render a  

                                                                                                                                                                              



conviction or sentence invalid, a  1983 plaintiff must prove that the conviction or  

                                                                                                                                                                           



sentence has been reversed on direct appeal, expunged by executive order, declared  

                                                                                                                                                              



invalid by a state tribunal authorized to make such determination, or called into question  

                                                                                                                                                               

                                                                                                               16   "A claim for damages bearing  

by a federal court's issuance of a writ of habeas corpus."                                                                                                       

                                                                                               



that relationship  to  a conviction  or  sentence that  has  not  been  so invalidated  is  not  

                                                                                                                                                                         

cognizable under  1983."17   Trial courts, therefore, must "consider whether a judgment  

                                                                                                                                                             



              13           Id.  at  484.  



              14           Id.   (quoting   8   S.   SPEISER,   C.   KRAUSE,   &   A.   GANS,   AMERICAN  LAW   OF  



TORTS     28:5,  at  24  (1991)).   



              15           Id.  at  486.  



              16           Id.  at  486-87.  



              17           Id.  at  487.  



                                                                                     -7-                                                                            7310
  


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

in   favor   of the plaintiff would                                necessarily  imply   the invalidity                                   of his conviction                      or  



sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate                                                                 

that the conviction or sentence has already been invalidated."                                                                 18  



                                                                                                                                                                     

                            Since Heck  was decided, "[c]ourts from other jurisdictions have applied  



                                                                                                                                                                              

Heck 's  reasoning  and  analysis  to  state  tort  claims  that  would  necessarily  imply  the  

                                                                                                                                             19     We cited Heck  

                                                                                                                                                                         

invalidity of criminal convictions that have not been overturned." 

favorably in Wilson v. MacDonald, a civil suit arising fromadispute between neighbors.20  

                                                                                                                                                                                       



Wilson appealed thesuperior court's grant ofsummary judgment that precluded himfrom  

                                                                                                                                                                           

relitigating the elements of an assault charge to which he had entered a no contest plea.21  

                                                                                                                                                                                       



He argued on appeal that he did not enter his plea "knowingly" because he was "not  

                                                                                                                                                                 

aware  of  [its]  civil  liability  consequences."22                                                But  we  affirmed  summary  judgment,  

                                                                                                                                                               



observing that Wilson's attack on his no contest plea was "a question as to the validity of  

                                                                                                                                                                                 



the plea itself, [and] should be resolved through a motion for post-conviction relief or  

                                                                                                                                                                                

appeal in the criminal case."23  

                                               



                            The  same  rationale  governs  Patterson's  many  claims  questioning  the  

                                                                                                                                                                             



constitutionality of his conviction and sentence; they "should be resolved through a  

                                                                                                                                                                                  



              18           Id.  



              19           Penaflor v. Mossman                          , 409 P.3d 762, 768 (Haw. App. 2017) (citing                                                  Yount  



v.  City of Sacramento                       , 183 P.3d 471, 484 (Cal. 2008);                                  Gibson v. Trant                  , 58 S.W.3d 103,          

 112, 116 (Tenn. 2001)).                            



              20            168 P.3d 888, 889 n.11 (Alaska 2007) (citing Heck, 512 U.S. at 486).  

                                                                                                                                                                 



              21           Id. at 888.  

                                        



              22           Id. at 889.  

                                        



              23           Id.  



                                                                                       -8-                                                                              7310
  


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

                                                                                                                                                                                                                                                  24  

motion for post-conviction relief or appeal in the criminal case."                                                                                                                                                                                        To rule otherwise, as                                                    



the Supreme Court cautioned in                                                                                         Heck, would risk "two conflicting resolutions arising out                                                                                                                                               



                                                                                                                                                                                                                                                                                                                                 25  

of the same . . . transaction" - one in the criminal case and another in the civil case.                                                                                                                                                                                                                                                 



                                                                                                                                                                                                                                                                                                                             

                                                   Because  Patterson's  claims  for  damages  "would  necessarily  imply  the  



                                                                                                                                                                                                                                                                                                           26  

                                                                                                                                                                                                                                                                   

invalidity of [his] conviction or sentence," his claims were properly dismissed. 



                         24                       Id.  



                         25                        512 U.S. at 484 (quoting 8 S. S                                                                                    PEISER, C. K                                  RAUSE, & A. G                                           ANS, A                   MERICAN  



LAW OF TORTS  28:5, at 24 (1991)).                                                                                                           

                                                           



                         26                       Id.   at 487.                                  We acknowledge that several allegations of harm made in                                                                                                                                                                       



Patterson's complaint did not assume the invalidity of his conviction or sentence, but  

                                                                                                                                                                                                                                                                                                                           

they do not change our decision here.                                                                                                         First, Patterson alleged that he was assaulted and                                                                                                                          

denied necessary medical care while in pretrial detention in 2012.                                                                                                                                                                                                    But he does not                                     

mention these allegations in his brief on appeal, and to the extent he intended them to  

                                                                                                                                                                                                                                                                                                                                

 state independent claims for relief - as opposed to simply provide background for his                                                                                                                                                                                                                                       

claims that sex offenders receive unconstitutionally disparate treatment - we consider                                                                                                                                                                                                                 

them waived.                                          Hymes v. DeRamus                                                                  , 222 P.3d 874, 887 (Alaska 2010) ("[I]ssues not                                                                                          

argued in opening appellate briefs are waived.                                                                                                                                              This rule applies equally to pro se                                                                                               

litigants."). Second, Patterson challenged thesex-offender registration law, but, as noted  

                                                                                                                                                                                                                                                                                                                   

above (  see supra                                                 note 3), he expressly waived this claim for purposes of this appeal.                                                                                                                                                                                                   

Finally, Patterson asked the court to strikedown AS 47.10.086(c)(11)(B), which excuses  

                                                                                                                                                                                                                                                                                                           

the requirement that the Office of Children's Services make "reasonable efforts" to                                                                                                                                                                                                                                            

promote the reunification of parent and child in Child in Need of Aid cases if the parent                                                                                                                                                                                                                       

is required to register as a sex offender.                                                                                                                      But Patterson has never alleged that he is                                                                                                                      

personally affected by this requirement.  With few exceptions, "a litigant lacks standing  

                                                                                                                                                                                                                                                                                                       

to assert the constitutional rights of another."   Keller v. French, 205 P.3d 299, 304  

                                                                                                                                                                                                                                                                                                                        

(Alaska 2009) (quoting State ex rel. Dep'ts of Transp. & Labor v. Enserch Alaska  

                                                                                                                                                                                                                                                                                                            

 Constr., Inc.                                 , 787 P.2d 624, 630 n.9 (Alaska 1989));                                                                                                             see also Griswold v. City of Homer                                                                                                 ,  

252 P.3d 1020, 1030 (Alaska 2011).                                                                                                          We assume that Patterson cites the law as simply                                                                                                                  

another illustration                                                          of his claim that the State irrationally discriminates against sex                                                                                                                                                                          

offenders across the board.                                                                              



                                                                                                                                                                 -9-                                                                                                                                                 7310
  


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

               B .            Patterson Has Not Shown That The Judge Had A Disqualifying Bias.                                                                                         



                              Patterson also argues that the trial judge abandoned judicial neutrality while                                                                           



ruling on the motion to dismiss.                                            We review the judge's rejection of Patterson's bias                                                          



 claims for abuse of discretion, and we review de novo Patterson's claim that the judge's                                                                                          



 "participation in [the] case would lead reasonable people to question [his] ability to be                                                                                                   

 fair."27  



                                                                                                                                                                                              

                              To the extent Patterson's argument is based on the rulings against him, it is  



                                                                                             28  

                                                                                                                                                                                            

 insufficient to show a disqualifying bias.                                                         But Patterson also highlights some of the  



                                                                                                                                                                                           

judge's choices of language, which he claims exhibited animus toward sex offenders and  



                                                                                                                                                                                          

him personally:  for example, that one of Patterson's claims was "without merit"; that  



                                                                                                                                                                                     

 Patterson's  proposed  interpretations  of  the  child  pornography  statute  "would  allow  



                                                                                                                                                                                  

Alaskans to continue to abuse children" as long as the images were created in another  



                                                                                                                                                                                           

 state; that sexual offenses against children are "incredibly serious in nature"; and that one  



                                                                                                                                                                                          

 of Patterson's arguments, ostensibly minimizing the seriousness of his offenses, was  



                                                                                                                                                                          

 "very troubling."   We conclude that none of these remarks would lead a reasonable  



                                                                                                                                                                                           

person  to  question  the  judge's  ability  to  be  fair,  particularly  in  the  context  of  the  



                                                                                                                                                                         

proceedings here, where the court patiently extrapolated the claims from Patterson's  



                                                                                                                                                                                                     

 lengthy pleadings and clearly explained its rationale in written decisions.  Given this, we  



               27             Pederson v.                  Arctic Slope Reg'l Corp.                                  , 421 P.3d 58, 73 (Alaska 2018)                                              



 (quoting  Heber v. Heber                              , 330 P.3d 926, 934 (Alaska 2014)).                                               



               28             Id.  ("[A  litigant]  cannot  rely  solely  on  the  court's  adverse  rulings  as  

                                                                                                                                                                                           

 evidence of bias; he must point to specific words or actions showing the court was  

                                                                                                                                                                                        

partial.").  



                                                                                             -10-                                                                                     7310
  


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

also see no abuse of discretion in the court's decision to participate in the case despite                                                                                                                                                                                                       

Patterson's claims of bias.                                                                    29  



V.                      CONCLUSION  



                                                                                                                                                                                                                                                       

                                                We AFFIRM the superior court's order dismissing the complaint.  



                            29                  Patterson does not contend that his claims of bias, first raised in his motion                                                                                                                                                                 



for reconsideration of the dismissal order, should have been construed as a request for   

recusal,  prompting   assignment   of   the   question   to   a   different   judge   pursuant   to  

AS 20.20.020(c).                                                 We therefore do not address the issue.                                                                                                         



                                                                                                                                                       -11-                                                                                                                                            7310
  

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