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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Leahy v. Conant (3/8/2019) sp-7342

Leahy v. Conant (3/8/2019) sp-7342

           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                                        

RAYMOND  LEAHY,                                                   )  

                                                                  )    Supreme  Court  No.  S-16781  

                                 Appellant,                       )  


                                                                  )    Superior Court No. 3AN-16-07272 CI  

           v.                                                     )  


                                                                  )    O P I N I O N  


JOHN CONANT and                                                   )  



CLARE SULLIVAN,                                                   )    No. 7342 - March 8, 2019  


                                 Appellees.                       )  




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


                      Judicial District, Anchorage, Catherine M. Easter, Judge.  


                      Appearances:  Raymond Leahy, pro se, Wasilla, Appellant.  


                      Mary B. Pinkel, Assistant Attorney General, Anchorage, and  


                      Jahna Lindemuth, Attorney General, Juneau, for Appellees.  


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


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


                      MAASSEN, Justice.  



                      A prisoner sued two prison superintendents, claiming that a mail policy  


instituted by the Alaska Department of Corrections (DOC) violated his religious rights  


because it prohibited him from writing letters to fellow Muslims in two other prisons.  


He asked for damages and a declaratory judgment that the mail policy violated the  

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AlaskaConstitution and                                                                                                                                thefederalReligious Land UseandInstitutionalizedPersonsAct                                                                                                                                                                                                                                                                                                                              


                                                                                     DOC rescinded the policy while the case was pending.                                                                                                                                                                                                                                                                                                   The superior court                                                                    

 granted summary judgment in favor of the superintendents, finding that the prisoner was                                                                                                                                                                                                                                                                                                                                                                                                                                                   

not entitled to damages because the superintendents had not been personally involved                                                                                                                                                                                                                                                                                                                                                                                                                       

 in creating the policy and that his claims for non-monetary relief were mooted by the                                                                                                                                                                                                                                                                                                                                                                                                                                                         

policy's rescission.                                                                                                        The prisoner appeals.                                                                    

                                                                                     We affirm the superior court's decision that the prisoner is not entitled to                                                                                                                                                                                                                                                                                                                                                                                     

 damages, though on different grounds.                                                                                                                                                                                                                           We conclude that the superintendents were                                                                                                                                                                                                                       

 entitled to qualified immunity because the prisoner's right to a religious exception from                                                                                                                                                                                                                                                                                                                                                                                                                                          

the mail policy was not "clearly established" under existing law.                                                                                                                                                                                                                                                                                                                                                                  We also affirm the                                                                                         

 superior court's decision that the prisoner's claim for declaratory relief is moot. Finally,                                                                                                                                                                                                                                                                                                                                                                                                                    

we see no abuse of discretion in the superior court's handling of the prisoner's pro se                                                                                                                                                                                                                                                                                                                                                                                                                                                              

 status or its failure to designate the prisoner as the prevailing party.                                                                                                                                                                                                                                                                                                                           

II.                                        FACTS AND PROCEEDINGS                                                                       

                                                                                     Raymond Leahy is a prisoner at Goose Creek Correctional Center (Goose                                                                                                                                                                                                                                                                                                                                                          

 Creek).  He is a practicing Muslim and identifies himself as the Imam of the "Ummah                                                                                                                                            

 of Incarcerated Alaskan Muslims."                                                                                                                                                                                           John Conant and Clare Sullivan, the appellees, have                                                                                                                                                                                                                                                     

 served as superintendents of Goose Creek and Spring Creek Correctional Facilities,                                                                                                                                                                                                                                                                                                                                                                                                               


                                                                                     Leahy's   complaint   arose   from   a   February   2014   DOC   directive   that  

prohibited mail between prisoners residing at three correctional facilities: Goose Creek,                                                                                                                                                                                                                                                                                                                                                                                                                                

 Spring Creek, and the Anchorage Correctional Complex.                                                                                                                                                                                                                                                                                                                   Though not in the record, the                                                                                                                                         

                                                                                                                                                                                                                                                                          -2-                                                                                                                                                                                                                                                         7342

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


 directive is described in several affidavits                                                                                                                                                                                                                      and an implementing memorandum, and its                                                                                                                                                                                                                     

 substance is not in dispute. Sullivan attests that the directive was issued by former DOC                                                                                                                                                                                                                                                                                                                                                                                                                     

 Commissioner Bryan Brandenburg and stemmed froma concern that prisoners returning                                                                                                                                                                                                                                                                                                                                                                                                     

 from private prisons outside Alaska were involved in gang and drug-trafficking activity                                                                                                                                                                                                                                                                                                                                                                                                         

 and could "use the prison mail system to pass information for planning and carrying out                                                                                                                                                                                                                                                                                                                                                                                                                                   

 assaults,   conducting   illegal   business  and  drug   activities,   as   well   as   recruiting   and  

 communicating   [gang]   activities."     The   directive   contained   exceptions   for   mail  to  

 "immediate family members" and co-litigants in criminal cases.                                                                                                                                                                                                                                                                                                                                         

                                                                                 According to Leahy, in June 2015 he attempted to send a letter to a prisoner                                                                                                                                                                                                                                                                                                                         

 at Spring Creek who was the Imam in the Spring Creek community. Leahy sent his letter                                                                                                                                                                                                                                                                                                                                                                                                                          

 during Ramadan; he explains that the teachings of the prophet Muhammad require that                                                                                                                                                                                                                                                                                                                                                                                                                                   

he engage in dialogue with Muslims in "communities outside [his] own" and that he                                                                                                                                                                                                                                                                                                                                                                                                                                             

 "holds a sincere religious belief that it is obligatory for him to reach out and support                                                                                                                                                                                                                                                                                                                                                                                                      

 fellow Muslims within the Ummah of Incarcerated Alaskan Muslims."  DOC returned                                                                                                                                                                                                                                                                                                                                                                                                           

Leahy's letter to him as undeliverable.                                                                                                           

                                                                                  Leahy   sought  unsuccessfully   to   meet   with   Superintendent   Sullivan   to  

 explain why his letter to the Imam was important to his religious practice.                                                                                                                                                                                                                                                                                                                                                                                 He then filed                                        

 a grievance, which was denied, and appealed it without success.                                                                                                                                                                                                                                                                                                                                         In June 2016 he filed                                                                                    

 a complaint in superior court, asserting that DOC's refusal to allow him"to reach out and                                                                                                                                                                                                                                                                                                                                                                                                                               

 support fellow Muslims within the Ummah of Incarcerated Alaskan Muslims" placed "a                                                                                                                                                                                                                                                                                                                                                                                                                                              

 substantial burden on his religious exercise," violating his rights under RLUIPA and the                                                                                                                                                                                                                                                                                                                                                                                                                                    

Alaska Constitution and supporting claims for damages and declaratory relief under 42                                                                                                                                                                                                                                                                                                                                                                                                                                          

U.S.C.  § 1983.                                                                             The suit named Conant and Sullivan as defendants in both their official                                                                                                                                                                                                                                                                                                                                

                                         1                                       Affidavits were filed by Sullivan and Kevin Horton, who was then acting                                                                                                                                                                                                                                                                                                                                                 

 superintendent of Goose Creek.                                                                                                                                                                            Horton's affidavit described his knowledge of his                                                                                                                                                                                                                                                              

predecessor Conant's actions with regard to the 2014 directive.                                                                                                                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                -3-                                                                                                                                                                                                                                               7342

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 andindividualcapacities. It                          sought adeclaration"that                          theacts        andommissions                   described  

herein violate Leahy's rights"; an order that each of the superintendents "pay nominal   

 and punitive damages, in the amount of $20,000.00"; an award of "costs, fees, and                                                                                

postage";   and   "any   other   just   and   equitable   relief   [the   superior  court]   deems  


                          While the suit was pending -in November 2016 -the 2014 directive was  


rescinded by new DOC Commissioner Bruce Busby.  According to Sullivan, who had  


becomeDeputy Commissioner, thedirectivewasrescindedbecausewhile"therestriction  


was appropriate at the time it was issued, it [was] no longer necessary . . . . [since DOC  


was] now in a better position to monitor inmate mail than [it had been] two years ago,  


 and the threat posed by inmate to inmate mail at present [was] not as great as it [had  


been] previously."  The new policy restricted mail "only on a case-by-case basis"; the  


restriction  was  to  "be  no  broader  than  necessary  to  address  .  .  .  safety  or  security  




                          Leahy filed a motion for summary judgment, contending that the 2014  


 directive had violated his religious rights, that the rescission of the directive meant that  


he was now "entitled to judgment as a matter  of  law," and that he was entitled to  


 damages for the past violation.  The superintendents filed a cross-motion for summary  


judgment, arguing that Leahy's claims were now moot, that the superintendents were  


 otherwise entitled to qualified immunity, and that the 2014 directive did not violate  


Leahy's rights.  


                           Thesuperior court denied Leahy's motionand granted thesuperintendents'  


 cross-motion.                 The  court  reasoned  that  the  superintendents  could  not  be  liable  for  


             2            Although titled "Complaint for Injunctive Relief[,] Declaratory Judgment                                                     

 and Damages," the body of Leahy's complaint, including its prayer for relief, did not                                                                             

request an injunction.     

                                                                                  -4-                                                                           7342

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 damages under 42 U.S.C. § 1983 because they "did not personally participate in the                                                                                               

 decision to institute the mail restriction" and that Leahy's claims for declaratory and                                                                                               

 injunctive relief were moot because of the directive's rescission.                                                                             

                              Leahy appeals.   

 III.          STANDARD OF REVIEW                        

                              "We review grants of summary judgment de novo, drawing all factual                                                                                

 inferences   in   favor   of,  and   viewing   the   facts   in   the   light   most   favorable   to   the  


non-prevailing party (generally the non-movant)."                                                                                                                          

                                                                                                                  We will "affirm grants of summary  


judgment when there are no genuine issues of material fact, and the prevailing party  



 (generally the movant) was entitled to judgment as a matter of law."                                                                                      "We may affirm  


the superior court on any basis supported by the record, even if that basis was not  




 considered by the court below or advanced by any party." 


                              "We review for abuse of discretion 'decisions about guidance to a pro se  

                                 6  Finally, "[w]e review for abuse of discretion a trial court's prevailing  

 litigant . . . .' "                                                                                         

party determination," which will be overturned only if it is "manifestly unreasonable."7  


               3              Rockstad  v.  Erikson,   113  P.3d   1215,   1219  (Alaska  2005).  

               4              Id.  

               5              Brandner  v.  Pease,   361  P.3d   915,   920 (Alaska  2015)   (quoting  Smith  v.  

Stafford,   189  P.3d   1065,   1070  (Alaska  2008)).  

               6              Greenway   v.   Heathcott,   294   P.3d   1056,   1062   (Alaska   2013)  (quoting  

Shooshanian  v.  Dire,  237  P.3d  618,  622  (Alaska  2010)).  

               7              Gov't Emps. Ins.  Co. v.  Gonzalez, 403 P.3d  1153, 1160 (Alaska 2017)  


 (quoting Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083, 1092 (Alaska 2008)).  


                                                                                             -5-                                                                                    7342

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           A.	        The  Superintendents  Were  Entitled  To  Qualified  Immunity  From  


                      Leahy's Damages Claims.  


                      Leahy  did  not  sue  the  State  or  DOC;  he  sued  only  the  two  prison  


superintendents, in both their official and their individual capacities, alleging that they  


violated  his  rights  under  the  Alaska  Constitution  and  RLUIPA  by  "denying  [his]  


correspondence with fellow Muslims in other [DOC] facilities, without justification."  


The superintendents raised qualified immunity as a defense and argued for it as one  


ground for summary judgment.  The superior court did not rely on that defense when it  


decided  the  case,  however,  holding  instead  that  under  42  U.S.C.  §  1983  the  


superintendents could not be liable for violations of Leahy's religious rights except  


"upon  a  showing  of  personal  participation,"  and  Leahy  failed  to  show  that  the  


superintendents "personally participate[d]in thedecisiontoinstitutethemailrestriction."  


                      Wenotefirstthatthesuperintendents' lack ofinvolvementin thedirective's  


implementation or say in its enforcement is not a defense to a § 1983 claim.  "[S]ince  


World War II, the 'just following orders' defense has not occupied a respected position  


in our jurisprudence, and officers in such cases may be held liable under § 1983 if there  

                                                                                                                       8  "[U]nder the  


is a reason why any of them should question the validity of that order." 

Supremacy  Clause,  [government]  officials  have  an  obligation  to  follow  the  [U.S.]  


Constitution even in the midst of a contrary directive from a superior or in a policy."9  


Government officials may thus be liable for damages under § 1983 upon a showing that  


they acted unreasonably in following a superior's lead, or that they knew or should have  


           8          Kennedy v. City of Cincinnati                    , 595 F.3d 327, 337 (6th Cir. 2010) (quoting                 

O'Rourke v. Hayes               , 378 F.3d 1201, 1210 n.5 (11th Cir. 2004)).                               

           9          Id. (first alteration in original) (quoting N.N. ex rel. S.S. v. Madison Metro.  


Sch. Dist., 670 F. Supp. 2d 927, 933 (W.D. Wis. 2009)).  


                                                                      -6-	                                                             7342

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 known that their conduct might result in a violation of the plaintiff's constitutional                                                                                                    


                                   That  said,  the  superintendents  were  nonetheless  entitled  to  summary  


judgment on Leahy's damages claims because there was no showing that they acted  


 unreasonably  in  following  the  directive;  they  are  therefore  protected  by  qualified  


 immunity.  We "follow federal precedent for determining whether qualified immunity  


 should be conferred for [official] acts alleged to contravene a statutory or constitutional  


 mandate."11                       "Specifically, [in Breck v. Ulmer] we adopted a test established by the  


 UnitedStates SupremeCourt in Harlowv. Fitzgerald,"under which "qualified immunity  


 shields public officials from civil liability 'insofar as their conduct does not violate  


 clearly established statutory or constitutional rights of which a reasonable person would  


                                        12                                                                                      13     "The burden of establishing that a  

                                               The inquiry is an objective one.                                                                                                                                             

 have known.' "                                                                                                      


                  10              Hartsfield v. Lemacks                                     , 50 F.3d 950, 956 (11th Cir. 1995);                                                             see Estate of               

Brown v. Thomas                                , 771 F.3d 1001, 1005 (7th Cir. 2014) ("Of course if one is told by                                                                                                      

 one's superiors to do something that is obviously illegal, it is no defense that one was just                                                                                                                        

 obeying orders; that was a defense conclusively rejected at the Nuremberg trials of Nazi                                                                                                                          

 war criminals.").                            The superior court cited                                      Taylor v. List                     , 880 F.2d 1040, 1045 (9th Cir.                                       

 1989) in support of the proposition that § 1983 liability requires "personal participation."                                                                                                                                    

 But  Taylor  addressed whether superiors who did not participate in, direct, or know about                                                                                                                      

 subordinates' constitutional violations could be liable on a "respondeat superior" basis,                                                                                                                      

 concluding they could not.                                            Id.   This case does not present that issue.                                                                 

                  11              Breck v. Ulmer, 745 P.2d 66, 71-72 (Alaska 1987).  


                  12              Maness v. Daily, 307 P.3d 894, 901 (Alaska 2013) (quoting Harlow v.  


Fitzgerald, 457 U.S. 800, 818 (1982)).  


                  13               State, Dep't of Health &Soc. Servs., Office of Children's Servs. v. Doherty,  


 167 P.3d 64, 69 (Alaska 2007).  


                                                                                                            -7-                                                                                                   7342

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right is clearly established falls upon the plaintiff."                                              14  


                           1.	          Federal precedent favors the constitutionality of similar mail  



                           We conclude that Leahy did not demonstrate the existence of a "clearly  


established right" of which a reasonable prison official would have known. Alaska case  


law has not definitively addressed the issue of restrictions on prisoner-to-prisoner mail.  


And federal law favors the constitutionality of the directive at issue; the United States  


Supreme Court deferred to a prison system's similar mail restrictions in Turner v. Safley,  



a case with close parallels to this one. 


                           In Turner, Missouri prisoners brought a constitutional challenge against a  


mail  policy  that  only  allowed  "correspondence  between  inmates  [at  different  state  


prisons] . . . if 'the classification/treatment team of each inmate deem[ed] it in the best  



interest of the parties involved.' "                                        The policy exempted mail sent between family  



members and mail concerning legal matters.                                                     A federal district court held the policy  


unconstitutional, finding that it was "unnecessarily broad . . . because prison officials  


could   effectively   cope   with   the   security   problems   raised   by   inmate-to-inmate  


correspondence through less restrictive means, such as scanning the mail of potentially  

             14	          Id.  

             15            482 U.S. 78 (1987).                      We applied the                 Turner  analysis in                  Larson v. Cooper                   ,  

when we considered and rejected a prisoner's claim that limits on physical contact with                                                                             

visitors violated his religious rights under the federal constitution.                                                              90 P.3d 125, 129-31        

(Alaska 2004).   

             16            482 U.S. at 81-82.  


             17           Id. at 81.  


                                                                                   -8-	                                                                           7342

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                                      18                                                                                           19  

troublesome inmates."                     The   Court of Appeals for the Eight Circuit affirmed.                    


                      The Supreme Court reversed.  While acknowledging that "[p]rison walls  


do not forma barrier separating prison inmates from the protections of the Constitution,"  


the Court observed that "[r]unning a prison is an inordinately difficult undertaking that  


requires  expertise,  planning,  and  the  commitment  of  resources,  all  of  which  are  


peculiarly   within   the   province   of   the   legislative   and   executive   branches   of  

                       20    The  Court  concluded  that  "when  a  prison  regulation  impinges  on  


inmates'  constitutional  rights,  the  regulation  is  valid  if  it  is  reasonably  related  to  


legitimate penological interests."21  Such a deferential standard is necessary, the Court  

reasoned, to ensure that "the difficult judgments concerning institutional operations" are  


left  primarily  to  prison  administrators  rather  than  judges.22                                           Factors  relevant  to  


determining whether a regulation is reasonable include (1) whether there is "a 'valid,  


rational connection' between the prison regulation and the legitimate governmental  


                                                      23  (2) "whether there are alternative means of exercising  

interest put forward to justify it";                                                                                            


                                                                            24 ; (3) "the impact accommodation of the  

the right that remain open to prison inmates"                                                                                               


           18         Id.  at 83.

           19         Id.



                      Id. at 84-85.

           21         Id.  at 89.

           22         Id.  (quoting  Jones v. N.C. Prisoners' Labor Union, Inc.                                  , 433 U.S. 119, 128         


           23         Id. at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)).  


           24         Id. at 90.  


                                                                      -9-                                                               7342

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

asserted constitutional right will have on guards and other inmates, and on the allocation                                               

                                                       25                                                                              26  

of prison resources generally;"                                                                                  

                                                           and (4) "the absence of ready alternatives." 

                        TheSupremeCourtfound theMissouri mail restriction constitutional under  


this test.   The Court first cited trial testimony that the restriction "was promulgated  


primarily for security reasons" - much like those that prompted the directive at issue  


here27  - and was "logically connected to these legitimate security concerns."28                                                                  The  


Court noted that the policy did not "deprive  prisoners of all means of expression"  


because it barred "communication only with a limited class of other people with whom  


prison officials [had] particular cause to be concerned."29                                                 It observed that allowing  


unrestricted mail between prisoners could affect the safety of guards and other prisoners,  


and "[w]here exercise of a right requires this kind of tradeoff, we think that the choice  


made by corrections officials - which is, after all, a judgment 'peculiarly within [their]  


province and professional expertise,' - should not be lightly set aside by the courts."30  


Finally, the Court noted that there were "no obvious, easy alternatives to" the Missouri  


mail policy; the one identified by the inmates - reviewing all inmate correspondence  


            25         Id.  

            26         Id.  

            27         Id.  at  91  (discussing  testimony  about  inter-institution  mail  being  "used  to  

communicate  escape  plans  and  to  arrange  assaults  and  other  violent  acts"  and  the  attempt  

to  combat  gang  violence  "both  by  transferring  gang  members  to  different  institutions  and  

by  restricting  their  correspondence").   

            28         Id.  

            29         Id. at 92.  


            30         Id. at 92-93 (quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)).  


                                                                         -10-                                                                    7342

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

-   "clearly would impose more than a                                       de minimis            cost on the pursuit of legitimate           

corrections goals."                31  


                         2.	         Federal precedent would not lead a state corrections official to  


                                     believe  that  the  challenged  mail  policy  violated  a  clearly  


                                     established right.  


                         An objective application of the Turner analysis to DOC's mail policy leads  


to a similar conclusion in this case.  Sullivan's affidavit explained that the policy was  


instituted in reaction to concerns "that Alaska inmates, in particular inmates who were  


returning from private prisons out of state, were affiliated with gangs and involved with  


drug trafficking" and that they "would use the prison mail system to pass information for  


planning and carrying out assaults, conducting illegal business and drug activities, as  


well  as  recruiting  and  communicating  security  threat  group  ('STG')  activities."  


Addressing such concerns is a legitimate penalogical interest, and there is a rational  



connection  between  this interest and  the restrictions on  prisoner-to-prisoner  mail. 


Leahy had alternative means of exercising his faith's requirement that he communicate  


with Muslim communities outside his own;  the only restriction was on letters to two  



other prisons. 

                         Less clear is the application to this case of the third and final Turner factors  


- "the impact accommodation of the asserted constitutional right will have on guards  


and other inmates, and on the allocation of prison resources generally," and "the absence  


            31          Id.  at 93.   

            32           See id.      at 89;     Larson v. Cooper                 , 90 P.3d 125, 129 (Alaska 2004) ("Prison                      

security is a compelling governmental interest, and limitations on contact visits are                                                                     

rationally related to this interest.").  


            33           See Turner, 482 U.S. at 90.  


                                                                            -11-	                                                                     7342

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


of ready alternatives."                                                                                                   In the superior court, Leahy urged that the way to accommodate                                                                                                                                                                                              

his   constitutional   rights   was   by   compliance   with   the   existing   regulation,  22   AAC  

 05.520(c)(1), which contains no restrictions on addressees but rather contemplates DOC                                                                                                                                                                                                                                                                                                                                            

review of individual pieces of mail "upon reasonable grounds to believe that the content                                                                                                                                                                                                                                                                                                                               

 falls into any of the categories" of content specifically prohibited by the regulation,                                                                                                                                                                                                                                                                                                            

including, for example, threats, plans for smuggling contraband, coded messages, and                                                                                                                                                                                                                                                                                                                                                      

unauthorized solicitations.                                                                                                                 And in fact DOC returned to a method of individualized                                                                                                                                                                                

review after the directive was rescinded. This could imply that accommodating Leahy's                                                                                                                                                                                                                                                                                                                               

 asserted right to send mail to other prisoners while still maintaining an appropriate level                                                                                                                                                                                                                                                                                                                                        

of security was not particularly challenging in terms of security or "the allocation of                                                                                                                                                                                                                                                                                                                                                           

prison resources generally."                                                                                                                        

                                                                     But Sullivan attested that the directive was rescinded "because, although                                                                                                                                                                                                                                                                 

the restriction was appropriate at the time it was issued, it is no longer necessary,"                                                                                                                                                                                                                                                                                                          

 explaining that "[t]he correctional facilities are now in a                                                                                                                                                                                                                       better position to monitor inmate                                                                                                       

mail than they were two years ago, and the threat posed by inmate to inmate mail at                                                                                                                                                                                                                                                                                                                                                                

present is not as great as it was previously." This explanation lacks detail, but it was not                                                                                                                                                                                                                                                                                                                                                 

disputed on summary judgment, and we may therefore assume it to be true for purposes                                                                                                                                                                                                                                                                                                                           

                                                                          35             We conclude that an analysis of the Turner factors leads to the same  

of our review.                                                                                                                                                                                                                                                                                                                                                                                                                    

result in this case as it did in Turner.  


                                                                     Courts in some cases have concluded that prisoner's religious rights are  


"clearly established" such that prison officials accused of violating them are not entitled  


to qualified immunity.  In Hayes v. Long, the Eighth Circuit affirmed a district court's  


                                   34                               Id.  

                                   35                               Alaska Travel Specialists, Inc. v. First Nat'l Bank of Anchorage                                                                                                                                                                                                                                                                       , 919 P.2d                 

 759, 762 (Alaska 1996) ("[We] appl[y] [our] independent judgment in reviewing a [trial]                                                                                                                                                                                                                                                                                                                                   

court's application of law to undisputed facts.")                                                                                                                                                               

                                                                                                                                                                                                                     -12-                                                                                                                                                                                                            7342

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

decision that prison officials were not entitled to qualified immunity after disciplining                                               


a Muslim prisoner who refused to serve pork.                                                                                                        

                                                                                       The court observed that previous cases  


in the Arkansas district where the prison was located had "clearly established . . . that  


Muslim inmates have the right to avoid contact with pork or with any food that has been  


contaminated by pork" and that the Arkansas Department of Corrections had been a  

                                                 37   Courts have also rejected the immunity defense for prison  


defendant in one such case. 

officials who refused to send mail for prisoners who used an assumed religious name,  


reasoning that the issue "has been litigated extensively and courts have consistently  


recognized an inmate's First Amendment interest in using his new, legal name . . . ."38  


But case law shows no similar "clearly established right" in the context of prisoner-to- 


prisoner mail.  


                        Indeed, becausetheSupremeCourtupheldsimilarprisoner-to-prisonermail  


restrictions in  Turner, we would be hard pressed to conclude that existing case law  


would  have  alerted  reasonable  corrections  officials  that  a  general  ban  on  such  


correspondence was unconstitutional absent an exception for religious communications.  


The superintendents therefore had qualified immunity from suit and were entitled to  


summary judgment on Leahy's damages claims on that basis.  


            36          72 F.3d 70 (8th Cir. 1995).           



                        Id.  at 72, 74; see also Williams v. Bitner, 455 F.3d 186, 191-94 (3d Cir.  

2006) (holding that prison official was not entitled to qualified immunity after forcing  


Muslim prisoner to handle pork when other cases clearly established Muslims' right to  


avoid such contact).  



                        Malik v. Brown, 71 F.3d 724, 729-30 (9th Cir. 1995); see also Masjid  


Muhammad-D.C.C. v. Keve, 479 F. Supp. 1311, 1327 (D. Del. 1979) (disallowing  


qualified immunity defense for prison superintendent who refused to deliver mail if  


addressed to the prisoner only in his adopted Muslim name).  

                                                                           -13-                                                                    7342

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

              B.	          Leahy Has No Viable Damages Claims Under RLUIPA Against The                                                                              

                           Individual Superintendents, And His Declaratory Judgment Claim Is                                                                            


                                                                                                               39  The cause of action available  

                           One basis of Leahy's lawsuit was RLUIPA.                                                                                       

under RLUIPA for litigants like Leahy is a suit for injunctive or declaratory relief against  


 defendants in their official capacity.  Qualified immunity does not bar such a suit under  


 federal law.40  RLUIPA does not authorize damage awards against states or individual  

 state actors.41  


                           In his complaint, Leahy requested a declaratory judgment "that the acts and  


 omissions  described  herein  violate  [his]  rights  under  the  Alaska  Constitution,  the  


 [RLUIPA], and the Alaska [DOC's] own Policies and Procedures." He sought summary  


judgment  on  this  claim  for  declaratory  relief,  arguing  that  despite  the  directive's  


rescission  the  court  should  "call[]  out  defendants[]  as  having  violated  plaintiff's  


protected rights." Though conceding in his summary judgment pleadings that any claim  


              39	          42 U.S.C. § 2000cc et seq. (2012).                    



                           See  Kentucky  v.  Graham,  473  U.S.  159,  166-67  (1985)  (noting  that  

 "personal immunity defenses, such as objectively reasonable reliance on existing law,"                                                                          


 are unavailable "[i]n an official-capacity action"); Vance v. Barrett, 345 F.3d 1083, 1091  


n.10 (9th Cir. 2003) ("[A] defense of qualified immunity is not available for prospective  

 injunctive relief.");                 Presbyterian Church (U.S.A.) v. United States                                                , 870 F.2d 518, 527             


 (9th Cir. 1989) ("Qualified immunity is an affirmative defense to damage liability; it  


 does not bar actions for declaratory or injunctive relief.").  

              41           See  Sossamon  v.  Texas,  563  U.S.  277,  285-86  (2011)  (holding  that  


 "RLUIPA's  authorization  of  'appropriate  relief  against  a  government,'  is  not  the  


unequivocal expression of state consent that [the Court's] precedents require" for a  


 finding that the state has waived its sovereign immunity from damages suits (internal  


 citations omitted)); Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015) ("RLUIPA  


 does not authorize suits for damages against state officials in their individual capacities  


because individual state officials are not recipients of federal funding and nothing in the  


 statute suggests any congressional intent to hold them individually liable.").  


                                                                                  -14-	                                                                          7342

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

 for injunctive relief had "become moot," he argued in his motion for reconsideration that                                                                                                          

 a   declaratory   judgment   would   serve essentially                                                               the   same   purpose:     A   "declaratory  

judgment would have satisfied Plaintiff of no future relapse of the ban."                                                                                                   

                                The Declaratory Judgment Act provides in relevant part:                                                                                  "In case of an               

 actual controversy in the state, the superior court . . . may declare the rights and legal                                                                                                     

relations of an interested party seeking the declaration, whether or not further relief is or                                                                                                          

                                          42    We have held that "[t]his provision requires declaratory judgment  

 could be sought."                                                                                                                                                                    

 actions to be associated with an actual case or controversy; they do not open the door for  


hypothetical adjudications, advisory opinions, or answers to moot questions."43  


                                We have also held that "[c]laims for declaratory relief are commonly moot  


when the statute or regulation at issue is no longer in effect or has been amended."44  


                42              AS 22.10.020(g).   

                43              Laverty v. Alaska R.R. Corp.                                         , 13 P.3d 725, 729 (Alaska 2000);                                                  see also   

 Williams v. Alioto, 549 F.2d 136, 141 n.4 (9th Cir. 1977) (noting that the mootness  


 doctrine applies in the declaratory judgment context).                                                   

                44             Alaska Judicial Council v. Kruse , 331 P.3d 375, 380 (Alaska 2014); see,  


 e.g., Ahtna Tene Nené v. State, Dep't of Fish & Game , 288 P.3d 452, 458 (Alaska 2012)  


 (holding appeal moot because challenged hunting regulation was "no longer in effect"  


 after having been substantially amended, andnoting: "We have long held that challenges  


 to administrative permitting decisions based on rules that are no longer valid are moot,  


 despite the fact that permit opponents seek declaratory judgments that the agency actions  


were unlawful."); State, Dep't of Nat. Res. v. Greenpeace, Inc., 96 P.3d 1056, 1068  


 (Alaska 2004) (concluding that appeal from DNR decision to lift stay on issuance of  


 temporary water permit was moot when "the controlling statute and regulation were both  


 amended in 2001, after the permit expired and before the superior court ruled on the stay  


 issue");  Peninsula Mktg. Ass'n v. State, 817 P.2d 917, 920 (Alaska 1991) (interpreting  


 statute granting regulatory powers to Board of Fisheries under public interest exception  


 to mootness doctrine but declining to address claims "about the particular regulation in  


 this case" because it was no longer in effect); Carney v. State Bd. of Fisheries, 785 P.2d  



                                                                                                 -15-                                                                                           7342

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

"This is because '[i]ssuing a decision regarding regulations that are no longer in effect                                                                                               

is merely an academic exercise; it provides no explanation of a party's rights under the                                                                                                      

existing law.' "45  Leahy does not dispute that the mail policy to which he objects was  

changed   in   November   2016   to   an   individualized-review   policy   that   he   finds  


unobjectionable.  Judicial review to determine the constitutionality of the earlier policy,  


in existence for less than three years and now replaced, would be a purely "academic  


exercise."  The superior court did not err by deciding that Leahy's claim for declaratory  


relief was moot.46  


               44              (...continued)  


544, 549 (Alaska 1990) (affirming dismissal of claims of set netters whose claims were  


mooted after State amended regulation to remove restrictions from beach where they  



               45             Alpine Energy, LLC v. Matanuska Elec. Ass'n , 369 P.3d 245, 257 (Alaska  


2016) (quoting Ahtna Tene Nené , 288 P.3d at 457).  


               46              We recognized in Slade v. State, Dep't of Transp. & Pub. Facilities that,  


under federal law, the "voluntary cessation" of a challenged practice might not moot the  


challenge unless "subsequent events made it absolutely clear that the allegedly wrongful  


behavior could not reasonably be expected to recur."  336 P.3d 699, 700 (Alaska 2014)  


(quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,  


 189  (2000)).                     In Slade  we  determined  that  this  test  was  satisfied  by  the  Attorney  


General's "unambiguous policy statement," which was binding in Slade  and which  


"other litigants [would] be aware of" because of our published order addressing it.  Id.  


at 701.  The facts here are similar.  The Commissioner's express policy as of November  


2018 is "that prisoners may correspond with anyone except those persons and businesses  


limited  by  this  [written]  policy."                                             STATE   OF   ALASKA   DEP 'T   OF   CORR. P                                               OLICIES   &  


   ROCEDURES  810.03   at   1   (2018),  


Prisoner-to-prisoner mail may not be restricted except as required for reasons of safety                                                                                                

or security; restrictions will then be imposed "only on a case-by-case basis," and "[t]he                                                                                               

restriction must be no broader than necessary to address the safety or security concerns."                                                                                                             

Id.  at § IV(C)(1), (2).                           The prior policy is explicitly superceded, and the new one is not                                                                          

due for review until November 2023.                                                    Id.  at 1.   We conclude that the Commissioner's                         


                                                                                              -16-                                                                                        7342

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

               C.	           The Superior Court Did Not Abuse Its Discretion With Regard To                                                                                              

                             Leahy's Status As A Pro Se Litigant.                                                  

                             Leahy asserts that the superior court erred by failing to advise him to add                                                                        

 former Commissioner Brandenberg as a defendant and by striking a pleading he filed in                                                                                              

response to the superintendents' reply to his opposition to its cross-motion for summary                                                                            

judgment.  "In general, pro se litigants are granted considerable leeway with regard to                                                  

                                                        47   But while the court "should inform a pro se litigant of the  

procedural requirements."                                                                                                                                                        

proper procedure for the action he or she is obviously attempting to accomplish,"48  


judges "must be careful to maintain their impartiality" and "may not act as advocates for  


pro se litigants on substantive legal issues."49  


                             Advising a litigant to add a particular party defendant would usually cross  


the line from procedural advice to substantive advocacy.50                                                                     The superior court did not  


 abuse its discretion by failing to do so. Nor did the superior court abuse its discretion by  


               46            (...continued)  

new   "unambiguous  policy   statement"   satisfies   the   test   of   Slade.   See,   e.g.,  Brown   v.  

Buhman,   822   F.3d    1151,    1167-68   (10th   Cir.   2016)   ("[W]e   have   indicated   that  

 government  'self-correction  .  .  .  provides  a  secure  foundation  for  mootness  so  long  as  it  

 seems  genuine.'  "  (quoting  Rio  Grande  Silvery  Minnow  v.  Bureau  of  Reclamation,  601  

 F.3d   1096,   1118  (10th  Cir.  2010))).   

               47            Greenway v. Heathcott, 294 P.3d 1056, 1071 (Alaska 2013).  


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


               49           Rae v. State, Dep't of Corr., 407 P.3d 474, 479 (Alaska 2017).  


               50            In any event, we note that under  our discussion of qualified immunity,  


 above, former Commissioner Brandenberg would have been protected by the defense,  

 and  the  result  of  this  suit  would  have  been  the  same.   See  Tracy  v.  State,  Dep't  of  Health  

 &  Soc.  Servs.,  Office  of  Children's  Servs.,  279  P.3d  613,  617-18  (Alaska  2012)  (finding  

no  abuse  of discretion in superior court's failure  to advise  plaintiffs they could amend  

 complaint  when  their  claims  would  have  been  dismissed  regardless).  

                                                                                        -17-	                                                                                7342

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

striking   Leahy's response to                     the superintendents'                reply   on summary              judgment; the   


response was not authorized by the Civil Rules,                                                                                             

                                                                                  and the superior court's obligation to  


advise  pro  se  litigants  of  the proper  procedure  does  not  require  it  to  grant  more  


procedural rights than the Rules allow litigants generally.  


           D.	        An  Argument  That  Leahy  Should  Have  Been  Designated  The  


                      Prevailing Party Is Waived.  


                      Finally, Leahy contends that, "[g]iven that [DOC] decided to rescind the  


ban, after having been served [with this lawsuit], [Leahy] naturally believed he won the  


case," and he asks that we award him "all costs and fees paid in the course of this case."  


Though he makes no substantive argument, his claim could be read leniently as one for  


prevailing party status based on the catalyst theory, which may apply "when a lawsuit  



brings  about  relief  in  a  manner  other  than  formal  judgment."                                             A  party  seeking  


prevailing party status under the catalyst theory "must demonstrate (1) that it achieved  


the goal of the litigation by succeeding on any significant issue which achieves some of  


the benefit sought in bringing the suit, and (2) that there is a causal connection between  



the defendant's action generating relief and the lawsuit." 

                      But Leahy made no prevailing party argument in the trial court.  After the  


superior court granted summary judgment and denied Leahy's subsequent motion for  


reconsideration, the superintendents moved for entry of final judgment, disclaiming any  


intent "to seek attorney's fees or costs."  Leahy did not oppose the superintendents'  


           51         Alaska   Rules   of   Civil   Procedure   Civil   Rules   56(c)   and   77(b)-(d)  

contemplate a motion, an opposition, and a reply.                                    

           52         Interior  Cabaret,  Hotel,  Rest.  & Retailers  Ass'n  v.  Fairbanks  N.  Star  


Borough, 135 P.3d 1000, 1008 (Alaska 2006).  


           53         Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083, 1094 (Alaska  


2008) (quoting Interior Cabaret, 135 P.3d at 1008).  


                                                                    -18-	                                                             7342

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

motion, and the court signed a final judgment that made no determination of prevailing                                                                                                                                          

party status and awarded no fees or costs.                                                                                       Having failed to raise a prevailing party                                                                     


argument in the trial court, Leahy cannot raise one for the first time on appeal.                                                                                                                                                              

V.                  CONCLUSION  

                                       The judgment of the superior court is AFFIRMED.  


                    54                 See  Ivy  v.  Calais  Co.,  397  P.3d  267,  275  (Alaska  2017).   

                                                                                                                         -19-                                                                                                                  7342  

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