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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Randall G. Jackson v. Borough of Haines, Joshua Knorr, Jason F. Rettinger, Adam Patterson, Simon Ford, Gary Lowe, Darsie Calbeck a/k/a Culbeck, Mark Earnest, Amy Williams, and James Scott (5/24/2019) sp-7365

Randall G. Jackson v. Borough of Haines, Joshua Knorr, Jason F. Rettinger, Adam Patterson, Simon Ford, Gary Lowe, Darsie Calbeck a/k/a Culbeck, Mark Earnest, Amy Williams, and James Scott (5/24/2019) sp-7365

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                      THE SUPREME COURT OF THE STATE OF ALASKA                                    



RANDELL  G.  JACKSON,                                          )  

                                                               )                                    

                                                                    Supreme Court No. S-16991  

                               Appellant,                      )  

                                                               )                                                            

                                                                    Superior Court No. 1JU-14-00839 CI  

          v.                                                   )  

                                                               )                        

                                                                    O P I N I O N  

BOROUGH OF HAINES, JOSHUA  

                                                               )  

KNORR, JASON F. RETTINGER,                                                                           

                                                               )    No. 7365 - May 24, 2019  

ADAM PATTERSON, SIMON FORD,  

                                                               )  

GARY LOWE, DARSIE CALBECK,  

                                                               )  

a/k/a CULBECK, MARK EARNEST,  

                                                               )  

AMY WILLIAMS, and JAMES  

                                                               )  

SCOTT,                                                         )  

                                                               )  

                               Appellees.                      )  

                                                               )  



                                                                                                            

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

                                                                                             

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



                                                                                                                    

                     Appearances: Randell G. Jackson, pro se, Haines, Appellant.  

                                                                                                   

                     Ruth       Botstein,         Senior         Assistant         Attorney          General,  

                                                                                                        

                     Anchorage,and JahnaLindemuth,Attorney General,Juneau,  

                                                                                                             

                     for   Appellees   Amy   Williams   and   James   Scott.                                  No  

                                                                                                      

                     appearances by Borough of Haines, Joshua Knorr, Jason F.  

                                                                                                         

                     Rettinger, Adam Patterson, Simon Ford, Gary Lowe, Darsie  

                                                                          

                     Calbeck, a/k/a Culbeck, or Mark Earnest.  



                                                                                                            

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

                                                                                     

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



                                                 

                     BOLGER, Chief Justice.  


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

I.         INTRODUCTION
  



                     An individual brought civil claims against the prosecutors who secured his  

                                                                                                                                       



convictions for assault and resisting arrest, alleging that they committed various torts and  

                                                                                                                                      



violated his constitutional right to due process.  The superior court dismissed his state  

                                                                                                                                    



and federal claims, concluding that the prosecutors enjoyed absolute immunity.   We  

                                                                                                                                     



agree that the prosecutors are protected by absolute immunity from both the state and  

                                                                                                                                      



federal claims because they were acting in their official capacity as advocates for the  

                                                                                                                                       



State when they committed the acts that gave rise to the complaint.  Accordingly we  

                                                                                                                                       



affirm the superior court's dismissal of the claims against them.  

                                                                                              



II.        FACTS AND PROCEEDINGS  

                                    



                     RandellJacksonwascharged withdisorderly conduct, assault, and resisting  

                                                                                                                              



arrest after a 2012 interaction with three police officers in Haines.  Amy Williams, an  

                                                                                                                                        



assistant district attorney, first prosecuted Jackson on these charges, but her efforts  

                                                                                                                                 



resulted in a mistrial.   James Scott, the Juneau district attorney, oversaw the second  

                                                                                                                                



round  of proceedings against Jackson,  which  led  to  his conviction and sentencing.  

                                                                                                                                             



Jackson appealed his convictions in March 2016 to the superior court, which reversed  

                                    



his  conviction  for  disorderly  conduct  but  affirmed  his  assault  and  resisting  arrest  

                                                                                                                                  



convictions.  

                      

                     On  September  4,  2014,  Jackson1   filed  a civil complaint against Scott,  

                                                                                                                                  



Williams,  various  police  officers  and  state  employees  involved  in  his  arrest  and  

                                                                                                                                     

prosecution, and theBorough ofHaines.2  He brought several constitutional claims under  

                                                                                                                                   



           1         Jackson has been self-represented at all stages of this litigation.                    



           2         Jackson did not name the Borough in the case caption, but identified it as  

                                                                                                                                        

a party in the body of his original complaint.  The superior court later granted Jackson  

                                                                                                

leave to amend his complaint to include the Borough in the caption.  

                                                                                                               



                                                                   -2-                                                             7365
  


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

                                                                     3  

 42 U.S.C.  1983                                                        and tort claims under state law.                                                                                            He alleged that the arresting officers                                                                             



 provided false testimony at his trial, that Scott and Williams refused or neglected to                                                                                                                                                                                                                                                      



 prevent the presentation of this false testimony, that they knowingly or recklessly used                                                                                                                                                                                                                                          



 this false testimony to convict Jackson, that Williams "made an illegal request for a                                                                                                                                                                                                                                                          



 bench warrant to be issued against [a] defense witness," that Williams "advised and                                                                                                                                                                                                                                                  



 strategized" with the police department regarding Jackson's prosecution, and that Scott                                                                                                                                                                                                                                          



 "made   misrepresentative   statement[s]   using   ethos,   speculation   and   experimentation  



 instead   of   evidence   to   wrongfully   convict   Jackson."     Jackson   sought   recovery   for  



 malicious prosecution, malicious abuse of process, conspiracy, intentional infliction of                                                                                                                                                                                                                                                     



 emotional   distress,   negligent   infliction   of   emotional   distress,   negligence,   and   the  



 violation of various rights established by the federal constitution.                                                                                                                                                                                               



                                                      Jackson then moved to stay his civil case until his criminal appeal was                                                                                                                                                                                                        



 resolved.   While the court was considering the stay motion, Scott and Williams moved                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                                                                        4         They  

 to dismiss Jackson's claims against them under Alaska Civil Rule 12(b)(6).                                                                                                                                                                                                                                                  



 argued that "[i]t is well-settled that absolute immunity bars claims for monetary damages  

                                                                                                                                                                                                                                                                                                                    



 against  prosecutors  when  acting  in  their  roles  as  advocates"  and  that  the  conduct  

                                                                                                                                                                                                                                                                                                                    



 challenged in Jackson's complaint "fall[s] squarely within the scope of . . . Scott's and  

                                                                                                                                                                                                                                                                                                                                       



  . . . Williams' absolute immunity as prosecutors."  

                                                                                                                                                                                                       



                                                      The superior court granted both Jackson's and the prosecutors' motions in  

                                                                                                                                                                                                                                                                                                                                              



 September 2015. Regarding the motion to dismiss, it explained that "all of Mr. Jackson's  

                                                                                                                                                                                                                                                                                                                



                           3                          This statute creates a civil cause of action against any "person who, under                                                                                                                                                                                              



 color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects,                                                                                                                                                                                                                       

 or causes to be subjected, any citizen of the United States or other person within the                                                                                                                                                                                                                                                  

jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by                                                                                                                                                                                                                                                 

 the Constitution and laws."                                                       



                           4                         Alaska Civil Rule 12(b)(6) allows a party to move for dismissal of the  

                                                                                                                                                                                                                                                                                                                                         

 claims against them for "failure to state a claim upon which relief can be granted."  

                                                                                                                                                                                                                                                                                                 



                                                                                                                                                                      -3-                                                                                                                                                          7365
  


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

 claims against . . . Scott and . . . Williams arose after the criminal complaint was filed as                                                                                                                                                                     



 part of his criminal prosecution.                                                                  Thus Mr. Jackson's allegations against [them] involve                                                                                         



 activities   intimately   associated   with   the   judicial   phase   of   Mr.   Jackson's   criminal  



 prosecution."     Accordingly   the   superior   court   found   that   Scott   and  Williams   were  



 "entitled to absolute prosecutorial immunity."                                                                                                



                                          Jackson's criminal appeal concluded in March 2016, and the superior court                                                                                                                                       



 dissolved the stay in his civil action in September 2017.                                                                                                                    In October Jackson moved to                                                          



 continue the stay until he had exhausted all of his post-conviction remedies, but the                                                                                                                                                                         



 superior court eventually denied this motion.  Upon the motion of the prosecutors, the                                                                                                                                                                         

                                                                                                                                                                                                                                                             5     in  

 superior   court   entered   judgment   in   their   favor   under   Alaska   Civil  Rule   54(b)   

 December 2017.6                                           The superior court also awarded the prosecutors an attorney's fee  

                                                                                                                                                                                                                                                                



                                                                                                                                                                                                         7                                                         8  

                                                                                                                                                                                                               Jackson appeals.   

 award of $4,311.87, calculated under Alaska Civil Rule 82(b)(2).                                                                                                                                                                         

                                                                                                                                                                              



                     5                   Alaska Civil Rule 54(b) provides:                                           



                                         When more than one claim for relief is presented in an action                                                                                                        

                                          . . . the court may direct the entry of a final judgment as to                                                                                                                  

                                          one or more but fewer than all of the claims or parties only                                                                                                             

                                         upon an express determination that there is no just reason for                                                                                                                 

                                          delay   and  upon   an   express   direction   for   the   entry   of  

                                         judgment.   



                     6                    Only Jackson's claims against the prosecutors were dismissed, and his  

                                                                                                                                                                                                                                                                

 claims against the remaining defendants were allowed to continue.  

                                                                                                                                                                                                               



                     7                   Alaska Civil Rule 82(b)(2) provides that "the court . . . shall award the  

                                                                                                                                                                                                                                                                

 prevailing party in a case resolved without trial 20 percent of its actual attorney's fees  

                                                                                                                                                    

 which  were  necessarily  incurred"  when  that  party  does  not  also  recover  a  money  

                                                                                                                                                                                                                                                   

judgment.  



                     8                    Jackson originally filed a petition for review in February 2018.  A month  

                                                                                                                                                                                                                                                      

 later, we converted that petition into an appeal by right, pursuant to Alaska Appellate  

                                                                                                                                                                                                                                            

 Rule 202.  

                                



                                                                                                                                 -4-                                                                                                                      7365
  


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

III.	     DISCUSSION  



                     Jackson raises a number of issues on appeal.  He challenges the superior  

                                                                                                                          



court's dismissal of his claims against the prosecutors under Rule 12(b)(6) and the  

                                                                                                                                 



attorney's fees awarded to them.  Jackson also argues that the superior court erred by  

                                                                                                                                   



denying his motion to continue the stay of his civil case and by denying his motion for  

                                                                                                                                  



default judgment against the Borough of Haines. Finally, Jackson challenges thevalidity  

                                                                                                                           



of his underlying criminal convictions.  

                                                              



          A.	        It  Was  Not  Error  For  The  Superior  Court  To  Dismiss  Jackson's  

                                                                                                                      

                     Claims On The Basis Of Absolute Immunity.  

                                                                              



                     "A complaint is subject to dismissal under Civil Rule 12(b)(6) 'when its  

                                                                                                                                   



allegations indicate the existence of an affirmative defense, but the defense must clearly  

                                                                                                                            

appear on the face of the pleading.' "9  

                                                              Jackson's complaint asserted claims for relief  

                                                                                                                              



under both federal and Alaska law.  The superior court applied the same reasoning to  

                                                                                                                                    



Jackson's state and federal claims: that prosecutors are entitled to an affirmative defense  

                                                                                                                           



of absolute immunity  for  "acts intimately  associated  with the judicial phase of the  

                                                                                                                                 



criminal process," and that the conduct that gave rise to Jackson's complaint occurred  

                              



within  that  phase.            "We  review  decisions  granting  or  denying  motions  to  dismiss  

                                                                                                                          



          9         Martin v. Mears           , 602 P.2d 421, 428 (Alaska 1979) (quoting 5 C. W                             RIGHT  



& A. M      ILLER, F     EDERAL  PRACTICE AND                PROCEDURE:  Civil  1357, at 605-06 (1969 &  

                                                                                                                             

Supp. 1979)); see also Douglas Indian Ass'n v. Cent. Council of Tlingit &Haida Indian  

                                                                                                                                

Tribes of Alaska, 403 P.3d 1172, 1177 n.17 (Alaska 2017) ("Affirmative defenses may  

                                                                                                                           

be raised in a preanswer motion under Civil Rule 12(b)(6) as long as the defense 'clearly  

                                                                                                                                

appear[s] on the face of the pleading.' " (alteration in original) (quoting Mears, 602 P.2d  

     

at 428)).  



                                                                 -5-	                                                         7365
  


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

                  10  

de novo."              "The applicability of both state and federal immunity are questions of law                                                          



                                                                           11  

that are also subject to de novo review."                                       



                                                                                                                                                               

                         1.	         The affirmative defense of absolute prosecutorial immunity is  

                                                                                                                   

                                      available under both federal and state law.  



                                                                                                                                                       

                         The United States Supreme Court has long held that prosecutors enjoy  



                                                                                                                                              

absolute immunity from claims brought under  1983, the statute which authorized  



                                                                                                                                                    

Jackson's federal claims, when performing acts "intimately associated with the judicial  



                                                         12  

                                                                                                                                                          

phase of the criminal process."                               But we have not yet decided whether prosecutors may  



                                                                                                                                               

assert an absolute immunity defense against state-law causes of action, like Jackson's  



                                                                                     13  

                                                                                          

malicious prosecution and conspiracy claims. 



                                                                                                                                             

                         In Imbler v. Pachtman, the U.S. Supreme Court concluded that prosecutors  



                                                                                                      14  

                                                                                                                                                             

were entitled to absolute immunity from  1983 claims.                                                    The Court determined that the  



                                                                                                                                                              

nature of the prosecutor's role requires the "exercise [of] his best judgment both in  



             10          Hahn v. GEICO Choice Ins. Co.                                  , 420 P.3d 1160, 1166 (Alaska 2018)                           



(quoting   Varilek v. City of Houston                             , 104 P.3d 849, 851 (Alaska 2004)).                   



             11	         Hill v. Giani, 296 P.3d 14, 20 (Alaska 2013).  

                                                                                                  



             12          Imbler v. Pachtman, 424 U.S. 409, 427, 430 (1976); see also State, Dep't  

                                                                                                                                                       

of Health & Soc. Servs., Office of Children's Servs. v. Doherty, 167 P.3d 64, 70 (Alaska  

                                                                                                                                                    

2007) (noting that "defenses to a federal cause of action are defined by federal law"  

                                                                                                                                                         

(quoting Van Sandt v. Brown, 944 P.2d 449, 452 n.5 (Alaska 1997))).  

                                                                                                                    



             13          See  Kurka  v.  State,  No.  S-14522,  2012  WL  5883277,  at  *2  (Alaska  

                                                                                                                                                   

Nov. 21, 2012) (declining to consider whether prosecutors were entitled to absolute  

                                                                                                                                                  

immunity when superior court dismissed claims against them on grounds of qualified  

                                                                                                                                                 

immunity); cf. Schug v. Moore, 233 P.3d 1114, 1117 (Alaska 2010) ("We do not decide  

                                                                                                                                                      

whether [an assistant attorney general] was protected by absolute or qualified immunity  

                                                                                                                                                

when  she  represented  [the  Alaska  Department  of  Corrections]  in  the  underlying  

                                                                                                                                            

litigation.").  



             14          424 U.S. 409, 427-28 (1976).  

                                                                   



                                                                              -6-	                                                                      7365
  


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

deciding which suits to bring and in conducting them in court" and that "[t]he public                                                               



trust of the prosecutor's office would suffer if he were constrained in making every                                                  



decision   by   the   consequences   in   terms   of   his   own   potential   liability  in  a   suit   for  

                   15   The Court also reasoned that, absent absolute immunity, suits for damages  

damages."                                                                                                                                       



"could be expected with some frequency," which would divert the prosecutor's "energy  

                                                                                                                                                  

and attention . . . from the pressing duty of enforcing the criminal law."16                                                                The Court  

                                                                                                                                                     



concluded  that  these considerations outweighed  the fact that absolute prosecutorial  

                                                                                                                                       

immunity would "leave the genuinely wronged defendant without civil redress."17  

                                                                                                                                     



                         We find this reasoning persuasive.  Prosecutors perform an indispensable  

                                                                                                                                       



role in the administration of justice and the maintenance of public safety.   Their job  

                                                                                                                                                          



requires them to make decisions about how and when to prosecute, and which cases to  

                                                                                                                                                             



bring in order to best serve the public good. Exposure to civil liability for their decisions  

                                                                                                                                               



could affect prosecutors' judgment, erodingpublic trust in the office and hampering their  

                                                                                                                                                        



                                                                                    18  

ability to pursue cases in the public's interest.                                         

                                                                      



                         Moreover, liability in tort for claims like malicious prosecution would  

                                                                                                                                                    

require  an  inquiry  into  a  prosecutor's  motives.19                                             This  is  a  question  of  fact,  the  

                                                                                                                                                         



            15          Id .  at  424-25.  



            16          Id.  at  425.  



            17          Id.  at  427.  



            18           Cf.  Aspen  Expl.  Corp.  v.  Sheffield,  739  P.2d   150,   160  (Alaska   1987)  ("To  



allow   the   governor's   motives   to   be   questioned   at   every   turn,   by   every   disappointed  

applicant  for  a  mining  lease,  or  a  land  grant,  or  oil  rights,  would  effectively  undermine  

the  governor's  ability  to  govern.").  



            19           See Greywolf v. Carroll, 151 P.3d 1234, 1241 (Alaska 2007) (identifying  

                                                                                                                                          

                                                                                                                                       (continued...)  



                                                                             -7-                                                                      7365
  


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

                                                                                   20  

determination of which would likely require a trial.                                   Even if such claims were relatively            



infrequent,   the   burden   of   defending   them   in   what   could   be   lengthy  or   complex  



proceedings would detract from the prosecutor's ability to fulfill the duties of his or her                                                



           21  

office.         



                      A rule of absolute prosecutorial immunity may leave injured parties with  

                                                      



no meaningful alternative remedies or avenues for relief.   But the importance of the  

                                                                                                                                           



office and threat that its efficacy will be eroded by defensive litigation outweigh this  

                                                                                                                                          



concern.  

                 



                      Jackson questions whether "a certain class of people" should be "above the  

                                                                                                                                            



constitutional rules of law."   But he does not argue that a different analysis of the  

                                                                                                                                           



immunity defense should be applied as a matter of state law.  

                                                                                                       

                                                                                                                                         22  in  

                      We thus join the U.S. Supreme Court and the majority of other states                                                   

                                                                                                                                 



            19         (...continued)  



                                                                                                                                             

" 'malice' or a primary purpose other than that of bringing an offender to justice" as an  

                                                                                                                                         

element of malicious prosecution (quoting Stephens v. State, Dep't of Revenue, 746 P.2d  

                               

908, 911 (Alaska 1987))).  



           20         See id. at 1241-42.  

                                       



           21          Cf. Aspen Expl. Corp., 739 P.2d at 161 (reasoning that a trial to determine  

                                                                                                                                

the governor's motives when rejecting permit applications would be lengthy, require a  

                                                                                                                                               

jury to review policy decisions, and prove "more costly to the public good than the  

                                                                                                                                           

possibility of actual malice or wrongful motive").  

                                                                    



           22         See  e.g.,  Knapper  v.  Connick,  681  So.  2d  944,  946,  950  (La.  1996)  

                                                                                                                                      

(explaining that "[t]he overwhelming majority of courts in other states have extended  

                                                                                                                                 

absolute immunity to prosecutors when they are acting within their traditional roles as  

                                                                                             

advocates for the state" before adopting the defense itself); but see Simms v. Seaman,  

                                                                                                                                  

 69 A.3d 880, 891 (Conn. 2013) (noting that absolute immunity does not bar malicious  

                                                                                                                    

prosecution claims under Connecticut law).  

                                                                 



                                                                      -8-                                                              7365
  


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

holding that prosecutors are entitled to absolute immunity from tort claims when acting                                                                                                                       



in their role as advocates for the State.                                           



                                  2.	              The   prosecutors   are   entitled   to   assert   absolute   immunity  

                                                   because they were acting in their roles as advocates of the State.                                                                                         



                                  Having determined that absolute immunity is available to the prosecutors                                                                                      



as an affirmative defense to state-law claims, we must now decide whether they are                                                                                                                                   



entitled to assert it in this case.                                            The focus of this inquiry is on the nature of the conduct                                                                 



that   gave   rise   to  Jackson's   claims.     Prosecutors   enjoy   absolute   immunity   when  



                                                                                                                                                                                                                         23  

performing acts "intimately associated with the judicial phase of the criminal process."                                                                                                                                        



                                                                                                                                                                                                                         

The U.S. Supreme Court has explained that absolute immunity protects actions taken in  



                                                                                                                                                                                                                         24  

                                                                                                                                                                                                                                

the capacity of an advocate, but not necessarily "investigative or administrative tasks." 



                                                                                                                                                                                                                      

                                  The  superior  court  found  that  Scott  and  Williams  were  entitled  to  an  



                                                                                                                                                                                                                   

absolute immunity defense because all of Jackson's claims challenged conduct that  



                                                                                                                                                                                                                                

"arose  after  the  criminal  complaint  was  filed  as  part  of  his  criminal  prosecution."  



Because of this it determined that the prosecutors' actions were "intimately associated  



                                                                                                                                                                                                             

with the judicial phase ofMr. Jackson's criminal prosecution." Jackson argues on appeal  



                                                                                                                                                                                                                        

that Scott and Williams each acted negligently in an administrative capacity, prior to  



                                                                                                                                                                                                                     

occupying the role of advocate.   We disagree, and conclude that the prosecutors are  



                                                                                                                                    

entitled to absolute immunity from all of Jackson's claims.  



                                                                                                                                                                                                                  

                                  Jackson argues that by supervising Williams's prosecution of the first trial,  



                                                                                                                                                                                                                  

Scott acted in an administrative capacity, and did not assume the role of an advocate until  



                                                                                                                                                                                        

he presided  over  the second trial himself.                                                                        The U.S.  Supreme Court  has  expressly  



                                                                                                                                                                                                       

rejected this argument.   In  Van de Kamp v. Goldstein, the Court held that absolute  



                 23               Imbler  v.  Pachtman,  424  U.S.  409,  430  (1976).  



                 24                Van  de  Kamp  v.  Goldstein,  555  U.S.  335,  342  (2009).  



                                                                                                           -9-                                                                                                            7365  


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

prosecutorial immunity extends to certain office-wide supervisory practices, like the                                                      



                                                  25  

training   of   new   prosecutors.                                                                                      

                                                         The  Court  concluded  this  was  an  administrative  



               26  

                                                                                                                                              

function.            But in reaching this decision, the U.S. Supreme Court first discussed a  



                                                                                                                               

hypothetical case, in which a plaintiff sought "damages not only fromthe trial prosecutor  



                                                                                                                                        27  

                                                                                                                                              

but also from a supervisory prosecutor or from the trial prosecutor's colleagues."                                                           It  



                                                                                                                               

reasoned that in such a scenario "all these prosecutors would enjoy absolute immunity"  



                                                                                                                         

because their "behavior, taken individually or separately, would involve '[p]reparation  



                                                                                                                                           

. . . for . . . trial,' and would be 'intimately associated with the judicial phase of the  



                                 28  

                                

criminal process.' " 



                                                                                                                                            

                      The  U.S.  Supreme  Court's  hypothetical  case,  which  it  described  as  



                                                                                                                    29  

                                                                                                                                  

"involv[ing] supervisory . . . prosecutors but . . . not . . . administration,"                                        maps perfectly  



                                                                                                                                   

onto Jackson's argument about Scott. Scott was not acting in an administrative capacity  



                                                                                                                      

when  he  supervised  Williams's  prosecution  of  Jackson,  but  rather  as  an  advocate  



              30  

                                                                                                                          

himself.          We thus reject Jackson's argument that Scott was acting as an administrator  



                                                                   

"prior to and throughout the first trial."  



           25         Id.  at  339,  344-49.  



           26         Id.  at  344-46.  



           27         Id.  at  345.  



           28         Id.  (alteration  and  omissions  in  original)  (internal  citation  omitted)  (quoting  



Imbler,  424  U.S.  at  431  n.33,  430).  



           29         Id.  



           30         See  id.  ("Decisions  about  indictment  or  trial  prosecution  will  often  involve  



more  than  one  prosecutor  within  an  office.").  



                                                                     -10-                                                              7365
  


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

                                           Turning to Williams, Jackson argues that she acted in an administrative                                                                                                                   



capacity when participating in pretrial calendar calls.                                                                                                                      He contends that there is some                                                       



period after the initiation of criminal proceedings, but before the trial, in which the                                                                                                                                                                                  



prosecutor's role is administrative and investigative.                                                                                                                  He also claims that Williams was                                                               



not acting as an advocate "when she defended the convictions secured by Mr. Scott on                                                                                                                                                                                       



appeal."   



                                           But again, the U.S. Supreme Court has squarely rejected these arguments.                                                                                                                                                                   



It recognized in                                   Imbler  that "the duties of the prosecutor in his role as advocate for the                                                                                                                                             



 State involve actions preliminary to the initiation of a prosecution and actions apart from                                                                                                                                                                        

                                                   31      And it reasoned in Burns v. Reed that "pretrial court appearances by  

the courtroom."                                                                                                                                                                                                                                                            



the prosecutor in support of taking criminal action against a suspect" must give rise to  

                                                                                                                                                                                                                                               

                                                              32      A prosecutor assumes the role of advocate for the State when he  

absolute immunity.                                                                                                                                                                                                                                                          



or she appears at a calendar call, and makes that pretrial appearance "in support of taking  

                                                                                                                                                                                                                                                                

                                                                                                           33   So, too, a prosecutor continues to act as an advocate  

criminal action against a suspect."                                                                                                                                                                                                                    

                                                                           



for the State when he or she defends a conviction on appeal.  

                                                                                                                                                                                                   



                                           We conclude that the prosecutors were acting in an advocacy role when  

                                                                                                                                                                                                                                                                 



they took the actions that gave rise to Jackson's claims. We therefore hold that they were  

                                                                                                                                                                                                                                                                    



entitled to assert the defense of absolute immunity against all of Jackson's claims, both  

                                                                                                                                                                                                                                                                     



                     31                    424 U.S. at 431 n.33.                              



                     32                    500 U.S. 478, 492 (1991) (holding that a prosecutor's "appearance in court  

                                                                                                                                                                                                                                                                    

in support of an application for a search warrant and the presentation of evidence at that                                                                                                                                                                              

hearing are protected by absolute immunity").  

                                                                                                            



                     33                   Id.  



                                                                                                                                   -11-                                                                                                                             7365
  


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

state and federal, and that it was not error for the superior court to grant their motion to                                                                                                       

dismiss on such grounds.                                  34  



                                                                                                                                                                           

               B.              It Was Not Error To Award The Prosecutors Attorney's Fees.  



                                                                                                                                                                                              

                               The superior court awarded the prosecutors $4,311.87 in attorney's fees  



                                                                                                                                                                                                         

under Civil Rule 82(b)(2).  On appeal Jackson argues that the fee award was improper.  



                                                                                                

"We review an award for attorney's fees for abuse of discretion and will not reverse it  



                                                                                      35  

                                                    

unless it is manifestly unreasonable." 



                                                                                                                                                                                               

                               Civil Rule 82(b)(2) applies when the prevailing party in a case does not  



                                                                                                                                                                                

receive a money judgment. It provides that the superior court "shall award the prevailing  



                                                                                                                                                                                            

party in a case resolved without trial 20 percent of its actual attorney's fees which were  



                                                  36  

                                                                                                                                                                           

                                                         Under Rule 82(b)(3), the court may deviate from this formula  

necessarily incurred." 



                                                                                                                                                                                                    

upon consideration of a number of factors, but "[a]pplication of Rule 82(b)(3) factors is  



                                                                      37  

                                          

discretionary, not mandatory." 



                               The superior court specifically requested briefing from Jackson on the  

                                                                                                                                                                                               



Rule 82(b)(3) factors, explaining that it was "hesitant to assess thousands of dollars of  

                                                                                                                                                                                                  



               34              The   prosecutors   argue   on   appeal   that   Heck   v.   Humphrey   provides   an  



additional bar to Jackson's  1983 claims. In that case, the U.S. Supreme Court held that                                                                                                      

"in order to recover damages . . . , 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 . . . , or called into question by a federal court's issuance of a                                                                                                       

writ of habeas corpus."                                  Heck v. Humphrey                              , 512 U.S. 477, 486-87 (1994).                                                Having  

determined that the prosecutors are entitled to absolute immunity, we decline to address                                                                                              

this argument.                     



               35              Greene v. Tinker, 332 P.3d 21, 41 (Alaska 2014).  

                                                                                                                                  



               36              Alaska R. Civ. P. 82(b)(2).  

                                                                        



               37              Greene, 332 P.3d at 41 (alteration in original) (quoting Rhodes v. Erion,  

                                                                                                                                                                                        

 189 P.3d 1051, 1055 (Alaska 2008)).  

                                                                     



                                                                                               -12-                                                                                        7365
  


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

fees against a                    pro se             litigant like Mr. Jackson without at least first considering whether                                                                                   



there is reason to deviate from the 20% benchmark" set by Rule 82(b)(2).                                                                                                                                  Jackson  



complied, arguing that fees should not be awarded because he was indigent and self-                                                                                                                                  



represented, and because a fee award would deter other similarly situated litigants from                                                                                                                            



pressing   their   claims.     The superior                                                       court considered                               each  of these arguments,                                             but  



eventually decided not to depart from the Rule 82(b)(2) fee schedule.                                                                                                                It explained that                 



Jackson   had   presented   no   evidence   to   prove   his   indigence.     It   also   noted   that  our  

                                                                                                                                                                                                                38  The  

precedent does not forbid trial courts fromawarding fees against indigent litigants.                                                                                                                                   



court  also  disagreed  with  Jackson's  argument  that  a  fee  award  would  deter  future  

                                                                                                                                                                                                                



litigants, noting that he stood "to make enormous financial gains if successful" with his  

                                                                                                                                                                                                                         



suit. Accordingly the superior court ordered Jackson to pay the full $4,311.87 requested  

                                                                                                                                                                                                        



by the prosecutors.  

                                                   



                                   Jacksonarguesthat thesuperior court abused its discretionbyawarding any  

                                                                                                                                                                                                                        



attorney's fees to the prosecutors.  He again contends that the fee award would have a  



chilling effect on future litigants, and would "emphasize 'a desire (of the superior court)  

                                                                                                                                                                                                                 



to discourage claims by others against the prevailing party (the State and unscrupulous  

                                                                                                                                                                                              

prosecutors) or its insurer.' "39  

                                                                                 



                                   The superior court discussed in its order whether the fee award would have  

                                                                                                                                                                                                                     



a  chilling  effect  on  future  litigants.                                                            It  reasoned  "that  if  an  individual  is  arrested  

                                                                                                                                                                                                          



improperly and, subsequently, maliciously prosecuted, they will not be deterred from  

                                                                                                                                                                                                                    



litigating their case just because there is some risk that they could . . . be forced to pay  

                                                                                                                                                                                                                       



                 38                See David S. v. Jared H.                                       , 308 P.3d 862, 874-75 (Alaska 2013) (affirming                                                     



an award of attorney's fees against an allegedly indigent litigant);                                                                                                         see also Prentzel v.                           

State, Dep't. of Public Safety                                              , 169 P.3d 573, 595 (Alaska 2007) (same).                                                  



                 39                See Alaska R. Civ. P. 82(b)(3)(I), (J).  

                                                                                                                            



                                                                                                           -13-                                                                                                    7365
  


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

out just over $4,000 in fees." The superior court also distinguished our decision in                                                        David  



S.   v.   Jared   H.,   where we affirmed a reduced                                 fee   award  against a biological father                 

                                                                                                         40   It explained that unlike  

contesting the adoption of his children without his consent.                                                                                



parties in adoption cases who face "only . . . the very real risk of significant financial loss  

                                                                                                                                                 



and no chance at financial gain," Jackson had requested millions of dollars in actual and  

                                                                                                                                                 



punitive damages.  It concluded that "any chilling effect is all but eliminated when the  

                                                                                                                                                  



litigant stands to reap millions of dollars in damages, like Mr. Jackson does, if successful  

                                                                                                                                     



in their suit."  

                         



                       Jackson's argument that the superior court's fee award was designed to  

                                                                                                                                                    



discouragefutureclaimsagainst"unscrupulous prosecutors"seems to misunderstand the  

                                                                                                                                                   



factor he quotes.  Under Rule 82(b)(3)(J), a superior court may consider "the extent to  

                                                                                                                



which the fees incurred by the prevailing party suggest that they had been influenced by  

                                                                                                                                                   



considerations apart from the case at bar, such as a desire to discourage claims by others  

                                                                                                                                             



against the prevailing party or its insurer." This factor asks whether the prevailing party  

                                                                                                                                              



intentionally inflated its legal fees in order to secure a fee award that would discourage  

                                                                                                                                     



future litigation.  But Jackson seems to be arguing that the superior court awarded the  

                                                                                                                                                  



prevailing party fees in order to discourage future litigation. There is no indication in the  

                                                                                                                                                  



record that the prosecutors inflated their legal fees to discourage litigation.  Moreover,  

                                                                                                                                     



there is no evidence in the record that the superior court had an improper motive in  

                                                                                                                                                    



granting the fee award.  The court's request for briefing from Jackson, and its thorough  

                                                                                                                                        



analysis of his arguments, indicate that it was especially sensitive to Jackson's position,  

                                                                                                                                        



not hostile to it.  

                              



            40  

                                                                                                                                      

                       308 P.3d at 874-75.   The father in David S.  also argued his indigence  

                                                                                             

militated against the award of attorney's fees.  Id. at 874.  



                                                                        -14-                                                                       7365  


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

                                                            The   superior   court's   order   contained   a   well-reasoned   analysis   of   our  



previous   decisions   addressing   fee   awards   and  the   relevant   factors   under   Civil  



Rule 82(b)(3).                                                    We conclude that the superior court did not abuse its discretion when it                                                                                                                                                                                                                                               



 awarded the prosecutors attorney's fees.                                                                                                                                             



                                                           Jackson also argues in his reply brief that it is not "proper to make a person                                                                                                                                                                                                                   



pay the State of Alaska legal fees where the person has filed a complaint based on                                                                                                                                                                                                                                                                                                



 deprivation of constitutional rights."                                                                                                                                 Although he cited no authority, this argument                                                                                                                              



 seems to rely on AS 09.60.010(c)(2), which prohibits the assessment of attorney's fees                                                                                                                                                                                                                                                                                      



 against a party asserting constitutional protections if the claim "was not frivolous, and                                                                                                                                                                                                                                      



the claimant did not have sufficient economic incentive to bring the action or appeal                                                                                                                                                                                                                                                                            



regardless   of   the   constitutional   claims   involved."     The   superior  court   found   that  



AS 09.60.010(c)(2) did not apply in this case, because Jackson stood to gain "money                                                                                                                                                                                                                                                                        



 damages numbering in the millions" if his claim succeeded.  Jackson does not dispute  



this finding in his briefing.                                                                                           Since he raises it for the first time in his reply brief, cites no                                                                                                                                                                                         



 authority for support, and does not challenge the determinative finding, we conclude that                                                                                                                                                                                                                                                                                     

Jackson has waived this argument.                                                                                                                         41  



                              C.	                           The  Remaining  Issues  Presented  In  Jackson's  Briefing  Are  Not  

                                                                                                                                                                                                                                                                                                                                                                          

                                                            Properly Before Us.  

                                                                                                                                         



                                                           Jacksonmakes severalarguments that wemaynotconsider onappeal. Two  

                                                                                                                                                                                                                                                                                                                                                                           



 of these concern his civil case:  that the superior court erred when it denied his motion  

                                                                                                                                                                                                                                                                                                                                                               



to continue the stay of his case, and that it erred when it denied his motion for default  

                                                                                                                                                                                                                                                                                                                                                                



                              41                           SeeKollander                                                   v. Kollander,400 P.3d91,                                                                                           94 n.3(Alaska2017)(considering                                                             



 an argument that is only raised cursorily and without citation to authority to be waived);                                                                                                                                                                                                                                                             

Barnett v. Barnett                                                            , 238 P.3d 594, 603 (Alaska 2010) ("[W]e deemwaived any arguments                                                                                                                                                                                                  

raised for the first time in a reply brief . . . .").                                                                                                                             



                                                                                                                                                                                       -15-	                                                                                                                                                                              7365
  


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

judgment against the Borough of Haines.                                                                   Neither order is a final judgment from which                                                       

 Jackson can properly appeal.                                             42  



                                  Jackson also challenges his underlying criminal convictions.  We do not  

                                                                                                                                                                                                                    



 have jurisdiction to directly review Jackson's criminal convictions as a part of his civil  

                                                                                                                                                                                                                 

 appeal.43                We therefore cannot consider the remainder of Jackson's arguments.  

                                                                                                                                                                                                          



 IV.              CONCLUSION  



                                   The superior court's orders granting the prosecutors' motion to dismiss and  

                                                                                                                                                                                                                    



 awarding attorney's fees are AFFIRMED.  

                                                                          



                  42              See   Alaska   R.   App.   P.   202   (allowing  parties   to   appeal   from   "a   final  



judgment entered by the superior court"). "We have defined 'final judgment' as one that                                                                                                                             

 'ends the litigation on the merits and leaves nothing for the court to do but execute the                                                                                                                           

judgment.' "       Wagner v. Wagner                                                  , 205 P.3d 306, 310 (Alaska 2009) (quoting                                                                         Greater  

Anchorage Area Borough v. City of Anchorage                                                                                , 504 P.2d 1027, 1030 (Alaska 1972),                                             

 overruled on other grounds by City & Borough of Juneau v. Thibodeau                                                                                                                   , 494 P.2d 626   

 (Alaska 1979)).                            Neither an order denying a motion to continue a stay nor an order                                                                                                 

 denying a motion for default judgment is an appealable final judgment because neither                                                                                                                     

 terminates the litigation on the merits.                                       



                  43              See AS 22.05.010(b) ("Appeal to the supreme court is a matter of right only  

                                                                                                                                                                                                                  

 in those actions and proceedings from which there is no right of appeal to the court of  

                                                                                                                                                                                         

 appeals . . . or to the superior court . . . .").  Jackson was convicted in the Haines district  

                                                                                                                                                                                                           

 court, and under AS 22.07.020(c) and AS 22.15.240(b) he had a right of appeal to the  

                                                                                                                                                                                                                     

 court of appeals or superior court.  He may not appeal his criminal convictions to this  

                                                                                                                                                                                                            

 court as a matter of right.  

                                                                    



                                                                                                         -16-                                                                                                   7365
  

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