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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Billy Dean Smith and Jacob Lee Anagick v State of Alaska, Department of Corrections, et al. (8/30/2019) sp-7404

Billy Dean Smith and Jacob Lee Anagick v State of Alaska, Department of Corrections, et al. (8/30/2019) sp-7404

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

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                 

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                    

          corrections@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



BILLY  DEAN  SMITH  and  JACOB  LEE  )  

ANAGICK,                                                         )     Supreme  Court  No.  S-16711  

                                                                 )  

                                                                                                                             

                              Appellants,                        )     Superior Court No.  1JU-15-00657 CI  

                                                                 )  

          v.                                                     )                        

                                                                       O P I N I O N  

                                                                 )  

                                     

STATE OF ALASKA, DEPARTMENT                                      )                                          

                                                                       No. 7404 - August 30, 2019  

                                                  

OF CORRECTIONS, NANCY                                            )  

                                                   

DAHLSTROM, Commissioner, Alaska                                  )  

                                                     

Department of Corrections, in her official  )  

                      

capacity, and UNKNOWN                                            )  

                                                             

DEPARTMENT OF CORRECTIONS                                        )  

                                                 

EMPLOYEES, in their official capacities, )  

                                                                 )
  

                              Appellees.                         )
  

                                                                 )
  



                                                                                                         

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

                                                                                             

                    Judicial District, Juneau, Philip M. Pallenberg, Judge.  



                                                                               

                    Appearances:  Billy Dean Smith, pro se, Seward, and Jacob  

                                                                                                    

                    Lee Anagick, pro  se, Kenai, Appellants.  Matthias Cicotte,  

                                                                                                     

                    Assistant         Attorney         General,         Anchorage,           and       Jahna  

                                                                                                       

                    Lindemuth, Attorney General, Juneau, for Appellees.  



                                                                                                         

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

                                                                                  

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



                                       

                    CARNEY, Justice.  


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

I.        INTRODUCTION
  



                                                                                                                            

                    Two prisoners in Alaska Department of Corrections (DOC) custody were  



                                                                                                                

placed  in  administrative  segregation  pending  an  investigation  and   disciplinary  



                                                                                                                             

proceedings related to an alleged escape attempt.  The disciplinary decisions were later  



                                                                                                                               

overturned on appeal to the superior court based on procedural defects.  However, the  



                                                                                                                  

prisoners had lost their Prison Industries jobs because of the administrative segregation  



                                                                                                                        

placements.  They filed a civil suit against two DOC officers in superior court, alleging  



                                                                                                                              

due process violations and seeking damages for lost wages and property.  The case was  



                                                                                                                                

removed   to  federal   court;   the   federal   judge  ruled   that   the  inmates   lacked   a  



                                                                

constitutionally protected interest in their jobs and that the DOC officers were entitled  



                                    

to qualified immunity.  



                                                                                                                               

                    Meanwhile, the prisoners filed another complaint in the superior court, this  



                                                                                                                              

time naming the officers in both their official and individual capacities and raising due  



                                                                                                                          

process claims under both the United States and Alaska Constitutions. After both parties  



                                                                                                                               

cross-moved for summary judgment, the superior court granted summary judgment for  



                                                                                                                               

the DOC officers.  The court found that, although the federal judgment did not bar the  



                                                                                                                          

prisoners' complaint under the doctrine of res judicata, their constitutional claims lacked  



                                                                                                   

merit and the DOC officers were entitled to qualified immunity.  



                                                                                                                      

                    The prisoners appeal, arguing that they have a constitutionally protected  



                                                                                                                                  

interest in their jobs; that this interest was clearly established and therefore precludes a  



                                                                                                                              

qualified immunity defense; that the superior court made various procedural errors; and  



                                                                                                                            

that it did not adequately instruct the unrepresented prisoners on how to pursue their  



                                                                                                                            

claims. Because we find that the administrative segregation hearings conducted by DOC  



                                                                                                                       

satisfied any due process requirements to which the prisoners may have been entitled,  



                                                                                                                   

and because the superior court did not abuse its discretion in any of its procedural  



                                                                                                        

rulings, we affirm the superior court's grant of summary judgment.  



                                                               -2-                                                         7404
  


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

II.                          FACTS AND PROCEEDINGS                                           



                             A.                           Facts  



                                                          Billy Dean Smith and Jacob Lee Anagick are prisoners in DOC custody.                                                                                                                                                                                                                                                           



In 2011 they were housed at Lemon Creek Correctional Center and worked in a Prison                                                                                                                                                                                                                                                                   



Industries program providing laundry services to the Alaska Marine Highway System.                                                                                                                                                                                                                                                                



                                                          On September 12, 2011, Lemon Creek officers conducted a "shakedown,"                                                                                                                                                                                      



or unannounced search, of the prison employment building based on information they                                                                                                                                                                                                                          



had received "concerning a plan of an escape."                                                                                                                                                           According to the incident reports on the                                                                                                                       



"shakedown," DOC officers found potential escape implements - lengths of rope, a                                                                                                                                                                                                                                                                                               



tarp, clothing that had not been issued by Lemon Creek, and a trash bag holding pieces                                                                                                                                                                                                                                                                    



of dry wood and empty condiment bottles - at Smith's and Anagick's work stations.                                                                                                                                                                                                                                                                                                        



The reports do not specify the source of the tip, although Smith and Anagick apparently                                                                                                                                                                                                                                                



believed the informant to be an officer.                                                                                                                                  Smith and Anagick claimed that the informant                                                                                                                    



did not specifically name any of the prisoners allegedly planning to escape.                                                                                                                                                                                                                                                          Smith and   



Anagick have consistently denied any intent or plan to escape.                                                                                                                                                                                                                  



                                                          The   next   day   Lemon   Creek   officers   placed   Smith   and   Anagick   in  

administrative segregation pursuant to 22 Alaska Administrative Code (AAC) 05.485.                                                                                                                                                                                                                                                                                                 1  

                                                                                                                                                                                                                                                                                                                                                                                         

An  administrative  segregation  hearing  was  held  six  days  later.2                                                                                                                                                                                                                                The  classification  

                                                                                                                                                                                                                                                                                                                          



                             1                            Former 22 AAC 05.485(a), (a)(8) (2011) ("A prisoner may be assigned to                                                                                                                                                                                                                                             



administrative segregation if the prisoner . . . represents a substantial immediate threat                                                                                                

to the security of the facility . . . .").                                                                                        



                             2                            22 AAC 05.485(d) requires a classification hearing "no later than three  

                                                                                                                                                                                                                                                                                                                                                              

working days after placement" unless the prisoner requests a continuance or DOC finds  

                                                                                                                                                                                                                                                                                                                                                               

that "exceptional circumstances" provide "good cause" to postpone the hearing for up  

                                                                                                                                                                                                                                                                                                                       

to 24 hours.  "Working days" excludes weekends and holidays; January 17, 2011, was  

                                                                                                                                                                                                                                                                                                                                                                    

Martin Luther King Day.  See 22 AAC 05.660(a)(37) (defining "working day").  Smith  

                                                                                                                                                                                                                                                                                                                                                          

and Anagick do not raise on appeal the fact that their hearing occurred one working day  

                                                                                                                                                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                                                                            (continued...)  



                                                                                                                                                                                     -3-                                                                                                                                                                        7404
  


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

committee   recommended   that   the   prisoners   remain   in   segregation   "[p]ending   the  



outcome of an ongoing investigation," finding that they posed "a substantial risk to the                                                       

                                                                                                                                    3  Lemon  

security of the facility" and "a substantial and immediate threat to the public."                                                       

                                                                                                                                        4   As a  

Creek's superintendent approved the committee's recommendation a day later.                                                                       

                                                                                                                                



result of the administrative segregation placement, Smith and Anagick were terminated  

                                                                                                                                  



from their Prison Industries laundry jobs.  Smith and Anagick were transferred from  

                                                                                                                                            



Lemon Creek to Spring Creek Correctional Center in January 2012.  Officials at Spring  

                                                                                                                                         



Creek reviewed their administrative segregation placements following the transfer and  

                                                                                                                                              



maintained the placements until May 2012.  

                                                                            



                       In related disciplinary proceedings Smith and Anagick were found to have  

                                                                                                                                            



possessed escape implements.  They successfully appealed to the superior court, which  

                                                                                                                                          

                                                                                                                  5  In his appeal to the  

overturned the disciplinary decisions because of procedural defects.                                                                           

                                                                                                      



superior  court  Smith  also  attempted  to  raise  claims  for  lost  wages,  but  the  court  

                                                                                                                                           



concluded that such claims "would have to be brought in a separate civil action."  

                                                                                                                                             



           2           (...continued)
  



later  than  the  regulation  demands.
   



           3           See  22  AAC  05.485(a)(8).  



           4           See  22  AAC  05.485(e).  



           5           The  court  reversed  the  disciplinary  decisions  imposing  punitive  segregation  



because  the  officer  who  allegedly found the  escape  implements  was  not present  at  the  

disciplinary  hearings.   Decision  on  Appeal,  Smith  v.  State,  Dep't  of  Corr.,  No.   1JU-11- 

01012  CI,  at  *6  (Alaska  Super.,  July  24,  2014);  Order  on  Appeal,  Anagick  v.  State,  Dep't  

of   Corr.,  No.   1JU-11-01045   CI,   at   *8   (Alaska   Super.,  May  27,  2014).   See  22  AAC  

05.435(a)  (providing  that  if  prisoner  wishes  to  call  officer  who  wrote  disciplinary  report,  

that  officer  "shall  appear  as  a  witness"  at  disciplinary  hearing);  James  v.  State,  Dep't  of  

Corr.,  260  P.3d  1046,  1052-53  (Alaska 2011)  (reaffirming  prisoner's  state constitutional  

due  process  right  to  cross-examine  witnesses  at  disciplinary  hearing).  



                                                                        -4-                                                                7404
  


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

                                In September 2013, with their disciplinary appeals pending, Smith and                                                                                  



Anagick filed a civil rights action in superior court under 42 U.S.C.  1983 against the                                                                                                                 



                                                                                                                                                                                                               6  

Lemon Creek superintendent and a correctional officer in their individual capacities.                                                                                                                              



                                                                                                                                                                                 

They alleged various procedural defects in the administrative segregation classification  



                                                                                                                                                                                               

process.  The defendants removed the case to federal court in December 2013.  



                B.              Proceedings  



                                 1.             Complaint  



                                                                                                                                                                                                    

                                Smith and Anagick filed another complaint in state superior court in April  



                                                                                                                                                                                                    

2015 while the federal case was still pending.   They named as defendants the DOC  



                                                                                                                                                          

commissioner and "unknown" DOC employees - whom they believed might include  



                                                                                                                                                                                                      

the Lemon Creek correctional officer and superintendent previously sued - in their  

                                                                                    7     They  alleged  that they  had a liberty  interest in  

                                                                                                                                                                                                           

individual and  official  capacities. 



continued participation in their laundry jobs under the Alaska Constitution.  They also  

                                                                                                                                                                                                       



                6               42 U.S.C.  1983 provides: "Every 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 . . . to the deprivation of any rights, privileges,                                                                                         

or immunities secured by the Constitution and laws, shall be liable to the party injured                                                                                                        

in an action at law, suit in equity, or other proper proceeding for redress . . . ."                                                                                                  



                7               DOC proceeded as if it were a defendant in the case, though the complaint  

                                                                                                                                                                                         

did not name it and it does not appear that the attorney general certified DOC as a  

                                                                                                                                                                                                              

defendant in the officers' place.  See AS 09.50.253 (providing that suit against state  

                                                                                                                                                                                                     

employeeis treated as proceeding against Stateifattorney general certifies thatemployee  

                                                                                                                                                                                          

acted within scope of his or her employment).   The court also assumed DOC was a  

                                                                                                                                                                                                              

defendant.  Although Smith and Anagick did not list DOC in the caption in superior  

                                                                                                                                                                                            

court, they treated DOC as a defendant in the body of their arguments, and their brief on  

                                                                                                                                                                                                           

appeal lists DOC as a party.  When the DOC commissioner changed and DOC moved  

                                                  

to substitutethenewcommissioner as adefendant, Smith and Anagick agreed,conceding  

                                                                                                                                                                                        

that they were pursuing claims against the commissioner only in his official capacity.  

                                                                                                                                                                                                                   

We thus evaluate Smith and Anagick's arguments on appeal as they apply against DOC  

                                                                                                                                                                                                    

and its current commissioner in her official capacity.  

                                                                                                          



                                                                                                     -5-                                                                                             7404
  


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

alleged   that   by   failing   to   hold   specific   job   termination   hearings  separate   from   the  



administrative   segregation   classification   hearings,   DOC   had   violated  Smith's   and  

                                                                                                                 8  their right to petition  

Anagick's due process rights under the Fourteenth Amendment,                                                                               

                                                                                                                                    9  and  their  

the  court  for  a  redress  of  their  grievances  under  the  First  Amendment,                                                              

                                                                                                             

confrontation rights under the Sixth Amendment.10                                             Smith and Anagick sought back  

                                                                                                                                                

wages and punitive damages.11  

                                                        



                       2.          Relevant motions  

                                                      



                       Two  of  the  issues  raised  in  the  motions  before  the  superior  court  are  

                                                                                                                                                  



relevant to Smith and Anagick's appeal.  First, in February 2016 Smith and Anagick  

                                                                                                                                         



moved to sanction DOC and its employees for spoliation of video evidence.   They  

                                                                                                                                              



asserted that DOC improperly failed to preserve videos of the September 2011 search of  

                                                                                                                                                     



the  Lemon  Creek  prison  employment  program  building,  as  well  as  tapes  from the  

                                                                                                                                                  



subsequent administrative segregation hearings.  They claimed the videos of the search  

                                                                                                                                             



would have shown that the escape implements were "not found where an 'unknown'  

                                                                                                                                     



            8          See  U.S. Const. amend XIV,  1 ("No State shall . . . deprive any person of                                                  



life, liberty, or property, without due process of law . . . .").                                  



            9          See U.S. Const. amend. I ("Congress shall make no law . . . abridging . . .  

                                                                                                                                                       

the right of the people peaceably to assemble, and to petition the Government for a  

                                                                                                                                                      

redress of grievances."); Cal. Motor Transp. Co. v. Trucking Unltd., 404 U.S. 508, 513  

                                                                                                                                                  

(1972)  (recognizing  that  the  First  Amendment  protects  "the  right  of  access  to  the  

                                                                                                                                                  

agencies and the courts").  

                               



            10         See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall  

                                                                                                                                                

enjoy the right . . . to be confronted with the witnesses against him . . . .").  

                                                                                                                             



            11         They also sought thereturn ofvideogameconsoles and games they claimed  

                                                                                                                                           

had been improperly seized, but these claims are not at issue on appeal.  

                                                                                                                               



                                                                         -6-                                                                   7404
  


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

                                                                                                                                                                           12  

officer allegedly 'found' " them, which was at Smith's and Anagick's workstations.                                                                                              



                                                                                                                                                           

Smith and Anagick argued that DOC officers had allowed the videos to be destroyed  



                                                                                                                                                      

knowing  that  the  prisoners  planned  to  challenge  their  administrative  segregation  



                                                                                                                                                                       

placements and would need the videos as evidence. They requested that "spoliation jury  



                                                                                                                                                                

instructions" be given at trial.  In September 2016 the superior court granted the motion  



                                                                                                                                                                      

in part:  interpreting "spoliation jury instructions" as "an instruction directing the jury  



                                                                                                                                                                    

to presume that lost evidence would have been favorable to the plaintiffs," the court  



                                                                                                                                                   13  

                                                                                                                                                        

stated that it would give such an instruction if the case proceeded to trial. 



                           Second, in March 2016 Smith and Anagick notified the superior court that  

                                                                                                                                                                       

they had filed another civil suit against DOC officers, Smith v. Busby.14                                                                             In July they  

                                                                                                                                                                      



moved to consolidate that case with this one. The court denied their motion, finding that  

                                                                                                                                                                       



consolidation would be premature because the filing fee in Busby had not been paid and  

                                                                                                                                                                       



because not all the Busby  defendants had been served with pleadings from this case.  

                                                                                                                                                                                



Smith responded with an affidavit stating that the filing fee was "paid in full" prior to the  

                                                                                                                                                                         



denial of the motion to consolidate.  However, it does not appear that he and Anagick  

                                                                                                                                                             



renewed their motion or sought reconsideration.  

                                                                                                   



              12           Thevideosofthesearch wereapparentlydestroyedbecauseLemon Creek's                                                                     



recording equipment automatically recorded over its surveillance footage every 30 days                                                                                

unless prison staff manually backed it up to a computer, which they did not.                                                                               



              13           See Thorne v. Dep't of Pub. Safety, 774 P.2d 1326, 1331 (Alaska 1989)  

                                                                                                                                                                   

(holding that where State's failure to preserve video evidence deprived plaintiff of due  

                                                                                                                                                                       

process, appropriate sanction was to "remand . . . with directions to presume that the  

                                                                                                                                                                        

videotape would have been favorable to [plaintiff]").  

                                                                                   



              14           Complaint, Smith v. Busby, No. 1JU-16-00630 CI (Alaska Super., May 18,  

                                                                                                                                                                         

2016).  



                                                                                    -7-                                                                             7404
  


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

                         3.           Summary judgment   



                         In late March 2016 the federal district court granted summary judgment in                                                              



                                                                                                                              15  

favor of the DOC officers being sued in their individual capacities.                                                                                      

                                                                                                                                   The federal court  



                                                                                                                                                   

concluded that:  Smith and Anagick did not have a protected liberty interest in avoiding  



                                                                                                                           16  

                                                                                                                                                                  

administrative segregation under the United States Constitution;                                                               they did not have a  



                                                                                                                                                  17  

                                                                                                                                                              

state-created liberty interest that would entitle them to due process protection;                                                                     and the  



                                                                                                

DOC officers were entitled to qualified immunity because any relevant liberty interest  



                                                                                                                    18  

                                                                                                                         

the prisoners might have claimed was not clearly established. 



             15          Smith v. Corcoran, No. 1:13-cv-00010-TMB (D. Alaska Mar. 30, 2016),                            



aff'd by Smith v. Corcoran                         , 716 F. App'x 656 (9th Cir. 2018) (mem.).                         



             16          See,  e.g.,   Wilkinson  v.  Austin,  545  U.S.  209,  221  (2005)  ("[T]he  

                                                                                                                                                    

Constitution itself does not give rise to a liberty interest in avoiding transfer to more  

                                                                                                                                                          

adverse conditions of confinement."); Hewitt v. Helms, 459 U.S. 460, 467-68 (1983)  

                                                                                                                                                       

(holding that "narrow range of protected liberty interests" retained by prisoners under  

                                                                                                                                                         

Fourteenth Amendment's due process clause did not include interest in remaining in  

                                                                                                                                           

general population and avoiding administrative segregation), abrogated in part on other  

                                                                                                                                                          

grounds by Sandin v. Connor, 515 U.S. 472, 482-84 (1995).  

                                                                                                                    



             17          See Sandin, 515 U.S. at 484.   While state statutes and regulations may  

                                                                                                                                                           

"create liberty interests which are protected by the Due Process Clause," these interests  

                                                                                                                                                    

are limited to avoiding forms of restraint that "impose[] atypical and significant hardship  

                                                                                                                                                    

on the inmate in relation to the ordinary incidents of prison life."  Id.  The district court  

                                                                                                                                                          

reasoned that although conditions in administrative segregation were "more restrictive  

                                                                                                                                                 

than for general population inmates," the deprivations Smith and Anagick faced "[did]  

                                                                                                                                                         

not amount to a 'dramatic departure' " from typical conditions and thus did not warrant  

                                                                                                                                                      

additional due process protections.  

                                                                    



             18          Underfederal law, "qualifiedimmunity protectsgovernmentofficials'from  

                                                                                                                                                          

liability for civil damages insofar as their conduct does not violate clearly established  

                                                                                                                                               

statutory or constitutional rights . . . .' " Pearson v. Callahan, 555 U.S. 223, 231 (2009)  

                                                                                                                                                       

(quoting  Harlow  v.  Fitzgerald,  457  U.S.  800,  818  (1982)).                                                            A  right  is  "clearly  

                                                                                                                                              

established" only if "[t]he contours of the right [are] sufficiently clear that a reasonable  

                                                                                                                                                

                                                                                                                                          (continued...)  



                                                                               -8-                                                                        7404
  


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

                         About three weeks after the federal district court's decision, Smith and                                                            



Anagick moved for summary judgment in their state superior court case.                                                                   They asserted   



that their laundry jobs were rehabilitative and that under                                                Ferguson v. State, Department       

                                                                                                                                                     19  They  

 of Corrections             they were entitled to due process before they could be terminated.                                                             



 argued  that  due  process  violations  at  their  administrative  segregation  hearings  had  

                                                                                                                                                            



 deprived them not only of their jobs but of property and wages.  They also seemed to  

                                                                                                                                                                



 assert, apparently for the first time, that DOC failed to properly train officers, although  

                                                                                                                                                   

the factual basis for this claim is unclear.20                                         Finally, they raised a new spoliation of  

                                                                                                                                                                



 evidence claim, asserting that DOC employees had destroyed employment contracts  

                                                                                                                                                  



 Smith and Anagick had signed in 2010 and 2011 for their laundry jobs.  

                                                                                                                                          



                          In June 2016 DOC and the officer defendants cross-moved for summary  

                                                                                                                                                  



judgment.  They argued that:  any claims related to job termination and property loss  

                                                                                                                                                            

were barred by res judicata because of the federal court decision;21 the laundry jobs were  

                                                                                                                                                           



             18           (...continued)  



                                                                                                                                                             

 official would understand that what he is doing violates that right." Saucier v. Katz, 533  

                                                                                                                                                    

U.S.  194, 202 (2001) (quoting Anderson v. Creighton , 483 U.S. 635, 640 (1987)),  

                                                                                                                             

abrogated in part on other grounds by Pearson, 555 U.S. at 236.  



             19          See 816 P.2d 134, 139-40 (Alaska 1991) (acknowledging that "prisoners  

                                                                                                                                                

have  an  enforceable  [state  constitutional]  interest  in  continued  participation  in  

                                                                                                                                                              

rehabilitation programs," and thus cannot be terminated from such programs "without  

                                                                                                                      

 a measure of due process of law").  

                                                       



             20           Smith and Anagick asserted only that "[h]ad the training been proper the  

                                                                                                                                                              

 [u]nknown [d]efendant would have been properly trained to identify" himself or herself.  

                                                                                                                                                                      

 They  may  be  referring  to  the  fact  that  the  officer  informant  whose  tip  led  to  the  

                                                                                                                                                             

 September 2011 search was never identified.  

                                                                                        



             21           The doctrine of res judicata bars relitigation of an action if "(1) a final  

                                                                                                                                                           

judgment on the merits [has been issued], (2) [by] a court of competent jurisdiction, (3)  

                                                                                                                                                               

 in a dispute between the same parties (or their privies) about the same cause of action."  

                                                                                                                                                                      

                                                                                                                                          (continued...)  



                                                                               -9-                                                                        7404
  


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

not rehabilitative and thus not subject to federal or state due process protections; the First                                                                                                                                                                                                                                                                    



and Sixth Amendments did not apply to Smith and Anagick's claims; the inmates had                                                                                                                                                                                                                                                                                    



failed to properly plead a "negligent training" claim; and the DOC officers were entitled                                                                                                                                                                                                                                                            



to qualified immunity.                                                                             



                                                          Smith and Anagick opposed DOC's cross-motion, raising for the first time                                                                                                                                                                                                                                



a claim that DOC had breached the employment contracts it had executed with them by                                                                                                                                                                                                                                                                                       



terminating them from their jobs without notice and a hearing. DOC filed a reply; Smith                                                                                                                                                                                                                                                                     



and Anagick then filed a responsive pleading, which the court treated as a sur-reply.                                                                                                                                                                                                                                                                                    In  



response to DOC's argument in its reply that they lacked a viable contract claim, they                                                                                                                                                                                                        



argued that to the extent their complaint was "procedurally defective," the court should                                                                                                                                                                                                                                                                



treat their sur-reply as a motion for leave to amend. They contended that res judicata did                                                                                                                                                                                                                                                                              



not bar their contract claims because those claims "were not ripe for litigation" until their                                                                                                                                                                                                                                                                    



disciplinary appeals were resolved, which did not occur until after the federal case was                                                                                                                                                                                                                                                                            



filed.  They also asserted that DOC had violated its own policy, which requires notice                                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                                                                                                                                   22           They  

and a hearing, if requested, prior to termination from rehabilitative programs.                                                                                                                                                                                                                                                                             



argued that the "administrative segregation exception" to this policy should not apply  

                                                                                                                                                                                                                                                                                                                                                            



because the segregation hearings had not provided "all the [d]ue [p]rocess requisites"  

                                                                                                                                                                                                                                                                                                                                      



that a job termination hearing under DOC policy should provide.  

                                                                                                                                                                                                                                                                                           



                                                          Following oral argument on the summary judgment cross-motions, the  

                                                                                                                                                                                                                                                                                                                                                                      



 superior court granted summary judgment to DOC and its officers in April 2017.  The  

                                                                                                                                                                                                                                                                                                                                      



court determined that res judicata did not bar Smith and Anagick's claims, but concluded  

                                                                                                                                                                                                                                                                                                                                         



                             21                           (...continued)  



                                                                                                                                                                                                                                                                                                                                                          

 Conitz v. Alaska State Comm'n for Human Rights, 325 P.3d 501, 507 (Alaska 2014)  

                                                                                                                                                                                                                                        

(quoting Angleton v. Cox , 238 P.3d 610, 614 (Alaska 2010)).  



                             22                           See  STATE    OF    ALASKA,    DEP 'T    OF    CORR.,    POLICIES    &    PROCEDURES  

                                                                           

 808.04   VII(D)(4) (2014), www.correct.state.ak.us/pnp/pdf/808.04.pdf.                                                



                                                                                                                                                                                  -10-                                                                                                                                                                          7404
  


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

that they did not have a protected liberty interest in their jobs because they had not                                                                 



                                                                                                                  23  

 established that the jobs were "rehabilitative" under                                         Ferguson .                     

                                                                                                                       As a result, the court  



                                                                                                                                                       

 concluded that the administrative segregation placements and job terminations had not  



                                                                                                                                             

violated due process.  The court also determined that Smith and Anagick's First and  



                                                                                                                                                          

 Sixth  Amendment  claims  lacked  merit  and  that  the  prisoners  had  failed  to  state  a  



                                                                                                                                               

 cognizable claim for loss of property.  Finally, the court found that the DOC officers  



                                                                                                                                             

were entitled to qualified immunity for both the federal and state law claims.  



                                                                                                                                         

                         Smith and Anagick appeal, arguing that they do have a clearly established  



                                                                                                                                                

liberty interest in their jobs under Ferguson and that the superior court made various  



                                   

procedural errors.  



                                                 

III.         STANDARDS OF REVIEW  



                                                                                                                                                        

                         "We review a grant of summary judgment de novo[,] . . . review[ing] the  



                                                                                                                                                

 facts in the light most favorable to the non-moving party and draw[ing] all factual  

                                                                                   24    We will uphold a grant of summary  

                                                                                                                                            

inferences in the non-moving party's favor." 



judgment "if there are 'no genuine issues of material fact and the moving party is entitled  

                                                                                                                                                

to judgment as a matter of law.' "25                                 While "[t]he evidentiary threshold necessary to  

                                                                                                                                                         

preclude the entry  of  summary  judgment is low,"26   the evidence cannot be "based  

                                                                                                                                                



 entirely on 'unsupported assumptions and speculation' and must not be 'too incredible  

                                                                                                                                           



            23          See Ferguson             , 816 P.2d at 139-40.                   



            24          Achman v. State               , 323 P.3d 1123, 1126 (Alaska 2014) (quoting                                       Kalenka v.   



                                                                         

Jadon, Inc., 305 P.3d 346, 349 (Alaska 2013)).  



            25           Wright v. Anding, 390 P.3d 1162, 1169 (Alaska 2017) (quoting Hymes v.  

                                                                                                                                                          

DeRamus, 119 P.3d 963, 965 (Alaska 2005)).  

                                                                                     



            26          Lum v. Koles, 426 P.3d 1103, 1109 (Alaska 2018) (quoting Crawford v.  

                                                                                                                                                          

Kemp, 139 P.3d 1249, 1253 (Alaska 2006)).  

                                                                    



                                                                           -11-                                                                    7404
  


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

to be believed by reasonable minds.' "                                27  



                                                                                                                                                          28  

                                                                                                                                                               

                        "We review issues concerning constitutional rights of inmates de novo." 



"Whether an inmate has received procedural due process is an issue of constitutional law  

                                                                                                                                                       

                                             29   We also review de novo "[t]he applicability of both state and  

that we review de novo."                                                                                                                               

                                 

federal immunity."30  

               



                        We  "review the denial of a motion to  amend a pleading  for abuse  of  

                                                                                                                                                         

discretion."31   An abuse of discretion occurs "when the decision on review is manifestly  

                                                                                                                                          



unreasonable,"  but  the  trial  court  has  discretion  to  "deny  such  a  motion  where  

                                                                                                                                                 



amendment  would  be  futile  because  it  advances  a  claim or  defense  that  is  legally  

                                                                                                                                                

insufficient on its face."32  "We use our independent judgment to determine whether such  

                                                                                                                                                     

an amendment would be legally insufficient."33  

                                                            



                                                                                                                                                          34  

                        "We review the denial of a motion to consolidate for abuse of discretion."                                                             

                                                                                                                                      



The abuse of discretion standard also applies to the superior court's "decisions about  

                                                                                                                                                   



            27          Id. (quoting  Christensen v. Alaska Sales & Serv., Inc.                                          , 335 P.3d 514, 520     



(Alaska 2014) (first quoting                         Peterson v. State, Dep't of Nat. Res.                              , 236 P.3d 355, 367           

(Alaska 2010); then quoting                          Wilson v. Pollet            , 416 P.2d 381, 384 (Alaska 1966))).                 



            28          Simmons v. State, Dep't of Corr., 426 P.3d 1011, 1015 (Alaska 2018).  

                                                                                                                                            



            29           Walker v. State, Dep't of Corr., 421 P.3d 74, 81 (Alaska 2018) (quoting  

                                                                                                                                              

James v. State, Dep't of Corr., 260 P.3d 1046, 1050 (Alaska 2011)).  

                                                                                                                              



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

                                                                                                                             



            31          Lingley v. Alaska Airlines, Inc., 373 P.3d 506, 511 (Alaska 2016) (quoting  

                                                                                                                                              

Patterson v. GEICO Gen. Ins. Co., 347 P.3d 562, 568 (Alaska 2015)).  

                                                                                                                   



            32          Id. (first quoting Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc.,  

                                                                                                                                                     

355 P.3d 503, 508 (Alaska 2015); then quoting Patterson, 347 P.3d at 568).  

                                                                                                                                            



            33          Id.  



            34          Moffitt v. Moffitt, 341 P.3d 1102, 1104 (Alaska 2014).  

                                                                                                               



                                                                           -12-                                                                    7404
  


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

                                                  35  

guidance to a pro se litigant."                       "An abuse of discretion exists when a party has been                               

deprived of a substantial right or seriously prejudiced" as a result of the court's ruling.                                                   36  



IV.        DISCUSSION  



                                                                                                    

           A.         Smith And Anagick Were Not Denied Due Process.  



                                                                                                                              

                       Smith and Anagick rely on Ferguson v. State, Department of Corrections  



                                                                                                                                          

to argue that their laundry jobs were rehabilitative and that, as a result, they had a state  



                                                                           37  

                                                                                                                                              

constitutional interest in retaining those jobs.                               They contend that they were entitled to  



                                                                                                                                     

notice and separate job termination hearings prior to their removal from the Alaska  



                                                                                                                                            

Marine Highway Systemlaundry programand that DOC denied themdue process by not  



                                                                                                                         

holding such hearings.   In Ferguson  we held that prisoners' right to rehabilitation,  



                                                                                                                                         

guaranteed by the Alaska Constitution, includes the right not to be terminated from  



                                                                         38  

                                                                                                                                 

rehabilitativeprogramswithout due process.                                   We recognize that Smith's andAnagick's  



                                                                                                                                       

laundry jobs appear to share some of the characteristics we have previously found  



                                                                                               39  

                                                                                                                                 

relevant  in  determining  a  program to  be  rehabilitative.                                        But  we  do  not  reach  the  



           35         Limeres  v.  Limeres,  367  P.3d  683,  687  (Alaska  2016)  (quoting  Greenway  



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



           36         Id.  (quoting  Limeres  v.  Limeres,  320  P.3d  291,  296  (Alaska  2014)).   



           37         See  816  P.2d   134,   139-40  (Alaska   1991).   



           38         Id. ;  see Alaska Const. art I,  12 (providing that one aim of penal system  



is  "the  principle  of  reformation").  



           39         See Ferguson, 816 P.2d.  at  140 (concluding that because program was  

                                                                                                                                           

"voluntary, require[d] application and approval, and confer[red] special privileges," it  

                                                                                                              

was rehabilitative, and prisoner could not be removed from it "without a measure of due  

                                                                                                                                            

process").  The laundry jobs were located in a separate building, paid better and offered  

                                                                                                                                     

more  benefits  than  other  prison  jobs,  and  may  have  required  an  application  or  

                                                                                                                        

recommendation for hire.  Smith and Anagick argue that the laundry program, like the  

                                                                                                                                            

                                                                                                                          (continued...)  



                                                                     -13-                                                               7404
  


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

 question whether Smith and Anagick had a protected property or liberty interest in their                                                                                



jobs because, even assuming they did, we conclude they received due process.                                                                      



                            We have previously considered prisoners' due process claims under the                                                                           

                                           40                                41    This test requires us to consider three factors:  

                                               balancing test.                                                                                                    

Mathews v. Eldridge                                                   



                            First, the private interest that will be affected by the official  

                                                                                                                                 

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

                                                                                                                                              

                            interest through the procedures used, and the probable value,  

                                                                                                                                           

                            if any, of additional or substitute procedural safeguards; and  

                                                                                                                                                

                            [third], the [State]'s interest, including the function involved  

                                                                                                                                     

                            and the fiscal and administrative burdens that the additional  

                                                                                                                                   

                            or substitute procedural requirement would entail.[42]  

                                                                                                                       



                            Smith and Anagick assert a private interest in their continued participation  

                                                                                                                                                         



 in jobs that they characterize as rehabilitative.  But even assuming that their jobs were  



rehabilitative and thus subject to constitutional due process protections, the proceedings  

                                                                                                                                                          



 for their placement in administrative segregation satisfied any due process requirements  

                                                                                                                                                        



that  might  have  attached  to  their  interest  in  retaining  their  jobs.                                                                     The  applicable  

                                                                                                                                                            



regulation provides that a prisoner placed in administrative segregation must be given  

                                                                                                                                                                       



 a classification hearing "no later than three working days after placement" unless the  

                                                                                                                                                                            



prisoner requests a continuance or DOC establishes good cause to postpone the hearing  

                                                                                                                                                                   



              39            (...continued)  



                                                                                                               

program in Ferguson, is therefore rehabilitative.  See id.  



              40            424 U.S. 319 (1976).         



              41            See Barber v. Schmidt, 354 P.3d 158, 161-62 (Alaska 2015) (applying  

                                                                                                                                                              

Mathews test to prisoner's motion for right to counsel in proceedings challenging DOC's  

                                                                                                                                                                     

restrictions on possession of certain video games).  

                                                                                         



              42            Mathews, 424 U.S. at 335.  

                                                                          



                                                                                     -14-                                                                               7404
  


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

                                     43  

by up to 24 hours.                        Smith and Anagick were given such a hearing; within days of their                                                               



placement in administrative segregation, a classification committee determined that they                                                                                   



posed "a substantial risk to the security of the facility" and that the placement was                                                                                      

                         44       The  superintendent  approved  the  committee's  recommendation  as  

appropriate.                                                                                                                                                                  

required by regulation.45  

                                                      



                            To  the  extent  that  Smith  and  Anagick  argue  that  separate  termination  

                                                                                                                                                           



hearings would have provided procedural protections greater than those they received  

                                                                                                                                                                  



at the administrative segregation hearings, there is no evidence in the record to support  

                                                                                                                                                                    



that.  DOC's policies and procedures indicate rather that removal from rehabilitative  

                                                                                                                                                        



programs involves procedures almost identical to those for placement in administrative  

                                                                                                                                                      



segregation:   notice of the reason for removal and a classification hearing before a  

                                                                                                                                                                                 

                                                                                                                                                                46  In fact,  

committee or hearing officer whose decision is reviewed by the superintendent.                                                                                             

                                                                                                                                 



procedural protections for administrative segregationplacement appear more protective:  

                                                                                                                                                                                     



22 AAC 05.485 provides that "a prisoner must be granted a classification hearing as soon  

                                                                                                                                                                          



as possible" when placed into administrative segregation, and that the superintendent  

                                                                                                                                                     



              43            22 AAC 05.485(d).                         



              44            See   former   22   AAC   05.485(a)(8)   (2011)   (authorizing   administrative  



segregation if prisoner "represents a substantial immediate threat to the security of the  

                                                                                                                                                                             

facility");  see also supra                         note 2.   



              45            See 22 AAC 05.485(e); 22 AAC 05.212(e).  

                                                                                                 



              46            Compare  22  AAC  05.485(b)-(f)  (providing  that  prisoner  assigned  to  

                                                                                                                                                                              

administrative  segregation  is  entitled  to  notice  of  reason  for  confinement,  timely  

                                                                                                                                                                     

classification  hearing  before  classification  committee,  and  review  of  placement  by  

                                                                                                                                                                             

superintendent), with  STATE OF                                     ALASKA, D               EP 'T OF          CORR., P           OLICIES   & P            ROCEDURES  

                                              

808.04  VII(D), www.correct.state.ak.us/pnp/pdf/808.04.pdf (providing that prisoner                                                                     

facing removal from rehabilitative program is entitled to notice, may request a hearing,                                                                          

and   may   have   decision   of   hearing   officer   or   classification   committee   reviewed   by  

superintendent).  



                                                                                     -15-                                                                                7404
  


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

                                                  47  

must reviewthedecision,                               whileDOC's policyfor removal fromrehabilitativeprograms                                               



provides that a prisoner                       may  request a hearing and may ask the superintendent to review                                                  

                         48    The "probable value, if any, of [the] additional or substitute procedural  

the decision.                                                                                                                                           



safeguards"  that  Smith  and  Anagick  seek  would  therefore  be  minimal,  if  not  

                                                                                                                                                                      

nonexistent.49  



                           In addition, relevant DOC policies and procedures appear to contemplate  

                                                                                                                                                     



termination   from  a   rehabilitative   program  as   a   consequence   of   placement   in  

                                                                                                                                                                        



administrative segregation without the need for an additional hearing.  Policy 808.04  

                                                                                                                                                                



governs removal of prisoners from rehabilitative and court-ordered treatment programs  

                                                                                                                                                           



and generally requires a notice of intent and opportunity for a classification hearing prior  

                                                                                                                                                                    

to removal.50                But section VII(A) of the policy indicates that such procedures are not  

                                                                                                                                                                       



required in the case of "removal as a necessary condition of the prisoner's placement in  

                                                                                                                                                                          

administrative segregation."51                                That is exactly what happened here:  Smith and Anagick  

                                                                                                                                                             



were  removed  from  their  jobs  as  a  direct  consequence  of  their  placement  in  

                                                                                                                                                                        



administrative segregation.  

                               



                           Smith and Anagick assert that the administrative segregation classification  

                                                                                                                                                    



hearings did not provide adequate process with respect to their job terminations because  

                                                                                                                                                              



             47            22 AAC 05.485(d)-(e) (emphasis added).                              



             48  

                                                                      

                           22  AAC  05.485(d);  STATE   OF   ALASKA, D                                              EP 'T   OF   CORR., P               OLICIES  &  

PROCEDURES    808.04        VII(D)(4)(a)-(c)    (2014),   www.correct.state.ak.us/pnp/pdf/  

808.04.pdf.   



             49           Mathews v. Eldridge, 424 U.S. 319, 335 (1976).  

                                                                                                             



             50            STATE            OF      ALASKA,                DEP 'T          OF      CORR.,            POLICIES              &       PROCEDURES  



808.04   VII(D)(2), (4) (2014), www.correct.state.ak.us/pnp/pdf/808.04.pdf.         



             51            Id.   VII(A)(1).  

                                                            



                                                                                   -16-                                                                            7404
  


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

"those hearing . . . decisions [were] based on the unverified hearsay of an unknown                                                                                      



officer." But to the extent that Smith and Anagick argue that the use of hearsay violated                                                                                    

                                                                                                               52 we note that the Sixth Amendment  

their Sixth Amendment right to confront witnesses,                                                                                                                 

                                                                                 53    And while prisoners have a due process right  

does not apply to civil proceedings.                                                                                                                                                

                                                     



under the Alaska Constitution to confront adverse witnesses in disciplinary hearings  

                                                                                                                                                                           

when  they  face  punitive  segregation,54                                                    we  have  not  extended  this  protection  to  

                                                                                                                                                                                        



administrativesegregationhearings or hearingsconcerning removalfromarehabilitative  

                                                                                                                                                                 



program.                  And  nothing  in  the  statutes,  regulations,  or  DOC  policies  governing  

                                                                                                                                                                      



administrative segregation or termination from rehabilitative programs prohibits the use  

                                                                                                                                                                                       

of hearsay in those proceedings.55  

                                           



               52            The Sixth Amendment states:                                         "In all criminal prosecutions, the accused                                  



shall enjoy the right . . . to be confronted with the witnesses against him . . . ."                                                                                               U.S.  

Const. amend. VI.                 



               53            Patterson v. GEICO Gen. Ins. Co., 347 P.3d 562, 574 n.33 (Alaska 2015);  

                                                                                                                                                                                

see U.S. Const. amend. VI (specifying that it applies "[i]n all criminal prosecutions"  

                                                                                                                                   

(emphasis added)).  

                        



               54            See James v. State, Dep't of Corr., 260 P.3d 1046, 1052-53 (Alaska 2011);  

                                                                                                                                                                                

22 AAC 05.435(a) (providing that if prisoner wishes to call as witness at disciplinary  

                                                                                                                                                                    

proceeding "the member of the facility staff who wrote the disciplinary report, the staff  

                                                                                                                                                                                     

member shall appear as a witness").  

                                                         



               55            See 22 AAC 05.485(e) (providing that classification committee or hearing  

                                                                                                                                                                              

officer has burden of establishing that inmate meets at least one of criteria justifying  

                                                                                                                                                                         

administrativesegregationand that committeerecommendation"must includethefactual  

                                                                                                                                                                                

findings  and  evidence  relied  upon  in  sufficient  detail"  to  support  review,  but  not  

                                                                                                                                                                                      

imposing specific evidentiary rules); STATE OF                                                          ALASKA, D                 EP 'T OF  CORR., P                    OLICIES  &  

                                                                                   

PROCEDURES  808.04  VII(D)(4) (2014), www.correct.state.ak.us/pnp/pdf/808.04.pdf            

(entitling   prisoners   to   notice   of   reason   for   proposed   removal   from   educational   or  

vocational program and to "classification hearing" but specifying no bar on use of                                                                                                       

hearsay at hearing).     



                                                                                           -17-                                                                                    7404
  


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

                                         We conclude that Smith and Anagick received adequate process prior to                                                                                                                                  



 their termination from the laundry jobs via the administrative segregation classification                                                                                                                                      



 hearings.   Even assuming that they had a protected liberty interest in their jobs under                                                                                                                                                             



Ferguson, the administrative segregation hearings satisfied any due process to which the                                                                                                                                                                       



 prisoners may have been constitutionally entitled.                                                                                                           We therefore affirm the superior                                                

 court's award of summary judgment to DOC.                                                                                                 56  



                     B.	                 The Superior Court Did Not Abuse Its Discretion By Denying Smith  

                                                                                                                                                                                                            

                                         And Anagick's Motions To Amend Their Complaint And Consolidate  

                                                                                                                                                                                                                                 

                                         Cases.  



                                          1.	                 The   superior   court   did   not   abuse   its   discretion   by   not  

                                                                                                                                                                                                                                                          

                                                             instructing  or  allowing  Smith  and  Anagick  to  amend  their  

                                                                                                                                                                                                                                                      

                                                              complaint.  

                                                                                                  



                                          Smith and Anagick argue that the superior court "erred by not allowing  

                                                                                                                                                                                                                                            



 [them]  to  amend  their  pro  se  complaint  to  survive  summary  judgment."                                                                                                                                                                  In  their  

                                                                                                                                                                                                                                                        



 summary  judgment  motion,  their  opposition  to  DOC's  cross-motion  for  summary  

                                                                                                                                                                                                                                          



judgment, and their sur-reply to DOC's reply to their opposition, Smith and Anagick  

                                                                                                                                                                                                                                             



 raised a number of claims in addition to those pled in their complaint. They claimed that  

                                                                                                                                                                                                                                                            



 DOC was "responsible for the lack of training" of an "unknown" DOC employee, which  

                                                                                                                                                                                                                                                     



 the parties later characterized as a negligent training claim; breach of an employment  

                                                                                                                                                                                                                        



 contract that provided for notice and hearing prior to termination; and spoliation of  

                                                                                                                                                                                                                                                                



                     56                   Since   "[w]e   may   affirm   a   grant   of   summary   judgment  on  any   basis  



 appearing in the record,"                                                      Perotti v. Corrs. Corp. of Am.                                                                  , 290 P.3d 403, 407 (Alaska                                    

 2012) (quoting                                DeNardo v. GCI Commc'n Corp.                                                                          , 983 P.2d 1288, 1290 (Alaska 1999)),                                                        

 andbecauseweconcludethat                                                                Smith and Anagick received adequateprocess and suffered                                                                                               

 no constitutional violation, we do not reach the DOC officers' argument that the superior                                                                                                                                                     

 court was correct to conclude they were entitled to qualified immunity.                                                                                                                                            See Diaz v. State,                 

Dep't of Corr.                               , 239 P.3d 723, 732 n.47 (Alaska 2010) (declining to address qualified                                                                                                                         

 immunity question after concludingprisoner's                                                                                               Fourth and Fourteenth Amendmentrights                                                                      

 were not violated).         



                                                                                                                              -18-	                                                                                                                      7404
  


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

                                                                     57  

  evidence.                                                                      In response, DOC argues that Smith and Anagick's claims were meritless                                                                                                                                                                                                                                                                                                                                                                                                          



  and that the superior court was within its discretion to deny their request to amend their                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     



  complaint to include those claims.                                                                                                                                                                                                                 



                                                                                                                                               a.                                            Negligent training claim                                                                                                                   



                                                                                                Smith and Anagick assert that the superior court "erred by not having                                                                                                                                                                                                                                                                                                                                                                                                          



   [them] amend the complaint with the negligent training matters."                                                                                                                                                                                                                                                                                                                                                                                                        DOC argues that this                                                                                                         



  claim is waived because Smith and Anagick's brief offers "only a section heading with                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           



 no argument" to support it.  Even if it is not waived, DOC argues that this claim lacks                                                                                                                                                                                                                                                                                               



  merit because Smith and Anagick do not explain how DOC's alleged failure to train                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            



  officers to identify themselves breached a duty or caused them damages.                                                                                                                                                                                                                                                                                                                                                                                                                                                           



                                                                                                Smith and Anagick first raised a purported negligent training claim in their                                                                                                                                                                                                                                                                                                                                                                                                                      



  motion for summary judgment.                                                                                                                                                                                                 They seemed to allege that DOC had a duty to train its                                                                                                                                                                                                                                                                                                                            



  officers to identify themselves, and that the officer who conducted the shakedown and                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                



  supposedly found the escape implements was not named at their hearings because that                                                                                                                                                                                                                                                                                                                                                                                    



  officer had not received this training.                                                                                                                                                                                                                              The court does not appear to have advised Smith                                                                                                                                                                                                                                                                 



  and Anagick to add a negligent training claim to their complaint, but in its summary                                                                                                                                                                                                                                                                                                                                                                                                                                                                        



judgment order found that Smith and Anagick offered "allegations but little evidentiary                                                                                                                                                                                                                                                                                                                                                                                                                                                           



  support to back up their claims," including their negligent training claim.                                                                                                                                                                                                                                                                                                                                                                                                                                                           



                                                                                                Even assuming that the informant was an anonymous DOC officer who                                                                                                                                                                                                                                                                                                                                                                                                                                 



  failed to self-identify because of poor training, Smith and Anagick make no showing that                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              



  DOC's reliance on such a source violated their constitutional rights.                                                                                                                                                                                                                                                                                                                                                                                                                          An argument that                                                                                     



  an officer's anonymity denied them an opportunity to confront that officer at their                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         



                                                 57                                             The motion for summary judgment alleges spoliation relating to Smith's                                                                                                                                                                                                                                                                                                                                                                                



  and Anagick's employment contracts. They had previously asserted spoliation of video                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

  recordings of the workplace search and their subsequent disciplinary hearings.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     Their  

  spoliation argument on appeal appears to be limited to the video evidence.                                                                                                                                                                                                                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                                                                                     -19-                                                                                                                                                                                                                                                                                        7404
  


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

administrative segregation hearings would be a Sixth Amendment claim that is not                                                                                                      



                                                                                         58  

applicable to a non-criminal proceeding.                                                                                                                                            

                                                                                               And we have already determined that they  



                                                                                                                                                                                     

receivedadequateproceduralprotectionsattheadministrativesegregation hearings. Any  



                                                                                                                                                                                    

lack of training therefore has not damaged them or deprived them of any rights.  The  



                                                                                                                                                                                         

 superior court did not abuse its discretion by not instructing them or allowing them to  



                                                                                                                       59  

                                                                                                          

amend their complaint with a negligent training claim. 



                                            b.            Breach of contract claim  

                                                                                                        



                              Smith and Anagick first raised abreach of contract claimin their opposition  

                                                                                                                                                                       



to DOC's cross-motion for summary judgment.   They argue that the superior court  

                                                                                                                                                                                  



 should have allowed them to amend their complaint to include this claim and should  

                                                                                                                                                                     



have instructed them on the proper procedure to do so.  They assert their contract claim  

                                                                                                                                                                                 



would have survived summary judgment because their employment contracts for the  

                                                                                                                                                                                      

laundry jobs - which are not part of the record60  

                                                                                                                                                                            

                                                                                                         - entitled them to notice and a hearing  



                                                                                                                                                                                      

prior to termination, independent of any due process right to a hearing. They do not cite  



               58            See  U.S. Const. amend. VI (specifying that confrontation right attaches                                                                      



"[i]n   all   criminal   prosecutions").     The   superior   court   reversed   DOC's   disciplinary  

decisions based on our recognition thatthestateconstitutional right to confront                                                                                         witnesses  

applies to             punitive segregation hearings.                                      Decision on Appeal,                            Smith v. State, Dep't of                       

 Corr., No. 1JU-11-01012 CI, at *6 (Alaska Super., July 24, 2014); Order on Appeal,                                                                                         

Anagick v. State, Dep't of Corr.                                      , No. 1JU-11-01045 CI, at *8 (Alaska Super., May 27,                                                            

2014);   see   James,   260   P.3d   at   1052-53   (concluding   prisoner's  due   process   and  

confrontation rights were violated when officer who wrote incident report underlying                                                                                 

disciplinary action did not appear at disciplinary proceeding).                                                                          



               59            See Lingley v. Alaska Airlines, Inc., 373 P.3d 506, 511 (Alaska 2016) ("It  

                                                                                                                                                                                      

is within a trial court's discretion . . . to deny [a motion to amend] where amendment  

                                                                                                                                                                    

would be futile because it advances a claim or defense that is legally insufficient on its  

                                                                                                                                                                                        

face." (quoting Patterson v. GEICO Gen. Ins. Co., 347 P.3d 562, 568 (Alaska 2015))).  

                                                                                                                                                                            



               60             Smith and Anagick instead rely on a blank, unsigned sample contract,  

                                                                                                                                                                          

apparently because DOC did not retain their original contracts in their files.  

                                                                                                                                                                       



                                                                                          -20-                                                                                    7404
  


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contractual language explicitly providing for notice or a hearing but argue instead that,                                                                                                                                                                                                



because   a   contract   term   provided   for   termination   without   notice   during   a   30-day  



"probation" period, they were implicitly entitled to notice after the probation period.                                                                                                                                                                                                                    



DOC counters that any breach of contract claim would have been futile because Smith's                                                                                                                                                                                         



and   Anagick's   "employment   was   not   subject   to   due   process  protections,   and   .   .   .  



prisoners are not entitled to the contractual employment protections of state employees."                                                                                                                                                                                                                  



                                              Even assuming that the sample contract is identical to the ones Smith and                                                                                                                                                                    



Anagick purportedly signed, it does not confer a right to procedural protections beyond                                                                                                                                                                                        



what the prisoners received in this case.                                                                                                     It is silent as to an employee's right to any                                                                                               



proceedings prior to termination.                                                                                      The sample employment contract specifies that an                                                                                                                        



employee may be terminated without notice not only during the initial 30-day probation                                                                                                                                                                                 



period,   but   also   after   two   unexcused   absences   or   if   the   employee   is   "found   to   be  



associated . . . or caught with any contraband."                                                                                                                       (Emphasis omitted.) This appears to                                                                                       



comport with the DOC policy allowing removal from a rehabilitative program without                                                                                                                                                                                           



a   separate   hearing   if   the   removal   is   a   consequence   of   placement   in   administrative  

segregation.61  



                                              A court's duty to instruct self-represented litigants depends on the facts and  

                                                                                                                                                                                                                                                                                            



circumstances of the case before it; that duty does not require the court to "compromise  

                                                                                                                                                                                                                                                          

                                                                                                                                                                                     62   The record contains no contract  

 [its] impartiality" or "act as an advocate for one side." 

                                                                                                                                                                                                                                                                             



providing any procedural rights beyond DOC's existing policies and procedures.  The  

                                                                                                                                                                                                   



administrative  segregation  hearings  followed  those  procedures  and,  as  we  have  

                                                                                                                                                                                                                                                                                     



concluded,  satisfied  due  process.                                                                                           The  superior  court  therefore  did  not  abuse  its  

                                                                                                                                                                                                                                                                                              



                       61                     STATE                        OF             ALASKA,                               DEP 'T                     OF             CORR.,                         POLICIES                             &            PROCEDURES  



 808.04   VII(D)(4) (2014), www.correct.state.ak.us/pnp/pdf/808.04.pdf.                                                                                                                                                                                   



                       62                    Bauman v. State, Div. of Family & Youth Servs.                                                                                                                              , 768 P.2d 1097, 1099                                       



(Alaska 1989).   



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

 discretion by not instructing them to amend their complaint.                                                             63  



                                                                              

                                         c.           Spoliation claim  



                                                                                                                                                                      

                            Smith and Anagick argue that the superior court erred by not allowing them  



                                                                                                                                                         

to  amend  their  complaint with a spoliation  claim and  by  not holding a "spoliation  



                                                                                                                                                  

 evidence hearing" as they requested.  They contend that Lemon Creek's superintendent  



                                                                                                                                                                        

had a duty to ensure preservation of the videotapes of the September 2011 search and  



                                                                        

 subsequent classification hearings.  



                                                                                                                                                               

                           DOC responds that the spoliation claims are moot because the superior  



                                                                                                                                                                                 

 court granted Smith and Anagick relief on their claim of spoliation of video evidence.  



                                                                                                                                                                        

We agree.  The superior court granted Smith and Anagick's request for "spoliation jury  



                                                                                                                                                                        

 instructions" - which it interpreted as an instruction to assume that the evidence that  

                                                                                                                                                                64  - in  

                                                                                                                                                                           

                                                                                                                                               

had been lost or destroyed would have been favorable to Smith and Anagick 



 September  2016.                        But  because  the  superior  court  subsequently  granted  summary  

                                                                                                                                                            



judgment for the DOC officers, no trial was held, and no jury instruction was given.  It  

                                                                                                                                                                            



was therefore not an abuse of discretion for the superior court not to allow Smith and  

                                                                                                                                                                        



Anagick to add a spoliation claim to their complaint.  

                                                                                                             



              63            Cf. Lingley           , 373 P.3d at 511 (finding no duty to allow litigant to amend                                                   



 complaint where amendment would advance facially unviable claim). We also note that,                                                                                  

under the Alaska Prison Litigation Reform Act, Smith and Anagick could seek only                                                                                      

retrospective   relief   for   a   breach  of   contract   claim;   they   would   not   be   entitled   to  

prospective   relief   unless   they   also   established   violation   of   a   state   or   federal   right.   

AS 09.19.200.   



              64           See Thorne v. Dep't of Pub. Safety, 774 P.2d 1326, 1331 (Alaska 1989)  

                                                                                                                                                                    

 (finding that "an appropriate sanction" for State's failure to preserve video evidence  

                                                                                                                                                                                 

 sought by plaintiff was "to remand the case . . . with directions to presume that the  

                                                                                                                                                                         

videotape would have been favorable to [plaintiff]").  

                                                                                   



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

                      2.	       The superior court did not abuse its discretion by declining to                                         

                                consolidate  Busby  with this case.             



                      Smith   and   Anagick  also   argue   that   the   superior   court   erred   by   not  

                                                                                   65 with this case.  In support of this  

consolidating their other civil case,  Smith v. Busby,                                                              



contention, they assert only that the filing fee in Busby was paid prior to the court's  

                                                                                                                                



denial of the motion to consolidate. DOC responds that "the decision of whether to grant  

                                                                                                                                    



a  motion  to  consolidate is firmly  within  the superior  court's discretion," that "any  

                                                                                                                                   



number of reasons . . . would warrant a decision not to consolidate," and that Smith and  

                                                                                                                                      



Anagick fail to articulate why not consolidating the cases was an abuse of discretion.  

                                                                                                                                           



                     We agree with DOC.  Alaska Civil Rule 42(a) provides:  

                                                                                                 



                     When actions involving a common question of law or fact are  

                                                                                                                  

                     pending before the court, it may order a joint hearing or trial  

                                                                                                                

                      of any or all the matters in issue in the actions; it may order  

                                                                                                      

                      all the actions consolidated; and it may make such orders  

                                                                                                            

                      concerning  proceedings  therein  as  may  tend  to  avoid  

                                                                                                            

                     unnecessary costs or delay.[66]  

                                                        



Here the superior court denied Smith and Anagick's motion to consolidate Busby with  

                                                                                                                                    



this case because it deemed the motion "premature," finding first that the filing fee in  

                                                                                                                                        



Busby  had not yet been paid and second that the Busby  complaint named additional  

                                                                                                                           



defendants  who  would  have  to  be  served  before  a  consolidation  motion  could  be  

                                                                                                                                       



considered. Smith responded with an affidavit asserting that the filing fee had been "paid  

                                                                                                                                   



in full" along with a printout of the docket from Busby showing the filing fee payments  

                                                                                                                            



completed just over a week before the court denied the motion to consolidate.  

                                                                                                                               



           65         Complaint,  Smith  v.  Busby,  No.  1JU-16-00630  CI  (Alaska  Super.,  May  18,  



2016).  



           66        Alaska R.  Civ. P. 42(a)  (emphasis added);  see  also  Baseden  v.  State,   174  



P.3d  233,  242  (Alaska  2008)  ("Alaska  case  law  places  the  decision  to  consolidate  cases  

firmly  within  the  discretion  of  the  superior  court  judge.").  



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

                            But Smith and Anagick offer no arguments that the court's decision was so                                                                              



                                                                                                                                            67  

manifestly unreasonable that it constituted an abuse of discretion;                                                                                             

                                                                                                                                                 nor do they assert  

                                                                                                                       68     While the superior court's  

                                                                                                                                                                        

                                                                                              

that they were prejudiced by the failure to consolidate. 



finding regarding the filing fee was erroneous, and while Smith and Anagick asserted  

                                                                                                                                                                      



that they had not received copies of the summons to serve on the Busby defendants, there  

                                                                                                                                                                             



is no indication in the record that they subsequently served the Busby  defendants or  

                                                                                                                                                                                  



renewed their motion to consolidate after doing so.  Nor do Smith and Anagick explain  

                                                                                                                                                                        



why consolidation would be warranted, beyond their payment of the filing fee.  It was  

                                                                                                                                                                               



therefore  not  an  abuse  of  discretion  for  the  superior  court  to  deny  the  motion  to  

                                                                                                                                                                 



consolidate.  



V.            CONCLUSION  



                            Because  Smith  and  Anagick  received  adequate  process  to  protect  any  

                                                                                                                                                                               



constitutional rights arising from their laundry jobs, and because we find no abuse of  

                                                                                                                                                                                   



discretion in any of the superior court's procedural rulings, we AFFIRM the superior  

                                                                                                                                                                      



court's grant of summary judgment.  

                                                        



              67            See Lingley              , 373 P.3d at 511 (stating that abuse of discretion exists "when                                                     



the decision on review is manifestly unreasonable" (quoting                                                                         Ranes & Shine, LLC v.                          

MacDonald Miller Alaska, Inc.                                      , 355 P.3d 503, 508 (Alaska 2015))).                         



              68            See Limeres v. Limeres, 367 P.3d 683, 687 (Alaska 2016) ("An abuse of  

                                                                                                                                                                                   

discretion exists when a party has been deprived of a substantial right or seriously  

                                                                                                                                                                    

prejudiced by the [superior] court's ruling." (quoting Limeres v. Limeres, 320 P.3d 291,  

                                                                                                                                                                              

296 (Alaska 2014))).  

                            



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