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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Keilan Ebli v State of Alaska, Department of Corrections (11/1/2019) sp-7418

Keilan Ebli v State of Alaska, Department of Corrections (11/1/2019) sp-7418

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

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                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

KEILAN  EBLI,                                                     )  

                                                                  )   Supreme  Court  No.  S-16916  

                              Appellant,                          )  


                                                                  )   Superior Court No. 3PA-16-01708 CI  

          v.                                                      )  


                                                                  )   O P I N I O N  


STATE OF ALASKA, DEPARTMENT                                       )  


OF CORRECTIONS,                                                   )  


                                                                  )   No. 7418 - November  1, 2019  

                              Appellee.                           )  



                                 rom the Superior Court of the State of Alaska, Third  

                    Appeal f 


                    Judicial District, Palmer, Kari Kristiansen, Judge.  


                    Appearances:             Keilan  Ebli,  pro  se,  Wasilla,  Appellant.  


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


                    Jahna Lindemuth, Attorney General, Juneau, for Appellee.  


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


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


                    MAASSEN, Justice.  



                    When the Department  of Corrections (DOC) discovered that  one of its  


contract employees, a substance abuse counselor, was in an "intimate relationship" with  


a prisoner in violation of prison policy, DOC barred the counselor and her parents from  


visiting the prisoner or putting money in his prison bank account.  The prisoner sued  

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


DOC, alleging that these restrictions violated his constitutional and statutory rights to  




                    When the prisoner moved for summary judgment, DOC moved to amend  


its answer to deny the statutory claim it had failed to deny in its original answer. The  


prisoner then moved to amend his complaint to add a claim asserting the constitutional  


rights of the counselor and her parents.  The superior court granted DOC's motion to  


amend, denied the prisoner's motion to amend as futile, and granted summary judgment  


in DOC's favor.  The prisoner appeals.  


                    We conclude that DOC's visitation restrictions are reasonable exercises of  


its authority to address legitimate penological interests and therefore do not violate the  


prisoner's constitutional or statutory rights to rehabilitation.  We also conclude that the  


superior court did not abuse its discretion when it granted DOC's motion to amend its  


answer and denied the prisoner's motion to amend his complaint.  For these reasons we  


affirm the judgment of the superior court.  



          A.        Facts  


                    Keilan  Ebli  is  a  prisoner  at  Goose  Creek  Correctional  Center  (Goose  


Creek). There he met Kerri Pittman, a substance abuse counselor employed by a private  


company but working as a DOC contract employee.  Ebli and Pittman developed what  


DOC later concluded was an "intimate relationship." Ebli characterizes the relationship  


as a "non-sexual" "friendship," but DOCsubmitted affidavits on summary judgment that  


painted a different picture.  A DOC employee attested to finding photo albums in Ebli's  


cell that included photos of Ebli and Pittman kissing and "displaying wedding rings  


within a secure area of the facility."  Through phone-call monitoring, DOC determined  


that   there   were   over   two   thousand   calls   between   Pittman   and   Ebli   between  


September 2015 and May 2017, that Pittman regularly called using an alias, and that  

                                                               -2-                                                         7418

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some of the calls involved phone sex.   In one call Ebli and Pittman discussed being  


"married  now,"  though  Ebli  had  never  sought  the  permission  of  Goose  Creek  


administrators to get married, as required by prison rules.  


                    Pittmantransferred to Palmer Correctional Center, buther relationship with  


Ebli continued.  Pittman and her parents, Vallie and Darold Arthur, continued to visit  


Ebli regularly at Goose Creek, and the Arthurs deposited money in his prison bank  


account.  Ebli began to view Darold Arthur as a "father figure" and "role model."  


                    DOC learned about Pittman's relationship with Ebli in late February or  


early March 2016.  At some point - unclear from our record - Pittman's employment  


was terminated on grounds of "staff misconduct." On March 15, 2016, the Goose Creek  


superintendent notified her in writing that she was indefinitely barred from visiting any  


prisoner incarcerated in any DOC facility.   Similar notices were sent to the Arthurs,  


informing them that they were indefinitely barred from visiting or putting money in the  


account of any prisoner incarcerated at Goose Creek.  Copies of the notices were sent to  


Ebli; the notice to Pittman stated that "[t]he affected prisoner may grieve this matter to  


the  Director  of  Intuitions  [sic]  through  the  grievance  process."                                 Ebli  accordingly  


followed the grievance process through appeal, but without success.  DOC denied his  


request  in  October  2016  to  temporarily  lift  the  restrictions  for  a  final  visit  with  


Darold Arthur, who died of cancer a few months later.  


                    One  DOC  witness,  identifying  herself  as  a  probation  officer  with  


professional training in the ethical considerations of counseling professionals, attested  


that all DOC "employees and private contractors are told during orientation at Goose  


Creek that they are not allowed to develop friendships with prison inmates."  They are  


also "required to sign a Code of Ethical [Professional] Conduct," which states, among  


other  things,  "that  they  are  prohibited  from  engaging  in  undue  familiarities  with  


inmates."  One explicit DOC ethics rule provides:  "I will not act in my official capacity  

                                                                -3-                                                         7418

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in any matter in which I have a personal interest that could in the least degree impair my                                                                                                                     

objectivity.    I   will   not   engage   in   undue   familiarity   with   inmates,   probationers,   or  

parolees."     DOC's   witness   attested   that   these   rules   are   especially   important   for  

counseling professionals, whose friendships or intimate relationships can easily affect                                                                                                 

objectivity and lead a counselor to "act in ways that are not in the client's best interests."                                                                                                                           

The witness opined that Pittman's relationship with Ebli, including the involvement of                                                                                                                           

Pittman's parents, violated the ethics code.                                                                

                 B.              Proceedings  

                                 Ebli sued DOC in July 2016, claiming that its restrictions on visitation  


violated his constitutional right to rehabilitation under article I, section 12 of the Alaska  


Constitution  and  breached  a  statutory  duty  under  AS  33.30.011(a)(3)(F),  thereby  


                                                                            1  Ebli moved for summary judgment, relying in part on  

constituting negligence per se.                                                                                                                                                                                 


DOC's failure to include in its answer a denial of his negligence per se claim.  DOC  


moved  to  amend  its  answer  to  add  the  missing  denial,  and  the  court  allowed  the  




                                 DOC also cross-moved for summary judgment.  Ebli moved to amend his  


complaint to add a claim that DOC's actions had violated Pittman's and the Arthurs'  


constitutional rights as well as his own, but the court denied his motion, seeing no  


"cognizable claim" in the proposed amendment. The court then denied Ebli's motion for  


summary judgment and granted DOC's cross-motion. The court concluded that DOC's  


visitation  restrictions  did  not  violate  Ebli's  constitutional  rights,  relying  on  the  


                 1               AS    33.30.011(a)(3)(F)    identifies    the    responsibilities    of    the    DOC  

commissioner toward prisoners in DOC custody, including to "otherwise provide for the                                                                                                                           

rehabilitation and reformation of prisoners, facilitating their reintegration into society."                                                                                                                             

                                                                                                        -4-                                                                                               7418

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deferential test of                   Turner v. Safley                  .   The court also found that there was no evidence to                                                      

support Ebli's negligence per se claim.                                              Ebli appeals.   

III.           STANDARD OF REVIEW                      

                             "We review a grant of summary judgment 'de novo, affirming if the record                                                                      

presents no genuine issue of material fact and if the movant is entitled to judgment as a                                                                                             



matter  of  law.'                            We  review  de  novo  questions  of  law,  including  constitutional  



questions and the interpretation of procedural rules.                                                              In de novo review we apply our  


independent judgment and "adopt the rule of law that is most persuasive in light of  



precedent, reason, and policy." 


                             We  review  decisions  on  motions  to  amend  pleadings  for  abuse  of  



                                                                                                                                                                     "We will  

discretion, "and we will interfere only when that discretion has been abused." 


reverse  a  ruling  for  abuse  of  discretion  only  when  left  with  a  definite  and  firm  



conviction, after reviewing the whole record, that the trial court erred in its ruling."                                                                                          "It  


is within a trial court's discretion to deny such a motion where amendment would be  

              2              48 U.S. 78, 87 (1987).          

              3              Olson v. City of Hooper Bay                                , 251 P.3d 1024, 1030 (Alaska 2011) (quoting                                   

Beegan v. State, Dep't of Transp. & Pub. Facilities, 195 P.3d 134, 138 (Alaska 2008)).  


              4             DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919, 922 (Alaska 2002).  


              5             Fraternal Order of Eagles v. City &Borough of Juneau, 254 P.3d 348, 352  


(Alaska 2011) (quoting Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296, 298  


(Alaska 2007)).  


              6             Betz v. Chena Hot Springs Grp., 742 P.2d 1346, 1348 (Alaska 1987).  


              7             Rucklev. AnchorageSch. Dist., 85P.3d 1030, 1034 (Alaska2004) (quoting  


DeSalvo v. Bryant, 42 P.3d 525, 527-28 (Alaska 2002)).  


                                                                                         -5-                                                                                 7418

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futile because it 'advances a claim or defense that is legally insufficient on its face.' "                                                                      8  


"We use our independent judgment to review a conclusion that an amendment meets that  


IV.	         DISCUSSION  


             A.	         The Visitation Restrictions Do Not Violate Ebli's Constitutional Right  



                         To Rehabilitation. 


                         Article I, section 12 of the Alaska Constitution provides in part: "Criminal  


administration shall be based upon the following:  the need for protecting the public,  


community condemnation of the offender, the rights of victims of crimes, restitution  


from the offender, and the principle of reformation."  In Brandon v. State, Department  


of  Corrections,  we  cited  this  provision  as  the  source  of  "a  fundamental  right  to  



rehabilitation," and we recognized visitation privileges as one component of that right. 

The superior court in this case expressly acknowledged the extent of the constitutional  


right, but it decided that DOC's restrictions on visitation by Pittman and the Arthurs  


withstood Ebli's constitutional challenge.  The court looked to the"deferential standard"  


                                                                                                                              12 which we applied  

established by the United States Supreme Court in Turner v. Safley,  


             8           Krause v. Matanuska-Susitna Borough                                       , 229 P.3d 168, 174 (Alaska 2010)                     

(quoting  Hallam v. Alaska Airlines, Inc.                                   , 91 P.3d 279, 287 (Alaska 2004)).                  

             9	          Id. at 174-75.  


             10          Ebli does not brief the merits of his statutory negligence per se claim on  


appeal, arguing only that the superior court erred by allowing DOC to deny the claim in  


its amended answer.  We address this procedural argument in section IV.C., below.  


             11          938 P.2d 1029, 1032 & n.2 (Alaska 1997).  


             12          482 U.S. 78, 84-85 (1987).  


                                                                               -6-	                                                                       7418

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to visitation privileges in             Larson v. Cooper           .     


                     The Turner standard "allows prison administration to establish rules [that]  

                                                                                               14  The Supreme Court in  



are 'reasonably related to legitimate penological interests.' " 

Turner  identified  "four  factors  that  are  relevant  to  determining  whether  a  [prison]  


regulation is reasonable":  (1) whether there is "a 'valid, rational connection' between  


the prison regulation and the legitimate governmental interest put forward to justify it";  


(2) " 'whether there are alternative means of exercising the right that remain open to  


prison inmates' "; (3) " 'the impact accommodation of the asserted constitutional right  


will  have  on  guards  and  other  inmates,  and  on  the  allocation  of  prison  resources  


generally'  ";  and  (4)  "whether  there  are  any  'ready  alternatives'  to  the  policy  in  




                     While recognizing the importance of visitation privileges in Brandon, we  


left the definition of "their required scope or the permissible limits on their exercise" to  


                                    16   One such case was Larson, in which an inmate challenged  

"future adjudications."                                                                                               


                                                                                             17  The prison had changed  

DOC restrictions on contact between prisoners and visitors.                                                               


          13         90  P.3d   125,   129-31  (Alaska  2004);  see  also  Mathis v   .  Sauser,  942  P.2d  

1117,   1121   &  n.7 (Alaska   1997)   (citing   Turner   for  the  proposition  that  "[w]here  the  

purpose  of the [prison]  regulation  is permissible  and  there  is  a  reasonable  relationship  

between  the  policy  goal  and  the  ends  chosen  to  achieve  it,  courts  will  generally  defer  to  

the judgment of prison officials").  We more recently applied the  Turner  test in  Leahy  

v. Conant, 436  P.3d   1039, 1045-46 (Alaska 2019), addressing restrictions on prisoner  


          14         482 U.S. at 89; Larson, 90 P.3d at 129.  


          15        Larson, 90 P.3d at 129-31 (quoting Turner, 482 U.S. at 89-90).  


          16         938 P.2d at 1032 n.2.  


          17         90 P.3d at 126.  


                                                                 -7-                                                          7418

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"the rules governing contact visitations to prohibit all physical contact between prisoners                                      

and   visitors   other   than   'a   short   embrace   upon   initial   contact    and  again   upon  

                     18  When Larson broke this rule by holding his wife's hand during prayer,  

departure.' "                                                                                                                       

DOC suspended his contact visitation privileges and restricted him to "secure visitation"  


only.19  Our opinion focusedprimarily onLarson's claimunder theAlaskaConstitution's  


free exercise of religion clause;20  we applied the Turner test and our own Frank test for  


free exercise claims21   to conclude that the prison officials' decision was entitled to  


deference.22           But  Larson  also  argued  that  he  had  a  rehabilitation-related  right  to  


"religious visits" under article I, section 12, "because such visits promote rehabilitation  


                                      23  We held that nothing in this constitutional provision requires  

'as nothing else can.' " 


such visits or "preclude[s] prisons from putting reasonable limits on contact visitation  


                                                       24   We concluded that "[t]he security risks posed by  

of maximum security prisoners."                                                                                                            


contact visits and the high costs of mitigating such risks convince us that the degree of  


contact permitted betweeen visitors and maximum security prisoners lies within the  


           18         Id.  

           19         Id.  at   127.  

           20         Alaska  Const.  art.   1,    4.  

           21         Frank  v.  State,  604  P.2d  1068,  1070-73  (Alaska  1979)  (establishing  multi- 

factor  test  for  determining whether  facially  neutral  laws  violate  Alaska  Constitution's  

free  exercise  clause).  

           22         Larson, 90 P.3d at 129-33.  


           23         Id. at 133.  


           24         Id.  

                                                                     -8-                                                              7418

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sound discretion of prison administrators."                               


                      Ebli argues that the justifications DOC offers for the visitation restrictions  


in his case - security and rehabilitation concerns - are "frivolous."  DOC provided  


considerable support for its position that there are legitimate concerns for prison "safety,  


security, inmate rehabilitation, and institutional morale" that justified its decision.  It is  

                                                                                                                 26    Several DOC  


undeniable that prison security is a legitimate penological interest. 

employees attested there was a security risk to continued visitation between Ebli and  


Pittman  because  of  the  knowledge  of  confidential  internal  prison  matters  she  had  


acquired during her employment.  Pittman's relationship with Ebli and resulting loss of  


objectivity increased the possibility that she would share this information with Ebli. Her  


willingness to violate DOC ethics policy and to use an alias when calling showed "that  


she cannot be trusted" and further exacerbated the risk.  A DOC witness also attested to  


a concern that the rehabilitation of Ebli and other inmates, as well as staff morale, would  


suffer if Ebli and Pittman were "allowed to break prison rules without consequences."  


And DOC may reasonably have the same concerns about Ebli's relationship with the  


Arthurs, given that it derived from the unethical and surreptitious relationship with  




                      Questioning the legitimacy of these rationales, Ebli argues that Pittman  


"was a non-security support staff member" who "had no access to confidential DOC  


facility information"; that any information she might have about "movement schedules,  


           25         Id.  at 134.   



                      Id. at 129 ("Prison security is a compelling governmental interest."); see  


Overton v. Bazzetta, 539 U.S. 126, 133 (2003) ("[P]romot[ing] internal security [is]  


perhaps the most legitimate of penological goals."); see also Leahy v. Conant, 436 P.3d  


 1039, 1046 (Alaska 2019) (concluding that DOC had "a legitimate penological interest"  


in addressing prisoners' use of prison mail system to facilitate assaults, conduct illegal  


business and drug activities, and communicate within gangs).  

                                                                     -9-                                                              7418

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

 shift changes, and recreation schedules" is posted and already known to prisoners; that                                                                                                                                                                                                                                                                               

allowing Ebli and Pittman to talk on the phone moots DOC's concerns about security                                                                                                                                                                                                                                                                   

threats, as "any information that could be conveyed by Ms. Pittman to Ebli during a                                                                                                                                                                                                                                                                                               

contact visit can also be conveyed to him during a telephone conversation"; that "DOC's                                                                                                                                                                                                                                                             

concerns of blackmail were mooted by [its] termination of Ms. Pittman," after which her                                                                                                                                                                                                                                                                                   

employment status could no longer be used as leverage; that DOC ethics policies did not                                                                                                                                                                                                                                                                                   

apply to the Arthurs; and that DOC's purported concerns about rehabilitation are vague                                                                                                                                                                                                                                                                        

and overstated.                                                     

                                                          It is not necessary for us to know the extent of Pittman's knowledge of                                                                                                                                                                                                                                             

DOC procedures, how much of what she knew was actually confidential, and whether   

 she could or did share confidential knowledge with Ebli before we can determine the                                                                                                                                                                                                                                                                                      

legitimacy   of   the   penological   interest   at   issue   here.     It  is   reasonable   for   DOC   to  

promulgate   and   enforce   rules   governing  the   relationships   between   prisoners   and  

professional staff and to be concerned that a lack of enforcement will encourage more   

breaches of the rules.                                                                        We defer to DOC's determination of what is and is not a security                                                                                                                                                                                   

concern, and we disagree with Ebli's assertion that DOC's stated concerns are frivolous.                                                                                                                                                                                                                                                                                                    

                                                          The   next   question   is   whether   the   visitation   restrictions   are   reasonably  

related   to   DOC's   legitimate   interests.   Like   the   restriction   in   Larson,   the   visitation  

restrictions on Ebli do not appear to be "a dramatic departure from accepted standards                                                                                                   

                                                                                                                                          27  Restricting visitation between a prisoner and a non- 

for conditions of confinement."                                                                                                                                                                                                                                                                                                                                    

prisoner who has violated prison policy, especially a former staff member involved in  


an ethically inappropriate relationship with the prisoner, could be considered normal  


                             27                           Larson,  90  P.3d  at   136  (quoting  Overton,  539  U.S.  at   137).  

                                                                                                                                                                                    -10-                                                                                                                                                                                              7418  

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prison policy.                                       The Supreme Court has explicitly recognized that "[t]he denial of prison                                                                                                                                                 

access   to   a   particular   visitor  'is   well   within   the   terms   of   confinement   ordinarily  

                                                                                                                                  29        And importantly for purposes of the second  

contemplated by a prison sentence.' "                                                                                                                                                                                                                                      

 Turner  factor,  DOC  did  not  withdraw  all  of  Ebli's  visitation  privileges;  he  had  


"alternative means of exercising the right."30                                                                                                                 Physical visits were restricted only for  


Pittman and her parents, and Ebli's telephone privileges were not affected.  


                                             Analysis of the third Turner factor - "the impact accommodation of the  


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


of prison resources generally" - is partly subsumed in our discussion of the first factor,  


where we noted the evidence that failure to restrict Ebli's visitation privileges under  


these circumstances could negatively affect morale and respect for rules on the part of  


                       28                    See   Ky.   Dep't   of   Corr.   v.   Thompson,   490   U.S.  454,   457   n.2   (1989)  

(examining prison policy requiring former prison employee to have prior authorization                                                                                                                                                                 

from warden before visiting inmate);                                                                                            Riker v. Lemmon                                              , 798 F.3d 546, 549 (7th Cir.                                                           

2015) (examining prison                                                                   policy by which "former employees must make a written                                                                                                                           

request to visit an offender [and] . . . generally 'shall not be allowed to visit an offender                                                                                                                                                                         

who has been housed in the same facility in which the ex-employee was employed and                                                                                                                                                                                                     

who was incarcerated at the facility during the time the ex-employee was employed                                                                                                                                                                                

there' ");                     Engle v. Tenn. Dep't of Corr.                                                                        , 63 F. App'x 860, 863 (6th Cir. 2003) (holding                                                                                   

that visitation and communication restrictions on former prison employee attempting to                                                                                                                                                                                                       

assist incarcerated                                           friends with legal matters werenot                                                                               unconstitutional becausethey                                                                       were  

"rationally related to a legitimate penological objective");                                                                                                                                      Mayo v. Lane                                   , 867 F.2d 374,                    

386 (7th Cir. 1989) (examining prison policy requiring that "[i]n order to preserve the                                                                                                                                                                                                 

security of the facility . . . [e]mployees or former employees who have been involved                                                                                                                                                                                

with an inmate(s) may be permanently restricted from institutional visits").                                                                                                                                                      

                       29                    Ky. Dep't of Corr., 490 U.S. at 461 (quoting Hewitt v. Helms, 459 U.S. 460,  


468 (1983)).  


                       30                    Larson, 90 P.3d at 129 (quoting Turner v. Safley, 482 U.S. 78, 90 (1987).  


                                                                                                                                           -11-                                                                                                                                    7418

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


both prisoners and staff.                                            A DOC security sergeant, by affidavit, addressed Ebli's                                                                          

argument that Goose Creek could "accommodate [him] by allowing 'secure visits.' "                                                                                                                                       

While not discussing the logistics of such visits, the sergeant attested that allowing them                                                                                                               

"would undermine prison goals of rehabilitation, security, safety and morale."                                                                                                                            It is   

reasonable to conclude that accommodating Ebli and Pittman's relationship by devoting                                                                                                           

more prison                      resources  to the monitoring                                             of "secure visits" would                                         undercut DOC's   

legitimate concerns.   

                                 As for the final                     Turner  factor -"whether there are any 'ready alternatives'                                                       

                                                                 32    -  the  Supreme  Court  has  "suggested  that  only  those  

to   the   policy   in   dispute"                                                                                                                                                                      

alternatives that would accommodate the prisoner's rights at 'de minimis cost to valid  


penological interests' could be considered relevant."33                                                                                 And it is not DOC's burden "to  


set up and then shoot down every conceivable alternative method of accommodating the  


claimant's constitutionalcomplaint."34  Ebli has proposed only "securevisits"as a"ready  


alternative," and, as explained above, we defer to DOC's judgment that this alternative  


would have more than a "de minimis cost to valid penological interests."  


                                 In sum, therestrictions on Ebli'svisitation with Pittman and the Arthurs did  


not  violate  Ebli's  right  to  rehabilitation  under  article  I,  section  12  of  the  Alaska  


Constitution.  Given the legitimate penological interest in prison security involved and  


                31               Id.  at 130 (quoting                           Turner, 482 U.S. at 90).                           



                                 Id. at 131 (quoting Turner, 482 U.S. at 90).  



                                 Id. (quoting Turner, 482 U.S. at 91).  



                                 Id. (quoting Turner, 482 U.S. at 90-91).  

                                                                                                      -12-                                                                                               7418

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

the  reasonable  relationship  between  the  restriction  and  this  interest,  the  superior  court  

properly  deferred  to  the  judgment  of the prison administrators that  these  restrictions  were  


                    B.                  The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Granting  DOC's  

                                        Motion  To  Amend  Its  Answer.  

                                        Ebli  argues  that  the  superior  court  abused  its discretion  when  it  allowed  

DOC  to   amend   its   answer  to   deny the  negligence  per   se   claim,   a   denial   it   originally  

omitted.  Alaska Civil Rule 8(d) provides that "[a]verments in a pleading to which a                                                                                                                                                                         


responsive pleading is required . . . are admitted when not denied in the responsive                                                                                                                                            

pleading."  Ebli relies on this rule to argue that DOC, having tacitly admitted liability,                                                                                                                                              

cannot use Alaska Civil Rule 15(a)'s amendment process "to render null the fair but                                                                                                                                                       

harsh effects of Civil Rule 8(d)'s automatic admission provision."                                                                                                                                    

                                        Except for the limited circumstances in which a party is allowed to amend                                                                                                                            

a pleading as a matter of course under Civil Rule 15(a), "a party may amend the party's                                                                                                                                                     

pleading only by leave of court or by written consent of the adverse party; and leave shall                                                                                                                                                        

be freely given when justice so requires."                                                                                       It is well established that leave to amend                                                                 

                                                                                        35      "[W]e have long held that leave should freely be given  

should be "liberally granted."                                                                                                                                                                                                                  

unless 'it would [result] in an injustice' [and that a] 'pro-amendment ethos dominates the  


intent  and  judicial  construction  of  Rule  15(a).'  "36                                                                                                           This  is  especially  true  when  


amendment will allow the claim to be tested on its merits.37  


                    35                 Miller  v.  Safeway,  Inc.,   102  P.3d  282,  293  (Alaska  2004).  

                    36                 Id.  at  293-94  (internal  citations  omitted).  

                    37                 Lingley  v.  Alaska  Airlines,  Inc.,  373  P.3d  506,  513  (Alaska  2016)  ("If  the  

underlying  facts  or  circumstances  relied  upon  by  a  plaintiff  may  be  a  proper  subject  of  

relief,  [the  plaintiff]  ought  to  be  afforded  an  opportunity  to  test  [the]  claim on  the  merits."   


                                                                                                                          -13-                                                                                                                    7418

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

                            Denying leave to amend, on the other hand, is usually justified where there                                                                    

 is "undue delay, bad faith or dilatory motive . . . [by] the movant, repeated failure to cure                                                                              

 deficiencies by amendments . . . , undue prejudice to the opposing party . . . , [or] futility                                                                        

                                                  38    "[P]rejudice to the opposing party is the predominate factor  

 of the amendment, etc."                                                                                                                                                

 in determining whether or not to grant leave to amend."39   Qualifying prejudice does not  


 includean increased likelihood that the amending party will "succeed under theamended  



 [pleading]; presumably, that is the purpose of any amendment offered by a [party]." 


Prejudice  is  more  likely  to  be  shown  by  undue  delay,  expense,  or  the  lack  of  an  


 opportunity to collect and present evidence.41  


                            Here,   although   DOC  failed  to  present  any  explanation,  let  alone  


justification, for its initial failure to deny the negligence per se claim, the court could  


reasonably  conclude that the failure was  due to  simple oversight by  counsel.                                                                                            The  


 amendment allowed the claim to be litigated on its merits - the preferred route for  


judicial decision-making.  Ebli does not argue that he was unduly prejudiced by the  


 amendment, which came months before the close of discovery and the deadline for filing  


              37            (...continued)  


 (quoting Miller, 102 P.3d at 295)).  



                            Id. at 512 (alterations in original) (quoting Patterson v. GEICO Gen. Ins.  

 Co., 347 P.3d 562, 569 (Alaska 2015)).                             

              39            Miller,   102  P.3d  at  294.  

              40             Wright v. Vickaryous, 598 P.2d 490, 496 (Alaska 1979).  


              41            Alderman  v.  Iditarod  Props,  Inc.,  32  P.3d  373,  395  (Alaska  2001)  (holding  

that   amendment   allowed   after   the   close   of   evidence   was   unduly   prejudicial   where  

 defendant  lacked  opportunity  to  present  evidence  relevant  to  new  claim);  Shooshanian  

 v.   Wagner, 672  P.2d  455,  458 (Alaska   1983)  ("Among  the  factors to  be  considered  in  

 evaluating  prejudice  to  the  opposing  party  are  the  added  expense  if  the  motion  is  granted  

 and  whether  trial  will  be  significantly  more  burdensome  or  lengthy.").   

                                                                                      -14-                                                                                7418

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

 dispositive motions.                                                                And we do not see that allowing parties "to amend their answer                                                                                                                                                                               

 anytime they failed to deny an averment in a pleading" would amount to "repealing the                                                                                                                                                                                                                                                             

 existing Civil Rule 8(d)," as Ebli argues; Rule 8(d) continues to have force when parties                                                                                                                                                                                                                                          

 fail to timely amend their pleadings or when attempts to amend are properly denied. We                                                                                                                                                                                                                                                          

 conclude that the court did not abuse its discretion by allowing DOC to amend its answer                                                                                                                                                                                                                                          

to deny Ebli's negligence per se claim.                                                                                              

                            C.	                        The Superior Court Did Not Abuse Its Discretion By Denying Ebli's                                                                                                                                                                                                              

                                                       Motion To Amend His Complaint.                                                                     

                                                       Ebli   argued   in   his   motion   for   summary   judgment   that   the   visitation  

restrictions violated not only his constitutional rights but also those of Pittman and the                                                                                                                                                                                                                                                         

Arthurs.   Because his complaint failed to allege claims on behalf of others, he asked the                                                                                                                                                                                                                                                         

 superior court for leave to amend his complaint to include them. The court denied Ebli's                                                                                                                                                                                                                                               

motion because Pittman and the Arthurs did "not have a cognizable claim."                                                                                                                                                                                                                                       Ebli argues   

that this was error.                                                          But we conclude that the superior court did not abuse its discretion                                                                                                                                                                     

                                                                                                                                                                                                                                                                                                                  42  Ebli does  

 in denying Ebli leave to amend because amendment would have been futile;                                                                                                                                                                                                                                                                    

not have standing to assert the constitutional rights of others in this context.43  


                                                       "Standingis aruleofjudicial self-restraint based ontheprinciplethat courts  


 should  not  resolve  abstract  questions  or  issue  advisory  opinions."44  


                                                                                                                                                                                                                                                                                                            A  party  has  

                            42                        Krause v. Matanuska-Susitna Borough                                                                                                                            , 229 P.3d 168, 174 (Alaska 2010)                                                                                 

 ("It is within a trial court's 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.' "                                                                                                                                                                                                                                                             

 (quoting  Hallam v. Alaska Airlines, Inc.                                                                                                                          , 91 P.3d 279, 287 (Alaska 2004))).                                                                           

                            43                         See Zaverl v. Hanley, 64 P.3d 809, 819 n.25 (Alaska 2003) ("We can affirm  


 on alternative grounds apparent from the record.").  


                            44                        Friends of Willow Lake, Inc. v. State, Dep't of Transp. & Pub. Facilities,


Div. of Aviation & Airports, 280 P.3d 542, 546 (Alaska 2012) (quoting Law Project for



                                                                                                                                                                        -15-	                                                                                                                                                               7418

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

"interest-injury" standing when the party has "a sufficient personal stake in the outcome                                                                        

of the controversy and an interest which is adversely affected by the complained-of                                                                 



conduct."                Interest-injury standing allows Ebli to argue that the visitation restriction  


violates his own constitutional rights.  But the situations in which a party has standing  



to protect the constitutional rights of others are limited. 


                            Third-party   standing   usually   requires   the   existence   of   a   "special  


relationship . . . between plaintiff and third party, such as [a] parent asserting [a] minor  



child's constitutional rights."                                 No such special relationship is evident in this case. And  


Pittman and the Arthurs are not dependent on Ebli to protect their rights; they are adults  


who are presumably able to sue on their own behalf but have not chosen to do so in this  



              44            (...continued)  


Psychiatric Rights, Inc. v. State, 239 P.3d 1252, 1255 (Alaska 2010)).  



                           Id. (quoting Keller v. French, 205 P.3d 299, 304 (Alaska 2009)).  

              46           Law Project for Psychiatric Rights                                        , 239 P.3d at 1255 n.12 ("Under the                 

interest-injury approach, a litigant can have standing either to protect his own rights, or,                                                                                 


in rare cases, to protect the rights of third parties by acting in a representative capacity."  

(quoting  Foster v. State                        , 752 P.2d 459, 466 (Alaska 1988) (Moore, J., concurring))).                                     

              47           Friends of Willow Lake, 280 P.3d at 546 n.12 (citing State ex rel. Dep'ts of  


Transp. &Labor v. Enserch Alaska Constr., Inc., 787 P.2d 624, 630 n.9 (Alaska 1989)).  


              48            Cf. Gilbert M. v. State, 139 P.3d 581, 587 (Alaska 2006) (concluding that  


child's grandfather lacked standing to challenge termination of mother's parental rights  


because mother was adult who had chosen not to assert those rights herself). Ebli argues  


that Pittman and Arthur are unable to assert their own rights because DOC's policy  


requires that the prisoner, not the prospective visitor, grieve the restriction through the  


administrative process, and "normal citizen[s]" would read DOC's communications as  


barring relief in any other forum.  But DOC did not purport to block Pittman's and the  


Arthurs' access to the courts.  


                                                                                     -16-                                                                               7418

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

                                         Because it would have been futile for Ebli to amend his complaint to assert                                                                                                                                        

violations of third-party rights, the superior court did not abuse its discretion by denying                                                                                                                                                         

Ebli's motion to amend.                                                       

V.                   CONCLUSION  

                                          The superior court's judgment is AFFIRMED.  


                                                                                                                                         -17-                                                                                                                7418

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