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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Richard Barton DeRemer III v Craig Turnbull and Brian Morris (11/22/2019) sp-7419

Richard Barton DeRemer III v Craig Turnbull and Brian Morris (11/22/2019) sp-7419

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                         

RICHARD  DeREMER,                                                  )  

                                                                   )         Supreme  Court  No.  S-16707  

                                 Appellant,                        )  

                                                                   )         Superior  Court  No.  3AN-15-08811  CI  

           v.                                                      )  


                                                                   )         O P I N I O N  


CRAIG TURNBULL and BRIAN                                           )  


MORRIS,                                                            )         No. 7419 - November 22, 2019  


                                 Appellees.                        )  



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


                      Judicial District, Anchorage, Erin B. Marston, Judge.  


                      Appearances:              Richard  B DeRemer,  III.,  pro  se,  Wasilla,  


                      Appellant.           Matthias  Cicotte,  Assistant  Attorney  General,  


                      Anchorage,and JahnaLindemuth,Attorney General,Juneau,  


                      for Appellees.  


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


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


                      STOWERS, Justice.  



                      This case involves a prisoner's pro se appeal from the superior court's  


dismissal of his civil complaint against three Alaska Department of Corrections (DOC)  


employees.  The prisoner alleged numerous violations of his constitutional rights, and  


he requested declaratory relief and damages.  The defendants filed a motion to dismiss  

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


the complaint addressing some, but not all, of the prisoner's claims.  Specifically, the  


defendants  did  not  address  his  First  Amendment  retaliation  claim  or  request  for  


declaratory relief.  The court relied on this motion and dismissed the prisoner's claims  


"for the reasons set forth in defendants' motion," failing to provide any independent  


analysis  of  the  prisoner's  claims.                  Because  the  court,  by  adopting  the  defendants'  


reasoning, failed to address all of the prisoner's claims, we reverse the court's order with  


respect to the First Amendment retaliation claim and remand for further proceedings.  


We affirm the court's dismissal of the prisoner's other claims.  



          A.        Facts  


                    In  August  2012  Richard  DeRemer  was  a  prisoner  at  Spring  Creek  


Correctional Center when he was charged with an infraction based on allegations that he  


lied to staff.   A disciplinary hearing was scheduled; DeRemer appeared at the time  


scheduled for the hearing, but DOC staff did not show up.  DeRemer was served with a  


postponement  notice  and  his  hearing  was  rescheduled.                                 He  again  appeared  at  the  


rescheduled hearing, and this time disciplinary officer Brian Morris was present. At the  


hearing  DeRemer  challenged  "the  credibility  of  the  disciplinary  report"  and  "the  


credibility of the disciplinary forum" based on the time frame in which the disciplinary  


hearing was scheduled. According to DeRemer's complaint, Morris responded to these  


challenges by stating that "he was going to reduce the infraction to an 'informational  


report.' But since [DeRemer] chose to play games of a technical nature as to procedural  


requirements . . . he was finding [DeRemer] 'guilty' instead and impos[ing] 10 days of  


punitive segregation, to be suspended for 180 days pending no further infractions."  


(Emphasis in original.)  


                    At the conclusion of the hearing, DeRemer was orally advised of his right  


to  appeal  the  decision.             DeRemer  later  received  a  copy  of  the  written  disciplinary  

                                                                -2-                                                         7419

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

decision report and the form for appealing the decision. DeRemer submitted his appeal,                                                                                           

but he subsequently received a memorandum from the disciplinary clerk informing him                                                                                                     

that his appeal had not been received by the deadline.                                                                 1  


                              In September 2012 DeRemer filed an administrative appeal in the superior  


court. For reasons not apparent from the record, nothing transpired regarding his appeal  


for over two years.  In March 2015 he received a memorandum from the Spring Creek  


superintendent informing him that his August 2012 disciplinary infraction had been  


dismissed and the entire record would be removed from his file.  A few days later, DOC  


filed a motion to dismiss DeRemer's superior court administrative appeal as moot;  


DeRemer  filed  a  motion  for  costs,  and  the  superior  court  granted  both  motions.  


DeRemer then filed a motion to "preserve evidence of a crime," asking the court to direct  

                                                                                                                                                  2   DOC opposed, and  



DOC to preserve the audio recording from his disciplinary hearing. 

the court denied DeRemer's motion after concluding it no longer had jurisdiction.  


                              DeRemer then asked Spring Creek to preserve the audio recording fromhis  


disciplinary  hearing; according  to  DeRemer's complaint,  a disciplinary  officer  told  


DeRemer that the recording was still stored and assured him that the recording would be  


kept for at least eight years. In April 2015 DeRemer filed a grievance alleging that DOC  


and its employees had violated his fundamental constitutional rights "out of possible  


retaliation." The grievance was denied; DeRemer filed an administrative appeal and the  


prison superintendent upheld the denial.  


               1              DeRemer maintained that he submitted his appeal on time, and he formally                                                                        

requested that a DOC staff member review security footage to establish that he had timely                                                                                          

submitted his appeal.                            His request was denied.               

               2              See AS 11.76.110.  


                                                                                             -3-                                                                                     7419

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

                 B.               Proceedings  

                                  In May 2015 DeRemer, self-represented, filed a civil complaint in superior                                                                                           

court.   He listed DOC employees Craig Turnbull, DiAnne Reimer, and Brian Morris as                                                                                                                                   

defendants.    He stated that his civil complaint was "brought pursuant to 42 U.S.C.                                                                                                                                  

 1983" alleging "retaliation, hindering access to the courts, refusal to investigate false                                                                                                                     

allegations by Alaska DOC employees, and violations of due process rights" stemming                                                                                                               

from the August 2012 disciplinary action against him.                                                                                            He alleged violations of his                                      


"fundamental" constitutional rights, retaliation,                                                                                                                                                                 

                                                                                                                         violations of due process, knowing and  


deliberate "spoliation of video evidence," and violation of his rights under the First and  


Fourteenth Amendments and under the Alaska Constitution.  He requested declaratory  


relief stating that Morris retaliated against him for defending himself in the disciplinary  


hearing; that Reimer violated his constitutional rights by wrongfully enforcing time  


limits  against  him,  refusing  to  forward  his  disciplinary  appeal  to  the  facility  


superintendent,  and  hindering him from seeking  an administrative appeal; and that  


Turnbull violated his constitutional rights by refusing to investigate his claim, failing to  


preserve his audio evidence, and refusing to answer his disciplinary appeal.  He also  


requested compensatory damages, punitive damages, and a jury trial.  


                                  DeRemer  served  Turnbull  and  Morris,  but  Reimer  ultimately  evaded  


service.  In September 2016 Turnbull and Morris moved to dismiss the claims against  


Reimer for failure to timely effectuate service. In December the superior court dismissed  

                                                                    4     Turnbull and Morris also moved to dismiss DeRemer's  


all claims against Reimer. 

complaint pursuant to Alaska Civil Rule 12(b)(6) for failure to state a claim upon which  



                                  This retaliation gives rise to DeRemer's First Amendment claim.                                                                                     

                 4                DeRemer does not appeal the superior court's order dismissing the claims  


against Reimer.  


                                                                                                          -4-                                                                                                  7419

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relief could be granted. In April 2017 the superior court summarily granted Turnbull and                                                                                                                    

Morris's motion to dismiss; the court used the proposed order submitted by DOC, which                                                                                                       

stated the court was dismissing DeRemer's case "for the reasons set forth in defendants'                                                                                       

motion."   DeRemer appeals.   

III.            STANDARD OF REVIEW                         


                               We review de novo decisions granting motions to dismiss.                                                                                   

IV.             DISCUSSION  


                               Alaska  Civil  Rule  12(b)(6)  permits  a  defendant  to  seek  dismissal  of  a  


plaintiff's  complaint  if  the  complaint  fails  to  state  a  claim  upon  which  relief  can  be  


granted.  "We have explained that  '[i]f, within the framework of the complaint, evidence  


may be introduced which will sustain a grant of relief to the plaintiff, the complaint is  


sufficient.  We must presume all factual allegations of the complaint to be true and make  



all reasonable inferences in favor of the non-moving party.' "                                                                                           "Because motions  to  


dismiss are disfavored, '[a] complaint should not be dismissed for failure to state a claim  


unless it appears beyond doubt that the plaintiff can prove no set of facts that would  



entitle him or her to relief.' "                                           "Even if the relief demanded is unavailable, the claim  


should not be dismissed as long as some relief might be available on the basis of the  



alleged facts."                        "Pleadings of pro se litigants are held to less stringent standards than  

                5              Adkins v. Stansel                       , 204 P.3d 1031, 1033 (Alaska 2009).                                                    



                               Id. (alteration in original) (quoting Belluomini v. Fred Meyer of Alaska, Inc. ,  


993 P.2d 1009, 1014 (Alaska 1999)).  

                7              Id. (alteration in original) (quoting Catholic Bishop of N. Alaska v. Does 1-6,  


 141 P.3d 719, 722 (Alaska 2006)).  


                8              Id.  

                                                                                                  -5-                                                                                          7419

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those of lawyers."                


           A.	        It Was Error To Dismiss DeRemer's Complaint Without Addressing  


                      His First Amendment Retaliation Claim.  


                      DeRemer  argues  that  the  superior  court  erred  when  it  dismissed  his  


complaint  for  failure  to  state  a  claim.                           He  asserts  that  the  court  held  him  to  an  


unreasonable and unfair standard.  Turnbull and Morris respond that the court correctly  


dismissed DeRemer's complaint and ask us to affirm the court's decision.  


                      When considering a Rule 12(b)(6) motion to dismiss for failure to state a  



claim, we construe the complaint liberally and accept as true all factual allegations.                                                       In  


his complaint DeRemer alleged that Morris violated his fundamental constitutional rights  



under the First Amendment of the United States Constitution by retaliating against him. 


In this context a First Amendment retaliation claim involves "(1) [a]n assertion that a state  


actor  took  some  adverse  action  against  an  inmate  (2)  because  of  (3)  that  prisoner's  


protected  conduct,  and  that  such  action  (4)  chilled  the  inmate's  exercise  of  his  First  


Amendment rights, and (5) the action did not reasonably advance a legitimate correctional  



goal."           DeRemer  alleged  that  during  his  disciplinary  hearing  he  "challenged  the  


credibility  of  the  disciplinary  report,"  "challenged  the  credibility  of  the  disciplinary  


forum," argued that the hearing was being held outside of the required time limits, and  

           9          Id.   

           10         Id.  

           11         U.S.    Const.    amend.    I    ("Congress    shall   make   no    law   respecting    an  

establishment   of   religion,   or   prohibiting   the   free   exercise   thereof;   or   abridging   the  

freedom  of s   peech, o           r  of  the  press;  or  the r  ight  of  the p         eople p     eaceably  to  assemble, a   nd  

to  petition  the  Government  for  a  redress  of  grievances.").  



                      Rhodes  v.  Robinson ,  408  F.3d  559,  567-68  (9th  Cir.  2005)  (footnote  



                                                                      -6-	                                                               7419

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

argued that the hearing was wrongfully postponed.                                                                                                     DeRemer specifically alleged:                                      

                                       At   the   conclusion   of   the   disciplinary   hearing,   Defendant  

                                       Morris   made   his   disdain   for   [DeRemer]   and   [DeRemer's]  

                                       methods    of    challenging    the    disciplinary    infraction    for  

                                       procedural violations by the Alaska DOC and its employees                                                                                        

                                       very clear. . . . Defendant Morris actually stated, on the audio                                                                                                

                                       record no less, that he                                        was  going to reduce the infraction to an                                                                  

                                       "informational report."                                               But since [DeRemer] chose to play                                                            

                                       games   of a                       technical nature                                  as   to procedural requirements,                  

                                       Defendant Morris told [DeRemer] that he was finding [him]                                                                                                       

                                       "guilty" instead.                                 [Emphasis in original.]                                                

                                       The superior court entirely failed to address DeRemer's First Amendment                                                          

retaliation claim, dismissing DeRemer's complaint based on "the reasons set forth in                                                                                                                                                                    

defendants'   motion."    In   Turnbull   and   Morris's   motion   to   dismiss   they   asserted   that  

"DeRemer does not state any                                                               First Amendment claim,"                                                       concluding that "DeRemer's                       

constitutional   claims   all   sound   in   due   process,   under   either   the   U.S.   or   Alaska  

Constitutions."   The court adopted this reasoning despite DeRemer's express reliance on                                                                                                                                                               

the   First   Amendment   in   the   opening   paragraph   of   his   complaint   and   our   case   law  

directing courts to "liberally construe the complaint and treat all factual allegations in the                                                                                                                                                        


complaint   as   true."                                                                                                                                                                                                                             

                                                                       We  have  repeatedly  explained  that  motions  to  dismiss  are  


disfavored and that a complaint should not be dismissed "unless it appears beyond doubt  



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


                                       Moreover, DeRemer filed his complaint pro se and the "[p]leadings of pro  



se litigants are held to less stringent standards than those of lawyers."                                                                                                                                         "[W]e consider  

                    13                 Patterson v. Walker                                        , 429 P.3d 829, 831 (Alaska 2018).                                                                     



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

                    15                 Adkins , 204 P.3d at 1033.  


                                                                                                                           -7-                                                                                                                  7419

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


pro se pleadings liberally in an effort to determine what legal claims have been raised."                                                                   


Because  the  superior  court  relied  on  Turnbull  and  Morris's  rationale  for  dismissing  


DeRemer's  complaint, and because  Turnbull and  Morris failed  to  accurately  address  


DeRemer's First Amendment claim, the court did not acknowledge the retaliation claim.  


Given  this  error  we  reverse  the  court's  dismissal  of  DeRemer's  First  Amendment  


retaliation claim and remand this claim for further proceedings.  


            B.	         The  Superior  Court Did Not Err By  Dismissing The Remainder Of  


                        DeRemer's Claims.  


                        1.	         Claims based on the Alaska Constitution  


                        In his complaint DeRemer alleged that Turnbull and Morris were "guilty of  


violating [his] rights under the Alaska Constitution, Article I, Section(s)  1, 7, and 21,"  



                                               In Lowell v. Hayes we reiterated that we would "not allow a  

and he sought damages. 


constitutional claim for damages [under the Alaska Constitution], 'except in cases of  



flagrant constitutional violations where little or no alternative remedies are available.' "                                                                


And in State, Department of Corrections v. Heisey we explained that alternative remedies  

            16          Toliver   v.   Alaska   State   Comm'n   for   Human   Rights,   279   P.3d   619,   622  

(Alaska 2012).   



                        Alaska Const. art. I,  1 ("This constitution is dedicated to the principles that  


all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment  


of the rewards of their own industry; that all persons are equal and entitled to equal rights,  


opportunities,  and  protection  under  the  law;  and  that  all  persons  have  corresponding  


obligations to the people and to the State."); Alaska Const. art. I,  7 ("No person shall  


be  deprived  of  life,  liberty, or property, without due  process  of law. The  right of all  


persons to fair and just treatment in the course of legislative and executive investigations  


shall not be infringed."); Alaska Const. art. I,  21 ("The enumeration of rights in this  


constitution shall not impair or deny others retained by the people.").  



                        117 P.3d 745, 753 (Alaska 2005) (quoting Dick Fischer Dev. No. 2 v. State,  


Dep't. of Admin. , 838 P.2d 263, 268 (Alaska 1992)).  

                                                                           -8-	                                                                  7419

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


may include federal remedies, such as claims under 42 U.S.C.  1983.                                                                                           We noted that           

"[b]y matching his state constitutional claims to federal constitutional claims, Heisey                                                                                         

implicitly acknowledges that federal claims would, in fact, provide a remedy comparable                                                                                

to his state constitutional claims."                                      20  


                                                                                We explained that "[w]hile a  1983 claim may not  



be a complete remedy . . . it is a sufficient 'alternative remedy.' "                                                                                 

                              DeRemer's case is similar to Lowell and Heisey . DeRemer made claims for  


damages under the Alaska Constitution and also under 42 U.S.C.  1983.22 



pairing of his state constitutional claims with federal constitutional claims "implicitly  


acknowledges that federal claims would, in fact, provide a remedy comparable to his state  



constitutional claims."                                Because the availability of alternative remedies for DeRemer's  


Alaska constitutional claims is dispositive, we need not decide whether the constitutional  



violations DeRemer alleged were flagrant.                                                         We affirm the superior court's dismissal of  


DeRemer's claims under the Alaska Constitution.  

               19             271 P.3d 1082, 1096 (Alaska 2012).                                               

               20            Id.  at 1097.  


               21            Id.  


               22             "This civil complaint is brought pursuant to 42 U.S.C.  1983."  


               23            Heisey , 271 P.3d at 1097.  


               24            Id.  at 1098 ("As the availability of an alternative remedy is dispositive on  


the  issue  of  a  Bivens-type  remedy,  we  decline  to  reach  the  question  of  whether  the  


constitutional  violations  are  'flagrant.'  ");  see  also  Krause  v.  Matanuska-Susitna  


Borough ,  229  P.3d  168,  175  (Alaska  2010)  ("The  Krauses  also  make  an  argument  


regarding  whether  the  superior  court  could  have  properly  found  that  the  alleged  


constitutional violations were not flagrant.   Because the availability of an alternative  


remedy disposes of the damages claims, we need not consider that issue.").  


                                                                                             -9-                                                                                    7419

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

                             2.             Claims based on AS 11.76.110                   

                             In his complaint DeRemer alleged that Turnbull and Morris were "guilty of                                                                                  

violating    [his]    fundamental    constitutional    rights    in    a    manner    as    described    in  

AS   11.76.110."    Alaska Statute 11.76.110 makes it a crime to interfere with                                                                                            another  

person's constitutional rights.                                  The statutory language does not include a private cause of                                                             


action, but instead makes interference with constitutional rights a class A misdemeanor.                                                                                                     


In Belluomini v. Fred Meyer of Alaska, Inc.  we held that there was "no legal basis for  



recognizing  interference  with  a  constitutional  right  as  a  private  cause  of  action." 


Accordingly, we affirm the superior court's dismissal of DeRemer's claims under AS  




                             3.             Claims based on the Fourteenth Amendment  


                             In  his  complaint  DeRemer  alleged  several  violations  of  his  Fourteenth  


Amendment  due  process  rights:                                          failure  to  investigate,  spoliation  of  video  evidence,  


refusal to answer his disciplinary appeal, and other procedural violations resulting from  


his disciplinary  hearing.   Turnbull and  Morris  argue that the superior court correctly  


dismissed DeRemer's claims under the Fourteenth Amendment because "he did not have  


a protected liberty interest against placement in punitive segregation."  In  Wilkinson v.  


Austin the Supreme Court stated that "[t]he Fourteenth Amendment's Due Process Clause  


protects persons against deprivations of life, liberty, or property; and those who seek to  



invoke its procedural protection must establish that one of these interests is at stake." 


The Court explained that it "need reach the question of what process is due only if the  

               25            AS 11.76.110(c).                       



                             993  P.2d  1009,  1015  (Alaska  1999)  ("Thus,  Alaska's  criminal  statute  


prohibiting interference with a constitutional right, AS 11.76.110, does not itself imply  


a purely private cause of action.").  



                             545 U.S. 209, 221 (2005).  

                                                                                          -10-                                                                                   7419

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

inmate[] establish[es] a constitutionally protected liberty interest, so it is appropriate to                                                            

address this threshold question at the outset."                                  28  


                        Turnbull and Morris cite the U.S. Supreme Court's holding in Sandin v.  


Conner  that  a  punitive  action  taken  against  a  prisoner  must  equate  to  an  "atypical,  


significant  deprivation"  before  it  will  be  deemed  to  infringe  on  a  protected  liberty  



                    They  also cite the Ninth Circuit's statement in  Serrano v. Francis  that "it  


would  be  difficult  (we  do  not  say  impossible)  to  make  disciplinary  segregation  

sufficiently more restrictive than the condition of the general population . . . to count as  



an  atypical  and  significant  deprivation  of  liberty."                                          Turnbull  and  Morris  compare  


DeRemer's  alleged  due  process  violation  -  10  days  in  punitive  segregation  -  to  


instances where an "atypical and significant deprivation of liberty" was found.  As they  


correctly point out, DeRemer's deprivation is not atypical in comparison to Serrano :  the  


Ninth Circuit found that Serrano had identified a protected liberty interest "in his being  


free  from  confinement  in  a  non-handicapped-accessible  administrative  housing  unit"  


when his wheelchair was removed from his possession and he was forced "to endure a  



situation far worse than [that of] a non-disabled prisoner."                                             Because DeRemer's 10 days  

            28          Id.  

            29          515  U.S.  472,  486  (1995).   

            30          345  F.3d   1071,   1078  (9th  Cir.  2003)  (quoting   Wagner  v.  Hanks ,   128  F.3d  

 1173,   1174   (7th  Cir.   1997));  see  also  Brandon  v.  State,  Dep't.  of   Corr.,  73  P.3d   1230,  

 1234   (Alaska   2003)   ("[In   Sandin   v.   Conner],   the   Court   found   that   because   punitive  

segregation  is  almost  indistinguishable   from  administrative   segregation   and  protective  

custody, it 'did not present t  he type  of  atypical,  significant  deprivation  in  which  a  State  

might  conceivably  create  a  liberty  interest'  and  therefore  did  not  implicate  any  particular  

federal  due  process  rights."  (quoting  Sandin,  515  U.S.  at  486)).   



                        Serrano, 345 F.3d  at  1079; see  also Larson  v.  Cooper, 90 P.3d  125, 135  


                                                                          -11-                                                                     7419

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

in punitive segregation was not an atypical and significant hardship resulting from the                                                                            

alleged violation of his Fourteenth Amendment rights, we need not reach the question of                                                                              


what process was due.                                                                                                                               

                                                  We affirm the superior court's dismissal of these Fourteenth  


Amendment claims.  


                          4.           Claims For Declaratory Relief  


                          In his complaint DeRemer also sought a declaration that Turnbull, Morris,  



and  Reimer violated  his  fundamental  constitutional rights,                                                          and  on appeal DeRemer  


argues this declaratory relief was wrongfully denied.  As stated above, the superior court  


summarily dismissed DeRemer's complaint, adopting the reasoning from Turnbull and  


Morris's motion to dismiss.   This motion listed claims that DeRemer identified in the  


complaint as claims for declaratory relief.  For the same reasons as apply to DeRemer's  



other claims for relief,                        the claims for declaratory relief were properly dismissed.  We  


affirm the court's dismissal of DeRemer's request for declaratory relief.  

V.           CONCLUSION  


                          We   REVERSE   the   superior   court's   dismissal   of   DeRemer's   First  


Amendment retaliation claim, and we REMAND for the superior court to consider these  


claims.          We  AFFIRM  the  superior  court's  dismissal  of  the  remainder  of  DeRemer's  



(Alaska 2004) (discussing the U.S. Supreme Court's determination in Sandin v. Conner  


that "placing a prisoner in solitary confinement for thirty days 'did not work a major  


disruption in his environment' " (quoting Sandin, 515 U.S. at 486)).  


             32           Wilkinson, 545 U.S. at 221.  




                          Because the superior court's order dismissing DeRemer's claims against  


Reimer was not appealed, his request for declaratory relief against her is not at issue.  

             34           See supra sections IV.B.1-3.  


                                                                                -12-                                                                           7419

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