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Broeckel v. Alaska Dep't. of Corrections (6/20/97), 941 P 2d 893
Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring errors to
the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, telephone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
MARLIN J. BROECKEL, )
) Supreme Court No. S-7131
) Superior Court No.
v. ) 3AN-94-9830 CI
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF CORRECTIONS, FRANK J. )
PREWITT, JR., Commissioner ) [No. 4837 - June 20, 1997]
of the Department of )
Corrections, ARTHUR SCHMIDT, )
Superintendent of the Palmer )
Correctional Center, each in )
their official capacity, )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Milton M. Souter, Judge
Appearances: Marlin J. Broeckel, pro se,
Palmer, Appellant. Marilyn J. Kamm, Assistant Attorney General,
and Bruce M. Botelho, Attorney General, Juneau, for Appellees.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
Marlin J. Broeckel, an inmate at the minimum security
facility at Palmer Correctional Center (PCC), sued the Alaska
Department of Corrections, its commissioner, and the superintendent
of PCC for breach of contract. The superior court denied motions
to add Broeckel's wife as a plaintiff and dismissed Broeckel's
claims for failure to exhaust administrative remedies. We affirm
the superior court's decision.
II. FACTS AND PROCEEDINGS
On July 19, 1994, Broeckel submitted to PCC officials a
"Prisoner Personal Property Inventory"form requesting permission
to receive certain computer equipment, including a scanner. The
State concedes that an officer at PCC circled "approved"on the
request form. [Fn. 1] However, it asserts that the officer failed
to realize that the form included a request for a scanner because
that request was on the back of the form.
Based upon this "approval,"Broeckel's wife borrowed an
undisclosed amount from the National Bank of Alaska. Then, on
approximately August 30, she purchased a scanner from an Anchorage
computer supplier. A few days later, Broeckel received the scanner
On September 28 prison authorities ordered Broeckel to
surrender the scanner. Broeckel did so under protest and gave the
scanner to his wife. Broeckel's wife was unable to obtain a refund
from the scanner's supplier and has no use for a scanner of her
The Department of Corrections has an inmate grievance
procedure that consists of four levels. At Level One, an inmate
attempts to resolve his grievance informally with the prison's
staff. Formal grievance procedures begin at Level Two. At that
level, the prisoner grievance coordinator assigns a grievance
investigator to make findings and recommendations. The coordinator
must issue a written determination within ten working days after
receiving the inmate's formal grievance. Level Three permits the
inmate to appeal the Level Two decision to the prison
superintendent. The superintendent must review the grievance, the
coordinator's decision, and the investigator's report and issue a
written decision within five working days. Finally, the inmate may
appeal the superintendent's decision to the Regional Director.
Within fifteen working days, the Regional Director must review all
of the materials assembled throughout the prior three procedural
levels and issue a final decision.
Broeckel informally sought to have PCC reimburse him for
the cost of the scanner. Although these informal measures were
unsuccessful, he never lodged a formal grievance. Instead, he sued
the Department of Corrections, its then-Commissioner Frank J.
Prewitt, Jr., and PCC Superintendent Arthur Schmidt (collectively,
DOC) for breach of contract. In his complaint, Broeckel sought
monetary damages, "immediate implementation of any necessary
changes or safeguards [the court] deems just and proper to insure
that plaintiff does not suffer monetary damages in the future,"
attorney's fees, and "such other and further relief as the court
deems just and proper."
Subsequently, Broeckel moved to add his wife as a
plaintiff. The superior court denied this motion because Broeckel
was "not authorized by law to include Mrs. Broeckel as a plaintiff
in this case, because he is not her agent or attorney." Broeckel's
wife then moved to add herself as a plaintiff. The superior court
denied her motion because she "lack[ed] a sufficient legal interest
in the claim presented in this case to have standing under the law
to be co-plaintiff with Marlin Broeckel."
On March 8, 1995, DOC moved to amend its answer and to
dismiss the complaint for Broeckel's failure to exhaust his
administrative remedies. Broeckel responded by suggesting that the
exhaustion of remedies requirement did not apply to his situation.
He also filed renewed motions to add his wife as a plaintiff and
claimed that if the court granted these motions, the exhaustion of
remedies issue would become irrelevant.
The superior court made no express disposition of
Broeckel's renewed motions to amend his complaint and add his wife
as a plaintiff. Instead, the court granted DOC's motions to amend
its reply and to dismiss Broeckel's complaint for failure to
exhaust administrative remedies.
On appeal to this court, Broeckel claims that his failure
to exhaust administrative remedies was excused and that the
superior court erred in refusing to add his wife as a plaintiff.
A. The Superior Court Did Not Abuse Its Discretion When It
Dismissed Broeckel's Complaint for Failure to Exhaust
Administrative Remedies. [Fn. 2]
1. The exhaustion requirement applies to prison
The threshold question is whether the exhaustion of
remedies doctrine is applicable to prison inmates' grievances. See
Eidelson v. Archer, 645 P.2d 171, 175 (Alaska 1982). Although
other jurisdictions [Fn. 3] apply the doctrine to inmates'
grievances, this is an issue of first impression in Alaska.
We have often applied the exhaustion of administrative
remedies doctrine to cases involving the decisions of governmental
entities. See, e.g., Voigt v. Snowden, 923 P.2d 778, 781-82
(Alaska 1996); Ben Lomond, Inc. v. Municipality of Anchorage, 761
P.2d 119, 121-22 (Alaska 1988). In those cases, we stated that
several factors weigh in favor of requiring exhaustion of remedies.
See, e.g., Voigt, 923 P.2d at 781; Ben Lomond, 761 P.2d at 121-22.
In particular, the doctrine permits the entity whose decision is
being challenged to perform functions within its "special
competence and expertise." Eufemio v. Kodiak Island Hosp., 837
P.2d 95, 99 (Alaska 1992). These functions include allowing the
agency to correct its own errors so as to moot judicial
controversies, develop a factual record, and discourage the
"deliberate flouting of its processes." Id. Thus, the doctrine
"is an expression of administrative autonomy and a rule of sound
judicial administration." Ben Lomond, 761 P.2d at 121 (quoting
State, Dep't of Labor v. University of Alaska, 664 P.2d 575, 581
We conclude that the policy interests outlined in Voigt,
Ben Lomond, and Eufemio weigh strongly in favor of applying the
exhaustion of remedies doctrine to prison inmates' grievances.
Prisons have a significant interest in discouraging inmates from
defying prison procedures. As the United States Supreme Court
stated, "it is possible that frequent and deliberate flouting of
administrative processes could weaken the effectiveness of an
agency by encouraging people to ignore its procedures." McKart v.
United States, 395 U.S. 185, 195 (1969). In addition, sound
principles of judicial economy support a requirement that a prison
inmate must exhaust available prison grievance procedures before
asserting a claim in court.
2. Broeckel failed to exhaust available administrative
As outlined above, PCC offers four levels of procedures
for resolving prisoners' grievances. However, Broeckel used only
the informal procedures of the first level before asserting his
breach of contract claim in the superior court. Nevertheless,
Broeckel argues that he satisfied the exhaustion requirement by
making "a good faith effort to pursue the grievance internally."
Although we require claimants to have made "at least a 'good faith
effort' to pursue [grievances] internally,"Eufemio v. Kodiak
Island Hosp., 837 P.2d 95, 100 (Alaska 1992) (quoting Casey v. City
of Fairbanks, 670 P.2d 1133, 1136-37 (Alaska 1983)), we do not
agree that Broeckel made such an effort because he did not attempt
to use PCC's formal grievance procedures.
3. Broeckel is not excused from exhausting his
Next Broeckel argues that he is excused from exhausting
his remedies because any attempt to seek redress through
administrative channels would have been futile or impractical.
Specifically, Broeckel asserts that he did not need to use PCC's
formal grievance procedures because (1) PCC officials had prejudged
the merits of his claims, (2) a new PCC policy prohibiting scanners
demonstrated that PCC would inevitably deny his claims, and (3) the
administrative processes available to him were procedurally
defective. [Fn. 4] The State contends that Broeckel waived these
arguments by failing to raise them in the superior court.
a. Broeckel did not waive his claim that PCC
officials had prejudged the merits of his claims.
"We will not consider new arguments on appeal which were
neither raised below nor included in the points on appeal unless
the new issues either establish plain error or 1) do not depend on
new or controverted facts; 2) are closely related to the
appellant's arguments at trial; and 3) could have been gleaned from
the pleadings." Arnett v. Baskous, 856 P.2d 790, 791 n.1 (Alaska
1993). During the trial court's proceedings, Broeckel stated:
The Department's stance concerning the
plaintiff's [Broeckel's] requested relief was made quite clear to
him and no relief was granted. . . . [T]he Compliance Officer
[James Ingersol], whom [sic] handles all "Prisoner Grievance's",
[sic] did not suggest that the plaintiff file a grievance because
through his own intervention, the fact that the plaintiff would
gain any relief through the utilization of such a method was nil.
The Compliance Officer had intervened and found that the plaintiff
would not gain the relief requested, namely, for reimbursement of
the cost of the computer scanner. The Compliance Officer would
have been the State Official who processed the grievance and surely
felt it would be a waste of his time & plaintiff's, having
discussed the matter with the administrative staff at this
Based upon these statements, we conclude that Broeckel
did not waive his argument that using the formal grievance
procedures would have been futile because officials at PCC
allegedly had prejudged the merits of his case. However, the
record contains no evidence that Broeckel made any arguments in the
superior court that relate to PCC's new computer scanner policy or
allegedly deficient PCC prisoner grievance procedures. Moreover,
the success of these two arguments depends upon new or controverted
facts because Broeckel relies upon assertions that are not
supported by any portion of the record that was before the superior
Finally, these two arguments do not "establish plain
error." "Plain error exists where an obvious mistake has been made
which creates a high likelihood that injustice has resulted."
Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1124 (Alaska 1996) (quoting
Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981)). In this case,
Broeckel asserts that PCC's new computer scanner policy renders
futile any administrative claim he could make. However, his own
evidence suggests that the scanner policy entered into effect at
PCC nearly two months after he surrendered the scanner. And, he
does not argue that the authorities who would hear his
administrative grievance would not have authority to allow him to
keep the scanner despite the subsequently enacted policy.
Similarly, Broeckel has not demonstrated that defects in
PCC's grievance procedures establish plain error. He argues that
the grievance procedure is "long-drawn out, wasteful and
oppressive"and that it fails to provide a "right to present
evidence and witnesses and cross-examine and challenge adverse
evidence and witnesses, et cetera." However, Broeckel cites no
evidence to substantiate these claims. In fact, contrary to his
claims, the grievance policy apparently permits inmates to
challenge the grievance investigator's report and requires prison
officials to resolve grievances in a short time frame. Therefore,
we conclude that Broeckel has waived his arguments relating to
PCC's new computer scanner policy and PCC's allegedly deficient
b. Broeckel has not established futility on
grounds of decision maker bias.
Broeckel alleges that a formal grievance would have been
futile because the people who would have determined its outcome
were biased. Specifically, he asserts that PCC Compliance Officer
James Ingersol [Fn. 5] had indicated that Broeckel would not gain
any relief through PCC's grievance process. In addition, Broeckel
apparently suggests that because Superintendent Arthur Schmidt
"admit[ted] to having held internal meetings regarding Broeckel's
request,"Schmidt must have concurred with Ingersol.
Significantly, however, Broeckel does not point to any facts that
suggest bias on the part of the Regional Director, who would have
decided Broeckel's Level Four administrative appeal. Instead, he
makes a general, unsubstantiated claim that all employees of the
Department of Corrections are prejudiced against prisoners' claims.
We have held that "[w]here exhaustion of administrative
remedies will be futile because of the certainty of an adverse
decision, a party need not obtain a final agency ruling before
seeking judicial review." Standard Alaska Prod. Co. v. State,
Dep't of Revenue, 773 P.2d 201, 209 (Alaska 1989). However, in
Municipality of Anchorage v. Higgins, we concluded that an
administrative remedy was not futile, although "two of the
[remedy's] three steps . . . involved appeals to the very
individuals responsible for [the action under protest],"because
the third step of the remedy was not demonstrably futile. 754 P.2d
745, 747-48 (Alaska 1988); see also Voigt v. Snowden, 923 P.2d 778,
781-82 (Alaska 1996) (stating that administrative procedures are
not futile where ultimate administrative decision rests with one
who was only minimally involved with prior administrative stages).
Higgins is analogous to Broeckel's situation. Even if his formal
grievance would have gone to Ingersol and Schmidt and even if both
Ingersol and Schmidt had prejudged the merits of Broeckel's claim,
Broeckel could have appealed to the Regional Director. There is no
evidence that the Regional Director was biased. Therefore,
Broeckel is not excused from exhausting his administrative
remedies. [Fn. 6]
B. The Superior Court Did Not Err in Denying Attempts to Add
Broeckel's Wife as a Plaintiff. [Fn. 7]
Broeckel also appeals the superior court's actions
relating to three motions to add his wife as a plaintiff. [Fn. 8]
The superior court denied the first motion, which Broeckel's wife
submitted herself, based upon its finding that she lacked a
sufficient legal interest to have standing. In response, Broeckel
filed a pair of motions, acting for his wife under a power of
attorney, to amend the complaint [Fn. 9] and to add her as a
plaintiff. The superior court dismissed the complaint instead of
ruling on the last pair of motions. We conclude that the superior
court did not err.
1. The superior court effectively denied Broeckel's
last pair of motions.
The State argues that we should not consider Broeckel's
last pair of motions to amend the complaint and add his wife as a
plaintiff because "the trial court did not rule on either motion."
"Ordinarily, an appellate court does not pass on questions raised
but not ruled on in the court below . . . ." 4 C.J.S. Appeal &
Error sec. 220, at 299 (1993). However, "[a] ruling by implication
may be sufficient to present a question for review, and . . .
silence or a failure or refusal to rule may often be given the
effect of a ruling, unless the matter was never brought to the
attention of the court." Id. at 300.
In this case, Broeckel's motions were brought to the
attention of the court by Broeckel's written motions and supporting
memoranda and DOC's written response. By granting DOC's motion to
dismiss, the superior court effectively denied Broeckel's motions.
We therefore review the superior court's implied denial for error.
2. Broeckel's wife does not have standing to sue DOC
for breach of contract.
To review the superior court's refusal to add Broeckel's
wife as a plaintiff, we must consider whether she has standing to
sue DOC for breach of contract. We have stated that "[u]nder the
interest-injury approach, a 'party asserting standing [must
demonstrate] a sufficient "personal stake"in the outcome of the
controversy to ensure the requisite adversity.'"Kleven v. Yukon-
Koyukuk Sch. Dist., 853 P.2d 518, 525 (Alaska 1993) (quoting Hoblit
v. Commissioner of Natural Resources, 678 P.2d 1337, 1340 (Alaska
1984)). We conclude that Broeckel's wife does not have a
sufficient personal stake to assert a breach of contract claim
In his complaint, Broeckel alleges that PCC's "approval"
of the scanner amounts to a legally enforceable promise. However,
even if an enforceable promise exists, Broeckel -- rather than his
wife -- would be the promisee. Thus, there is no enforceable
promise between PCC officials and Broeckel's wife.
Broeckel's complaint also suggests that PCC's alleged
approval reasonably induced his wife to purchase the scanner for
him. The Restatement (Second) of Contracts sec. 90(1)(1979) states
that "[a] promise which the promisor should reasonably expect to
induce action or forbearance on the part of . . . a third person
and which does induce such action or forbearance is binding if
injustice can be avoided only by enforcement of the promise."
Comment c clarifies the general rule:
If a promise is made to one party for the
benefit of another, it is often foreseeable that the beneficiary
will rely on the promise. . . . Justifiable reliance by third
persons who are not beneficiaries is less likely, but may sometimes
reinforce the claim of the promisee or beneficiary.
In this case, Broeckel's wife is not a third-party
beneficiary because the only benefit she would receive from PCC's
performance of the alleged contract is the satisfaction of knowing
that her husband has a scanner. We decline to conclude that this
is a sufficient benefit to render a third party a beneficiary of a
contract. Instead, we characterize any justifiable reliance by
Broeckel's wife as that of a third-party non-beneficiary that may
reinforce Broeckel's claims against DOC. Thus, if PCC officials
approved Broeckel's request for a scanner in a way that is legally
enforceable, Broeckel may receive compensation for reasonable
expenses that he can prove his wife incurred in obtaining the
Because Broeckel's wife is not a third-party beneficiary
of the alleged contract, she does not have a sufficient personal
stake to have standing to bring a cause of action for breach of
contract. Therefore, we conclude that the superior court did not
err in declining to add Broeckel's wife as a plaintiff under her
motion or Broeckel's two motions.
C. The Superior Court Did Not Err in Granting DOC's Motion
for Leave to File an Amended Answer. [Fn. 10]
In the trial court, DOC filed an amended answer in which
it argued for the first time that Broeckel failed to exhaust his
administrative remedies. Broeckel alleges in passing that the
court should not have allowed DOC to file an amended answer. We
agree with the State that Broeckel abandoned this argument by
omitting it from his points on appeal. Braun v. Alaska Commercial
Fishing & Agric. Bank, 816 P.2d 140, 145 (Alaska 1991).
Furthermore, the State correctly points out that this argument
lacks merit because Broeckel has demonstrated no prejudice that
would indicate that the court abused its discretion to grant this
motion. See Merrill v. Faltin, 430 P.2d 913, 915 (1967)
(indicating that a court should consider whether to allow a party
to amend its answer by considering the disadvantages to the parties
that would occur as a result of permitting or not permitting the
amendment). Therefore, we affirm the superior court's decision to
allow DOC to amend its answer.
We conclude that the superior court did not err when it
dismissed Broeckel's breach of contract claim. Broeckel failed to
exhaust his administrative remedies, and he has not demonstrated
that his failure was excused. In addition, we determine that
Broeckel's wife does not have a sufficient personal stake in the
outcome of this case to join her husband as a plaintiff.
Therefore, we AFFIRM the superior court's decision.
Broeckel alleges without record support that the officer also
gave oral permission for him to receive a scanner.
"It is within the superior court's discretion whether to
require the exhaustion of administrative or organizational remedies
before reviewing an issue or claim." Eufemio v. Kodiak Island
Hosp., 837 P.2d 95, 98 (Alaska 1992). Thus, we must determine
whether the superior court abused its discretion when it dismissed
Broeckel's complaint for failure to exhaust administrative
remedies. Id. "We 'will 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.'"Id.
(quoting Morgan v. State, Dep't of Revenue, 813 P.2d 295, 297 n.4
E.g., In re Serna, 143 Cal. Rptr. 350, 351-52 (Cal. App. 1978)
("The well established doctrine of exhaustion of administrative
remedies applies to grievances lodged by prisoners."); Hakeem v.
Wong, 636 N.Y.S.2d 440, 441 (N.Y. App. Div. 1996).
Broeckel also argues that his failure to exhaust
administrative remedies should be excused because his claim does
not involve any questions of fact. We disagree. To state his
case, Broeckel frequently cites to a "supplemental excerpt,"which
contains documents and allegations that are not found in the trial
court's record. The State contests the factual basis of Broeckel's
claims relating to these supplemental documents. In addition,
Broeckel makes several contested assertions without any citation to
the record, excerpt, or supplemental excerpt. The materials
contained in Broeckel's supplemental excerpt are not properly part
of the appellate record and therefore cannot be considered by this
court as furnishing support for Broeckel's position. See Alaska R.
App. P. 210(a).
Although Broeckel contends that Ingersol "would have been the
State Official who processed the grievance,"Ingersol's role in the
grievance process is not clear.
PCC's grievance policy requires inmates to file a formal
grievance within 30 days after the date of the incident. The
record indicates that PCC officials ordered Broeckel to surrender
the scanner on September 28, 1994. Because Broeckel filed his
complaint with the superior court within 30 days, his failure to
file a timely formal grievance does not bar him from now pursuing
PCC's formal grievance procedures. However, he must do so within
30 days from the date of this decision.
Broeckel's argument requires us to examine whether Melanie
Broeckel had standing to bring a breach of contract claim against
the State. The doctrine of standing is a matter of judicial
policy, and as such, is a question of law that we review using our
independent judgment. Kleven v. Yukon-Koyukuk Sch. Dist., 853 P.2d
518, 525 n.13 (Alaska 1993).
Broeckel initially filed a "Motion to Append Caption Heading"
that sought to add his wife as a plaintiff. The superior court
denied the motion stating, "Marlin J. Broeckel is not authorized by
law to include Mrs. Broeckel as a plaintiff in this case, because
he is not her agent or attorney." Broeckel has not appealed this
In the amended complaint, Broeckel essentially sought to add
his wife as a plaintiff.
We review a trial court's decision to grant or deny leave to
amend pleadings under the abuse of discretion standard. Merrill v.
Faltin, 430 P.2d 913, 915 (Alaska 1967).