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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Greywolf v. Carroll (01/05/2007) sp-6089
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| T.C. GREYWOLF, | ) |
| ) Supreme Court No. S- 11830 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 4FA-01-02916 CI |
| ) | |
| WILLIAM N. CARROLL, M.D., | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6089 - January 5, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Randy M. Olsen, Judge.
Appearances: James M. Hackett, Law Office
of James M. Hackett, Fairbanks, for
Appellant. Donna M. Meyers, Delaney, Wiles,
Hayes, Gerety, Ellis & Young, Inc.,
Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Fabe, and Carpeneti, Justices. [Eastaugh,
Justice, not participating.]
FABE, Justice.
I. INTRODUCTION
A mental health unit patient, T.C. Greywolf, was
arrested at Fairbanks Memorial Hospital and discharged to
Fairbanks Correctional Center on a charge of felony assault in
the third degree because she had allegedly threatened to harm her
psychiatrist, Dr. William Carroll. After Greywolf was acquitted
in her criminal trial, she filed a lawsuit against Dr. Carroll
for (1) malicious prosecution; (2) abuse of process; (3) invasion
of privacy; and (4) medical malpractice. The superior court
granted summary judgment in favor of Dr. Carroll on three of the
claims, ruling that Greywolf had failed to establish genuine
issues of material facts on each element of the respective
claims. The superior court dismissed the fourth claim on the
ground that Dr. Carroll was protected by the doctrine of absolute
quasi-judicial immunity. We affirm the superior courts summary
judgment rulings.
II. FACTS AND PROCEEDINGS
At the time of the events leading to this case, T.C.
Greywolf was thirty-nine years old, had a ten-year history of
multiple psychiatric hospitalizations, and had been confirmed as
suffering from Post Traumatic Stress Disorder. Dr. William
Carroll is a psychiatrist who usually lives and practices in
Anchorage but temporarily practiced at Fairbanks Memorial
Hospital whenever the hospital did not have a local psychiatrist.
Dr. Carrolls first contact with Greywolf was in May
2000, when she was admitted to Fairbanks Memorial Hospital twice
within a three-week period because she had attempted suicide.
Greywolfs medical records indicated that she had a long history
of self-abuse previous to May 2000, including acts of cutting,
poisoning, and attempting to hang herself. Greywolf was treated
again by Dr. Carroll in August 2000.
On September 18, 2000, Greywolf stood outside Fairbanks
Memorial Hospital and held a gun to her chest with a single round
in the chamber. After approximately thirty minutes, she shot
herself in the chest. She was treated at Fairbanks Memorial
Hospital and then transported to Anchorage, first to Providence
Hospital for treatment of the wound and then to the Alaska
Psychiatric Institute (API). Dr. Carroll treated her both at
Fairbanks Memorial Hospital before the shooting and at API in
September. Greywolf was also seen by Dr. Mark Erickson, who
diagnosed Greywolf with Post Traumatic Stress Disorder and
Depressive Disorder on Axis I and Borderline Personality on Axis
III.
Greywolf later told Dr. Pogos Voskanian, a psychiatrist
hired by Greywolfs lawyer to evaluate the level of care provided
to Greywolf by Dr. Carroll, that she had filed a grievance
against Dr. Carroll one day before she was discharged from API
because Dr. Carroll had discussed Greywolfs case in front of the
staff and other patients and because he was demeaning.
Greywolf was released from API on an unknown date and
returned to Fairbanks. On November 8, 2000, Dr. Carroll admitted
her to Fairbanks Memorial Hospital for an involuntary seventy-two-
hour evaluation because she was threatening suicide. Dr. Carroll
discharged her two days later, on November 10, because he
determined that she did not meet the standards for involuntary
commitment under AS 47.30.700.1
On November 10, 2000, Greywolf filed a second written
complaint against Dr. Carroll. She claimed that Dr. Carroll
should not have discussed her case with the trooper who had
brought her to Fairbanks Memorial Hospital on November 8 because
there was not a need to know. She also complained that she was
denied Paxil, the medicine she usually takes, and that the denial
of medication was detrimental to her. Greywolfs complaint was
filed with the manager, presumably of Fairbanks Memorial
Hospitals mental health unit, and is stamped as having been
witnessed by Dr. Carroll.
Four days later, on November 14, 2000, after discussing
her options with a case manager at a community psychiatrists
office, Greywolf drove herself to Fairbanks Memorial Hospital and
was admitted on an involuntary basis to the locked mental health
unit. She was again threatening suicide. Dr. Carrolls
handwritten notes state that Greywolf does appear to be more
withdrawn. Greywolf reported at that time that she had not used
illegal drugs and was compliant with her medications.
Because he had admitted Greywolf on an involuntary
basis, Dr. Carroll applied for an ex parte order for seventy-two-
hour detention for evaluation from the court under AS 47.30.700.
Dr. Carroll wrote in the application that Greywolf was likely to
cause serious harm to self or others and listed as facts to
support the belief: [patient] complaining of feeling suicidal
with intent to harm herself. Superior Court Judge Charles R.
Pengilly issued an ex parte order for seventy-two-hour detention
for evaluation and appointment of attorney and mental health
professionals.2 That order included the direction that Greywolf
shall be examined at the evaluation facility by the locum tenens
doctor at Fairbanks Memorial Hospital, a mental health
professional and physician, and by Dr. Jane Krauss, a mental
health professional within 24 hours of arrival at the facility.
Dr. Carrolls handwritten notes on November 15, 2000
state that Greywolf was angry that morning because she did not
want to be in the closed unit and wanted more medication and a
medical evaluation of problems she can handle as an out-patient.
Dr. Carroll wrote at this point that [Greywolf] does not appear
sad or depress[ed] today. She is more aptly described as
simmering looking for a target for her rage. The nurses patient
care notes also state that Greywolf was angry on the morning of
November 15 but that she had calmed down by the end of the day.
On November 16, 2000, Dr. Carroll changed Greywolfs
admission status to voluntary.3 The court then issued an order
for dismissal of the petition for commitment. Greywolf does not
contend that the statutory requirements were not followed at that
time.
At about 2:45 p.m. on November 16, after Greywolfs
change to voluntary status, the nurses notes state that Greywolf
became increasingly agitated and went into her room and curled up
in the corner in a fetal position. She began to scream
obscenities directed at the nurse and Dr. Carroll. Security was
called. One of the nurses overheard Greywolf say that when I go
out again Im taking someone with me. Greywolf became
increasingly irate, threw her bedding and mattress around her
room, and smashed a plastic cup against the nursing station
window.
Although Dr. Carroll was not present in the unit, he
was notified about Greywolfs increasing agitation. He arrived in
the unit later in the day and spoke to Greywolf. Dr. Carroll
testified that when he spoke to her, Greywolf said something
like, you know, Im going to kill you and began making shooting
sounds and tracking him with her finger as if aiming a gun.
After Dr. Carroll left the unit, one of the nurses heard over the
two-way intercom what sounded like the patient imitating shooting
a gun.
When Dr. Carroll returned to talk to Greywolf a second
time at about 3:20 p.m. on November 16, she screamed profanities
at him. Dr. Carrolls handwritten notes indicate that Greywolf
was [m]aking gestures that she wants to shoot me and saying shell
get me. Nothing specific enough to press assault charges. The
nurses notes stated that Greywolfs anger was particularly
directed at Dr. Carroll because she felt she was not getting the
medication she wanted. After Dr. Carroll left the unit to attend
to another matter, a nurse succeeded in calming Greywolf down and
she ate her evening meal at 6:00 p.m. But at around 7:00 p.m.
Greywolf began banging her head against the wall and refused to
agree not to harm herself. The nurses notes state that Greywolf
curled up in a fetal position and began to wail. Dr. Carroll was
telephoned and he ordered over the phone that Greywolf be given
medication and be placed in four-point restraints to prevent self-
harm.
Greywolfs status was then changed back to involuntary
and the requisite paperwork completed. This time the order
issued by the court ordered that respondent be examined by locum
tenens at Fairbanks Memorial Hospital, a mental health
professional and physician, and by Dr. Steven Parker, a mental
health professional, within 24 hours of arrival at the facility.
Dr. Carroll observed Greywolf in four-point restraints
and wrote in his handwritten notes [w]hen I went to check on
[Greywolf] in four points, she appeared comfortable although she
refused to talk to me. At the same time the night shift reported
that she told the day staff that she was going to use her gun to
kill herself and take someone with her. At 8:00 p.m., Dr.
Carroll wrote an order to [n]otify the supervisor immediately
about this threat. At 8:00 p.m. one restraint was removed but
Greywolf remained in three-point restraints. Those restraints
were removed fully by 11:00 p.m.
On the morning of November 17, 2000, the nurses report
that Greywolf was calm and that she said I have nothing against
the staff, it is the MD Im angry at. Before Dr. Carroll arrived
at the hospital that morning, he had already decided that he
could no longer be Greywolfs psychiatrist and that the police
should be called because of her threats. He spoke to a hospital
administrator and stated that he could not continue working at
Fairbanks Memorial Hospital if Greywolf remained a patient there.
Dr. Carroll suggested that the police should be called, and told
the administrator that Greywolf should have a physician assigned
to her. Dr. Carroll stated that he probably also discussed with
the administrator transferring Greywolf to another facility.
Although Dr. Carroll did not speak to Greywolf on
November 17, he noted on the chart:
After yesterdays threat [and] todays lack of
remorse, I can no longer function as her
physician in any capacity. I hope that
pressing charges against [her] will have some
positive effect for her and end this endless
violence and senseless rage.
At this point she appears totally committed
to getting redress for what she sees as an
endless series of injustices.
She has no interest in making any changes
herself. She has never followed through with
our aftercare plans. Instead she has
insisted on displacing her rage onto me &
others in mental health rather than face her
fear of making any changes in her empty
loveless life.
Fairbanks Police Department officers arrived around
noon. Officer Korshin interviewed Dr. Carroll and described him
as shaky and nervous. Officer Korshin also interviewed Greywolf,
who denied having any intent to harm Dr. Carroll. Greywolf
explained to the officer that she intended Ill get you to mean
that she would sue Dr. Carroll for malpractice.
A statement from Dr. Carroll was taken on November 17,
2000. He wrote:
Yesterday, T.C. Greywolf threatened to kill
me and I [am] afraid to be around her.
After I made her a voluntary patient, I sat
with her to discuss what else she needed
before discharge. Instead she insisted on
questioning my actions in past admissions.
Particularly why I kept her on the locked
unit and why I had not ordered medications
when she demanded them. To be honest, I
could not reply to her questions without
looking at old charts. There have been so
many admits that I could not say for sure.
I also wanted to focus on the present. That
only made her angry. She became so verbally
abusive that I became afraid she was going to
attack me and backed out of the unit.
I later returned to see her but she was
pummeling her fists and smashing dinnerware
against the nurses [station]. Once she
settled down, I reentered the main room with
a security guard nearby to talk with [her].
This time she demanded a witness in the room
with us which I told her was not reasonable.
Again she became enraged that I was not
caring for her. As I backed out of the room
she said [] repeatedly that she was going to
get me. She kept [pantomiming] shooting me
as I stood talking with the nurses.
Officer Korshin determined that there was probable
cause to arrest Greywolf for assault based on his interviews with
Dr. Carroll, two nurses, and Greywolf. When the officer
explained the options of pressing charges or not, Dr. Carroll
indicated that he wanted to press charges. Greywolf did not
resist arrest and as she left the unit, she remarked to one of
the nurses, I guess you guys are rid of me now.
The District Attorneys office sought to indict Greywolf
for assault in the third degree under AS 11.41.220. The grand
jury heard from Dr. Carroll, the two nurses, and a police
officer, and it returned an indictment for assault based on
repeated threats under AS 11.41.220(a)(2). The superior court
issued a restraining order against Greywolf that enjoined her
from coming within 250 yards of Fairbanks Memorial Hospital or
Dr. Carroll.
Greywolf was scheduled for a bail hearing on January
17, 2001 and Dr. Carroll wrote a three-page letter to Judge
Richard D. Savell, the superior court judge hearing the request
for release. The letter was written in response to several
issues which [Greywolfs] attorney glossed over that might be
worthy of your time while considering her motion to be released
without supervision or restriction.4 Dr. Carroll expressed
concern that Greywolf still had access to guns. Near the end of
the letter, Dr. Carroll wrote I have come to realize that she
does not belong in the mental health system. No one in the state
or V.A. mental health system knows how to deal with someone so
lethal. Despite this letter, Greywolf appears to have been
released at some point into the custody of a third party,
although the release order is not in the record.
Greywolf filed motions to dismiss the indictment,
alleging that the facts did not establish probable cause for
felony assault in the third degree charges. Those motions were
denied. Greywolfs criminal trial was then held on April 3, 2001.
After the state presented its case-in-chief, the defense moved
for a judgment of acquittal. Judge Savell granted the motion and
acquitted Greywolf.
In his ruling granting acquittal, Judge Savell
identified four possible threats made by Greywolf. The first was
the statement overheard by the nurse that the next time Greywolf
shot herself, she was not going out alone. The superior court
ruled that this statement was not a true threat because it failed
to meet the requirements of intent and imminence. The other
three alleged threats were all statements or gestures made when
Greywolf was agitated on November 16. Judge Savell stated:
The court must determine that [the threat]
was so unequivocal, unconditional, immediate,
and specific as to the victim as to convey a
gravity of purpose and imminent prospect of
execution. The doctor was dealing with
someone in a locked mental ward and he had
the key. He had the ability on a phone call,
and exercised that ability, to keep Ms.
Greywolf confined. In fact, if anything, the
ability he lacked was and was frustrated in,
was the ability to get rid of Ms. Greywolf
from the ward.
Judge Savell therefore concluded that a reasonable jury could not
find that Greywolfs statements were threats that would constitute
assault under the statute. He also noted that the statutes
requirement of repeated threats could not be met by statements
and gestures made almost simultaneously.
After her acquittal, Greywolf sued Dr. Carroll for
malicious prosecution5 on December 31, 2001. She amended her
complaint on October 29, 2002 to add claims for invasion of
privacy against Dr. Carroll and claims against the City of
Fairbanks for deprivation of federal and civil rights under 42
U.S.C. 1983 and invasion of privacy.6 A second amended
complaint added a medical malpractice claim against Dr. Carroll
to the claims from the first amended complaint.
Superior Court Judge Randy J. Olsen dismissed the
malicious prosecution, abuse of process, and invasion of privacy
claims on summary judgment on June 29, 2004. Greywolfs medical
malpractice claim was allowed to proceed. On November 22, 2004,
Judge Olsen dismissed with prejudice the medical malpractice
claim on summary judgment based on the doctrine of absolute quasi-
judicial immunity. Greywolf filed a motion for reconsideration
that was denied by the trial court.
Greywolf now appeals the grant of summary judgment on
her claims of malicious prosecution, abuse of process, invasion
of privacy, and medical malpractice.
III. STANDARD OF REVIEW
Summary judgment is granted if the pleadings,
depositions, or other admissible evidence along with affidavits
show that there is no genuine issue of material fact and that a
party is entitled to judgment as a matter of law.7 We review a
grant of summary judgment de novo8 and in so doing draw all
reasonable inferences in favor of the nonmoving party to
determine whether the parties genuinely dispute any facts
material to a viable legal theory and, if not, whether the
undisputed facts entitle the movant to judgment as a matter of
law.9
[A] complete failure of proof concerning an essential
element of the nonmoving partys case necessarily renders all
other facts immaterial.10 The movant has the burden of showing
that there is an absence of a factual dispute on a material fact11
and that this absence of a dispute constitutes a failure of proof
on an essential element.12 If a prima facie case is established
by the movant, then the nonmoving party must set forth specific
facts showing that admissible evidence could be produced that
reasonably tends to dispute or contradict the moving partys
evidence in order to demonstrate the existence of a dispute of
material fact and prevent entry of summary judgment.13 Any
admissible evidence in favor of the nonmoving party concerning a
material fact is sufficient to render summary judgment
inappropriate.14
Whether probable cause exists is a mixed question of
law and fact.15 In the absence of clear error, we accept the
factual findings of the trial court.16 Once the historical facts
have been established, the existence or absence of probable cause
is a purely legal question that we review de novo.17 The question
of whether immunity exists as a defense to a claim is also a
matter of law reviewed de novo.18
IV. DISCUSSION
A. Malicious Prosecution
At trial, Greywolf claimed that Dr. Carroll
maliciously, and without probable cause, caused her wrongful
arrest knowing that he had insufficient information to justify
causing [Greywolfs] arrest. The following elements are required
to maintain a cause of action for the tort of malicious
prosecution:
(1) a criminal proceeding instituted or
continued by the defendant against the
plaintiff;
(2) termination of the proceeding in
favor of the plaintiff;
(3) absence of probable cause for the
proceeding; and
(4) malice or a primary purpose other
than that of bringing an offender to
justice.[19]
The superior court found sufficient participation by Dr. Carroll
in the initiation of the criminal proceedings to preserve the
cause of action on the first element. That the criminal case
terminated in favor of Greywolf is uncontested. The superior
court also found that there were questions of fact that prevented
summary judgment for Dr. Carroll on the fourth element requiring
malice. But because the trial court concluded that there was
probable cause to believe a crime had been committed and that Dr.
Carroll was justified in calling the police to make a report and
ask for an investigation, it granted summary judgment to Dr.
Carroll on the malicious prosecution claim.
The superior court found the following facts to be
undisputed: (1) that Greywolf had recently demonstrated both the
means and capacity to use a gun on herself in her attempted
suicide in September; (2) that she had declared an intention to
take someone with her the next time she attempted suicide; (3)
that she had told Dr. Carroll that she was going to get him; and
(4) that she had mimicked shooting him. Although she emphasizes
other facts in her argument, Greywolf does not offer any evidence
to establish a genuine dispute as to these underlying facts. But
Greywolf does argue that probable cause did not exist for her
arrest because Dr. Carroll knowingly supplied false information
to the arresting officer.
It is a settled rule that an arresting officers
exercise of his or her independent discretion in initiating and
maintaining the prosecution is a complete defense to an action
for malicious prosecution.20 But if a private person makes an
accusation of criminal misconduct about another to an official,
the person must believe that the accusation or information is
true.21 If the person knows the information to be false, an
intelligent exercise of the officers discretion becomes
impossible, and a prosecution based upon it is procured by the
person giving the false information.22 To survive summary
judgment, then, Greywolf must show that there is a genuine issue
of material fact whether Dr. Carroll in good faith believed his
own statements to the police or whether he deliberately misled
the police by suggesting that the situation was more serious than
it was.
Greywolf first claims that Dr. Carroll himself believed
that there was no probable cause for arrest. Greywolfs argument
is based on the fact that after she threatened Dr. Carroll on
November 16, 2000, Dr. Carroll wrote in his notes that Greywolf
had done [n]othing specific enough to press assault charges.
Greywolf claims that this note is [Dr.] Carrolls admission that
he lacked probable cause to accuse or press assault charges
against Greywolf. But Dr. Carroll testified that he made this
note prior to hearing from the staff of the night shift that
Greywolf told the day staff that she was going to use her gun to
kill herself and take someone with her. Upon hearing about this
threat from the night shift, Dr. Carroll made an additional note
to [n]otify the administration supervisor immediately about this
threat. Dr. Carroll also explained before the grand jury that it
was this additional information that caused him to decide to
consult the police. But Dr. Carrolls testimony on this point was
disputed. One of the day nurses testified to the grand jury that
she told Dr. Carroll about Greywolfs threat during the day,
before the note was written. Because we are reviewing a grant of
summary judgment to Dr. Carroll, all factual inferences must be
made in favor of the nonmoving party, Greywolf. However, Dr.
Carroll is not a law enforcement official, and at most, his note
represents his lay opinion regarding whether assault charges were
appropriate. As the trial court noted: [Dr.] Carroll cannot be
charged with knowing the law, nor deciding on the degree of
assault to be charged and the elements of each. Thus, Dr.
Carrolls lay assessment of whether the facts known to him were
sufficient to support an assault charge does not create a genuine
issue of material fact. And as there is no genuine issue of
material fact regarding whether Dr. Carroll believed that the
facts he provided to the police were true, the grant of summary
judgment was appropriate.
Greywolf then relies on statements made by Officer
Korshin at deposition to argue that Officer Korshin would not
have made the arrest on November 17 had he known that Greywolfs
threats had been made the previous day. But Officer Korshin also
testified that no one told him that the events occurred on
November 17, as opposed to November 16, and that he had merely
assumed it. And the written statement Dr. Carroll gave Officer
Korshin on November 17 clearly indicated that the events
described had occurred on November 16. Officer Korshin also
testified that Dr. Carroll did not appear anxious to have
Greywolf arrested and that Dr. Carroll appeared to be genuinely
scared. Finally, Officer Korshin made his decision to arrest
after talking to Dr. Carroll, two nurses, and to Greywolf
herself, and did not simply rely on Dr. Carrolls information.
Therefore, the record supports the conclusion that Officer
Korshin independently determined that there was probable cause to
arrest.
Probable cause to arrest does not require an actual
showing that [criminal] activity occurred but requires only a
fair probability or substantial chance of criminal activity.23
Probable cause to arrest exists if the facts and circumstances
known to the officer would support a reasonable belief that an
offense has been or is being committed by the suspect.24 Although
Greywolfs actions on November 16 were eventually determined not
to constitute assault in the third degree, we conclude that the
facts as Officer Korshin knew them on November 17 were sufficient
to establish probable cause to arrest. Therefore, the superior
court correctly granted summary judgment to Dr. Carroll on the
claim of malicious prosecution.
B. Abuse of Process
Even if a malicious prosecution claim cannot be
sustained because there was probable cause to arrest, a claim for
abuse of process may still remain. In her complaint, Greywolf
alleged that Dr. Carroll pursued the assault charge for reasons
other than to bring [Greywolf] to justice. The Restatement
(Second) of Torts defines abuse of process as the misuse of a
legal process against another primarily to accomplish a purpose
for which it was not designed.25 Alaska law requires two elements
for the claim:
(1) ulterior purpose independent from
the process, and
(2) a willful act in the use of the
process that is not proper in the regular
conduct of the proceeding.[26]
The ulterior purpose must be the primary purpose for the
defendants use of the process.27 Unlike malicious prosecution,
abuse of process does not require that probable cause be lacking28
and also does not require termination in favor of the accused.29
On the first element, the superior court found there to
be a genuine issue of material fact as to whether [Dr.] Carroll
had an ulterior purpose of having Greywolf removed from the
mental health unit and discouraged from using mental health
services at [Fairbanks Memorial Hospital]. The superior court
pointed out that Greywolf had a well-established diagnosis of
Post Traumatic Stress Disorder and that, in the opinion of
Greywolfs expert, her behavior on November 16 was consistent with
that diagnosis. The superior court also took note of the opinion
of Greywolfs expert that characterized Dr. Carrolls behavior as
an attempt to criminalize Greywolfs mental illness as the result
of a personal conflict with her. The superior court found that
portions of Dr. Carrolls testimony before the grand jury and at
trial reflected strong antipathy toward Greywolf and that it was
arguable whether Dr. Carroll viewed arrest and jail as some form
of punitive treatment for [Greywolfs] violent outbursts on the
mental health unit. The superior court also took note of the
fact that Dr. Carroll stated in his deposition that it was time
to try a different system, the criminal justice system, in
Greywolfs case. Given these facts, the superior court concluded
that reasonable jurors could disagree as to whether Dr. Carroll
used criminal proceedings to get rid of Greywolf from his unit at
Fairbanks Memorial Hospital.
But the superior court found that there was no issue of
material fact on the second element, requiring a willful act in
the use of the process that is not proper in the regular conduct
of the proceeding.30 As we explained in Hayes v. A.J. Associates,
Inc., even if a lawsuit were filed for an improper purpose, the
mere act of filing suit is not sufficient for an abuse of process
action.31 Furthermore, we have recognized that actions taken in
the regular course of litigation such as testifying before the
grand jury or at trial also cannot form a proper basis for an
abuse of process claim.32
In order to prevail, then, Greywolf must show that Dr.
Carroll undertook a separate act in addition to the initiation of
the proceedings, which amounted to a misuse of those proceedings.33
The usual case of abuse of process is one of some form of
extortion, using the process to put pressure upon the other to
compel him to pay a different debt or to take some other action
or refrain from it.34 In Sands v. Living Word Fellowship, we
provided three examples of a willful act: (1) offering to
discontinue a proceeding in return for a payment of money; (2)
filing a lien to force the plaintiff to pay off an unrelated
debt; or (3) causing an arrest and confinement in order to
intimidate the plaintiff.35
Greywolf argues that the letter written by Dr. Carroll
addressed to Judge Savell and filed on January 25, 2001
constituted a willful act because it evidenced an attempt by Dr.
Carroll to cause, improperly, the arrest and confinement [of the
plaintiff] to intimidate the plaintiff.36 But AS 12.61.010(a)(2),
as part of Alaskas Crime Victims Rights Act,37 entitled Dr.
Carroll to be notified of bail hearings38 and article 1, section
24 of the Alaska Constitution provides that a victim has the
right to be heard at any proceeding where the accuseds release
from custody is considered.39 Dr. Carrolls letter is thus within
the limits anticipated for his participation in the proceedings
as a victim. Greywolf therefore failed to raise a genuine issue
of material fact on this element and we affirm the grant of
summary judgment to Dr. Carroll on the abuse of process claim.
C. Invasion of Privacy
Greywolfs complaint claimed that Dr. Carroll
intentionally invaded Greywolfs solitude, seclusion . . . private
affairs or concerns by contacting and summoning third persons
into [] Greywolfs private and secluded area while she was in the
Fairbanks Memorial Hospital locked mental health unit. Alaska
law recognizes the claim for invasion of privacy based on the
Restatement (Second) of Torts 652B.40 Section 652B reads:
One who intentionally intrudes, physically or
otherwise, upon the solitude or seclusion of
another or his private affairs or concerns,
is subject to liability to the other for
invasion of his privacy, if the intrusion
would be highly offensive to a reasonable
person.[41]
Two elements are required:
(1) that plaintiff had a reasonable
expectation of privacy, and
(2) that defendant intruded in a manner
highly offensive to a reasonable person.[42]
The superior court found that Greywolf had failed to make out a
genuine issue of material fact on either element.
Greywolf concentrates her argument on the second
element, maintaining that the police intruded in a manner highly
offensive to a reasonable person. Greywolf argues that the
superior court erred when it found that [a] reasonable person who
was a patient in a locked mental health unit would not be highly
offended by the actions of the police under the circumstances
because whether she was highly offended is a factual question for
the jury. But the reasonable person standard has both subjective
and objective elements. While the question whether Greywolf was
highly offended is a factual question for the jury, whether it is
reasonable for her to have been highly offended is a different
matter.43
First, we note that the invasion of privacy principle
cannot shield a person from investigations by the police unless
the investigation is carried out in an offensive manner. In
Luedtke v. Nabors Alaska Drilling, Inc., we explained that courts
have construed offensive intrusion to require either an
unreasonable manner of intrusion, or intrusion for an unwarranted
purpose.44 The illustrations in the comments to the Restatement
(Second) of Torts 652B indicate that it must be an exceptional
kind of prying into another's private affairs to constitute a
highly offensive intrusion.45 Here, Greywolf merely argues that
because the Patients Bill of Rights of Fairbanks Memorial
Hospital provides that [t]hose not directly involved in . . .
care must have the permission of the patient to be present and
because she did not give permission to the police to be present,
a genuine issue of material fact exists as to whether the
intrusion was highly offensive. But Greywolf impliedly consented
to the interview with Officer Korshin when she answered his
questions without objection.46 Furthermore, the police entered
the mental health unit for the purpose of fulfilling their duty
to respond and investigate when summoned.47 The record does not
indicate anything unreasonable in the conduct of the
investigators and Greywolf does not claim that she was
intimidated by the police. As a matter of law, the orderly
performance of the police officers duties in this case does not
constitute an unreasonable manner of intrusion nor an intrusion
for an unwarranted purpose.
Greywolf also fails to establish that she had a
reasonable expectation of privacy. Again, she argues that the
question is a factual one for the jury. While the subjective
element whether Greywolf herself had an expectation of privacy
may present a question of fact for the jury, the objective
element whether it was reasonable for her to have that
expectation presents a question of law.48 Greywolfs argument
relies solely on the Patients Bill of Rights at Fairbanks
Memorial Hospital that states [t]he patient has the right to
every consideration of his privacy concerning his own medical
care program. But the plain language of this provision does not
state that this expectation of privacy is absolute or that it
excludes law enforcement or security from entering the locked
unit for the purposes of investigating possible criminal
misconduct. The police were privileged to enter the mental
health unit because they had a duty to respond and investigate
when summoned.49 And Greywolf does not provide evidence to show
that she had the right to exclude others from her room, a factor
commonly considered in determining whether a persons expectation
of privacy was reasonable.50 Because Greywolf cannot establish
that she had a reasonable expectation of privacy or that the
intrusion was unreasonable in manner or purpose, we affirm the
grant of summary judgment to Dr. Carroll on the invasion of
privacy claim.
D. Medical Malpractice
In her medical malpractice claim, Greywolf complains of
several acts or omissions. Greywolf argues that [Dr.] Carrolls
change of Greywolfs admission status to involuntary [on November
16] was done in bad faith. She also faults [Dr.] Carrolls
refusal to provide medical care to Greywolf on November 17, 2000;
[Dr.] Carrolls corresponding decision to press criminal charges
against Greywolf, a mental health patient under his care; and
[Dr.] Carrolls corresponding discharge of his patient to a jail
in violation of AS 47.30.705(a). Greywolf further complains of
Dr. Carrolls failure to provide her a discharge plan specifying
the kinds and amount of care and treatment Greywolf should have
after discharge, and such other steps as Greywolf might take to
benefit her mental health after leaving the facility as required
under AS 47.30.825(I). The superior court granted Dr. Carroll
summary judgment on the medical malpractice claim based on the
doctrine of quasi-judicial immunity. We affirm.
We recognized the doctrine of absolute quasi-judicial
immunity in Lythgoe v. Quinn.51 In Lythgoe, immunity was granted
to a court-appointed psychologist who was acting as an
independent custody investigator in a divorce proceeding.52 As we
explained in Lythgoe, the doctrine of absolute quasi-judicial
immunity is derived from that of absolute judicial immunity.
Thus, persons, other than judges, who perform judicial functions
are granted immunity coextensive with that accorded judges.53
This form of immunity is absolute and it applies no matter how
erroneous the act may have been, how injurious its consequences,
how informal the proceeding, or how malicious the motive. Only
judicial actions taken in the clear absence of all jurisdiction
will deprive a judge of absolute immunity.54 In a case granting
court-appointed psychiatrists absolute immunity, the Hawaii
Supreme Court noted that [i]n adopting this position, we do not
condone negligence by persons in the performance of their duties
or their failure to abide by a court order. The grant of
absolute immunity is not intended to permit the doctors to hide
behind the judicial shield. Rather, our position is necessary to
maintain the orderly administration of the judicial process.55
In Lythgoe, we pointed to several policy grounds used
by other courts in adopting the doctrine of quasi-judicial
immunity, including
(1) the need to save judicial time in
defending suits; (2) the need for finality in
the resolution of disputes; (3) to prevent
deterring competent persons from taking
office; (4) to prevent the threat of lawsuit
from discouraging independent action; and (5)
the existence of adequate procedural
safeguards such as change of venue and
appellate review.[56]
Greywolf first argues that Dr. Carroll cannot enjoy
immunity under the doctrine of absolute quasi-judicial immunity
because he was not performing a function pursuant to a court
directive related to the judicial process57 on November 17. She
argues that [t]he happenstance of the existence of a court order
on November 17, 2000, caused by [Dr.] Carrolls medical decisions
toward Greywolf on November 16, 2000, cannot shield [Dr.]
Carrolls medical malpractice on November 17, 2000. But in Karen
L. v. State, Department of Health & Social Services, Division of
Family & Youth Services, we noted that it is irrelevant how a
doctor came to be appointed by the court because [w]e have
recognized that it is not how the psychologist was first chosen
but whether his activity is an integral part of the judicial
process so that to deny immunity would disserve the broader
public interest that non-judicial officers act without fear of
liability. 58 Thus, the question in this case does not turn on
whether Dr. Carrolls own actions caused his appointment, but
whether, once appointed, the actions he took were an integral
part of the judicial process.
Greywolfs alternative argument claims that Dr. Carrolls
actions on November 17 are not entitled to quasi-judicial
immunity because they were not an integral part of the judicial
process. Greywolf argues that Dr. Carrolls acts were ministerial
and that they fell outside or were contrary to the court order.
But the superior court order provided that the respondent shall
be examined at the evaluation facility by locum tenens at
Fairbanks Memorial Hospital. And Greywolf does not challenge Dr.
Carrolls status as the locum tenens when the ex parte orders of
November 16 and 17 were issued. Nor does she allege that the
court lacked jurisdiction to appoint the locum tenens at
Fairbanks Memorial Hospital to her case. Greywolf instead
complains that her status on November 16 was changed for
malicious reasons and that she was wrongfully discharged on
November 17 without a treatment plan. But her complaint about
her discharge to jail relies on her unsuccessful claim for
malicious prosecution. And Dr. Carroll was appointed by the ex
parte order orally issued on November 16 to evaluate Greywolfs
mental health and to make recommendations regarding whether she
should be released or committed involuntarily pursuant to
AS 47.30.700,59 AS 47.30.705,60 AS 47.30.710,61 and AS 47.30.720.62
The evaluation of Greywolf required Dr. Carroll to decide
whether to change Greywolfs status and whether she could be
discharged. Thus, Greywolfs allegations that Dr. Carroll
improperly discharged her on November 17 without providing her
with an aftercare plan, as required under AS 47.30.825(I), are
complaints about acts that are integrally linked to Dr. Carrolls
judicially appointed function to evaluate Greywolfs mental health
and to decide whether she should be committed or released.
Absolute quasi-judicial immunity applies no matter how erroneous
the act may have been, how injurious its consequences, how
informal the proceeding, or how malicious the motive.63 In this
case, although Dr. Carroll may not have followed proper procedure
when evaluating Greywolf and making the decision to discharge
her, his acts remain squarely within his discretionary
jurisdiction as a court-appointed psychiatrist.
V. CONCLUSION
For the foregoing reasons, the judgment of the superior
court is AFFIRMED in all respects.
_______________________________
1 AS 47.30.700(b) provides:
The petition required in (a) of this
section must allege that the respondent is
reasonably believed to present a likelihood
of serious harm to self or others or is
gravely disabled as a result of mental
illness and must specify the factual
information on which that belief is based
including the names and addresses of all
persons known to the petitioner who have
knowledge of those facts through personal
observation.
2 The order was issued orally on November 14 and the date
of the written order was November 15.
3 This change appears to have been initiated at 10:30
a.m. as noted in the nurses patient care notes. The record
contains an Application for Voluntary Admission dated November
16, 2000 signed by Greywolf and a Notice of Voluntary Admission
signed by the hospital staff.
4 It appears that this motion for release was heard in
the court on the morning of January 17, 2001 and that Dr. Carroll
was present, but had been unable to speak before the court
because he had failed to inform the district attorney that he
would appear.
5 This claim was eventually treated as one for both
malicious prosecution and abuse of process.
6 The claims against the City of Fairbanks were dismissed
on summary judgment on July 29, 2004 and Greywolf has not
appealed that judgment.
7 Alaska R. Civ. P. 56(c).
8 Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996,
1001 (Alaska 2005).
9 Preblich v. Zorea, 996 P.2d 730, 733 (Alaska 2000)
(quoting Arctic Tug & Barge, Inc. v. Raleigh, Schwartz & Powell,
956 P.2d 1199, 1200 (Alaska 1998)).
10 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1996); see
also Hinsberger v. State, 53 P.3d 568, 571-73 (Alaska 2002)
(affirming summary judgment against plaintiff where plaintiff
failed to show he could prove one element of the claim).
11 Shade v. Co & Anglo Alaska Serv. Corp., 901 P.2d 434,
437 (Alaska 1995).
12 See, e.g., Dansereau v. Ulmer, 903 P.2d 555, 570-71
(Alaska 1995).
13 Preblich, 996 P.2d at 733.
14 Meyer v. State, Dept of Revenue, Child Support
Enforcement Div. ex rel. N.G.T. , 994 P.2d 365, 367 (Alaska
1999).
15 Matter of J.A., 962 P.2d 173, 175 (Alaska 1998).
16 Id.
17 Id.
18 State, Dept of Transp. & Pub. Facilities v. Sanders,
944 P.2d 453, 456 (Alaska 1997).
19 Stephens v. State, Dept of Revenue, 746 P.2d 908, 911
(Alaska 1987); see also Brown v. Ely, 14 P.3d 257, 262-63 n.37
(Alaska 2000); Restatement (Second) of Torts 653 (1977).
20 Restatement (Second) of Torts 653 cmt. g (1977).
21 Id.
22 Id.
23 Van Sandt v. Brown, 944 P.2d 449, 452 (Alaska 1997)
(citations omitted).
24 State v. Joubert, 20 P.3d 1115, 1118-19 (Alaska 2001).
25 Restatement (Second) of Torts 682 (1977).
26 Sands v. Living Word Fellowship, 34 P.3d 955, 961
(Alaska 2001); see also Jenkins v. Daniels, 751 P.2d 19, 22
(Alaska 1988).
27 Restatement (Second) Torts 682, cmt. b (1977).
28 Restatement (Second) Torts 682, cmt. a (1977).
29 Jenkins, 751 P.2d at 20, 22.
30 Sands, 34 P.3d at 961.
31 960 P.2d 556, 571 (Alaska 1998).
32 Meidinger v. Koniag, Inc., 31 P.3d 77, 86 (Alaska
2001).
33 Sands, 34 P.3d at 961.
34 Restatement (Second) of Torts 682, cmt. b (1977).
35 34 P.3d at 961.
36 Id.
37 Ch. 59, SLA 1989.
38 AS 12.61.010 provides:
(a) Victims of crimes have the
following rights:
. . . .
(2) the right to be notified by the
appropriate law enforcement agency or the
prosecuting attorney of the date of trial,
sentencing, including a proceeding before a
three-judge panel under AS 12.55.175, an
appeal, and any hearing in which the
defendants release from custody is
considered[.]
39 Article 1, section 24 states in pertinent part:
Crime victims, as defined by law, shall have
the following rights as provided by law: . .
. the right to obtain information about and
be allowed to be present at all criminal or
juvenile proceedings where the accused has
the right to be present; [and] the right to
be allowed to be heard, upon request, at
sentencing, before or after conviction or
juvenile adjudication, and at any proceeding
where the accused's release from custody is
considered.
40 Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123,
1133 (Alaska 1989).
41 Restatement (Second) of Torts 652B (1977).
42 See, e.g., Med. Lab. Consultants v. Amer. Broad. Co.,
306 F.3d 806, 812-13 (9th Cir. 2002).
43 See, e.g., State v. Page, 911 P.2d 513, 515-16 (Alaska
App. 1996).
44 768 P.2d at 1137; see also Wal-Mart, Inc. v. Stewart,
990 P.2d 626, 632 (Alaska 1999).
45 See Restatement (Second) of Torts 652B, cmt. b (1977)
(The intrusion may be a physical intrusion into a place in which
the plaintiff has secluded himself, as when the defendant forces
his way into the plaintiff's room in a hotel or insists over the
plaintiff's objection in entering his home. The illustrations
offer, among other things, the following examples: (1) taking the
photograph of a woman in the hospital with a rare disease that
arouses public curiosity over her objection, and (2) using a
telescope to look into someones upstairs bedroom window for two
weeks and taking intimate pictures with a telescopic lens.).
46 Hill v. Natl Collegiate Athletic Assn, 26 Cal. Rptr. 2d
834, 849 (Cal. 1994) ([T]he plaintiff in an invasion of privacy
case must have conducted himself or herself in a manner
consistent with an actual expectation of privacy, i.e., he or she
must not have manifested by his or her conduct a voluntary
consent to the invasive actions of defendant. If voluntary
consent is present, a defendant's conduct will rarely be deemed
highly offensive to a reasonable person so as to justify tort
liability.) (citing Restatement (Second) of Torts 652B, cmt. c).
47 See, e.g., Bauman v. State, Div. of Family & Youth
Servs., 768 P.2d 1097, 1100 (Alaska 1989) (Actions of police
officer in response to what was eventually determined to be a
false and maliciously slanderous report of child abuse not
actionable because police officer acted in good faith and in an
orderly manner, within the scope of his duty to investigate.).
48 Page, 911 P.2d at 515-16.
49 See, e.g., Bauman, 768 P.2d at 1100.
50 See, e.g., State v. Thompson, 585 N.W.2d 905, 908-10
(Wis. App. 1998).
51 884 P.2d 1085 (Alaska 1994).
52 Id. at 1086.
53 Id. at 1087.
54 Trapp v. State, 53 P.3d 1128, 1130 (Alaska 2002)
(quoting Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir.1989)). The
Supreme Court of the United States has noted: [t]he procedural
difference between the absolute and the qualified immunities is
important. An absolute immunity defeats a suit at the outset, so
long as the officials actions were within the scope of the
immunity. The fate of an official with qualified immunity
depends upon the circumstances and motivations of his actions, as
established by the evidence at trial. Imbler v. Pachtman, 424
U.S. 409, 419 n.13 (1976).
55 Seibel v. Kemble, 631 P.2d 173, 177 (Haw. 1978).
Essential to the courts reasoning was the fact that there were
other ways to hold a courts agents accountable for their actions,
including the imposition of sanctions, such as reporting the
doctor to the medical boards or prohibiting the doctor from
further service to the court. Id. at 177 n.8.
56 884 P.2d at 1089 (quoting Lavit v. Superior Court, 839
P.2d 1141, 1144 (Ariz. App. 1992)).
57 Id. at 1088 (quoting Lavit, 839 P.2d at 1144).
58 953 P.2d 871, 878 (quoting Lythgoe, 884 P.2d at 1088).
59 AS 47.30.700, Initiation of involuntary commitment
procedures, provides:
(a) Upon petition of any adult, a judge
shall immediately conduct a screening
investigation or direct a local mental health
professional employed by the department or by
a local mental health program that receives
money from the department under AS 47.30.520
47.30.620 or another mental health
professional designated by the judge, to
conduct a screening investigation of the
person alleged to be mentally ill and, as a
result of that condition, alleged to be
gravely disabled or to present a likelihood
of serious harm to self or others. Within 48
hours after the completion of the screening
investigation, a judge may issue an ex parte
order orally or in writing, stating that
there is probable cause to believe the
respondent is mentally ill and that condition
causes the respondent to be gravely disabled
or to present a likelihood of serious harm to
self or others. The court shall provide
findings on which the conclusion is based,
appoint an attorney to represent the
respondent, and may direct that a peace
officer take the respondent into custody and
deliver the respondent to the nearest
appropriate facility for emergency
examination or treatment. The ex parte order
shall be provided to the respondent and made
a part of the respondents clinical record.
The court shall confirm an oral order in
writing within 24 hours after it is issued.
(b) The petition required in (a) of
this section must allege that the respondent
is reasonably believed to present a
likelihood of serious harm to self or others
or is gravely disabled as a result of mental
illness and must specify the factual
information on which that belief is based
including the names and addresses of all
persons known to the petitioner who have
knowledge of those facts through personal
observation.
60 AS 47.30.705, Emergency detention for evaluation,
provides:
(a) A peace officer, a psychiatrist or
physician who is licensed to practice in this
state or employed by the federal government,
or a clinical psychologist licensed by the
state Board of Psychologist and Psychological
Associate Examiners who has probable cause to
believe that a person is gravely disabled or
is suffering from mental illness and is
likely to cause serious harm to self or
others of such immediate nature that
considerations of safety do not allow
initiation of involuntary commitment
procedures set out in AS 47.30.700, may cause
the person to be taken into custody and
delivered to the nearest evaluation facility.
A person taken into custody for emergency
evaluation may not be placed in a jail or
other correctional facility except for
protective custody purposes and only while
awaiting transportation to a treatment
facility. However, emergency protective
custody under this section may not include
placement of a minor in a jail or secure
facility. The peace officer or mental health
professional shall complete an application
for examination of the person in custody and
be interviewed by a mental health
professional at the facility.
(b) In this section, minor means an
individual who is under 18 years of age.
61 AS 47.30.710, Examination, provides:
(a) A respondent who is delivered under
AS 47.30.700 47.30.705 to an evaluation
facility for emergency examination and
treatment shall be examined and evaluated as
to mental and physical condition by a mental
health professional and by a physician within
24 hours after arrival at the facility.
(b) If the mental health professional
who performs the emergency examination has
reason to believe that the respondent is (1)
mentally ill and that condition causes the
respondent to be gravely disabled or to
present a likelihood of serious harm to self
or others, and (2) is in need of care or
treatment, the mental health professional may
hospitalize the respondent, or arrange for
hospitalization, on an emergency basis. If a
judicial order has not been obtained under AS
47.30.700, the mental health professional
shall apply for an ex parte order authorizing
hospitalization for evaluation.
62 AS 47.30.720, Release before expiration of 72-hour
period, provides:
If at any time in the course of the 72-hour
period the mental health professionals
conducting the evaluation determine that the
respondent does not meet the standards for
commitment specified in AS 47.30.700, the
respondent shall be discharged from the
facility or the place of evaluation by
evaluation personnel and the petitioner and
the court so notified.
63 Trapp, 53 P.3d at 1130 (quoting Cok, 876 F.2d at 2).
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