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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Weber v. State (09/07/2007) sp-6157
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
| ARNO WEBER, | ) |
| ) Supreme Court No. S- 12270 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-05-09463 CI |
| ) | |
| STATE OF ALASKA, PETER | ) |
| MICHALSKI, WILLIAM MORSE, | ) |
| and VENABLE VERMONT, | ) O P I N I O N |
| ) | |
| Appellees. | ) No. 6157 - September 7, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Craig F. Stowers, Judge.
Appearances: Arno Weber, pro se, Anchorage.
David D. Floerchinger, Assistant Attorney
General, Anchorage, and David W. M rquez,
Attorney General, Juneau, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. This is the fourth iteration of a pro se prisoners
complaint against the state arising out of an incident in which
the prisoner alleges that he was stabbed in the eye by another
inmate. The superior court determined that the prisoner was
barred by res judicata from bringing the litigation. Because res
judicata applies to the majority of the prisoners claims, and
because his new claim, which sought to add three named
defendants, including two superior court judges and the assistant
attorney general, is barred by judicial immunity and failure to
state a claim, we affirm the superior courts dismissal of the
inmates complaint.
II. FACTS AND PROCEEDINGS
Arno Weber claims that while he was incarcerated at
Cook Inlet Pretrial Facility on May 20, 1998, he was stabbed in
the eye by a fellow inmate. In May 2001 Weber filed his first
complaint1 involving this incident against the state in case
number 3AN-00-1295, seeking punitive and compensatory damages for
intentional and negligent infliction of emotional distress and
permanent physical injury (first lawsuit). Shortly thereafter,
Superior Court Judge Peter A. Michalski dismissed Webers
complaint on the grounds that it was filed beyond the applicable
two-year statute of limitations provided in AS 09.10.070(a)(2).
Weber appealed to this court. We issued a memorandum
opinion and judgment (MO&J) in May 2002 affirming the superior
courts dismissal.2 We concluded that the superior court did not
err in refusing to apply the ten-year statute of limitations
provided for criminal prosecutions in AS 12.10.010 to Webers
claim because he had filed a civil suit, and that the statute of
limitations commenced on the date of Webers alleged injury.
In April 2004 Weber filed a second complaint, case
number 3AN-04-6659 (second lawsuit). Weber alleged that his case
should not be dismissed because he claimed he had been diagnosed
with schizophrenia, which tolled the statute of limitations under
AS 09.10.140(a). In July 2004 Superior Court Judge William F.
Morse dismissed the second lawsuit for failure to state a claim,
concluding that Weber had previously litigated the basic assault
claim (which was resolved by judgment in the first case), and
that [a]ny additional claims to be found were barred by the
statute of limitations. Judge Morse rejected Webers claim that
the statute of limitations should be tolled. Weber did not
appeal the dismissal.
Weber then filed a third complaint in May 2005, case
number 3AN-05-7937 (third lawsuit). Judge Morse recognized that
Webers third complaint was identical to his second one and in
July 2005 dismissed the complaint on the grounds that the
litigation was barred as a result of the previous judgment.
On July 7, 2005, Weber then filed a fourth complaint
which is the underlying subject of this appeal (fourth lawsuit).
This complaint named three additional individual defendants:
Judge Michalski (who dismissed the first lawsuit), Judge Morse
(who dismissed the second and third lawsuits), and Assistant
Attorney General Venable Vermont (who defended the state in the
first, second, and third lawsuits). The state filed a motion to
dismiss pursuant to Alaska Civil Rule 12(b)(6). After Weber
filed a one-page document which he titled a motion for summary
judgment in October 2005, the state informed the court that no
response was necessary to Webers motion and requested that the
court dismiss Webers claims.
In March 2006 Superior Court Judge Craig F. Stowers
rejected Webers motion for summary judgment, dismissed Webers
complaint on the grounds of res judicata, and ordered Weber to
post a $5,000 bond with the clerk of court in the event he
attempted to file another complaint alleging injuries arising out
of the stabbing incident. A final judgment was entered by Judge
Stowers on April 24, 2006. Weber appeals the dismissal of his
complaint.3
III. STANDARD OF REVIEW
We review a superior courts dismissal under Alaska
Civil Rule 12(b)(6) de novo, deeming all facts in the complaint
true and provable.4 In order to survive a Rule 12(b)(6) motion
to dismiss, a complaint need only show a set of facts consistent
with and appropriate to some enforceable cause of action.5
Whether res judicata precludes a plaintiff from
bringing an action is a question of law that we review de novo.6
The applicability and scope of immunity is a question
of law to which we apply our independent judgment.7
IV. DISCUSSION
A. Res Judicata Bars Webers Claims from His Previous
Complaints.
Three of Webers arguments on appeal attempt to obtain
substantive review of the previous court orders dismissing Webers
prior lawsuits. Weber contends on appeal that the superior court
erred in its most recent order by: (1) improperly dismissing his
complaint because his schizophrenia tolled the statute of
limitations; (2) disregarding AS 12.10.010 and refusing to find
that Weber was entitled to a ten-year statute of limitations; and
(3) determining that the statute of limitations commenced on the
day of the stabbing. Webers fourth allegation contends that even
if his complaint was untimely, he remains entitled to
compensation. The state asserts that each of Webers claims was
properly dismissed on the grounds of res judicata.
Once a judgment on the merits of an action has been
entered, res judicata applies to bar relitigation of later claims
between the same parties on the claims that could have been
brought in the first proceeding.8 Res judicata will apply to bar
a subsequent action where: (1) a court of competent
jurisdiction, (2) has rendered a final judgment on the merits,
and (3) the same cause of action and same parties or their
privies were involved in both suits.9 The doctrine implements
the generally recognized public policy that there must be some
final and conclusive end to litigation.10
Weber does not dispute on appeal that the courts that
rendered the previous judgments dismissing his prior complaints
were of competent jurisdiction, or that the courts previous
rulings on the issues are final judgments. Moreover, because
Webers fourth complaint is a near-verbatim recitation of his
second and third complaints, the same cause(s) of action were
clearly involved in both suits: indeed, Weber concedes that the
complaint is identical because 95% of it has never been addressed
in open court and states that he keeps filing the same complaint
because they keep ignoring the claims. Webers claims are thus
squarely barred by res judicata.11
Webers remaining argument on appeal is that he should
be compensated for damages even in the event that his suit is
untimely. He provides no legal basis or support for this claim.
And as noted above, res judicata precludes not only relitigation
of claims raised in the first proceeding, but also claims arising
from the same transactions.12 A prior judgment extinguishes all
claims including rights of the plaintiff to remedies against the
defendant with respect to all or any part of the transaction . .
. out of which the action arose.13 To the extent that there could
be any conceivable legal basis for Webers damages claim, it
clearly arose out of the same transaction (Webers alleged
stabbing) and is thus properly barred.
B. Webers New Claim Against the Three Named Defendants Is
Also Barred.
Webers fourth complaint is different in two material
respects from his previous three, in that he added three
individually named defendants Judge Michalski (who dismissed
Webers first complaint), Judge Morse (who dismissed the second
and third complaints), and Assistant Attorney General Vermont
and he added a new claim. Webers new claim, pertaining to the
individual named defendants, states: Defendants have engaged in
obstruction of justice. Not only do they know about the crime
and stubbornly refuse to assist in its prosecution, they have
engaged in retribution against Plaintiff for trying to attain
basic, fair justice. To the extent that Weber alleges
obstruction of justice, this allegation may properly be construed
as an abuse of process claim.14 A party alleging an abuse of
process claim must prove that the defendant used legal process
for an end other than that which it was designed to accomplish.15
The superior court dismissed Webers complaint without
discussion of Webers new claim or the addition of the three new
named defendants. But because Webers new claim is barred as a
result of judicial immunity and for failure to state a cause of
action, we conclude that the superior court did not err in
dismissing Webers fourth complaint.
1. Judicial immunity precludes Webers claims against Judge
Morse and Judge Michalski.
1. Judicial immunity protects judges from liability for their
judicial acts, and hence a judge will only be liable if the
judges actions were not judicial or were outside of the judges
subject matter jurisdiction.16 No allegation was made, nor is
there any evidence which would support the contention, that
either judge acted outside of his judicial capacity in dismissing
Webers complaints. Indeed, the only action Weber complains of
pertains to the judges substantive decisions to dismiss his
complaints, decisions which are properly within the scope and are
a routine exercise of a judges jurisdiction and authority.
Webers claims against both judges are therefore barred by
judicial immunity. Although the superior court did not
explicitly base its decision on these grounds, we may affirm on
them.17
2. Webers claim against Assistant Attorney General Vermont is
barred for failure to state a claim.
Webers abuse of process claim against Assistant
Attorney General Vermont is also barred for failure to allege any
facts that would give rise to an abuse of process claim.18 An
abuse of process claim requires two distinct elements: first, an
ulterior purpose, and second, a willful act in the use of the
process not proper in the regular conduct of the proceeding.19 In
other words:
[A]n action for abuse of process is intended
to prevent parties from using litigation to
pursue objectives other than those claimed in
the suit, such as using a courts process as a
weapon to compel another party to pay a
different debt or to take some action or
refrain from it. Thus the essence of a cause
of action for abuse of process is a
perversion of the process to accomplish some
improper purpose.[20]
Weber, however, points to no act to support his claim, instead
making a general allegation that defendants know about the crime
and stubbornly refuse to assist in its prosecution, and that they
have engaged in retribution against [Weber] for trying to attain
basic, fair justice. The only willful act implicit in his
allegation is the motion to dismiss Webers repeated complaints.
But in Meidinger v. Koniag21 we held that actions taken in the
regular course of litigation . . . cannot be a proper basis for
an abuse of process claim.22 Vermonts action of filing a motion
to dismiss a complaint initiated by Weber is a routine step taken
in the course of litigation and in no way can be construed as an
invalid use of the judicial process.23 Webers allegations
therefore fail to make out a cognizable abuse of process claim.24
V. CONCLUSION
Because the superior court did not err in dismissing
Webers suit on grounds of res judicata, and because Webers new
claim against the three individually named defendants is barred
on the grounds of judicial immunity and for failure to state a
claim upon which relief can be granted, we AFFIRM the dismissal.
_______________________________
1 Webers initial attempt to file a complaint in December
2000 was rejected.
2 Weber v. State, Mem. Op. & J. No. 1079 (Alaska May 29,
2002). Webers first complaint is not included in the record, and
discussion of its contents is drawn from our May 2002 MO&J.
3 Weber declined to appeal the imposition of a $5,000
cost bond.
4 McGrew v. State, Dept of Health & Social Servs., Div.
of Family & Youth Servs., 106 P.3d 319, 322 (Alaska 2005)
(internal quotation omitted).
5 Odom v. Fairbanks Meml Hosp., 999 P.2d 123, 128 (Alaska
2000) (internal quotation omitted).
6 Alaska Wildlife Alliance v. State, 74 P.3d 201, 205
(Alaska 2003).
7 Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 154
(Alaska 1987).
8 Calhoun v. Greening, 636 P.2d 69, 72 (Alaska 1981).
9 DeNardo v. Municipality of Anchorage, 775 P.2d 515, 517
(Alaska 1989).
10 Nelson v. Jones, 787 P.2d 1031, 1033 (Alaska 1990)
(quotation omitted).
11 As we explain below in Part IV. B., although Weber has
added a new claim to his fourth action that involves three new
parties, namely an assistant attorney general and two new judges,
the new claim was properly dismissed on grounds other than res
judicata.
12 White v. State, Dept of Natural Res., 14 P.3d 956, 959
(Alaska 2000).
13 Nelson v. Jones, 787 P.2d 1031, 1033-34 (Alaska 1990)
(internal quotation omitted).
14 DeNardo v. Calista Corp., 111 P.3d 326, 331 (Alaska
2005) (noting courts lenient interpretation of pro se litigants
pleadings).
15 W. Keeton & W. Prosser, The Law of Torts 121 (5th ed.
1984); see Kollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988).
16 DeNardo v. Michalski, 811 P.2d 315, 316 (Alaska 1991)
(holding that only judicial actions taken in the clear absence of
all jurisdiction will deprive a judge of judicial immunity).
17 This court can affirm a judgment on alternative grounds
not relied on by the superior court. Marshall v. First Natl Bank
Alaska, 97 P.3d 830, 835 (Alaska 2004).
18 We do not decide whether Webers abuse of process claim
is barred by claim preclusion or res judicata. It is unclear
whether Webers abuse of process claim arose out of the same
transaction as Webers previous cause of action or whether it
commenced only upon dismissal of his complaint(s). See Hall v.
Tucker, 829 N.E.2d 1259, 1272 (Ohio App. 2005) (concluding abuse
of process claim not barred by claim preclusion because it arose
from events occurring during course of underlying litigation);
Executive Mgmt., Ltd. v. Ticor Title Ins. Co., 963 P.2d 465, 478
(Nev. 1998) (holding claim preclusion to be inapplicable because
abuse of process claim not necessarily and actually litigated
during first proceeding).
19 Kollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988)
(internal quotations omitted).
20 1 Am. Jur. 2d Abuse of Process 1 (2005) (footnotes
omitted).
21 31 P.3d 77 (Alaska 2001).
22 Id. at 86.
23 See Caudle v. Mendel, 994 P.2d 372, 376 (Alaska 1999)
(holding that filing interim motion to evict allegedly abusive
spouse acceptable objective in divorce proceeding).
24 See Meidinger, 31 P.3d at 86 (holding that second
element contemplates some overt actand therefore the mere filing
or maintenance of a lawsuit - even for an improper purpose is
not a basis for an abuse of process action ) (quoting DeNardo v.
Michalski, 811 P.2d 315, 317 (Alaska 1991)).
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