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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bauer v. State, Dept. of Corrections (10/16/2008) sp-6316
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
| HENRY J. BAUER, | ) |
| ) Supreme Court No. S- 12789 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-06-4791 CI | |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| DEPARTMENT OF CORRECTIONS, | ) |
| ) No. 6316 October 16, 2008 | |
| Appellee. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Craig F.
Stowers, Judge.
Appearances: Henry J. Bauer, pro se, Seward.
Marilyn J. Kamm, Assistant Attorney General,
and Talis J. Colberg, Attorney General,
Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Winfree, Justices. [Carpeneti,
Justice, not participating]
WINFREE, Justice.
I. INTRODUCTION
The State of Alaska, Department of Corrections (DOC)
found inmate Henry J. Bauer guilty of disobeying a direct order
and sentenced him to fifteen days of segregation time. Bauer
appealed to the superior court. The court dismissed the appeal
as moot after DOC represented that it would provide Bauer a new
administrative hearing. But instead, DOC went one step further
and reduced the original disciplinary incident report to an
informational item in Bauers file. According to DOC, this was a
remedial action that obviated the need for a rehearing. Bauer
argues that this is inadequate relief because he would have been
entitled to have all record of the underlying incident removed
from his file if he successfully defended against the original
disciplinary charge. We remand for consideration of whether the
relief Bauer may obtain through his administrative appeal would
be greater than what DOC has already provided. If Bauer may
obtain greater relief than he has been afforded, his appeal
should not be dismissed as moot.
II. FACTS AND PROCEEDINGS
Bauer has been an inmate at Spring Creek Correctional
Center (SCCC) since 1996. In December 2005 SCCC staff summoned
Bauer, then a member of the prisons bio-hazard cleaning crew, to
clean a blood spill. In light of safety protocol requiring that
cleaning be completed by two trained crew members, Bauer
requested the assistance of another crew member. A trainee was
available to assist, but without another trained crew member
present, Bauer refused to clean up the blood spill. Bauer
received a disciplinary notice for failing to comply with a
direct order.
Bauer pled not guilty. His defense was that the
conditions under which he was ordered to clean up the spilled
blood were unsafe and that complying with the direct order would
have required him to violate his safety training. Bauer argued
that these conditions rendered the order illegal.
Bauer was appointed a hearing advisor to prepare for a
disciplinary hearing. Bauer identified the witnesses he wanted
to have testify, and he claims his advisor told him the witnesses
would be made available. No witnesses appeared at the
disciplinary hearing; Bauer was told this was due to his failure
to submit a written request. Bauers hearing advisor had
interviewed the witnesses, and he recounted their statements at
the hearing.
The disciplinary hearing officer concluded that the
available trainee would have been capable of assisting Bauer and
that Bauer had effectively requested a third crew member rather
than a second. The hearing officer found Bauer guilty of
disobeying a direct order and imposed thirty days segregation.
Bauer appealed to the prison superintendent. The acting
superintendent denied Bauers appeal but reduced the sanction to
fifteen days segregation, which Bauer was required to serve
despite his right of appeal to the superior court.
Bauer appealed to the superior court, alleging
constitutional violations in the disciplinary hearing process.1
Repeatedly citing lack of adequate time to prepare a responsive
brief, DOC was granted three consecutive thirty-day extensions of
the filing deadline. When DOC moved for a fourth extension, the
court granted the request over Bauers objection but noted it
would be the final extension.
DOC did not submit a brief, moving instead to dismiss
the appeal as moot because SCCCs acting superintendent had
reconsidered [Bauers] appeal from the final agency decision and
ordered a re-hearing. Within days, DOC notified Bauer that the
original disciplinary report had been reduced to informational
and that the scheduled disciplinary hearing . . . [would] not be
held.
Bauer then opposed DOCs motion to dismiss the appeal,
contending that: (1) DOC was acting in bad faith;2 (2) DOCs
actions did not cure the constitutional defect[s] at issue in the
appeal; (3) DOC no longer had jurisdiction once the appeal was
initiated in superior court; and (4) the appeal was not moot
because a live controversy and collateral consequences continued
to exist. Shortly thereafter, Bauer filed an application for a
default judgment.
In its reply, DOC asserted that it had acted in good
faith once it was advised that at least one of the appeal issues
likely had merit. DOC contended that [t]he only relief available
to Bauer in this appeal was . . . a remand for a new hearing.
DOC has now gone one step further, and reduced the report to an
informational report. Bauer has no right to appeal from this
reduction . . . .
The superior court granted DOCs motion to dismiss. The
court signed DOCs proposed order that the appeal was moot because
SCCCs acting superintendent had granted reconsideration of Bauers
appeal and had ordered a rehearing. The court did not address
DOCs reduction of the original disciplinary report to an
informational item in Bauers file, the cancellation of the
rehearing, or Bauers request for a default judgment.
Bauer appeals, asserting that the superior court erred
in dismissing his appeal and in failing to enter a default
judgment against DOC.
III. DISCUSSION
A. Bauers Appeal May Not Be Moot.
Courts generally decline to decide a question of law
where the facts of the case have rendered the issue moot. A
claim is moot where a decision on the issue is no longer relevant
to resolving the litigation, or where it has lost its character
as a present, live controversy, that is, where a party bringing
the action would not be entitled to any relief even if he or she
prevailed. 3 Bauers appeal is not moot if he might be entitled
to greater relief through appeal than DOC already has provided.
Review of applicable prison policies and procedures suggests this
may be the case.
When a prison staff member witnesses or has knowledge
of an instance of prisoner misconduct, that staff member must
write a report.4 The superintendent has discretion to refer the
incident report to the Disciplinary Committee/Hearing Officer for
formal action, refer it for informal resolution, or file it in
the prisoners case record as an informational report.5 An
informational report must include, among other things, a
description of the alleged infraction and details of the
incident.6 Although [t]he Department may not take any punitive
action against a prisoner . . . because of an Information Report
in the prisoners case record,7 the Department may consider
verified acts of misbehavior in the dispositive phase of a
disciplinary action.8 Whether an incident described in an
informational report amounts to a verified act is not clear.
If a disciplinary hearing officer finds that a prisoner
did not commit an infraction or if a finding of guilt is reversed
on appeal, the Superintendent must remove the disciplinary report
and related documents from the prisoners case record.9 No
statute, regulation, or provision in the DOC Policies &
Procedures specifically allows for a reduction or re-
classification of a disciplinary report to an informational
report. But there is some ambiguity on this point: DOC policies
state that the superintendent shall file information reports in
the prisoners case record for purposes of program assessment.10
It is not clear whether informational reports are filed and
maintained in the record regardless of a not-guilty finding, or
whether an informational report is removed under the same
circumstances as a disciplinary report.
DOC portrays reduction of Bauers original disciplinary
report to an informational item as complete relief. Bauer argues
that an informational report has both direct and collateral
consequences. He describes the report as being used during
annual classifications to determine the security and custody
levels of the prisoner . . . [and] during a parole hearing or any
other hearings in the prisoners future. Bauer claims that DOC
reduced the disciplinary report by simply marking the original
disciplinary report as informational.11 Bauer contends that when
this report is considered at future proceedings, any effort he
makes to explain the circumstances of the report could be
negatively construed as not accepting responsibility for [his]
actions. Bauer fears that this will impact his ability to
progress to a medium or minimum [security] institution where he
can receive more reformation.
Had Bauer been found not guilty at his initial hearing,
or at a new hearing ordered by the superior court, prison policy
seems to require removal of all record of the incident from his
file.12 If this is correct, merely re-characterizing the original
disciplinary report or reducing it to informational is not the
most favorable relief available to Bauer in these proceedings.
We remand to the superior court to determine if DOCs actions
afforded Bauer full and complete relief,13 or if Bauer may obtain
greater relief through full consideration of his appeal or a new
administrative hearing on the original disciplinary charges.14 If
a new administrative hearing is ordered, the superior court
should determine what procedural infirmities DOC admits occurred
during the first hearing and how those infirmities will be
remedied during a second hearing.15 Alternatively, the court may
determine that a decision on the merits of Bauers constitutional
claims is warranted to provide guidance for the second hearing.
B. Bauer Was Not Entitled to a Default Judgment.
Bauer asserts that the superior court erred in not
ruling on his application for a default judgment, which he
believed was properly brought under Alaska Civil Rule 55.16 Bauer
correctly notes that pro se litigants should be held to less
stringent standards than those of lawyers,17 but even liberally
construed, Bauers request for a default judgment cannot be
granted.
Appeals of administrative actions are governed not by
the Civil Rules, but by Part Six of the Rules of Appellate
Procedure. Where, as here, Part Six does not address a
particular issue, the general Rules of Appellate Procedure apply.18
Appellate Rule 212(c)(10) states that when an appellee fails to
file a brief as required, the appellee shall not be heard at oral
argument except by appellant consent or court request. This
would have been an appropriate sanction for DOCs failure to file
a brief, not a default judgment granting all of the relief Bauer
sought. The superior court did not err by ignoring Bauers
request for a default judgment when it dismissed the appeal as
moot.
IV. CONCLUSION
We VACATE the superior courts order dismissing Bauers
appeal and REMAND for further consideration of whether it is moot
and for further proceedings as appropriate. We AFFIRM the
superior courts implicit denial of Bauers request for a default
judgment.
_______________________________
1 On appeal, Bauer argued that: (1) he was deprived of
his constitutional rights to confront his accusers and to call
witnesses to testify on his behalf; (2) the prison relied on
evidence not properly in the record; and (3) the prison failed to
issue a written disciplinary hearing report based on findings of
fact that were consistent with the record. Bauer also asserted
that the disciplinary hearing report was inadequate and that the
direct order itself was illegal and in violation of his right to
a safe environment.
2 From Bauers perspective, he was: (1) wrongfully
charged with misconduct; (2) wrongfully convicted through a
constitutionally infirm disciplinary hearing; (3) wrongfully
sentenced to and actually served fifteen days in segregated
detention; and (4) facing future difficulties because of the
wrongful disciplinary record in his prison file. As Bauer saw
it, he was about to prevail on appeal, but after already
physically punishing him, DOC was conceding in a way that would
keep the same wrongful record in his prison file and would deny
him all right of judicial review.
3 See Clark v. State, Dept of Corr., 156 P.3d 384, 387
(Alaska 2007) (quoting Ulmer v. Alaska Rest. & Beverage Assn, 33
P.3d 773, 776 (Alaska 2001)). Whether an issue is moot is a
matter of law to which we apply our independent judgment. Akpik
v. State, Office of Mgmt. & Budget, 115 P.3d 532, 534 (Alaska
2005) (citing Ulmer, 33 P.3d at 776).
4 See 22 Alaska Administrative Code (AAC) 05.410(a);
State of Alaska Department of Corrections Policies and Procedures
(P&P) Procedure 809.03(A) (1995).
5 P&P Procedure 809.03(B). But see 22 AAC 05.410(a)
(stating that informal resolution and denomination of reports as
informational are not separate courses of action, but sequential
steps of same action).
6 P&P Procedure 809.03(A)(1)(a)-(b); 809.03(B)(3)(a); see
also 22 AAC 05.410(e).
7 P&P Procedure 809.03(C)(4); 22 AAC 05.465(d); see also
22 AAC 05.455(a).
8 P&P Procedure 809.03(C)(4); 22 AAC 05.465(d); see also
22 AAC 05.455(a).
9 P&P Procedure 809.03(C)(2); see also 22 AAC 05.465(a).
10 P&P Procedure 809.03(C)(3); see also 22 AAC 05.465(c).
11 The report itself was not included in the record before
us.
12 P&P Procedure 809.03(C)(2); 22 AAC 05.465(a).
13 Courts may consider the merits of moot claims either
because it is in the public interest to resolve the issue, see
Peter A. v. State, Department of Public Health & Social Services,
Office of Childrens Services, 146 P.3d 991, 996-97 (Alaska 2006),
or because collateral consequences exist for the litigant
bringing the claim. Id. at 994-95. Because we remand for
consideration of whether the appeal actually is moot, we need not
consider whether either of these exceptions to the mootness
doctrine applies here. If on remand the superior court again
concludes that Bauers appeal is moot, the court should then
consider whether Bauers claims should be considered under either
exception.
14 Bauer emphasizes that he never requested a new hearing
and does not want a new hearing, arguing that a new hearing would
be prohibited by law. He requests instead that we expunge his
record. But that remedy would be inappropriate here. Bauers
appeal focuses on procedural error. If he prevails, the proper
remedy would be remand to the administrative agency for a due-
process-compliant hearing, not dismissal and expungement.
15 DOC appears to concede that an error occurred in the
course of Bauers disciplinary hearing, stating to the superior
court that at least one of the appeal issues likely [has] merit.
But DOC did not specify what error it acknowledges, nor does it
clarify its statement on appeal. Instead, DOC states only that a
hearing officer would know that error(s) had been made at the
initial hearing and would presumably try to correct them.
16 Alaska R. Civ. P. 55 (when party against whom judgment
for affirmative relief is sought has failed to appear and answer
or otherwise defend as shown by affidavit or otherwise, clerk
shall enter default).
17 Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) (emphasis
omitted).
18 See Alaska R. App. P. 601(c).
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