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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept. of Corrections v. Anthoney (4/16/2010) sp-6470
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
| STATE OF ALASKA, | ) |
| DEPARTMENT OF | ) Supreme Court No. S- 13396 |
| CORRECTIONS, | ) |
| ) Superior Court No. 3AN-06-12520 CI | |
| Appellant, | ) |
| ) O P I N I O N | |
| v. | ) |
| ) No. 6470 April 16, 2010 | |
| KIRBY D. ANTHONEY, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Morgan
Christen, Judge.
Appearances: Marilyn J. Kamm, Assistant
Attorney General, and Daniel S. Sullivan,
Attorney General, Juneau, for Appellant.
Kirby D. Anthoney, pro se, Seward.
Before: Fabe, Winfree, and Stowers, Justices.
[Carpeneti, Chief Justice, and Christen,
Justice, not participating.]
FABE, Justice.
I. INTRODUCTION
Kirby Anthoney, an inmate at the Spring Creek
Correctional Center (SCCC), was charged with and found guilty by
the SCCC disciplinary committee of mutual combat. Anthoney
appealed, arguing that he was not guilty of mutual combat and
that the Department of Corrections had violated his procedural
due process rights. The superior court concluded that Anthoney
had been charged with the wrong offense, ordered that his
disciplinary record be changed to reflect a guilty finding for a
lesser infraction, and affirmed the disciplinary committee
decision in all other respects. The superior court then named
Anthoney the prevailing party and awarded him costs. The State
only appealed the superior courts prevailing party designation.
Because we conclude that the superior court correctly designated
Anthoney as the prevailing party, we affirm the superior courts
ruling.
II. FACTS AND PROCEEDINGS
A. Facts
Kirby Anthoney is an inmate at Spring Creek
Correctional Center. While working in the SCCC kitchen on July
20, 2006, Anthoney was involved in an altercation with fellow
inmate Fernando Jimenez. Erik Nielsen, a maintenance plumber,
witnessed and reported the altercation over the radio and later
described the altercation in an incident report. As Nielsen
reported, Anthoney said to Jimenez something to the effect of You
must be one of the dumbest guys in the United States, and
Jimenez responded by running the 10 to 15 feet distance between
them and hit [Anthoney] on the side of his face. Anthoney
disputed this series of events. He claimed that Jimenez asked,
You got a problem, you got a problem, he then accused Jimenez of
acting like a jerk, and Jimenez then called him a rat and swung
at him.1 Anthoney also claimed that he called Jimenez one of the
stupidest guys in the institution only after Jimenez swung at
him, and because Jimenez did so in front of the security camera.
Both Nielsen and Anthoney agreed that Anthoney never struck back.
At least one officer responded to Nielsens radio call,
escorted both inmates away in hard restraints, and placed them in
administrative segregation. Anthoney requested that the security
video footage from the kitchen at the time of the altercation be
saved for viewing by the disciplinary committee, but the footage
was not saved.
B. Proceedings
On July 28, 2006, the SCCC disciplinary committee held
Anthoneys disciplinary hearing. Anthoney was charged with the
high-moderate infraction of mutual combat but pled not guilty.
At the hearing, Anthoney presented his story of the altercation,
insisted that the security video would have verified that story,
requested that inmate Michael McCullough testify on his behalf,
and requested leniency in light of his history of appropriate
behavior. The disciplinary committee did not view the video and
apparently did not allow Anthoneys witness to testify. Relying
on Nielsens incident report, the disciplinary committee found
Anthoney guilty of mutual combat and sentenced him to thirty days
of punitive segregation. The committee reasoned that either
physical or verbal assault could constitute mutual combat because
an inmate must respond to either type of assault or risk being
considered a punk.
Anthoney appealed the committees decision to the SCCC
superintendent. Also relying on Nielsens incident report, the
superintendent affirmed the finding of guilt but reduced the
sanction to fifteen days of punitive segregation due to otherwise
appropriate behavior. Anthoney requested reconsideration,
stating that after the denial of his appeal, he obtained
testimony from inmate Michael Flynn who had been in the kitchen
at the time of the altercation and who would corroborate
Anthoneys version of the events. The request was denied.
Because Anthoney had exhausted all [d]epartmental levels of
appeal, he was placed in punitive segregation from November 27
through December 12.
Anthoney appealed to the superior court. On June 21,
2007, Superior Court Judge Stephanie E. Joannides ordered the
State to file a notice of preservation of the security video or
an affidavit explaining what happened to it. In response to that
order, the SCCC superintendent filed an affidavit stating that
video footage is not shown to inmates for security reasons, that
no relevant video footage existed because security cameras did
not record the area where the altercation occurred, and that all
video footage is recorded over every thirty days. On May 23,
2008, the case was reassigned to Superior Court Judge Morgan
Christen.
Anthoney raised twenty-four points in his appeal. The
superior court concluded that four of those had been waived
because Anthoney had not raised them in the proceedings below.
It grouped the remaining points into seven categories: (1)
failure to write a proper incident report; (2) failure to allow a
witness to be called, to allow state of mind evidence, and to
explain reasons for denial in writing and on record; (3) failure
to admit video footage and to explain reasons in writing and on
record; (4) failure to write a report stating the specific
evidence used to find appellant guilty; (5) incorrect definition
of mutual combat; (6) insufficient evidence and reliance on
hearsay; and (7) denial of appellants motion for reconsideration.
Anthoney also claimed the State knowingly and intentionally
violated his rights. He requested amendment of his disciplinary
record, reinstatement to the position he occupied before he was
found guilty, and lost wages.
On September 22, 2008, the superior court granted
Anthoneys appeal on his claim that the State improperly included
a verbal assault within the definition of mutual combat. The
superior court reasoned that [u]sing abusive language in such a
way that invites retaliation is not mutual and . . . is not
combat and concluded that the evidence did not support a finding
of guilt for mutual combat but for the lesser infraction of using
abusive or obscene language.2 As the superior court indicated, a
charge for the lesser infraction was supported both by Nielsens
statement that Anthoney called Jimenez one of the dumbest guys in
the United States before Jimenez hit him and by Anthoneys
statement that he accused Jimenez of acting like a jerk before
Jimenez hit him. The superior court ordered that Anthoneys
disciplinary record be amended to reflect a finding of guilt for
the low-moderate infraction set out in 22 AAC 05.400(d)(13).3 It
denied Anthoneys other appeal points and affirmed the
disciplinary committees decision in all other respects.4
On October 20, 2008, Anthoney filed a motion for an
award of costs. The State made two arguments in opposition: (1)
that Anthoneys motion was untimely and (2) that Anthoney was not
the prevailing party. The superior court found that because the
clerk of court did not provide Anthoney with the necessary form
regarding costs and attorneys fees until October 10, Anthoneys
motion was timely. The superior court also found that, while
Anthoney did raise twenty-four appeal points, the primary issue
on appeal was whether Anthoney had been charged with the correct
offense, and Anthoney prevailed on this main claim. The superior
court awarded Anthoney $411.44 in costs. The State appeals the
superior courts designation of Anthoney as the prevailing party
and its order awarding him costs.
III. STANDARD OF REVIEW
We review for abuse of discretion a trial courts
determination of the prevailing party for purposes of awarding
attorneys fees and costs.5 This is the appropriate standard of
review even where the trial court is acting as an intermediate
appellate court and awarding fees and costs under the Alaska
Rules of Appellate Procedure.6 We overturn prevailing party
determinations only if they are manifestly unreasonable.7
IV. DISCUSSION
Alaska Appellate Rule 508(c) provides that, [i]n cases
of partial affirmance and partial reversal, the court will
determine which party, if any, shall be allowed costs. As we
have held, the prevailing party is the one who successfully
prosecutes the action or successfully defends against it,
prevailing on the main issue, even though not to the extent of
the original contention.8 The superior court in this case found
that Anthoney prevailed on the main issue on appeal whether
Anthoney had been charged with the wrong offense and that
[a]lthough the State succeeded on more points than Anthoney,
these points combined were less significant than the point
affirmed by the Court in favor of Anthoney.
The State disputes both of these findings and argues
that the superior court abused its discretion in designating
Anthoney the prevailing party. In its briefing, the State
characterizes the main issue in the case as whether [Anthoney]
was guilty of violating 22 AAC [05.]400. The State argues that
because Anthoney was found guilty of the low-moderate infraction
defined in 22 AAC 05.440(d)(13), the State prevailed on this
issue. We disagree.
As Anthoney explains in his reply brief, the States
argument focuses on Anthoneys original belief that he was not
guilty of any infraction instead of his main argument on appeal
that he was wrongfully found guilty of mutual combat. From our
review of the record below, it is clear to us that Anthoney
appealed his conviction because he had been found guilty of an
infraction that he believed he had not committed. Anthoneys
initial appeal to the superintendent was titled, Grounds for
Appeal of Infraction 22 AAC 05.440(c)(1), indicating that he
specifically appealed his mutual combat charge. Anthoneys first
point under that title was, Insufficient Evidence To Support
Charged Infraction, under which he asserted that the definition
of mutual combat necessarily included a physical exchange.
(Emphasis in original.) Although Anthoney also argued that his
actions did not even rise to the level of an infraction under 22
AAC 05.440(d), he had never been charged with any lesser
infraction and thus was not appealing a guilty finding involving
the lesser infraction. For these reasons, the superior court
appears to have been correct in its finding that whether Anthoney
had been charged with the wrong offense . . . was the main issue
on appeal. Certainly, the superior court did not abuse its
discretion in making this finding.
The State also asserts that the superior courts
decision favors the State in an overall sense because Anthoney
did not prevail on any of his procedural due process claims and
because Anthoney was not granted all the relief he sought. This
argument is without merit.
We have consistently held that to be designated the
prevailing party, a party need only prevail on the main legal
issues in the case.9 Even a plaintiff who recovers on only one
claim may be designated the prevailing party.10 And while the
State is correct that receiving an affirmative recovery does not
guarantee prevailing party status,11 we have also held that
plaintiffs should not be penalized for recovering less than what
they originally sought.12 In Progressive Corp. v. Peter ex rel.
Peter, the plaintiff lost fourteen of his original sixteen
claims, including one large punitive damages claim, and prevailed
on only one claim.13 The lower court nonetheless concluded that
the plaintiff had prevailed on the main issue in the case and, on
appeal, we held that the lower court had not abused its
discretion.14 That courts should not count claims to determine
prevailing party status is particularly apparent where, as here,
the plaintiff is pro se and may not know which of his or her
possible claims are likely to be successful. For these reasons,
the superior court did not abuse its discretion in naming
Anthoney the prevailing party [a]lthough the State succeeded on
more points than Anthoney.
V. CONCLUSION
Because the superior court acted within its discretion
when it designated Anthoney the prevailing party and awarded him
costs, we AFFIRM the superior courts judgment.
_______________________________
1 This description of Anthoneys version of events is
drawn from his request for reconsideration mentioned in
subsection B, infra. Anthoney did not admit accusing Jimenez of
acting like a jerk during his disciplinary hearing.
2 In relevant part, 22 Alaska Administrative Code (AAC)
05.400 provides:
(c) High-moderate infractions include the
following:
(1) fighting (i.e., mutual combat) with
a person;
. . .
(d) Low-moderate infractions include the
following:
. . .
(13) using abusive or obscene language
or gesture that is likely to provoke a fight
or that clearly disrupts or interferes with
the security or orderly administration of the
facility . . . .
3 The superior court concluded that Anthoneys punishment
of fifteen days punitive segregation, reduced from thirty days by
the SCCC supervisor, was not excessive for this lesser infraction
because 22 AAC 05.470 provides that a prisoner not be confined in
punitive segregation for a period exceeding 20 days for a low-
moderate infraction.
4 As Anthoney points out in his briefing, the superior
court did not conclude that all of his procedural due process
claims were without merit. Regarding the SCCCs failure to
preserve security video footage and seeming limitation of
Anthoneys ability to call a witness at his hearing, the superior
court simply found that, because Anthoney had already admitted
accusing Jimenez of acting like a jerk, neither action could have
prejudiced Anthoney in his hearing.
5 Hutchins v. Schwartz, 724 P.2d 1194, 1204 (Alaska
1986).
6 Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478,
482 (Alaska 1984).
7 Progressive Corp. v. Peter ex rel. Peter, 195 P.3d
1083, 1092 (Alaska 2008) (citing Interior Cabaret, Hotel, Rest. &
Retailers Assn v. Fairbanks N. Star Borough, 135 P.3d 1000, 1002
(Alaska 2006)).
8 K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702,
721 (Alaska 2003); see also Blumenshine v. Baptiste, 869 P.2d
470, 474 (Alaska 1994) (We have consistently held that the
prevailing party is the one who prevailed on the main issues. A
plaintiff may prevail even if he or she failed to recover all of
the relief prayed for.).
9 K & K Recycling, 80 P.3d at 721; Blumenshine, 869 P.2d
at 474.
10 See Progressive Corp., 195 P.3d at 1093.
11 See Hutchins v. Schwartz, 724 P.2d 1194, 1196, 1204
(Alaska 1986) (holding that trial court did not abuse its
discretion by naming defendant the prevailing party where
plaintiff recovered $1,937.09 less forty percent on a claim for
$275,000); Owen Jones & Sons, Inc. v. C. R. Lewis Co., 497 P.2d
312, 313-14 (Alaska 1972) (affirming trial courts decision that
defendant who prevailed on main legal issue was the prevailing
party despite plaintiffs recovery of $7,363.12).
12 Progressive Corp., 195 P.3d at 1093 (citing
Blumenshine, 869 P.2d at 474).
13 Id. at 1086, 1092.
14 Id. at 1093-94. The defendant insurer agreed to pay
$75,681.27 on one of the plaintiffs claims after losing a summary
judgment motion and having its petition for review of that
decision denied. The plaintiff continued to litigate and
eventually lost on his remaining claims, but the lower court
concluded that the main issue in the case was resolved by its
summary judgment ruling in the plaintiffs favor. Id.
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