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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Schug v. Moore (7/2/2010) sp-6487
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
| FRANKLIN SCHUG, | ) |
| ) Supreme Court No. S- 13162 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-07- 06330 CI | |
| v. | ) |
| ) O P I N I O N | |
| STEPHANIE GALBRAITH MOORE, | ) |
| ) No. 6487 July 2, 2010 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, William F. Morse, Judge.
Appearances: Franklin Schug, pro se,
Anchorage, Appellant. Laura C. Bottger,
Assistant Attorney General, Anchorage, and
Daniel S. Sullivan, Attorney General, Juneau,
for Appellee.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, and Christen, Justices. [Stowers,
Justice, not participating.]
CHRISTEN, Justice.
I. INTRODUCTION
In 2004 Franklin Schug sued the Alaska Department of
Corrections (DOC) for negligently causing him to suffer personal
injury while being transported from an Alaska prison to an
Arizona prison. Assistant Attorney General Stephanie Galbraith
Moore defended DOC in that suit, and the jury entered a verdict
in DOCs favor. Schug then sued Moore, alleging she engaged in
fraud, deception, and conspiracy in connection with his personal
injury case. The superior court granted Moores motion for
summary judgment because Moore is absolutely immune from these
claims and Schugs claims against Moore were unsustainable as a
matter of law. Although we do not decide whether Moore has
absolute or qualified immunity, we agree that Moore is protected
by official immunity and that Schugs claims are unsustainable as
a matter of law. Therefore, we affirm the superior courts order
granting summary judgment.
II. FACTS AND PROCEEDINGS
The State of Alaska incarcerated Schug in Alaska and
Arizona from 2000 until 2008. Schug filed a complaint against
DOC in 2004 seeking compensation for injuries allegedly suffered
while being transported by air from an Alaska prison to an
Arizona prison. Attorney Joe Josephson represented Schug in the
personal injury suit. A jury returned a verdict in DOCs favor.
Schug did not file a timely appeal, but he did subsequently
initiate two separate actions against Josephson and Moore. All
of Schugs claims against Moore for attorney malpractice arose
from her role as DOCs defense attorney in Schugs personal injury
case.
Moore filed a motion for summary judgment that grouped
Schugs allegations against her into three categories. The first
category encompasses Schugs claims that during discovery and
trial of the personal injury case, Moore engaged in multiple acts
of deceit that deprived him of a fair trial. The second category
includes Schugs claims that Moore conspired with Josephson to
hide evidence, to prevent Schug from pursuing certain claims, and
to prevent him from filing a timely appeal of the verdict. In
the third category of claims, Schug alleges that Moore knew of a
grand conspiracy between Cornell Prison Systems and Josephson to
keep Schug confined and deny him medical care.
Moore filed a motion for summary judgment arguing that
her actions as the attorney defending DOC were protected by
qualified or absolute official immunity and, alternatively, that
Schugs allegations were factually baseless and unsupportable as a
matter of law. The materials Schug filed in response to the
summary judgment motion reasserted the same conclusory
allegations made in his complaint. He offered no admissible
evidence to support his claims against Moore.
On January 25, 2008, the superior court granted Moores
motion for summary judgment because all three categories of
claims are unsustainable as a matter of law and Moore had
absolute immunity as to the first two categories of claims.
Schug only appeals the superior courts ruling dismissing the
first two categories of his claims.
III. STANDARD OF REVIEW
We review the grant of summary judgment de novo,
reading the record in the light most favorable to the non-moving
party and making all reasonable inferences in its favor.1 We
will affirm a grant of summary judgment when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law.2 The party opposing summary judgment
must set forth specific facts showing genuine issues and cannot
rest on mere allegations.3 These facts must arise from
admissible evidence.4 To determine whether the nonmoving party
can produce admissible evidence creating a genuine factual
dispute, we will consider the affidavits, depositions,
admissions, answers to interrogatories and similar material.5
The applicability and scope of official immunity raise
only questions of law to which we are free to substitute our own
judgment for that of the trial court.6
IV. DISCUSSION
A. The Trial Court Correctly Concluded That Moores Actions
As DOCs Defense Attorney Were Shielded From Suit By
Official Immunity.
We use a three-part test to determine the existence and
scope of official immunity: First, does the doctrine of official
immunity apply to the state officials conduct? Second, if it
does apply, is the immunity absolute or qualified? And third, if
it is only a qualified immunity, did the state official act
corruptly, maliciously, or in bad faith?7
Official immunity applies to Moores conduct if it (1)
was within the scope of her authority as an assistant attorney
general, and (2) consisted of discretionary acts.8 The
allegations against Moore satisfy both parts of this test. Her
job as an assistant attorney general is to represent the state in
all civil litigation in which the state is a party.9 All of the
activities described in Schugs complaint and in his opposition to
Moores motion for summary judgment involved Moores representation
of DOC in litigation against him; they were therefore within the
scope of Moores authority as DOCs attorney. Moreover, Moores
decisions to object to the presentation of evidence (or not), to
present witnesses, to hire expert witnesses, and to take all the
other challenged actions to defend DOC in the underlying
litigation were discretionary acts requiring personal
deliberation, decision and judgment.10 For these reasons,
official immunity applies to Moores actions as DOCs defense
attorney.
Because we conclude that official immunity applies to
Moores conduct as DOCs attorney and because Schug offered no
evidence that Moore acted corruptly, maliciously, or in bad faith
during her defense of DOC, we agree with the superior courts
conclusion that Moore was protected from suit by official
immunity. We do not decide whether Moore was protected by
absolute or qualified immunity when she represented DOC in the
underlying litigation.
B. Schugs Claims Are Unsupportable As A Matter Of Law.
Schug alleges Moore committed fraud, deception,
bribery, and conspiracy before and during the personal injury
trial. His unsupported allegations of wrongdoing do not rise to
the level of disputed issues of material fact unless the record .
. . contain[s] at least some objective evidence establishing
facts capable of supporting an inference of wrongdoing.11
[C]onclusory statements describing [a partys] subjective
impressions do not raise disputed questions of material fact.12
Schug failed to carry his burden to defeat Moores
motion for summary judgment. He offered no objective evidence
establishing facts capable of supporting an inference that Moore
engaged in wrongdoing before or during the 2006 trial. At best,
his allegations against Moore appear to be the product of
confusion about her role as a defense attorney. Because Schug
failed to offer admissible evidence that could give rise to an
inference of a conspiracy or other wrongful conduct by Moore, we
affirm the trial courts order granting summary judgment in Moores
favor.
V. CONCLUSION
We AFFIRM the superior courts order granting summary
judgment and dismissing Schugs complaint.
_______________________________
1 Witt v. State, Dept of Corr., 75 P.3d 1030, 1033
(Alaska 2003) (citing Spindle v. Sisters of Providence in Wash.,
61 P.3d 431, 436 (Alaska 2002)).
2 Id. (citing Spindle, 61 P.3d at 436).
3 Braun v. Alaska Comm. Fishing & Agric. Bank, 816 P.2d
140, 144 (Alaska 1991).
4 Witt, 75 P.3d at 1033 (internal citations omitted).
5 Charles v. Interior Regl Hous. Auth., 55 P.3d 57, 59
(Alaska 2002) (internal citations omitted).
6 Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 154
(Alaska 1987).
7 Smith v. Stafford, 189 P.3d 1065, 1072 (Alaska 2008)
(citing Alpine Indus., Inc. v. Feyk, 22 P.3d 445, 447-48 (Alaska
2001)).
8 See Aspen Exploration Corp., 739 P.2d at 156 (stating
that because the governors actions were within the scope of his
authority and discretionary in nature. . . the doctrine of
official immunity is applicable to the facts of this case).
9 AS 44.23.020(b)(3).
10 Aspen Exploration Corp., 739 P.2d at 155 (discretionary
acts are those requiring personal deliberation, decision and
judgment).
11 See Prentzel v. Dept of Pub. Safety, 169 P.3d 573, 585
(Alaska 2007).
12 Id.
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