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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Tracy v. State, Dept. of Health & Social Services, Office of Children's Services (6/29/2012) sp-6686
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
RICHARD J. TRACY and )
DURENA K. TRACY, ) Supreme Court No. S-13904
)
Appellants, ) Superior Court No. 3AN-09-10436 CI
)
v. ) O P I N I O N
)
STATE OF ALASKA, ) No. 6686 - June 29, 2012
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF )
CHILDREN SERVICES, )
)
Appellee. )
)
)
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Peter A. Michalski, Judge.
Appearances: Richard J. Tracy and Durena K. Tracy, pro se,
Wasilla, Appellants. Laura C. Bottger, Assistant Attorney
General, Anchorage, and John J. Burns, Attorney General,
Juneau, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices. [Christen, Justice, not participating.]
STOWERS, Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
Richard and Durena Tracy appeal the superior court's dismissal of their
state law negligence and federal constitutional claims against the State of Alaska,
Department of Health and Social Services, Office of Children's Services (OCS). This
case arises out of Child in Need of Aid (CINA) proceedings to protect their
granddaughter, Annie.1 The Tracys also appeal the superior court's denial of summary
judgment in their favor and its award of attorney's fees against them. We affirm the
superior court's dismissal of the case but vacate the award of attorney's fees.
II. FACTS AND PROCEEDINGS
A. Facts
Richard and Durena Tracy (the Tracys) are the biological grandparents of
the minor child Annie. The Tracys are now also her adoptive parents, having adopted
Annie some time after the events that gave rise to this action. Prior to the initiation of
the CINA proceedings in this case, the Tracys were Annie's legal guardians. They
received physical custody of Annie in June 2004 when Annie was approximately two
years old.
In September 2007 Annie, then five years old, was living with the Tracys.
OCS removed Annie from the home on September 19, 2007, responding to a report made
earlier that day by Annie's kindergarten teacher who suspected, inaccurately, that Annie
had been sexually abused by Richard.2 Annie was interviewed by OCS, the Alaska State
Troopers (AST), and the Wasilla Police Department (WPD). Neither Richard nor
Durena was allowed to be present for the interview, which was videotaped.
1 We use a pseudonym to protect Annie's privacy.
2 It was later determined that those allegations were mistaken and Richard
Tracy was cleared of any wrongdoing.
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After the interview, AST and WPD officers told Richard that he would have
to leave his home until a complete investigation was conducted. The officers informed
Richard that, should he choose to remain at home, Annie would be placed in foster care.
Richard left for a week but wanted to return home so that Durena could work outside the
home. Richard submitted to a polygraph test on September 25, 2007, hoping that it
would clear him of any allegations of abuse, but the polygraph examiner determined
Richard had not passed.3 The next day, on September 26, 2007, OCS took physical
custody of Annie.
Over the next eight months, OCS continued its investigation into the alleged
abuse of Annie. Durena was allowed supervised visits with Annie, but Richard was
allowed no visitation. On April 15, 2008, clinical psychologist Dr. Michael C. Rose
performed a psychological sex offender risk assessment on Richard. Dr. Rose found no
credible or conclusive evidence that Richard had sexually abused Annie and concluded
that Richard presented no risk of sexual abuse. Dr. Rose offered his opinion that OCS's
investigation of the case was an "abuse of discretion and overzealous pursuit of
confirmatory bias." He recommended immediate reunification of Annie with Richard
and "that OCS adopt a more conciliatory and supportive posture toward unification of
[Annie] and Mr. and Mrs. Tracy."
Even after OCS received Dr. Rose's report, OCS did not promptly facilitate
reunification of Annie and the Tracys. Before Annie was returned home, OCS
conducted additional criminal background checks on Durena and Richard, conducted a
home search, and requested a second "home study" by Catholic Social Services which
3 The record suggests there were obvious problems with the polygraph test
indicating the test results were not valid.
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included additional interviews. Richard and Durena Tracy were eventually reunited with
Annie in June of 2008 and later adopted her.
B. Procedural History
The Tracys, acting pro se, filed a complaint for damages against OCS on
September 24, 2009. The complaint sought reimbursement for attorney's fees they
incurred during the CINA proceedings, damages for time lost from work relating to the
CINA proceedings, and other expenses. The complaint listed thirteen "[p]arties
involved," including the Tracys, four OCS workers, two Alaska State Troopers, one
Wasilla Police Department officer, Annie's kindergarten teacher, Dr. Rose, Superior
Court Judge Peter Michalski, and an individual from an organization that may have
interviewed Annie. The caption of the complaint listed only the State of Alaska,
Department of Social Services, OCS as the defendant. The Tracys sent the complaint
and summons to the Attorney General in Juneau, the Civil Division of the Department
of Law in Anchorage, and to OCS in Anchorage. None of the individual "parties
involved" listed in the body of the complaint were named as defendants in the caption
or served with the complaint and summons.
OCS responded to the complaint by filing a motion to dismiss. OCS
contended that the Tracys' state law tort claims (negligence, perjury, and disregard of
facts resulting in emotional distress) were subject to statutory immunity, and the Tracys'
federal constitutional claim was not viable because the State cannot be sued under
42 U.S.C. § 1983. In response to OCS's Motion to Dismiss, the Tracys filed a "Request
for Summary Judgment." In their request for summary judgment, the Tracys alleged
claims of negligence, perjury, falsifying reports, denial of due process and constitutional
rights, and denial of visitation. The Tracys specified they were not seeking
compensation under the perjury and falsifying reports claims, but rather saw these claims
as part of the State's denial of due process. The Tracys requested compensation for
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OCS's negligence and denial of rights in OCS's dealings with the Tracys as Annie's
foster parents. The Tracys clarified that they were "not . . . seeking compensation from
non-OCS employees," but they argued that OCS employees could be subject to civil
action as officials of the State.
In its opposition to the "Request for Summary Judgment," OCS interpreted
the Tracys' claim of constitutional violations as a claim under 42 U.S.C. § 1983. The
State argued that because OCS, the only named defendant, was not a "person" under
§ 1983, the Tracys' § 1983 claim must be dismissed. OCS further asserted that Alaska
law did not provide recovery for claims of state law negligence or due process violations.
Finally, OCS argued that it owed no legal duty of care toward parents and grandparents.
Implicit in OCS's argument is the contention that OCS owed no duty to the Tracys in
their capacity as foster parents either.
At oral argument, Richard Tracy spoke for the appellants. Richard
conceded that the Tracys' objections were to OCS's policies rather than the acts of
individual OCS employees. He argued that the Tracys' role as foster parents should be
sufficient to establish a duty from OCS to protect the Tracys' rights. Richard also argued
that the State could be sued for constitutional claims, but did not provide support for his
contention.
After explaining that he would take the matter under advisement, Superior
Court Judge Peter Michalski told the Tracys that "the law [was] very difficult" for them
in terms of the issues presented and that they had endured a "terribly upsetting" situation.
The court also remarked that Richard was a good person, father, and grandfather, but that
the law does not provide a legal remedy for all wrongs.
The court subsequently issued a written order granting OCS's motion to
dismiss. The court dismissed the Tracys' negligence claim because it found the State
owed no actionable duty of care to grandparents or foster parents in a CINA proceeding.
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The court dismissed the perjury and false reporting claims on immunity grounds. The
court dismissed the § 1983 constitutional claims because the State is not a proper
defendant in a § 1983 action and the Tracys named no other defendants.
OCS moved for an award of attorney's fees pursuant to Civil Rule 82, and
the court entered final judgement and an award of 20% of the State's attorney and
paralegal fees in the amount of $7,897.94.
The Tracys appeal.4
III. STANDARD OF REVIEW
A decision to grant a motion to dismiss a complaint under Alaska Civil Rule
12(b)(6) for failure to state a claim upon which relief may be granted is reviewed
de novo.5 We deem all facts alleged in the complaint "true and provable" when
reviewing a motion to dismiss.6
4 On appeal to this court, the Tracys nominally raised several new issues.
The Tracys included the Alaska Constitution in their "Authorities Principally Relied
Upon" and briefly argued in their reply brief that denial of civil rights is a violation of
the State constitution. The Tracys also included a breach of contract claim, arguing that
the existence of their foster care agreement with the State created a duty of care owed to
the Tracys by the State. The Tracys also raised a procedural claim and a claim of judicial
misconduct. Because all of these claims were raised for the first time on appeal, we
decline to address them. See Parks v. Parks, 214 P.3d 295, 300 n.12 (Alaska 2009)
("We do not consider claims raised for the first time on appeal, absent plain error.");
Matter of H.C. , 956 P.2d 477, 480 n.7 (Alaska 1998) (citing Kodiak Elec. Ass'n v.
DeLaval Turbine, Inc. , 694 P.2d 150, 153 n.4 (Alaska 1984) (holding that "even though
the issue was included in appellant's points on appeal statement, the issue was
abandoned because appellant failed to adequately brief it")).
5 McGrew v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 106 P.3d 319, 322 (Alaska 2005).
6 Id.
-6- 6686
----------------------- Page 7-----------------------
We review an award of attorney's fees under an abuse of discretion
standard.7 We will find an abuse of discretion upon "a showing that the award was
arbitrary, capricious, manifestly unreasonable, or stemmed from improper motive."8
IV. DISCUSSION
A. The Superior Court Did Not Err In Dismissing The Tracys' Negligence
Claims Against OCS.
The Tracys argue that the superior court erred in determining that the State
owed them no duty of care. They contend they were owed a duty as foster parents and
prospective adoptive parents, and that OCS violated certain provisions of Title 47 of the
Alaska Statutes, giving rise to liability. However, they do not present persuasive legal
authority for these statements. The Tracys cite to AS 47.17.033(i), which requires OCS
employees to undergo training that addresses "the constitutional and statutory rights of
children and families that apply throughout the investigation and . . . the applicable legal
duties to protect the rights and safety of a child and the child's family."9 The Tracys do
not address AS 47.10.960(a), which states, "Failure to comply with a provision of this
title does not constitute a basis for civil liability for damages," nor do they address its
application as a bar to civil suits for alleged violations of Title 47.
Alaska case law establishes that there exists no actionable duty on the part
of OCS towards grandparents, legal guardians, foster parents, or prospective adoptive
parents under the circumstances of this case. In Karen L. v. State, Department of Health
7 Ware v. Ware, 161 P.3d 1188, 1192 (Alaska 2007).
8 Id . (internal citation omitted).
9 AS 47.17.033(I).
-7- 6686
----------------------- Page 8-----------------------
and Social Services, Division of Family and Youth Services,10 for example, we held that
although the emotional harm resulting from improper CINA proceedings was
foreseeable, "allowing aggrieved parents to sue the State for actions or inactions during
the course of a CINA investigation or proceeding would greatly burden society's already
scarce social worker resources. Social workers should be helping children in need of aid.
They should not be spending their time in burdensome collateral litigation."11 This
holding was reiterated in McGrew v. State, Department of Health and Social Services,
Division of Family and Youth Services ,12 where we explained that "the [S]tate and the
social workers did not owe the mother an actionable duty of care."13
Here, the superior court correctly concluded that the State did not owe a
duty of care based on the Tracys' status as grandparents or foster parents. Furthermore,
AS 41.10.960(a) expressly provides that OCS's failure to comply with Title 47 does not
constitute a basis for civil damages.
B. The Court Did Not Err In Dismissing The Tracys' § 1983 Claim.
As explained above, the Tracys filed a complaint for damages against OCS
and the caption listed only OCS as the defendant. Among other claims, the Tracys
alleged a denial of their due process rights and an infringement of their civil rights by the
10 953 P.2d 871 (Alaska 1998).
11 Id . at 877 (internal citations omitted).
12 106 P.3d 319 (Alaska 2005).
13 Id . at 323 ("We recognize here, as we did in Karen L. , that 'it is to be
expected that any litigation, and certainly a CINA proceeding in which the child is taken
from its [relatives] . . . will cause the [relatives] some distress. That does not mean that
the distress should be actionable.' Karen L. establishes that DFYS does not owe a parent
an actionable duty of reasonable care in a CINA proceeding. Karen L. therefore
precludes the grandparents' negligence claim in this case." (quoting Karen L. , 953 P.2d
at 876) (alteration in original)).
-8- 6686
----------------------- Page 9-----------------------
State. Both OCS and the superior court interpreted the Tracys' constitutional claims as
a claim under 42 U.S.C. § 1983. The superior court dismissed the § 1983 claim because
OCS is not a "person," and therefore not a proper defendant under § 1983. In doing so,
the court did not advise the Tracys what steps they might have taken to amend their
complaint to name a proper defendant. We asked for supplemental briefing on this issue
to evaluate whether the superior court abused its discretion in not giving further
assistance to the Tracys, who are pro se litigants. We conclude the court did not abuse
its discretion.14
The United States Supreme Court has held that the state and state officers
acting in their official capacity are not persons under § 1983, and therefore cannot be
sued for damages under § 1983.15 In the body of their complaint, the Tracys listed
several individuals as "[p]arties involved" but ultimately sued only one party - OCS.
Therefore, the superior court correctly dismissed the Tracys' § 1983 claim against OCS.
However, even if the individuals listed as "parties involved" had been named defendants,
the Tracys evidently intended to name them in their official, not individual, capacities.16
14 It is well-established that "pleadings of pro se litigants should be held to
less stringent standards than those of lawyers," and that "the trial judge should inform
a pro se litigant of the proper procedure for the action he or she is obviously attempting
to accomplish." Breck v. Ulmer , 745 P.2d 66, 75 (Alaska 1987) (italics omitted).
However, requiring a judge "to instruct a pro se litigant as to each step in litigating a
claim would compromise the court's impartiality in deciding the case by forcing the
judge to act as an advocate for one side." Bauman v. State, Div. of Family & Youth
Servs., 768 P.2d 1097, 1099 (Alaska 1989).
15 Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).
16 In their appeal brief, the Tracys explain, "This case concerns actions by
officials and employees of the State of Alaska that violate the . . . United States
Constitution. This Court has jurisdiction to review whether a systemic atmosphere exists
(continued...)
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Had the Tracys amended their complaint to sue the listed individuals in their official
capacities, the complaint still would have been properly dismissed. Because individuals
acting in their official capacity are immune from suit under § 1983, the Tracys would not
have been helped by amending their pleading.17 The superior court did not abuse its
discretion in not advising the Tracys that they might amend their complaint, nor did it
err by dismissing the Tracys' § 1983 claim.
C. It Was Error To Award Attorney's Fees To The State.
The Tracys also challenge the superior court's award of attorney's fees.
While this argument is not fully developed, we consider it because the Tracys have
proceeded pro se, and because it appears that it was plain error for the court not to have
applied AS 09.60.010(c)(2)18 and case law interpreting 42 U.S.C. § 1988's attorney's fee
16(...continued)
within the Office of Children's Services that condones violations of constitutional rights.
. . ." The Tracys argue that "[s]ince individuals (in their [respective] official capacities)
who are sued under 1983 Civil Rights violations are represented by the Attorney
General's office and given immunity from cases of misrepresentation, slander, perjury,
or negligence, this technicality should not be used by the state to dismiss this case."
Finally, Richard explained at oral argument that, although he would have liked to, he
knew that he could not sue OCS employees in their individual capacity without showing
malice on their part, so he instead sued OCS (the State) based on its policies. These
statements, though not entirely clear, indicate that the Tracys understood the difference
between suing State employees in their official versus individual capacities, and that the
Tracys determined to name only OCS as defendants.
17 Will, 491 U.S. at 71.
18 Alaska Statute 09.60.010(c)(2) reads: "In a civil action or appeal
concerning the establishment, protection, or enforcement of a right under the United
States Constitution or the Constitution of the State of Alaska, the court . . . may not order
a claimant to pay the attorney fees of the opposing party devoted to claims concerning
constitutional rights if the claimant as plaintiff, counter claimant, cross claimant, or third-
(continued...)
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----------------------- Page 11-----------------------
provision19, at least with respect to the Tracys' § 1983 claim. For example, in DeNardo
v. Johnstone , the United States District Court for the District of Alaska described the care
a court should exercise in determining whether to award fees against an unsuccessful
§ 1983 pro se litigant:
Nevertheless, before awarding fees to a defendant, the court
should be able to find that the plaintiff, if he appears pro se,
knew or should have known that his case was without merit.
It is not enough that the court is able to summarily dispose of
the case without trial. Bearing in mind[] Congress's desire to
encourage those whose rights have been infringed[] to pursue
those rights in the courts, a district court should be
particularly hesitant to award fees against an unrepresented
plaintiff. In such a case, the court must consider the pro se
plaintiff's ability to recognize the merits or demerits of his or
her case. In practice, the court should refrain from awarding
fees against a pro se plaintiff unless it can find that a
reasonable lay person, having knowledge of the facts known
to the plaintiff, would have recognized that his or her claim
was without merit. Such a finding is most appropriate where
the court finds that the plaintiff is proceeding in bad faith or
for an improper motive.[20]
18(...continued)
party plaintiff in the action or appeal did not prevail in asserting the right, the action or
appeal asserting the right was not frivolous, and the claimant did not have sufficient
economic incentive to bring the action or appeal regardless of the constitutional claims
involved."
19 42 U.S.C. § 1988(b) (2006) provides: "In any action or proceeding to
enforce a provision of section[] . . . 1983 . . . the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorney's fee as part of the
costs . . . ."
20 772 F. Supp. 462, 465-66 (D. Alaska 1991) (internal citations and italics
omitted).
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Alaska Statute 09.60.010(c)(2) is of similar effect: the superior court "may not order a
[non-prevailing] claimant to pay the attorney['s] fees of the opposing party devoted to
claims concerning constitutional rights" where the claim is not frivolous.
On the record before us, it is clear that the Tracys were not proceeding in
bad faith or for any improper motive. Even OCS's retained psychologist, Dr. Michael
Rose, explained that in his opinion, OCS's investigation of the allegations of abuse was
an "abuse of discretion and overzealous pursuit of confirmatory bias." The superior
court also acknowledged that the Tracys had endured a "terribly upsetting" situation.
A major part of the Tracys' claims against OCS involved their claims that
OCS violated their constitutional or civil rights. Though they were unsuccessful on these
constitutional claims, there is nothing in the record before us to suggest that their claims
were asserted in bad faith or for any improper motive. The superior court should not
have awarded attorney's fees against the Tracys at least with respect to their
constitutional claims. We therefore vacate the attorney's fees award and remand. On
remand, if the State elects to seek Rule 82 attorney's fees for the non-constitutional and
non-civil rights claims, the superior court may consider Rule 82(b)(3)21 factors to
determine whether there are grounds to vary any attorney's fees award.
V. CONCLUSION
We AFFIRM the superior court's dismissal of the Tracys' negligence,
constitutional, and other claims. We VACATE the award of attorney's fees, and
REMAND for further proceedings.
21 "The court may vary an attorney's fee award calculated under subparagraph
(b)(1) or (2) of this rule if, upon consideration of the factors listed . . . the court
determines a variation is warranted. . . ."
-12- 6686
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