BOLDEN v. STATE, S-12925 (Alaska 4-21-2010)


Supreme Court No. S-12925.Supreme Court of Alaska.
April 21, 2010.

Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.

Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Douglas L. Blankenship, Judge, Superior Court No. 4FA-06-02772 CI.

Appearances: Ivan Bolden, pro se, Fairbanks. Marilyn J. Kamm, Assistant Attorney General, and Richard A. Svobodny, Acting Attorney General, Juneau, for Appellee.

Before: Fabe, Winfree, and Christen, Justices. [Carpeneti, Chief Justice, and Eastaugh, Justice, not participating.].

The superior court interpreted a prisoner’s suit as an administrative appeal from a final grievance decision by the Department of Corrections (DOC) and dismissed it for lack of subject matter jurisdiction without notice or opportunity for either the prisoner or DOC to be heard. Because the superior court’s procedure infringed on thePage 2
prisoner’s right to due process, we reverse the dismissal of his suit and remand for further proceedings.


On the evening of December 17, 2005, prisoner Ivan Bolden and two DOC officers disputed necessary and appropriate remedial actions after the toilet in his cell at Fairbanks Correctional Center (FCC) overflowed. Bolden demanded “the sewage out of my [cell]” and “a new cast on my leg since I have to walk through sewage.” The correctional officers instead offered Bolden some cleaning supplies, but they came to an impasse when Bolden insisted they open his cell door rather than transfer a cleaning mop back and forth through his food tray slot. Due to security concerns and what the officers viewed as Bolden’s uncooperative behavior (perhaps including a belief that Bolden deliberately caused the toilet to overflow), Bolden was not allowed out of his cell — which remained uncleaned — until the next day.

Bolden immediately filed a grievance, [fn1] asserting that the correctionalPage 3
officers’ actions were “against the 8th amendment [and his] human right[s].” For relief Bolden requested that the correctional officers “go back through training” and the incident be noted in their employment records. The FCC Superintendent denied Bolden’s grievance a few days later, concluding there was no appearance of “staff misconduct.” Bolden filed a grievance appeal, asserting he had been left in a cell full of sewage, his leg cast had been contaminated, and he was being tested “for pathogens”; he claimed the correctional officers’ conduct “was plain unprofessional” and requested an apology. The Director of Institutions denied the appeal. Bolden filed a final grievance appeal, which the Standards Administrator denied in April 2006 in DOC’s “final administrative action” on Bolden’s grievance.[fn2]
B. Proceedings

In November 2006 Bolden filed a pro se superior court action in which he: (1) referred to himself as the plaintiff and to DOC as the defendant; (2) referred to his pleading as a complaint; (3) alleged that on the night of the incident “a foul smell” woke him, he got off his bed with a casted broken leg to find himself “standing in raw sewage barefoot,” he “couldn’t get help from anyone,” and he was left overnight in his cell in violation of his civil rights; and (4) noted his prior unsuccessful grievance and concluded that he “would like to file this complaint under 42 [U.S.C.] § 1983 for settlement.”[fn3] L a t e r that month he obtained a summons for service on DOC.Page 4

Before DOC appeared in the action, the superior court sua sponte ordered Bolden to submit his DOC grievance and decision to the court. Bolden apparently complied because the record includes six pages from his grievance file. Still before DOC appeared in the action and without affording Bolden prior notice or opportunity to be heard, the superior court sua sponte (1) stated that it interpreted Bolden’s action “as an administrative appeal from a final decision of the [DOC] grievance process” and (2) dismissed the appeal for lack of subject matter jurisdiction because the appeal did not raise issues of constitutional magnitude.[fn4]

We review de novo dismissals on the pleadings, [fn5] questions of due process, [fn6] questions of subject matter jurisdiction, [fn7] and the appropriateness of converting an action into an administrative appeal.[fn8]Page 5

Bolden is a pro se appellant and his briefing does not fully differentiate between an appeal and a direct action. But from the thirteen “issues presented for review” and other portions of his brief we can glean that he has raised three relevant points on appeal.[fn9]

First, Bolden argues the premature dismissal of his action violated his constitutional right to due process. Second, he argues the superior court had subject matter jurisdiction for his action. Third, he argues he raised substantive issues of constitutional magnitude about the December 2005 incident. Bolden concludes his brief by asserting the right to “no less than [t]wenty [m]illion [d]ollars for the violations of his guaranteed rights.”

DOC affirmatively contends it was error for the superior court to treat Bolden’s action as an administrative appeal instead of a direct civil rights action under 42 U.S.C. § 1983. DOC notes that the State cannot be a defendant in a § 1983 action[fn10] and suggests that if we remand, Bolden should be given an opportunity to amend his complaint to substitute a proper defendant. But DOC further contends that Bolden’s overnight confinement conditions did not violate the Eighth Amendment of the United States Constitution and that dismissal of Bolden’s direct action under § 1983 can bePage 6
affirmed on this ground.[fn11]

We have consistently held that “`[h]owever denominated, a claim is functionally an [administrative] appeal if it requires the court to consider the propriety of an administrative determination.'”[fn12] If a court cannot grant the requested relief without reversing the prior agency determination, the action should be treated as an administrative appeal.[fn13] It is also proper to treat an action as an administrative appeal if the action “seeks exactly the same review by the superior court as could be had in an appeal from the administrative order”[fn14] or where “the relief sought is essentially the samePage 7
as that sought” in the agency proceeding.[fn15] Finally, we note that an action seeking review on the record of a prior agency proceeding, as opposed to the de novo reception of evidence, is characteristic of an administrative appeal.[fn16]

It is not clear why Bolden’s action should be considered an appeal from DOC’s grievance process and not, as probably Bolden and certainly DOC contend on appeal, a direct action for relief under § 1983 based in theEighth Amendment of the United States Constitution. The relevant DOC grievance process allows prisoners to grieve alleged violations of DOC-related statutes, regulations, policies, and procedures, [fn17] not alleged violations of federal constitutional rights.[fn18] Although in his grievance Bolden did refer to a violation of his federal constitutional rights, he specifically alleged that the correctional officers responded inappropriately when his toilet overflowed and he requested that they receive a written reprimand and be retrained; this seems consistent with the parameters of the grievance process. In contrast, in his superior court action Bolden appears to focus not on violations of DOC statutes, regulations, policies, andPage 8
procedures, nor on DOC’s decision-making regarding his grievance, but rather on an underlying conditions-of-confinement violation of the United States Constitution. He also appears to seek money damages, which likely cannot be awarded through the grievance process.[fn19]

During the grievance process DOC expressly concluded that it was not staff misconduct to pass cleaning materials through a tray slot and that Bolden was retained in his cell because of security concerns and uncooperative behavior. The Standards Administrator noted that “[p]risoners are responsible for the cleanliness and order of their living areas” under Procedure 806.02(F) of DOC’s Policies and Procedures and that correctional staff suspected Bolden’s toilet was the source of the flooding in the segregation unit; we infer that the Standards Administrator concluded Bolden had stopped up his own toilet and was responsible for cleaning up his cell. But whether Bolden’s confinement violated his Eighth Amendment rights depends on (1) whether he sustained a risk to his health[fn20] and (2) whether the correctional officers were aware of thatPage 9
risk and how they responded to it.[fn21] It therefore seems unlikely that the merits of an Eighth Amendment conditions-of-confinement claim could be resolved by reviewing the meager record or limited factual findings produced by DOC’s grievance process.[fn22]

To the extent Bolden’s superior court action seeks the relief DOC denied him in his grievance, Bolden’s action can properly be treated as an administrative appeal.[fn23] But to the extent Bolden seeks damages through a § 1983 action based on the Eighth Amendment, his action should not have been converted to an administrative appeal. It appears that Bolden seeks the latter, but it is not clear; this lack of clarity arises in part because the superior court summarily dismissed Bolden’s action without notice and opportunity for Bolden or DOC to be heard.

We conclude it was error to dismiss Bolden’s superior court action withoutPage 10
notice and an opportunity to clarify the nature of the action and present arguments why it should not be dismissed.[fn24] We therefore reverse the dismissal of Bolden’s action.

On remand Bolden may choose to: (1) appeal DOC’s denial of his original grievance and related request that the correctional officers undergo retraining and an incident report be placed in their employee files;[fn25]
(2) proceed with a direct action against an appropriate defendant under § 1983 for damages or other relief for alleged violations of his federal constitutional rights; or (3) pursue both an appeal and a direct action. No matter which claim or claims he chooses to bring, the superior court may not dismiss his claims without giving him notice and opportunity to oppose the dismissal.

The superior court’s dismissal of Bolden’s action is REVERSED and the case is REMANDED for further proceedings consistent with this decision.

[fn*] Entered pursuant to Appellate Rule 214.

[fn1] Under DOC’s policies and procedures, a prisoner may grieve alleged violations of “the Department’s regulations, statutes, policies, or procedures stated in the prisoner handbook” not subject to a separate appeal process. State of Alaska Department of Corrections Policies and Procedures 808.03(VI)(E)(1) (2006). The prisoner’s grievance is limited to three pages of narrative to explain the alleged violation. Id. at 808.03(VII)(A)(1)(c). A prison staff member investigates the grievance “to fully and equitably examine the issue” and makes a recommendation within ten working days. Id. at 808.03(VII)(A)(2)(f). Within another five working days, the Superintendent or Warden issues a determination. Id. at 808.03(V)(C), 808.03(VII)(A)(2)(g). The prisoner may appeal this determination, without an opportunity to present any additional information, to DOC’s Director of Institutions, who must respond within fifteen working days. Id. at 808.03(VII)(A)(1)(f), 808.03(VII)(A)(2)(i)(3). One final appeal may be made to DOC’s Standards Administrator, who must respond within twenty working days. Id. at 808.03(VII)(A)(1)(g), 808.03(VII)(A)(2)(j).

[fn2] Bolden’s grievance record does not reveal exactly when he was released from his cell for showering or medical treatment or if and when his cast was cleaned or replaced.

[fn3] 42 U.S.C. § 1983 allows for a direct action against persons who have violated federal constitutional or statutory rights while acting under color of law. State, Dep’t of Health Soc. Servs., Div. of Family Youth Servs. v. Native Vill. of Curyung, 151 P.3d 388, 393 (Alaska 2006) (citing Maine v. Thiboutot, 448 U.S. 1 (1980)).

[fn4] See Brandon v. State, Dep’t of Corr., 938 P.2d 1029, 1031-32
(Alaska 1997) (noting that although no statute confers jurisdiction on superior court to hear appeals from DOC administrative decisions, appeal is nonetheless “appropriate where there is an alleged violation of fundamental constitutional rights in an adjudicative proceeding producing a record capable of review” (citing Owen v. Matsumoto, 859 P.2d 1308, 1310
(Alaska 1993))).

[fn5] Adkins v. Stansel, 204 P.3d 1031, 1033 (Alaska 2009) (quotingVarilek v. City of Houston, 104 P.3d 849, 851 (Alaska 2004)).

[fn6] In re Estate of Fields, 219 P.3d 995, 1003 (Alaska 2009) (citingS.B. v. State, Dep’t of Health Soc. Servs., Div. of Family YouthServs., 61 P.3d 6, 10 (Alaska 2002)).

[fn7] Id. (citing S.B., 61 P.3d at 10).

[fn8] Laidlaw Transit, Inc. v. Anchorage Sch. Dist., 118 P.3d 1018, 1023
(Alaska 2005) (citing Brandon, 938 P.2d at 1031-32).

[fn9] We view pro se litigants’ appellate briefings more leniently than those of represented litigants. Pieper v. Musarra, 956 P.2d 444, 446
(Alaska 1998) (citing Smith v. Sampson, 816 P.2d 902, 906 (Alaska 1991) and Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987)).

[fn10] See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989) (“[A] State is not a person within the meaning of § 1983.”).

[fn11] The Eighth Amendment, through the Due Process Clause of theFourteenth Amendment, requires state prison officials to maintain “humane conditions of confinement,” including adequate food, clothing, shelter, and medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994).

The record does not reveal any analysis supporting the superior court’s conclusion that “[a]s unpleasant as a night with sewage in his cell must have been, the conditions and the requirement that [Bolden] clean his own cell in a particular manner did not rise to an infringement of his constitutional rights.” In its briefing to us DOC discusses a number of federal cases supporting the superior court’s conclusion. But DOC did not present this analysis to the superior court, and Bolden was not given an opportunity to present any analysis to the superior court. We decline DOC’s request that we decide this constitutional question on the record before us.

[fn12] E.g., Laidlaw Transit, Inc., 118 P.3d at 1024 (quoting Haynes v.State, Commercial Fisheries Entry Comm’n, 746 P.2d 892, 893 (Alaska 1987)).

[fn13] See Haynes, 746 P.2d at 893; accord Diedrich v. City of Ketchikan,805 P.2d 362, 366 (Alaska 1991) (holding treatment as administrative appeal was proper where “superior court could not have granted the requested relief without reversing the Board’s determination”).

[fn14] Owsichek v. State, Guide Licensing Control Bd., 627 P.2d 616, 620
(Alaska 1981).

[fn15] Fairbanks N. Star Borough v. State, 826 P.2d 760, 763 (Alaska 1992).

[fn16] Carlson v. Renkes, 113 P.3d 638, 641 (Alaska 2005) (quoting Dep’tof Corr. v. Kraus, 759 P.2d 539, 540 (Alaska 1988)).

[fn17] See note 1, above.

[fn18] We have observed that “[a]dministrative agencies have no jurisdiction to decide issues of constitutional law.” Dougan v. AuroraElec. Inc., 50 P.3d 789, 795 n. 27 (Alaska 2002) (citing State, Dep’t ofLabor, Wage Hour Div. v. Univ. of Alaska, 664 P.2d 575, 580 (Alaska 1983)). Moreover, Bolden would not have been required to raise his conditions-of-confinement claim in a grievance because a prisoner alleging a federal constitutional claim under § 1983 need not exhaust grievance procedures before suing in court. See Diedrich,805 P.2d at 368-69 (concluding party need not comply with state procedural law, such as exhaustion requirements, before bringing § 1983 claim in state court) (relying on Felder v. Casey, 487 U.S. 131, 147

[fn19] “Neither the policies and procedures manual of the Department of Corrections nor the regulations governing the Department of Corrections indicate that the department has any authority to pay any form of compensatory damages.” Hymes v. DeRamus, 222 P.3d 874, 883 n. 35 (Alaska 2010) (citing 22 AAC 05.185).

[fn20] A conditions-of-confinement claim, like all Eighth Amendment claims, has an objective and a subjective component. E.g., Hudson v.McMillian, 503 U.S. 1, 8 (1992). The objective component is satisfied by facts showing an extreme deprivation, id. at 8-9, such as serious deprivation of a “basic human need[]” or the “minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Here, Bolden would have to allege and prove facts showing that his conditions of incarceration posed a “substantial risk of serious harm” to his health or safety. Farmer, 511 U.S. at 828; cf. DeSpain v. Uphoff,264 F.3d 965, 972, 974 (10th Cir. 2001) (holding that allegation of thirty-six hours in cell flooded with four inches of standing water into which other inmates relieved themselves was sufficient to state an Eighth
Amendment violation); Smith v. Copeland, 87 F.3d 265, 268-69 (8th Cir. 1996) (finding no constitutional violation when pretrial detainee was exposed for four days to raw sewage from an overflowed toilet in his cell which he declined to clean up).

[fn21] The subjective component of a conditions-of-confinement claim is pled by alleging facts showing that prison officials acted with “`deliberate indifference’ to inmate health or safety.” Farmer,511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 302-03 (1991)). The subjective component requires “the official [to] both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [to] also draw the inference.” Id. at 837. We express no opinion on the relevance, if any, of a prisoner’s creation of the unsafe condition.

[fn22] See Owen, 859 P.2d at 1309-10 (holding that prisoner could not appeal DOC’s calculation of his sentence to superior court because the proceeding did not produce an adequate record reviewable on administrative appeal).

[fn23] See Wilson v. State, Dep’t of Corr., 127 P.3d 826, 828 (Alaska 2006) (analyzing prisoner’s suit for transportation expenses as administrative appeal of DOC’s denial of grievance seeking same relief);Hays v. State, 830 P.2d 783, 784 (Alaska 1992) (analyzing prisoner’s suit for reinstatement of privileges as administrative appeal of DOC’s denial of grievance seeking same relief).

[fn24] See Smith v. Groleske, 196 P.3d 1102, 1106 (Alaska 2008) (“Due process requires that a party be given an opportunity for a hearing on issues of consequence.” (citing Heustess v. Kelley-Heustess, 158 P.3d 827,835 (Alaska 2007) and Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska 1998))).

[fn25] We express no opinion on the merits of Bolden’s grievance or whether the relief sought could be obtained through a superior court appeal.Page 1