Appeal
from the Superior Court No. 3 AN-16-07272 CI of the State of
Alaska, Third Judicial District, Anchorage, Catherine M.
Easter, Judge.
Raymond Leahy, pro se,
Wasilla, Appellant. Mary B. Pinkel, Assistant Attorney
General, Anchorage, and Jahna Lindemuth, Attorney General,
Juneau, for Appellees.
Before
Stowers, Chief Justice, Maassen, Bolger, and Carney,
Justices.[Winfree, Justice, not participating.]
OPINION
MAASSEN, JUSTICE.
I.
INTRODUCTION
A
prisoner sued two prison superintendents, claiming that a
mail policy instituted by the Alaska Department of
Corrections (DOC) violated his religious rights because it
prohibited him from writing letters to fellow Muslims in two
other prisons. He asked for damages and a declaratory
judgment that the mail policy violated the Alaska
Constitution and the federal Religious Land Use and
Institutionalized Persons Act (RLUIPA).
DOC
rescinded the policy while the case was pending. The superior
court granted summary judgment in favor of the
superintendents, finding that the prisoner was not entitled
to damages because the superintendents had not been
personally involved in creating the policy and that his
claims for non-monetary relief were mooted by the
policy's rescission. The prisoner appeals.
We
affirm the superior court's decision that the prisoner is
not entitled to damages, though on different grounds. We
conclude that the superintendents were entitled to qualified
immunity because the prisoner's right to a religious
exception from the mail policy was not "clearly
established" under existing law. We also affirm the
superior court's decision that the prisoner's claim
for declaratory relief is moot. Finally, we see no abuse of
discretion in the superior court's handling of the
prisoner's pro se status or its failure to designate the
prisoner as the prevailing party.
II.
FACTS AND PROCEEDINGS
Raymond
Leahy is a prisoner at Goose Creek Correctional Center (Goose
Creek). He is a practicing Muslim and identifies himself as
the Imam of the "Ummah of Incarcerated Alaskan
Muslims." John Conant and Clare Sullivan, the appellees,
have served as superintendents of Goose Creek and Spring
Creek Correctional Facilities, respectively.
Leahy's
complaint arose from a February 2014 DOC directive that
prohibited mail between prisoners residing at three
correctional facilities: Goose Creek, Spring Creek, and the
Anchorage Correctional Complex. Though not in the record, the
directive is described in several affidavits[1] and an
implementing memorandum, and its substance is not in dispute.
Sullivan attests that the directive was issued by former DOC
Commissioner Bryan Brandenburg and stemmed from a concern
that prisoners returning from private prisons outside Alaska
were involved in gang and drug-trafficking activity and could
"use the prison mail system to pass information for
planning and carrying out assaults, conducting illegal
business and drug activities, as well as recruiting and
communicating [gang] activities." The directive
contained exceptions for mail to "immediate family
members" and co-litigants in criminal cases.
According
to Leahy, in June 2015 he attempted to send a letter to a
prisoner at Spring Creek who was the Imam in the Spring Creek
community. Leahy sent his letter during Ramadan; he explains
that the teachings of the prophet Muhammad require that he
engage in dialogue with Muslims in "communities outside
[his] own" and that he "holds a sincere religious
belief that it is obligatory for him to reach out and support
fellow Muslims within the Ummah of Incarcerated Alaskan
Muslims." DOC returned Leahy's letter to him as
undeliverable.
Leahy
sought unsuccessfully to meet with Superintendent Sullivan to
explain why his letter to the Imam was important to his
religious practice. He then filed a grievance, which was
denied, and appealed it without success. In June 2016 he
filed a complaint in superior court, asserting that DOC s
refusal to allow him "to reach out and support fellow
Muslims within the Ummah of Incarcerated Alaskan
Muslims" placed "a substantial burden on his
religious exercise," violating his rights under RLUIPA
and the Alaska Constitution and supporting claims for damages
and declaratory relief under 42 U.S.C. § 1983. The suit
named Conant and Sullivan as defendants in both their
official and individual capacities. It sought a declaration
"that the acts and ommissions described herein violate
Leahy's rights"; an order that each of the
superintendents "pay nominal and punitive damages, in
the amount of $20, 000.00"; an award of "costs,
fees, and postage"; and "any other just and
equitable relief [the superior court] deems
appropriate."[2]
While
the suit was pending-in November 2016-the 2014 directive was
rescinded by new DOC Commissioner Bruce Busby. According to
Sullivan, who had become Deputy Commissioner, the directive
was rescinded because while "the restriction was
appropriate at the time it was issued, it [was] no longer
necessary.... [since DOC was] now in a better position to
monitor inmate mail than [it had been] two years ago, and the
threat posed by inmate to inmate mail at present [was] not as
great as it [had been] previously." The new policy
restricted mail "only on a case-by-case basis"; the
restriction was to "be no broader than necessary to
address . . . safety or security concerns."
Leahy
filed a motion for summary judgment, contending that the 2014
directive had violated his religious rights, that the
rescission of the directive meant that he was now
"entitled to judgment as a matter of law," and that
he was entitled to damages for the past violation. The
superintendents filed a cross-motion for summary judgment,
arguing that Leahy's claims were now moot, that the
superintendents were otherwise entitled to qualified
immunity, and that the 2014 directive did not violate
Leahy's rights.
The
superior court denied Leahy's motion and granted the
superintendents' cross-motion. The court reasoned that
the superintendents could not be liable for damages under 42
U.S.C. § 1983 because they "did not personally
participate in the decision to institute the mail
restriction" and that Leahy's claims for declaratory
and injunctive relief were moot because of the
directive's rescission.
Leahy
appeals.
III.
STANDARD OF REVIEW
"We
review grants of summary judgment de novo, drawing all
factual inferences in favor of, and viewing the facts in the
light most favorable to the non-prevailing party (generally
the non-movant)."[3] We will "affirm grants of summary
judgment when there are no genuine issues of material fact,
and the prevailing party (generally the movant) was entitled
to judgment as a matter of law."[4] "We may affirm the
superior court on any basis supported by the record, even if
that basis was not considered by the court below or advanced
by any party."[5]
"We
review for abuse of discretion 'decisions about guidance
to a pro se litigant. . . .' "[6] Finally,
"[w]e review for abuse of discretion a trial court's
prevailing party determination," which will be
overturned only if it is "manifestly
unreasonable."[7]
IV.
DISCUSSION
A.
The Superintendents Were Entitled To Qualified Immunity From
Leahy's Damages Claims.
Leahy
did not sue the State or DOC; he sued only the two prison
superintendents, in both their official and their individual
capacities, alleging that they violated his rights under the
Alaska Constitution and RLUIPA by "denying [his]
correspondence with fellow Muslims in other [DOC] facilities,
without justification." The superintendents raised
qualified immunity as a defense and argued for it as one
ground for summary judgment. The superior court did not rely
on that defense when it decided the case, however, holding
instead that under 42 U.S.C. § 1983 the superintendents
could not be liable for violations of Leahy's religious
rights except "upon a showing of personal
participation," and Leahy failed to show that the
superintendents "personally participate[d] in the
decision to institute the mail restriction."
We note
first that the superintendents' lack of involvement in
the directive's implementation or say in its enforcement
is not a defense to a § 1983 claim. "[S]ince World
War II, the 'just following orders' defense has not
occupied a respected position in our jurisprudence, and
officers in such cases may be held liable under § 1983
if there is a reason why any of them should question the
validity of that order."[8] "[U]nder the Supremacy
Clause, [government] officials have an obligation to follow
the [U.S.] Constitution even in the midst of a contrary
directive from a superior or in a policy."[9]Government
officials may thus be liable for damages under § 1983
upon a showing that they acted unreasonably in following a
superior's lead, or that they knew or should have known
that their conduct might result in a violation of the
plaintiffs constitutional rights.[10]
That
said, the superintendents were nonetheless entitled to
summary judgment on Leahy's damages claims because there
was no showing that they acted unreasonably in following the
directive; they are therefore protected by qualified
immunity. We "follow federal precedent for determining
whether qualified immunity should be conferred for [official]
acts alleged to contravene a statutory or constitutional
mandate."[11] "Specifically, [in Breck v.
Ulmer] we adopted a test established by the United
States Supreme Court in Harlow v. Fitzgerald"
under which "qualified immunity shields public officials
from civil liability 'insofar as their conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person would have known.'
"[12] The inquiry is an objective
one.[13] "The burden of establishing that a
right is clearly established falls upon the
plaintiff."[14]
1.
Federal precedent favors the constitutionality of similar
mail restrictions.
We
conclude that Leahy did not demonstrate the existence of a
"clearly established right" of which a reasonable
prison official would have known. Alaska case law has not
definitively addressed the issue of restrictions on
prisoner-to-prisoner mail. And federal law favors the
constitutionality of the directive at issue; the United
States Supreme Court deferred to a prison system's
similar mail restrictions in Turner v. Safley, a
case with close parallels to this one.[15]
In
Turner, Missouri prisoners brought a constitutional
challenge against a mail policy that only allowed
"correspondence between inmates [at different state
prisons] ... if 'the classification/treatment team of
each inmate deem[ed] it in the best interest of the parties
involved.' "[16] The policy exempted mail sent between
family members and mail concerning legal
matters.[17] A federal district court held the policy
unconstitutional, finding that it was "unnecessarily
broad . . . because prison officials could effectively cope
with the security problems raised by inmate-to-inmate
correspondence through less restrictive means, such as
scanning the mail of potentially troublesome
inmates."[18] The Court of Appeals for the Eight
Circuit affirmed.[19]
The
Supreme Court reversed. While acknowledging that
"[p]rison walls do not form a barrier separating prison
inmates from the protections of the Constitution," the
Court observed that "[r]unning a prison is an
inordinately difficult undertaking that requires expertise,
planning, and the commitment of resources, all of which are
peculiarly within the province of the legislative and
executive branches of government."[20] The Court
concluded that "when a prison regulation impinges on
inmates' constitutional rights, the regulation is valid
if it is reasonably related to legitimate penological
interests."[21] Such a deferential standard is
necessary, the Court reasoned, to ensure that "the
difficult judgments concerning institutional operations"
are left primarily to prison administrators rather than
judges.[22] Factors relevant to determining whether
a regulation is reasonable include (1) whether there is
"a 'valid, rational connection' between the
prison regulation and the legitimate governmental interest
put forward to justify it";[23] (2) "whether there
are alternative means of exercising the right that remain
open to prison inmates"[24]; (3) "the impact
accommodation of the asserted constitutional right will have
on guards and other inmates, and on the allocation of prison
resources generally;"[25] and (4) "the absence of
ready alternatives."[26]
The
Supreme Court found the Missouri mail restriction
constitutional under this test. The Court first cited trial
testimony that the restriction "was promulgated
primarily for security reasons" - much like those that
prompted the directive at issue here[27] - and was "logically
connected to these legitimate security
concerns."[28] The Court noted that the policy did not
"deprive prisoners of all means of expression"
because it barred "communication only with a limited
class of other people with whom prison officials [had]
particular cause to be concerned."[29] It observed
that allowing unrestricted mail between prisoners could
affect the safety of guards and other prisoners, and
"[w]here exercise of a right requires this kind of
tradeoff, we think that the choice made by corrections
officials-which is, after all, a judgment 'peculiarly
within [their] province and professional expertise,' -
should not be lightly set aside by the
courts."[30]Finally, the Court noted that there were
"no obvious, easy ...