Appeal
from the Superior Court of the State of Alaska No.
3PA-16-01708 CI, Third Judicial District, Palmer, Kari
Kristiansen, Judge.
Keilan
Ebli, pro se, Wasilla, Appellant.
Mary
B. Pinkel, Assistant Attorney General, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for Appellee.
Before: Bolger, Chief Justice, Stowers, Maassen, and Carney,
Justices.
Winfree, Justice, not participating.
OPINION
MAASSEN, JUSTICE.
I.
INTRODUCTION
When
the Department of Corrections (DOC) discovered that one of
its contract employees, a substance abuse counselor, was in
an "intimate relationship" with a prisoner in
violation of prison policy, DOC barred the counselor and her
parents from visiting the prisoner or putting money in his
prison bank account. The prisoner sued DOC, alleging that
these restrictions violated his constitutional and statutory
rights to rehabilitation.
When
the prisoner moved for summary judgment, DOC moved to amend
its answer to deny the statutory claim it had failed to deny
in its original answer. The prisoner then moved to amend his
complaint to add a claim asserting the constitutional rights
of the counselor and her parents. The superior court granted
DOC's motion to amend, denied the prisoner's motion
to amend as futile, and granted summary judgment in DOC's
favor. The prisoner appeals.
We
conclude that DOC's visitation restrictions are
reasonable exercises of its authority to address legitimate
penological interests and therefore do not violate the
prisoner's constitutional or statutory rights to
rehabilitation. We also conclude that the superior court did
not abuse its discretion when it granted DOC's motion to
amend its answer and denied the prisoner's motion to
amend his complaint. For these reasons we affirm the judgment
of the superior court.
II.
FACTS AND PROCEEDINGS
A.
Facts
Keilan
Ebli is a prisoner at Goose Creek Correctional Center (Goose
Creek). There he met Kerri Pittman, a substance abuse
counselor employed by a private company but working as a DOC
contract employee. Ebli and Pittman developed what DOC later
concluded was an "intimate relationship." Ebli
characterizes the relationship as a "non-sexual"
"friendship," but DOC submitted affidavits on
summary judgment that painted a different picture. A DOC
employee attested to finding photo albums in Ebli's cell
that included photos of Ebli and Pittman kissing and
"displaying wedding rings within a secure area of the
facility." Through phone-call monitoring, DOC determined
that there were over two thousand calls between Pittman and
Ebli between September 2015 and May 2017, that Pittman
regularly called using an alias, and that some of the calls
involved phone sex. In one call Ebli and Pittman discussed
being "married now," though Ebli had never sought
the permission of Goose Creek administrators to get married,
as required by prison rules.
Pittman
transferred to Palmer Correctional Center, but her
relationship with Ebli continued. Pittman and her parents,
Vallie and Darold Arthur, continued to visit Ebli regularly
at Goose Creek, and the Arthurs deposited money in his prison
bank account. Ebli began to view Darold Arthur as a
"father figure" and "role model."
DOC
learned about Pittman's relationship with Ebli in late
February or early March 2016. At some point-unclear from our
record - Pittman's employment was terminated on grounds
of "staff misconduct." On March 15, 2016, the Goose
Creek superintendent notified her in writing that she was
indefinitely barred from visiting any prisoner incarcerated
in any DOC facility. Similar notices were sent to the
Arthurs, informing them that they were indefinitely barred
from visiting or putting money in the account of any prisoner
incarcerated at Goose Creek. Copies of the notices were sent
to Ebli; the notice to Pittman stated that "[t]he
affected prisoner may grieve this matter to the Director of
Intuitions [sic] through the grievance process." Ebli
accordingly followed the grievance process through appeal,
but without success. DOC denied his request in October 2016
to temporarily lift the restrictions for a final visit with
Darold Arthur, who died of cancer a few months later.
One DOC
witness, identifying herself as a probation officer with
professional training in the ethical considerations of
counseling professionals, attested that all DOC
"employees and private contractors are told during
orientation at Goose Creek that they are not allowed to
develop friendships with prison inmates." They are also
"required to sign a Code of Ethical [Professional]
Conduct," which states, among other things, "that
they are prohibited from engaging in undue familiarities with
inmates." One explicit DOC ethics rule provides: "I
will not act in my official capacity in any matter in which I
have a personal interest that could in the least degree
impair my objectivity. I will not engage in undue familiarity
with inmates, probationers, or parolees." DOC's
witness attested that these rules are especially important
for counseling professionals, whose friendships or intimate
relationships can easily affect objectivity and lead a
counselor to "act in ways that are not in the
client's best interests." The witness opined that
Pittman's relationship with Ebli, including the
involvement of Pittman's parents, violated the ethics
code.
B.
Proceedings
Ebli
sued DOC in July 2016, claiming that its restrictions on
visitation violated his constitutional right to
rehabilitation under article I, section 12 of the Alaska
Constitution and breached a statutory duty under AS
33.30.011(a)(3)(F), thereby constituting negligence per
se.[1]
Ebli moved for summary judgment, relying in part on DOC's
failure to include in its answer a denial of his negligence
per se claim. DOC moved to amend its answer to add the
missing denial, and the court allowed the amendment.
DOC
also cross-moved for summary judgment. Ebli moved to amend
his complaint to add a claim that DOC's actions had
violated Pittman's and the Arthurs' constitutional
rights as well as his own, but the court denied his motion,
seeing no "cognizable claim" in the proposed
amendment. The court then denied Ebli's motion for
summary judgment and granted DOC's cross-motion. The
court concluded that DOC's visitation restrictions did
not violate Ebli's constitutional rights, relying on the
deferential test of Turner v. Safley.[2] The court also
found that there was no evidence to support Ebli's
negligence per se claim. Ebli appeals.
III.
STANDARD OF REVIEW
"We
review a grant of summary judgment 'de novo, affirming if
the record presents no genuine issue of material fact and if
the movant is entitled to judgment as a matter of law.'
"[3] We review de novo questions of law,
including constitutional questions and the interpretation of
procedural rules.[4] In de novo review we apply our independent
judgment and "adopt the rule of law that is most
persuasive in light of precedent, reason, and
policy."[5]
We
review decisions on motions to amend pleadings for abuse of
discretion, "and we will interfere only when that
discretion has been abused."[6] "We will reverse a
ruling for abuse of discretion only when left with a definite
and firm conviction, after reviewing the whole record, that
the trial court erred in its ruling."[7] "It is
within a trial court's discretion to deny such a motion
where amendment would be futile because it 'advances a
claim or defense that is legally insufficient on its
face.' "[8] "We use our independent judgment to
review a conclusion that an amendment meets that
description."[9]
IV.
DISCUSSION
A.
The Visitation Restrictions Do Not Violate Ebli's
Constitutional Right To
Rehabilitation.[10]
Article
I, section 12 of the Alaska Constitution provides in part:
"Criminal administration shall be based upon the
following: the need for protecting the public, community
condemnation of the offender, the rights of victims of
crimes, restitution from the offender, and the principle of
reformation." In Brandon v. State, Department
of Corrections, we cited this provision as the
source of "a fundamental right to rehabilitation,"
and we recognized visitation privileges as one component of
that right.[11] The superior court in this case
expressly acknowledged the extent of the constitutional
right, but it decided that DOC's restrictions on
visitation by Pittman and the Arthurs withstood Ebli's
constitutional challenge. The court looked to the
"deferential standard" established by the United
States Supreme Court in Turner v. Sqfley,
[12]
which we applied to visitation privileges in Larson v.
Cooper[13]
The
Turner standard "allows prison administration
to establish rules [that] are 'reasonably related to
legitimate penological interests.' "[14] The Supreme
Court in Turner identified "four factors that
are relevant to determining whether a [prison] regulation is
reasonable": (1) whether there is "a 'valid,
rational connection' between the prison regulation and
the legitimate governmental interest put forward to justify
it"; (2)" 'whether there are alternative means
of exercising the right that remain open to prison
inmates' "; (3)" 'the impact accommodation
of the asserted constitutional right will have on guards and
other inmates, and on the allocation of prison resources
generally' "; and (4) "whether there are any
'ready alternatives' to the policy in
dispute."[15]
While
recognizing the importance of visitation privileges in
Brandon, we left the definition of "their
required scope or the permissible limits on their
exercise" to "future
adjudications."[16] One such case was Larson, in
which an inmate challenged DOC restrictions on contact
between prisoners and visitors.[17] The prison had changed
"the rules governing contact visitations to prohibit all
physical contact between prisoners and visitors other than
'a short embrace upon initial contact and again upon
departure.' "[18] When Larson broke this rule by
holding his wife's hand during prayer, DOC suspended his
contact visitation privileges and restricted him to
"secure visitation" only.[19] Our opinion focused
primarily on Larson's claim under the Alaska
Constitution's free exercise of religion
clause;[20] we applied the Turner test and
our own Frank test for free exercise
claims[21] to conclude that the prison
officials' decision was entitled to
deference.[22] But Larson also argued that he had a
rehabilitation-related right to "religious visits"
under article I, section 12, "because such visits
promote rehabilitation 'as nothing else can.'
"[23] We held that nothing in this
constitutional provision requires such visits or
"preclude[s] prisons from putting reasonable limits on
contact visitation of maximum security
prisoners."[24] We concluded that "[t]he security
risks posed by contact visits and the high costs of
mitigating such risks convince us that the degree of contact
permitted betweeen visitors and maximum security prisoners
lies within the sound discretion of prison
administrators."[25]
Ebli
argues that the justifications DOC offers for the visitation
restrictions in his case - security and rehabilitation
concerns - are "frivolous." DOC provided
considerable support for its position that there are
legitimate concerns for prison "safety, security, inmate
rehabilitation, and institutional morale" that justified
its decision. It is undeniable that prison security is a
legitimate penological interest.[26] Several DOC employees
attested there was a security risk to continued visitation
between Ebli and Pittman because of the knowledge of
confidential internal prison matters she had acquired during
her employment. Pittman's relationship with Ebli and
resulting loss of objectivity increased the possibility that
she would share this information with Ebli. Her willingness
to violate DOC ethics policy and to use an alias when calling
showed "that she cannot be trusted" and further
exacerbated the risk. A DOC witness also attested to a
concern that the rehabilitation of Ebli and other inmates, as
well as staff morale, would suffer if Ebli and Pittman ...