Roth v. State of Alaska, Department of Public Safety et al

Filing 43

ORDER: re Certification Motion 33 and Motion to Dismiss 28 . Signed by Judge Sharon L. Gleason on 02/16/2016. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
HAROLD J. ROTH,
Plaintiff,
v.
STATE OF ALASKA, DEPARTMENT OF
PUBLIC SAFETY and EDWIN
CARLSON, jointly and severally,
Case No. 5:15-cv-00001-SLG
Defendants.
ORDER RE CERTIFICATION MOTION AND MOTION TO DISMISS
Before the Court at Docket 33 is Plaintiff Harold J. Roth’s Renewed Request for
Judicial Review of State’s Certification Decision, to which Defendants State of Alaska and
Alaska State Trooper Edwin Carlson (Defendants) filed a response at Docket 34. Also
before the Court is Defendants’ Renewed Motion to Dismiss State Law Claims at Docket
28, to which Plaintiff responded at Docket 30. No reply was filed. Oral argument was not
requested, and was not necessary to the Court’s determination of the motions.
BACKGROUND
This case concerns Trooper Carlson’s arrest of Mr. Roth for driving under the
influence. Mr. Roth seeks reversal of the Alaska Attorney General’s decision to certify
that Trooper Carlson was acting within the scope of his employment at the time of the
incident. 1 Defendants’ motion to dismiss presumes the certification is valid and seeks
dismissal of Mr. Roth’s state law claims on immunity grounds.

1

See Docket 10-1 (Certification).

Trooper Carlson arrested Mr. Roth on August 25, 2012 for operating a motor
vehicle while under the influence in violation of AS 28.35.030. 2 Mr. Roth alleges that
Trooper Carlson “lacked probable cause to believe that [Mr. Roth] had committed the
crime of operating a motor vehicle in violation of AS 28.35.030 or similar ordinance.”3 Mr.
Roth’s Amended Complaint includes state law claims of false arrest, false imprisonment,
battery, and malicious prosecution, as well as claims under 42 U.S.C § 1983 and for
punitive damages. 4
In his original Complaint, Mr. Roth asserted that “Defendant Carlson was at all
times relevant to this complaint acting within the course and scope of his employment
with the State of Alaska.” 5 In agreement, and pursuant to AS 09.50.253(c), the Alaska
Attorney General certified that Trooper Carlson was acting within the scope of his
employment at the time of the arrest. 6 By operation of AS 09.50.253(c), certification
substitutes the state as the party defendant, “subject to the same limitations and defenses
applicable to an action or proceeding against the state.” Mr. Roth first challenged the
certification in April 2015. 7 In an order dated July 28, 2015, the Court denied that motion

2

Docket 26 (Amended Complaint) at 2.

3

Docket 26 (Amended Complaint) at 2.

4

Mr. Roth originally filed this case in the Alaska state court in August 2014. The original
Complaint included a negligence claim against the State, but that claim and the State were
dismissed from this case by the state court on November 25, 2014. Docket 7-19 (Order
Granting State’s Motion to Dismiss). Trooper Carlson removed this case to federal district court
on January 15, 2015. Docket 1 (Notice of Removal).

5

Docket 1-1 (Complaint) at 2.

6

Docket 10-1 (Certification).

7

See Docket 19 (Request for Review).

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because Mr. Roth was bound by the undisputed allegations in his Complaint. 8 The Court
also granted Defendants’ Motion to Dismiss Remaining State Law Claims on immunity
grounds pursuant to AS 09.50.253 and AS 09.50.250, which Mr. Roth had opposed only
by requesting review of the certification. However, the Court accorded to Mr. Roth an
opportunity to file an amended complaint to allege that Trooper Carlson was acting
outside the scope of his employment and again seek review of the certification decision. 9
Mr. Roth filed an Amended Complaint on August 17, 2015 that alleged that Trooper
Carlson was “acting outside the scope of his employment” at the time of the arrest. 10 Mr.
Roth then filed a renewed Request for Judicial Review of State’s Certification Decision.
He asserts that Trooper Carlson acted “outrageously, intentionally, with malice, with
reckless indifference and, with deliberate indifference (actions which plaintiff argues take
Trooper Carlson outside the course and scope of his employment . . . ).”11 Defendants
disagree. 12 But the parties do not dispute the underlying facts of the incident, which was
audio and video recorded. The Court has reviewed the transcript of that recording. 13 The
undisputed facts in the record regarding the arrest are as follows:
Mr. Roth was initially stopped by U.S. Forest Service Officer Chris Sakraida for
failing to stop at a stop sign several minutes before Trooper Carlson arrived at the scene.

8

Docket 25 (Order) at 4.

9

Id.

10

Docket 26 (First Amended Complaint) at 2.

11

Docket 33 (Request for Judicial Review) at 3.

12

See generally Docket 34 (Opp.).

13

Docket 19-2 (Transcript).

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When the Forest Service Officer asked Mr. Roth if he had anything to drink, Mr. Roth
responded, “Sir, I need to be on my way.” When asked why he needed to be on his way
so fast, Mr. Roth responded, “Sir, I’m not answering any other questions.” Several
questions later Mr. Roth added, “I’d like to speak with an attorney.” Officer Sakraida
responded, “You’re not in custody at all. So, you’re – you’re not under arrest in any way,
shape or form right now.” 14
Trooper Carlson then arrived at the scene. He asked if Mr. Roth was on any
medications, to which Mr. Roth gave no audible response. Trooper Carlson asked again,
and Mr. Roth responded, “All right. I’m not going to answer any questions.” Trooper
Carlson asked again and Mr. Roth said he would not answer “any questions without first
speaking with an attorney.” Trooper Carlson then initiated a field sobriety test. But Mr.
Roth asked, “Sir, am I required to do the field sobriety--” to which Trooper Carlson
responded, “Yes, you do.” Mr. Roth asked again, “I’m required to do the field sobriety
test by law?” Trooper Carlson responded, “We need to know if you are under the
influence of anything.” Mr. Roth said, “Sir, I’m asking you. Am I required by law to do the
field sobriety tests?” Trooper Carlson said, “Yes. Yes, you are.” 15
After several more similar exchanges, Trooper Carlson had Mr. Roth put his feet
together and his hands at his sides, and asked him to focus on Trooper Carlson’s fingertip.
Then Trooper Carlson asked him to raise one foot and count for 30 seconds. When Mr.
Roth had counted to 17, Officer Carlson asked Mr. Roth several times to look at his toes.

14

Docket 19-2 (Transcript) at 2–3.

15

Docket 19-2 at 3–4.

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Mr. Roth said he was looking at his toes, but Trooper Carlson said he was not. Mr. Roth
did not stop counting at 30, but rather continued to 60. Trooper Carlson said, “Okay.
Well, you did that incorrectly.” Trooper Carlson then instructed Mr. Roth on how to
perform a heel-to-toe walking test, which Mr. Roth failed to complete. Officer Sakraida
and Trooper Carlson next administered a breathalyzer test, which was negative for
alcohol. Mr. Roth asked if he was free to go. Trooper Carlson and Officer Sakraida both
responded that he was not free to go. Trooper Carlson once again asked if Mr. Roth was
under the influence of any illegal drugs, and Mr. Roth said again that he would not answer
any questions until speaking with his attorney. 16
Trooper Carlson then decided to “detain [Mr. Roth] and put him in cuffs.” He told
Mr. Roth he was being detained for DUI. Mr. Roth said, “I do not wish to be moved from
the general vicinity.” Trooper Carlson did not allow Mr. Roth to secure his vehicle or make
a phone call. Mr. Roth said he did not consent to any searches. Trooper Carlson said,
“That’s okay. I’m going to still do it, for my safety.” During the search, Trooper Carlson
found a round canister and said, “That looks like something that’s used for drugs.” 17
Trooper Carlson and Officer Sakraida then had a conversation about the incident.
Officer Sakraida explained that Mr. Roth “[b]lew a stop sign” and that “[h]e had that look
and he constantly had the whole time, refused to answer any questions without
(indiscernible).” Trooper Carlson said, “Yep. Yep. (indiscernible) So here’s—here’s my
game. So. I mean, I don’t want to take your thunder. So, I—.” Officer Sakraida

16

Docket 19-2 at 5–11.

17

Docket 19-2 at 11–13.

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responded, “No, no. I—I appreciate—.” He said, “We don’t—we don’t deal with these.”
Trooper Carlson said that he had dealt with this and added, “Here in town. The DA doesn’t
(indiscernible). They—they dump them, for the most part. I actually got one and I got it
through, and I got a conviction. (Indiscernible) we get him down to the hospital, they—
they telephone a search warrant, they get blood and they move on. That’s it. Screw
them.” He added, “And the guy is not being cooperative.” Trooper Carlson said, “They
tow him, you know. Just common sense. So, you want to—you want to play the game,
we’ll play the game. No big deal. Cost you a couple grand. So—.” The two officers
discussed who would take the arrest. Trooper Carlson said, “I don’t care about the stats.
They mean nothing to me. Just as long as tonight he goes to jail and the road’s safe.”
Some parts of the ensuing conversation were indiscernible, but the Trooper Carlson said
he thought the canister may have contained meth, and “he’s doing something, dad or
uncle or whatever is playing attorney. I don’t give a shit. But, I mean, there’s something—
there’s something.” Trooper Carlson said, “I’ll transport and I’ll see if I can get a telephonic
search warrant.” Then he asked Officer Sakraida if there was anything else he observed.
Officer Sakraida said, “No. It was—other than pretty much non-cooperative, refusal. That
glazed over, you know, stare.” The two officers discussed the contents of the canister,
identifying it as a white powder that “could be meth.” 18
Trooper Carlson transported Mr. Roth to the Trooper post where Mr. Roth was
allowed to call his attorney. This portion of the arrest was also recorded and the Court

18

Docket 19-2 at 13–20.

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has reviewed the transcript of the recording. 19 Trooper Carlson administered another
breath alcohol test which disclosed no alcohol. He informed Mr. Roth that his driver’s
license would be revoked in seven days, and that he was under arrest for driving while
under the influence. Trooper Carlson said “the officer is required by law to take all
licenses in your possession.”

He gave Mr. Roth a Notice and Order of

Revocation/Disqualification and explained that it would be his temporary driver’s license,
and that it included information on how to apply for an administrative hearing. 20 The
Notice indicates that “[t]he officer is required by law to take all licenses in your
possession.” Trooper Carlson checked a box indicating that Mr. Roth’s license was
revoked because his breath test disclosed an alcohol concentration of .08 or more, but
also wrote in the same paragraph that Mr. Roth’s breath alcohol concentration was
“.000.”21 Trooper Carlson indicated on the form that probable cause existed because of
Mr. Roth’s “manner of driving,” swaying, and failure of the one leg stand and walk-andturn tests. Trooper Carlson then asked Mr. Roth to choose between several options for
a chemical test of his intoxication. Mr. Roth asked to speak with his attorney again, and
was allowed to place another call.

After the call, Mr. Roth declined to have an

independent chemical test. Trooper Carlson explained that he had applied for and been

19

Docket 19-3 (Transcript of Interview).

20

Docket 22-6 (Notice).

21

The Court notes that the form does not provide a separate box for troopers to check when
they suspect someone operated a motor vehicle while intoxicated on something other than
alcohol.

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granted a search warrant for Mr. Roth’s blood, so they would be going to the hospital for
two samples. 22
Trooper Carlson’s conversation with Judge William Carey applying for the search
warrant was also recorded and the Court has reviewed the transcript of the recording.23
Trooper Carlson explained that Officer Sakraida observed Mr. Roth with “what we call a
1,000-mile stare, which is stared straight ahead and would not respond to him verbally or
make any indication of understanding the officer.” He explained that Mr. Roth identified
himself by giving Officer Sakraida his driver’s license. Trooper Carlson told Judge Carey
that when he “requested Mr. Roth complete the FSTs, or the field sobriety tests, to make
sure that he was a safe driver. Mr. Roth continued to state that he refused to do anything,
and then asked if he’s required to complete the FSTs, or submit to the FSTs. I instructed
him yes, he was, because he was operating a motor vehicle in the State of Alaska.”
Trooper Carlson then explained to Judge Carey that Mr. Roth did not follow the
instructions on the field sobriety tests, but passed the breathalyzer test with no presence
of alcohol. He explained that he found on Mr. Roth “a clear yellow container, a white
powder was in this” and “[h]e was very odd, his behavior.” Trooper Carlson added:
He kept staring forwards. When we asked a question, if he had any medical
issues or such as the prior questions for the FSTs, he would not answer any
questions, stating that he wanted to talk to his attorney. Therefore, he was
placed under arrest for driving while under the influence. And also, this—
this is occurring at Ward Lake, which tonight there is a concert, which we
have approximately about over 2,000 people that they’re estimating it at.

22

Docket 19-3 (Transcript) at 2–10.

23

Docket 19-7 (Transcript).

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So there is heavy traffic in the area. There’s children, adults, senior citizens
as well. 24
Judge Carey asked several questions regarding the container that Trooper Carlson
found on Mr. Roth, its contents, and what Trooper Carlson’s experience led him to believe
about it. Trooper Carlson said, “It does look similar to methamphetamine.” He added:
And just his behavior and his mannerisms with during contact, and lack of
response and his 1,000 mile stare, and also according to the other officer
had said that this individual, there’s something that’s wrong, or he is under
the influence, and it just really gave us a strong indication that he—he’s not
under the influence of alcohol, but he is under the influence of some illegal
substance. 25
Judge Carey found “probable cause to believe that the taking of blood samples is
likely to result in evidence of the crime of DUI” and authorized the warrant. 26 The
toxicology lab did not detect any of the tested drugs in Mr. Roth’s blood sample. 27
I.

Certification Decision
The Alaska Supreme Court established the rules for judicial review of the State’s

certification decision in State, Dept. of Corrections v. Heisey: (1) the standard of review
is de novo; (2) the plaintiff must prove that the defendants were not acting within the scope
of their employment; (3) the court should apply the factors of AS 09.50.253(h)(1) for the
scope-of-employment determination; (4) the outcome should be decided by the court, not

24

Docket 19-7 at 2–6.

25

Docket 19-7 at 6–7.

26

Docket 19-7 at 7–9.

27

Docket 19-6 (Toxicology Report).

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a jury; and (5) the determination should be made prior to trial. 28 Also, an evidentiary
hearing is not necessary if no disputed issues of material fact exist. 29
AS 09.50.253(h)(1) provides that:
“acting within the scope of the employee's office or employment” means
acts or omissions
(A) that the state employee is employed or authorized to perform;
(B) of the state employee that occur substantially within the authorized
time and space limit;
(C) that are activated by a purpose to serve the state; and
(D) that do not constitute acting, or failing to act, with willful, reckless, or
intentional misconduct, or with gross negligence or malice[.]
Under Alaska law, law enforcement officers do not necessarily act outside the
scope of employment even when they commit torts or misunderstand the law in carrying
out their duties. For example, in Prentzel v. State, Dept. of Public Safety, the Alaska
Supreme Court held that Alaska State Troopers were acting within the scope of their

28

271 P.3d 1082, 1090–91 (Alaska 2012).

29

Heisey, 271 P.3d at 1091. In Heisey, an inmate at the Anchorage Correctional Complex
alleged that while he was in restraints and being escorted along a corridor, two officers either
performed a “take down” and slammed him to the floor or negligently caused him to fall, causing
serious injury and disfigurement. Id. at 1084. The Attorney General certified that the officers
acted within the scope of their employment. Id. The superior court ruled that the certification
decision was not subject to judicial review and dismissed the inmate’s state law tort claims, but
permitted the inmate to amend his complaint to add state constitutional claims. Id. at 1085. The
State petitioned the Alaska Supreme Court for review of the superior court’s legal conclusions.
Id. The inmate’s response asked the Court to consider additional issues, and the Court
requested briefing on the question of whether the certification decision is subject to judicial
review. The Court held that the certification decision is subject to judicial review and remanded
the case for further proceedings. The Court noted that the superior court had done no factfinding, and instructed that on remand, “[i]f there are disputed issues of fact, we direct the court
to hold an evidentiary hearing and make factual findings, then decide the certification question
prior to trial. If no disputed issues of material fact exist, the court may resolve the issue on
summary judgment.” Id. at 1091.

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authority (as related to their eligibility for qualified immunity) after they made a warrantless
arrest of someone they believed had violated the conditions of release imposed in a DWI
charge. 30 In fact, warrantless arrests were not authorized for violations of DWI release
conditions, and the plaintiff was not even subject to conditions of release when arrested.
But the Court held that “[o]nce tortious acts are excluded from an exercise of authority,
only innocuous activity remains to which immunity would be available. Thus, the defense
would apply only to conduct for which it would not be needed. In other words, if immunity
only applied to the troopers’ conduct when they correctly interpreted the law of arrest, the
immunity defense would never be needed.” 31 Also, allegations of factors such as malice
must be accompanied by objective evidence capable of supporting the inference. 32
Accordingly, to succeed in reversing the certification decision, Mr. Roth must prove that
Trooper Carlson did something more invidious than misunderstanding or misapplying the
law.
Mr. Roth has not raised any allegations that challenge Trooper Carlson’s actions
that would fall under AS 09.50.253(h)(1)(A)–(C). Rather, only AS 09.50.253(h)(1)(D)
seems at issue here. Also, Mr. Roth’s renewed request for judicial review references his

30

169 P.3d 573 (Alaska 2007) (Prentzel does not cite AS 09.50.253).

31

Prentzel, 169 P.3d at 584 (citing Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 154
(Alaska 1987)).
32

Prentzel, 169 P.3d at 585 (“before malice can become a disputed question of fact, the record
must contain at least some objective evidence establishing facts capable of supporting an
inference of malice”).

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earlier filings rather than repeating the bases for his request. In the first request, Mr. Roth
raised five assertions to support reversing the certification. 33
First, Mr. Roth asserts that Trooper Carlson “recklessly (or intentionally) and
improperly advised Mr. Roth that Mr. Roth was required by law to submit to the
standardized field sobriety tests. There is no such law.” 34 This assertion does not support
Mr. Roth’s request because, even if Mr. Roth is correct that Trooper Carlson misstated or
misapplied the law, Prentzel indicates that troopers may do that without acting outside
the scope of their employment. It is also not reckless or intentional misconduct, because
to be reckless or intentional Trooper Carlson would need to have made a conscious
choice to misstate the law. 35 Trooper Carlson obviously believed the tests are required
under the circumstances he encountered because he repeated the same interpretation
to Judge Carey and testified in his affidavit that he “honestly believed that motorists were
required to participate in [standardized field sobriety tests].” 36 It is also not clear that
Alaska law provides Mr. Roth a right to refuse field sobriety tests if Trooper Carlson had
a “reasonable suspicion” that Mr. Roth was driving while intoxicated. 37 Mr. Roth’s failure
to stop at the stop sign and his unusual responses to questions “under the totality of the

33

Docket 19 (First Request for Judicial Review).

34

Docket 19 at 13.

35

See Hayes v. Xerox Corp., 718 P.2d 929, 935 (Alaska 1986) (reckless misconduct requires a
conscious choice of a course of action).

36

Docket 22-3 (Carlson Aff.) at 4.

37

See McCormick v. Municipality of Anchorage, 999 P.2d 155, 160–61 (Alaska Ct. App. 2000)
(most courts hold no constitutional right to refuse non-testimonial field sobriety tests supported
by an officer’s “reasonable suspicion”).

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circumstances known to the officer and in light of the officer’s experience” support Trooper
Carlson’s reasonable suspicion that Mr. Roth was driving while intoxicated. 38
Accordingly, Trooper Carlson did not act outside the scope of his employment when he
administered field sobriety tests.
Next Mr. Roth asserts that Trooper Carlson recklessly or intentionally misled Judge
Carey. This conclusory assertion is without merit. The Court finds Trooper Carlson’s
representations of the incident to Judge Carey to be substantially accurate, and to lack
any evidence of willful, reckless, or intentional misconduct, gross negligence, or malice. 39
Mr. Roth’s third assertion implies that Trooper Carlson arrested Mr. Roth only to
force him to incur substantial inconvenience and expense. The only evidence he offers
in support of the assertion is the portion of the conversation between Trooper Carlson
and Officer Sakraida in which Trooper Carlson said, “So, you want to—you want to play
the game, we’ll play the game. No big deal. Cost you a couple grand.”40 But Trooper
Carlson and Officer Sakraida also discussed a need to “keep the roads safe” and Trooper
Carlson told Judge Carey that he was particularly concerned in part because of the
concert traffic that evening.

This does not indicate willful, reckless, or intentional

misconduct, gross negligence, or malice.

38

See State v. Miller, 207 P.3d 541, 544 (Alaska 2009); State v. Moran, 667 P.2d 734, 735–36
(Alaska Ct. App. 1983) (discussing the “reasonable suspicion” test).

39

Also, absolute immunity would apply to Trooper Carlson’s testimony before Judge Carey. See
generally Aspen, 739 P.2d 150 (Alaska 1987).
40

See Docket 19 at 15–16.

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Mr. Roth asserts that Trooper Carlson intentionally and maliciously confiscated Mr.
Roth’s driver’s license without authority to do so. Trooper Carlson maintains that the
“[t]he statutes that require law enforcement officers to initiate administrative license
revocations are confusing” but that the standardized paperwork completed by Trooper
Carlson “is routine for DUI arrests.” 41 While Trooper Carlson has not explained the
inconsistency between checking a box that indicates license revocation because of breath
alcohol concentration above .08 and a notation of .000 breath alcohol concentration, the
Court is not persuaded that this act exhibited willful, reckless, or intentional misconduct,
gross negligence, or malice, particularly given the limited options on the form. Trooper
Carlson seems to have checked the only box applicable to driving while intoxicated, and
then completed the rest of the Notice and Order of Revocation so as to accurately reflect
the overall incident. And the Notice clearly provides a procedure for Mr. Roth to challenge
the revocation. Even if Trooper Carlson should not have initiated the revocation, nothing
in the record indicates he acted with willful, reckless, or intentional misconduct, or with
gross negligence or malice toward Mr. Roth, and this assertion does not justify reversing
the certification decision. 42
Finally, Mr. Roth asserts that during the interview and blood draw he did not exhibit
signs of intoxication, yet “Trooper Carlson intentionally and maliciously continued in his
pursuit of Mr. Roth culminating in the filing of the complaint charging him with driving

41

Docket 22 at 20.

42

Malice is the intent, without justification or excuse, to commit a wrongful act; reckless
disregard of the law or of a person’s legal rights; or ill will or wickedness of heart. Black’s Law
Dictionary (10th ed. 2014). See also Brandner v. Bateman, 349 P.3d 1068, 1075 & n.26 (Alaska
2015) (using this definition of malice where the term is not defined by statute).

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under the influence.” 43 Trooper Carlson responds that he believed Mr. Roth was under
the influence of some illegal substance, and that “[e]ven if Carlson’s belief was incorrect,
Carlson’s conduct did not rise to the level of gross negligence, recklessness, or malice to
establish that Carlson was acting outside the scope of his employment.” 44 The Court
agrees. Reviewing the entire record de novo, the Court finds that Trooper Carlson had
had an honest, if mistaken, belief that Mr. Roth operated his vehicle under the influence
of some illegal substance. The circumstances support that belief. And Mr. Roth has not
asserted any evidence that Trooper Carlson’s actions, including any of the alleged
mistakes he may have made that evening, constituted acting with willful, reckless, or
intentional misconduct, or with gross negligence or malice. Therefore, Mr. Roth’s request
that the Court reverse the certification decision will be denied. As a result, the State of
Alaska is substituted as defendant for all state law claims pursuant to AS 09.50.253.
II.

Motion to Dismiss
Defendants’ base their Renewed Motion to Dismiss State Law Claims on Federal

Rule of Civil Procedure 12(b)(6). Rule 12(b)(6) permits a party to seek dismissal of an
action for failure to state a claim for which relief can be granted. This court applies the
“facial plausibility” pleading standard as analyzed by the Supreme Court in Ashcroft v.
Iqbal. 45 Under that standard, to survive a Rule 12(b)(6) motion to dismiss “a complaint

43

Docket 19 at 16–17.

44

Docket 22 at 20.

45

556 U.S. 662 (2009).

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must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” 46
Defendants’ motion to dismiss the state law claims is based on Defendants’
assertion that the State is immune from all such claims. 47 Mr. Roth seems to concede
this point, as his opposition to the motion to dismiss only raises a renewed request for
judicial review of the certification decision. 48 AS 09.50.250(3) provides that an action
against the state may not be brought if the state claims “arise[] out of assault, battery,
false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract right.”

And AS 09.50.280

precludes an award of punitive damages against the State.

These two statutes

encompass all of Mr. Roth’s claims except those raised under § 1983. 49 In Mr. Roth’s
opposition to Defendants’ first motion to dismiss, Mr. Roth “essentially agrees AS
09.50.253 and AS 09.50.250 combine to dictate plaintiff’s ability to recover from
Defendant Carlson with respect to the asserted state law claims . . . .”50 Mr. Roth’s
subsequent filings have not supplemented his argument on this point. Having found the
Attorney General’s certification valid, the Court will dismiss the state law claims as to the
State of Alaska.
46

Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

47

See Docket 28 (Motion).

48

Docket 30 (Opp.).

49

“A § 1983 claim ‘on its face admits of no immunities,’ and the state could not have certified the
officers against such a claim.” Heisey, 271 P.3d 1082, 1096 (Alaska 2012) (quoting Imbler v.
Pachtman, 424 U.S. 409, 417 (1976)).

50

Docket 16 (Opp.) at 1.

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In light of the foregoing, IT IS ORDERED that Plaintiff Harold J. Roth’s Renewed
Request for Judicial Review of State’s Certification Decision at Docket 33 is GRANTED
insofar as the Court has reviewed the certification decision and found it valid and DENIED
as to Mr. Roth’s request for an order reversing the State’s Certification Decision and Mr.
Roth’s request that the Court deny Defendants’ Renewed Motion to Dismiss. Defendants’
Renewed Motion to Dismiss at Docket 28 is GRANTED. All of the state law claims are
dismissed: Count I (False Arrest); Count II (False Imprisonment); Count III (Battery);
Count IV (Malicious Prosecution); and Count V (Punitive Damages) as to the state law
claims. This action will proceed solely on the § 1983 claim against Trooper Edwin Carlson
(Count VI) and associated punitive damages (Count V). 51
The Clerk of Court shall amend the case caption accordingly to delete Defendant
State of Alaska, Department of Public Safety.
DATED at Anchorage, Alaska this 16th day of February, 2016.
/s/ Sharon L. Gleason
United States District Judge

51

Defendants’ December 21, 2015 Motion for Summary Judgment pending at Docket 38 and
Mr. Roth’s February 2, 2016 Response at Docket 42 will be addressed by separate order.

Case No. 5:15-cv-00001-SLG, Roth v. State, et al.
Order Re Certification and Motion to Dismiss
Page 17 of 17