Rita M. HYMES and Donald L. Hymes, Appellants,
Leonie DeRAMUS, M.D. and James M. Pomeroy, Appellees.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Donald and Rita Hymes, pro se, Fairbanks.
Megan R. Webb, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellees.
Before : FABE, Chief Justice, EASTAUGH, CARPENETI, and WINFREE, Justices.
A prisoner and his wife, appearing pro se, brought a lawsuit against a Department of Corrections doctor and physician's assistant based on medical treatment the prisoner received while incarcerated at the Fairbanks Correctional Center. The superior court granted summary judgment to the doctor and physician's assistant because the prisoner did not exhaust his administrative remedies. The prisoner and his wife appeal this and several other actions by the superior court. Because at least one of the prisoner's malpractice claims may not have been subject to an exhaustion requirement, because the prisoner raised material factual disputes as to whether exhaustion should have been excused for the remaining claims (based on an alleged threat of retaliation and alleged lack of access to a grievance manual), and because the superior court should have considered the prisoner's medical expert affidavits, we remand to the superior court. On all other issues, we affirm the decisions of the superior court.
II. FACTS AND PROCEEDINGS
This is the second time that this case is Before us. Donald Hymes, a federal prisoner, was temporarily incarcerated at the Fairbanks Correctional Center (FCC), a state facility, from May 2003 to August 2003. At the time of his incarceration at FCC, Hymes was sixty-eight years old and had various medical problems, including arthritis, high blood pressure, thyroid problems, prostate and bladder problems, psoriasis, and a hernia. He was also taking six prescription medications.
In July 2003 Hymes and his wife Rita Hymes filed a pro se lawsuit against Dr. Leonie DeRamus and Michael Pomeroy, medical personnel who worked with the Alaska Department of Corrections (DOC). Hymes alleged medical malpractice and failure to report elder abuse, while Rita alleged negligent infliction of emotional distress (NIED) and loss of consortium. In the medical malpractice claim, the Hymeses specifically alleged that Hymes was not given the medications and proper medical care that he needed while he was incarcerated. The Hymeses stated in their complaint that even though Hymes had been prescribed six medications by his Veterans Administration doctor, he received none of those medications during his first few days at FCC. According to the complaint, FCC gradually began to provide Hymes with his necessary medications, but did so in an inconsistent fashion. The Hymeses alleged that the only contact Hymes had with a medical doctor in FCC was fifteen minutes with Dr. DeRamus. They also alleged that prison guards refused to accommodate Hymes's bladder problems, and because he was prevented from using the restroom during visits, Hymes suffered uncontrolled urination during these visits. Also, Hymes apparently suffered from high blood pressure and related problems, but he was given only Tylenol when he met with the nurse about his worsening condition. The Hymeses also averred that Hymes was improperly given substitute medications instead of the Methotrexate that he had been prescribed for his psoriatic arthritis. Finally, the Hymeses alleged that Pomeroy threatened to " put Don in the hole if he didn't stop telling people he was not getting adequate medical care...." 
In January 2004 Dr. DeRamus and Pomeroy moved for
summary judgment, supporting their motion with an expert affidavit from Dr.
John Robertson, the Health Services Administrator and Medical Director for
DOC, who found no evidence of
medical malpractice. The Hymeses responded with an opposition to the motion and a supporting memorandum stating that they did not receive the opportunity to complete discovery and that the superior court had not clarified whether they were required to have a medical expert witness.  In February the superior court issued an order explaining to the Hymeses that if they did not provide an expert affidavit " establishing the standard of care due from the defendants, breach thereof, and damages proximately caused by such a breach of duty of care, summary judgment will be entered against them."  The superior court gave them a deadline of March 27. On March 26 the Hymeses requested a continuance. The superior court denied the request and granted summary judgment in favor of Dr. DeRamus and Pomeroy.
On appeal we reversed, concluding that the superior court erred in giving the Hymeses only one additional month in which to submit a responsive expert affidavit. We remanded with instructions to grant the Hymeses a reasonable continuance to obtain an opposing expert affidavit.
Upon remand, the case was assigned to Superior Court Judge Robert B. Downes. On November 14, 2005, Judge Downes held a status hearing with the parties. He gave the Hymeses until January 15, 2006, to file their expert affidavit. Judge Downes also noted on the record that he was acquainted with Donald Hymes, one of the defense attorneys, and the father of one of the defense attorneys; he stated that he previously ruled in an unrelated case involving Rita Hymes; and he asserted that these connections would not affect his decisions in the case.
On January 9, 2006, the Hymeses filed the expert affidavit of Dr. Barbara J. Houk, a psychiatrist, and a notarized letter from Dr. Herbert Day, an osteopathic doctor. Dr. DeRamus and Pomeroy filed a reply on February 14, 2006, arguing that the Hymeses failed to provide admissible evidence to defeat summary judgment on the technical malpractice claims (the claims requiring a medical expert) and that the non-technical claims should be dismissed because Hymes failed to exhaust administrative remedies.
When Dr. DeRamus and Pomeroy filed a reply brief with regard to their initial motion for summary judgment on February 14, 2006, they also filed a motion to amend their answer and a new motion for summary judgment. In the motion to amend, Dr. DeRamus and Pomeroy sought permission to add the defense of failure to exhaust administrative remedies. In the new motion for summary judgment they argued that all of the Hymeses' claims were barred by Hymes's failure to exhaust the administrative remedies available through the DOC's grievance process. The Hymeses did not oppose the motion to amend but did oppose the new motion for summary judgment.
On February 15, 2006, Dr. DeRamus and Pomeroy moved to strike Dr. Houk's affidavit and Dr. Day's letter. They argued that Dr. Houk was not a qualified expert witness for this matter and that Dr. Day's letter was an inadmissible unsworn statement with no relevant information about the medical malpractice claims.
The superior court entered an order on February 23, 2006, addressing the Hymeses' failure to file an opposition to the original motion for summary judgment when they filed the affidavit and notarized letter. The order " advise[d] Plaintiffs that they have the opportunity to submit a supplemental Opposition if they so wish" and gave a deadline of March 7, 2006. The Hymeses did not file a supplemental opposition to the original summary
judgment motion, but they did oppose the motion to strike.
On April 10, 2006, the superior court granted Dr. DeRamus and Pomeroy's motion to strike the expert affidavit and letter submitted by the Hymeses. However, the superior court provided the Hymeses with forty-five additional days to obtain an expert affidavit that would comply with the requirements of AS 09.20.185(a).
Nevertheless, after only thirty-seven days, on May 17, 2006, the superior court granted the new motion for summary judgment regarding failure to exhaust administrative remedies, dismissing all of Donald Hymes's claims. In the order granting the motion for summary judgment, the court also explained that Rita Hymes's loss of consortium claim was barred by the doctrine of failure to exhaust because it was a derivative claim. The court noted that the NIED claim survived the failure to exhaust defense because it was an independent claim not subject to the DOC grievance procedures. Thus, the NIED claim was the only claim remaining. The Hymeses moved for reconsideration of the court's order, asserting that Donald was a victim of judicial misconduct, due process violations, and a violation of the right to jury trial. The superior court denied the motion. The Hymeses then filed a petition for review, which we denied.
In December 2006 the Hymeses moved to file the expert affidavit of C. Michael Neuwelt, M.D. In the alternative, the Hymeses asked the superior court to refer the case to an expert advisory panel pursuant to Alaska Civil Rule 72.1.
Also in December, Dr. DeRamus and Pomeroy filed a third motion for summary judgment, seeking dismissal of Rita Hymes's NIED claim. In the Hymeses' response, they asked that Judge Downes recuse himself based on alleged bias.
On March 28, 2007, the superior court issued a comprehensive order that resolved the various outstanding motions. The court denied the Hymeses' request for recusal and their request to include Dr. Neuwelt's affidavit in the record. It also declined the request to appoint an expert advisory panel under Civil Rule 72.1 Finally, the superior court entered summary judgment in favor of Dr. DeRamus and Pomeroy on the NIED claim. Later the court denied the Hymeses' motion for reconsideration and entered final judgment in favor of Dr. DeRamus and Pomeroy. The Hymeses appeal, acting pro se.
III. STANDARD OF REVIEW
We review an award of summary judgment de novo. We will affirm only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. When making this determination we draw ...