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Wright v. Anding

Supreme Court of Alaska

March 17, 2017

SEAN WRIGHT, Appellant,
v.
TAMATHA K. ANDING, HSA, REBECCA BINGHAM, M.D., and GEO GROUP, INC., Appellees.

         Appeal from the Superior Court of the State of Alaska, No. 3AN-13-08114 CI Third Judicial District, Anchorage, Patrick J. McKay, Judge.

          Appearances: Sean Wright, pro se, Anchorage, Appellant. Aisha Tinker Bray, Assistant Attorney General, Fairbanks, Craig W. Richards, Attorney General, Juneau, and Aaron D. Sperbeck, Birch Horton Bittner & Cherot, Anchorage, for Appellees.

          Before: Stowers, Chief Justice, Maassen, Bolger, and Carney, Justices. [Winfree, Justice, not participating.]

          OPINION

          STOWERS, Chief Justice.

         I. INTRODUCTION

         A former inmate of the Alaska Department of Corrections (DOC), who was incarcerated at an out-of-state correctional facility under contract with DOC, filed a medical malpractice and 42 U.S.C. § 1983 civil rights action against officials employed by the out-of-state correctional facility and by DOC. The civil rights claims alleged that the corrections officials were deliberately indifferent to the inmate's medical needs.

         The superior court granted summary judgment dismissing the medical malpractice action as barred by the two-year statute of limitations. Subsequently the court granted summary judgment on the deliberate indifference claims against the inmate. In the course of the proceedings, the inmate also sought, unsuccessfully, to have the superior court judge removed for alleged bias. The inmate appeals these decisions. We affirm.

         II. FACTS AND PROCEEDINGS

         A. Facts

         Sean Wright, an inmate in DOC's custody, was transferred to the Hudson Correctional Facility in Hudson, Colorado in 2009.[1] GEO Group, Inc. (GEO Group) operated the Hudson Correctional Facility. In 2013 DOC transferred Wright to the Wildwood Correctional Center in Kenai.

         In 2009 Wright began complaining of "loss of hearing" and an "ear infection." Medical staff at the Hudson Correctional Facility promptly addressed his complaints, treating earwax buildup by irrigating his ears. However, in May and October 2010 Wright again complained about hearing loss. After his complaints to Hudson staff were not addressed to his satisfaction, Wright filed a medical grievance on November 4, 2010 with DOC complaining of "severe hearing loss." DOC denied the grievance because it "raise[d] unrelated issues that should be presented in separate grievances." Wright re-filed his grievance on November 9, complaining of "severe hearing loss, " stating that his hearing loss from his previous job operating heavy equipment required him to have hearing aids, alleging that the Hudson Correctional Facility had denied him medical care, and requesting "hearing aids or aid to assist [him] in hearing correctly." On November 17 Wright filed another similar grievance because he had not yet received a reply to his November 9 grievance.

         Tamatha K. Anding, GEO Group's Health Services Administrator at the Hudson Correctional Facility, denied Wright's November 9 grievance on November 18 because he had not followed proper procedure; she stated that because he had not filed a formal request for medical care related to hearing loss within the previous three to four months, Wright could not have been denied medical care related to that issue. Anding responded to Wright's November 17 grievance on November 23. She denied this grievance, noting that medical staff had seen Wright eleven times in the past eleven months, that no one had to raise their voices to speak with him, and that he had no trouble responding to nurses in the noisy dining hall.

         Wright appealed the denial of his grievances to the DOC's Medical Advisory Committee. The Committee is a panel made up of DOC healthcare staff and collaborating consulting physicians appointed by the DOC Commissioner.[2] The Committee makes decisions regarding requests for referrals of inmates to health care services outside DOC facilities and regarding inmate healthcare grievance appeals.[3] The Committee denied Wright's appeal, noting that numerous healthcare providers had seen Wright and that none had made note of any significant issues related to hearing loss or difficulties with communication.

         In January 2011 Wright again saw Hudson medical staff after complaining of hearing loss. Medical staff removed a large plug of earwax during the visit. The next month, Wright again requested treatment for hearing loss. Hudson medical staff saw Wright and referred him to an ear, nose, and throat specialist (ENT) to investigate his complaints and discuss treatment for tinnitus.[4] The Committee approved this referral. In May Wright visited Denver Health's Audiology Department, where he underwent an audiological evaluation performed by a doctor of audiology. The audiologist's examination concluded that Wright had "normal middle ear function bilaterally, " and the audiologist did not recommend hearing aids. Despite these test results and the lack of any medical recommendation for hearing aids, Wright continued to demand hearing aids.

         In May 2012 Wright filed an action against GEO Group, Anding, Warden Joe Driver, and DOC under 42 U.S.C. §1983[5] in the U.S. District Court for the District of Colorado. Wright alleged that the defendants failed to provide medical care for an ear infection and hearing loss. In November 2012 the district court dismissed the federal action under 28 U.S.C. § 1915(e)(2)(B)[6] as frivolous. Wright appealed this decision, but the Tenth Circuit Court of Appeals concluded that he filed his appeal too late.

         In February and March 2013 Wright continued to complain about hearing loss. Prison medical staff saw Wright on February 5 and 6 and removed impacted earwax. On March 26 medical staff saw Wright again and referred him for an "Audiology/ENT consult." The Committee again approved this referral. Denver Health performed another audiological evaluation on May 14, and the evaluation noted that there was "no significant change from [the] previous audio[logical evaluation] on 5/25/11" and that Wright's "speech discrimination at normal conversational levels [was] excellent." The audiologist did not recommend or prescribe hearing aids. After the examination Wright again complained about his hearing loss.

         The day after Wright's examination by the audiologist, Correctional Officer P. Christensen filed an incident report against Wright for "malingering or feigning an illness" based on the audiologist's report that Wright's hearing had not worsened. Officer Christensen noted that the "Doctor of the Audio Department said . .. Wright's hearing was good and he had over ninety percent hearing in his right ear and over eighty percent in his left ear, " and Officer Christensen stated that he then "informed... Wright [that] he could be considered a security threat and he could be placed in Segregation for [malingering or feigning an illness] if his [loss of hearing] test [came] back negative." Hudson Correctional Facility denied Wright's requests for further evaluation of his alleged hearing loss based on his recent audiological evaluation.

         Wright was transferred to Wildwood Correctional Center in Kenai later in 2013. In early 2014 Wright began complaining again about "[s]evere hearing loss"; he insisted that he needed hearing aids. Wildwood Correctional Center medical staff saw Wright multiple times in February and March and then submitted a request to refer Wright to an ENT. Later that month, the Committee approved Wright's referral to Dr. Jerome O. List, an ENT in Anchorage. Dr. List saw Wright on April 7 and recommended a Pocket Talker[7] to improve amplification for Wright. However, Dr. List did not recommend hearing aids. The Committee approved the Pocket Talker for Wright, and DOC obtained the device for Wright's use. Wright received the Pocket Talker on May 1.

         The next day, Wright submitted a written "Request for Interview, " complaining that the Pocket Talker was only helpful when talking one-on-one, stating that it would be dangerous to use the device at his job after release from incarceration, and insisting that he needed hearing aids. Wright filed another medical grievance on June 26 requesting a "hearing aid or surgery" to correct his hearing loss. DOC denied this request on June 30 because Wright had the "device recommended by [Dr. List]." Wright appealed the denial to the Committee on July 1, demanded hearing aids, and claimed that the Pocket Talker would not help him at all once he was released. On July 13 the Committee answered Wright's appeal, saying he had "relief granted in the form of recommended amplification, " the Pocket Talker.

          B. Proceedings

         On June 7 Wright filed his initial complaint[8] in the superior court suing GEO Group, Anding, and Dr. Rebecca Bingham.[9] Wright asserted medical malpractice claims and claims of deliberate indifference to his medical needs under 42 U.S.C. § 1983. Wright sought monetary damages and declaratory and injunctive relief.

         In January 2014 the superior court granted partial summary judgment in favor of the defendants, dismissing Wright's professional negligence claims as barred by the two-year statute of limitations; the court also relied on res judicata based on his prior federal litigation of those claims. But the court determined that Wright's civil rights claims based on a theory of deliberate indifference to his medical needs under 42 U.S.C. §1983 were not barred by the statute of limitations or res judicata because of the continuing violations doctrine.[10] Wright then amended his complaint, reasserting both his medical malpractice and deliberate indifference claims.

         In January 2015 the court granted summary judgment in favor of the defendants, ruling that Wright could not show deliberate indifference to his medical condition by the defendants as a matter of law. Based on a review of Wright's medical records relating to his hearing loss complaints, the court concluded that "Wright's requests for medical care were responded to within a reasonable amount of time with medical care and treatment provided." The court found that "[m]edical care was not unreasonably withheld, if anything, ... Wright received attentive care during periods of his incarceration." The court noted that "Wright ha[d] undergone several examinations by different physicians, none of whom . . . recommended hearing aids" and concluded that it was "not convinced that his level of hearing loss [rose] to a serious medical need when . . . Wright [could] still carry on normal conversations."

         Wright filed a motion for reconsideration, asserting that the superior court had ignored the fact that Dr. Lisa Steffy had prescribed hearing aids in October 2010 when Wright was at Hudson and that the court failed to take into account one exhibit related to that claim. That exhibit allegedly demonstrated that Dr. Steffy had prescribed hearing aids to Wright. On April 29 the court denied Wright's motion for reconsideration, responding that "[w]hile one of the exhibits specified by Mr. Wright was not in evidence, [the] [c]ourt was aware of other exhibits that showed similar note-taking by [Dr. Steffy]." The court also disagreed with Wright's interpretation of these notes as a "prescription" due to Wright's "subsequent referrals to ENT specialists and audiologists not directly employed by the Department of Corrections." The court pointed out that none of the specialists prescribed hearing aids; at most, Dr. List recommended a Pocket Talker.

         Wright appeals.[11] In his Statement of Points on Appeal, Wright argues that (1) the superior court ignored the "exhibit in [the] record showing that DrSteffy had requested hearing aids for both ears" and (2) the court should have granted Wright additional time to meet pretrial deadlines due to his incarceration. In his opening brief, Wright offers additional arguments. Specifically, Wright complains that (1) Superior Court Judge Patrick J. McKay was biased against him and should have recused himself; (2) the superior court ignored evidence that Dr. Steffy recommended hearing aids for Wright; (3) the defendants failed to show that they treated Wright for an ear infection between November 2010 and February 2011; (4) correctional officers threatened Wright because of his continual requests for medical treatment of his hearing loss; (5) the defendants violated Wright's constitutional rights to keep his medical records private under HIPAA[12]; (6) Wright's doctor lied and plotted with correctional officers to cover up Wright's hearing problems;[13] (7) the superior court ignored evidence that since his release, Wright had been prescribed hearing aids; and (8) the superior court ignored evidence that Wright's pre-incarceration hearing examinations suggested that his hearing was poor.

          These claims are best construed as supporting three broader legal arguments and multiple miscellaneous claims. First, Wright appears to argue that the superior court erred in denying Wright's motion to disqualify Judge McKay for cause and that Judge McKay should have recused himself. Second, Wright appears to raise medical malpractice claims, suggesting that medical staff did not appropriately treat his ear infection, which ultimately caused his hearing loss. The superior court granted summary judgment in favor of the defendants on these medical malpractice claims, so Wright is arguing that the court erred in granting summary judgment on these claims. Third, Wright appears to argue that the defendants exhibited deliberate indifference to his serious medical need for hearing aids and, therefore, the court erred in granting summary judgment in favor of the defendants and denying Wright's request for reconsideration on this issue. We categorize Wright's remaining claims as miscellaneous arguments.

         III. STANDARD OF REVIEW

         "The refusal by a judge to be recused from a case is reviewed for an abuse of discretion."[14] We "reverse a judge's refusal to step down from a case only when it appears 'patently unreasonable' or when 'a fair-minded person could not rationally come to [the same] conclusion on the basis of known facts.' "[15]

          "Grants of summary judgment are reviewed de novo and will be upheld if there are 'no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.' "[16]

[A] non-moving party does not need to prove anything to defeat summary judgment. But a non-moving party cannot create a genuine issue of material fact merely by offering admissible evidence - the offered evidence must not be too conclusory, too speculative, or too incredible to be believed, and it must directly contradict the moving party's evidence.[17]

         "We apply a more lenient standard to pro se litigants"[18] and "consider pro se pleadings liberally in an effort to determine what legal claims have been raised."[19] But "[t]o avoid waiver, a pro se litigant's briefing must allow his or her opponent and this court to discern the pro se's legal argument. Even a pro se litigant... must cite authority and provide a legal theory."[20] And

[w]e will not review new arguments or points of error that were neither raised before the trial court nor included in the points on appeal unless the issue presented is "1) not dependent on any new or controverted facts; 2) [is] closely related to the appellant's trial court arguments; and 3) could have been gleaned from the pleadings, or if failure to address the issue would propagate plain error."[21]

IV. DISCUSSION

         A. The Superior Court Did Not Abuse Its Discretion By Denying Wright's Motion To Disqualify Judge McKay For Cause.

         In Wright's motion to disqualify Judge McKay for cause, Wright argued that Judge McKay was biased against him because Judge McKay had presided over Wright's criminal case[22] and because Wright sued Judge McKay for a matter related to his criminal trial.[23] Wright further explained that he and Judge McKay "have a long history of conflict with each other." Judge McKay denied Wright's motion, declaring that he could be "fair and impartial." Wright asserts similar arguments on appeal, namely that Judge McKay "should have removed himself from Wright's case because he was Wright's trial ...


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