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 ...