Appeal
from the Superior Court of the State of Alaska, Third
Judicial District, No. 3AN-12-10167 CI, Anchorage, Mark
Rindner, Judge.
Radenko Jovanov, pro se, Wasilla, Appellant.
Susan
G. Wibker, Assistant Attorney General, Anchorage, and Craig
W. Richards, Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Maassen and Bolger, Justices.
[Winfree and Carney, Justices, not participating.]
OPINION
STOWERS, CHIEF JUSTICE.
I.
INTRODUCTION
On
October 6, 2010 Corrections Officer Nelson Robinson was
supervising a prison module of about 50 inmates at the
Anchorage Correctional Complex, including Radenko Jovanov and
Alando Modeste. Modeste had been transferred to Anchorage
from Palmer that morning. Modeste approached Jovanov while he
was in line for the telephone, and he told Jovanov that he
wanted them to request placement in separate modules because
Modeste was related by marriage to the victim of
Jovanov's crime. Modeste then punched Jovanov on the left
side of the head and pushed his head into the wall, requiring
Jovanov to obtain medical treatment for his injuries.
Jovanovsued
the Department of Corrections (DOC), Officer Robinson, and
Modeste for his injuries, alleging that (1) the assault was
foreseeable and therefore DOC should have prevented it; (2)
Officer Robinson failed to respond promptly to the argument
and prevent further injury to Jovanov; and (3) DOC was
negligent in understaffing the prison unit and placing the
officer's desk out of view of the telephone. DOC
counterclaimed for the cost of the medical treatment Jovanov
received.
The
superior court granted summary judgment in favor of Jovanov
against Modeste on the issue of liability, and in favor of
DOC's counterclaim for medical costs. We affirm the
superior court's decision granting summary judgment in
favor of DOC on Jovanov's negligence claims against it;
the assault was not foreseeable, and therefore DOC cannot be
negligent on these grounds. Further, DOC's staffing
decisions and its placement of the guard's duty station
are immune policy decisions that cannot form the basis of a
negligence claim. We reverse the superior court's grant
of summary judgment in favor of DOC on its counterclaim
against Jovanov for the cost of medical care provided to him
and remand for further proceedings. We also remand for
further proceedings regarding Jovanov's negligence claim
against Modeste.
II.
FACTS AND PROCEEDINGS
A.
Facts
On the
morning of October 6, 2010, DOC transferred inmate Alando
Modeste from the Palmer Correctional Facility to the
Anchorage Correctional Complex and placed him in the same
prison module, or "mod, " as Radenko Jovanov,
another inmate.[1] That afternoon at the Anchorage
Correctional Complex, Corrections Officer Nelson Robinson was
the sole officer supervising the prison mod of about 50
inmates, including Jovanov and Modeste. At the time of the
incident, Officer Robinson was working at his desk computer
in the mod helping an inmate with an online account. The
other inmates were playing games, watching television, and
talking on the telephone.
Jovanov
did not know Modeste personally prior to the day of the
assault. When Jovanov got in line to use the telephone,
Modeste approached him. Modeste asked Jovanov to talk
privately in his cell, but Jovanov told Modeste that he had
just entered the line to use the telephone and that they
could talk there. The men continued their brief conversation
behind the stairs near the telephone. The stairs blocked
Officer Robinson's view of the men, and Jovanov admitted
that Officer Robinson was positioned so that he could not
have heard Modeste ask Jovanov to talk privately in his cell.
Modeste then told Jovanov that he wanted them to request
placement in separate mods. Jovanov was incarcerated for his
conviction of a sex crime involving a minor who was related
to Modeste by marriage, and Modeste did not want to be in the
same mod as Jovanov. Following their brief conversation,
Modeste punched Jovanov on the left side of the head,
knocking Jovanov to the ground, and pushed his head into a
wall. Jovanov explained that he became apprehensive when
Modeste mentioned Jovanov's crime, but Modeste did not
threaten or physically restrain Jovanov during their
conversation; therefore, Jovanov did not move away or call
for help prior to the assault, explaining that he had
"no reason" to do so before Modeste assaulted him.
Security
cameras recorded a video of the incident. The video shows
that Jovanov and Modeste were behind the stairs for about one
minute before the assault. In the video recording, none of
the other inmates looked in the direction of the assault
before it occurred. But most of the inmates looked in the
direction of the assault shortly after Modeste struck
Jovanov.
Officer
Robinson heard the scuffle near the stairs and looked in the
direction of the assault after Modeste struck Jovanov.
Officer Robinson responded almost immediately, at most five
seconds after the assault. He rose from his desk, ordered the
other prisoners into lockdown, [2] and called for backup officers.
For safety and security reasons, DOC protocol requires that
an officer ordering a lockdown wait for backup before
breaking up a fight. However, Officer Robinson believed that
the other inmates were following his lockdown order, observed
the fight between Jovanov and Modeste, assessed the
situation, and decided that he could safely stop the assault
before backup officers arrived. Officer Robinson then
intervened to stop the assault.
Jovanov
was treated for his injuries at Alaska Regional Hospital.
Modeste faced criminal charges following the assault, and he
ultimately pleaded no contest to a reduced charge of reckless
endangerment.[3]
B.
Proceedings
In
October 2012 Jovanov sued DOC, Officer Robinson, and Modeste
for his injuries. This appeal principally addresses his
claims against DOC and Officer Robinson.[4] In his First
Amended Complaint, Jovanov claimed that DOC was negligent
because (1) Modeste's attack on Jovanov was foreseeable
and DOC negligently failed to prevent the attack; (2) Officer
Robinson negligently failed to take immediate action to stop
the assault as it occurred; and (3) DOC negligently placed
only one officer in the mod and negligently placed the
officer's desk in a location that prevented Officer
Robinson from observing the inmates in line for the
telephone. Jovanov also sued Modeste alleging that as the
aggressor he was liable for injuries from the assault. DOC
counterclaimed for the cost of Jovanov's medical
treatment stemming from the assault under AS
33.30.028.[5] DOC moved for summary judgment on
Jovanov's negligence claims, and Jovanov moved for
summary judgment against Modeste on the issue of liability.
The superior court granted Jovanov's motion against
Modeste based on Modeste's criminal conviction for the
assault. The superior court also granted DOC summary judgment
on Jovanov's negligence claims. The court found that the
evidence, viewed in the light most favorable to Jovanov, was
insufficient to allow a reasonable jury to conclude that
Officer Robinson and DOC were negligent in failing to stop a
foreseeable assault or in failing to promptly separate the
parties before the assault occurred. And the court concluded
that Jovanov's claims regarding inadequate staffing and
negligence in setting up the prison mod were barred by
discretionary function immunity under AS 09.50.250(1). The
court denied Jovanov's motion for reconsideration.
The
superior court also granted DOC summary judgment on its
counterclaim for medical expenses. Jovanov opposed the entry
of judgment on DOC's counterclaim; he argued that he
needed to review the medical records that supported each
billing item and that in light of our decision in
Hendricks-Pearce v. State, Department of
Corrections, [6] his lack of money, his status as the
victim of a crime rather than the perpetrator, and principles
of equity, the court "should only enter a judgment
against Modeste." The court entered a final judgment
against Jovanov for medical payments.
Jovanov
appeals. He argues that (1) the superior court erred in
granting summary judgment in favor of DOC on the question
whether DOC was negligent in failing to prevent or respond
promptly to the assault; (2) the court erred in granting
summary judgment in favor of DOC on its counter claim for
reimbursement of Jovanov's medical expenses; and (3)
DOC's actions violated his rights to due process and
access to the courts.
III.
STANDARD OF REVIEW
"We
review a grant of summary judgment de novo. We review the
facts in the light most favorable to the non-moving party and
draw all factual inferences in the non-moving party's
favor."[7] We affirm "when there are no genuine
issues of material fact, and the prevailing party . . . [is]
entitled to judgment as a matter of law."[8] "After the
court makes reasonable inferences from the evidence in favor
of the non-moving party, summary judgment is appropriate only
when no reasonable person could discern a genuine factual
dispute on a material issue."[9] Furthermore,
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.[10]
"Weapply
the independent judgment standard of review when interpreting
and applying statutes."[11]
IV.
DISCUSSION
A.
DOC Was Entitled To Summary Judgment On Jovanov's
Negligence Claims.
Jovanov
argues that the superior court erred in granting DOC's
motion for summary judgment on his negligence claims,
including his claims that (1) the assault was foreseeable and
therefore DOC should have prevented it; (2) Officer Robinson
failed to respond promptly to the argument and prevent
further injury to Jovanov; and (3) DOC was negligent in under
staffing the prison unit and placing the officer's desk
out of view of the telephone.
1.
Jovanov failed to demonstrate a genuine issue of material
fact as to whether the assault was foreseeable.
DOC
"owes a duty to inmates to exercise reasonable care for
the protection of their lives and health."[12] "[T]he
duty to protect encompasses the duty to protect inmates from
reasonably foreseeable assaults by other
inmates."[13] Certain circumstances, including
circumstances in which there have been reports of threats
between inmates, may make an assault foreseeable, and
"[t]he scope of [DOC]'s duty under [this] negligence
standard will be determined by the factual
circumstances."[14]However, "[t]here are many
circumstances in which an attack might not be reasonably
foreseeable[;] ... the duty to protect is not limitless - the
prison 'should not be the insurer of the prisoner's
safety.' "[15]
Jovanov
claims that the assault was foreseeable and that DOC was
therefore negligent in failing to prevent it. He argues that
the assault was foreseeable because DOC knew or should have
known that Modeste posed a risk of harm to him and because
Jovanov and Modeste engaged in a loud argument before the
assault that should have alerted Officer Robinson to the
impending assault. But upon a de novo review of the evidence
in the light most favorable to Jovanov, we conclude that no
reasonable person could discern a genuine factual dispute on
the issue of whether the assault was foreseeable.
a.
DOC had no reason to suspect that Modeste posed a risk of
harm to Jovanov.
Jovanov
argues that DOC had reason to suspect that Modeste would be
dangerous to Jovanov and that DOC was therefore negligent in
failing to separate them. Jovanov asserts in his brief that
Modeste announced his problem with Jovanov to DOC. But in the
superior court neither Jovanov nor Modeste ever claimed to
have put DOC on notice of any problems between them. Modeste
asked a correctional officer not to be placed in Hotel Mod
where Jovanov was housed and to go back to his prior mod, but
never identified Jovanov specifically. And Jovanov admitted
that DOC had no way of knowing that Modeste posed any danger
to him; Jovanov testified that he could not "hold [DOC]
responsible for putting [Modeste] [in the same mod] because
neither they knew nor did [he] know [that Modeste was a
threat to Jovanov]." Jovanov also stated that he was not
acquainted with Modeste before the day of the assault.
Without
a specific warning to DOC, we cannot conclude it was on
notice of the threat Modeste posed to Jovanov. In Mattox
v. State, Department of Corrections, we concluded that
there was a genuine issue of material fact as to DOC's
notice of a threat to an inmate because the inmate had warned
a guard in a way that allowed the guard to identify the
plaintiffs eventual attacker, [16] but we warned that holding DOC
liable in the absence of a specific warning would make the
"only limit on the Department's liability... the
self control of its inmates, as any attack by one inmate on
another could be deemed reasonably
foreseeable."[17] Because the warning Modeste allegedly
gave DOC was not specific enough to put it on notice of the
specific risk that materialized, holding that DOC was on
notice of the threat Modeste posed would accomplish precisely
what we cautioned against in Mattox.
We need
only construe the facts in Jovanov's favor "within
the boundaries of reasonable fact-finding,
"[18] and will affirm summary judgment
"if the record presents no genuine issue of material
fact and if the movant is entitled to summary judgment as a
matter of law."[19] In light of the testimony from Jovanov
that DOC had no way of knowing that Modeste posed any danger
to him, and because neither Jovanov nor Modeste claimed to
put DOC on notice of issues between them, we conclude that
Jovanov failed to raise a genuine issue of material fact that
DOC had reason to suspect that Modeste posed a risk of harm
to Jovanov.
Jovanov
also argues that the assault was foreseeable because Modeste
was convicted of manslaughter and was therefore an obvious
danger to other inmates, including Jovanov. However, the
undisputed affidavit of Sergeant Tom Elmore establishes that
DOC correctly classified and assigned both Modeste and
Jovanov to the mod.[20] And again, the mere presence of a
dangerous prisoner does not create a foreseeable
risk.[21] We hold that the evidence, viewed in the
light most favorable to Jovanov, does not create a genuine
issue of material fact from which a reasonable person might
find in Jovanov's favor that the assault was foreseeable.
Because DOC had no reason to suspect that Modeste posed a
threat to Jovanov, the superior court correctly granted
summary judgment to DOC on Jovanov's negligence claims
based on the alleged foreseeability of the threat Modeste
posed to Jovanov.
b.
Any loud argument preceding the assault did not make the
assault foreseeable.
Jovanov
also argues that Modeste's assault was foreseeable
because a loud argument preceded the assault. Jovanov claims
that Officer Robinson should have heard the argument and
intervened to prevent the assault. Jovanov supports this
claim with his own assertion that the argument was loud
enough to "wake up the mod pretty much, " and with
testimony from another inmate named Jerry Gates that there
was "an argument going on that should have gotten
someone's - at least the guard's attention."
In
contrast, Modeste testified that the argument was not loud,
explaining that "there [was] no reason to get loud in
the middle of the mod" because he was "not trying
to . . . bring attention from other inmates." And John
Bill, Jovanov's cellmate, was positioned directly above
the telephones; he testified that he saw Jovanov's
"head swing for the phone on the bottom of the
stairs" and that "the only thing that [he] heard
was ... a loud clacking sound." Bill testified that he
"didn't hear anybody say anything."
But
assuming that a loud argument did precede the assault, we
conclude that such an argument did not render the eventual
assault foreseeable. Even if the officer could hear the words
Modeste said to Jovanov, Modeste never threatened Jovanov or
implied that he would harm Jovanov. And Jovanov fails to
demonstrate that loud arguments among inmates usually presage
a fight. He provided no evidence on this point, admitted that
loud arguments are common between prisoners, and acknowledged
that many occur without subsequent violence. A silent video
of events tends to supports this admission. The recording
shows that Jovanov and Modeste were behind the stairs for
about a minute before Modeste assaulted Jovanov. In the video
none of the other inmates looked in Modeste and Jovanov's
direction before the assault occurred, but most of the
inmates looked in the direction of the assault shortly after
Modeste struck Jovanov. Given the lack of evidence that loud
arguments are an accurate predictor of future violence in
this context and the evidence that Modeste never threatened
Jovanov, we conclude that DOC would not have been negligent
even if Officer Robinson failed to respond to a loud argument
between Modeste and Jovanov because any such argument did not
make the assault foreseeable.
2.
Jovanov failed to demonstrate a genuine issue of material
fact as to whether Officer Robinson responded
promptly.
Jovanov
also argues that DOC was negligent because Officer Robinson
failed to respond promptly to the argument. However, the
video recording shows that inmates only turned to look at
Jovanov and Modeste after the assault occurred; no attention
was paid to the pair during the argument. Officer Robinson
responded within five seconds of the assault as it drew his
attention and that of most of the inmates. And Jovanov
himself testified that he never had time to yell for help or
alert Officer Robinson prior to the assault and that there
was "no reason to call for help" before the
assault. Jovanov also conceded that Officer Robinson
responded very quickly after the assault began.[22] Based on the
video evidence and Jovanov's testimony, we conclude that
no reasonable person could discern a genuine factual dispute
on the issue of whether Officer Robinson responded promptly
to the argument, given the argument did not warrant ...