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Jovanov v. State, Department of Corrections

Supreme Court of Alaska

September 15, 2017

RADENKO JOVANOV, Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF CORRECTIONS, Appellee.

         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 ...


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