Sean WRIGHT, Appellant, v. Tamatha K. ANDING, HSA Rebecca Bingham, M.D., and Geo Group, Inc., Appellees.
No. S-15959
Supreme Court of Alaska.
March 17, 2017
390 P.3d 1162
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
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 refiled his grievance on November 9, complaining of “severe hearing loss,” stating that his hearing loss from his previous job operating
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
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 re-
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 hearing 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 Talker7 to improve amplification for Wright. However, Dr. List did not recom-
mend 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 complaint8 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
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
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 Dr.... Steffy 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 HIPAA12; (6) Wright‘s doctor lied and plotted with correctional officers to cover up Wright‘s hearing problems;13 (7) the superi-
or 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)
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 case22 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 [j]udge on his criminal matter and was removed from Wright‘s criminal matter because he was violating Wright‘s constitutional rights.”24
Pursuant to
uphold the superior court‘s decision to deny Wright‘s motion to disqualify Judge McKay for cause.
B. The Superior Court Did Not Err In Granting Summary Judgment On Wright‘s Medical Malpractice Claims.
Wright claims that “the defendants did not show actual evidence that Wright was treated for any ear infection from November 2010 until February 2011, with the exception of [providing] ear wax drops.” He claims that “[n]o examination was ever performed upon Wright during that one year period which would have shown that Wright‘s ear was severely impacted and his hearing damaged by non-treatment.” These claims are best characterized as medical malpractice claims.27
The superior court granted summary judgment on the basis that Wright‘s claims were barred by the statute of limitations and res judicata. Wright‘s argument that the defendants failed to treat him for an ear infection and that this failure caused his hearing loss does not raise a genuine issue of material fact relevant to the legal basis of the superior court‘s grant of summary judgment.
We affirm the superior court‘s decision to grant summary judgment on statute of limitations grounds. Under
C. The Superior Court Did Not Err In Granting Summary Judgment On Wright‘s Claims That The Defendants Were Deliberately Indifferent To Wright‘s Serious Medical Needs.
Wright asserted a claim in his amended complaint that the corrections defendants were deliberately indifferent to his medical needs. In granting the defendants’ motion for summary judgment on this claim, the superior court ruled that Wright
fail[ed] to show a violation of his constitutional rights by deliberate indifference of the medical staff at any point. Mr. Wright‘s requests for medical care were responded to within a reasonable amount of time with medical care and treatment provided.... Medical care was not unreasonably withheld, if anything Mr. Wright
received attentive care during periods of his incarceration.
The court further explained: “Mr. Wright has undergone several examinations by different physicians, none of whom have recommended hearing aids.... Despite Mr. Wright‘s preference for a specific remedy, when treatment recommendations did not include hearing aids the medical personnel were not, in fact, being deliberately indifferent.” It is this statement that Wright contends was error. Wright argues that a trial exhibit shows that a Hudson Correctional Facility physician did prescribe hearing aids, that the court failed to consider this fact, and inferentially that this fact raised a genuine issue of material fact precluding summary judgment.
Wright is correct in part and incorrect in part. Wright is correct in this respect: the record includes a page from Wright‘s Hudson medical chart, entitled “Physician‘s Orders,” that records an entry by Dr. Lisa Steffy stating “Hearing aid for both ears.” In fact, the record contains at least two copies of the same Physician‘s Order page—one marked as trial exhibit AGO-000719, the other marked as trial exhibit AGO-00570.
Wright is incorrect in the following regard: Wright argues that the superior court failed to consider Dr. Steffy‘s chart entry. Wright made this same argument to the superior court in his motion for reconsideration. The court responded:
The motion alleges that this Court was unaware that Mr. Wright had been prescribed hearing aids by Dr. Steffy. While one of the exhibits specified by Mr. Wright was not in evidence, this Court was aware of other exhibits that showed similar note-taking by medical staff. Mr. Wright‘s interpretation of these notes as a prescription is an assumption with which this Court cannot agree due to Mr. Wright‘s subsequent referrals to ENT specialists and audiologists not directly employed by the Department of Corrections.
We draw several conclusions from what has just been recited. There was an entry in Wright‘s Hudson Correctional Facility medical chart by one of the physicians who provided medical care for Wright while he was incarcerated at Hudson that stated “Hearing aid for both ears.” We note the title of the page is “Physician‘s Orders.” We assume for purposes of our analysis that Dr. Steffy‘s note was a recommendation or physician‘s order for hearing aids. We also conclude that the superior court was aware of this recommendation when it granted summary judgment on Wright‘s deliberate indifference claim. Whether Dr. Steffy‘s chart entry creates a genuine issue of material fact precluding summary judgment depends on the nature of the legal claim that was the subject of the summary judgment motion. In other words, is Dr. Steffy‘s recommendation or the failure by Hudson or DOC to provide hearing aids to Wright material to the issue of deliberate indifference?
“Incarcerated prisoners have a constitutional right to have their medical needs met.”30 In Estelle v. Gamble, the United States Supreme Court stated that the “elementary principles [of the Cruel and Unusual Punishment Clause of the Eighth Amendment] establish the government‘s obligation to provide medical care for those whom it is punishing by incarceration.”31 The Court reasoned:
An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical “torture or a lingering death,” ... In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common view that “It is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself.”32
in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment.37
We have previously held that deliberate indifference “mean[s] the [corrections] official ‘knows of and disregards an excessive risk to inmate health and safety.‘”38 To reach the standard of deliberate indifference to a serious medical need, “an inmate must first show a serious medical need by demonstrating that failure to treat the condition could result in ‘further significant injury or the unnecessary and wanton infliction of pain.‘”39 Examples of a “serious medical need” include “[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual‘s daily activities; or the existence of chronic and substantial pain.”40 “The inmate must then show that a prison official was deliberately indifferent to that need, meaning the official ‘[knew] of and disregard[ed] an excessive risk to inmate health and safety.‘”41
With these legal standards in mind, it is clear that the superior court did not err in concluding that there was no genuine issue of material fact on the question whether DOC, Hudson Correctional Facility, and their physicians were deliberately indifferent to Wright‘s hearing complaints and requests for hearing aids. Dr. Steffy‘s chart note was written in October 2010. The record does not indicate Dr. Steffy‘s medical speciality or who she was employed by. According to Wright‘s appellate brief, she is a “well renowned physician in private practice in Colorado.” If this is true, it must be the fact that she was retained by Hudson to evaluate Wright in the correctional facility because she entered her physician orders on a Hud-
One physician‘s ordering of hearing aids does not in itself raise a material question of fact of deliberate indifference, nor does the fact that hearing aids were not provided as a result of this order. We accept as true for purposes of the motion for summary judgment that Dr. Steffy concluded hearing aids were necessary. We also note that it was uncontested that Hudson Correctional Facility had not only previously arranged for Wright to be seen by medical staff 11 times in the previous 11 months for hearing issues, but shortly after he was seen by Dr. Steffy, Hudson arranged for him to be seen by specialists in ear medicine. In January 2011 Wright was evaluated by prison medical staff for his continuing complaints of hearing loss, and Hudson referred him to an ENT for further evaluation. A doctor of audiology thereafter examined Wright and concluded he had “normal middle ear function bilaterally” and did not recommend hearing aids. Another referral was approved for an “Audiology/ENT consult” in April 2013. That evaluation by Denver Health reported “no significant change from [the] previous audio[logical evaluation] on 5/25/11,” and again no recommendation or prescription was made for hearing aids.
The question for purposes of analyzing a claim of deliberate indifference is not just whether hearing aids were actually medically necessary; the question is whether the corrections official “was deliberately indifferent to that need, meaning the [corrections] official ‘[knew] of and disregard[ed] an excessive risk to inmate health and safety.‘”42 Like the superior court, we simply cannot conclude that Hudson Correctional Facility disregarded Wright‘s complaints of hearing loss and demands for hearing aids. To the contrary, Hudson‘s responses to Wright‘s com-
plaints both through its own medical staff and through its referrals to medical specialists outside of the facility was anything but indifferent. And Hudson was not indifferent to Dr. Steffy‘s recommendation for hearing aids—following her chart note Hudson arranged for Wright to be evaluated by hearing specialists. It may be that there was a professional difference of opinion between Dr. Steffy and the consulting ear medicine experts. But this difference of opinion between physicians does not create a genuine issue of material fact as to whether Hudson Correctional Facility disregarded Wright‘s hearing loss complaints and demand for hearing aids. Hudson and DOC were entitled to judgment as a matter of law, and we affirm the superior court‘s grant of summary judgment against Wright on his claims of deliberate indifference.
D. Wright Waived His Other Miscellaneous Claims.
Despite our general “policy against finding unintended waiver of claims in technically defective pleadings filed by pro se litigants,”43 we hold that Wright waived his claims that correctional officers threatened Wright due to his continual requests for medical treatment; the corrections defendants violated Wright‘s constitutional rights to keep his medical records private under HIPAA; Dr. Eustereroen lied and plotted with correctional officers to cover up Wright‘s hearing problems; and the superior court ignored evidence that he was prescribed hearing aids post-release. Wright failed to raise these claims in the superior court, and he did not include these issues in his Statement of Points on Appeal.44 Furthermore, these claims are “dependent on ... new or controverted facts,” are not readily “gleaned from [Wright‘s] pleadings” in the superior court, and not sufficiently “related to [Wright‘s] trial court arguments.”45 Under
these circumstances “[w]e will not review new arguments.”46
Further, “[a]s a general matter, issues not briefed or only cursorily briefed are considered waived.”47 Failure to develop an argument constitutes a waiver of that argument, and the argument will be considered abandoned.48 And “[w]here a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal.”49 This is true for pro se litigants as well as represented litigants. Though “[w]e apply a more lenient standard to pro se litigants”50 and “consider pro se pleadings liberally in an effort to determine what legal claims have been raised,”51 “[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.”52
In his Statement of Points on Appeal Wright argues that the superior court erred in failing to allow him additional time to meet his pretrial deadlines due to his incarceration. But in his five-page brief,53 Wright fails to discuss any specifics, even in a cursory manner, regarding his pretrial deadlines argument. We conclude that Wright waived his pretrial deadline argument on appeal. In addition, Wright argues that the superior court ignored evidence of three hearing examinations conducted prior to his incarceration demonstrating that his hearing was damaged. But Wright again fails to develop this argument in any substantive way and fails to explain how these allegations relate to his current claims. We hold that Wright waived this issue, too.54
V. CONCLUSION
We AFFIRM the superior court‘s decisions to deny Wright‘s motion to disqualify Judge McKay for cause and to grant summary judgment in favor of the defendants on Wright‘s medical malpractice and deliberate indifference claims.
STOWERS, Chief Justice.