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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mattox v. State, Dept. of Corrections (4/18/2014) sp-6896

Mattox v. State, Dept. of Corrections (4/18/2014) sp-6896

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                     

         corrections@appellate.courts.state.ak.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



RICHARD A. MATTOX,                                    )  

                                                      )        Supreme Court No. S-14587  

                           Appellant,                 )  

                                                      )        Superior Court No. 3PA-09-01695 CI  

         v.                                           )  

                                                      )        O P I N I O N  

STATE OF ALASKA,                                      )  

DEPARTMENT OF CORRECTIONS,  )                                  No. 6896 - April 18, 2014  

                                                      )
  

                           Appellee.                  )
  

                                                      )
  



                  Appeal from the Superior Court of the State of Alaska, Third  

                                     

                  Judicial District, Palmer, Vanessa White, Judge.  



                  Appearances:  Benjamin I. Whipple, Palmer, for Appellant.  

                  Susan M. West, Assistant Attorney General, Anchorage, and  

                                 

                  Michael C. Geraghty, Attorney General, Juneau, for Appellee.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                                                  

                  Bolger, Justices.  



                  FABE, Chief Justice.  



I.       INTRODUCTION  



                  A former inmate brought an action against the Department of Corrections  

                                                                             



alleging that the Department negligently failed to protect him after he reported being  



threatened and that he was subsequently assaulted and seriously injured while in prison.  



The superior court granted summary judgment in favor of the Department, concluding  



that  the  inmate  had  not  shown  that  a  genuine  issue  of  material  fact  existed  on  the  


----------------------- Page 2-----------------------

question  whether  the  Department  breached  its  duty  to  protect  him  from  reasonably  



foreseeable   harm.   Specifically,   the   superior   court   concluded   that   the   inmate's  



                                              

communication of the threat was too general to put the Department on notice that the  



                                                                                                                          

inmate was at risk for the attack he suffered. The inmate appeals.  We conclude that the  



                                                                                                              

inmate presented evidence that, taken as a whole, raised a genuine issue of fact as to the  



                                                                                               

foreseeability of the attack he suffered.  We therefore reverse the superior court's grant  



of summary judgment.  



II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                          

                    Richard  Mattox  was  incarcerated  at  Spring  Creek  Correctional  Center,  



                                                        

housed in the Kilo module.  Mattox, who is white, alleges that his then-cellmate, Aaron,  



                                                                                         

who is African-American, repeatedly made threats of a  racial nature.  According to  



                                                                                

Mattox, Aaron made statements to the effect of "I don't like you.  Your people were  



                  

killing  my  people  back  in  the  day.    You've  got  to  get  out  or  something's  going  to  



                                                             

happen."  According to Mattox, Aaron threatened him "every time [they] were together  



                         

in [their cell]." Mattox understood the threat to mean that violence could come from any  



                                                                         

of "[Aaron's] people; that is, the black inmates in the mod[ule]."  Mattox believed that  



the black inmates "wanted [him] out of the mod[ule]."  



                                                                                                       

                    Mattox alleges that he made multiple requests to two different officers to  



be moved out of the Kilo module.  He reports that he told the guards that the module was  



                                                                                      

"too tough for [him]."  Mattox was 47 years old, and he feared trouble with the "cocky,  



young" inmates housed there.  He was particularly fearful of Aaron and Aaron's friends.  



                                                                                       

Mattox claims that he submitted written transfer requests ("cop-outs") to prison officials  



                                                                                          

in which he reported his fear, and that these documents are now missing from his prison  



                     

file.  Mattox claims that the Department of Corrections denied his requests, and he was  



                                                                                                      

not transferred from the Kilo module.  Mattox also asserts that an officer responded to  



                                                                -2-                                                         6896
  


----------------------- Page 3-----------------------

one of his transfer requests by saying:  "There are racial tensions in here and you're  



going to have to work it out."  



                                                             

                    On July 22, 2007, Mattox was watching television in a common area with  



                                                                                                    

several other inmates.  No guard was posted in the common area.  The security cameras  



                                            

in the room had been out of order for some time.  Another inmate, Vincent Wilkerson,  



                                                                                                            

was seated in the row of chairs in front of Mattox.  Mattox alleges that Wilkerson, who  



                                                     

is African-American, was a friend of Aaron; the two played basketball together and ate  



                                                                                                            

together.  At some point during the television show, Wilkerson turned around and told  



                                                                                                           

Mattox to "[s]hut the f...k up."  Mattox turned to the inmate seated next to him and asked  



                                                                     

whether Wilkerson had been speaking to him.  When Mattox turned back, Wilkerson was  



                                                                                              

standing in front of him and suddenly punched Mattox in the left cheek. Mattox sought  



help from a corrections officer in an adjacent room.  Mattox had not had any previous  



interaction with Wilkerson and could not identify him by name.  



                    The blow to Mattox's face caused bilateral orbital fractures, a sinus fracture,  



                                                                             

and a nasal fracture.  Mattox was hospitalized for treatment of his injuries, undergoing  



                                                                                                    

surgery that included the placement of six titanium plates and 200 titanium screws in his  



                                                                    

skull.  He asserts that he continues to suffer from sinus and visual problems associated  



with the injuries.  



          B.        Proceedings  



                                                                             

                    After his release from prison, Mattox filed suit in connection with the attack  



by  Wilkerson,  alleging  that  the  Department  was  negligent  in  various  ways.    The  



                                                                                                                 

Department moved for partial summary judgment on certain claims, and the superior  



                                                                                                    

court granted partial summary judgment, leaving intact Mattox's general claim that the  



Department failed to protect him after he put the Department on notice of the threat to  



                                                                   

his safety.  The Department then moved for summary judgment on the remaining claim.  



                                                                         

After hearing oral argument, the superior court granted summary judgment in favor of  



                                                               -3-                                                         6896
  


----------------------- Page 4-----------------------

the Department, reasoning that "Mattox has failed to show a material fact exists that the  

                                                                                         



[Department] was placed on notice of a specific threat of harm against Mattox."  Mattox  

                                                                                   



filed a motion for reconsideration, concerned that the court's order did not address his  

           



argument "that the [Department] should be estopped from contending that [Mattox's]  



transfer requests provided the [D]epartment with [an] insufficiently-specific threat of  



                                                                                                              

harm since his written requests were misplaced while in the [Department's] custody and  



                                                                                                        

control."   The motion  was denied, and  the superior court dismissed  Mattox's  claim  



against the Department with prejudice.  Mattox appeals.  



III.      STANDARD OF REVIEW  



                   As we recently explained:  



                   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.    A  grant  of  summary  judgment  is  affirmed  

                   when there are no genuine issues of material fact, and the  

                   prevailing party . . . [is] entitled to judgment as a matter of  

                   law. . . . Whether the evidence presented a genuine issue of  

                   material  fact  is  a  question  of  law  that  we  independently  

                                                

                              [1] 

                   review.  



                    Summary judgment is generally disfavored on disputed questions of tort  



       2  

duty.   We have held that summary judgment is appropriate "where the only reasonable  



inference   from   the   undisputed   facts   is   that   one   party   owed   another   no   duty  

                



whatsoever-or owed a duty clearly and vastly narrower in scope than the one that the  

                                                                                                  



          1        Kalenka v. Jadon, Inc.            , 305 P.3d 346, 349 (Alaska 2013) (first omission  



and alteration in original) (footnotes and internal quotation marks omitted).  



          2        See Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956 P.2d 1199,  



1203 (Alaska 1998).  



                                                             -4-                                                          6896  


----------------------- Page 5-----------------------

                                                                               3 

                                                                                  

other party asserts in opposing summary judgment."   However, "[i]n cases where no one  



disputes the existence of a duty running from one party to another, we have disfavored  



                                        

summary adjudication of the precise scope of that duty, or of whether particular conduct  



                                                                                 4  

did or did not breach it (i.e., constitute negligence)."   



IV.	       DISCUSSION  



                                                                                                               

           A.	       The Department Has A Duty to Protect Inmates In Its Care From All  

                     Reasonably Foreseeable Harm.  



                     The  Department  of  Corrections  owes  a  duty  to  inmates  to  exercise  



                                                                                             5  

                                                                                                We have not previously  

reasonable care for the protection of their lives and health. 



                                                                         

considered whether assaults by other inmates fall within the scope of a jailer's duty to  



                                                                                             

protect, but our precedents point in that direction, permitting liability even for intentional  



                                                                                                 6  

harmful acts, including assault by prison staff as well as suicide.   There is no persuasive  



legal or policy argument why violence between persons in the Department's custody  



             

should be treated differently.  Courts in other jurisdictions considering this issue have  



           3	  

                     Id.  



           4  

                                                                                                                     

                     Id. ; see also Maddox v. River & Sea Marine, Inc., 925 P.2d 1033, 1035  

(Alaska 1996) (observing that summary judgment frequently is improper on negligence  

issues, including foreseeability and scope of duty, because of "the highly circumstantial  

                                                                                               

judgments" that must be made).  



           5	  

                     Wilson v. City of Kotzebue, 627 P.2d 623, 628 (Alaska 1981).  



           6  

                                             

                     B.R.  v.  State,  Dep't  of  Corr. ,  144  P.3d  431,  435-36  (Alaska  2006)  

                                                                                          

(reversing grant of summary judgment to the Department on claim that the Department  

negligently  failed  to  protect  plaintiff  from  sexual  assault  after  she  notified  the  

Department she had previously been sexually assaulted by the same medical technician  

and requested protection); Joseph v. State , 26 P.3d 459, 471 (Alaska 2001) (explaining  

                                                                   

that an intentional act of suicide may not be a superceding cause, relieving the jailer of  

                                                                         

a duty to prevent that act, if the act was reasonably foreseeable).  



                                                                 -5-	                                                         6896
  


----------------------- Page 6-----------------------

                                                                     7  

reached  the  same  conclusion  as  we  do  here.     As  the  New  York  Court  of  Appeals  

                                                                                                                 



observed in a prisoner assault case, "[h]aving assumed physical custody of inmates, who  

                                             



cannot protect and defend themselves in the same way as those at liberty can, the State  

                                                                                        

owes  a  duty  of  care  to  safeguard  inmates,  even  from  attacks  by  fellow  inmates."8  

                                                                              



Kansas's high court came to a similar conclusion in a case where the victim was not even  

                                                                          



in prison but had merely been placed in handcuffs on a city sidewalk when he was  

                                                                                     

attacked by a person from whom an attack was not unforeseeable.9  And the Department  

                                                                                                    



does not contest the general proposition that the duty to protect encompasses the duty to  

                                                                                                                   



protect inmates from reasonably foreseeable assaults by other inmates.  Mattox's case,  

                                                                                                            



therefore,  does  not  present  a  situation  in  which  "one  party  owed  another  no  duty  

                                                                                                         



whatsoever-or owed a duty clearly and vastly narrower in scope" than the one the non- 

                                                                                                    

                                                                                10   Rather, the dispute here is over  

moving party asserts in opposing summary judgment.  

                                                                                                 



the precise scope of that duty.  



                    The Department contends that prison officials are required to act only when  



a report of a threat communicates an "immediate, identifiable, and specific danger."  



          7         See, e.g.,  Jackson v. City of Kansas City                     , 947 P.2d 31, 44 (Kan. 1997)  



(affirming denial of summary judgment for state in negligence suit by man handcuffed  

and placed on ground by police officers and subsequently attacked by person with whom  

                                                            

police knew he had been fighting); see also Butler ex rel. Biller v. Bayer , 168 P.3d 1055,  

                                                                                      

1063-64  (Nev.  2007)  (explaining  that  "prisons  and  prison  officials  must  exercise  

reasonable and ordinary care to prevent violence between inmates," in negligence suit  

arising  from  attack  on  inmate  previously  involved  in  brawl);  Sanchez  v.  State,  784  

N.E.2d 675, 678 (N.Y. 2002) (rejecting summary judgment for state in negligence suit  

                                                                                                 

brought by maximum security prison inmate attacked by unknown persons).  



          8         Sanchez, 784 N.E.2d at 678.  



          9         Jackson , 947 P.2d at 41.  



          10        Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell , 956 P.2d 1199,  



1203 (Alaska 1998).  



                                                               -6-                                                         6896
  


----------------------- Page 7-----------------------

                                                                                          

According to the Department, anything less is insufficient as a matter of law to make an  



                                                                                             

attack reasonably foreseeable.  In support of this argument, the Department draws our  



attention to numerous federal cases in which courts have rejected claims arising from  



                                                                            

inmate-on-inmate violence because of the lack of specificity or imminence of the alleged  



           11  

                                                                                      

threats.       But the Department's authority for its position is primarily cases brought either  



                                                    12  

                                                        or  as  Bivens  actions  under  the  United  States  

pursuant  to  42  U.S.C.     1983 



                    13  

                                                                      

Constitution.           Without making any attempt to distinguish between the relevant federal  



law and Alaska's tort law, the Department declares that "inmates are entitled to relief  



                                                                                                              

only when their injury is objectively serious  and  prison  officials  act  with deliberate  

indifference to the inmate's safety" (emphasis in original).14  



          11	       See, e.g., Dale v. Poston, 548 F.3d 563 (7th Cir. 2008).  



          12	        42 U.S.C.  1983 (2006) provides, in relevant part:
  



                     Every  person  who,  under  color  of  any  statute,  ordinance,
  

                                                                                    

                    regulation, custom, or usage, of any State . . . subjects, or
  

                                                                                                

                     causes to be subjected, any citizen of the United States or
  

                                                                                 

                     other person within the jurisdiction thereof to the deprivation
  

                     of  any  rights,  privileges,  or  immunities  secured  by  the
  

                     Constitution and laws, shall be liable to the party injured in
  

                     an action at law, suit in equity, or other proper proceeding for
  

                                                                    

                    redress . . . .
  



          13	  

                                                                                         

                    See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403  

                                                                         

U.S.  388  (1971)  (establishing  that  damages  are  available  from  federal  officers  to  

vindicate constitutional guarantees).  



          14  

                                                

                     In addition to the  1983 and Bivens cases, the Department cites a selection  

of cases dealing with state-law negligence claims, but we find the authority unpersuasive.  

                        

The case with perhaps the most relevance to this case, Baker v. State , Dep't of Rehab.  

                                                                                                                      

&  Corr.,  502  N.E.2d  261  (Ohio  App.  1986),  provides  facts  too  thin  to  make  any  

                                                                                     

meaningful comparison, and furthermore is a case that was decided after trial, not at the  

summary judgment stage.  



                                                                -7-	                                                         6896
  


----------------------- Page 8-----------------------

                    We reject this proposed standard.  As the superior court also recognized,  



the "deliberate indifference" standard simply does not apply to a state-law negligence  



         15  

                                               

claim.         The  Department  has  provided  no  convincing  rationale  for  why  we  should  



                                   

replace our negligence standard with the deliberate-indifference standard in the prison  



context.    Nor  has  the  Department  explained  why  reasonable  foreseeability  requires  



communication  of  an  "immediate,  identifiable,  and  specific  danger."    Evidence  of  



specific warnings that identify potential assailants would certainly help to raise a genuine  



                                                                                                                          

issue of fact as to foreseeability, as would evidence of an immediate threat of harm.   But  



a threat need not meet the requirements set out in the Department's exacting formulation  



          15        As the Seventh Circuit has explained, a plaintiff's  



                                                                              

                    burden on a negligence claim is far less than his burden on a  

                      1983  deliberate-indifference  claim.    Whereas  [plaintiff]  

                    ha[s] to show that . . . officers knew about a substantial risk  

                                                

                    to   [his]   health   and   safety   to   sustain   a      1983   claim,  

                         

                    negligence   law   exists   to   deal   with   the   very   types   of  

                    allegations [plaintiff] made here - that certain individuals  

                    should have acted differently in light of the duties applicable  

                    to  them,  and  that  their  failure  to  abide  by  the  relevant  

                                                                         

                    standard of care caused [plaintiff] personal injury.  



 Grieveson  v.  Anderson,  538  F.3d  763,  780  (7th  Cir.  2008)  (emphasis  in  original)  

(internal citations omitted); see also Dale v. Poston , 548 F.3d at 571 (affirming summary  

                                                                            

judgment in Bivens action where inmate provided officers only general information about  

a threat of violence against him, and noting that more than negligence by officers is  

required to prove violation of Eighth Amendment).  We also note that in one of the  

federal cases in the Department's string of citations, Cooper v. Bush, No. 3:06-CV-653- 

J-32TEM, 2006 WL 2054090 (M.D. Fla. July 21, 2006), the court rejected the inmate's  

                                                                                                 

allegation of danger largely on the basis that in several of the more than 70 frivolous  

                                                                                                             

cases the inmate had filed in that court, he claimed to have committed suicide already  

                                 

and threatened to "do it again" if his concerns were not addressed.  Id. at *1 n.3.   



                                                             -8-                                                       6896
  


----------------------- Page 9-----------------------

                                                                                                                           16 

                                                                                                         

to be reasonably foreseeable.  Traditional negligence law does not require that,                                              and we  



                                                                                                

decline to depart from the well-established standard.   We instead reaffirm our  prior  



              

holding  that  a  jailer  has  a  duty  to  protect  prisoners  in  its  care  from  all  reasonably  

foreseeable harm.17  



                                                                       

                     The scope of the Department's duty under our negligence standard will be  



                                                                 18  

                                                                                                

determined by the factual circumstances.                             There are many circumstances in which an  



                                                                                                             

attack might not be reasonably foreseeable.  As we have recognized, the duty to protect  



                                                                                                                               19  

                                                                                                                                   But  

is not limitless - the prison "should not be the insurer of the prisoner's safety." 



there are also circumstances, including some reports of threats, which could make an  



                                                20  

                                                             

attack  reasonably foreseeable.                      The question before us is whether Mattox has raised a  



           16        See  Sanchez  v.  State,  784  N.E.2d  675,  679  (N.Y.   2002)  ("The  strict  



requirement  of  specific  knowledge  for  foreseeability  .  .  .  redefines  the  traditional  

standard of reasonableness that has long been the touchstone of the law of negligence,  

                                                                                                       

and it cuts off consideration of other factors that have previously been found relevant to  

        

foreseeability.").  



           17        See Joseph v. State, 26 P.3d 459 (Alaska 2001).  



           18  

                                                                                                     

                     See  Wilson  v.  City  of  Kotzebue,  627  P.2d  623,  628-29  (Alaska  1981)  

                                                                                                            

("[T]he amount of care required  must be commensurate with  the amount  of  risk  or  

responsibility   involved,   i.e.,   it   is   what   is   reasonable   and   prudent   under   the  

circumstances.") (citation omitted).  



           19        Joseph , 26 P.3d at 477.  



           20  

                                                                                                                   

                     See, e.g., B.R. v. State, Dep't of Corr., 144 P.3d 431, 435 (Alaska 2006)  

(noting that the Department had a duty to protect an inmate from sexual assault by an  

                 

employee whom the inmate had alleged had sexually assaulted her before); see also  

Grieveson, 538 F.3d at 768-69, 780 (reversing a grant of summary judgment to the state                                       

on a claim that the state negligently failed to protect where plaintiff requested a transfer   

because he believed he was at risk and had submitted complaints after several previous  

                                                 

attacks).  



                                                                  -9-                                                            6896
  


----------------------- Page 10-----------------------

                                       

genuine issue of fact  as  to the foreseeability of the attack by Wilkerson; if so, then  



                                                                                     21  

resolving the case on summary judgment was improper.                                      



          B.        It Was Error To Grant Summary Judgment For The Department.  



                    The superior court properly rejected the Department's incorrect formulation  



                                                                                                           

of  the  standard,  but  it  was  error  to  conclude  that  the  attack  by  Wilkerson  was  



unforeseeable  as  a  matter  of  law  even  under  the  correct  standard  of  reasonable  



foreseeability.   



                                                                    

                    If Mattox had failed to present any evidence of a connection between the  



                                    

information  of  which  the  Department  was  on  notice  and  the  attack  by  Wilkerson,  



                                                                                     22  

                                                                                         That is, if the assault were  

summary judgment might have been  appropriate here. 



                                 

entirely unrelated to  the  threat of harm about which the Department was on notice,  



                                                                                                        

holding the Department liable might indeed make the Department the "insurer of the  



          21        Kalenka v. Jadon, Inc. , 305 P.3d 346, 349 (Alaska 2013). We emphasize     



that the inquiry into reasonable foreseeability is necessarily fact-based and that this single  

legal standard will result in different conclusions in different cases.  There is limited  

value,  therefore,  in  relying  on  cases  in  which  courts  applying  the  reasonable- 

foreseeability test have found that a particular assault was not foreseeable under the  

                                                          

circumstances.  The superior court relied on Cupples v. State, 861 P.2d 1360 (Kan. App.  

                                                                                

1993),  a  case  that  is  similar  in  some  respects  to  the  present  case  but  is  factually  

                                                                           

distinguishable.  In that case, an inmate was attacked by another inmate with whom she  

                                                                    

had never had any problems.  Id. at 1363-64.  As in Cupples, Mattox did not anticipate  

        

violence from the attacking inmate and did not warn prison officials about that person  

in particular.  But in Cupples there was no meaningful link between the reported threat  

                                              

and the eventual attack; the only connection was that the attack occurred in the room of  

                                                                                       

an  inmate  who  had  once  threatened  Cupples  (but  with  whom  Cupples  had  later  

reconciled).  Id. at 1363.  As we discuss below, Mattox makes out a more substantial  

connection, making summary judgment improper here.  



          22        Although the Department disputes whether Mattox submitted requests to  



                                                                                                                

transfer, we must draw all factual inferences in favor of Mattox.  Kalenka , 305 P.3d 346,  

349 (Alaska 2013).  



                                                              -10-                                                         6896
  


----------------------- Page 11-----------------------

                             23  

prisoner's safety."               The only limit on the Department's liability in that case would be                        



the self-control of its inmates, as any attack by one inmate on another could be deemed   



reasonably foreseeable.   



                     But   Mattox   did   provide   evidence   of   a   connection.      He   described  



circumstances in the module that, taken as a whole, raise a factual question as to the  



                                                                    

foreseeability of the attack he suffered.   He  claims  that he told the officers that the  



                                                                            

module was "too tough for [him]."  He says he told them that he feared trouble with the  



                                                                               

"cocky, young" inmates there.  And although his allegation is phrased ambiguously, he  



                                                                                                              

seems  to  claim  that  he  told  officers  that  he  was  afraid  of  "his  roommate  or  his  



roommate's friends" and that Aaron was "friends with . . . Wilkerson" and associated  



                                                                                                       

with him on the basketball court and at mealtimes.  These last claims are key factual  



assertions that the superior court appears to have overlooked.  If prison officials were on  



notice of Mattox's fear of Aaron's friends and of Aaron's friendship with Wilkerson,  



they had considerably more notice of the risk of attack than if all they knew was that  



                                                               

Mattox generally feared for his safety.  Mattox's identification of his potential attackers  



- Aaron or Aaron's friends - makes foreseeability a much closer question.  



                     Mattox further asserts that prison officials were aware specifically of racial  



tension  in  the  module  and  put  the  burden  on  Mattox  to  defuse  it  (or  handle  the  



                                                                                       

consequences if he could not).  According to Mattox, an officer remarked on the racial  



                                                                                   

tension in the module on several occasions.  Mattox alleges that in response to one of his  



                                            

complaints, an officer told him:  "There are racial tensions in here and you're going to  



                                          

have to work it out."  The response suggests that a Department official not only knew of  



                                                                                                                               

racial tension, but also told Mattox that he would have to address the problem if he were  



                                                                                                               

to avoid trouble.  This acknowledgment of the need for Mattox to take some action  



           23        Joseph , 26 P.3d at 477.  



                                                                  -11-                                                                6896  


----------------------- Page 12-----------------------

                                                             

clashes  with  the  Department's  claim   that  an  attack  on  Mattox  was  completely  



                           

unforeseeable; if there was no foreseeable risk of harm, there would be no need for  



Mattox to "work it out."  



                                                                                                         

                    The Department attempts to isolate particular facts which, taken alone, may  



                                                                                                         

have been insufficient to put the Department on notice of the attack that Mattox suffered.  



                                                                                                                 

For example, the Department stresses that Mattox did not identify Wilkerson in advance,  



                                                                                                          

making much of Mattox's statement in his affidavit that he "couldn't explain in what  



form the violence would come, or from whom exactly, or when, because [he] didn't  



know this [himself]."  The Department argues that because Mattox could not identify  



                                                             

Wilkerson as his potential assailant (and could not name him after the attack), the attack  



was  unforeseeable  as  a  matter  of  law.    The  Department  also  focuses  on  Mattox's  



                                                                                                   

allegation that there was racial tension in the module, arguing that evidence of the mere  



existence of racial tension is too vague to trigger the Department's duty to protect.  



                                                                                     

                    The Department may be correct that each  of these facts, viewed alone,  



                                                                                     

could be insufficient to create a genuine factual dispute as to foreseeability.  And it is true  



                                                                                

that if Mattox had been able to identify Wilkerson  as his potential assailant, or had  



                                                                                                               

provided evidence that Wilkerson bore racial animosity toward him, his evidence of  



foreseeability would be even stronger.  But the fact that Mattox could not provide the  



level of detail that the Department would desire does not make the attack unforeseeable  



as a matter of law.  The Department's duty to protect is not limited by an inmate's  



inability  to  predict  the  precise  nature  and  time  of  the  assault,  or  the  identity  of  his  



attacker.  As the New York Court of Appeals recognized in Sanchez, "[the inmate's]  



                 

testimony that the attack came as a complete surprise to him cannot be the measure of  



                                                                                                                     

the duty of the State, as his custodian, to safeguard and protect him from the harms it  



                                                             -12-                                                        6896
  


----------------------- Page 13-----------------------

                                                    24  

should reasonably foresee."    In determining the scope of the Department's duty, we  



                                                                                                                       

consider all of the circumstances of which the Department was on notice, including the  



                                                               

racial atmosphere of the module, information about inmate relationships, and Mattox's  



                                                                                        

identification of potential assailants.  When we consider all of these circumstances - in  



                                      

particular Mattox's assertions that he reported that he feared Aaron's friends and that  



                                                                                     

Wilkerson was one of Aaron's friends - we conclude that Mattox has raised a genuine  



issue of fact as to foreseeability.  



                         We   recognize   that   the   precise   substance   and   extent   of   Mattox's  



communications  to  prison  officials  remain  somewhat  unclear  because  his  discovery  



                                                                                 

responses on certain issues are ambiguous.  But his statement that "particularly, [he] was  



afraid  of  trouble  from  his  roommate  or  his  roommate's  friends"  closely  follows  his  



                                                                            

assertions that "[r]equests were made to [correctional officers]" and that "[h]is requests  



                                                                                          

were refused."  We must give him the benefit of reasonable inferences, and the question  



                                                                               

of the notice provided to the correctional officers is a factual question to be developed  



                        

at trial.  Our summary judgment standard requires that we view the available facts in the  



light most favorable to Mattox as the non-moving party.  Viewing these facts in that  



                                                                                                                                          

light,  we  conclude  that  Mattox  raised  a  genuine  issue  of  fact  as  to  whether  the  



                                                              

Department was on notice of the risk of attack not only from Mattox's cellmate, Aaron,  



                                                                                               25  

but also from other inmates associated with Aaron.                                                   



             24          Sanchez v. State, 784 N.E.2d 675, 679 (N.Y. 2002).  



            25           Mattox also contends that because the Department lost his written transfer                             



requests, the Department should be estopped from complaining of any deficiencies in the                                   

notice of harm.  The Department correctly notes that Mattox's claim is better understood          

as one of spoliation of evidence.                              See Doubleday v. State, Commercial Fisheries Entry     

Comm'n, 238 P.3d 100, 106 (Alaska 2010); see also  Sweet v. Sisters of Providence in  

 Wash., 895 P.2d 489, 490-93 (Alaska 1995).  This will be a matter for the trial court to  

                                                                                                                                         (continued...)  



                                                                             -13-                                                                       6896
  


----------------------- Page 14-----------------------

V.       CONCLUSION  



                 The  judgment  of  the  superior  court  is  REVERSED,  and  this  case  is  

                                                                   



REMANDED for further proceedings consistent with this opinion.  



         25(...continued)  



address on remand.  But in evaluating Mattox's motion for summary judgment, we draw  

                                                             

all reasonable factual inferences in his favor.  Thus, even without production of the  

written transfer requests, we must assume that Mattox requested a transfer.  We have  

assumed the truth of Mattox's allegations, and on the basis of those allegations have  

concluded that summary judgment was improper.  



                                                    -14-                                                  6896  

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