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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wright v. Anding (3/17/2017) sp-7160

Wright v. Anding (3/17/2017) sp-7160

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                      



SEAN  WRIGHT,                                                   )  

                                                                )          Supreme  Court  No.  S-15959  

                     Appellant,                                 )  

                                                                                                                                           

                                                                )          Superior Court No. 3AN-13-08114 CI  

           v.                                                   )  

                                                                                               

                                                                )          O P I N I O N  

                                             

TAMATHA K. ANDING, HSA,                                         )  

                                                    

REBECCA BINGHAM, M.D., and                                      )                                               

                                                                           No. 7160 - March 17, 2017  

                          

GEO GROUP, INC.,                                                )  

                                                                )  

                     Appellees.                                 )  

                                                                 

_______________________________ )  



                                                                                                              

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

                                                                                                                

                     Judicial District, Anchorage, Patrick J. McKay, Judge.  



                                                                                                                       

                     Appearances:   Sean Wright, pro se, Anchorage, Appellant.  

                                                                                                     

                     Aisha Tinker Bray, Assistant Attorney General, Fairbanks,  

                                                                                                                   

                      Craig W. Richards, Attorney General, Juneau, and Aaron D.  

                                                                                                                 

                      Sperbeck, Birch Horton Bittner  & Cherot, Anchorage,  for  

                                         

                     Appellees.  



                                                                                                               

                     Before:          Stowers,  Chief  Justice,  Maassen,  Bolger,  and  

                                                                                       

                      Carney, Justices.  [Winfree, Justice, not participating.]  



                                                     

                      STOWERS, Chief Justice.  



I.         INTRODUCTION  



                                                                                                                                      

                     A former inmate of the Alaska Department of Corrections (DOC), who was  



                                                                                                                                          

incarcerated at an out-of-state correctional facility under  contract with DOC,  filed a  



                                                                                                                            

medical malpractice and 42 U.S.C.  1983 civil rights action against officials employed  


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by the out-of-state correctional facility and by DOC. The civil rights claims alleged that                                                                                                                                                                                                          



the corrections officials were deliberately indifferent to the inmate's medical needs.                                                                                                                                                                                          



                                               The superior court granted summary judgment dismissing the medical                                                                                                                                                                  



malpractice action as barred by the two-year statute of limitations.                                                                                                                                                                            Subsequently the   



court   granted   summary   judgment  on   the   deliberate   indifference   claims   against   the  



inmate. In the course of the proceedings, the inmate also sought, unsuccessfully, to have                                                                                                                                                                                                       



the superior court judge removed for alleged bias.                                                                                                                               The inmate appeals these decisions.                                                                                                



We affirm.                               



II.                     FACTS AND PROCEEDINGS                               



                        A.                     Facts  



                                                Sean Wright, an inmate in DOC's custody, was transferred to the Hudson                                                                                                                                                               

                                                                                                                                                                                       1       GEO Group, Inc. (GEO Group)  

Correctional Facility in Hudson, Colorado in 2009.                                                                                                                                                                                                                                    



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, treatingearwax buildup by irrigating his ears. However, in Mayand 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  

                                                                                                                                                                                                                                                                                  



                        1                      DOC contracted with a private correctional corporation to house Alaskan                                                                                                                                                              



inmates due to lack of space in Alaskan correctional institutions.                                                                                                                                                                 Depending on certain                                  

criteria   such   as   length  of   sentence   and   relative   dangerousness   of   an   inmate,   DOC  

assigned   some   inmates   to   serve   their   sentences,   or   a   portion   of   their   sentences,   in  

privately operated facilities outside of Alaska. DOC retained oversight of the contractor                                                                                                                                                                                    

to ensure that it adhered to DOC's basic standards.                                                                                                                                  



                                                                                                                                                    -2-                                                                                                                                         7160
  


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grievances."    Wright re-filed his grievance on November 9, complaining of "severe                                                                                                                                                                                                                                                



hearing   loss,"   stating   that   his  hearing   loss   from   his   previous   job   operating   heavy  



equipment required him to have hearing aids, alleging that the Hudson Correctional                                                                                                                                                                                        



Facility had denied him medical care, and requesting "hearing aids or aid to assist [him]                                                                                                                                                                                                                                                    



in hearing correctly."                                                                   On November 17 Wright filed another similar grievance because                                                                                                                                                                             



he had not yet received a reply to his November 9 grievance.                                                                                                                                               



                                                       Tamatha K. Anding, GEO Group's Health Services Administrator at the                                                                                                                                                                                                                            



Hudson Correctional Facility, denied Wright's November 9 grievance on November 18                                                                                                                                                                                                                                                                        



because he had not followed proper procedure; she stated that because he had not filed                                                                                                                                                                                                                                                          



a formal request for medical care related to hearing loss within the previous three to four                                                                                                                                                                                                                                                        



months, Wright could not have been denied medical care related to that issue.                                                                                                                                                                                                                                                     Anding  



responded   to Wright's November                                                                                                                 17   grievance on                                                         November   23.     She denied                                                                                           this  



grievance, noting that medical staff had seen Wright eleven times in the past eleven                                                                                                                                                                                                                                                   



months, that no one had to raise their voices to speak with him, and that he had no                                                                                                                                                                                                                                                                     



trouble responding to nurses in the noisy dining hall.                                                                                                                                                 



                                                       Wright   appealed  the   denial   of   his   grievances   to   the   DOC's   Medical  



Advisory Committee.                                                                        The Committee is a panel made up of DOC healthcare staff and                                                                                                                                                                                             

                                                                                                                                                                                                                                                                                                                                      2             The  

collaborating   consulting   physicians   appointed   by   the   DOC   Commissioner.     



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  

                                                                                                                                                                                                                                                                                                                                                 



                            2                          See   State   of   Alaska   Dep't   of   Corr.   Policies   &   Procedures   807.01,  



Procedures  IV.D, http://www.correct.state.ak.us/pnp/pdf/807.01.pdf.             



                            3                         Id.   IV.B.  

                                                                       



                                                                                                                                                                            -3-                                                                                                                                                                 7160
  


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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                                                                                                                              

                                                                                                                    4     The Committee approved this referral.  

complaints and discuss treatment for tinnitus.                                                                                                                                                                                 



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  



anymedical recommendation for hearing aids, Wright continued to demand hearing aids.  

                                                                                                                                                                                                                 



                                  In May 2012 Wright filed an action against GEO Group, Anding, Warden  

                                                                                                                                                                                                        

                                                                                                                  5  in the U.S. District Court for the District  

Joe Driver, and DOC under 42 U.S.C. 1983                                                                                                                                                                

                                                                                                  



of Colorado. Wright alleged that the defendants failed to provide medical care for an ear  

                                                                                                                                                                                                                     



infection and hearing loss.  In November 2012 the district court dismissed the federal  

                                                                                                                                                                                                           



                 4                Tinnitus "is the perception of noise or ringing in the ears. . . . Tinnitus isn't                                                                                               



a condition itself - it's a symptom of an underlying condition."                                                                                                       See Tinnitus                      , M     AYO  

CLINIC,   http://www.mayoclinic.org/diseases-conditions/tinnitus/home/ovc-20180349  

                     

(last visited Feb. 21, 2017).  

                                                      



                 5                42 U.S.C.  1983 (2012) ("Every person who, under color of any statute,  

                                                                                                                                                                                                          

ordinance, regulation, custom, or usage, of any State or Territory or the District of  

                                                                                                                                                                                                                      

Columbia, 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 . . . .").  

                                                                                                                                                                                         



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                                                                                                                                                                                                                           6  

 action under 28 U.S.C.  1915(e)(2)(B)                                                                                                                                                                                         as frivolous. Wright appealed this decision, but                                                                                                                                                                                                       



the Tenth Circuit Court of Appeals concluded that he filed his appeal too late.                                                                                                                                                                                                                                                                                                                                                



                                                                            In February and March 2013 Wright continued to complain about hearing                                                                                                                                                                                                                                                                                                             



loss.    Prison medical staff saw Wright on February 5 and 6 and removed impacted                                                                                                                                                                                                                                                                                                                                                                 



 earwax.    On  March   26   medical   staff   saw   Wright   again   and   referred   him   for   an  



 "Audiology/ENT consult." The Committee again approved this referral. Denver Health                                                                                                                                                                                                                                                                                                                                                                                



performed another audiological evaluation on May 14, and the evaluation noted that                                                                                                                                                                                                                                                                                                                                                                                                



there   was   "no   significant   change   from   [the]   previous   audio[logical   evaluation]   on  



 5/25/11" and that Wright's "speech discrimination at normal conversational levels [was]                                                                                                                                                                                                                                                                                                                                                                                  



 excellent."    The audiologist did not recommend or prescribe hearing aids.                                                                                                                                                                                                                                                                                                                                                                   After the  



 examination Wright again complained about his hearing loss.                                                                                                                                                                                                                                                                     



                                                                            Theday                                       after Wright's                                                                  examination bytheaudiologist,CorrectionalOfficer                                                                                                                                                                                                        



P.  Christensen filed an incident report against Wright for "malingering or feigning an                                                                                                                                                                                                                                                                                                                                                                                                   



illness"   based   on   the   audiologist's   report   that  Wright's   hearing   had   not   worsened.   



 Officer Christensen noted that the "Doctor of the Audio Department said . . . Wright's                                                                                                                                                                                                                                                                                                                                         



hearing was good and he had over ninety percent hearing in his right ear and over eighty                                                                                                                                                                                                                                                                                                                                                                             



percent in his left ear," and Officer Christensen stated that he then "informed . . . Wright                                                                                                                                                                                                                                                                                                                                                       



 [that] he could be considered a security threat and he could be placed in Segregation for                                                                                                                                                                                                                                                                                                                                                                                              



 [malingering or feigning an illness] if his [loss of hearing] test [came] back negative."   



Hudson Correctional Facility denied Wright's requests for further evaluation of his                                                                                                                                                                                                                                                                                                                                                                                                   



 alleged hearing loss based on his recent audiological evaluation.                                                                                                                                                                                                                                          



                                                                            Wright was transferred to Wildwood Correctional Center in Kenai later in                                                                                                                                                                                                                                                                                                                                         



2013.   In early 2014 Wright began complaining again about "[s]evere hearing loss"; he                                                                                                                                                                                                                                                                                                                                                                                                     



                                      6                                     28 U.S.C.  1915(e)(2)(B)(i) (2012) ("Notwithstanding any filing fee, or   



 any portion thereof, that may have been paid, the court shall dismiss the case at any time                                                                                                                                                                                                                                                                                                                                                                                     

if the court determines that . . . the action or appeal . . . is frivolous or malicious . . . .").                                                                                                                                                                                                                                                                                                                                                                     



                                                                                                                                                                                                                                             -5-                                                                                                                                                                                                                              7160
  


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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  

                                                                     7 to improve amplification for Wright. However, Dr. List  

recommended a Pocket Talker                                                                                                                                                                   



did  not  recommend  hearing  aids.                                                 The  Committee  approved  the  Pocket  Talker  for  

                                                                                                                                                                             



Wright, and DOC obtained the device for Wright's use.  Wright received the Pocket  

                                                                                                                                                                                      



Talker on May 1.  

                                    



                               The  next  day,  Wright  submitted  a  written  "Request  for  Interview,"  

                                                                                                                                                                           



complaining that the Pocket Talker was only helpful when talking one-on-one, stating  

                                                                                                         



that it would be dangerous to use the device at his job after release from incarceration,  

                                                                                                                                                                       



and insisting that he needed hearing aids.  Wright filed another medical grievance on  

                                                                                                                                                                                                



June 26 requesting a "hearing aid or surgery" to correct his hearing loss.  DOC denied  

                                                                                                                                                                                       



this request on June 30 because Wright had the "device recommended by [Dr. List]."  

                                                                                                                                                                                                        



Wright appealed the denial to the Committee on July 1, demanded hearing aids, and  

                                                                                                                                                                                             



claimed that the Pocket Talker would not help him at all once he was released.   On  

                                                                                                                                                                                              



July 13 the Committee answered Wright's appeal, saying he had "relief granted in the  

                                                                                                                                                                                               



form of recommended amplification," the Pocket Talker.  

                                                                                                                  



               7              A Pocket Talker is a "single-unit amplifier . . . designed for close listening                                                                       



situations, becausethehearingimpaired person and the desired sound source are tethered                                                                                              

by cords."   



                                                                                                -6-                                                                                       7160
  


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            B.          Proceedings  

                        On June 7 Wright filed his initial complaint8  

                                                                                                           in the superior court suing             



                                                                                        9  

GEO Group, Anding, and Dr. Rebecca Bingham.                                                                                             

                                                                                           Wright asserted medical malpractice  



                                                                                                                                                   

claims and claims of deliberate indifference to his medical needs under 42 U.S.C.  1983.  



                                                                                                                       

Wright sought monetary damages and declaratory and injunctive relief.  



                                                                                                                                       

                        In January 2014 the superior court granted partial summary judgment in  



                                                                                                                                                 

favor of the defendants, dismissing Wright's professional negligence claims as barred  



                                                                                                                                                        

by the two-year statute of limitations; the court also relied on res judicata based on his  



                                                                                                                                                     

prior federal litigation of those claims.   But the court determined that Wright's civil  



                                                                                                                                                   

rights claims based on a theory of deliberate indifference to his medical needs under  



                                                                                                                                                         

42 U.S.C. 1983 were not barred by the statute of limitations or res judicata because of  



                                                               10  

                                                                                                                                         

the continuing violations doctrine.                                 Wright then amended his complaint, reasserting  



                                                                                                        

both his medical malpractice and deliberate indifference claims.  



                                                                                                                                                       

                        In  January  2015  the  court  granted  summary  judgment  in  favor  of  the  



                                                                                                                                              

defendants, ruling that Wright could not show deliberate indifference to his medical  



                                                                                                                                               

condition by the defendants as a matter of law.  Based on a review of Wright's medical  



                                                                                                                                          

records relating  to  his  hearing  loss complaints,  the court concluded  that "Wright's  



            8  

                        Wright dated his complaint May 1, 2013. However, the complaint was not                                                          

actually filed until June 7, 2013.               



            9           Anding  was  a  Health  Services  Administrator  at  Hudson  Correctional  

                                                                                                                                      

Facility, employed by GEO Group. She investigated and responded to Wright's medical  

                                                                                                                                               

grievances filed in 2010 and 2011 while he was incarcerated at Hudson.  Dr. Bingham  

                                                                                                                                            

was the Clinical Director for DOC and a member of the Medical Advisory Committee.  

                                                                                                                                        



            10          See Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971) ("The  

                                                                                                                                                  

continuing wrongful conduct of the defendant toward the claimant which establishes a  

                                                                                                                                                           

status quo of continuing injury may also give rise to a continuing cause of action."); see  

                                                                                                                                                        

also Neel v. Rehberg, 577 F.2d 262, 263-64 (5th Cir. 1978).  

                                                                                                  



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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]hileoneoftheexhibits                                                                                                                                                                                                                                                                   specifiedbyMr.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.                                                                                                    

                                                                                                                                                             11  In his Statement of Points on Appeal, Wright argues that  

                                                                        Wright appeals.                                                                                                                                                                                                                                                                                                                                                                       



 (1) the superior court ignored the "exhibit in [the] record showing that Dr. . . . Steffy had  

                                                                                                                                                                                                                                                                                                                                                                                                                                                               



                                     11                                 In his Statement of Points on Appeal Wright specifically appeals only the                                                                                                                                                                                                                                                                                                                



April 29 final judgment that corresponds to the date of the superior court's denial of his                                                                                                                                                                                                                                                                                                                                                                        

Motion for Reconsideration.                                                                                                                                Because Wright is pro se and because "[w]e apply a more                                                                                                                                                                                                                              

lenient standard to pro se litigants," we review the superior court's underlying decision                                                                                                                                                                                                                                                                                                                                           

 on the motion                                                                   for   summary   judgment rather                                                                                                                                            than  just the denial of his motion                                                                                                                                                                 for  

reconsideration.   Casciola v. F.S. Air Serv., Inc.                                                                                                                                                                                                         , 120 P.3d 1059, 1062-63 (Alaska 2005).                                                                                                                                            



                                                                                                                                                                                                                                  -8-                                                                                                                                                                                                                    7160
  


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

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                                                                                                                                                                                                         

                                                   12; (6) Wright's doctor lied and plotted with correctional officers to cover  

under HIPAA                                                                                                                                                                                                                                                                                          

up Wright's hearing problems;13  (7) the superior court ignored evidence that since his  

                                                                                                                                                                                                                                                                                                              



release, Wright had been prescribed hearing aids; and (8) the superior court ignored  

                                                                                                                                                                                                                                                                                             



evidencethatWright'spre-incarceration hearingexaminations suggested that his hearing  

                                                                                                                                                                                                                                                                                               



was poor.  

                



                         12                     Health Insurance Portability and Accountability Act, 42 U.S.C.  1320d-6                                                                                                                                                               



(2012).  In general, HIPPAA governs confidentiality of medical records and regulates   

how covered entities can use or disclose individually identifiable health information                                                                                                                                                                                         

concerning an individual.                                                                           See generally                                          45 C.F.R.  160, 164 (2016).                                                                                             HIPPAA  

regulations do not confer a private right of action on an individual.                                                                                                                                                                                      Want v. Express                  

Scripts, Inc., 862 F. Supp. 2d 14, 19 (D.D.C. 2012);                                                                                                                                          Doe v. Rankin Med. Ctr.                                                                    , 195 So.  

3d 705, 713 (Miss. 2016) (citing                                                                                     Acara v. Banks                                         , 470 F.3d 569, 571-72 (5th Cir. 2006)).                                                                                                         



                         13                      In  alleging  this claim,  Wright appears to  suggest that Dr.  Eusterereen  

                                                                                                                                                                                                                                                                             

violated his Hippocratic Oath. The Hippocratic Oath is "[a]n oath of ethical professional  

                                                                                                                                                                                                                                                                              

behavior sworn by new physicians."   Hippocratic Oath, THE   AMERICAN   HERITAGE  

                                                                                                                                                                                                                      

DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2016). However,                                                                                                                                                                                   the Hippocratic Oath  

                                                                                                                                                    

is   not   legally   binding;   therefore,   we   construe   this   argument   as   a   claim   that   Dr.  

Eusterereen lied and plotted with correctional officers to cover up Wright's hearing                                                                                                                                                                     

problems.  



                                                                                                                                                        -9-                                                                                                                                             7160
  


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

                                                      Theseclaims                                        arebest construed                                                      assupportingthreebroaderlegal 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                                                                                                                                                                                                



                                                           14  

 of discretion."                                                                                                                                                                                                                                                                                                        

                                                                      We "reverse a judge's refusal to step down from a case only when it  



                                                                                                                                                                                                                                                                                                                                  

 appears 'patently unreasonable' or when 'afair-minded personcouldnot rationally come  



                                                                                                                                                                                                                              15  

                                                                                                                                                                                                                        

 to [the same] conclusion on the basis of known facts.' " 



                            14                       In re Estate of Bavilla                                                               , 343 P.3d 905, 908 (Alaska 2015) (quoting                                                                                                                                Jourdan  



 v.  Nationsbanc Mortg. Corp.                                                                                       , 42 P.3d 1072, 1082 (Alaska 2002)).                                                                                 



                            15                       Alyssa B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  

                                                                                                                                                                                                                                                         

 Servs., 165 P.3d 605, 612 n.21 (Alaska 2007) (alteration in original) (quoting Carr v.  

                                                                                                                                                                                                                                                                                                                                               

 Carr, 152 P.3d 450, 458 (Alaska 2007)).  

                                                                                                                                     



                                                                                                                                                                    -10-                                                                                                                                                            7160
  


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

                            "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  

                                                                                                                                                                                



              16            Hymes v. DeRamus                           , 119 P.3d 963, 965 (Alaska 2005) (quoting                                                        Indus.  



Commercial Elec., Inc. v. McLees                                        , 101 P.3d 593, 597 (Alaska 2004)).                          



              17            Christensen v. Alaska Sales &Serv., Inc., 335 P.3d 514, 516 (Alaska 2014)  

                                                                                                                                                                           

(emphasis omitted).  

                                            



              18            Casciola v. F.S. Air Serv., Inc., 120 P.3d 1059, 1062-63 (Alaska 2005).  

                                                                                                                                                                      



              19            Toliver v. Alaska State Comm'n for Human Rights, 279 P.3d 619, 622  

                                                                                                                                                                               

(Alaska 2012).  

                  



                                                                                       -11-                                                                                  7160
  


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

court to discern the pro se's legal argument. Even a pro se litigant . . . must cite authority                                                                          



                                                            20  

and provide a legal theory."                                      And  



                                                                                                                                                      

                             [w]e will not review new arguments or points of error that  

                                                                                                                                                  

                             were neither raised before the trial court nor included in the  

                                                                                                                                                      

                             points  on  appeal  unless  the  issue  presented  is  "1)  not  

                                                                                                                                               

                             dependent on any new or controverted facts; 2) [is] closely  

                                                                                                                                                   

                             related to the appellant's trial court arguments; and 3) could  

                                                                                                                                               

                             have been gleaned from the pleadings, or if failure to address  

                                                                                                                 [21]  

                                                                                                                           

                                                                                                   

                             the issue would propagate plain error." 



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  

                                                                                                                                                                                



              20             Casciola,   120   P.3d   at   1063;  see   also   Alaska   R.   App.   P.   212(c)(1)(I)  



(requiring briefs to contain "[a]n argument section, which shall contain the contentions                                                                           

of the appellant with respect to the issues presented, and the reasons therefor, with                                                                                            

citations to the authorities, statutes, and parts of the record relied on");                                                                             Gates v. City of              

Tenakee Springs                     , 822 P.2d 455, 460 n.7 (Alaska 1991) (holding that a pro se litigant's                                                             

arguments were waived due to inadequate briefing).                                           



              21             O'Callaghan v. State, 826 P.2d 1132, 1133 n.1 (Alaska 1992) (second  

                                                                                                                                                                          

alteration in original) (quoting Sea Lion Corp. v. Air Logistics of Alaska, Inc., 787 P.2d  

                                                                                                                                                                                  

 109,  115  (Alaska  1990)); see  also  Tillmon  v.  Tillmon,  189  P.3d  1022,  1030  n.28  

                                                                                                                                                                                 

(Alaska 2008) (citing McMullen v. Bell, 128 P.3d 186, 190 (Alaska 2006)).  

                                                                                                                                                    



              22             See         State           v.      Wright,               No.          3AN-99-09876                          CR          (Alaska               Super.,  

                                                                                                                                                                         

Sept. 17, 2009).  

                     



              23             See  Wright  v.  McKay  et  al.,  No.  3AN-08-09294  CI  (Alaska  Super.,  

                                                                                                                                                                           

Mar. 4, 2011).  

                                  



                                                                                         -12-	                                                                                  7160
  


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

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 AS 22.20.020(c), when a judicial officer denies a motion for  

                                                                                                                                                                   



disqualification, the decision is reviewed by another judge assigned for the purpose by  

                                                                                                                                                                                     



the presiding judge of the next higher level of courts.  Superior Court Judge Andrew  

                                                                                                                                                                         



Guidi was assigned to review Judge McKay's denial of Wright's motion to disqualify  

                                                                                                                                                               



and upheld the decision.  Judge Guidi acknowledged that Judge McKay presided over  

                                                        



a criminal case in which Wright was a defendant and that Wright once filed a civil suit  

                                                                                                                                                                                   



naming Judge McKay, among others, as a defendant.  But Judge Guidi concluded that  

                                                                                                                     



"[t]he mere fact that Judge McKay once presided over a criminal case against Wright is  

                                                                                                                                                                                       



not recognized as grounds for disqualification" because "[t]here is no rule, Canon, or  

                                                                                                                                                                                      



statute  limiting  the  number  of  times  a  judge  may  preside  over  a  case  involving  a  

                                                                                                                                                                                       



particular party." And with regard to Wright's allegations that Judge McKay was biased  

                                                                                                                                                                             



because Wright once sued Judge McKay, Judge Guidi noted that the suit alleged judicial  

                                                                                                                                                                           



misconductagainstJudgeMcKay for alleged procedural and constitutional errors related  

                                                                                                                                                                             



to Wright's criminal case, but Wright never properly served the complaint on Judge  

                                                                                                                                                                              



McKay,andWrightultimately dismissed the action entirely. Judge Guidi also explained  

                                                                                                                                                                      



that there was "no connection between the claims and issues in the present action and the  

                                                                                                                                                                                     



claims and issues in the 2008 lawsuit Wright filed against Judge McKay" and that there  

                                                                                                                                                                                



was no evidence of bias in the record.  

                                                                   



              24  

                                                                                                                                                                        

                             Wright's criminal case was reassigned from Judge McKay to Superior  

                                               

Court Judge Michael Spaan.  



                                                                                         -13-                                                                                          7160  


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

                          Alaska Statute 22.20.020 sets forth the conditions under which a judicial                         



officer may be disqualified for cause. The Alaska Code of Judicial Conduct's canons are                                                                          

                                                                                                                                      25       But  neither  

"intended   to   establish   standards  for   ethical   conduct   of   judges."                                                                         



AS 22.20.020 nor the Judicial Canons prevent a trial judge who presided over a party's  

                                                                                                                                                         



criminal case, or who was sued by the party, from presiding over other cases involving  

                                                                                                                                                    



that party.   Furthermore, Wright fails to point to any specific evidence beyond his  

                                                                                                                                                                 



unsubstantiated allegations that Judge McKay is biased against him, and there is no  

                                                                                                                                                                  



meaningful connection between the past cases involving Wright and the case at hand.  

                                                                                                                                                                        



Therefore, the superior court's determination on this matter does not appear "patently  

                                                                                                                                                     



unreasonable," and a fair-minded person could "come to [the same] conclusion on the  

                                                                                                                                                                 

basis of known facts."26                           We 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  

                                                                                                                                                               



             25           Alaska Code of Jud. Conduct, Preamble.                                         We acknowledge, however, that                          



these canons are "not designed or intended as a basis for civil liability or criminal                                                                 

prosecution."   Id .  



             26          Alyssa B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  

                                                                                                                          

Servs., 165 P.3d 605, 612 n.21 (Alaska 2007) (alteration in original) (quoting Carr v.  

                                                                                                                                                                   

Carr, 152 P.3d 450, 458 (Alaska 2007)).  

                                                                 



                                                                               -14-	                                                                         7160
  


----------------------- Page 15-----------------------

Wright's ear was severely impacted and his hearing damaged by non-treatment." These                                                         



                                                                                                       27  

claims are best characterized as medical malpractice claims.                                                



                       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 AS 09.10.070(a), actions for personal injury must  

                                                                                                                                             



be brought within two years.  A claim accrues when a person "knows or should know  

                                                         

that he has a claim."28                 Wright alleged in his earlier federal action that a hearing exam  

                                                                                                                                            



from May 25, 2011 confirmed damage to his hearing.   Wright also alleged that the  

                                                                                                                                                



May 25 hearing exam, when compared with tests conducted by his previous employers,  

                                                                                                                                   



showed  his  hearing  had  deteriorated  while  in  prison  due  to  DOC's  negligence.  

                                                                                                                                                       



Assuming  for  sake  of  discussion  that  his  allegations  are  true,  these  statements  

                                                                                                                                  



demonstrate that Wright knew he had a malpractice claim as of May 25, 2011 and it was  

                                                                                                                                               



at that time (at the latest) that the two-year limitations period for his claim began to run.  

                                                                                                                                                       



Wright was required to file his malpractice action before May 25, 2013. But Wright filed  

                                                                                                                                              



            27         Wright characterized these claims as "professional negligence" claims in  



                                                                                                                                              

his complaint.  The superior court used his label but also described them as "pure civil  

                                                                                                                                       

tort  claims."            Because  Wright's  allegations  here  concern  the  response  of  medical  

                                                                                                                                              

professionals on the prison staff and sitting on the Medical Advisory Committee who  

                                                                                                                                  

were  aware  of  Wright's  hearing  complaints,  we  characterize  Wright's  allegations  

                                                                                                                                            

regarding the deficiency of their response as medical malpractice claims.   We note,  

                                                                                                                                                

however, that the statute of limitations for medical malpractice claims and "pure civil tort  

                                                                              

claims" are identical.  See AS 09.10.070(a).  



            28         Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1249 (Alaska 2001); see also  

                                                                                                                                              

Pedersen v. Flannery, 863 P.2d 856, 856-58 (Alaska 1993).  

                                                                                             



                                                                       -15-                                                                 7160
  


----------------------- Page 16-----------------------

his complaint on June 7, 2013, after that deadline passed.                                                  Therefore, we conclude     



Wright's medical malpractice claims are time-barred by AS 09.10.070(a), there is "no   



genuine   issue   of   material   fact"   related   to   the   statute   of   limitations,   and   DOC   was  

"entitled to judgment as a matter of law."                              29  



            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  

                                                                                                                                          



            29         Hymes v. DeRamus                   , 119 P.3d 963, 965 (Alaska 2005) (quoting                                       Indus.  



Commercial Elec., Inc. v. McLees                           , 101 P.3d 593, 597 (Alaska 2004)).                            We do not reach       

the   superior   court's   res   judicata   ruling   because   we   affirm on                                    statute   of   limitations  

grounds.  



                                                                        -16-	                                                                 7160
  


----------------------- Page 17-----------------------

                                                                                                                                  

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  



                                                              -17-                                                         7160
  


----------------------- Page 18-----------------------

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                                                       

                        30    In Estelle v. Gamble, the United States Supreme Court stated that the  

needs met."                                                                                                                                                        



"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]  



                          To sustain an action under  1983,33   Wright must show:   "(1) that the  

                                                                                                                                                                   



conduct complained of was committed by a person acting under color of state law and  

                                                                                       



             30           Goodlataw v. State, Dep't of Health and Soc. Servs.                                                  , 698 P.2d 1190, 1193            



(Alaska 1985).   



             31           429 U.S. 97, 103 (1976) (alteration in original).  

                                                                                                                          



             32           Goodlataw, 698 P.2d at 1193 (alteration in original) (quoting Estelle, 429  

                                                                                                                                                                  

U.S. at 103).  

               



             33           42 U.S.C.  1983 (2012).  

                                                              



                                                                                 -18-                                                                           7160
  


----------------------- Page 19-----------------------

(2)  that the conduct deprived [him] of a [federal] constitutional right."                                              34  The Supreme  



Court has previously concluded that "deliberate indifference to serious medical needs of                                                         

                                                                                                                                35   and  that  

prisoners   constitutes   the   'unnecessary   and   wanton  infliction   of   pain'   "                                                     



"deliberate indifference to a prisoner's serious illness or injury states a cause of action  

                                                                                 

under  1983."36              Even so, the Supreme Court has further explained:  

                                                                                                    



                       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 tothe conscience of mankind." Thus, acomplaint  

                                                                                                             

                       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  

                                                                                                              

                       malpracticedoes not becomeaconstitutional violationmerely  

                                                                                                                  

                       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]  

                                    



           34           Prentzel v.  State,  Dep't  of  Pub.  Safety,   169  P.3d  573,  586  (Alaska 2007)  



(alterations   in   original)   (quoting   Crawford   v.   Kemp,    139   P.3d    1249,    1255   n.10  

(Alaska  2006)).  



           35          Estelle,  429  U.S.   at   104   (quoting   Gregg v. Georgia,  428  U.S.   153,   173  



(1976)).  



           36          Id. at 105.  

                                 



           37          Id. at 105-06; see also Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir. 1970)  

                                                                                                                                           

("Prison officials and medical officers have wide discretion in treating prisoners, and a  

                                                                                                                                                   

simple claim of malpractice does not give rise to a claim under sections 1981 or 1983.  

                                                                                                                                                     

However, failure or refusal to provide medical care, or treatment so cursory as to amount  

                                                                                                                                        

to  no  treatment  at  all,  may,  in  the  case  of  serious  medical  problems,  violate  the  

                                                                                                                                              

Fourteenth Amendment." (citations omitted)).  

                                                               



                                                                      -19-                                                                 7160
  


----------------------- Page 20-----------------------

                        We   have   previously   held   that   deliberate   indifference   "mean[s]   the  



 [corrections] official 'knows of and disregards an excessive risk to inmate health and                                                              

                 38  To reach the standard of deliberate indifference to a serious medical need,  

safety.' "                   



"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  

                                                                                                                                                      



            38          Larson v. State, Dep't of Corr.                           , 284 P.3d 1, 8 (Alaska 2012) (quoting                    



Hertz v. Beach             , 211 P.3d 668, 678 (Alaska 2009)).                 



            39          Id . (emphasis omitted) (quoting Hertz, 211 P.3d at 677-78).  

                                                                                                                     



            40          Hertz, 211 P.3d at 678 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059- 

                                                                                                                                                  

60 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d  

                                                                                                                                                    

 1133 (9th Cir. 1997)).  

                            



            41          Larson, 284 P.3d at 8 (quoting Hertz, 211 P.3d at 678).  

                                                                                                                   



                                                                          -20-                                                                     7160
  


----------------------- Page 21-----------------------

that she was retained by Hudson to evaluate Wright in the correctional facility because                                                                                                                                                                                                                                                                                                                                  



 she entered her physician orders on a Hudson Correctional Facility medical record form.                                                                                                                                                                                                                                                                                                                                               



                                                                      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                                                                                                                                                                                                                                                                                                                                                      

                                               42  Like the superior court, we simply cannot conclude that Hudson Correctional  

 safety.' "                                                                                                                                                                                                                                                                                                                                                                                        



Facility disregarded Wright's complaints of hearing loss and demands for hearing aids.  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                         



To  the  contrary,  Hudson's  responses  to  Wright's  complaints  both  through  its  own  

                                                                                                                                                                                                                                                                                                                                                                                                                                          



                                   42                                Id.  (quoting  Hertz,  211  P.3d  at  678).   



                                                                                                                                                                                                                        -21-                                                                                                                                                                                                                                       7160  


----------------------- Page 22-----------------------

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                                                                                                                             



                                                                                                                                                              43  

technically defective pleadings filed by pro se litigants,"                                                                                                                                                                   

                                                                                                                                                                   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. Eusterereen 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  

                                                      44         Furthermore,  these  claims  are  "dependent  on  .  .  .  new  or  

                                                                                                                                                                                                                                          

Points  on  Appeal. 



                   43                Mitchell   v.   Mitchell,   370   P.3d   1070,   1083   (Alaska   2016)   (quoting  



DeNardo v. Calista Corp.                                                 , 111 P.3d 326, 330 (Alaska 2005)).                                             



                   44                 We note that although Wright's "Opposition to Motion and Memorandum  

                                                                                                                                                                                                           

for Summary Judgment" mentioned that he had previously filed a Prisoner Grievance  

                                                                                                                                                                                                                     

with DOC claiming that two correctional officers violated Wright's constitutional rights  

                                                                                                                                                                                                                                  

to keep his medical records private under HIPAA, Wright did not make this specific  

                                                                                                                                                                                                                            

                                                                                                                                                                                                             (continued...)  



                                                                                                                    -22-                                                                                                            7160
  


----------------------- Page 23-----------------------

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  



                                                                                       46  

                                                                     

circumstances  "[w]e will not review new arguments." 



                                                                                                                                

                     Further, "[a]s a general matter, issues not briefed or only cursorily briefed  

                                       47  Failure to develop an argument constitutes a waiver of that  

                                                                                                                                    

are considered waived." 

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  

                                                                                                                                   



           44(...continued)  



                                             

claim to the superior court.  



           45        Sea  Lion  Corp.  v.  Air  Logistics  of  Alaska,  Inc.,  787  P.2d  109,  115  

                                                                                                                                     

(Alaska 1990) (quoting State v. Nw. Constr., Inc., 741 P.2d 235, 239 (Alaska 1987)); see  

                                                                                                                                       

also Tillmon v. Tillmon, 189 P.3d 1022, 1030 n.28 (Alaska 2008) (citing McMullen v.  

                                                                                                                       

Bell, 128 P.3d 186, 190 (Alaska 2006)).  

                                                                  



           46         O'Callaghan v. State, 826 P.2d 1132, 1133 n.1 (Alaska 1992).  

                                                                                                                



           47        Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001).  

                                                                                                  



           48        Id .  



           49        Hagen  v. Strobel, 353 P.3d  799, 805 (Alaska 2015)  (quoting  Glover v.  

                                                                                                                                        

Ranney, 314 P.3d 535, 545 (Alaska 2013)).  

                                                           



           50         Casciola v. F.S. Air Serv., Inc., 120 P.3d 1059, 1062-63 (Alaska 2005).  

                                                                                                                               



           51         Toliver v. Alaska  State  Comm'n for  Human Rights, 279 P.3d  619,  622  

                                                                                                                                     

(Alaska 2012).  

                          



                                                                  -23-                                                             7160
  


----------------------- Page 24-----------------------

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.  

                                                                                                                                                                    



               52              Casciola, 120 P.3d at 1063.                                          See also              Alaska R. App.                         P.  212(c)(1)(I)  



(requiring briefs to contain "[a]n argument section, which shall contain the contentions                                                                                  

of the appellant with respect to the issues presented, and the reasons therefor, with                                                                                                    

citations to the authorities, statutes, and parts of the record relied on");                                                                                    Gates v. City of                

Tenakee Springs                        , 822 P.2d 455, 460 (Alaska 1991) (holding that a pro se litigant's                                                                     

arguments were waived due to inadequate briefing).                                               



               53             Wright did not file a reply brief.  

                                                                                           



               54             We also note that this argument is not material. Wright was not prescribed  

                                                                                                                                                                             

nor  did  he  use  a  hearing  aid  before  his  incarceration.                                                                        Furthermore,  none  of  the  

                                                                                                                                                                                            

pre-incarceration examinations were performed by an audiologist or hearing specialist,  

                                                                                                                                                                              

and  each  pre-incarceration  examination  recommended  that  Wright  see  a  hearing  

                                                                                                                                                                                  

specialist.  Wright saw a hearing specialist three times while he was incarcerated.  

                                                                                                                                                            



                                                                                             -24-                                                                                        7160
  

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