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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jovanov v. State, Dept. of Corrections (9/15/2017) sp-7199

Jovanov v. State, Dept. of Corrections (9/15/2017) sp-7199

          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  



RADENKO  JOVANOV,                                            )  

                                                             )         Supreme  Court  No.  S-15950  

                    Appellant,                              )  

                                                                                                                                   

          v.                                                 )         Superior Court No. 3AN-12-10167 CI  

                                                             )  

                                     

STATE OF ALASKA,                                             )                            

                                                                       O P I N I O N  

                                 

DEPARTMENT OF CORRECTIONS,  

                                                             )  

                                                             )                                                  

                                                                      No. 7199 - September 15, 2017  

                    Appellee.                               )  

                                                             

_______________________________ )  



                                                                                                       

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

                                                                                                     

                    Judicial District, Anchorage, Mark Rindner, Judge.  



                                                                                                                 

                    Appearances:  Radenko Jovanov, pro se, Wasilla, Appellant.  

                                                                                              

                    Susan G. Wibker, Assistant Attorney  General, Anchorage,  

                                                                                                          

                    and  Craig  W.  Richards,  Attorney  General,  Juneau,  for  

                                      

                    Appellee.  



                                                                                                   

                    Before:         Stowers,  Chief  Justice,  Maassen  and  Bolger,  

                                                                                         

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



                                                  

                    STOWERS, Chief Justice.  



I.        INTRODUCTION  



                                                                                                                  

                    On October 6, 2010 Corrections Officer Nelson Robinson was supervising  



                                                                                                                      

a prison module of about 50 inmates at the Anchorage Correctional Complex, including  



                                                                                                                   

Radenko Jovanov and Alando Modeste.  Modeste had been transferred to Anchorage  



                                                                                                                               

from Palmer that morning.  Modeste approached Jovanov while he was in line for the  



                                                                                                                       

telephone, and he told Jovanov that he wanted them to request placement in separate  


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

                                                                                                                                    

modules because Modeste was related by marriage to the victim of Jovanov's crime.  



                                                                                                                              

Modeste then punched Jovanov on the left side of the head and pushed his head into the  



                                                                                          

wall, requiring Jovanov to obtain medical treatment for his injuries.  



                                                                                                                              

                    Jovanovsued theDepartmentofCorrections(DOC), Officer Robinson,and  



                                                                                                                           

Modeste for his injuries, alleging that (1) the assault was foreseeable and therefore DOC  



                                                                                                                             

should  have  prevented  it;  (2)  Officer  Robinson  failed  to  respond  promptly  to  the  



                                                                                                               

argument  and  prevent  further  injury  to  Jovanov;  and  (3)  DOC  was  negligent  in  



                                                                                                                                    

understaffing the prison unit and placing the officer's desk out of view of the telephone.  



                                                                                                       

DOC counterclaimed for the cost of the medical treatment Jovanov received.  



                                                                                                                        

                    The superior court granted summary judgment in favor of Jovanov against  



                                                                                                                                    

Modeste on the issue of liability, and in favor of DOC's counterclaim for medical costs.  



                                                                                                                               

We affirm the superior court's decision granting summary judgment in favor of DOC on  



                                                                                                                     

Jovanov's negligence claims against it; the assault was not foreseeable, and therefore  



                                                                                                                               

DOC cannot be negligent on these grounds.  Further, DOC's staffing decisions and its  



                                                                                                                              

placement of the guard's duty station are immune policy decisions that cannot form the  



                                                                                                                     

basis of a negligence claim. We reverse the superior court's grant of summary judgment  



                                                                                                                            

in  favor  of DOC on  its  counterclaim against Jovanov  for  the cost of medical care  



                                                                                                                        

provided  to  him and  remand  for  further  proceedings.                              We also  remand  for  further  



                                                                                          

proceedings regarding Jovanov's negligence claim against Modeste.  



                                 

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                                       

                    On  the  morning  of  October  6,  2010,  DOC  transferred  inmate  Alando  



                                                                                                                     

Modeste from the Palmer Correctional Facility to the Anchorage Correctional Complex  



                                                                                                                       

and placed him in the same prison module, or "mod," as Radenko Jovanov, another  



                                                               -2-                                                        7199
  


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                                          1  

 inmate.   That afternoon at the Anchorage Correctional Complex, Corrections Officer                                                                                                                                                                                                                                                                                                                                                                     



Nelson Robinson was the sole officer supervising the prison mod of about 50 inmates,                                                                                                                                                                                                                                                                                                                                                              



 including Jovanov and Modeste.                                                                                                                                                               At the time of the incident, Officer Robinson was                                                                                                                                                                                                                            



working at his desk computer in the mod helping an inmate with an online account. The                                                                                                                                                                                                                                                                                                                                                                                      



 other inmates were playing games, watching television, and talking on the telephone.                                                                                                                                                                                                                                                                                                                                                                                                         



                                                                           Jovanov did not know Modeste personally prior to the day of the assault.                                                                                                                                                                                                                                                                                                                                                  



When Jovanov got in line to use the telephone, Modeste approached him. Modeste asked                                                                                                                                                                                                                                                                                                                                                                               



Jovanov to talk privately in his cell, but Jovanov told Modeste that he had just entered                                                                                                                                                                                                                                                                                                                                                                



the line to use the telephone and that they could talk there. The men continued their brief                                                                                                                                                                                                                                                                                                                                                                             



 conversation behind the stairs near the telephone. The stairs blocked Officer Robinson's                                                                                                                                                                                                                                                                                                                                          



view of the men, and Jovanov admitted that Officer Robinson was positioned so that he                                                                                                                                                                                                                                                                                                                                                                                                



 could not have heard Modeste ask Jovanov to talk privately in his cell.                                                                                                                                                                                                                                                                                                                                         Modeste then   



told Jovanov that he wanted them to request placement in separate mods.                                                                                                                                                                                                                                                                                                                                                Jovanov was   



 incarcerated for his conviction of a sex crime involving a minor who was related to                                                                                                                                                                                                                                                                                                                                                                                                 



Modeste by marriage, and Modeste did not want to be in the same mod as Jovanov.                                                                                                                                                                                                                                                                                                                                                              



Following their brief conversation, Modeste punched Jovanov on the left side of the                                                                                                                                                                                                                                                                                                                                                                                            



head, knocking Jovanov to the ground, and pushed his head into a wall.                                                                                                                                                                                                                                                                                                                                                                       Jovanov  



 explained that he became apprehensive when Modeste mentioned Jovanov's crime, but                                                                                                                                                                                                                                                                                                                                                                                              



Modeste   did   not   threaten   or   physically   restrain   Jovanov   during  their   conversation;  



therefore, Jovanov did not move away or call for help prior to the assault, explaining that                                                                                                                                                                                                                                                                                                                                                                                   



he had "no reason" to do so before Modeste assaulted him.                                                                                                                                                                                                                                                      



                                                                           Security cameras recorded a video of the incident.  The video shows that                                                                                                                                                               



Jovanov and Modeste were behind the stairs for about one minute before the assault.                                                                                                                                                                                                                                                                                                                                                                                                In  



the video recording, none of the other inmates looked in the direction of the assault                                                                                                                                                                                                                                                                                                                                                                     



                                      1  

                                                                                                                                                                                                                                                                                                                                                                                                           

                                                                           A module consists of cells surrounding an open common area.  



                                                                                                                                                                                                                                          -3-                                                                                                                                                                                                                           7199  


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

before it occurred.                     But most of the inmates looked in the direction of the assault shortly                                                       



after Modeste struck Jovanov.                



                            Officer  Robinson   heard   the   scuffle   near   the   stairs   and   looked   in   the  



direction of the assault after Modeste struck Jovanov.                                                                Officer Robinson responded             



almost immediately, at most five seconds after the assault.                                                                      He rose from his desk,                 

                                                                                         2 and called for backup officers.  For safety  

ordered the other prisoners into lockdown,                                                                         



and security reasons, DOC protocol requires that an officer ordering a lockdown wait for  

                                                                                                                                                                              



backup before breaking up a fight.  However, Officer Robinson believed that the other  

                                                                                                                                                                         



inmates were following his lockdown order, observed the fight between Jovanov and  

                                                                                                                                                                            



Modeste, assessed the situation, and decided that he could safely stop the assault before  

                                                                                                                                                                       



backup officers arrived.  Officer Robinson then intervened to stop the assault.  

                                                                                                                                                  



                            Jovanov was treated for his injuries at Alaska Regional Hospital. Modeste  

                                                                                                                                                                  



faced criminal charges following the assault, and he ultimately pleaded no contest to a  

                                                                                                              

reduced charge of reckless endangerment.3  

                                                         



              B.            Proceedings  



                            In October 2012 Jovanov sued DOC, Officer Robinson, and Modeste for  

                                                                                                                                                 



his injuries.   This appeal principally addresses his claims against DOC and Officer  

                                                                                                                                                                    

Robinson.4               In his First Amended Complaint, Jovanov claimed that DOC was negligent  

                                                                                                                                                                



              2             Upon receiving a lockdown order, inmates are supposed to return to their                                                                      



cells.   The officer on duty is then supposed to secure the cell doors.                                                        



              3             See Modeste v. State, No. 3AN-10-13049 CR (Alaska Dist. Ct., Nov. 29,  

                                                                                                                    

2011).  



              4             Pursuant to AS 09.50.253(c), the Attorney General certified that Officer  

                                                                                                                                                                    

Robinson was acting within the scope of his employment, and the court upheld this  

                                                                                                                                                                            

certification after a Heisy hearing.  See State, Dep't of Corr. v. Heisey, 271 P.3d 1082,  

                                                                                                                                                             

 1090-91 (Alaska 2012).  The court dismissed Officer Robinson and substituted DOC in  

                                                                                                                                                                                

                                                                                                                                                       (continued...)  



                                                                                       -4-                                                                               7199
  


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

because (1) Modeste's attack on Jovanov was foreseeable and DOC negligently failed                                                        



to prevent the attack; (2) Officer Robinson negligently failed to take immediate action   



to stop the assault as it occurred; and (3) DOC negligently placed only one officer in the                                                                              



mod   and   negligently  placed   the   officer's   desk   in   a   location   that   prevented   Officer  



Robinson from observing the inmates in line for the telephone.                                                                        Jovanov also sued             



Modeste alleging that as the aggressor he was liable for injuries from the assault.                                                                               DOC  



counterclaimed for the cost of Jovanov's medical treatment stemming from the assault                                                                            

                                           5   DOC moved for summary judgment on Jovanov's negligence  

under AS 33.30.028.                                                                                                                                     



claims, and Jovanov moved for summary judgment against Modeste on the issue of  

                                                                                                                                                                         



liability.           The  superior  court  granted  Jovanov's  motion  against  Modeste  based  on  

                                                                                                                                                                        



Modeste's criminal conviction for the assault.  The superior court also granted DOC  

                                                                                                                                                                   



summary judgment on Jovanov's negligence claims. The court found that the evidence,  

                                                                                                                                                           



viewed in the light most favorable to Jovanov, was insufficient to allow a reasonable jury  

                                                                                                                                                                      



to  conclude  that  Officer  Robinson  and  DOC  were  negligent  in  failing  to  stop  a  

                                                                                                                                                                          



foreseeable  assault  or  in  failing  to  promptly  separate  the  parties  before  the  assault  

                                                                                                                                                               



occurred.  And the court concluded that Jovanov's claims regarding inadequate staffing  

                                                                                                                                                               



and negligence in setting up the prison mod were barred by discretionary function  

                                                                                                                                                            



immunity   under   AS   09.50.250(1).                                              The   court   denied   Jovanov's   motion   for  

                                                                                                                                                                      



reconsideration.  



             4(...continued)  



                                                                                                                                                                            

his place.  The parties do not challenge this ruling, and Officer Robinson is no longer a  

                                     

party to this case.  



             5             Under this statute, DOC is entitled to recover the cost of some medical care  

                                                                                                                                                                      

from prisoners.   See  AS  33.30.028.                                          See  also  Hendricks-Pearce  v.  State,  Dep't  of  

                                                                                                                                                           

Corr.,(Hendricks-Pearce v. State II),  323 P.3d 30, 36-38 (Alaska 2014).   (plurality  

                                                                                                                                                          

opinion)  



                                                                                    -5-                                                                            7199
  


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

                      The    superior   court    also    granted    DOC    summary    judgment    on    its  



counterclaim for medical expenses.                         Jovanov opposed the entry of judgment on DOC's                        



counterclaim; he            argued that he needed to reviewthe medical records that supported each                                   



billing item and that in light of our decision in                           Hendricks-Pearce v. State, Department   

                         6  his lack of money, his status as the victim of a crime rather than the  

of Corrections,                                                                                                                



perpetrator, and principles of equity, the court "should only enter a judgment against  

                                                                                                                                 



Modeste."  The court entered a final judgment against Jovanov for medical payments.  

                                                                                                                                              



                      Jovanov appeals.  He argues that (1) the superior court erred in granting  

                                                                                                                               



summary judgment in favor of DOC on the question whether DOC was negligent in  

                                                                                                                                         



failing to prevent or respond promptly to the assault; (2) the court erred in granting  

                                                                                                                               



summary judgment in favor of DOC on its counterclaimfor reimbursement of Jovanov's  

                                                                                                                            



medical expenses; and (3) DOC's actions violated his rights to due process and access  

                                                                                                                                  



to the courts.  

           



III.       STANDARD OF REVIEW  

                                          



                      "We review a grant of summary judgment de novo.  We review the facts  

                                                                                                                   



in the light most favorable to the non-moving party and draw all factual inferences in the  

                                                                                                                                        

non-moving party's favor."7  We affirm "when there are no genuine issues of material  

                                                                                                                           

fact, and the prevailing party . . . [is] entitled to judgment as a matter of law."8   "After the  

                                                                                                                                        



court makes reasonable inferences from the evidence in favor of the non-moving party,  

                                                                                                                                   



           6          323  P.3d  at  36-38.  



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



           8         Id.  (alterations  in  original)  (quoting  Fraternal  Order  of  Eagles v. City  &  



Borough  of  Juneau,  254  P.3d  348,  352  (Alaska  2011)).  



                                                                    -6-                                                             7199
  


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

summary judgment is appropriate only when no reasonable person could discern a                                                                                           



                                                                                        9  

genuine factual dispute on a material issue."                                                                          

                                                                                            Furthermore,  



                                                                                                                                      

                          a non-moving party does not need to prove anything to defeat  

                                                                                                                                                

                           summary judgment. But a non-moving party cannot create a  

                                                                                                                            

                          genuine issue of material fact merely by offering admissible  

                                                                                                                           

                          evidence - the offered evidence must not be too conclusory,  

                                                                                                                                        

                          too speculative, or too incredible to be believed, and it must  

                                                                                                                          [10]  

                                                                                                       

                          directly contradict the moving party's evidence. 



                          "We apply the independent judgment standard of review when interpreting  

                                                                                                                                                     

and applying statutes."11  

                            



IV.	         DISCUSSION  



             A.	          DOC Was Entitled To Summary Judgment On Jovanov's Negligence  

                                                                                                                                                     

                           Claims.  



                          Jovanov argues that the superior court erred in granting DOC's motion for  

                                                                                                                                                                      



summary judgment on his negligenceclaims, including his claims that (1) the assault was  

                                                                                                                                                                     



foreseeable and therefore DOC should have prevented it; (2) Officer Robinson failed to  

                                                                                                                                                                        



respond promptly to the argument and prevent further injury to Jovanov; and (3) DOC  

                                                                                                                                                                 



was negligent in understaffing the prison unit and placing the officer's desk out of view  

                                                                                                                                                                  



of the telephone.  

             



             9             Christensen v. Alaska Sales &Serv., Inc.                                     , 335 P.3d 514, 520 (Alaska 2014).                     



             10           Id . at 516 (emphasis omitted).            



             11            Cragle v. Gray               , 206 P.3d 446, 449 (Alaska 2009).                        



                                                                                   -7-	                                                                          7199
  


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

                            1.	          Jovanov failed to demonstrate a genuine issue of material fact                                                                   

                                         as to whether the assault was foreseeable.                        



                           DOC "owes a duty to inmates to exercise reasonable care for the protection                                                         



                                                       12  

of their lives and health."                                                                                                                                         

                                                             "[T]he duty to protect encompasses the duty to protect  



                                                                                                                                13  

                                                                                                                                                     

inmates fromreasonably foreseeableassaultsby otherinmates."                                                                         Certaincircumstances,  



                                                                                                                                                                 

including circumstances in which there have been reports of threats between inmates,  



                                                                                                                                                                       

may  make  an  assault  foreseeable,  and  "[t]he  scope  of  [DOC]'s  duty  under  [this]  



                                                                                                                                                                               14  

                                                                                                                                                                                    

negligence                 standard               will         be        determined                  by        the         factual            circumstances." 



                                                                                                                                                            

However, "[t]here are many circumstances in which an attack might not be reasonably  



                                                                                                                                                                            

foreseeable[;] . . . the duty to protect is not limitless - the prison 'should not be the  



                                                                      15  

                                                                    

insurer of the prisoner's safety.' " 



                                                                                                                                                                 

                           Jovanov claims that theassaultwasforeseeableand thatDOCwas therefore  



                                                                                                                                                                  

negligent in failing to prevent it.  He argues that the assault was foreseeable because  



                                                                                                                                                                   

DOC knew or should have known that Modeste posed a risk of harm to him and because  



                                                                                                                                                                         

Jovanov and Modeste engaged in a loud argument before the assault that should have  



                                                                                                                                                                            

alerted Officer Robinson to the impending assault.  But upon a de novo review of the  



                                                                                                                                                                     

evidence in the light most favorable to Jovanov, we conclude that no reasonable person  



                                                                                                                                                                         

could  discern  a  genuine  factual  dispute  on  the  issue  of  whether  the  assault  was  



foreseeable.  



              12           Mattox v. State, Dep't of Corr.                                 , 323 P.3d 23, 26 (Alaska 2014).                      



              13  

                                        

                           Id . at 27.  



              14  

                                        

                           Id . at 28.  



              15  

                                                                                                                                             

                           Id . (quoting Joseph v. State, 26 P.3d 459, 477 (Alaska 2001)).  



                                                                                      -8-	                                                                              7199
  


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

                                                                                       a.	                         DOC had no reason to suspect that Modeste posed a risk                                                                                                                                                                                    

                                                                                                                   of harm to Jovanov.                                



                                                          Jovanov argues that DOC had reason to suspect that Modeste would be                                                                                                                                                                                                                                            



dangerous to Jovanov and that DOC was therefore negligent in failing to separate them.                                                                                                                                                                                                                                                                                                  



Jovanov asserts in his brief that Modeste announced his problem with Jovanov to DOC.                                                                                                                                                                                                                                                                                                    



But in the superior court neither Jovanov nor Modeste ever claimed to have put DOC on                                                                                                                                                                                                                                                                                     



notice of any problems between them.                                                                                                                                    Modeste asked a correctional officer not to be                                                                                                                                                   



placed in Hotel Mod where Jovanov was housed and to go back to his prior mod, but                                                                                                                                                                                                                                                                                    



never identified Jovanov specifically.                                                                                                                             And Jovanov admitted that DOC had no way of                                                                                                                                                             



knowing that Modeste posed any danger to him; Jovanov testified that he could not "hold                                                                                                                                                                                                                                                                      



 [DOC] responsible for putting [Modeste] [in the same mod] because neither they knew                                                                                                                                                                                                                                                                        



nor did [he] know [that Modeste was a threat to Jovanov]."                                                                                                                                                                                                     Jovanov also stated that he                                                                               



was not acquainted with Modeste before the day of the assault.                                                                                                                                                                                 



                                                          Without a specific warning to DOC, we cannot conclude it was on notice                                                                                                                                                                                                                         



of the threat Modeste posed to Jovanov. In                                                                                                                                             Mattox v. State, Department of Corrections                                                                                                                                                 ,  



we concluded that there was a genuine issue of material fact as to DOC's notice of a                                                                                                                                                                                                                                                                                          



threat to an inmate because the inmate had warned a guard in a way that allowed the                                                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                       16  but we warned that holding DOC  

guard to identify the plaintiff's eventual attacker,                                                                                                                                                                                                                                                                                                        



liable  in  the  absence  of  a  specific  warning  would  make  the  "only  limit  on  the  

                                                                                                                                                                                                                                                                                                                                                                    



Department's liability . . . the self control of its inmates, as any attack by one inmate on  

                                                                                                                                                                                                                                                                                                                                                                         

                                                                                                                                                                                                                               17               Because the warning Modeste  

another could be deemed reasonably foreseeable."                                                                                                                                                                                                                                                                                              

                                                                                                                                                                    



                             16                          Id.   at 29                                 ("Mattox's identification of his potential attackers . . . makes                                                                                                                                                                      



foreseeability a much closer question.").                                                                                  



                             17                          Id.  ("[I]f the assault were entirely unrelated to the threat of harm about  

                                                                                                                                                                                                                                                                                                                                                           

which the Department was on notice, holding the Department liable might indeed make  

                                                                                                                                                                                                                                                                                                                                                             

the Department the insurer of the prisoner's safety.").  

                                                                                                                                                                                                                                          



                                                                                                                                                                                     -9-	                                                                                                                                                                       7199
  


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

allegedly gave DOC was not specific enough to put it on notice of the specific risk that                                                                         



materialized,   holding   that   DOC   was   on   notice   of   the   threat   Modeste   posed   would  



accomplish precisely what we cautioned against in                                                  Mattox.    



                          We need only construe the facts in Jovanov's favor "within the boundaries                                                

                                                     18  and will affirm summary judgment "if the record presents  

of reasonable fact-finding,"                                                                                                                            



no genuine issue of material fact and if the movant is entitled to summary judgment as  

                                                                                                                                                                    

a matter of law."19                    In light of the testimony from Jovanov that DOC had no way of  

                                                                                                                                                                    



knowing  that  Modeste posed  any  danger  to him, and  because neither  Jovanov  nor  

                                                                                                                                                                 



Modeste claimed to  put DOC on  notice of issues between  them,  we conclude that  

                                                                                                                                                                



Jovanov failed to raise a genuine issue of material fact that DOC had reason to suspect  

                                                                                                                                                          



that Modeste posed a risk of harm to Jovanov.  

                                                                         



                          Jovanov also argues that the assault was foreseeable because Modeste was  

                                                                                                                                                                 



convicted  of  manslaughter  and  was  therefore  an  obvious  danger  to  other  inmates,  

                                                                                                                                           



including  Jovanov.                        However,  the  undisputed  affidavit  of  Sergeant  Tom  Elmore  

                                                                                                                                                        



establishes that DOC correctly classified and assigned both Modeste and Jovanov to the  

                                                                                                                                                                  

mod.20           And  again,  the  mere  presence  of  a  dangerous  prisoner  does  not  create  a  

                                                                                                                                                                     

foreseeable risk.21  We hold that the evidence, viewed in the light most favorable to  

                                                                                                                                                                   



Jovanov, does not create a genuine issue of material fact from which a reasonable person  

                                                                                                                                                           



             18           Olson  v.  City  of  Hooper  Bay,  251  P.3d   1024,   1030  n.14  (Alaska  2011).  



             19           Id.  at   1030.  



             20           See  22  Alaska  Administrative  Code  (AAC)  05.200  (2012)  ("[DOC]  will  



assign   a  prisoner  to  the   least  restrictive   custody   level  based   on   an   assessment   of  the  

prisoner's   behavioral   risk   factors,   supervision   needs,   and   rehabilitative   needs   that   is  

consistent  to  provide   for   staff,   inmate,   and  public   safety,   and   is  within  the  resources  

available  to  the  department.").  



             21           See Mattox, 323 P.3d at 29.  

                                                                          



                                                                                -10-                                                                          7199
  


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

might find in Jovanov's favor that the assault was foreseeable.  Because DOC had no  

                                                                                                                                



reason to suspect that Modeste posed a threat to Jovanov, the superior court correctly  

                                                                                                                      



granted summary judgment to DOCon Jovanov's negligenceclaims basedonthealleged  

                                                                                                                         



foreseeability of the threat Modeste posed to Jovanov.  

                                                                     



                              b.	       Any loud argument preceding the assault did not make  

                                                                                                                           

                                        the assault foreseeable.  

                                                                                



                    Jovanov also argues that Modeste's assault was foreseeable because a loud  

                                                                                                                             



argument preceded the assault. Jovanov claims that Officer Robinson should have heard  

                                                                                                                            



the argument and intervened to prevent the assault. Jovanov supports this claim with his  

                                                                                                                                



own assertion that the argument was loud enough to "wake up the mod pretty much," and  

                                                                                                                               



with testimony from another inmate named Jerry Gates that there was "an argument  

                                                                                                                     



going on that should have gotten someone's - at least the guard's attention."  

                                                                                                       



                    In contrast, Modeste testified that the argument was not loud, explaining  

                                                                                                                    



that "there [was] no reason to get loud in the middle of the mod" because he was "not  

                                                                                           



trying to . . . bring attention from other inmates."  And John Bill, Jovanov's cellmate,  

                                                                                                                      



was positioned directly above the telephones; he testified that he saw Jovanov's "head  

                                                                                                                           



swing for the phone on the bottom of the stairs" and that "the only thing that [he] heard  

                                                                                                                           



was  .  .  .  a  loud  clacking  sound."                 Bill  testified  that  he  "didn't  hear  anybody  say  

                                                                                                                              



anything."  



                    But assuming that a loud argument did precede the assault, we conclude  

                                                                                                                      



that such an argument did not render the eventual assault foreseeable. Even if the officer  

                                                                                                                          



could hear the words Modeste said to Jovanov, Modeste never threatened Jovanov or  

                                                                                                                                



implied that he would  harm Jovanov.   And Jovanov fails to demonstrate that loud  

                                                                                                                             



arguments among inmates usually presage a fight.  He provided no evidence on this  

                                                                                                                         



point, admitted that loud arguments are common between prisoners, and acknowledged  

                                                                                                              



that many occur without subsequent violence. A silent video of events tends to supports  

                                                                                                                       



                                                              -11-	                                                        7199
  


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

this admission. The recording shows that Jovanov and Modeste were behind the stairs                                                                                                                                                                                                                                                                                                                                                                                   



 for about a minute before Modeste assaulted Jovanov.                                                                                                                                                                                                                                                                               In the video none of the other                                                                                                                         



inmates looked in Modeste and Jovanov's direction before the assault occurred, but most                                                                                                                                                                                                                                                                                                                                                                                                        



 of the inmates looked in the direction of the assault shortly after Modeste struck Jovanov.                                                                                                                                                                                                                                                                                                                                                                                                                                     



 Given the lack of evidence that loud arguments are an accurate predictor of future                                                                                                                                                                                                                                                                                                                                                                                                  



violence in this context and the evidence that Modeste never threatened Jovanov, we                                                                                                                                                                                                                                                                                                                                                                                                                      



 conclude that DOC would not have been negligent even if Officer Robinson failed to                                                                                                                                                                                                                                                                                                                                                                                                                           



respond to a loud argument between Modeste and Jovanov because any such argument                                                                                                                                                                                                                                                                                                                                                                                   



 did not make the assault foreseeable.                                                                                                                                                                                     



                                                                               2.	                                    Jovanov failed to demonstrate a genuine issue of material fact                                                                                                                                                                                                                                                                                                              

                                                                                                                      as to whether Officer Robinson responded promptly.                                                                                                                                                                                                                         



                                                                               Jovanov also argues that DOC was negligent because Officer Robinson                                                                                                                                                                                                                                                                                                               



 failed to respond promptly to the argument.  However, the video recording shows that                                                                                                                                                                                                                                                



inmates only turned to look at Jovanov and Modeste after the assault occurred; no                                                                                                                                                                                                                                                                                                                                                                                                                         



 attention was paid to the pair during the argument.                                                                                                                                                                                                                                                    Officer Robinson responded within                                                                                                                                            



 five seconds of the assault as it drew his attention and that of most of the inmates.                                                                                                                                                                                                                                                                                                                                                                                                        And  



Jovanov himself testified that he never had time to yell for help or alert Officer Robinson                                                                                                                                                                                                                                                                                                                                                                        



prior to the assault and that there was "no reason to call for help" before the assault.                                                                                                                                                                                                                                                                                                                                                                                                                                         



Jovanov also conceded that Officer Robinson responded very quickly after the assault   

                                       22                Based on the video evidence and Jovanov's testimony, we conclude that no  

began.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     



reasonable person could discern a genuine factual dispute on the issue of whether Officer  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 



Robinson responded promptly to the argument, given the argument did not warrant the  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         



 attention of the inmates or staff, and that when it turned physical, Officer Robinson  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                



                                       22                                     When asked whether he "would agree that Officer Robinson, from this                                                                                                                                                                                                                                                                                                                                                   



point [when the fight started], respond[ed] really exceptionally fast," Jovanov answered:                                                                                                                                                                                                                                                                                                                                                                                                                                        

 "Yes, there is . . . no question about that."                                                                                                                                                                      



                                                                                                                                                                                                                                                   -12-	                                                                                                                                                                                                                                        7199
  


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

responded within five seconds. We therefore uphold the superior court's decision to                                                                                                                                                                                      



 grant DOC's motion for summary judgment on these grounds.                                                                                                               



                                          3.	                  Jovanov's claims regarding DOC's staffing decisions, general                                                                                                                           

                                                               prison overcrowding problems, and DOC's officer placement                                                                                                                    

                                                               decisions do not form a basis for a viable negligence claim.                                                                                                                   



                                          Jovanov next argues that DOC was negligent because inadequate staffing,                                                                                                                                     



 overcrowding, and the layout of the correctional facility played a role in facilitating the                                                                                                                                                                          



 assault.    However, these allegations cannot form the basis for Jovanov's negligence                                                                                                                                                      



 claim because the claim is precluded by the doctrine of discretionary function immunity.                                                                                                                                                       



                                          "Discretionary function immunity 'seeks to ensure that private citizens do                                                                                                                                                    



not interfere with or inhibit the governing process by challenging through private tort                                                                                                                                                                             

 actions basic governmental policy decisions.' "                                                                                                     23                                                                                                             

                                                                                                                                                           Under Alaska's state tort claims act,  



                                                                                                                                                                                                                                                                

the State and its agencies are immune from suit when the plaintiff's claim is "based upon  



                                                                                                                                                                                                                                                      

the exercise or performance or the failure to exercise or perform a discretionary function  



                                                                                                                                                                                                                                                                     

 or duty on the part of a state agency or an employee of the state, whether or not the  



                                                                                                24  

                                                                                                                                                                                                                                                            

 discretion involved is abused."                                                                        In determining whether a particular decision or action  



                                                                                                                                                                                                                                                                    

is immune, "we distinguish between decisions that involve basic planning or policy and  



                                                                                                                                                                                                                                                                     

those that are merely operational in the sense that they implement plans or carry out  



                         25  

policy."                                                                                                                                                                                                                                             

                                        "Planning  decisions  'fall  under  the  exception  because  they  involve  



                                                                                                                                                                                                                                                                         

 formulation of basic policy' including consideration of financial, political, economic, or  



                                                                                                                                                                                                                                                                     

 social effects of the policy.  'Normal day-by-day operations of the government' are not  



                     23                   Steward v. State                                     , 322 P.3d 860, 863 (Alaska 2014) (quoting                                                                                                     Japan Air   



Lines Co. v. State                                      , 628 P.2d 934, 936 (Alaska 1981)).                                                      



                     24                   AS 09.50.250(1).  See also Steward, 322 P.3d at 863.  

                                                                                                                                                                                                    



                     25                   Steward, 322 P.3d at 863 (quoting Guerrero ex rel. Guerrero v. Alaska  

                                                                                                                                                                                                                                                         

Hous. Fin. Corp., 123 P.3d 966, 976 (Alaska 2005)).  

                                                                                                                                                



                                                                                                                                  -13-	                                                                                                                         7199
  


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

planning decisions and are not entitled to immunity under the discretionary function                                                              



                     26  

exception."                                                                                                                                                   

                            "Actions  that  are  operational  in  nature,  and  therefore  not  entitled  to  



                                                                                                                                                    

discretional immunity, are those that involve either no room for discretion or involve  



                                                                                           27  

                                                                                                 

                                                             

only discretion free from policy considerations." 



                         The State does not need to prove that it actually made a considered decision  

                                                                                                                                                   

or policy evaluation for a decision to be immune.28                                                   And "[d]ecisions about how to  

                                                                                                                                                              

allocate  scarce  resources"  are  ordinarily  "immune  from  judicial  review."29                                                                    When  

                                                                                                                                                      



analyzing cases under AS 09.50.250 we recognize that "if decisions require the State to  

                                                                                                                                                               



balance 'the detailed and competing elements of legislative or executive policy,' they  

                                                                                                                                                          

nearly always deserve protection by discretionary function immunity."30  

                                                                                                                



            26           Id . (first quoting               Estate of Arrowwood v. State                             , 894 P.2d 642, 644-45          



(Alaska 1995); then quoting                          State v. Abbott           , 498 P.2d 712, 720 (Alaska 1972)).                                See also   

State, Dep't of Corr. v. Cowles                           , 151 P.3d 353, 358-59 (Alaska 2006).                       



            27           R.E. v. State, 878 P.2d 1341, 1349 (Alaska 1994).  

                                                                                                           



            28           State, Dep't of Transp. &Pub. Facilities v. Sanders, 944 P.2d 453, 458 n.5  

                                                                                                                                                            

(Alaska 1997) (" '[S]ome jurisdictions require that a state or local governmental unit  

                                                                                                                                                          

seeking  to  obtain  the  protection  of  discretionary  function  immunity  show  that  a  

                                                                                                                                                               

considered  policy  evaluation  actually  took  place.'                                              Alaska does not require such  a  

                                                                                                                                                               

showing." (alterations in original) (first quoting 57 AM. JUR. 2d Municipal, County,  

                                                                                                                                                   

School, and State Tort Liability  123 (1988); then citing Indus. Indem. Co. v. State, 669  

                                                                                                                                                           

P.2d 561, 566 n.11 (Alaska 1983))).  

                                                     



            29           Adams v. City of Tenakee Springs , 963 P.2d 1047, 1051 (Alaska 1998). See  

                                                                                                                                                            

also Estate of Arrowwood, 894 P.2d at 646 ("It is well established that both legislative  

                                                                                                                                               

appropriations and executive department budget decisions are discretionary functions  

                                                                                                                                                

immune from judicial inquiry."); Indus. Indem. Co., 669 P.2d at 564-65 ("Decisions  

                                                                                                                                            

regarding the allocation of scarce resources are usually discretionary, and thus immune  

                                                                                                                                                   

from judicial inquiry.").  

                          



            30           Brewer v. State, 341 P.3d 1107, 1121 (Alaska 2014) (quoting Guerrero,  

                                                                                                                                               

                                                                                                                                        (continued...)  



                                                                             -14-                                                                       7199
  


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

                          Prison overcrowding                         is   an   issue that requires prison                            officials to            make  



decisions involving staffing levels, which are discretionary agency matters involving                                                                 



resource allocation.                      In  Adams v. City of Tenakee Springs                                       , Adams sued the city for                     



negligence and the trial court granted the city's motion in limine to exclude evidence of                                                                            

                                        31      We  upheld  the  court's  decision  because  "[s]taffing  a  fire  

inadequate   staffing.                                                                                                                                           



department . . . is fundamentally a matter of resource allocation" and "[d]ecisions about  

                                                                                                                                                              

how to allocate scarce resources are matters of policy immune from judicial review."32  

                                                                                                                                                                          



Likewise, DOC's decisions involving staffing or overcrowding at the prison facility at  

                                                                                                                                                                     



which Modeste and Jovanov were housed are immune from negligence claims under  

                                                                                                                                                             



AS  09.50.250(1)  because  prison  staffing  decisions  are  fundamentally  a  matter  of  

                                                                                                                                                                    



resource allocation.  

                   



                          Discretionary function immunity also applies to Jovanov's claimthat DOC  

                                                                                                                                                               



was negligent in  its placement of the officer's duty  station within the prison  mod.  

                                                                                                                                                                          



Jovanov claims that it was reasonable to foresee that the conditions at the Anchorage  

                                                                                                                                                   



Correctional Complex - an "overcrowded mod," "a 'blind spot' by the phones where  

                                                                                                                                                             



prisoners congregated," and "only one guard who was allowed to use the computer when  

                                                                                                                                                               



the prisoners were out of their cells" - would increase the likelihood that "an inmate  

                                                                                                                                                           



would take advantage of that to assault another inmate." But the position of the desk and  

                                                                                                                                                                  



the decision regarding the number of correctional officers to be assigned to a mod are  

                                                                                                                                                        



"scarce resource" decisions related to staffing and internal prison security.  DOC was  

                                                                                                                                                                 



entitled to position the desk based on the scarceness of personnel resources and the need  

                                                                                                                                                                



             30(...continued)  



                        

 123 P.3d at 977).  



             31           963 P.2d at 1049.       



             32           Id . at 1051.     



                                                                                -15-                                                                           7199
  


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

to maximize the officer's ability to observe the inmates in the mod.                                                                                                                                                                 Therefore, DOC is                                           



immune from Jovanov's negligence claims involving the positioning of the officer's                                                                                                                                                                                       



desk.  



                                              The superior court properly granted summary judgment in favor of DOC                                                                                                                                     



on Jovanov's claims regarding staffing and the position of the officer's desk. These                                                                                                                                                                                              



decisions   involve   policy   considerations   based   on   resource   allocation,   and   DOC's  



decisions on such matters are immune under the doctrine of discretionary function                                                                                                                                                                                        



immunity.   



                       B.	                    We Remand For The Superior Court To Consider Whether DOC Was                                                                                                                                                                             

                                              Entitled    To    Summary    Judgment    On    Its    Counterclaim    Against  

                                              Jovanov   For   The   Cost   Of   Medical   Care   Provided   To   Him   While  

                                              Incarcerated.  



                                              Jovanov argues that he should not be responsible for his medical costs                                                                                                                                                                



related to Modeste's assault for several reasons.  He first argues that DOC failed to help  

                                                                                                                                                                                                                                                                                        



him obtain medical insurance.  Jovanov failed to preserve this argument on appeal, so  

we do not consider it.33  

                                                                                  



                                                                                                                                                                                                                                                                            

                                              Jovanov also argues that DOC should have provided him with his medical  



                                                                                                                                                                                                                                                                                          

billing slips, which would have permitted him to assess the accuracy of the billings. But  



                                                                                                                                                                                                                                                                                         

DOC provided him with a complete copy of his medical records during discovery as well  



                                                                                                                                                                                                                                                                                        

as a complete roster of each bill DOC paid, he conceded that all of the medical care  



                                                                                                                                                                                                                                                                            

provided to him by DOC was "probably necessary," and he fails to point to any specific  



                       33                    See   Harvey   v.   Cook,   172   P.3d   794,   802   (Alaska   2007)   ("[I]ssues   not  



properly raised in the trial court will not ordinarily be considered on appeal."). Jovanov                                                                                                                                                                                

fails to demonstrate that DOC had a duty to help him obtain medical insurance in the                                                                                                                                                                                                        

relevant time period. We note, however, that AS 33.30.028 was amended in 2016 to give                                                                                                                                                                                                    

DOC a statutory duty to apply for medical assistance on behalf of prisoners who require                                                                                                                                                                                        

certain outside healthcare.                                                                Ch. 25, 35, SLA 2016; AS 33.30.028(c)-(d).                                                     



                                                                                                                                             -16-	                                                                                                                                    7199
  


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

 inaccuracies in the documents.                                          Thus, he fails to set forth evidence demonstrating that                                                             



                                                                                                                                                                     34  

 there was a genuine issue of material fact related to his medical billings.                                                                                               



                               Jovanov argues further that DOCshould assess thecostsof his medical care  

                                                                                                                                                                                             



 solely against Modeste, asking us to extend an equitable principle he finds in Smith v.  

                                                                                                                                                                                                  



State, Department of Corrections to conclude that Modeste's criminal conviction for the  

                                                                                                                                                                                                



 assault makes Modeste liable for Jovanov's health care costs and bars DOC fromseeking  

                                                                                                                                                                                     

reimbursement fromhim.35  But in our unpublished decision in Smith, we permitted DOC  

                                                                                                                                                                                           



 to  order  an  assailant  to  pay  medical  expenses  for  the  victim because  "interpreting  

                                                                                                                                                                        



AS 33.30.011 to allow DOC to order restitution for injuries caused by a prisoner [was]  

                                                                                                                                                                                          



                                                                                                                                              36  

 'reasonably necessary' to carry out the goals of the statute."                                                                                      Needless to say, this  

                                                                                                                                                                                             



unpublished decision did not create legal precedent, and even if it did, we permitted  

                                                                                                                                                                                



rather than required DOC to pursue reimbursement from an assailant for a victim in that  

                                                                                                                                                                                              

 case.37            Given  the flexibility we afforded DOC in Smith, we decline to extend any  

                                                                                                                                                                                             



 equitable principle there may have been in Smith to require that DOC collect medical  

                                                                                                                                                                                    



 costs from Jovanov's assailant rather than from Jovanov.  

                                                                                                                                      



                34             See Burnett v. Covell                            , 191 P.3d 985, 990 (Alaska 2008) ("When a party                                                         



 seeking summary judgment argues that there are no genuine issues of material fact in                                                                                                            

 dispute,    the    adverse    party    must    produce    admissible    evidence    that    reasonably  

 demonstrates that a triable issue of fact exists.");                                                            Martech Constr. Co. v. Ogden Envtl.   

Servs., Inc.              , 852 P.2d 1146, 1149-50 n.7 (Alaska 1993) ("To defeat a motion of summary                                                                             

judgment an adverse party may not rest upon mere allegations, but must set forth specific                                                                                            

 facts showing that there is a genuine issue of material fact.").                                                            



                35             Smith v. State, Dep't of Corr., No. S-14034, 2012 WL 3870826 (Alaska  

                                                                                                                                                                                    

 Sept. 5, 2012).  

                    



                36             Id .  at *4  (quoting  Wilson  v. State,  Dep't of Corr.,  127  P.3d  826,  829  

                                                                                                                                                                                             

 (Alaska 2006)).  

                                       



                37             See id.  

                                                



                                                                                               -17-                                                                                       7199
  


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

                         Jovanov   also   questions   his   legal   liability   for   the   cost   of   medical   care  



received while incarcerated.                           The superior court relied on AS 33.30.028 to conclude that,                                          



as a matter of law, DOC was entitled to be reimbursed for medical costs it paid on                                                                             



Jovanov's behalf.                    Jovanov argues that under the statute and our decision in                                                           State,  



Department of Corrections v.                           Hendricks-Pearce  (Hendricks-PearceI  ),indigentprisoners                                    

                                                                                              38   Jovanov proposes that we remand  

are not required to pay their full health care costs.                                                                                                 



the issue of his liability for medical costs and require the superior court to conduct a  

                                                                                                                                                                  



hearing on his ability to pay.  DOC supports the superior court's position, arguing that  

                                                                                                                                                             



AS 33.30.028 and DOC regulations allow DOC to charge prisoners for the full cost of  

                                                                                                                                                                



healthcare services provided by health care providers other than department employees  

                                                                                                                                                



resulting from an assault.  

                                   



                         "A prisoner will be provided medically necessary health care services  

                                                                                                                                                    



regardless of the prisoner's ability to pay or arrange for payment or coverage for the  

                                                                                                                                                              

                   39  Nevertheless, AS 33.30.028 outlines a prisoner's financial responsibility for  

services."                                                                                                                                                     



the costs of these services:  

                                   



                         (a) Notwithstanding any other provision of law, the liability  

                                                                                                                            

                         for  payment  of  the  costs  of  medical,  psychological,  and  

                                                                                                                                   

                         psychiatric care provided or made available to a prisoner  

                                                                                                                           

                         committed to the custody of the commissioner is, subject  

                                                                                                                             

                         to (b) of this section, the responsibility of the prisoner and the  

                                                                                                                                      



                                      (1) prisoner's insurer if the prisoner is insured under  

                                                                                                                                

                         existing individual health insurance, group health insurance,  

                                                                                                                        

                         or any prepaid medical coverage;  

                                                                       



                                      (2) Department of Health and Social Services if the  

                                                                                                                                     

                         prisoner  is  eligible  for  assistance  under  AS  47.07  or  AS  

                                                                                                                                    

                         47.25.120-47.25.300;  



             38          254  P.3d   1088  (Alaska  2011).  



             39          22  AAC  05.121(a)  (2017).  



                                                                              -18-                                                                        7199  


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

                                                              (3)  United States Department of Veterans Affairs if the                                                                                                  

                                         prisoner   is   eligible   for   veterans'   benefits   that   entitle   the  

                                         prisoner to reimbursement for the medical care or medical                                                                                                        

                                          services;  



                                                              (4)   United States Public Health Service, the Indian                                                                                           

                                         Health  Service,   or   any   affiliated   group   or   agency   if   the  

                                         prisoner is a Native American and is entitled to medical care                                                                                                                

                                          from those agencies or groups; and                                                               



                                                              (5)  parent or guardian of the prisoner if the prisoner is                                                                                                      

                                         under the age of 18.                                 



                                          (b)  The commissioner shall require prisoners who are without resources                                                                                                                              

                                         under (a) of this section to pay the costs of medical, psychological, and                                                                                                                                               

                                         psychiatric care provided to them by the department. At a minimum, the                                                                                                                                                   

                                         prisoner shall be required to pay a portion of the costs based upon the                                                                                                                                                  

                                         prisoner's ability to pay.                                     



                                          In   Hendricks-Pearce   I   the   issue   was   whether   the   State   may   seek  

                                                                                                                                                                                                                                 40  Wedecided  

post-releasereimbursement ofmedicalcostsincurredduringincarceration.                                                                                                                                                                                 



that the State could seek post-release reimbursement, and we remanded the case for  

                                                                                                                                                                                                                                                                   



further proceedings regarding the second question at issue in Hendricks-Pearce I -  

                                                                                                                                                                                                                                                                  



whether AS33.30.028permitsreimbursement for aprisoner's outsidemedical carewhen  

                                                                                                                                                                                                                                                            



the prisoner does not have any of the funding sources identified in AS 33.30.028(a), such  

                                                                                                                                                                                                                                                               

as insurance or state aid.41                                                           We ultimately addressed that question on an appeal from  

                                                                                                                                                                                                                                                             



remand in Hendricks-Pearce II, but this court was evenly divided with one justice not  

                                                                                                                                                               



                     40                   254 P.3d at 1089.                    



                     41                  Id . at 1093.     



                                                                                                                                -19-                                                                                                                                      7199  


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

                                                                                                               42  

participating, and we failed to reach a majority consensus.                                                         As a result, the decision had                  



                                                                                                                                                                      43  

the effect of affirming the superior court's decision, but has no legal precedential value.                                                                                



                          But we need not reach the extent of Jovanov's financial responsibility for  

                                                                                                                                                                    



his medical care while in prison or any potential hearing requirement on his ability to pay  

                                                                                                                                                                   



under  AS  33.30.028  because  the  superior  court  erred  by  granting  DOC  summary  

                                                                                                                                                       



judgment on its counterclaim for medical costs sua sponte.   DOC filed a motion for  

                                                                                                                                                                    



 summary judgment in October 2013, but the substance of the motion dealt exclusively  

                                                                                                                                                    



with the negligence claims against DOC and concluded with "all of plaintiff's claims  

                                                                                                                                                             



 against the State of Alaska Department of Corrections . . . should be dismissed."  It did  

                                                                                                                                                                    



not use the word "counterclaim" once or discuss medical costs. Subsequent memoranda  

                                                                                                                                                   



 from both parties addressed only the negligence claims.  It was not until oral argument  

                                                                                                                                                       



 on DOC's motion that the court and Jovanov briefly discussed Jovanov's need to show  

                                                                                                                                                                



 damages,   including   the   cost   of   medical   care,   and   DOC's   counterclaim   for  

                                                                                                                                                                  



reimbursement.  



                          A week later, the superior court issued its order on the summary judgment  

                                                                                                                                                        



motions.  In the introduction to its order the court stated, "[DOC] moves for summary  

                                                                                 



judgment asking that the court find, as a matter of law, that the State was not responsible  

                                                                                                                                                    



 for the assault and that Jovanov's claims against DOC therefore should[] be dismissed.  

                                                                                                                                                                           



             42           Hendricks-Pearce v. State, Dep't of Corr.                                        (Hendricks-Pearce II                     ), 323 P.3d     



 30, 38-39 (Alaska 2014) (plurality opinion).                                             



             43           See Alaska R. App. P. 106(a) ("In an appeal to the supreme court, any issue  

                                                                                                                                                                 

 or point on appeal on which the justices are equally divided is affirmed in that appeal,  

                                                                                                                                                  

but the issue or point decided by an equally divided court shall not have precedential  

 effect.").  



                                                                                 -20-                                                                           7199
  


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

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 44  

The State also seeks summary judgment as to its counterclaim against Jovanov."                                                                                                                                                                                                                                                                                                                                                                                                              The  



 court granted "DOC's Motion on its Counterclaim" but ruled that "DOC will still need                                                                                                                                                                                                                                                                                                                                                                                                     



to prove the exact amount of such expenses."                                                                                                                                                                                                                          The court granted summary judgment on                                                                                                                                                                                            



the counterclaim despite the fact that none of the motion practice up to this point had                                                                                                                                                                                                                                                                                                                                                                      



 addressed DOC's counterclaim.                                                                           



                                                                              DOC then filed a memorandum in support of its counterclaim for medical                                                                                                                                                                                                                                                                                                                    



 costs as the court had ordered.                                                                                                                                                In its memorandum, DOC noted that it had been granted                                                                                                                                                                                                                                     



 summary   judgment   on  its   counterclaim and                                                                                                                                                                                                                             "request[ed] a                                                                                judgment   that   requires  



Jovanov to reimburse the State for $119,051.15 that was paid for his medical costs."                                                                                                                                                                                                                                                                                                                                                                                                                     It  



included an accompanying affidavit and roster of medical bills paid on Jovanov's behalf.                                                                                                                                                                                                                                                                                                                                                                                                                                    



Two weeks later, Jovanov filed an opposition to the entry of final judgment for medical                                                                                                                                                                                                                                                                                                                                                                                 



 expenses.   In his opposition he argued that he needed medical records supporting each                                                                                                                                                                                                                                                                                                                                                                                                   



bill in the DOC's supporting affidavit as well as a statement from a medical expert.                                                                                                                                                                                                                                                                                                                                                                                                             He  



 also addressed the underlying legal basis for DOC's counterclaim, arguing that in light                                                                                                                                                                                                                                                                                                                                                                                                   



 of  Hendricks-Pierce II                                                                                                            , his lack of money, his status as the victim of a crime rather than                                                                                                                                                                                                                                                                                     



the perpetrator, and principles of equity, the court "should                                                                                                                                                                                                                                                                                only  enter a judgment against                                                                                                   



Modeste."   (Emphasis in original.)                                                                                                                                                                        He also requested oral argument.                                                                                                          



                                                                              DOC filed a reply, arguing that Jovanov's opposition should be treated as                                                                                                                                                                                                                                                                                                                                                   



 a motion for reconsideration of the grant of summary judgment on its counterclaim for                                                                                                                                                                                                                                                                                                                                                                                                              



medical expenses;                                                                                           DOC's reply also addressed the factual accuracy of the medical bills                                                                                                                                                                                                                                                                                                             



 and pointed out that Jovanov had already been provided his medical records. In addition,                                                                                                                                                                                                                                                                                                                                                                          



DOC argued that the plain language of AS 33.30.028 makes Jovanov liable for medical                                                                                                                                                                                                                                                                                                                                                                                     



 care provided or made available to him while committed to the custody of DOC.                                                                                                                                                                                                                                                                                                                                                                   



                                       44  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

                                                                              This was error, as DOC had not moved for summary judgment on its  

                                                                                                                                                                                                                                                               

 counterclaim for reimbursement of medical costs.  



                                                                                                                                                                                                                                                -21-                                                                                                                                                                                                                                                                  7199  


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

                                    The superior court issued an order finding that there was "no genuine issue                                                                                                           



 of material fact, that DOC incurred medical expenses . . . in the amount of $119,051.15"                                                                                                          



 and that "pursuant to AS 33.30.028 the State of Alaska is entitled as a matter of law to                                                                                                                                         



 reimbursement."     On   the   same   day   it  entered   a   final   judgment   incorporating   its  



 conclusion.   It made no mention of Jovanov's request for oral argument.                                                                                                                           



                                    We have reversed a superior court's sua sponte grant of summary judgment                                                                                                   



 on more than one occasion.                                                In  Kentopp v. Anchorage                                            , we addressed whether summary                                  



judgment had been properly granted to Anchorage on claims alleging it had violated its                                                                                                                                           

                                                                                                                                                                 45      The superior court had  

 charter in establishing municipal assembly voting districts.                                                                                                                                                                



 granted summary judgment on all issues related to this claim, but also considered sua  

                                                                                                                                                                                                                              



 sponte the question of malapportionment under a new reapportionment plan the city had  

                                                                                                                                                                                                                              

                       46  We concluded "that the superior court erred in considering sua sponte the  

 adopted.                                                                                                                                                                                                                      



 question of malapportionment under the reapportionment plan" and that "[a]pplication  

                                                                                                                                                                                                  



 of this settled rule is particularly appropriate in the present case because Anchorage must  

                                                                                                                                                                                                                           

 be afforded an opportunity to offer a justification for [the plan]."47  

                                                                                                                                                           



                                    Similarly, in   Demmert v. Kootznoowoo, we vacated a decision where  

                                                                                                                                                                                                                      



 "[p]laintiffs were not given notice and a reasonable opportunity to oppose [a] motion [for  

                                                                                                                                                                                                                              



 summaryjudgment]as amotion for summaryjudgment"becausetheybelieved what was  

                                                                                                                                                                                                                              



 at issue was a judgment on the pleadings and had no reason to know the superior court  

                                                                                                                                                                                                                          

 would convert the motion.48   In addition, we stated that "it [was] inappropriate to require  

                                                                                                                                                                                                                     



 a detailed showing of prejudice from a party who has not had a reasonable opportunity  

                                                                                                                                                                                                        



                  45                652 P.2d 453, 454 (Alaska 1982).                                         



                  46  

                                                    

                                    Id. at 457.  



                  47  

                                                    

                                    Id. at 464.  



                  48  

                                                                                                                                                                                     

                                    960 P.2d 606, 611 (Alaska 1998) (emphasis omitted).  



                                                                                                               -22-                                                                                                       7199
  


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

                                                                                                                                                       49  

to oppose a motion for summary judgment, whether converted or original."                                                                                     And  



Alaska Civil Rule 77 provides a party opposing summary judgment the right of oral                                                                              



                    50  

                                                                                                                                                        

argument,              but Jovanov's request for oral argument on DOC's counterclaimfor medical  



                                                 

costs was not addressed.  



                                                                                                                                                             

                          We recognize that the exchange of motions and the subsequent court order  



                                                                                                                                                                   

following the court's sua sponte decision demonstrate that Jovanov was at least able to  



                                                                                                                                                

make legal arguments as to his liability for medical bills incurred while in prison.  But  



                                                                                                                                                                

forcinghimtoargue against a summary judgment already granted, rather than givinghim  



                                                                                                                                                                

the opportunity to oppose a motion for summary judgment that was properly filed, was  



                                                                                                                                                                

almost  certainly  prejudicial  from a  practical  perspective,  even  considering  that  the  



                                                                                                                                                                

superior court invoked the summary judgment standard in its order, rather than the  



                                                                                                                                                      

standard for reconsideration.  Had the counterclaim against Jovanov not been disposed  



                                                                                                                                                                

of sua sponte, it is possible that more substantive arguments regarding AS 33.30.028 and  



                                                                                                                                                      

whether it made Jovanov liable for medical care received in prison would have surfaced,  



                                                                                                                                              

that factual questions as to whether Jovanov had the resources listed in AS 33.30.028(a)  



                                                                                                                                                              

would have been addressed, and that the question of Jovanov's ability to pay would have  



                     

emerged.  



                                                                                                                                                     

                          Given that "it is inappropriate to require a detailed showing of prejudice  



                                                                                                                                                     

from a party who has not had a reasonable opportunity to oppose a motion for summary  



             49           Id.  at 612;       see also State, Dep't of Revenue, Child Support Enf't Div., ex rel.                                                 



Hawthorne v. Rios                   , 938 P.2d 1013, 1016 (Alaska 1997).                                       



             50           See Alaska R. Civ. P. 77(c), (e); see also Shooshanian v. Wagner, 672 P.2d  

                                                                                                                                                               

455,  460-61  (Alaska  1983)  (declining  to  "review  the  superior  court's  sua  sponte  

                                                                                                                                                         

dismissal as a motion for summary judgment because [appellants] did not have sufficient  

                                                                                                                                                     

notice or an adequate opportunity to respond" under Civil Rules 77(c) and (e)).  

                                                                                                                                                 



                                                                               -23-                                                                          7199
  


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

                                                                                            51  

judgment, whether converted or original,"                                                       given that a significantly related legal issue                                      



was unresolved in Alaska law when this court was unable to reach a consensus in                                                                                                          



Hendricks-Pierce II                         , and given that the parties dedicated relatively little attention to this                                                                 



 issue both below and on appeal, we reverse the superior court's grant of summary                                                                                        



judgment on DOC's counterclaim and remand for further proceedings to ensure that                                                                                                      

 Jovanov is afforded a reasonable opportunity to oppose any summary judgment motion                                                                                                       52  



 and to have the benefit of a fully developed record and more robust briefing should this  

                                                                                                                                                                                       



 case be appealed once again.  

                                                   



                              Wealso notethatthe superior court granted Jovanov's motionfor summary  

                                                                                                                                                                           



judgment on his claim against Modeste, finding that "Modeste's plea [in his criminal  

                                                                                                                                                                            



 case] establishes his liability for any damages caused by his reckless endangerment," but  

                                                                                                                                                                                        



 it also explained that "Jovanov will still need to prove at trial what his damages are and  

                                                                                                                                                                                       



that Modeste's actions caused such damages." The court later determined that "pursuant  

                                                                                                                                                                         



to AS 33.30.028 the State of Alaska is entitled as a matter of law to reimbursement  

                                                                                                                                                             



 from . . . Jovanov for $119,051.15,"  and entered a final judgment to that effect.  DOC  

                                                                                                                                                                                  



 failed to request, and the superior court did not on its own motion grant, a partial final  

                                                                                                                                  

judgment under Alaska Civil Rule 54(b). 53                                                        Perhaps the court assumed that DOC was  

                                                                                                                                                                                      



               51            Demmert, 960 P.2d at 612.                                      



               52             On remand, if DOC intends to pursue its counterclaim for reimbursement  

                                                                                                                                                              

 of medical expenses, it must either file a motion for summary judgment or proceed to  

                                                                                                                                                                                          

trial on this issue.  

                           



               53             Alaska R. Civ. P. 54(b) ("When more than one claim for relief is presented  

                                                                                                                                                                          

 in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when  

                                                                                                                                                                                   

multiple parties are involved, the court may direct the entry of a final judgment as to one  

                                                                                                                                                                                       

 or more but fewer than all of the claims or parties only upon an express determination  

                                                                                                                                       

that there is no just reason for delay and upon an express direction for the entry of  

                                                                                                                                                                                         

                                                                                                                                                                 (continued...)  



                                                                                           -24-                                                                                    7199
  


----------------------- Page 25-----------------------

 entitled to a final judgment under AS 33.30.028 and that a Rule 54(b) finding and order                                                                                  



were unnecessary.  None of the parties raised this issue, and we are not called upon to   



 address it.             



                            "We review matters that were not raised below and not listed in a statement                                                          



 of points on appeal for plain error. Plain error exists where 'an obvious mistake has been                                                                                 

                                                                                                                                54  From the record before  

made which creates a likelihood that injustice has resulted.' "                                                                                                         



us we conclude that Jovanov's claim against Modeste is still live, the superior court has  

                                                                                                                                                                               



not completely resolved Jovanov's remaining negligence claim against Modeste, and it  

                                                                                                                                                                                   



was plain error to issue a complete judgment in DOC's favor in the absence of a Rule  

                                                                                                                                                                           



 54(b) determination.  

              



                            Though the court granted summary judgment against Modeste on liability,  

                                                                                                                                                                    



 it indicated a trial would be necessary to determine causation and damages. If on remand  

                                                                                                                                                                      



the superior court determines that DOC is still entitled to summary judgment on its  

                                                                                                                                                                                



 counterclaim against Jovanov for medical costs, Jovanov may seek reimbursement of  

                                                                                                                                                                                 



these costs and any other damages he can prove from Modeste in the superior court.  If  

                                                                                                                                                                                  



the superior court concludes on remand that DOC is not entitled to summary judgment  

                                                                                                                                                                  



 on its counterclaim, Jovanov may still pursue his negligence claim against Modeste, but  

                                                                                                                                                                               



              53(...continued)  



                                                                                                                                                               

judgment. In the absence of such determination and direction, any order or other form  

                                                                                                                                                                               

 of decision, however designated, which adjudicates fewer than all of the claims or the  

                                                                                                                                                                              

rights and liabilities of fewer than all the parties shall not terminate the action as to any  

                                                                                                                                                                                  

 of the claims or parties, and the order or other form of decision is subject to revision at  

                                                                                                                                                                

 any time before the entry of judgment adjudicating all the claims and the rights and  

                                          

 liabilities of all the parties.").  



              54            Laughlin                v.       Laughlin,                 229          P.3d           1002,            1005            (Alaska              2010)  

                                                                                                                                                                      

 (footnote omitted) (quoting In re Estate of Fields, 219 P.3d 995, 1011 (Alaska 2009)).  

                                                                                                                                                                      



                                                                                       -25-                                                                                7199
  


----------------------- Page 26-----------------------

 the court will have to take into account what amount of Jovanov's medical costs were                                                                                                                                                                                                 



 paid for by DOC rather than Jovanov.                                                              



                        C.                    Jovanov Had Notice That He Could Be Responsible For Medical Costs                                                                                                                                                                    

                                              Incurred While In Prison, And DOC Did Not Seek Costs To Curtail                                                                                                                                                               

                                              Access To The Courts.                                                                



                                              Jovanov briefly makes two additional constitutional arguments.                                                                                                                                                             First, he   



 asserts that there is no "notice that DOC will not cover necessary medical costs" when                                                                                                                                                                                             



 inmates enter prison and questions whether this complies with due process.                                                                                                                                                                                        However,  



 the language of AS 33.30.028, establishing Jovanov's potential financial responsibility                                                                                                                                                                 



 for medical care, provides adequate notice.                                                                                                          And "it is axiomatic that ignorance of the                                                                                            



                                                                                                                                                                                                55  

 law is no excuse, except in very limited circumstances."                                                                                                                                               



                                               Second, Jovanov argues that "only those that sue DOC get charged for  

                                                                                                                                                                                                                                                                                            



 outside medical care."  A claim that DOC only seeks costs from inmates who sue DOC  

                                                                                                                                                                                                                                                                                     



 is troubling in light of "[a]n inmate's right to be free of state interference with his right  

                                                                                                                                                                                                                                                                                      

 of  access  to  the  court  system."56  

                                                                                                                                                                                                                                                                      

                                                                                                                                      But  Jovanov  fails  to  identify  any  evidence  



                                                                                                                                                                                                                                                                                        

 demonstrating that DOC was seeking to deter him from accessing the courts other than  



                                                                                                                                                                                                                                                                     

 the counterclaim itself.  DOC's counterclaim could just as easily have been motivated  



                                                                                                                                                                                                                                                                          

 by a desire to preserve its statutory right to deduct medical expenses from any eventual  



                                                                                                                                                                                                                                                                                               

judgment  entered  against it on  Jovanov's negligence claim, rather  than  a desire to  

                                                                                                                                                                                         57         We conclude that Jovanov's  

                                                                                                                                                                                                                                                                   

 impermissibly curtail prisoners' access to the courts. 



 additional constitutional arguments are currently without merit.  

                                                                                                                                                                                                                            



                       55                     Holmes v. Wolf                                       , 243 P.3d 584, 600 (Alaska 2010).                                                               



                       56                     See, e.g.                    ,  Mathis v. Sauser                                          , 942 P.2d 1117, 1120-23 (Alaska 1997).                                                                              



                       57                     See Hendricks-Pearce II                                                             , 323 P.3d 30, 32 (Alaska 2014).                                                         



                                                                                                                                             -26-                                                                                                                                     7199
  


----------------------- Page 27-----------------------

 V.                        CONCLUSION  



                                                    We AFFIRM the superior court's grant of summary judgment in favor of                                                                                                                                                                                                            



 DOC on Jovanov's negligence claims.                                                                                                                       We REVERSE the court's grant of summary                                                                                                      



judgment  in  favor  of  DOC on                                                                                             its  counterclaim against                                                                         Jovanov  for  medical  costs,  



 VACATE   the   judgment   for   medical   costs,   and   REMAND   for   further   proceedings  



 consistent with this opinion.                                                                                 We also REMAND for further proceedings on Jovanov's                                                                                                                                   



 negligence claim against Modeste so that Jovanov may seek to prove any damages                                                                                                                                                                                                                          



 caused by Modeste.                        



                                                                                                                                                               -27-                                                                                                                                                       7199
  

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