Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Adam Israel v State of Alaska, Department of Corrections (3/20/2020) sp-7432

Adam Israel v State of Alaska, Department of Corrections (3/20/2020) sp-7432

           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                                       



ADAM  ISRAEL,                                                        )  

                                                                     )      Supreme  Court  No.  S-16990  

                                Appellant,                           )  

                                                                                                                                      

                                                                     )      Superior Court No. 3AN-14-11063 CI  

           v.                                                        )  

                                                                                                

                                                                     )     O P I N I O N  

                                       

STATE OF ALASKA, DEPARTMENT                                          )
  

       

OF CORRECTIONS,                                                      )                                           

                                                                           No. 7432 - March 20, 2020
  

                                                                     )  

                                Appellee.                            )  

                                                                     )  



                                                                                                              

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

                                                                                                                 

                      Judicial District, Anchorage, Frank A. Pfiffner, Judge.  



                                                                                                               

                      Appearances: Adam Israel, pro se, Seward, Appellant. Mark  

                                                                                                                    

                      Cucci, Assistant Attorney General, Anchorage, and Kevin G.  

                                                                                                          

                      Clarkson, Attorney General, Juneau, for Appellee.  



                                                                                                                

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

                                                                                       

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



                                           

                      STOWERS, Justice.  



I.         INTRODUCTION  



                                                                                                                                 

                      Psychiatrists employed by the Alaska Department of Corrections (DOC)  



                                                                                                                      

diagnosed an inmate with paranoid schizophrenia.  The inmate disputes his diagnosis,  



                                                                                                                                         

contending that his claimed rare genetic ability to see the electro-magnetic radiation of  



                                                                                                                          

poltergeists is misunderstood as a delusion.  The inmate brought a medical malpractice  



                                                                                                                                      

action  against  the  psychiatrists  and  DOC  seeking  rescission  of  his  diagnosis  and  


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

damages.   DOC filed a motion for summary judgment supported by an affidavit from                                                                                                                                                                                                             



DOC's   chief   medical   officer.     The   affidavit   confirmed   the   inmate's  diagnosis   and  



asserted that the inmate received treatment consistent with his diagnosis. After notifying                                                                                                                                                                                     



the inmate that he needed expert testimony to oppose the motion for summary judgment,                                                                                                                                                                                       



the superior court granted DOC's summary judgment motion because the inmate failed                                                                                                                                                                                                         



to provide expert testimony to rebut DOC's evidence.                                                                                                       



                                               The inmate appeals, arguing that DOC's medical director was not qualified                                                                                                                                                        



to testify about the standard of care under AS 09.20.185.                                                                                                                                                 We do not resolve this issue             



because the inmate failed to create a genuine issue of material fact about the correctness                                                                                                                                                                              



of his diagnosis.                                          We affirm the superior court's grant of summary judgment.                                                                                                                                                            We also   



reject the inmate's other arguments on appeal.                                                                                           



II.                     FACTS AND PROCEEDINGS                              



                       A.                      Facts  



                                               Adam Israel has been an inmate in DOC custody since January 2005.                                                                                                                                                                                   He  



was convicted of second-degree murder for stabbing and killing his mother, and he was                                                                                                                                                                                                            



                                                                                                                                                                                                                              1  

                                                                                                                                                                                                                                      For over three years,  

sentenced to 60 years' imprisonment with 20 years suspended.                                                                                                                                                                                                                              



Israel was incarcerated in Colorado in a correctional facility under contract with DOC.  

                                                                                                                                                                                                                                                                                                                  



When  he  returned  to  Alaska  in  May  2013  he  did  so  with  a  diagnosis  of paranoid  

                                                                                                                                                                                                                                                                              



schizophrenia.  Dr. William Worrall, a psychiatrist employed by DOC, also diagnosed  

                                                                                                                                                                                                                                                                           



Israel with paranoid schizophrenia.  DOC placed Israel in a facility for inmates with  

                                                                                                                                                                                                                                                                



mental health issues.  Israel's issues stem from two sets of beliefs.  The superior court  

                                                                                                                                                                       



summarized one of them:  

                                                                     



                                               [Israel]  testified  that  [members  of]  his  extended  family,  

                                                                                                                                                                                                                                     

                                               perhaps including comedian Steve Martin, are involved in a  

                                                                                                                                                                                                                                                            



                        1  

                                                                                                                                                                                                                                                                                            

                                              Israel v. State,  No.  A-9928, 2011  WL  12710297,  at *1  (Alaska App.  

                               

June 29, 2011).  



                                                                                                                                                   -2-                                                                                                                                                      7432  


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

                                                  conspiracy   to   keep   him   in   prison   by   bribing   or   coercing  

                                                  [DOC]   personnel   including   the   [defendant]   doctors.     He  

                                                 testified that his family does this to discredit him and keep                                                                                                                                               

                                                 him   in   prison  in  order   to   prevent   him   from   testifying   to  

                                                 murders and rapes committed by his family. He testified that                                                                                                                                                     

                                                  family   members   have   told  him   that   they   bribed   [DOC]  

                                                  employees including Dr. Worrall.                                                             



Israel believes DOC staff are involved in this conspiracy, and he is sometimes hostile                                                                                                                                                                                                                 



toward them.                                       



                                                  Israel's second set of beliefs is central to the dispute in this case:                                                                                                                                                                                            he  



contends there is "inbreeding" among his family and as a result he has a rare genetic trait                                                                                                                                                                                                                       



affecting his eyes that enables him to see poltergeists. In an April 21, 2016 hearing Israel                                                                                                                                                                                                                



stated:  



                                                  I'm able to see electro-magnetic radiation at a very low level,                                                                                                                                          

                                                  and that's a result of a defect in the pigment epithelium of my                                                                                                                                                   

                                                  eye, and there's a dystrophied stroma in the iris.                                                                                                                                    What that   

                                                  does   is   it   makes   my   eyes   more   susceptible   to   sensitivity  

                                                 toward the light.                                                Now, poltergeists are essentially plasma.                                                                                                                        

                                                 When you stop breathing, the ions in your atoms - and                                                                                                                                                          

                                                 there's   roughly   10,000   atoms   in   a   single   cell   -   remain  

                                                 magnetically charged, and they're bonded together still.                                                                                                                                                          So  

                                                 the direct current from the earth is, it repels the light-charged                                                                                                            

                                                 particles from your body and essentially excretes them, and   

                                                 they are absorbed into the gaseous air, becoming plasma.                                                                                                                                                           So  

                                                  as a result of that, there is like a prismatic effect.  You have   

                                                 thesecharged particles withintheoxygenmolecules, nitrogen                                                                                                                                       

                                                 molecules,   and   I'm able                                                                      to   see   - even                                            though   it's   very  

                                                  low-energy photons - I can see them.                                                                                                            [2]  



Israel asserts that "any respected physician knows thisphenomenon" exists, and he faults  

                                                                                                                                                                                                                                                                                                             



Dr. Worrall for diagnosing him with paranoid schizophrenia without allowing Israel to  

                                                                                                                                                                                                                                                                                                                         



                         2  

                                                  Israel also claims that former British Prime Minister David Cameron is his  

                                                                                                                                                                                                                                                                                                                      

"third cousin, once removed" and shares the trait.  

                                                                                                                                                                       



                                                                                                                                                           -3-                                                                                                                                                 7432  


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

demonstrate his rare retinal trait.  Israel proposed to prove that he can see poltergeists:                                                                                                                                                                                                                                                                           



"To perform a demonstration, insects are secured in jars containing ethanol, and their                                                                                                                                                                                                                                                        



corpses are then removed. Israel can then identify from the seemingly empty jars which                                                                                                                                                                                                                                                   



 species of insects had been contained therein, with no prior knowledge of which insects                                                                                                                                                                                                                                              



had been selected for exhibition."                                                       



                           B.                          Proceedings  



                                                       1.                         Background and early proceedings                                                                    



                                                       In October 2014 Israel, representing himself, filed a complaint for medical                                                                                                                                                                                                



malpractice in the superior court.                                                                                                              He named as defendants DOC, Dr. Worrall, and                                                                                                                                                     



Dr.   Dwight   Stallman,   another   DOC   psychiatrist.     Israel   claimed   the   psychiatrists  



"fraudulently   misdiagnosed   [him]   with   a   severe   mental   illness"   due   to   his   "well  



documented ability to see poltergeists."                                                                                                                                    He sought rescission of his diagnosis and                                                                                                                            



monetary   damages   and   claimed   the   diagnosis   impaired   his   access   to   rehabilitative  



 services while in prison, his prospects for release on parole, and his ability to become a                                                                                                                                                                                                                                                                  

productive member of society.                                                                                                3  



                                                       Because Drs. Stallman and Worrall were both DOC employees at the time  

                                                                                                                                                                                                                                                                                                                                                



Israel's claims arose, the Attorney General certified that they were acting within the  

                                                                                                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                                                                                                                4  

 scope of their employment and proposed making DOC the sole defendant.                                                                                                                                                                                                                                                                     Israel  

                                                                                                                                                                                                                                                                                                                                       



                           3                           We usually hear challenges to involuntary medication on constitutional                                                                                                                                                                            



grounds.   See, e.g.                                                         ,  In re the Hospitalization of Naomi B.                                                                                                                        , 435 P.3d 918, 929 (Alaska                                      

2019) (stating that involuntary medication implicates constitutional rights).                                                                                                                                                                                                                                         But Israel  

maintained that hisclaims                                                                                wereabout                                     medical malpractice. Israel's                                                                                         complaint references  

"a violation of constitutional magnitude," but when he was asked directly if he was                                                                                                                                                                                                                                                             

making a constitutional claim he insisted that he was not.                                                                                                                                                                                 He took the same position in                                                                                   

a related case filed previously in federal court.                                                                                                                     



                           4  

                                                       See AS 09.50.253(c) ("Upon certification by the attorney general that the  

                                                                                                                                                                                                                                                                                                                                                     

 state employee was acting within the scope of the employee's office or employment at  

                                                                                                                                                                                                                                                                                                                                                          

                                                                                                                                                                                                                                                                                                            (continued...)  



                                                                                                                                                                            -4-                                                                                                                                                               7432
  


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

challenged this, and the superior court held a hearing on the matter.                                                                                                                    The court took the                         



opportunity to make factual findings in addition to resolving the certification issue. The                                                                                                                                        



court found that "Mr. Israel testified honestly about his understanding of events but that                                                                                                                                        



this understanding does not reflect reality.                                                                         Much of Mr. Israel's testimony was bizarre                                                          



and, at least from a lay perspective, consistent with [that of] someone suffering from                                                                                                                                         



paranoid   schizophrenia."     The   court   concluded,   "Mr.   Israel   believes  he   testified  



truthfully. But                         Mr. Israel's claims are incredible. Withoutsupporting                                                                                            evidence, thecourt   



cannot find that Mr. Israel's testimony is based in reality."                                                                                                     The court determined both                                     



doctors were acting within the scope of their employment and directed the case to                                                                                                                                                     



proceed with DOC as the only defendant.                                              



                                    As   the   case   proceeded   Israel   made   several   requests   for   assistance   in  



disproving his diagnosis.  These included a "psych eval or a physical examination" of                                                                              



himself pursuant to Alaska Civil Rule 35, assembling a panel of psychiatrists and other                                                                                                                                       

                                                                                              5 and discovery requests for his DOC mental-health  

experts pursuant to AS 09.55.536,                                                                                                                                  



records as well as objects (e.g., insects, glass jars) for him to demonstrate his retinal trait.  

                                                                                                                                                                                                                                               



The court denied these requests.  

                                                                



                  4  

                                     (...continued)  

                                                                                                                                                                                                             

the time of the incident out of which the claim arose, any civil action or proceeding  

                                                                                                                                                                                                                         

commenced upon the claim in a state court is considered an action or proceeding against  

                                                                                                                                                                                                                             

the state  under  the  provisions of this  title,  and  the state is substituted  as the party  

defendant.").  



                  5                 See AS 09.55.536(a) ("In an action for damages due to personal injury or  

                                                                                                                                                                                                                                       

death based upon the provision of professional services by a health care provider . . . the  

                                                                                                                                                                                                                                 

court shall appoint . . . a three-person expert advisory panel unless the court decides that  

                                                                                                                                                                                                                                  

an expert advisory opinion is not necessary for a decision in the case.").  

                                                                                                                                                                                



                                                                                                                  -5-                                                                                                          7432
  


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

                                                                    

                    2.        Motions for summary judgment  



                                                                                                                                

                    Israel moved for summary judgment, arguing that because DOC had no  



                                                                                                                     

evidence that he suffered from paranoid schizophrenia - other than Dr. Worrall's  



                                                                                                                  

diagnosis, which wrongly failed to consider his retinal trait - it could not substantiate  



                                                                                                                               

that diagnosis.  DOC responded that Israel's argument was conclusory and inverted the  



                                            

burden of proof in the case.  



                                                                                                                             

                    DOC filed its own motion for summary judgment, which it supported with  



                                                                                                                    

the affidavit of Dr. Robert Lawrence, chief medical officer for DOC. Dr. Lawrence  



                                                                                                              

summarized Israel's treatment history while in DOC custody, and he noted Israel's  



                                                                                                                          

delusional  thoughts  concerning  his  "special  eyes,"  special  powers  including  extra- 



                                                                                                                     

sensory perception, and relations to celebritiesand serialkillers. Dr.Lawrenceexplained  



                                                                                                                     

that Drs. Stallman and Worrall were Israel's treating psychiatrists.  As Israel continued  



                                                                                                                        

to verbalize delusions, refuse medication, and become hostile toward staff, they decided  



                                                                       

to medicate him involuntarily.  Dr. Lawrence concluded:  



                                                                                                            

                    The steps taken by the DOC medical staff with regard to  

                                                                                                          

                    providing  Mr.  Israel  with  proper  mental  health  care  are  

                                                                                                        

                    consistent  with  DOC  policies  and  procedures  and  fully  

                                                                                                       

                    satisfied the applicable medical standard of care. I am aware  

                                                                                              

                    of no evidence that Mr. Israel has suffered harm attributable  

                                                                                                 

                    to DOC medical staff's failure to provide him with necessary  

                                                                 

                    and proper medical care and medication.  



                                                                                                                         

In support of its motion DOC also submitted portions of Israel's mental-health records  



                          

while in DOC's care.  



                                                                                                                    

                    DOC's motion  noted  Israel's statutory burden to  prove the  applicable  



                                                                                                                        

standard of care, that the standard of care was not met, and that this failure was causally  



                                                               -6-                                                         7432
  


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

                                                                                             6  

linked to cognizableinjuries.                                                                     DOCargued thatDr.Lawrence's                                                                                 affidavitestablished                                              that  



DOC's   psychiatrists   met   the   standard   of   care   and  because   Israel   failed   to   produce  



medical expert testimony to counter Dr. Lawrence's affidavit, he could not carry his                                                                                                                                                                                               



statutory burden and defeat DOC's motion for summary judgment.                                                                                                                              



                                            Israel   responded   that   his   case   came   within   the   exception   for   medical  



malpractice   claims   arising   from   non-technical   issues,   so   no   expert   testimony   was  

                          7  He argued the State's determination that he suffered fromdelusions was central  

needed.                                                                                                                                                                                                                                                                



to its diagnosis of paranoid schizophrenia.  He then defined "delusion" as a false belief,  

                                                                                                                                                                                                                                                                        



                      6                     AS 09.55.540(a) provides:                                



                                            In a malpractice action based on the negligence or wilful                                                                                                                       

                                            misconduct of a health care provider, the plaintiff has the                                                                                                                               

                                            burden of proving by a preponderance of the evidence                                                                                                  



                                                                  (1)  the degree of knowledge or skill possessed or the                                                                                                      

                                                                  degree                       of           care                 ordinarily                             exercised                             under                    the  

                                                                  circumstances, at the time of the act complained of, by                                                                                                                

                                                                  health care providers in the field or specialty in which                                                                                                   

                                                                  the defendant is practicing;                          



                                                                  (2)  that   the   defendant   either   lacked   this   degree   of  

                                                                  knowledge or skill or failed to exercise this degree of                                                                                                                 

                                                                  care; and   



                                                                  (3)  that as a proximate result of this lack of knowledge                                                                                  

                                                                  or skill or the failure to exercise this degree of care the                                                                                                          

                                                                  plaintiff   suffered   injuries   that   would  not   otherwise  

                                                                  have been incurred.                



                      7                     See  Hertz  v.  Beach,  211  P.3d  668,  680  (Alaska  2009)  ("  'In  medical  

                                                                                                                                                                                                                                                                  

malpractice actions . . . the jury ordinarily may find a breach of a professional duty only  

                                                                                                                                                                                                                                                                              

on  the  basis  of  expert  testimony.'                                                                                      But  we  have  recognized  an  exception:  'expert  

                                                                                                                                                                                                                                                                    

testimony is not needed in non-technical situations where negligence is evident to lay  

                                                                                                                                                                                                                                                                                   

people.' " (first quoting Clary Ins. Agency v. Doyle, 620 P.2d 194, 200 (Alaska 1980);  

                                                                                                                                                                                                                                                                       

and then quoting Kendall v. State, Div. of Corr., 692 P.2d 953, 955 (Alaska 1984))).  

                                                                                                                                                                                                                                                           



                                                                                                                                          -7-                                                                                                                                7432
  


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

                                                                                                                              

"in spite of what constitutes inconvertible . . . proof to . . . the contrary" and that is "not  



                                                                                                                               

one ordinarily accepted by other members of [a] person's culture."   He argued that  



                                                                                                                           

because a lay person could readily determine whether a person was delusional, expert  



                                                                                                                                 

testimony would not be necessary to establish the standard of care for a diagnosis of  



                                                                                                                    

paranoid schizophrenia. Israel also argued that Dr. Lawrence's affidavit was insufficient  



                                                                                                                                 

on  several  grounds,  including  that  Dr.  Lawrence  "is  not  an  expert  psychologist  or  



                                                                        

 [p]sychiatrist.  He practices family medicine."  



                                                                                                                      

                     The court heard oral argument on the competing motions for summary  



                                                                                                                         

judgment.         Before the hearing  the court issued  a notice to  Israel regarding  DOC's  



                                                                                                                          

summary judgment motion.  The notice summarized Israel's burden to defeat DOC's  



                                                                                                                               

motion under Civil Rule 56 and AS 09.55.540, and it included excerpts from each.  The  



                                                                                                                      

notice stated that "[i]n most cases, a medical malpractice plaintiff must offer testimony  



                                                                                                                                  

from a qualified  medical expert" to  prove each element of the cause of action.                                                  It  



suggested ways for Israel to carry his burden or request additional time, and it warned  



                                                                                                                

that his case would end if the court granted DOC's motion for summary judgment.  



                                                                                                

                     At the hearing the parties largely reiterated their previous arguments, but  



                                                                                                                        

Israel pressed the point that Dr. Lawrence did not qualify as an expert on the relevant  



                                                                                                              

standard of care under AS 09.20.185.  The statute provides in pertinent part:  



                                                                                                          

                     In an action based on professional negligence, a person may  

                                                                                               

                     not testify as an expert witness on the issue of the appropriate  

                                                                           

                     standard of care unless the witness is  



                                                                                                             

                               (1) a professional who is licensed in this state or in  

                                                        

                               another state or country;  



                                                                                                             

                               (2) trained and experienced in the same discipline or  

                                                                                                         

                               school  of  practice  as  the  defendant  or  in  an  area  

                                                                                      

                               directly related to a matter at issue; and  



                                                                                                             

                               (3)  certified  by  a  board  recognized  by  the  state  as  



                                                                -8-                                                         7432
  


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

                                  having acknowledged expertise and training directly                           

                                  related to the particular field or matter at issue.                             [8]  



DOC responded that as chief medical officer Dr. Lawrence "supervises and evaluates the  

                                                                                                                                               



treatment of inmate medical concerns.  He supervises and evaluates the doctors who  

                                                                                                                                            



work  under  him,  including  the  psychiatrists."                                  DOC  noted  that  Dr.  Lawrence  had  

                                                                                                                                            



reviewed the "medical records of the mental health clinicians and the doctors who've  

                                                                                                                                       



treated Mr. Israel." The court observed that DOC had also come forward with "medical  

                                                                                                                                    



records  that  show the  diagnosis  by  qualified  medical  professionals  of  [Israel]  as  a  

                                                                                                                                                 



paranoid schizophrenic."  

                 



                       Thecourt issued anoral decision granting summaryjudgmentto DOC. The  

                                                                                                                                              



court acknowledged that Dr. Lawrence is not a psychiatrist but nonetheless found that  



in his affidavit:  

           



                       [Dr. Lawrence] appropriately refers to the diagnosis that's  

                                                                                                                   

                       been given to him, which Mr. Israel admits.  And Lawrence  

                                                                                                            

                       also      says       that     Worrall          and       Stallman          are      the     DOC  

                                                                                                                  

                       psychiatrists, and there's no dispute by Mr. Israel - as best  

                                                                                                                      

                       I   can   tell   -  that,   in   fact,   those   two   gentlemen   are  

                                                                                                                      

                       psychiatrists. They've made that diagnosis, which Lawrence  

                                                                                                            

                       has repeated in his affidavit, and Mr. Israel has offered me  

                                                                                                                        

                       nothing other than his bald statement that supports what he  

                                                                                                                         

                       says in the complaint, that is, that he has all these abilities,  

                                                                                                              

                       i.e., to see poltergeists because of his extremely rare retinal  

                                                                                                                  

                       defect, his relationship to celebrities.  

                                                                   



In written orders the court memorialized its oral ruling denying Israel's motion for  

                                                                                                                                              



summary judgment and granting DOC's. The court ruled that "DOChas provided expert  

                                                                                                                                         



testimony that establishes that the standard of care was not violated. Because [Israel] has  

                                                                                                                                              



           8  

                              

                       AS 09.20.185(a).  



                                                                       -9-                                                                7432  


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

failed to provide expert testimony to contradict [DOC's] showing, [Israel's] claim for                                                                                                                                                           



medical malpractice fails as a matter of law."                                                                     



                                       3.                 Additional proceedings   



                                       DOC   moved   for   final  judgment   and   for   $5,600   in   attorney's   fees,  



representing 20% of its actually incurred fees.                                                                                      Israel moved for reconsideration and for                                                                     



disqualification   of   the   superior   court   judge.     The   court   denied  Israel's   motion   for  



reconsideration, stating that Israel "misconstrued" the burden of proof.                                                                                                                                        Israel had the                   



burden to establish the relevant standard of care, and Israel had "failed to provide any                                                                                                                                                       



expert evidence that his diagnosis of schizophrenia by state psychiatrists was negligent.                                                                                                                                                                    



Thus, [DOC] was entitled to summary judgment based on this lack of proof."                                                                                                                                                       



                                       The court denied Israel's motion for disqualification, and upon referral                                                                                                   



pursuant to AS 22.20.020(c) Superior Court Judge Vanessa H. White reviewed and                                                                                                                                   



                                                                   9  

agreed with that ruling.                                                                                                                                                                                                                       

                                                                          The court thereafter entered final judgment against Israel and  



                                                                                                        

awarded DOC $5,600 in attorney's fees.  



                                                                                                                                                                                                                                       

                                       Israel appeals, reiterating that Dr. Lawrence was not qualified to testify  



                                                                                                                                                                                                                                               

about  the  relevant  standard  of  care  and  that  Israel's  offer  of  proof  that  he  is  not  

                                                                                               10  Israel assigns error to the superior court's denial of  

                                                                                                                                                                                                                                                    

delusional was wrongly rejected. 



                   9                   See   AS   22.20.020(c)   ("If   a   judicial   officer   denies   disqualification   the  



question shall be heard and determined by another judge . . . .").                                                                                                          



                    10                 Israel makes other arguments that do not merit full discussion.  He attacks  

                                                                                                                                                                                                                                      

the admissibility of the facts underlying Dr. Lawrence's affidavit.   He pressed  this  

                                                                                                                                                                                                                     

argument before the superior court, but in his briefing before us he only refers in passing  

                                                                                                                                                                                                                                     

to "inadmissible hearsay of unidentified prisoners through a third party."  "[I]ssues not  

                                                                                                                                                                                                                                                 

briefed [on appeal] or only cursorily briefed are considered waived."  Mengisteab v.  

                                                                                                                                                                                                                                                    

Oates, 425 P.3d 80, 90 n.41 (Alaska 2018) (quoting Daggett v. Feeney, 397 P.3d 297,  

                                                                                                                                                                                                                              

304 n.19 (Alaska 2017)). Israel also invokes our decision in Poulin v. Zartman, 542 P.2d  

                                                                                                                                                                                                                                             

                                                                                                                                                                                                                   (continued...)  



                                                                                                                       -10-                                                                                                                 7432
  


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

his discovery motions and of his request for an expert advisory panel, and he renews his                                                                                             



 claims that the superior court judge was biased and should have been disqualified.                                                                                                          



 Finally, Israel contends that the court abused its discretion in awarding attorney's fees         



to DOC.              



 III.          STANDARDS OF REVIEW                         



                             "We review grants of summary judgment de novo, drawing all factual                                                                             



 inferences   in   favor   of,  and   viewing   the   facts   in   the   light   most   favorable   to   the  



                                                                                                           11  

non-prevailing party (generally                                     thenon-movant)."                                                                                    

                                                                                                                "Wewill 'affirmgrants ofsummary  



                                                                                                                                                                                

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



                                                                                                                                                  12  

                                                                                                                                                                              

 (generally the movant) [is] entitled to judgment as a matter of law.' "                                                                                "We may affirm  



                                                                                                                                                                                    

the superior court on any basis supported by the record, even if that basis was not  



                                                                                                                              13  

                                                                                                               

 considered by the court below or advanced by any party." 



                                                                                                                                                                                    

                             Wereviewrulings on discoverymotions, motionsto disqualifyajudge, and  



                                                                                                             14  

                                                                                      

 awards of attorney's fees for abuse of discretion.                                                                                                                                    

                                                                                                                    "A decision constitutes abuse of  



               10            (...continued)  



                                                                                                                                                                                     

 251 (Alaska 1975), which he misreads as creating a three-prong evidentiary test for  

                                                              

 establishing the standard of care.  



               11  

                             Leahy v. Conant, 436 P.3d 1039, 1043 (Alaska 2019) (quoting Rockstad  

                                                                                                                                                                       

 v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005)).  

                                                                                          



               12  

                             Id. (quoting Rockstad, 113 P.3d at 1219).  

                                                                                                         



               13            Id. (quoting Brandner v. Pease, 361 P.3d 915, 920 (Alaska 2015)).  

                                                                                                                                                              



               14  

                             Lindbo v. Colaska, Inc., 414 P.3d 646, 650 (Alaska 2018) (discussing the  

                                                                                                                                                                                     

 standard of review for discovery motions); Timothy W. v. Julia M., 403 P.3d 1095, 1100  

                                                                                                                                                                                 

 (Alaska  2017)  (discussing  the  standard  of  review  for  motions  to  recuse  under  

                                                                                                                                                                             

AS 22.20.020); Riddle v. Lanser, 421 P.3d 35, 44 (Alaska 2018) (discussing the standard  

                                                                                                                                                                          

 of review for awards of attorney's fees).  

                                                                            



                                                                                         -11-                                                                                   7432
  


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

 discretion if it is 'arbitrary, capricious, manifestly unreasonable, or . . . stems from an                                                            

improper motive.' "                 15  



IV.	        DISCUSSION  



                                                                                                                                                         

            A.	         Summary Judgment Was Proper Because Israel Failed To Raise A  

                                                                                                                                                     

                        Genuine  Issue  Of  Material  Fact  About  The  Correctness  Of  His  

                        Diagnosis.  



                                                                                                                                       

                        Israel styled his complaint as a medical malpractice action, specifically  



                                                                                                                                         

 arguing that he was "misdiagnosed" with paranoid schizophrenia. Under AS 09.55.540,  



                                        

Israel had the burden as plaintiff to prove the relevant standard of care to be exercised  



                                                                                                                                                     

by the treating psychiatrists, that the psychiatrists failed to meet that standard, and that  



                                                                            16  

                                                                                                                                                  

he was proximately harmed by that failure.                                      Because Israel's claim for relief was based  



                                                                                                                                                       

 on misdiagnosis, if this case had proceeded to trial and DOC convinced the jury that the  



                                                                             

 diagnosis was correct, then it would have won.  



                                                                                                                                            

                        This case did not reach a jury because the superior court granted summary  



                                                                                                                                           

judgment in DOC's favor.  A grant of summary judgment is proper when the defendant  



                                                                                                                                                     

 shows that "there is an absence of a factual dispute on a material fact and that this  



                                                                                                                                                  

 absence of a dispute constitutes a failure of proof on an essential element" of the cause  



                 17  

                                                                                                                                                     

 of action.           In Christensen v. Alaska Sales &Service we reiterated that a defendant who  



                                                                                                                                  18  

                                                                                                                                                        

moves for summary judgment bears the burden of showing this failure.                                                                    Further, "a  



             15         John E. v. Andrea E.                    , 445 P.3d 649, 654 (Alaska 2019) (alteration in                                        



 original) (quoting              del Rosario v. Clare                 , 378 P.3d 380, 383 (Alaska 2016)).                 



             16         See AS 09.55.540(a).  

                                       



             17         Achman v. State , 323 P.3d 1123, 1126 (Alaska 2014) (quoting Greywolf v.  

                                                                                                                                                         

 Carroll, 151 P.3d 1234, 1241 (Alaska 2007)).  

                                                                       



             18         335 P.3d 514, 517 (Alaska 2014).  

                                                                          



                                                                          -12-	                                                                    7432
  


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

non-moving party does not need to                                       prove  anything to defeat summary judgment.                                                 But a   



non-moving party cannot create a genuine issue of material fact merely by offering                                                                             



 admissible evidence -                          the offered evidence must not be                                too conclusory, too speculative,        



 or   too incredible to be believed                                , and it must directly contradict the moving party's                                          

 evidence."19  



                           In its order granting summary judgment, the superior court concluded that  

                                                                                                                                                                                 



 "DOC has provided expert testimony that establishes that the standard of care was not  

                                                                                                              



violated."  Israel argues that the court erred because Dr. Lawrence did not qualify as an  

                                                                                                                                                                           



 expert witness on the standard of care under AS 09.20.185.  We will assume, without  

                                                                                                                                                                



 deciding, that Israel is correct  - that there was no evidence by a qualified expert  

                                                                                                                                                                  



 defining the relevant standard of care.  But we can affirm the court's grant of summary  

                                                                                                                                                             



judgment "on any basis supported by the record, even if that basis was not considered  

                                                                                                                                                          

by the court below or advanced by any party."20                                                         Here that basis was the unrebutted  

                                                                                                                                                          



 correctness of Israel's diagnosis of paranoid schizophrenia.  

                                                                                            



                           Dr. Lawrence stated in his affidavit that Israel returned from prison in  

                                                                                                                                                            



 Colorado with a diagnosis of paranoid schizophrenia. TwoDOCpsychiatrists concurred  

                                                                                                                                                            



with that diagnosis based on their determinations that Israel suffered from delusions.  

                                                                                                                                                                                 



 Israel admits that Drs. Stallman and Worrall were psychiatrists, and he admits that they  

                                                                                                                                                                       



 diagnosed him with paranoid schizophrenia.  

                                                             



                           Israel framed his arguments around the diagnostic criteria for paranoid  

                                                                                                                                                             



 schizophrenia, pressing repeatedly that the touchstone symptomisdelusions. According  

                                                                                                                                                           



to the Diagnostic and Statistical Manual of Mental Disorders  (DSM-IV-TR), "[t]he  

                                                                                                                                                                   



              19           Id.  at 516 (first emphasis in original, second and third emphases added).                                                          



              20           Leahy v. Conant                   , 436 P.3d 1039, 1043 (Alaska 2019) (quoting                                                  Brandner  



                                                                            

 v. Pease, 361 P.3d 915, 920 (Alaska 2015)).  



                                                                                    -13-                                                                             7432
  


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

essential feature of the Paranoid Type of Schizophrenia is the presence of prominent                                                                      



delusions or auditory hallucinations in the context of a relative preservation of cognitive                                                                 



                                                21  

                                                       The diagnostic criteria for paranoid schizophrenia describe  

functioning and affect."                                                                                                        



it as "[a] type of Schizophrenia in which the following criteria are met: A. Preoccupation  

                                                                                                                                                  



with one or more delusions or frequent auditory hallucinations. B. None of the following  

                                                                                                                                                           



is  prominent:                   disorganized  speech,  disorganized  or  catatonic  behavior,  or  flat  or  

                                                                                                                                                                         



                                           22  

inappropriate affect." 

                             



                           Israel  admits  that  he  was  assessed  by  prison  psychiatrists,  that  they  

                                                                                                                                                                     



diagnosed him with paranoid schizophrenia, and that delusions are the key symptom of  

                                                                                                                                                                           



that condition.  The dispositive question is whether Israel's beliefs about his retinal trait  

                                                                                                                                                                       



and about his extended family constitute delusions. We agree with the superior court that  

                                                                                                                                                                        



these beliefs are "delusional as a matter of law."  

                                                                                       



                           Israel  notes  that  a  delusion  is  a  "fixed  false  belief[]  that  [is]  held  

                                                                                                                                                                     

tenaciously, even in the face of evidence to the contrary,"23 and he contends he must be  

                                                                                                                                                                          



given a chance to prove his beliefs are not, in fact, false.  To this end, he insists that he  

                                                                                                                                                                          



should have been allowed to conduct his insects-in-jars demonstration. But this offer of  

                                                                                                                                                                           



proof, like his claimed ability to see poltergeists, is "too incredible to be believed" and  

                                                                                                                                                                       



                                                                                                                                     24  

therefore is insufficient to defeat a motion for summary judgment. 

                                                                                                                  



             21  

                           AM.   PSYCHIATRIC   ASS'N,   DIAGNOSTIC   AND  STATISTICAL   MANUAL   OF  

                    

MENTAL DISORDERS  313 (Michael B. First et al. eds., 4th ed., text rev. 2000).                                                                                



             22  

                                       

                           Id. at 314.  



             23            Cf. Belief, Delusional Belief                            , BLACK'S  LAW  DICTIONARY (11th ed. 2019)                                     



("A false, often bizarre belief that derives [usually] from a psychological disturbance.").                                                      



             24  

                           Christensen, 335 P.3d at 516.  

                                                                              



                                                                                   -14-                                                                             7432
  


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

                                     Dr. Lawrence's affidavit, Israel's medical records, Israel's admissions, and                                                                                                                        



his proffer of the DSM-IV-TR diagnostic criteria for paranoid schizophrenia establish                                                                                                                                     



that   his   diagnosis   was   consistent   with   the   pathology   observed   by   Israel's  treating  



psychiatrists.     In   other   words,   Israel's   diagnosis   of   schizophrenia   was   (at   least)  



presumptively correct, and Israel provided no psychiatric expert testimony to raise a                                                                                                                                                         



genuine issue of material fact that the DOC psychiatrists' diagnosis was incorrect. Thus,                                                                                                                                          



there was an absence of a genuine factual dispute on a material fact - the diagnosis of                                                                                                                                                     



paranoid schizophrenia - and this absence of a material dispute constitutes a failure of                                                                                                                                                    

                                                                                                                                                                         25  Because Israel failed to  

proof by Israel on an essential element of his cause of action.                                                                                                                                                                              



rebut DOC's showing that Israel's diagnosis was accurate with evidence sufficient under  

                                                                                                                                                                                                                                  

the Christensen standard, summary judgment was properly granted to DOC.26  

                                                                                                                                                                                                     



                   B.	               Israel's Other Arguments Lack Merit.  

                                                                                                                                     



                                     Israel makes several other arguments on appeal, but none have merit.  

                                                                                                                                                                                                                       



                                      1.	               The superior court did not err in denying Israel's discovery  

                                                                                                                                                                                                                     

                                                        motions.  



                                     Israel contends that the superior court erred by denying his motion for his  

                                                                                                                                                                                                                                          



DOC mental health records and for materials to demonstrate his retinal trait.  He cites  

                                                                                                                                                                                                                                     



Civil Rules 26(b)(3), 26(b)(4), and 34 as support for these requests.  However, we note  

                                                                                                                                                                                                                                      



that  Israel  first  sought  these  items  in  a  motion  to  compel,  which  is  appropriate  in  

                                                                                                                                                                                                                                           

circumstances where a party fails to appropriately respond to a discovery request.27  

                                                                                                                                                                                                                                       But  



                   25                Achman v. State                              , 323 P.3d 1123, 1126 (Alaska 2014) (quoting                                                                                   Greywolf v.   



 Carroll, 151 P.3d 1234, 1241 (Alaska 2007))                                                                                   .  



                   26                This reasoning applies with greater force to Israel's argument that expert  

                                                                                 

testimony was unnecessary in this case.  See supra note 7 and accompanying text.  

                                                                                                                                                                                                                         



                   27                See Alaska R. Civ. P. 37(a)(2)-(3).  

                                                                                                   



                                                                                                                   -15-	                                                                                                            7432
  


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

Israel  could   not   obtain   an   order   compelling   discovery   until   he   first   "conferred  or  



attempted to confer with [DOC] in an effort to secure the information or material [he                                                     

                                                   28    Israel did not confer with DOC - let alone make  

sought] without court action."                                                                                                        



proper discovery requests - before moving to compel disclosure, even after DOC  

                                                                                                                                      



highlighted this procedural misstep.  A self-represented litigant must make a good-faith  

                                                                                                                               

effort to comply with the Civil Rules or informthe court of difficulties with complying.29  

                                                                                                                                                 



Given this posture the superior court did not abuse its discretion by denying Israel's  

                                                                                                                                   



motion to compel.  

                  



                      Israel also argues that an expert advisory panel shouldhavebeenassembled  

                                                                                                                               



pursuant to AS 09.55.536.   But we have already rejected the argument that expert  

                                                                                                                                     

advisory panels were created as an aid to self-represented litigants.30  

                                                                                                 



                      2.	        The  superior  court  did  not  abuse  its  discretion  in  denying  

                                                                                                                                 

                                 Israel's motion to disqualify.  

                                                                  



                      Israel contends that Superior Court Judge Frank A. Pfiffner should have  

                                                                                                                                        



been disqualified from the case, arguing that "Judge Pfiffner's attitude suggests that he  

                                                                                                                                            



thought  Israel's  beliefs  were  nonsense  and  not  worth  his  time  to  give  any  proper  

                                                                                                                            



consideration." "To succeed on a motion to disqualify a judge for bias, the movant must  

                                                                                                                                        



show  that  the  judge's  actions  'were  the  result  of  personal  bias  developed  from  a  

                                                                                                                                             



           28         Alaska  R.  Civ.  P.  37(a)(2)(B).   



           29         McLaren  v.  McLaren,  268  P.3d  323,  336  (Alaska  2012).  



           30         See   Parker   v.   Tomera,   89   P.3d   761,   767  (Alaska   2004)   ("We   have  



previously  rejected  the  argument that t  he  legislature  created  expert a   dvisory  panels t  o  

protect  pro  se  litigants.").  



                                                                    -16-	                                                             7432
  


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

                                                                    31  

nonjudicial source.' "                                                      Israel has not identified any source of extra-judicial bias.                                                                                                                          It is   



true that Judge Pfiffner referred to Israel's beliefs as "incredible" and "delusional as a                                                                                                                                                                                   



matter of law," but Judge Pfiffner had already heard testimony and read Israel's court                                                                                                                                                



papers expressing Israel's beliefs about his rare genetic trait, his lineage, and his family's                                                                                                                                                         



motivations to silence him.                                                             Where a trial judge expresses a negative opinion about a                                                                                                                            



 litigant on the basis of the evidence presented, the comment does not constitute a basis                                                                                                                                                                     

 for judicial disqualification.                                                         32  



                                          3.	                  The superior court                                                  did not                     abuse its discretion in                                                         awarding  

                                                               attorney's fees to DOC.                                     



                                          Israel makes several arguments for vacating the superior court's award of                                                                                                                                                       



 attorney's fees against him. First, he notes that AS 09.60.010(c) shields certain litigants                                                                                                                                                           



                                                                                                                                                                                                                                33  

 from adverse attorney's fee awards if they raise constitutional claims.                                                                                                                                                                                             

                                                                                                                                                                                                                                          Prior to this  



                                                                                                                                                                                                                                                                    

 appeal,  Israel  repeatedly  disavowed  any  constitutional  claims  arising  from  his  



                                                                                                                                                                                                                                                                        

 involuntary medication. While he adopts a different posture in his briefing before us, we  



                                                                                                                                                                                                                                                                                    

 conclude that he did not proceed before the superior court as a constitutional claimant.  



                                                                                                                                                                                                                       

 Therefore Israel was not immune to an attorney's fee award against him.  



                     31                   Hanson v. Hanson                                           , 36 P.3d 1181, 1184 (Alaska 2001) (quoting                                                                                                  Nelson v.   



Jones, 781 P.2d 964, 972 (Alaska 1989)).                                                                     



                     32                   See Johnson v. Johnson, 394 P.3d 598, 604 (Alaska 2017) ("[W]e do not  

                                                                                                                                                                                                                                                                      

presume an improper bias when a judge witnesses events that take place during court  

                                                                                                                                                                                                                                                                

proceedings, even if those events prompt the judge to form a negative opinion of a  

                                                                                                                                                                                                                                                                            

party.").  



                     33                   See AS 09.60.010(c) ("[T]he court . . . may not order a claimant to pay the  

                                                                                                                                                                                                                                                                       

 attorney  fees  of  the  opposing  party  devoted  to  claims  concerning  constitutional  

                                                                                                                                                                                                                                   

rights . . . .").  

                          



                                                                                                                                  -17-	                                                                                                                          7432
  


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

                           Israel makes several other arguments for reversing the award of attorney's                                                       



                                                                                                                        34  

fees against him, but only one of them warrants analysis.                                                                                                                

                                                                                                                               Israel contends that the  



                                                                                                                                                                          

superior court abused its discretion by awarding attorney's fees at a level that "would put  



                                                                    

a substantial hardship on Israel."  



                                                                                                                                                           

                           The superior court awarded DOC 20% of its actually incurred attorney's  



                                                                                                                                                                    

fees, which conforms to the default award under Civil Rule 82(b)(2).  While a court  

                                                                                                                       35 variationis not mandatory  

                                                                                                                                                          

"may vary an attorney's fee award" based onseveralfactors, 

and the court is not required to explain why it has chosen not to modify the award.36  We  

                                                                                                                                                                         



find no abuse of discretion in the superior court's decision to award DOC $5,600 in  

                                                                                                                                                                           



attorney's fees at the conclusion of more than three years of litigation.  

                                                                                                                           



V.            CONCLUSION  



                           We AFFIRM the superior court's order granting summary judgment to  

                                                                                                                                                                           



DOC, its discovery orders, its denial of Israel's motion to disqualify the judge, and its  

                                                                                                  



award of attorney's fees.  

                                         



             34            Israel claims that DOC extended the litigation to drive up its expenses, that                                                                



DOC's motionfor attorney's                                fees was untimely, and that his opposition to DOC's motion                                              

for attorney's fees was lost in the mail and therefore not considered.                                                                   DOC persuasively   

counters these claims.         



             35            Alaska R. Civ. P. 82(b)(3).  

                                                                



             36            Cf. City of Kodiak v. Kodiak Pub. Broad. Corp., 426 P.3d 1089, 1095  

                                                                                                                                                                     

(Alaska 2018) (" '[The] trial court has broad discretion to award Rule 82 attorney's fees  

                                                                                                                                                                        

in amounts exceeding those prescribed by the schedule of the rule, so long as the court  

                                                                                                                                                                     

specifies in the record its reasons for departing from the schedule.' Because the superior  

                                                                                                                                                               

court did not specify any reasons for a variation in this case, we cannot uphold the award  

                                                                                                                                                                    

of full attorney's fees on the alternative basis of Rule 82 . . . ." (alteration in original)  

                                                                                                                                                              

(citations omitted) (quoting Alaskasland.com, LLC v. Cross , 357 P.3d 805, 826 (Alaska  

                                                                                                                                                                

2015))).  



                                                                                    -18-                                                                             7432
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC