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Hymes v. DeRamus8/26/2005
No. 5936
Before: Bryner, Chief Justice, Eastaugh, Fabe, and Carpeneti, Justices. [Matthews, Justice, not participating.]
I. INTRODUCTION
Pro se plaintiffs Donald and Rita Hymes sued medical personnel associated with the Alaska Department of Corrections. After the defendants moved for summary judgment and supported their motion with a physician's affidavit, the superior court entered summary judgment against the Hymeses, who submitted no responsive affidavit. The Hymeses argue here that it was error to give them only an additional month in which to submit a responsive expert affidavit. We agree, and reverse.
II. FACTS AND PROCEEDINGS
Donald Hymes is a federal prisoner who was temporarily incarcerated at the Fairbanks Correctional Center (FCC), an Alaska Department of Corrections facility, from May to August 2003. In July 2003 he and his wife, Rita Hymes, representing themselves, sued medical personnel associated with the Department of Corrections - Dr. Leonie DeRamus and Michael Pomeroy - alleging medical malpractice, negligent infliction of emotional distress (NIED), loss of consortium, and failure to report elder abuse. The defendants moved for summary judgment on January 6, 2004 and supported their motion with an expert affidavit from Dr. John M. Robertson, MD, who found no evidence of malpractice. On January 23 the Hymeses filed an opposition and supporting memorandum that stated that they had "not had the opportunity to complete discovery" and quoted from a federal case applying Federal Rule of Civil Procedure 56(f). They also argued that the superior court had not clarified whether Donald "requires an 'expert witness' or not."
On February 26 the superior court issued an order explaining that if the Hymeses did not submit an expert affidavit "establishing the standard of care due from the defendants, breach thereof, and damages proximately caused by such a breach of duty of care, summary judgment will be entered against them." The court gave the Hymeses until March 27 to supplement their opposition. On March 26 the Hymeses requested a continuance. The superior court denied that request and then granted the defendants' motion for complete summary judgment and awarded attorney's fees to the defendants. The Hymeses appeal.
III. DISCUSSION
A. Standard of Review
"We review for abuse of discretion a decision to deny a continuance requested under Alaska Civil Rule 56(f)." Grants of summary judgment are reviewed de novo and will be upheld if there are "no genuine issues of material fact and the moving party is entitled to judgment as a matter of law."
B. It Was an Abuse of Discretion To Deny the Hymeses' Request for Continuance
"We hold the pleadings of pro se litigants to a less stringent standard than those of lawyers." We therefore read the Hymeses' pro se brief generously.
They appear to argue that it was an abuse of discretion to deny them a continuance under Alaska Civil Rule 56(f). This rule "permits a party opposing summary judgment to request additional time to gather and submit evidence to support the party's opposition." We have repeatedly held that "requests made under Rule 56(f) should be granted freely because Rule 56(f) provides a safeguard against premature grants of summary judgment." Failure to offer an affidavit in support of a Rule 56(f) request does not prevent a party from seeking the continuance. " he party seeking Rule 56(f) relief must do so unambiguously," but "need not specifically mention Rule 56(f) or file a separate motion." In Gamble v. Northstore Partnership, we elaborated further:
A request for Rule
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