Easley v. Bowser

• Decision Date: 10 September 2020
• Docket Number: A170973
• Parties: Donald L. EASLEY, Plaintiff-Appellant, v. Troy BOWSER, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

306 Or.App. 460

474 P.3d 915

Donald L. EASLEY, Plaintiff-Appellant,

v.Troy BOWSER, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

A170973

Court of Appeals of Oregon.

Submitted April 28, 2020

September 10, 2020

Lindsey Burrows and O'Connor Weber LLC filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna Hershey, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and Powers, Judge, and Kamins, Judge.

KAMINS, J.

Plaintiff, an inmate at Two Rivers Correctional Institution (TRCI), petitioned for a writ of habeas corpus, alleging that defendant, the superintendent at TRCI, denied him constitutionally adequate medical treatment for his chronic back pain. Defendant moved to dismiss plaintiff's writ, and the trial court granted defendant's motion and entered a general judgment of dismissal. On appeal, plaintiff contends that he presented sufficient evidence to establish a genuine issue of material fact as to whether defendant was deliberately indifferent to his serious medical needs. For the reasons set out below, we conclude that the trial court erred in dismissing the writ. Accordingly, we reverse and remand.

"A motion to dismiss a writ of habeas corpus is the functional equivalent of a motion for summary judgment." Woodroffe v. Nooth , 257 Or. App. 704, 705, 308 P.3d 225, rev. den. , 354 Or. 491, 317 P.3d 256 (2013) (internal quotation marks omitted). Consequently, in reviewing a judgment dismissing a writ of habeas corpus, we must determine whether (1) the record, viewed in the light most favorable to the plaintiff, presents no genuine issue of material fact and (2) the defendant is entitled to prevail as a matter of law. Id. ; see ORCP 47 C ("No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.").

Plaintiff alleges that defendant has denied him adequate medical treatment for his chronic back pain in violation of the prohibitions against cruel and unusual punishment under Article I, section 16, of the Oregon Constitution and the Eighth and Fourteenth Amendments to the United States Constitution. To state a cognizable claim for habeas corpus relief under both the Oregon and United States constitutions, "a prisoner must allege that [he or she] has a serious medical need that has not been treated in a timely and proper manner and that prison officials have been deliberately indifferent to the prisoner's serious medical needs." Billings v. Gates , 323 Or. 167, 180-81, 916 P.2d 291 (1996) (adopting the standard under the Eighth Amendment set forth in Estelle v. Gamble , 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976), reh'g den. , 429 U.S. 1066, 97 S. Ct. 798, 50 L. Ed. 2d 785 (1977) ). To establish deliberate indifference, a plaintiff must demonstrate something "more than an honest difference of medical opinion about correct diagnosis and necessary treatment." Billings , 323 Or. at 181, 916 P.2d 291. The deliberate indifference standard is high, but it "is not intended to insulate prison staff from judicial scrutiny of decisions made in the course of diagnosing and treating prison inmates." Id .

In line with our standard of review, we briefly state the relevant facts from the record in the light most favorable to plaintiff. Plaintiff suffers from chronic back pain, which he reports as stemming from an "incident" in 2013. When he was transferred into the custody of the Oregon Department of Corrections (DOC) in October 2014, plaintiff informed DOC staff of his pain. Plaintiff was given a physical examination and an x-ray soon after he arrived at TRCI; the x-ray showed mild degenerative changes to plaintiff's discs and mild osteophytic lipping, but no other abnormalities. DOC physicians concluded that plaintiff's pain was caused by degenerative disc disorder

and, to treat that condition, they prescribed nonsteroidal anti-inflammatory pain relievers (NSAIDs), hot packs, and exercises.

Plaintiff's back pain continued despite those treatments, and he complained of that pain consistently and often from the time that he arrived at TRCI in 2014 until he filed a petition for writ of habeas corpus in 2018. Over that four-year period, plaintiff was seen in the prison clinic more than 25 times by two DOC physicians for his persistent back pain, among other things. Plaintiff requested an MRI procedure to better diagnose the cause of his back pain multiple times during that period. Neither DOC physician believed that an MRI was indicated, but they nonetheless both forwarded plaintiff's request to the DOC Therapeutic Level of Care Committee (TLCC). The first request for an MRI was referred to the TLCC in 2016, and the second was referred in 2018. The TLCC denied both requests without explanation, writing only "Denied" on the first request form and "NO" on the second.

Instead of an MRI, the DOC physicians gave plaintiff repeated physical examinations and x-rays, which continued to show degenerative changes to plaintiff's discs, as well as mild to moderate osteophytic lipping. In response to those x-ray results, and even as plaintiff's osteophytic lipping progressed from mild to moderate, the physicians continued to prescribe the same treatments of NSAIDs, hot packs, and exercises, and plaintiff's pain continued without relief. The only other diagnostic procedure in the record is an abdominal CT scan

that DOC staff ordered in 2018 in response to plaintiff's complaint of abdominal pain.¹ The DOC physician did not believe the CT scan of the abdomen indicated a need for an MRI.

Turning to the parties’ arguments, we note first that defendant did not challenge plaintiff's assertion that he suffers from a serious medical need. See Eklof v. Steward , 360 Or. 717, 731, 385 P.3d 1074 (2016) (explaining that under ORCP 47 C, a motion for summary judgment puts at issue only those issues "raised in the motion"). Consequently, and given the volume of plaintiff's complaints of chronic pain, the only issue before us is whether there is a triable dispute of fact as to whether defendant was deliberately indifferent to plaintiff's back condition. See Keenan v. Maass , 149 Or. App. 576, 580, 945 P.2d 526 (1997) (recognizing that a condition that causes constant or recurring pain amounts to a serious medical need).

On appeal, plaintiff asserts that the record would permit an objectively reasonable factfinder to find that defendant was deliberately indifferent by failing to take additional diagnostic steps to diagnose his persistent, severe back pain. Specifically, plaintiff contends that, although the DOC physicians made diagnostic and treatment efforts on plaintiff's behalf, those efforts were not sufficient to ameliorate plaintiff's pain. Plaintiff points to the availability of other diagnostic measures, such as an MRI, which the physicians requested on plaintiff's behalf and the TLCC denied. Thus, plaintiff asserts that, because the diagnostic and treatment efforts of the DOC physicians were not successful in addressing plaintiff's pain and there were other options available to discover and treat the cause of that pain, there is a triable issue of material fact as to whether the prison's refusal to grant an MRI constituted deliberate indifference.

Defendant responds that the prison provided adequate medical treatment for plaintiff's chronic back pain because the DOC physicians "conducted a number of diagnostic tests to confirm that plaintiff's pain was caused by mild degenerative disc disease

," and that, according to the treating physician, the members of the TLCC opined that there was "no medical evidence to support a need for an MRI."² Defendant directs us to Toguchi v. Chung , 391 F.3d 1051, 1058 (9th...