Keenan v. Maass, C-11097

• Decision Date: 10 September 1997
• Docket Number: C-11097
• Parties: Charles M. KEENAN, Appellant, v. Manfred (Fred) MAASS, Superintendent, Oregon State Penitentiary, Respondent. 94-; CA A84950.
• Court: Oregon Court of Appeals

Page 526

945 P.2d 526

149 Or.App. 576

Charles M. KEENAN, Appellant, v. Manfred (Fred) MAASS, Superintendent, Oregon State Penitentiary, Respondent.

94-C-11097; CA A84950.

Court of Appeals of Oregon.

Submitted on Remand Jan. 14, 1997.

Decided Sept. 10, 1997.

David W. Knofler and Multnomah Defenders, Inc., Portland, for appellant.

Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Kristin N. Preston, Assistant Attorney General, for respondent.

Before DEITS, C.J., and De MUNIZ and HASELTON, JJ.

De MUNIZ, Judge.

This habeas corpus case is on remand from the Supreme Court, Keenan v. Maass, 324 Or. 230, 923 P.2d 1200 (1996), for reconsideration in the light of Billings v. Gates, 323 Or. 167, 916 P.2d 291 (1996). Plaintiff alleged a denial of constitutionally adequate dental care by defendant in the treatment of his overbite and Temporomandibular Joint Dysfunction (TMJ). Defendant filed a motion to dismiss and, after the parties submitted supporting affidavits, the trial court granted defendant's motion. The evidence and procedural history are set out in detail in our opinion at 138 Or.App. 576, 911 P.2d 331 (1996), and we repeat them only as required for reconsideration.

On plaintiff's appeal, we applied the standard for determining a violation of Article I, section 16, from Priest v. Cupp, 24 Or.App. 429, 431, 545 P.2d 917, rev. den. (1976), as we had analyzed it in Billings v. Gates, 133 Or.App. 236, 242, 890 P.2d 995 (1995). As we understood the appropriate standard, a claim that dental care was constitutionally inadequate as cruel and unusual punishment under Article I, section 16, of the Oregon Constitution was to be assessed under different standards from a claim under the Eighth Amendment, and a plaintiff had to allege and prove that the defendant had not provided medical care that was reasonably available under the circumstances of the confinement and medical condition. Keenan, 138 Or.App. at 580, 911 P.2d 331. Under that standard, we reversed, holding that plaintiff's affidavit was sufficient to raise issues of fact that precluded a summary adjudication.

The Supreme Court's opinion in Billings held that the "reasonably available" standard first announced in Priest was the wrong standard for habeas corpus medical care claims under Article I, section 16. 323 Or. at 180, 916 P.2d 291. It held that the Eighth Amendment standard of "deliberate indifference" to serious medical needs is also the appropriate standard under Article I, section 16. Id.; see Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251, reh'g den. 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977) (deliberate indifference to serious medical needs of prisoners constitutes unnecessary and wanton infliction of pain proscribed by the Eighth Amendment). Under that standard, the plaintiff must establish more than an honest difference of medical opinion about correct diagnosis and necessary treatment. Billings, 323 Or. at 181, 916 P.2d 291. The plaintiff must establish a serious medical condition:

"A medical condition is serious when, if untreated, it would have a significant adverse effect on an inmate's daily activities, resulting in substantial and recurring pain or discomfort, or would create a significant risk of permanent disability or death." Id.

On reconsideration, we apply that standard to the evidence and again reverse and remand. Plaintiff has shown issues of fact as to whether defendant has responded to his dental needs with deliberate indifference. Plaintiff's affidavit shows more than an honest difference of medical opinion about diagnosis and treatment of his overbite and TMJ. As we noted in our earlier opinion, plaintiff's affidavit recites that, as to his overbite, two dentists at two different correctional facilities told him that, until his severe overbite was "repaired," his teeth would continue to chip and break off:

"Those statements suggest that 'repair,' which can reasonably be read as meaning orthodontia, is not just one of a range of possible treatment options, but one that is far more efficacious--indeed, perhaps the only efficacious remedy for plaintiff's severe overbite." Keenan, 138 Or.App. at 583, 911 P.2d 331.

As we also noted, it is reasonable to assume that broken teeth...