Keenan v. Maass, C-11097

• Decision Date: 24 January 1996
• Docket Number: C-11097
• Citation: 911 P.2d 331,138 Or.App. 576
• Parties: Charles M. KEENAN, Appellant, v. Manfred (Fred) MAASS, Superintendent, Respondent. 94-; CA A84950.
• Court: Oregon Court of Appeals

Page 331

911 P.2d 331

138 Or.App. 576

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

94-C-11097; CA A84950.

Court of Appeals of Oregon.

Argued and Submitted Aug. 24, 1995.

Decided Jan. 24, 1996.

Appeal from Circuit Court, Marion County; Richard D. Barber, Judge.

David W. Knofler, argued the cause for appellant. With him on the brief was Multnomah Defenders, Inc., Portland.

Kristin N. Preston, Assistant Attorney General, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

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

De MUNIZ, Judge.

Plaintiff appeals a judgment dismissing a writ of habeas corpus. ORS 34.680(1). We reverse.

Plaintiff, an inmate at Oregon State Penitentiary (OSP), petitioned for a writ of habeas corpus, alleging that he suffers from severe headaches, jaw aches and migraines stemming from Temporomandibular Joint Dysfunction (TMJ), and that he has a severe overbite that causes his teeth to grind and chip off. He claimed that ineffective treatment of his symptoms and refusal to authorize corrective surgery was a denial of constitutionally adequate dental care.

The trial court issued a writ of habeas corpus, ORS 34.310 et seq, and defendant filed a return stating that plaintiff's conditions of confinement were lawful and constitutional. ORS 34.540. Subsequently, defendant, superintendent of OSP, filed a motion to dismiss the writ on the grounds that plaintiff failed to state or establish a claim for habeas corpus relief. ORS 34.680(1). In support of his motion and memorandum, defendant submitted plaintiff's dental records and the affidavit of Dr. Gorham, the chief dental officer of OSP. Gorham's affidavit detailed the dental treatment plaintiff had received, and asserted that plaintiff "is receiving the dental care that is appropriate for his condition and which meets community standards."

At the ensuing hearing on the motion to dismiss, counsel for plaintiff orally moved that plaintiff's initial petition be made the replication, against which the state's motion to dismiss be applied. ORS 34.670. Plaintiff's counsel then submitted plaintiff's sworn statement, attached to the initial petition, which, defendant stipulated, converted the petition into an affidavit. ¹ Defendant asserted that plaintiff's affidavit did not controvert Gorham's averments that plaintiff had received appropriate dental care, and, thus, on the central issue of the adequacy of treatment, there was no issue of material fact. The trial court agreed and granted defendant's motion to dismiss.

Plaintiff assigns error to the dismissal of the writ of habeas corpus on the grounds that his affidavit raised genuine issues of material fact as to the propriety of habeas corpus relief. Defendant reiterates his arguments that dismissal under ORS 34.680(1) was proper because there was no issue of material fact as to whether defendant's treatment of plaintiff was constitutionally adequate and plaintiff did not establish the need for immediate judicial attention.

ORS 34.310 et seq. defines the procedures for issuance and dismissal of writs of habeas corpus. Those statutes were substantially revised in 1991, including an amendment that permits a defendant, after a writ issues, to submit evidence supporting a motion to dismiss. ORS 34.680(1) provides, in part:

"The defendant may, at any time after the writ issues, move to dismiss the writ on the grounds that the pleadings, including the petition, the return, the replication, if any, and any supporting evidence, demonstrate that the plaintiff has failed to state or establish a claim for habeas corpus relief." (Emphasis supplied.)

Thus, a motion to dismiss under ORS 34.680(1) is, when supported by affidavits and related evidentiary materials, the functional equivalent of a motion for summary judgment. McClintock v. Schiedler, 123 Or.App. 334, 336 & n 2, 859 P.2d 580 (1993).

Because ORS 34.680 sets forth a summary judgment-like procedure on submitted evidence, analogy to the rules of civil procedure is appropriate. See Bedell v. Schiedler, 307 Or. 562, 565, 770 P.2d 909 (1989). On review of a summary judgment, we view the record in the light most favorable to the party opposing the motion, drawing all reasonable inferences in his favor. Seeborg v. General Motors Corporation, 284 Or. 695, 699, 588 P.2d 1100 (1978); Mittleman Properties v. Bank of California, 131 Or.App. 666, 668, 886 P.2d 1061 (1994). ²

To establish the propriety of habeas corpus relief based on constitutionally inadequate conditions of confinement, plaintiff must "[s]tate facts in support of a claim that the person is deprived of a constitutional right that requires immediate judicial attention and for which no other timely remedy is practicably available to the plaintiff." ORS 34.362(2). Where, as here, a plaintiff inmate asserts that medical or dental care is constitutionally inadequate as cruel and unusual punishment under Article I, section 16, of the Oregon Constitution ³ or under the Eighth Amendment to the United States Constitution, ⁴ those state and federal constitutional claims are assessed under different standards. Billings v. Gates, 133 Or.App. 236, 242, 890 P.2d 995 (1995), rev. allowed, 321 Or. 512, 900 P.2d 509 (1995). To prove that medical care is constitutionally inadequate under Article I, section 16, plaintiff must allege and prove that he has not been

" 'afforded such medical care in the form of diagnosis and treatment as is reasonably available under the circumstances of [his] confinement and medical condition.' " Billings, 133 Or.App. at 241, 890 P.2d 995, quoting Priest v. Cupp, 24 Or.App. 429, 431, 545 P.2d 917, rev. den (1976).

The adequacy of medical treatment under Eighth Amendment standards is prescribed by Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).

"In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." ⁵

We apply those standards, as appropriate, to plaintiff's claims for inadequate treatment of his overbite and for inadequate treatment of his TMJ condition. ⁶

In moving to dismiss the petition, defendant submitted the affidavit of Gorham, the chief dental officer of OSP. That affidavit included the following averments pertaining to plaintiff's overbite claim:

"4. The dental records indicate that the patient has a history of dental-related problems. As a result, the patient has been seen by ODOC dental staff on a regular basis.

"5. On July 11, 1989 the patient first complained of his alleged overbite problem. On that date, he was examined by a dentist at Oregon State Correctional Institution (OSCI). The patient told the dentist that he had been told by an Army doctor that he had [an] overbite and that he wanted it fixed. The dentist's assessment was that the patient did indeed have a deep overbite. The dentist told the patient that orthodontia to correct an overbite is an elective procedure which is not performed by the Department of Corrections.

"6. The patient has been seen by ODOC dental staff personnel on fourteen occasions since July 11, 1989 for complaints relating to his teeth.

"7. To date, the patient has received treatment to correct incisal and occlusal effects caused by his overbite.

" * * * * *

"11. Health Services dental staff will continue to monitor the patient's dental condition and remain available to the patient through sick call and appointment. The patient is currently scheduled to have his dental problem re-evaluated. His appointment date is April 25, 1994.

"12. I am familiar with the standard of dental care in the community. My opinion is that this patient is receiving the dental care that is appropriate for his condition and which meets community standards."

Plaintiff's affidavit opposing dismissal includes the following statements regarding the diagnosis and consequences of his overbite:

"2) Plaintiff, while he was housed in the Intensive Management Unit (IMU), was seen by the dentist there, and was told that he has a severe overbite and that it would cause him problems until he got it fixed.

"3) Plaintiff, then went to the Oregon State Correctional Institution (OCSI), and requested to see the dentist there about getting a crown on one of his front teeth where he recently had a root canal done. The dentist there informed him that until he got his severe overbite repaired, that his teeth are going to continue to keep chipping off until there is nothing left. But that he would not repair it, that I had to pay for it and it would cost several thousand dollars to have this done.

"4) When the Plaintiff was transferred to the Eastern Oregon Correctional Institution (EOCI), he [saw] the dentist there about the same problem, and was eventually told the same thing, until he got his severe overbite repaired, his teeth would continue to break off.

"5) Again the Plaintiff went to the dentist office to try and get his problem fixed. The dentist informed him that they would not spend the money to fix this problem, because, it is a 'Looks' problem, and not a mandatory one, and that if he wanted to have it done, that he would have to have the appropriate money sent to his inmate account to pay for it.

" * * * * *

"9) The Plaintiff requested and was denied by Dr. Gorham [to] be sent out to the streets and see a specialist that deals with the type of problems that the Plaintiff is having. Dr. Gorham stated that there is no need to do this. When the Plaintiff ask[ed] why, because * * * the severe overbite on his teeth is causing him grave difficulty, Dr. Gorham stated that he could take care of it himself."

Defendant asserts that plaintiff's affidavit was insufficient to raise a genuine issue as to the propriety and sufficiency of the treatment of his overbite. Defendant asserts,...