McClaflin v. Wright

• Jurisdiction: Oregon
• Parties: Kevin McCLAFLIN, Appellant, v. R.L. WRIGHT, Superintendent, Eastern Oregon Correctional Institution, Respondent. 89-874; CA A63695. Court of Appeals of Oregon, In Banc
• Citation: McClaflin v. Wright, 813 P.2d 1098, 107 Or.App. 688 (Or. App. 1991)
• Court: Oregon Court of Appeals
• Decision Date: 19 June 1991

Page 1098

813 P.2d 1098

107 Or.App. 688

Kevin McCLAFLIN, Appellant, v. R.L. WRIGHT, Superintendent, Eastern Oregon Correctional Institution, Respondent.

89-874; CA A63695.

Court of Appeals of Oregon,

In Banc.

Submitted on Record and Briefs

Nov. 26, 1990.

Decided June 19, 1991.

Wade P. Bettis, Jr., and Bettis & Ricker, P.C., La Grande, filed the brief, for appellant.

Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Keith Wingfield, Asst. Atty. Gen., Salem, filed the brief, for respondent.

NEWMAN, Judge.

Plaintiff was convicted of burglary. He is incarcerated for a term of five years, with a two-and-one-half year minimum, in the Eastern Oregon Correctional Institution. After a writ of habeas corpus was issued, plaintiff alleged in his replication that he has a history of mental disease that is serious and disabling, that he needs immediate mental health services, that other inmates have been given evaluation and treatment by a psychologist or psychiatrist, that he is being denied evaluation and treatment and that he is also a long-term segregation inmate at the institution. ¹ The prayer of his replication is for the court to direct defendant immediately to allow plaintiff a psychiatric evaluation to be performed by a psychologist or psychiatrist and such further additional relief as the court deems just and proper.

After the pleadings were complete, the court dismissed the case on the grounds that plaintiff did not state a claim for habeas corpus relief or meet the minimum requirements for habeas corpus jurisdiction. Plaintiff appeals, and we affirm.

Plaintiff's claim is not in the first category in Penrod/Brown v. Cupp, 283 Or. 21, 581 P.2d 934 (1978). See Fox v. Zenon, 106 Or.App. 37, 806 P.2d 166 (1991). He does not allege any causal relationship between his mental illness and his segregation or that the evaluation and treatment that he seeks would allow him to return to the general prison population. His challenge is to defendant's failure to provide him with psychiatric evaluation and treatment, not to the conditions of his confinement.

Even if the facts that plaintiff pleads are true, they do not show that failure to provide him with evaluation and treatment causes him the kind of harm that requires immediate judicial scrutiny in the second kind of Penrod/Brown case. As we have interpreted them in Fox v. Zenon, supra, Moore v. Peterson, 91 Or.App. 616, 756 P.2d 1261 (1988), and Bedell v. Schiedler, 307 Or. 562, 770 P.2d 909 (1989), are distinguishable from this case. Plaintiff alleges that his "mental disease" is "serious and disabling." He does not allege facts that show what his disease is, why it is "serious" and in what way it is "disabling." Unlike the plaintiffs' allegations in Bedell, Fox and Moore, plaintiff alleges no facts that, taken as true, show that the denial of evaluation and treatment by a psychologist or psychiatrist is likely to result in an immediate, serious, ongoing health hazard. Accordingly, immediate judicial scrutiny is not required. Jones v. Maass, 106 Or.App. 42, 806 P.2d 168, rev. den. 311 Or. 426, 812 P.2d 826 (1991); see also Bahrenfus v. Bachik, 106 Or.App. 46, 806 P.2d 170 (1991).

Accordingly, the court did not err when it dismissed the writ and gave judgment for defendant. ²

Affirmed.

DE MUNIZ, Judge, dissenting.

I agree that the issue is whether the replication contains allegations that are cognizable in habeas corpus under the second category of cases identified in Penrod/Brown v. Cupp, 283 Or. 21, 581 P.2d 934 (1978). However, I disagree with the majority's analysis and conclusion. There is no meaningful distinction between the allegations in this case and those in Fox v. Zenon, 106 Or.App. 37, 806 P.2d 166 (1991). Consequently, I dissent.

Plaintiff ¹ alleges that he "has a history of mental disease which is known to the staff of the Eastern Oregon Correctional Institution." He alleges that he "has repeatedly complained and sought assistance for his disabling and serious mental condition" and that he "is in need of immediate mental health services," but that he "is being denied an evaluation and or treatment by a licensed Psychologist or Psychiatrist." ² He claims, inter alia, that defendant's failure to provide medical treatment constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and under Article I, section 16, of the Oregon Constitution. He prays for the court to issue an order that would require defendant to provide him with immediate psychiatric evaluation by a licensed psychologist or psychiatrist.

The threshold issue is whether plaintiff's claim is cognizable in an action for habeas corpus relief. Traditionally, the writ of habeas corpus was served on a person who detained another and was designed to resolve whether that detention was authorized by law. However, in Bekins v. Cupp, 274 Or. 115, 545 P.2d 861 (1976), the Oregon Supreme Court approved of an expanded use of habeas corpus that we had recognized six years earlier in Newton v. Cupp, 3 Or.App. 434, 474 P.2d 532 (1970), by which prisoners could challenge conditions of confinement. In Newton, the plaintiff alleged that his constitutional right to be free from vindictive or cruel and unusual punishment was being violated because he was being subjected to repeated unprovoked beatings and that his constitutional right to religious freedom was being infringed because he was being denied the right to possess religious materials. We said:

"We are of the opinion that habeas corpus is available in Oregon to test the constitutionality of treatment afforded an inmate of a penal institution." 3 Or.App. at 437, 474 P.2d 532.

Newton turned largely, if not exclusively, on the existence of former ORS 137.240, the so-called "civil death statute." Rose v. Cupp, 23 Or.App. 355, 358, 542 P.2d 925 (1975), rev. den. (1976). Under that statute, inmates were precluded from using ordinary civil remedies for the protection of their constitutional rights. Boatwright v. S.I.A.C., 244 Or. 140, 142, 416 P.2d 328 (1966). Habeas corpus was the only remedy available.

Notwithstanding the repeal ³ of the civil death statute in 1975, Penrod/Brown v. Cupp, supra, identified two "kinds of cases" in which the expanded use of habeas corpus remains available: ⁴

"(1) When a petition makes allegations which, if true, show that the prisoner, though validly in custody, is subjected to a further 'imprisonment or restraint' of his person that would be unlawful if not justified to the court, and (2) when a petition alleges other deprivations of a prisoner's legal rights of a kind which, if true, would require immediate judicial scrutiny, if it also appears to the court that no other timely remedy is available to the prisoner." 283 Or. at 28, 581 P.2d 934.

We are concerned here with the second category that the Supreme Court described. ⁵ As to that category, the court said:

"[T]wo essential elements * * * must coincide to make the writ of habeas corpus a proper instrument of judicial inquiry: The need for immediate attention, if this appears from the urgency of the harm to which the prisoner claims to be exposed or if [the need for immediate attention] is found to be required as a matter of constitutional law, and the practical inadequacy of an alternative remedy to meet this need." 283 Or. at 28, 581 P.2d 934.

Plaintiff claims that his replication alleges facts that show that he is being deprived of his legal rights under both the federal and state constitutions to be free from cruel and unusual punishment. As we observed in Priest v. Cupp, 24 Or.App. 429, 545 P.2d 917, rev. den. (1976):

"The Eighth Amendment to the United States Constitution prohibits the infliction of 'cruel and unusual punishments' as does Art. I, § 16 of the Oregon Constitution. Neither, however, guarantees to any inmate that while in custody he will be free from or cured of all real or imagined medical disabilities. What is required is that he be afforded such medical care in the form of diagnosis and treatment as is reasonably available under the circumstances of his confinement and medical condition." 24 Or.App. at 431, 545 P.2d 917.

Accord, Johnson v. Cupp, 29 Or.App. 541, 543, 564 P.2d 734, rev. den. (1977). In both Priest and Johnson, habeas corpus relief was denied, because testimony at evidentiary hearings demonstrated that neither claim of cruel and unusual punishment was supported by the facts.

Here, however, no evidentiary hearing has taken place. Plaintiff's allegation that defendant is denying treatment for his disabling mental illness is not meaningfully distinguishable from that of the plaintiff in Jorgenson v. Schiedler, 87 Or.App. 100, 741 P.2d 528 (1987), who alleged that she was receiving inadequate medical treatment for swelling in her ankles; that of the diabetic plaintiff in Mueller v. Cupp, 45 Or.App. 495, 608 P.2d 1203 (1980), who alleged that his medically inappropriate diet was causing blindness; that of the plaintiff in Moore v. Peterson, 91 Or.App. 616, 756 P.2d 1261 (1988), who alleged that he was not receiving diagnosis and treatment for his heart disease and was not receiving meals appropriate for a diabetic; and that of the plaintiff in Bedell v. Schiedler, 307 Or. 562, 770 P.2d 909 (1989), who alleged that the stagnant air in prison was causing deleterious effects on her sinuses. In Fox v. Zenon, supra, the plaintiff alleged that he was "suffering from mental illness, is emotionally disturbed and suffering from severe depression which has led to numerous suicide attempts" and that the defendant had denied numerous requests for psychological care. 106 Or.App. at 39, 806 P.2d 166.

In each of the cases just cited, the allegations of health problems caused or exacerbated by the defendant's conduct were sufficient to invoke the court's habeas corpus jurisdiction. In none of them, however, did the appellate court decide whether habeas corpus relief should...