Mueller v. Cupp

• Decision Date: 24 March 1980
• Docket Number: No. 111,898,111,898
• Citation: 45 Or.App. 495,608 P.2d 1203
• Parties: Edward William MUELLER, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent. ; CA 16176.
• Court: Oregon Court of Appeals

Page 1203

608 P.2d 1203

45 Or.App. 495

Edward William MUELLER, Appellant, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent.

No. 111,898; CA 16176.

Court of Appeals of Oregon.

Argued and Submitted Feb. 15, 1980.

Decided March 24, 1980.

Michael Curtis, Salem, argued the cause and filed the brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before BUTTLER, P. J., and GILLETTE and ROBERTS, JJ.

GILLETTE, Judge.

Petitioner, an inmate at the Oregon State Penitentiary, petitioned for a writ of habeas corpus alleging that respondent and his subordinates denied petitioner needed medical care and discriminated against him in terms of eligibility for work release because of his medical problems. Petitioner sought to compel immediate medical care and an end to the discrimination. The circuit court granted the defendant's motion to strike petitioner's amended replication because of lack of jurisdiction. Petitioner declined to plead further and the court entered an order dismissing the petition. We reverse.

This action is brought pursuant to ORS 34.310 which states, in part, that:

" * * * Every person imprisoned or otherwise restrained of his liberty, within this state, except in the cases specified in ORS 34.330, may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint, and if illegal, to be delivered therefrom."

Petitioner is not challenging the legality of his imprisonment; rather, his claim is based on the treatment, or lack thereof, that he is receiving. The issue to be decided is whether this action, which is basically an action concerning conditions of confinement, can properly be brought as a habeas corpus action.

Traditionally, a writ of habeas corpus could only be used where a prisoner was challenging the legality of his confinement and was seeking release from that confinement. Courts expanded the scope of the writ to include cases where the prisoner was not challenging the judgment of conviction itself but rather "the legality of additional measures of imprisonment or restraint * * * beyond the initial restraint" of imprisonment itself. Penrod /Brown v. Cupp, 283 Or. 21, 24, 581 P.2d 934, 936 (1978). The writ was for a time also extended in Oregon to include cases where the prisoner's sole claim concerned the legality of the treatment he or she was receiving. In Newton v. Cupp, 3 Or.App. 434, 437, 474 P.2d 532, 534 (1970), we stated that "habeas corpus is available in Oregon to test the constitutionality of treatment afforded an inmate of a penal institution."

An important reason for our decision in Newton was the fact that, at the time, prisoners convicted of a felony were denied by statute the right to pursue ordinary civil remedies against illegal treatment. Id., at 439, 474 P.2d 532. In 1975, the legislature abolished civil death of prisoners; this gave them recourse to ordinary civil remedies. ORS 137.275. Despite the repeal of "civil death" and the resulting availability of other remedies, however, the Oregon Supreme Court nevertheless subsequently concluded that "the writ of habeas corpus remains available to challenge alleged deprivations of a prisoner's rights" where the deprivations complained of relate solely to the prisoner's treatment in prison. Penrod /Brown v. Cupp, supra, at 23-24, 581 P.2d at 935. However, the court in Penrod limited the instances in which prisoners could challenge the conditions of their confinement in this way. In order to bring such an action, two essential elements must exist. The petitioner must show (1) a need for immediate judicial attention either because of the "urgency of the harm to which the prisoner claims to be exposed or * * * (judicial scrutiny) is found to be required as a matter of constitutional law", and (2) the lack of any other adequate and timely remedy. Penrod /Brown v. Cupp, supra, at 28, 581 P.2d at 937.

Petitioner suffers from diabetes. He alleges that, when he was first incarcerated, prison officials failed to supply him with a diabetic's diet or insulin and that, as a result, he suffered a diabetic coma. Since that time he has received insulin but not the necessary diabetic diet. He claims to be going blind as a consequence. Petitioner alleges that prison officials have refused to provide him with the necessary surgery to arrest this deterioration in his eyesight. Additionally, he claims that they have also refused to provide him with the surgery needed to correct a congenital heart defect from which he suffers.

While petitioner does not claim a constitutional violation, he does allege a deprivation "which, if true, would require immediate judicial scrutiny." Penrod /Brown v. Cupp, supra, at 28, 581 P.2d at 937. Taking the allegations in his complaint as true, it is apparent that petitioner states a claim which requires immediate attention because of "the urgency of the harm" to which he claims to be exposed. Penrod /Brown v. Cupp, supra, at...