Woodroffe v. Nooth

• Decision Date: 31 July 2013
• Docket Number: 10027899H, A146918.
• Citation: 257 Or.App. 704,308 P.3d 225
• Parties: Robert WOODROFFE, Plaintiff–Appellant, v. Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant–Respondent.
• Court: Oregon Court of Appeals

257 Or.App. 704

308 P.3d 225

Robert WOODROFFE, Plaintiff–Appellant,

v.Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant–Respondent.

10027899H, A146918.

Court of Appeals of Oregon.

Submitted April 23, 2013.

Decided July 31, 2013.

Erin Galli and Chilton & Galli, LLC, filed the brief for appellant.

John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Stephanie L. Striffler, Senior Assistant Attorney General, filed the brief for respondent.

Before HASELTON, Chief Judge, and BREWER, Judge pro tempore.

HASELTON, C.J.

Plaintiff, an inmate at Snake River Correctional Institution (SRCI), petitioned for a writ of habeas corpus, alleging that defendant has denied him constitutionally adequate medical treatment for his various physical and psychological conditions, including a fractured coccyx, knee pain, migraine headaches, and attention deficit hyperactivity disorder (ADHD). Or. Const., Art. I, § 16; U.S. Const., Amend. VIII.¹ After the writ issued, defendant moved to dismiss, ORS 34.680(1), arguing, inter alia, that no objectively reasonable juror could find that defendant had denied plaintiff constitutionally adequate medical diagnosis or treatment. The trial court granted defendant's motion to dismiss and entered a general judgment of dismissal. On appeal, plaintiff contends that he presented sufficient evidence to establish disputedissues of material fact as to whether defendant was deliberately indifferent to his serious medical needs. We conclude that the trial court did not err in dismissing the writ. Accordingly, we affirm.

A motion to dismiss a writ of habeas corpus is “the functional equivalent of a motion for summary judgment,” McClintock v. Schiedler, 123 Or.App. 334, 336, 859 P.2d 580 (1993); thus, in reviewing a judgment dismissing a writ of habeas corpus, we will affirm if the record, viewed in the light most favorable to the plaintiff, presents no genuine issue of material fact and the defendant is entitled to prevail as a matter of law. SeeORCP 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.”). In our assessment of the record, the plaintiff's replication is not the equivalent of “an affidavit or other evidence that is sufficient to overcome a motion to dismiss for failure to establish a claim for habeas corpus relief.” McClintock, 123 Or.App. at 338, 859 P.2d 580.

“To state a cognizable claim for habeas corpus relief under Article I, section 16, a prisoner must allege that the prisoner 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 enunciated in Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). 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.

For the purposes of this opinion, we state the facts from the record in the light most favorable to plaintiff. Plaintiff suffers from a fractured coccyx, knee pain, migraine headaches, and ADHD. At SRCI, Oregon Department of Corrections doctors Gulick and Elliott–Blakeslee have treated his physical ailments and nurse practitioner Kramer has treated his ADHD. Certain medical decisions for inmates at SRCI are reviewed by a committee that oversees medical treatment, the Therapeutic Level of Care Committee (TLC).

Plaintiff suffers from pelvic and low back pain related to his fractured coccyx. Plaintiff also suffers from knee pain caused by a degenerative condition, which may be due to his weight. Those conditions and the associated pain prevent plaintiff from exercising.

On July 24, 2009, Elliott–Blakeslee examined plaintiff and ordered x-rays, which showed a possible nondisplaced fracture of the distal coccyx, and bone scans were considered. An x-ray of plaintiff's knee showed no evidence of fracture or of “other significant boney abnormality.” On December 21, 2009, Elliott–Blakeslee again examined plaintiff, who complained of low back and coccyx pain, despite receiving pain medication, Indocin, three times a day. Plaintiff requested “ ‘something stronger’ than ibuprofen” for his pain. He also requested a surgical consultation for his coccyx. Elliott–Blakeslee referred those requests to the TLC, which denied both requests.

On January 19, 2010, plaintiff again met with Elliott–Blakeslee for evaluation of his coccyx pain. Subsequent x-rays showed a slight displacement, which may have been the cause of plaintiff's pain. Elliott–Blakeslee again requested that the TLC review plaintiff's requests for pain medication and a surgical consultation—and the TLC rejected those requests, after determining that the pain medication was not medically indicated and that there is no accepted surgery for coccyx pain. Instead, the TLC approved a donut cushion for plaintiff's sitting comfort.

On March 9, Gulick examined plaintiff for knee pain and, consequently, referred to the TLC a request for a bone scan for plaintiff. Presumably that request was approved because, on April 15, plaintiff was given a whole-body bone scan examination. That scan indicated that plaintiff's spine “looked normal,” but that he might have a healing fracture in his pelvis. The scan also showed that plaintiff's knees may be under stress and degenerating.

On May 11, plaintiff refused to see Gulick to review the bone scan and to consider treatment options. In an affidavit dated the next day, Gulick averred, “When [plaintiff] agrees to follow-up with the proposed treatment option, I'll refer him back to TLC.”

Plaintiff next met with Gulick on August 17 regarding his knee pain and complained that he could not “get to standing or walk long.” Plaintiff also complained that the donut did not help his coccyx pain but reported that, at that point, his knee pain was worse than his coccyx pain. That same day, Gulick increased plaintiff's Indocin prescription, prescribed Tylenol, and again referred plaintiff's coccyx pain complaints to the TLC for review. The record does not disclose the outcome of that review.

As noted, plaintiff also suffers from migraine headaches, which occur approximately two or three times a week and disrupt his sleep. For some period of time after his incarceration at SRCI, plaintiff's migraines were treated with Cafergot, which helped both to prevent onset and ease pain. That treatment changed after the settlement of a federal lawsuit that plaintiff filed in 2008 against 40 defendants, including Gulick, alleging medical mistreatment. Thereafter, in August 2009, while plaintiff was in a segregation unit, Gulick discontinued Cafergot in a medical order, where he wrote, “[Discontinue] Cafergot unless migraines severe per policy in seg[regation] per Dr. Shelton.” In September, plaintiff reported to a nurse that he was having a migraine and that “nothing helps except [for] Cafergot.” In October, Gulick approved Imitrex for plaintiff's headaches in “the standard amount * * * with a dosage identical to all other inmates.” Imitrex lessens the pain plaintiff experiences from the migraines, but, unlike Cafergot, it does not help to prevent them. In February 2010, plaintiff reported to a nurse, “I had a migraine * * *, but not now. I used to have Cafergot and it really worked. Imitrex helped some.”

Gulick has adjusted plaintiff's dosage of Imitrex. After determining that, as of July 30, 2010, the amount of Imitrex that plaintiff had been prescribed was inadequate to treat the frequency of his migraines, Gulick, on August 17, increased plaintiff's Imitrex prescription and prescribed Norvasc for a “prophylactic trial.” There is no evidence in the record of the effect of that change in medication.

As noted, plaintiff also has ADHD. Plaintiff's ADHD was formerly managed with Ritalin; however, after the Oregon Department of Corrections discontinued the use of Ritalin throughout the corrections system, nurse practitioner Kramer prescribed plaintiff Wellbutrin and Benadryl to help manage his ADHD. On December 11, 2009, a corrections officer reportedly found crushed, “cheeked” medications in plaintiff's cell.² Based on that incident, plaintiff's ADHD medications were discontinued because, according to nurse Hodge, who manages medical services at SRCI,

“[w]hen an inmate abuses medication[, including discovery of medline medication on an inmate's person or in his property after medline], the provider will evaluate the inmate's need for that specific medication. If abuse is found, the initial prescriber will generally make a decision and visit with the inmate to let the inmate know his medication is being discontinued. The provider will continue to observe the inmate therapeutically without the medication. Providers can make a decision to discontinue medication, medline all medication, or ask the nurse to crush all medication prior to administering them. There are times when medication is discontinued and restarted again.”

Pursuant to that policy, Kramer discontinued plaintiff's ADHD medication.

Kramer subsequently scheduled an appointment to assess plaintiff's reaction...