460
Submitted April 28, reversed and remanded September 10, 2020
DONALD L. EASLEY,
Plaintiff-Appellant,
v.
Troy BOWSER,
Superintendent,
Two Rivers Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
18CV35624; A170973
474 P3d 915
Plaintiff, an inmate at Two Rivers Correctional Institution (TRCI), petitioned
for a writ of habeas corpus, alleging that defendant, the superintendent at TRCI,
denied him constitutionally adequate medical treatment for his chronic back
pain. Defendant moved to dismiss plaintiff’s writ, and the trial court granted
defendant’s motion and entered a general judgment of dismissal. On appeal,
plaintiff contends that he presented sufficient evidence to establish a genuine
issue of material fact as to whether defendant was deliberately indifferent to
his serious medical needs. Held: Viewing the record as a whole, and taking the
evidence in the light most favorable to plaintiff, he experienced continued and
worsening pain while defendant repeatedly provided the same diagnostic procedures that did not identify a source for his pain and the same treatment options
that did not alleviate the bulk of his symptoms. Given the appellate standard of
review, a reasonable trier of fact could find that defendant had been deliberately
indifferent to plaintiff’s serious medical need.
Reversed and remanded.
Eva J. Temple, Judge.
Lindsey Burrows and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Powers, Judge, and
Kamins, Judge.
KAMINS, J.
Reversed and remanded.
Cite as 306 Or App 460 (2020) 461
KAMINS, J.
Plaintiff, an inmate at Two Rivers Correctional
Institution (TRCI), petitioned for a writ of habeas corpus,
alleging that defendant, the superintendent at TRCI, denied
him constitutionally adequate medical treatment for his
chronic back pain. Defendant moved to dismiss plaintiff’s
writ, and the trial court granted defendant’s motion and
entered a general judgment of dismissal. On appeal, plaintiff
contends that he presented sufficient evidence to establish a
genuine issue of material fact as to whether defendant was
deliberately indifferent to his serious medical needs. For the
reasons set out below, we conclude that the trial court erred
in dismissing the writ. Accordingly, we reverse and remand.
“A motion to dismiss a writ of habeas corpus is the
functional equivalent of a motion for summary judgment.”
Woodroofe v. Nooth, 257 Or App 704, 705,
308 P3d 225,
rev den,
354 Or 491 (2013) (internal quotation marks omitted). Consequently, in reviewing a judgment dismissing a
writ of habeas corpus, we must determine whether (1) the
record, viewed in the light most favorable to the plaintiff, presents no genuine issue of material fact and (2) the
defendant is entitled to prevail as a matter of law. Id.; see
ORCP 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.”).
Plaintiff alleges that defendant has denied him
adequate medical treatment for his chronic back pain in violation of the prohibitions against cruel and unusual punishment under Article I, section 16, of the Oregon Constitution
and the Eighth and Fourteenth Amendments to the United
States Constitution. To state a cognizable claim for habeas
corpus relief under both the Oregon and United States constitutions, “a prisoner must allege that [he or she] 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 P2d 291 (1996)
462 Easley v. Bowser
(adopting the standard under the Eighth Amendment set
forth in Estelle v. Gamble,
429 US 97, 106,
97 S Ct 285,
50
L Ed 2d 251 (1976), reh’g den,
429 US 1066,
97 S Ct 798,
50 L Ed 785 (1977)). 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. The deliberate indifference standard is high, but it “is not intended to
insulate prison staff from judicial scrutiny of decisions made
in the course of diagnosing and treating prison inmates.”
Id.
In line with our standard of review, we briefly state
the relevant facts from the record in the light most favorable
to plaintiff. Plaintiff suffers from chronic back pain, which
he reports as stemming from an “incident” in 2013. When he
was transferred into the custody of the Oregon Department
of Corrections (DOC) in October 2014, plaintiff informed
DOC staff of his pain. Plaintiff was given a physical examination and an x-ray soon after he arrived at TRCI; the x-ray
showed mild degenerative changes to plaintiff’s discs and
mild osteophytic lipping, but no other abnormalities. DOC
physicians concluded that plaintiff’s pain was caused by
degenerative disc disorder and, to treat that condition, they
prescribed nonsteroidal anti-inflammatory pain relievers
(NSAIDs), hot packs, and exercises.
Plaintiff’s back pain continued despite those treatments, and he complained of that pain consistently and
often from the time that he arrived at TRCI in 2014 until he
filed a petition for writ of habeas corpus in 2018. Over that
four-year period, plaintiff was seen in the prison clinic more
than 25 times by two DOC physicians for his persistent back
pain, among other things. Plaintiff requested an MRI procedure to better diagnose the cause of his back pain multiple
times during that period. Neither DOC physician believed
that an MRI was indicated, but they nonetheless both forwarded plaintiff’s request to the DOC Therapeutic Level of
Care Committee (TLCC). The first request for an MRI was
referred to the TLCC in 2016, and the second was referred
in 2018. The TLCC denied both requests without explanation, writing only “Denied” on the first request form and
“NO” on the second.
Cite as 306 Or App 460 (2020) 463
Instead of an MRI, the DOC physicians gave plaintiff repeated physical examinations and x-rays, which continued to show degenerative changes to plaintiff’s discs, as
well as mild to moderate osteophytic lipping. In response
to those x-ray results, and even as plaintiff’s osteophytic
lipping progressed from mild to moderate, the physicians
continued to prescribe the same treatments of NSAIDs, hot
packs, and exercises, and plaintiff’s pain continued without
relief. The only other diagnostic procedure in the record is
an abdominal CT scan that DOC staff ordered in 2018 in
response to plaintiff’s complaint of abdominal pain.1 The
DOC physician did not believe the CT scan of the abdomen
indicated a need for an MRI.
Turning to the parties’ arguments, we note first
that defendant did not challenge plaintiff’s assertion that
he suffers from a serious medical need. See Eklof v. Steward,
360 Or 717, 731,
385 P3d 1074 (2016) (explaining that under
ORCP 47 C, a motion for summary judgment puts at issue
only those issues “raised in the motion”). Consequently, and
given the volume of plaintiff’s complaints of chronic pain,
the only issue before us is whether there is a triable dispute
of fact as to whether defendant was deliberately indifferent
to plaintiff’s back condition. See Keenan v. Maass,
149 Or
App 576, 580,
945 P2d 526 (1997) (recognizing that a condition that causes constant or recurring pain amounts to a
serious medical need).
On appeal, plaintiff asserts that the record would
permit an objectively reasonable factfinder to find that
defendant was deliberately indifferent by failing to take
additional diagnostic steps to diagnose his persistent, severe
back pain. Specifically, plaintiff contends that, although
the DOC physicians made diagnostic and treatment efforts
on plaintiff’s behalf, those efforts were not sufficient to
1
Defendant contends that this CT scan was actually a CT scan of plaintiff’s
lumbar spine, which is the way one of the DOC physicians described the scan
in his progress notes and declaration. However, the only evidence in the record
of a CT scan is an abdominal and pelvic scan, ordered in response to symptoms
plaintiff reported for a condition unrelated to his back pain. Given that we review
the record in the light most favorable to plaintiff, we do not infer the existence of
a lumbar CT scan of which defendant did not provide evidence, nor can we infer
that an image of the abdomen provides a sufficient view of the spine to render a
diagnosis.
464 Easley v. Bowser
ameliorate plaintiff’s pain. Plaintiff points to the availability of other diagnostic measures, such as an MRI, which the
physicians requested on plaintiff’s behalf and the TLCC
denied. Thus, plaintiff asserts that, because the diagnostic
and treatment efforts of the DOC physicians were not successful in addressing plaintiff’s pain and there were other
options available to discover and treat the cause of that
pain, there is a triable issue of material fact as to whether
the prison’s refusal to grant an MRI constituted deliberate
indifference.
Defendant responds that the prison provided adequate medical treatment for plaintiff’s chronic back pain
because the DOC physicians “conducted a number of diagnostic tests to confirm that plaintiff’s pain was caused by
mild degenerative disc disease,” and that, according to the
treating physician, the members of the TLCC opined that
there was “no medical evidence to support a need for an
MRI.”2 Defendant directs us to Toguchi v. Chung, 391 F3d
1051, 1058,
391 F3d 1051 (9th Cir 2004), for the proposition that when a prisoner challenges medical staff’s choice
between alternative courses of treatment, the plaintiff must
establish that “the chosen course of treatment was medically unacceptable under the circumstances, and was chosen in conscious disregard of an excessive medical risk to
the prisoner’s health.” (Internal quotation marks omitted.)
Defendant contends that “the evidence showed, at most, a
mere difference of medical opinion between plaintiff and his
doctors,” and defendant was therefore entitled to judgment
as a matter of law.
Generally, “the question whether an X-ray or additional diagnostic techniques or forms of treatment is indicated is a classic example of a matter for medical judgment.”
Estelle, 429 US at 107. However, the decision to authorize a
diagnostic procedure is not entirely shielded from judicial
review. Indeed, as the Oregon Supreme Court has recognized,
“[t]he ‘deliberate indifference’ standard is not intended to
insulate prison staff from judicial scrutiny of decisions made
2
The physician’s notes do not indicate how he knew the TLCC’s reasoning
for denying plaintiff’s request for an MRI, which was not stated elsewhere in the
record.
Cite as 306 Or App 460 (2020) 465
in the course of diagnosing … prison inmates.” Billings,
323 Or at 181. Moreover, “[i]n deciding whether there has
been deliberate indifference to an inmate’s serious medical
needs, we need not defer to the judgment of prison doctors or
administrators.” Hunt v. Dental Dep’t, 865 F2d 198, 200 (9th
Cir 1989). Thus, the bare assertion of the use of “medical
judgment,” without articulated reasons, does not necessarily mean that an objectively reasonable factfinder could not
find for a plaintiff alleging a claim of deliberate indifference. Indeed, a plaintiff can successfully support a claim for
deliberate indifference even when a prison doctor has made
a diagnosis by alleging “facts, which, if true, dispute the
accuracy of that diagnosis.” Villarreal v. Thompson,
142 Or
App 29, 33-34,
920 P2d 1108 (1996) (reviewing a sua sponte
motion to dismiss at the pleadings stage of proceedings).
Read most favorably to plaintiff, the record contains
evidence that he suffered persistent, severe, and worsening
back pain that interfered with his ability to perform routine
daily tasks, including walking long distances. In response
to plaintiff’s continued complaints of severe pain, defendant
provided the same diagnostic measure, an x-ray, multiple
times.3 The results of those x-rays showed mild to moderate degenerative changes to plaintiff’s lumbar spine, and,
according to the DOC physicians, did not provide a structural explanation for the intensity of plaintiff’s continued
and worsening pain. Although the x-rays did not show a
structural cause of plaintiff’s pain, the DOC physicians did
not undertake further diagnostic procedures and instead
repeatedly prescribed the same treatments that, viewed in
the light most favorable to plaintiff, were ineffective: NSAID
medication, heat packs, and exercises.
Defendant does not argue that plaintiff’s pain is less
severe than he alleges or challenge plaintiff’s assertion that
his pain was persistent and worsening, and the record does
not provide support for why additional diagnostics were not
warranted when the prescribed treatment did not alleviate
plaintiff’s symptoms. Additionally, defendant does not argue
3
Although defendant claims that there was an additional diagnostic image
of a CT scan of the lumbar spine, as discussed above, there is no evidence on the
record of a CT scan of the lumbar spine.
466 Easley v. Bowser
on appeal that this is a case in which plaintiff was required
to submit expert testimony to meet his evidentiary burden
under ORCP 47 C. See Hinchman v. UC Market, LLC, 270
Or App 561, 570,
348 P3d 328 (2015) (“Expert testimony
is … ‘required’ to create a genuine issue of material fact
if the point or points put at issue by the defendant’s summary judgment motion are ones that are susceptible to proof
through expert testimony, given the plaintiff’s particular
theory of her claim.”). Instead, defendant argues only that
the record compels the inference that the DOC physicians
and the TLCC exercised medical judgment in determining
that an MRI was not indicated. That means, in defendant’s
view, that plaintiff has not come forward with sufficient evidence to allow a reasonable factfinder to find in his favor on
his claim of deliberate indifference.
We disagree. Although the medical records reflect
that defendant responded to plaintiff’s back condition, they
do not demonstrate the basis for the decisions that the
DOC physicians and the TLCC made. Further, viewing the
record as a whole, and taking the evidence in the light most
favorable to plaintiff, he experienced continued and worsening pain while defendant repeatedly provided the same
diagnostic procedures that did not identify a reason for
the continuing and worsening nature of his pain and the
same treatment options that did not alleviate the bulk of
his symptoms. Given our standard of review, a reasonable
trier of fact could find that defendant had been deliberately
indifferent to plaintiff’s serious medical need.
Because plaintiff has demonstrated a triable issue
of fact as to the constitutional adequacy of defendant’s treatment of his serious medical need, the trial court erred in
granting defendant’s motion to dismiss.
Reversed and remanded.
