Wesley v. Cain

                                   790

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
Submitted October 26, affirmed November 23, 2022, petition for review denied
                        March 30, 2023 (

)


              MICHAEL WAYNE WESLEY, JR.,
                     Plaintiff-Appellant,
                               v.
                         Brad CAIN,
                      Superintendent,
             Snake River Correctional Institution,
                   Defendant-Respondent.
                Malheur County Circuit Court
                    20CV29273; A175943


  Paula Brownhill, Senior Judge.
   Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  KAMINS, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2022)                               791

           KAMINS, J.
         Plaintiff sought habeas corpus relief, alleging that
the superintendent of Snake River Correctional Institution
had been “deliberately indifferent” to his “serious medical
need,” in violation of his right to be free from cruel and
unusual punishment pursuant to Article I, section 16, of
the Oregon Constitution and the Eighth Amendment to the
United States Constitution. See Billings v. Gates, 

, 

 (1996) (adopting that standard).
The parties do not dispute that plaintiff’s significant injuries constitute a serious medical need. Plaintiff contends,
however, that delays in his treatment and care stemming
from the COVID pandemic amount to deliberate indifference, that is, a “conscious disregard” of a substantial risk
of serious medical harm. Easley v. Bowser, 

, 

 (2020) (citing Toguchi v. Chung, 

 (9th Cir 2004)). We agree with the trial court
that the record does not evince deliberate indifference on
the part of defendant, particularly in light of the fact that
plaintiff has been scheduled for or received the care that
had been delayed.1
           Affirmed.




    1
      In particular, plaintiff has been scheduled for the physical therapy that his
treating providers have unanimously agreed would be beneficial to him. The trial
court’s observation that physical therapy would not enable plaintiff to walk again
is not relevant to the question of whether the treatment is indicated.