Lawson v. Cain

                                       730

Argued and submitted March 31, 2022, affirmed January 25, petition for review
                     denied May 18, 2023 (

)


                    MARK ELWYN LAWSON,
                       Plaintiff-Respondent,
                                 v.
                            Brad CAIN,
                         Superintendent,
                Snake River Correctional Institution,
                       Defendant-Appellant.
                   Malheur County Circuit Court
                       20CV19590; A175845
                                   

    Defendant, the superintendent of Snake River Correctional Institution
(SRCI), appeals from a judgment granting habeas corpus relief to plaintiff, an
adult in custody (AIC) at SRCI, on the grounds that defendant’s failure to provide
adequate preventative and management measures in response to the COVID-19
virus in the prison subjected plaintiff, who is medically vulnerable, to “unnecessary rigor” in violation of Article I, section 13, of the Oregon Constitution. On
appeal, defendant contends that Article I, section 13, applies only to persons who
have been arrested or confined in jail, but have not yet been convicted of a crime,
and that an Article I, section 13, claim requires a plaintiff to prove that the
defendant intentionally subjected them to abusive treatment or was deliberately
indifferent to seriously harmful or dangerous conduct or conditions. Held: The
Court of Appeals concluded that both of defendant’s arguments are foreclosed by
Sterling v. Cupp, 

, 

 (1981).
    Affirmed.



    Amy M. Baggio, Judge.
   E. Nani Apo argued the cause for appellant. Also on
the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
   Jedediah Peterson argued the cause for respondent. Also
on the brief was O’Connor Weber LLC.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
    ORTEGA, P. J.
    Affirmed.
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 (2023)                              731

        ORTEGA, P. J.
         Defendant, the superintendent of Snake River
Correctional Institution (SRCI), appeals from a judgment
granting habeas corpus relief to plaintiff, an adult in custody (AIC) at SRCI. After an evidentiary hearing, the trial
court granted in part plaintiff’s third claim for relief on the
grounds that defendant’s failure to provide adequate preventative and management measures in response to the
COVID-19 virus in the prison subjected plaintiff, who is
medically vulnerable, to “unnecessary rigor” in violation of
Article I, section 13, of the Oregon Constitution. On appeal,
defendant raises two assignments of error, both of which we
conclude are foreclosed by Sterling v. Cupp, 

, 

 (1981). Accordingly, we affirm.
         We draw the relevant facts, which are undisputed,
from the trial court’s written opinion and order. SRCI is
located in Malheur County and is the designated Oregon
Department of Corrections (ODOC) facility for treating AICs
from around the state who are suffering from COVID-19
because its infirmary has six negative pressure cells and
24-hour nursing care. Between May 2020 and the February
2021 evidentiary hearing in this case, defendant made ongoing and evolving efforts to prevent and combat COVID-19 in
the prison, including imposing mask requirements consistent with Governor Brown’s executive orders and conducting
regular symptom checks on staff members, although defendant did not require staff to test for COVID-19. Defendant’s
efforts to enforce compliance with masking requirements
were met with resistance and the spread of misinformation
by both prison officials and AICs. Most SRCI staff live in
Idaho, where masks were not required and not broadly worn,
and it was difficult for staff to understand why masks were
required in one state and not the other. Staff were on the
whole skeptical about virus risks and the value of masking,
and staff views on the pandemic, including misinformation
and conspiracy theories, spread to AICs.
        SRCI staff and AICs were subject to discipline for
not complying with masking rules, but defendant did not
consistently enforce the rules because the issue was so controversial with staff and because defendant did not want
to risk organized resistance from AICs. AICs could file a
732                                                             Lawson v. Cain

grievance to report staff who failed to wear masks, but
understandably feared retaliation from staff in positions of
power over them. AICs refused to report COVID-19 symptoms because those suspected of being exposed to or contracting the virus were moved to the disciplinary unit for
isolation, which they viewed as punishment. As a result,
some AICs hid their symptoms and threatened others for
reporting symptoms.
         At the time he filed his petition in June 2020, plaintiff was a 62-year-old AIC who had been housed at SRCI
since 2016. He suffers from various medical conditions,
including chronic obstructive pulmonary disease (COPD).
Plaintiff’s age and medical conditions render him a medically vulnerable person at high risk of serious illness or
death were he to contract COVID-19. He was terrified of
contracting the virus and lived in constant fear, although he
declined to receive the COVID-19 vaccine in January 2021
because it was not approved by the United States Food and
Drug Administration and he was concerned about breathing difficulties as a potential side effect.
          Plaintiff’s habeas replication raised four claims
for relief,1 two of which are relevant to this appeal. In his
first claim, plaintiff alleged that defendant took insufficient
measures to protect him from COVID-19 and that defendant’s inadequate safety measures constituted cruel and
unusual punishment in violation of Article I, section 16, of
the Oregon Constitution and the Eighth Amendment to the
United States Constitution. Plaintiff alleged that defendant
knew about plaintiff’s medical conditions and high-risk status and exhibited deliberate indifference to his serious medical needs by failing to adequately protect him against that
risk. In his third claim, plaintiff alleged that defendant’s
insufficient protective measures, which exposed him to an
ongoing and serious health hazard, violated his Article I,
section 13, right to be free from unnecessary rigor.2
    1
      A replication allows a plaintiff “to state … allegations sufficient to constitute a claim for relief, and thereby overcome a motion to dismiss that asserts that
deficiency in her pleading.” McClintock v. Schiedler, 

, 

 (1993) (construing ORS 34.670).
    2
      In his second claim, plaintiff alleged that defendant’s failure to provide
adequate treatment and diagnosis of plaintiff’s serious medical conditions, based
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          Defendant filed a partial motion to dismiss plaintiff’s third claim, arguing that the Unnecessary Rigor Clause
of Article I, section 13, applies only to persons who have been
arrested or confined in jail, but have not yet been convicted
of a crime. The trial court denied the motion, concluding that
defendant’s argument was contrary to Oregon precedent,
including Sterling, that has applied the Unnecessary Rigor
Clause to persons serving post-conviction prison sentences.
          After the evidentiary hearing, the trial court denied
plaintiff’s first claim and granted his third claim in part. As
to the first claim, the trial court concluded that plaintiff was
being subjected to an unnecessarily dangerous environment
at SRCI, but that plaintiff had failed to prove that defendant
had acted with deliberate indifference to his medical needs.
Specifically, the trial court concluded that “COVID-19 as
managed at SRCI present[ed] an unnecessarily dangerous
environment with specific regard to the failures in mask
wearing and the risk those failures pose[d] to [p]laintiff,”
and that those failures violated “contemporary standards of
decency.” The court further concluded that, although it was
“a very close call,” plaintiff had failed to demonstrate that
defendant “turned a blind eye and deaf ear to the COVID-19
problem in a manner indicative of total unconcern for
[p]laintiff’s welfare.”
         As to plaintiff’s third claim, the court first rejected
defendant’s argument that an Article I, section 13, unnecessary rigor claim involves both a subjective and objective
component, as with claims of cruel and unusual punishment
under Article I, section 16, and the Eighth Amendment. The
court concluded that, under Sterling, the analysis was a
purely objective one. The court then concluded that defendant’s failure to enforce proper mask-wearing at SRCI created “an unjustifiable risk of a serious health hazard” to

on defendant’s treatment of plaintiff’s medical conditions, constituted cruel and
unusual punishment under Article I, section 16, and the Eighth Amendment.
The trial court granted relief on that claim, and defendant does not challenge
that ruling on appeal.
    In his fourth claim, plaintiff alleged that defendant’s handling of the COVID-19
pandemic violated his due process and equal protection rights under the Oregon
and United States Constitutions. The trial court dismissed that claim before the
evidentiary hearing for failure to state a claim.
734                                            Lawson v. Cain

medically vulnerable AICs, including plaintiff. The court
ordered defendant to prepare a proposal to address the steps
he would take to reduce unnecessary risks of COVID-19 to
medically vulnerable AICs and enjoined defendant and his
agents from retaliating against plaintiff. The court also
awarded plaintiff costs and retained jurisdiction over the
case to ensure compliance. Defendant timely appealed.
          On appeal, defendant contends that the trial court
erred in denying his partial motion to dismiss Claim 3 and
in granting relief on that claim. Defendant presents two separate but related arguments in support of his assignments
of error.
         First, defendant contends that the Unnecessary
Rigor Clause does not apply to persons who have been
convicted of a crime and are serving a prison sentence as
punishment for that crime. Defendant acknowledges that,
beginning with Sterling, Oregon appellate courts have
applied Article I, section 13, in the context of AICs serving
prison sentences after a conviction, but defendant insists
that neither Sterling nor cases applying it have had occasion
to address, under the framework for interpreting constitutional provisions set forth in Priest v. Pearce, 

,

 (1992), whether the framers intended to limit
Article I, section 13, to those arrested or confined but not
yet convicted of a crime. In defendant’s view, the court in
Sterling assumed, but did not decide, that Article I, section 13,
applies to convicted prisoners. Defendant contends that the
text of Article I, section 13, in context, as well as the historical circumstances of its adoption and the case law that has
construed it, support his position.
         Second, defendant argues that the trial court
applied an incorrect legal standard to plaintiff’s third
claim. Specifically, defendant contends that to establish a
claim under Article I, section 13, a plaintiff must demonstrate both that they have been subjected to unnecessarily
harmful or dangerous treatment (the objective component)
and that the defendant intentionally subjected them to abusive treatment or was deliberately indifferent to seriously
harmful or dangerous conduct or conditions (the subjective
component). Defendant argues that case law construing and
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applying Article I, section 13, has not established a standard for evaluating such claims and that the provision’s
text, context, and historical circumstances support his position, which is consistent with relevant case law.
          Plaintiff responds that both of defendant’s arguments are foreclosed by Sterling and cases applying its
framework. As to defendant’s first argument, plaintiff contends that Sterling squarely held that Article I, section 13,
is addressed to prison practices and applied its protections
to prisoners in a penitentiary. As to defendant’s second
argument, plaintiff contends that the standard announced
in Sterling was a purely objective one: To establish a claim
under Article I, section 13, a plaintiff need only show that
“a particular prison or police practice would be recognized
as an abuse to the extent that it cannot be justified by
necessity.” 

. Plaintiff points out that both the
Supreme Court and this court have consistently followed
Sterling in expressly applying Article I, section 13, to prison
conditions and that the plaintiffs in Sterling prevailed on
their claim without showing any subjective mental state
on the part of the defendants. Finally, plaintiff argues that
this court is in no position to reconsider Sterling and, even
if it were, defendant has not demonstrated that Sterling was
wrongly decided or failed to follow the Priest methodology
for interpreting constitutional provisions.
          Article I, section 13, provides that “[n]o person
arrested, or confined in jail, shall be treated with unnecessary rigor.” The Supreme Court first construed that provision in Sterling, which we discuss in detail, given the parties’ dispute.
         The plaintiffs in Sterling were male inmates at
Oregon State Penitentiary (OSP) who had successfully
sued to enjoin the defendant OSP superintendent and other
prison officials from assigning female guards to duties that
involved frisking male prisoners or observing them in showers and toilets. 

. On appeal, the defendants
contended that no constitutional rights of the plaintiffs were
violated, and this court affirmed the trial court’s injunction
on the basis of a federal constitutional right to privacy. 

.
736                                            Lawson v. Cain

          On review, the Supreme Court set out to analyze
Oregon law before addressing a federal constitutional claim.

. The court explained that Article I, section 13,
which has no analogue in the federal Bill of Rights, “confine[s] ‘rigorous’ treatment to prisoners within constitutional bounds of necessity” and is “directly addressed to
prison practices.” 

. The court explained that
Article I, section 13, is “in th[e] tradition” of similar provisions in other state constitutions dating from as early as
1783, which “reflect a widespread interest in penal reform
in the states during the post-Revolutionary decades” and “a
commitment to humanizing penal laws and the treatment
of offenders to rank with other principles of constitutional
magnitude independently of any concern of the Congress or
of Madison’s Bill of Rights.” 

 at 617-18 & nn 10-15.
         In explaining why Article I, section 13, was “a more
cogent premise” to decide the inmates’ claim than a federal
right to privacy, the court observed that Article I, section 13,
“is addressed specifically to the treatment of persons
‘arrested, or confined in jail,’ ” so “there can be no argument
that rights under this guarantee are forfeited by conviction
of crime or under lawful police custody, as those are the circumstances to which its protection is directed.” 

. In contrast to the federal right to privacy’s “elasticity
in the face of important public policies,” Article I, section 13,
“itself makes necessity the test of the practices it controls.”

. The court explained that, unlike Article I, sections 15 and 16, which are directed specifically at methods
or conditions of “punishment,” Article I, section 13, “extends
to anyone who is arrested or jailed” and is not “confined only
to such historically ‘rigorous’ practices as shackles, the ball
and chain, or to physically brutal treatment or conditions.”

. The court framed the inquiry as whether a
police or prison practice “constitutes a cognizable indignity
and if so, whether it is justified by necessity.” 

.
          As to the first prong, “what is or is not an indignity
is largely a matter of social and individual psychology,” and
“a practice may appear to be so from the purpose of its imposition, or from the viewpoint of the prisoner, or in the perception of the general public.” 

. Moreover, “such views
may differ widely among individuals and change over time
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with changing social expectations.” 

 Applying that framework, the court concluded that the alleged prison practices
constituted a cognizable indignity under Article I, section 13,
despite the fact that “there [wa]s no claim that shakedowns
by female guards were purposely designed to humiliate the
prisoners.” 

 Turning to the second prong, the court concluded that the alleged prison practices were not justified by
necessity because nothing “intrinsic to the searches themselves, nor from a shortage of skilled personnel” gave rise
to necessity, and the court rejected the defendants’ claims
that the state’s policy of providing equal occupational opportunities to women rendered the practice necessary. Id. at
625-28.
          The court concluded by reiterating that the lower
courts had “correctly recognized that prisoners can raise a
constitutionally founded objection to a search by corrections
officers of the opposite sex that involves touching of sexually
intimate body areas even through clothing” but that “[t]he
source is … [A]rticle I, section 13.” Id. at 632. “Under that
section, the objection is overcome when and to the extent
that the circumstances of the specific search make its performance by an officer of the opposite sex ‘necessary.’ ” Id.
The court affirmed the judgment granting the injunction.
Id.
          Returning to this case, we conclude that Sterling
forecloses defendant’s two assignments of error. As to the
first, we do not read Sterling, as defendant contends, to merely
assume that Article I, section 13, applies to those confined
in prison serving post-conviction sentences. Rather, the
court construed that provision’s text, context, and history,
and held it to apply to anyone arrested or confined, including those who have been convicted and are serving prison
sentences. Id. at 617-20. Indeed, both the Supreme Court
and this court have subsequently read Sterling to apply
Article I, section 13, protections to inmates who are confined
in prison upon conviction of a crime. Bedell v. Schiedler, 

, 570 & n 7, 

 (1989) (holding that the
plaintiff’s allegation that the prison environment in which
she was confined unnecessarily subjected her to serious
health hazards stated a cognizable claim under Article I,
section 13); Schafer v. Maass, 

, 

                                                        Lawson v. Cain

474 (1993) (holding that the plaintiff’s allegation that he
was being subjected to “ongoing and periodical” assaults
by named defendants in the Intensive Management Unit at
OSP stated a cognizable Article I, section 13, claim); State
v. Freudenthaler, 

, 

, rev den,

 (1987) (“[T]he historical analysis of [Article I,
section 13,] in Sterling[ ] makes it clear that the provision is
directed to prison practices.”).
         As to defendant’s second assignment of error, we
read Sterling to announce a purely objective framework
under Article I, section 13: whether a police or prison practice constitutes (1) a cognizable indignity and (2) lacks necessity. Contrary to defendant’s argument, a plaintiff need not
establish that the defendant acted with a particular subjective intent. The Sterling court affirmed the judgment granting the plaintiffs an injunction despite the fact that they did
not allege—and there was no evidence to support—that the
prison practices “were purposely designed to humiliate the
prisoners.” 

. The court’s only indication
that a defendant’s subjective intent may be relevant to the
analysis is as to the question of whether an alleged police
or prison practice constitutes a cognizable indignity under
Article I, section 13. See 

 (explaining that “what is
or is not an indignity is largely a matter of social and individual psychology,” and “a practice may appear to be so from
the purpose of its imposition” among other perspectives).3
        Finally, we agree with plaintiff that this court is
in no position to reconsider Sterling. “We are an intermediate appellate court, bound by the precedent of the Supreme
Court.” State v. Portulano, 

, 

(2022).
           Affirmed.




     3
       Because we conclude that Sterling controls both of defendant’s assignments
of error, we need not consider defendant’s additional arguments.