Submitted on April 23, 2013.
Malheur County Circuit Court 10027899H Patricia A. Sullivan, Judge.
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.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 disputed issues 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. 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."). 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.
"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.
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 ...