Opinion
A175943
11-23-2022
MICHAEL WAYNE WESLEY, JR., Plaintiff-Appellant, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
Jedediah Peterson and O'Connor Weber LLC fled the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, fled the brief for respondent.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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, 2022
Malheur County Circuit Court 20CV29273; A175943 Paula Brownhill, Senior Judge.
Jedediah Peterson and O'Connor Weber LLC fled the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, fled the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.
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, 323 Or. 167, 180-81, 916 P.2d 291 (1996) (adopting that standard). The parties do not dispute that plaintiffs 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, 306 Or.App. 460, 464, 474 P.3d 915 (2020) (citing Toguchi v. Chung, 391 F.3d 1051, 1058 (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.
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.
Affirmed.