Lawson v. Cain

323 Or.App. 730

524 P.3d 529

Mark Elwyn LAWSON, Plaintiff-Respondent,

v.Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Appellant.

A175845

Court of Appeals of Oregon.

Argued and submitted March 31, 2022.

January 25, 2023

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.

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 , 290 Or. 611, 625 P.2d 123 (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 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 replication¹ raised four claims for relief, 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

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 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 , 314 Or. 411, 840 P.2d 65 (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 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." 290 Or. at 620, 625 P.2d 123. Plaintiff points out that both the Supreme Court and this court have consistently followed Sterling in expressly applying Article I, section 13,...