Weaver v. Highberger

555 P.3d 315

334 Or.App. 96

Richard WEAVER, Jr., Plaintiff-Appellant,

v.Josh HIGHBERGER, Superintendent, Oregon State Correctional Institution, and Colette Peters, Director, Oregon Department of Corrections, Defendants-Respondents.

A176508

Court of Appeals of Oregon.

Submitted March 13, 2023

July 31, 2024

Marion County Circuit Court 20CV19928; Donald D. Abar, Judge.

Jedediah Peterson and O’Connor Weber, LLC, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Julia Glick, Assistant Attorney General, filed the brief for respondents.

Before Ortega, Presiding Judge, Powers, Judge, and Hellman, Judge.

HELLMAN, J.

₉₈Plaintiff appeals a judgment that terminated the trial court’s continuing jurisdiction over a case in which he obtained habeas corpus relief on the basis that defendants deprived him of constitutionally required medical care. On appeal, he raises three assignments of error. In the first, he asserts that the trial court erred in denying his motion for a fourth emergency hearing on defendants’ alleged noncompliance with the judgment granting habeas relief and the subsequent orders enforcing the judgment. In the second, he asserts that the trial court erred in denying his request for reconsideration of its ruling that defendants had complied with the judgment. In his third, he asserts that the trial court erred in terminating continuing jurisdiction. Because we conclude that the trial court did not abuse its discretion in making any of those rulings, we affirm.

In April 2020, plaintiff filed a petition for a writ of habeas corpus alleging that defendants acted with deliberate indifference to his serious medical needs by failing to treat: (1) his respiratory issues (asthma and bronchitis) exacerbated by COVID-19; (2) his chronic pain syndrome that causes him wrist pain; and (3) his high cholesterol. The trial court granted the writ and appointed counsel, who filed a replication.

At the replication hearing, in addition to the claims in his replication, plaintiff presented evidence on two additional claims: that defendants failed to provide plaintiff with sufficient inhalers for his asthma to receive the amount of medication that he was prescribed, and that defendants were failing to adequately treat his chronic pain syndrome.

In January 2021, the trial court issued a letter opinion. The court found that defendants were deliberately indifferent to plaintiff’s significant medical needs, granted plaintiff habeas relief, and ordered defendants to remedy the unconstitutional conditions of plaintiff’s confinement. In a February 2021 formal judgment, the court ordered defendants to provide and arrange the following medical care for plaintiff:

₉₉(1) "arrange for plaintiff to see a pulmonary specialist for pulmonary function testing and such other diagnostic workup as that specialist recommends," and follow the specialist’s treatment recommendations; (2) "immediately make sufficient inhalers available to plaintiff to allow him to use the prescribed amount";

(3) "ensure that plaintiff consults with an orthopedic surgeon following his wrist MRI and *** comply with that physician’s treatment recommendations," and until that treatment occurs, "implement effective pain control measures for plaintiff’s wrist"; and

(4) "ensure that plaintiff is seen by a pain control specialist regarding his chronic pain syndrome and *** follow the treatment recommendations of said specialist."

The trial court explicitly retained jurisdiction over the case "to ensure compliance with the court’s orders."

Over the course of the next month, plaintiff sought three emergency hearings to address defendants’ failures to comply with the terms of the original judgment, as well as to compel defendants to address a back injury plaintiff sustained after he jumped down three stairs. The trial court issued a supplemental order after each hearing.

The first supplemental order required defendants to refer plaintiff to a pain management specialist. And given the new back injury plaintiff suffered, it also ordered defendants to refer plaintiff to the Salem Spine and Pain Center or to have Dr. Warren Roberts—the Chief Medical Officer for the Department of Corrections—evaluate plaintiff’s back. If neither of those two options were possible, it ordered defendants to send plaintiff to the emergency room.

The second supplemental judgment ordered defendants to refer plaintiff to the Salem Spine and Pain Center or to Oregon Health & Science University (OHSU)’s pain clinic, and to provide plaintiff a wheelchair and an aide to assist plaintiff in moving around the prison.

The third supplemental judgment—arising after plaintiff complained that defendants had replaced his wheelchair with a walker that caused him wrist pain—again ₁₀₀ordered defendants to provide plaintiff a wheelchair and an ambulatory aide.

Ten days after the third hearing, plaintiff filed a motion for a fourth emergency hearing, alleging that defendants had failed to comply with all of the court’s original and supplemental judgments. He requested that the court find defendants in contempt and sought his release from prison for the alleged noncompliance. The court scheduled a hearing for the same morning that it received plaintiff’s motion. However, prior to the hearing, the case was reassigned to a new judge as part of the administrative process of managing the retirement of the judge who had been hearing the case.

At the start of the hearing, the new judge indicated that he had not had sufficient time to review the motion, its exhibits, or the case file and was unclear about the purpose of the hearing. He also indicated that he was disinclined to hold the hearing at that time, given his unfamiliarity with the case and the state’s inability to adequately respond. After hearing from plaintiff’s counsel about the reason for the hearing and defendants’ position on the timing of the fourth emergency motion, the judge set the hearing over for several weeks.

After holding the rescheduled hearing the court found that defendants had complied with the court’s original judgment ordering medical treatment, except for scheduling wrist reconstruction surgery as recommended by an orthopedic surgeon. The court recognized that "the treatment received is not to plaintiff’s satisfaction," yet determined that "defendant[s] ha[ve] nonetheless complied with the court’s orders." The court retained jurisdiction over the case until defendants provided evidence that they scheduled wrist surgery for plaintiff. Defendants scheduled the surgery and filed a motion to terminate continuing jurisdiction, informing the court of that development. The trial court granted defendants’ motion, terminated its continuing jurisdiction, and closed the case. The trial court later denied plaintiff’s motion for reconsideration. This appeal followed.

[1] In plaintiff’s first assignment of error, he argues that the trial court erred when it failed to hold a hearing ₁₀₁on his fourth emergency motion on the originally scheduled date. We reject plaintiff’s argument because the court did hold such a hearing.

Although the hearing was held later than plaintiff wished, "[i]t is well established that a trial court generally possesses broad discretion to control the proceedings before it." State v. Rogers, 330 Or. 282, 300, 4 P.3d 1261 (2000) (citing ORS 1.010). Here, the trial court was presented with a fourth emergency motion in a complex medical habeas case at a hearing that was set for the morning that the motion was filed. The judge candidly admitted that he had not had time to review the materials in the fourth emergency motion, let alone the case file, and was not prepared to engage with and rule on the issues. Moreover, the judge was troubled that defendants had not had adequate time to review and respond to the motion, which was seeking an order of contempt and plaintiff’s release. Under those circumstances, the trial court’s decision to postpone the hearing does not amount to an abuse of discretion.

[2, 3] In his second assignment of error, plaintiff asserts that the trial court erred when it denied his motion for reconsideration of the court’s order finding that defendants had complied with the initial judgment because the evidence demonstrated that defendants had not, in fact, complied.¹ We review a trial court’s denial of a motion for reconsideration for abuse of discretion. Varro and Varro, 300 Or App 716, 736 n 8, 454 P.3d 35 (2019) (citing Lang v. Rogue Valley Medical Center, 361 Or. 487, 497 n 8, 395 P.3d 563 (2017)). In so reviewing the trial court’s judgment on reconsideration, we are bound by the trial court’s explicit and implicit findings of fact if there is evidence in the record to support them. State v. Johnson, 335 Or. 511, 523, 73 P.3d 282 (2003).

We conclude that the trial court did not abuse its discretion in denying plaintiff’s motion for reconsideration because there was evidence in the record from which the court could have determined that defendants complied with ₁₀₂the four orders in the court’s judgment. We address each in turn.

[4] With regard to the first order to take plaintiff to a pulmonary specialist, defendants provided evidence that plaintiff saw a pulmonologist associated with Salem Pulmonary Associates. The pulmonologist recommended that plaintiff switch from his Arnuity inhaler to an Advair HFA inhaler, that he continue using Albuterol, that he continue taking pulmonary functioning tests, and that he obtain allergy and blood-count labs. By the fourth emergency hearing, defendants approved plaintiff for an Advair HFA inhaler, arranged for pulmonary functioning tests, and had ordered the necessary allergy and blood-count labs.

[5] As to the second order to provide plaintiff with sufficient inhalers, defendants had refilled plaintiff’s inhaler and established a system for him to request early refills.

[6] Regarding the third order to have plaintiff consult...