Weaver v. Highberger ( 2024 )

96 July 31, 2024 No. 524
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
RICHARD WEAVER, JR.,
Plaintiff-Appellant,
v.
Josh HIGHBERGER,
Superintendent,
Oregon State Correctional Institution, and
Colette Peters, Director,
Oregon Department of Corrections,
Defendants-Respondents.
Marion County Circuit Court
20CV19928; A176508
Donald D. Abar, Judge.
Submitted March 13, 2023.
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.
Affirmed.
Cite as 334 Or App 96 (2024) 97
98 Weaver v. Highberger
HELLMAN, J.
Plaintiff 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 noncom-
pliance 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 delib-
erate 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 addi-
tional 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 defen-
dants to provide and arrange the following medical care for
plaintiff:
Cite as 334 Or App 96 (2024) 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 spe-
cialist’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 sur-
geon following his wrist MRI and * * * comply with that
physician’s treatment recommendations,” and until that
treatment occurs, “implement effective pain control mea-
sures for plaintiff’s wrist”; and
(4) “ensure that plaintiff is seen by a pain control special-
ist 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 sus-
tained 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 defen-
dants 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 defen-
dants 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 wheel-
chair with a walker that caused him wrist pain—again
100 Weaver v. Highberger
ordered 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 defen-
dants 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 hear-
ing 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 sched-
uled wrist surgery for plaintiff. Defendants scheduled the
surgery and filed a motion to terminate continuing juris-
diction, 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.
In plaintiff’s first assignment of error, he argues
that the trial court erred when it failed to hold a hearing
Cite as 334 Or App 96 (2024) 101
on 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 pro-
ceedings before it.” State v. Rogers, 330 Or 282, 300, 4 P3d
1261 (2000) (citing ORS 1.010). Here, the trial court was pre-
sented with a fourth emergency motion in a complex med-
ical 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 pre-
pared 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 seek-
ing 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.
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 reconsider-
ation for abuse of discretion. Varro and Varro, 300 Or App
716, 736 n 8, 454 P3d 35 (2019) (citing Lang v. Rogue Valley
Medical Center, 361 Or 487, 497 n 8, 395 P3d 563 (2017)). In
so reviewing the trial court’s judgment on reconsideration,
we are bound by the trial court’s explicit and implicit find-
ings of fact if there is evidence in the record to support them.
State v. Johnson, 335 Or 511, 523, 73 P3d 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
1
We observe that defendants did not raise any challenges to our ability to
review the denial of a motion for reconsideration, and that motions for reconsid-
eration can create procedural problems on appeal. See Carter v. U.S. National
Bank of Oregon, 304 Or 538, 545, 747 P2d 980 (1987) (Peterson, J., concurring)
(characterizing motions for reconsideration as a “motion asking for trouble” and
discouraging their use).
102 Weaver v. Highberger
the four orders in the court’s judgment. We address each in
turn.
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 emer-
gency hearing, defendants approved plaintiff for an Advair
HFA inhaler, arranged for pulmonary functioning tests,
and had ordered the necessary allergy and blood-count labs.
As to the second order to provide plaintiff with suf-
ficient inhalers, defendants had refilled plaintiff’s inhaler
and established a system for him to request early refills.
Regarding the third order to have plaintiff consult
with an orthopedic surgeon for his wrist pain, the record
shows that plaintiff was seen by Hope Orthopedics. The
orthopedic specialists saw plaintiff for scaphoid subluxation
(SL), found acute SL ligament injury, and recommended
that plaintiff return to plan SL reconstruction surgery.
Defendants approved plaintiff for the SL surgery and agreed
to treat his pain in the meantime, providing him with lido-
caine patches and acetaminophen inside of his prison cell.
Although, at the fourth emergency hearing, defendants had
not yet scheduled the SL reconstruction surgery, they later
provided confirmation of his scheduled surgery.
Finally, with regard to the fourth order that defen-
dants ensure plaintiff consult with a pain control spe-
cialist, plaintiff had a phone consultation with OHSU’s
Comprehensive Pain Center to assess his neck, back, and
wrist pain. The pain control specialists determined that
plaintiff was not a good candidate for additional surgery.
Instead, they recommended medical management for his
chronic pain and that he stop taking opioids to treat the
pain. The specialists recommended a list of medications for
plaintiff’s chronic pain, and defendants approved the rec-
ommended medications (with the exception of one, which
Cite as 334 Or App 96 (2024) 103
defendants would later determine was not appropriate for
plaintiff) and stopped providing opioids.
Although plaintiff presented the testimony of
Dr. Baskerville in support of his argument that the treat-
ment and care provided to plaintiff did not comply with the
court’s orders, the trial court was not required to be per-
suaded by Dr. Baskerville’s testimony. It was permitted to
find defendants’ evidence more persuasive, and we are bound
by that credibility determination. Johnson, 335 Or at 523(holding that an appellate court is bound by a trial court’s
“finding that a party’s evidence is not sufficiently persua-
sive”). Accordingly, we find no abuse of discretion in the trial
court’s denial of plaintiff’s motion for reconsideration.
In plaintiff’s third assignment of error, he argues
that the trial court erred when it granted defendants’
motion to terminate jurisdiction over the case. We have not
yet directly addressed our standard of review when evalu-
ating a trial court’s termination of continuing jurisdiction
in a habeas corpus case. After considering the nature of the
decision at issue here, we conclude that the most appropri-
ate standard of review is for abuse of discretion. We reach
that conclusion for three reasons.
First, the authority that permits the court to retain
jurisdiction to enforce its orders is a discretionary one. It
is well established that trial courts have inherent judicial
powers to perform their functions, which “include the power
to compel obedience to a court’s own orders and judgments.”
Law v. Zemp, 362 Or 302, 327, 408 P3d 1045 (2018) (citing
Ortwein v. Schwab, 262 Or 375, 385-86, 398 P2d 757 (1972),
aff’d, 410 US 656, 93 S Ct 1172, 35 L Ed 2d 572 (1973)); see
also ORS 1.010(4) (“Every court of justice has power * * * [t]o
compel obedience to its judgments, orders and process * * *.”).
And the trial court has “broad discretion” to exercise those
powers. Durocher and Durocher, 319 Or App 223, 227, 509
P3d 682 (2022). Although we have cautioned that habeas
courts do not have the authority to broadly “supervise * * *
the administration of a penal institution,” Johnson v. Cupp,
29 Or App 541, 543, 564 P2d 734, rev den, 279 Or 191 (1977),
we have acknowledged that a habeas court can decide to
retain jurisdiction to ensure compliance with specific orders
104 Weaver v. Highberger
that arise out of a medical habeas case. Garges v. Bowser,
314 Or App 609, 610-11, 498 P3d 341 (2021).
Second, there is no one legally correct way to write a
judgment that addresses a finding of deliberate indifference.
The superintendent of a prison must provide the constitu-
tionally required medical care, but there is a wide range of
steps a court can order the superintendent to take to make
that happen. Therefore, the terms of the judgment result
from an exercise of the court’s discretion. See Interstate
Roofing, Inc. v. Springville Corp., 347 Or 144, 157-58, 218
P3d 113 (2009) (recognizing that a trial court is permitted
a wide range of discretion in crafting the terms in a writ-
ten judgment “to convey the court’s concluding decision or
decisions”).
Third, in the context of a medical habeas case, the
determination of whether the superintendent has complied
with the judgment involves a highly factual determination.
Determining whether the provided medical care meets a
constitutionally required level involves reviewing documen-
tary evidence, hearing witness testimony, evaluating com-
peting medical opinions, making credibility determinations,
and deciding what weight to give the evidence. The court
must then weigh the facts against the complex constitu-
tional standard of “deliberate indifference.”
In addition, terms in the judgment may be open to
interpretation. Consider a situation in which a court finds
deliberate indifference and orders a superintendent to send
an adult in custody (AIC) to a specialist for a knee pain
evaluation and to follow the specialist’s recommendations.
Among other recommendations, that specialist indicates
that the AIC needs “appropriate physical therapy” and “reg-
ular pain evaluations.” If the AIC thereafter disputes that
the physical therapy the superintendent provides is “appro-
priate” or that the pain evaluations are “regular,” the court
will be called upon to make a discretionary decision as to
whether the superintendent has followed the recommenda-
tions, and therefore complied with the judgment.
In sum, a court necessarily engages in numerous
discretionary decisions to reach a final determination as
Cite as 334 Or App 96 (2024) 105
to whether the superintendent has complied with a judg-
ment to cure deliberate indifference. Because there is no one
legally correct way to make those decisions, our review of
them is for an abuse of discretion.
To be sure, there are outer limits on a court’s discre-
tion to find that a superintendent has complied with a judg-
ment. Among other things, a court exceeds its discretion
if its decision is “clearly against all reason and evidence.”
State v. Mott, 370 Or 830, 848, 527 P3d 758 (2023) (quoting
Botofan-Miller and Miller, 365 Or 504, 506, 446 P3d 1280
(2019), cert den, ___ US ___, 141 S Ct 134 (2020)). Thus, a
court could not find that the superintendent complied with
a judgment in the absence of any evidence that they did.
But when a court’s decision is “within the range of legally
correct discretionary choices and produced a permissible,
legally correct outcome, then the trial court did not abuse
its discretion.” Rogers, 330 Or at 312. And, as always when
reviewing a trial court’s findings of fact, we defer to those
fact findings so long as there is evidence in the record to
support them. Johnson, 335 Or at 523.
Here, we conclude that the trial court did not abuse
its discretion when it granted defendants’ motion to termi-
nate jurisdiction. As explained above, the record contains
sufficient evidence for the trial court to decide that defen-
dants had complied with the terms of the judgment. Once
that occurred, it was within the trial court’s discretion to
terminate continuing jurisdiction.
Apart from challenging the trial court’s decision to
terminate jurisdiction based on compliance with the orig-
inal judgment, plaintiff also contends that the trial court
erred by terminating jurisdiction without first determining
whether defendants complied with the court’s supplemental
orders. The trial court did not consider whether defendants
violated the subsequent orders because it found them irrel-
evant to the question before it, which was whether defen-
dants had complied with the original judgment. The trial
court determined that it would only address the supplemen-
tal orders if it found that defendants were in contempt of the
judgment.
106 Weaver v. Highberger
On appeal, defendants take the position, as they
did below, that the supplemental orders were not properly
entered because they were not orders to enforce the judgment
but instead orders that addressed issues that were beyond
the scope of the original judgement. Our initial review of the
record suggests that defendants may be correct. However,
we do not need to conclusively decide whether the trial court
had the authority to issue the supplemental orders, because
we conclude that the trial court had the discretion to ter-
minate continuing jurisdiction based on its determination
that defendants had complied with the original judgment.
As we explained above, continuing jurisdiction to enforce
a judgment is a discretionary decision on the part of the
trial court. Because the trial court had discretion to exercise
continuing jurisdiction, it had discretion to terminate such
jurisdiction when it saw fit. Here, the court’s decision to
terminate jurisdiction without specifically analyzing defen-
dants’ compliance with the supplemental orders was not
beyond the bounds of reason or contrary to the evidence in
the record. Thus, the court’s decision to terminate continu-
ing jurisdiction fell within the range of legally permissible
outcomes.2 As such, the court did not abuse its discretion in
terminating continuing jurisdiction over the case.
Affirmed.
2
We note that the court’s termination of continuing jurisdiction does not bar
plaintiff from seeking to enforce the judgment in other ways—such as through
contempt proceedings—if defendants fail to provide the treatment ordered in the
original judgment or from seeking additional relief—such as filing a new habeas
corpus petition—if defendants fail to treat plaintiff’s serious medical needs in the
future.