McClaflin v. Wright

813 P.2d 1098, 107 Or. App. 688, 1991 Ore. App. LEXIS 1024

• Court: Court of Appeals of Oregon
• Decided: June 19, 1991
• Docket: 89-874; CA A63695
• Status: Published

Opinions

NEWMAN, J.

Plaintiff was convicted of burglary. He is incarcerated for a term of five years, with a two-and-one-half year minimum, in the Eastern Oregon . Correctional Institution. After a writ of habeas corpus was issued, plaintiff alleged in bis replication that he has a history of mental disease that is serious and disabling, that he needs immediate mental health services, that other inmates have been given evaluation and treatment by a psychologist or psychiatrist, that he is being denied evaluation and treatment and that he is also a long-term segregation inmate at the institution.¹ The prayer of his replication is for the court to direct defendant immediately to allow plaintiff a psychiatric evaluation to be performed by a psychologist or psychiatrist and such further additional relief as the court deems just and proper.

After the pleadings were complete, the court dismissed the case on the grounds that plaintiff did not state a claim for habeas corpus relief or meet the minimum requirements for habeas corpus jurisdiction. Plaintiff appeals, and we affirm.

Plaintiffs claim is not in the first category in Penrod/Brown v. Cupp, 283 Or 21, 581 P2d 934 (1978). See Fox v. Zenon, 106 Or App 37, 806 P2d 166 (1991). He does not allege any causal relationship between his mental illness and his segregation or that the evaluation and treatment that he seeks would allow him to return to the general prison population. His challenge is to defendant’s failure to provide him with psychiatric evaluation and treatment, not to the conditions of his confinement.

Even if the facts that plaintiff pleads are true, they do not show that failure to provide him with evaluation and treatment causes him the kind of harm that requires immediate judicial scrutiny in the second kind of Penrod/Brown case. As we have interpreted them in Fox v. Zenon, supra, Moore v. Peterson, 91 Or App 616, 756 P2d 1261 (1988), and Bedell v. Schiedler, 307 Or 562, 770 P2d 909 (1989), are distinguishable from this case. Plaintiff alleges that his “mental disease” is “serious and disabling.” He does not allege facts that show what his disease is, why it is “serious” and in what way it is “disabling.” Unlike the plaintiffs’ allegations in Bedell, Fox and Moore, plaintiff alleges no facts that, taken as true, show that the denial of evaluation and treatment by a psychologist or psychiatrist is likely to result in an immediate, serious, ongoing health hazard. Accordingly, immediate judicial scrutiny is not required. Jones v. Maass, 106 Or App 42, 806 P2d 168, rev den 311 Or 426 (1991); see also Bahrenfus v. Bachik, 106 Or App 46, 806 P2d 170 (1991).

Accordingly, the court did not err when it dismissed the writ and gave judgment for defendant.²

Affirmed.

1 Plaintiff does not plead that, because of his mental illness, he is dangerous to himself or others, although the court offered him an opportunity to amend his replication.

2 Plaintiff also argues that, under Capps v. Atiyeh, 559 F Supp 894 (D Or 1982), a class action under 42 USC § Í983, he has an Eighth Amendment right to mental health treatment. We need not reach that issue.