Barrett v. Belleque

150 P.3d 1064, 209 Or. App. 295, 2006 Ore. App. LEXIS 1779
CourtCourt of Appeals of Oregon
DecidedNovember 15, 2006
Docket05C-11516; A127929
StatusPublished
Cited by3 cases

This text of 150 P.3d 1064 (Barrett v. Belleque) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barrett v. Belleque, 150 P.3d 1064, 209 Or. App. 295, 2006 Ore. App. LEXIS 1779 (Or. Ct. App. 2006).

Opinions

[297]*297LINDER, J.

Plaintiff appeals a judgment denying, sua sponte, his petition for a writ of habeas corpus. See ORS 34.370(6) (providing that court may, on its own motion, enter a judgment denying a meritless petition).1 On appeal, he raises four assignments of error; we write to address only one of his arguments, rejecting the others without discussion. For the reasons that follow, we affirm.

We recite the facts relevant to the issues raised on appeal in a manner consistent with the allegations in plaintiffs 46-page handwritten petition. Plaintiff alleged that, in September 2004, Department of Corrections staff accused him of engaging in a “mutual fight” with another inmate and of striking a corrections officer who attempted to intervene. Plaintiff “declined to attend” the subsequent hearing at which a hearings officer found the accusations to be true. As a result of the fight, the Department of Corrections imposed sanctions, including placement in the Disciplinary Segregation Unit. Plaintiff alleged that he later was transferred to the Intensive Management Unit (IMU) at Snake River Correctional Institution as additional punishment for the fight and assault on the corrections officer. Plaintiff sought administrative review of his IMU placement and, according to plaintiff, the placement was upheld.

In his petition, plaintiff asserted that he was entitled to a hearing before being placed in the IMU; that the placement was a second punishment for acts for which he already had been sanctioned; and that his IMU placement violated various state and federal constitutional provisions “because it is based on false charges and false evidence.” Plaintiff s theory was, as we understand it (and as is relevant to his arguments on appeal), that placement in the IMU constitutes punishment (that is, a deprivation of a constitutionally protected liberty interest) and that he was entitled to a hearing [298]*298before being assigned to that unit. The trial court denied the petition, stating that there is no constitutional right to placement outside the IMU and citing Troxel v. Maass, 120 Or App 397, 400, 853 P2d 294 (1993).

In Troxel, this court considered and rejected an inmate’s habeas corpus challenge to the conditions of confinement in the IMU, stating:

“Petitioner’s remaining claims * * * do not state a claim for relief. He argues that, because he served a six-month sanction in disciplinary segregation, his subsequent placement in IMU constitutes double jeopardy. However, placement in IMU is not punitive, so double jeopardy does not apply. There is not, as petitioner argues, a constitutional right to reformation or rehabilitation. Kent v. Cupp, 26 Or App 799, 802, 554 P2d 196 (1976). Finally, petitioner has no constitutional right to placement outside of IMU. Therefore, his argument that he has a right to hearing concerning his placement in IMU fails. See Hewitt v. Helms, 459 US 460, 103 S Ct 864, 74 L Ed 2d 675 (1983).”

120 Or App at 400.

On appeal, plaintiff asserts that the trial court erred in relying on Troxel, because conditions have changed in the IMU to such an extent that placement there constitutes punishment. He argues that he alleged facts in his petition sufficient to show that he was being placed in the IMU for punitive purposes and that he was entitled to challenge the placement “by presentation of evidence.” He asserts that he “has a constitutional right to Due Process in placement in” the IMU.

We do not reach the merits of plaintiffs constitutional argument because we conclude that he was not entitled to raise his challenge in a petition for a writ of habeas corpus.2 We emphasize that plaintiff explicitly disavows any [299]*299intention of challenging the conditions of confinement in the IMU, stating, “Nowhere did plaintiff challenge the IMU conditions in his claims for relief.” Rather, he is challenging a denial of procedural due process under the Fourteenth Amendment to the United States Constitution in the housing classification decision. That, however, is a claim that can be raised in a manner other than by petition for a writ of habeas corpus.

“Habeas corpus is an appropriate remedy when a petitioner has ‘no other timely remedy available,’ and there is a ‘need for immediate judicial scrutiny of the claim.” Haskins v. Palmateer, 186 Or App 159, 163, 63 P3d 31, rev den, 335 Or 510 (2003) (quoting Gage v. Maass, 306 Or 196, 204, 759 P2d 1049 (1988)). As the Supreme Court explained in Penrod/Brown v. Cupp, 283 Or 21, 28, 581 P2d 934 (1978),

“we emphasize the two essential elements that must coincide to make the writ of habeas corpus a proper instrument of judicial inquiry: The need for immediate attention, if this appears from the urgency of the harm to which the prisoner claims to be exposed or if it is found to be required as a matter of constitutional law, and the practical inadequacy of an alternative remedy to meet this need.”

This court and the Supreme Court consistently have, in a number of different contexts, concluded that habeas corpus plaintiffs had other adequate remedies.

For example, in Keenan v. Peterson, 307 Or 323, 325, 767 P2d 441 (1989), in the context of a challenge to random monitoring of telephone calls in prison, the court said, “An injunction proceeding, an action for declaratory judgment or a mandamus proceeding all would be sufficiently timely to adjudicate petitioner’s claims.” In Gage, the inmate challenged the failure to credit him for time served. The court said, “Want of a timely remedy alone is not sufficient. That want must be coupled with a need for immediate judicial scrutiny in order for the rule of Penrod/Brown to apply. Plaintiff has not shown a need for that immediate scrutiny.” 306 Or at 204. The court also stated, “[W]e note that injunction, declaratory judgment or mandamus proceedings might be vehicles for plaintiff to cause the sheriff to perform the duty mandated by ORS 137.320(1) if the sheriff has not [300]*300already done so.” Id.; see also Weidner v. Zenon, 124 Or App 314, 317, 862 P2d 550 (1993) (“Petitioner’s second petition alleges that he has been denied handicapped access to a food slot, outside recreation and a safety seat, and that he has been harassed for using his wheelchair and denied access to it. Those allegations do not state a claim for habeas corpus relief. Petitioner has alternative civil remedies available to him for denial of handicapped access. In addition, enjoining defendant from harassing petitioner or denying him access to his wheelchair would provide him with an adequate remedy for the last two allegations.”).

Cases in which this court or the Supreme Court have concluded that habeas corpus was the only appropriate remedy, in contrast, generally have involved ongoing concerns about health or safety. See, e.g., Bedell v. Schiedler, 307 Or 562, 770 P2d 909 (1989) (alleged failure to provide adequate ventilation and circulation of clean air caused the petitioner to suffer clogged sinuses, severe headaches, dry and irritated skin, and a sore throat); Fox v. Zenon,

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Related

Barrett v. Belleque
176 P.3d 1272 (Oregon Supreme Court, 2008)
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156 P.3d 72 (Court of Appeals of Oregon, 2007)
Barrett v. Belleque
150 P.3d 1064 (Court of Appeals of Oregon, 2006)

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Bluebook (online)
150 P.3d 1064, 209 Or. App. 295, 2006 Ore. App. LEXIS 1779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrett-v-belleque-orctapp-2006.