Bekins v. Cupp

533 P.2d 817, 21 Or. App. 16, 1975 Ore. App. LEXIS 1327

Opinions

FOLEY, J.

This is a proceeding in habeas corpus. Pursuant to petition a writ of habeas corpus was issued on March 12, 1974, by the Circuit Court for Marion County. After hearing on May 14, 1974, the petition was dismissed by the circuit court on October 21,1974, “with petitioner obtaining no relief.”

The facts stipulated at petitioner’s hearing on May 14, 1974, are that petitioner was placed on investigative status in segregation and isolation on July 8, 1973, when a knife, handcuff key and LSD were discovered in petitioner’s cell. He was notified within 24 hours of the time he was placed in investigative status the reason for that placement. An investigation was conducted by the Oregon State Police. No disciplinary charges were placed against him and he was retained in segregation and isolation in an investigative status until September 7, 1973, approximately 60 days, when he was returned to the prison population. Petitioner does not claim that he desired or requested that disciplinary charges be placed against him nor does he point to any rule requiring that disciplinary charges be placed against an individual on investigative status.

Footnotes

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On October 29, 1973, petitioner was thought to be involved in the stabbing of another inmate. An investigation was conducted by the Oregon State Police and petitioner was placed in segregation on investigative status. No disciplinary charges were preferred against him and he was returned to the general prison population at the expiration of about 30 days. Likewise in this instance, petitioner does not claim that he desired or requested that disciplinary charges be placed against him nor does he point to any rule requiring that disciplinary charges be brought against an individual placed on investigative status.

At the habeas corpus hearing counsel for defendant, without objection, explained the difference between investigative status and punishment status:

“* * * [Bjasically, they are full visiting privileges, some more canteen items; but concededly, he’s limited in the number of things he can get when compared to the general population.”

Counsel also explained the procedure followed in the institution:

“* * * [Petitioner has not been treated any different with respect to being placed in investigative status than any other inmate in a similar circumstance. In other words, this is the general procedure followed by the institution. There is no hearing. It’s reviewed by the assistant superintendent, the superintendent and the corrections division. And he is notified of the reason that he’s being put in the cell. * * *”

We have previously held that habeas corpus is available in Oregon to test the constitutionality of treatment afforded an inmate. Newton v. Cupp, 3 Or App 434, 437, 474 P2d 532 (1970). In the present case, however, we perceive no constitutional violation.

The superintendent urges that habeas corpus does not lie in this case because petitioner’s segregation for investigative purposes had been terminated prior to the filing of his petition for writ and the matter is thus moot. However, the petitioner has alleged that the actions of the superintendent amount to a course of conduct subjecting him to cruel, unusual and harsh punishment and his petition seeks injunctive relief against future proceedings. We have reviewed the record and find no evidence of any violation of the constitutional rights which protect petitioner from cruel and unusual punishment. There was evidence in both instances that petitioner was placed in segregation and isolation during the investigation by the Oregon State Police because he was considered to be a threat to the good order and the security of the institution on account of his past record and the nature of the charges being investigated. In each instance he was advised within 24 hours of the reason for that placement. The superintendent of the penitentiary is charged with the safe custody of all of the prisoners within his institution. ORS 421.016(4)(a). See also Curtis v. OSCI, 20 Or App 530, 532 P2d 798, Sup Ct review denied (1975). Placement of those in his charge must, so far as possible, be left within the authority of the superintendent unless he violates a constitutional right of a prisoner or fails to follow the rules and regulations of his institution. "We agree with the finding of the circuit court in this case that, “* * * the placements were reasonable, under the circumstances, and within the appropriate authority of the prison officials and did not deny petitioner any constitutional rights.”

Petitioner also assigns as error the trial court’s ruling that a third placement in segregation and isolation based upon a disciplinary proceeding which was on administrative appeal to this court was not properly before the court. The trial court was correct. Any error in connection with that proceeding was subject to challenge by appeal, ORS 421.195, and thus not properly cognizable in this proceeding.

Petitioner’s final assignment is the denial of access to certain law books. He produced no evidence that lack of these law books operated to deny him any constitutional rights. Under such circumstances habeas corpus is not appropriate. See Slopak v. Cupp, 14 Or App 512, 513 P2d 531, Sup Ct review denied (1973).

Affirmed.

Since sanctions for disciplinary violations can include, inter aliá, loss of “good time,” it is understandable that a petitioner, knowing that disciplinary charges had not been placed against him but, rather, that he was being held in an investigative status, would not request that such charges be brought against him.