Curtis v. Oregon State Correctional Institution

532 P.2d 798, 20 Or. App. 530, 1975 Ore. App. LEXIS 1672
CourtCourt of Appeals of Oregon
DecidedMarch 10, 1975
DocketNo. 3825
StatusPublished
Cited by9 cases

This text of 532 P.2d 798 (Curtis v. Oregon State Correctional Institution) 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
Curtis v. Oregon State Correctional Institution, 532 P.2d 798, 20 Or. App. 530, 1975 Ore. App. LEXIS 1672 (Or. Ct. App. 1975).

Opinions

THORNTON, J.

This is an appeal from a disciplinary order of the Superintendent of the Oregon State Correctional Institution (OSCI). The disciplinary committee, after a hearing, found that petitioner had violated Major Rule 8 (Destruction of Property). The recommendation of the committee and the order of the superintendent resulting therefrom was (1) 10 days in segregation, (2) loss of 60 days’ statutory good time and (3) assessment against petitioner of one-half the cost of repairer replacement of the tires found by the disciplinary committee to have been damaged or destroyed. He appeals.

[532]*532Petitioner’s first contention challenges the sufficiency of the evidence to support the finding of willful destruction of the tires. Our review of the findings of fact is limited to the existence of substantial, reliable and probative evidence in the whole record. Bonney v. OSP, 270 Or 79, 526 P2d 1020 (1974); Fowler v. OSCI, 18 Or App 1, 525 P2d 191 (1974); ORS 183.480(7) (d). Here the evidence was clearly sufficient. There was evidence that petitioner had admitted, in the presence of another inmate, that he had punctured one of the tires, and he was identified by two other inmates, jointly charged with him, as having punctured the tires while participating in a cleanup work detail with them on the institution’s grounds. Other physical and circumstantial evidence is more than “substantial” to support the finding. There is no merit in this assignment.

Petitioner’s second contention is that neither the disciplinary committee nor the superintendent had authority to require him to make restitution for “one-half of the repair or replacement cost of the tires destroyed.”

We begin our consideration of this contention by reviewing the pertinent statutes and administrative regulations.

The authority to impose punishment upon inmates of the Oregon State Penitentiary and the Oregon State Correctional Institution is derived from the following:

ORS 179.360, which provides:

“(1) Each superintendent shall:
“(a) Have control of the wards of the state at the institution under his jurisdiction.
[533]*533“(b) Direct the care, custody and discipline of such wards unless otherwise directed by law or by rule of the division.
“(c) Adopt sanitary measures for the health and comfort of such wards.
“(d) Promote the mental, moral and physical welfare and development of such wards.
“(e) Enjoy the other powers and privileges and perform the other duties that are prescribed by law or by rule of the division or that naturally attach themselves to his position.

ORS 421.016(2), which provides:

“The Superintendent of the Oregon State Correctional Institution shall be the chief executive officer of the correctional institution.”

ORS 421.016(4) (c), which provides:

“(4) The superintendents:
“(e) May each prescribe rules for the government of the inmates, subject to the approval of the administrator.”

ORS 421.105(1), which provides:

“The superintendent may enforce obedience to the rules for the government of the inmates in the institution under his supervision by appropriate punishment but neither the superintendent nor any other prison official or employe may strike or inflict physical violence except in self-defense, or inflict any cruel or unusual punishment.”

In 1973 the legislature added a new procedural statute, which provided in part as follows:

“The division shall adopt procedures to be utilized in disciplining persons committed to the physical and legal custody of the division. The procedures adopted shall be subject to the approval of the Governor.” ORS 421.180.

[534]*534Thus, we glean from the above provisions that the superintendent has authority under ORS 421.105(1) to enforce obedience within the institution; that in doing so he must (1) prescribe rules of conduct pursuant to ORS 421.016(4) (c), which shall be approved by the administrator of the Corrections Division, and (2) follow procedures adopted by the Corrections Division pursuant to ORS 421.180.

Following the enactment of the 1973 statute (ORS 421.180) the Corrections Division on November 11, 1973, adopted its “Procedures for Disciplinary Action within Correctional Institutions” and “Major Rules of Conduct.” It is with a violation of Major Rule 8 of these rules that petitioner was charged and found guilty by the disciplinary committee.

The above entitled rules of procedure provide for the establishment of a disciplinary committee in each institution whose powers are limited to:

“a. Determining at a hearing if any of the rules for inmate conduct have been broken by a particular inmate, and, if so,
“b. Imposing remedial treatment or sanctions in accordance with this code.” Rule 11(3).

It appears from the foregoing that the rules of procedure, in addition to dealing with procedural matters, also deal ivith some substantive matters such as punishment, viz., empowering disciplinary committees to impose “remedial treatment or sanctions in accordance with this code.”

It is also plain from an examination of the statutes previously quoted that the superintendent of each institution has basic authority to impose “appropriate punishment” in connection with his statutory duty to “enforce obedience to the rules for the govern[535]*535ment of the inmates in the institution under his supervision * * OES 421.105(1).

Petitioner argues that nowhere in the “Procedures for Disciplinary Action within Correctional Institutions” or the Oregon Eevised Statutes is there a specific provision authorizing either the disciplinary committee or the superintendent of the institution to impose a requirement of restitution; that under the principle of statutory construction inclusio unius est exdusio alterius (inclusion of one is the exclusion of others), the listing of specific enumerated sanctions in the rules of procedure (Eule V) means the exclusion of all forms of punishment not specifically enumerated.

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Related

Overton v. State
493 N.W.2d 857 (Supreme Court of Iowa, 1992)
Capps v. Atiyeh
559 F. Supp. 894 (D. Oregon, 1983)
York v. Oregon State Correctional Institution
651 P.2d 1376 (Court of Appeals of Oregon, 1982)
Hartlieb v. Oregon State Correctional Institution
584 P.2d 314 (Court of Appeals of Oregon, 1978)
Palaia v. Oregon State Penitentiary
558 P.2d 846 (Court of Appeals of Oregon, 1977)
Lundy v. Oregon State Penitentiary
557 P.2d 58 (Court of Appeals of Oregon, 1976)
Bekins v. Cupp
533 P.2d 817 (Court of Appeals of Oregon, 1975)
Dean v. Oregon State Correctional Institution
533 P.2d 191 (Court of Appeals of Oregon, 1975)
Curtis v. OR. ST. CORRECTIONAL INST. COR. DIV.
532 P.2d 798 (Court of Appeals of Oregon, 1975)

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Bluebook (online)
532 P.2d 798, 20 Or. App. 530, 1975 Ore. App. LEXIS 1672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curtis-v-oregon-state-correctional-institution-orctapp-1975.