Garrick v. Eastern Oregon Correctional Institution

823 P.2d 1034, 110 Or. App. 624, 1992 Ore. App. LEXIS 127

• Court: Court of Appeals of Oregon
• Decided: January 15, 1992
• Docket: F03-90-131, F03-90-132; CA A67762, CA A67997
• Status: Published

Opinions

PER CURIAM

Petitioner seeks review of a prison disciplinary order that found him in violation of OAR 219-105-015(13)¹ for conspiracy to commit assault and placed him in segregation for one year. He argues that there is no evidence that he conspired to commit an assault.²

Petitioner testified that he woke up when an inmate, in the cell directly across from him, broke the light fixture cover in his cell. There was evidence that petitioner was acting as a lookout while that inmate was breaking the fixture into pieces. A conversation was overheard between those two inmates in which one asked, “Are you through yet?” The answer was, “No, about another thirty minutes.” Fixture pieces were found in both cells. A 9-inch piece of fixture, jagged and sharp on three sides, was found in petitioner’s cell, hidden between the sheet and blanket.

Petitioner admitted that he had helped break the fixture into pieces but denied any conspiracy to fabricate a weapon or commit assault. He explained that he was breaking the pieces so that they could be flushed down the toilet. The hearings officer was not required to believe petitioner’s testimony and could properly infer that the pieces were intended to be used as weapons in an assault. There is substantial evidence to support the order.

Petitioner’s other assignments of error do not require discussion.

Affirmed.

1 OAR 291-105-015(13) provides:

“Conspiracy: No inmate shall enter into an agreement with any person(s) to engage in or cause rule violation(s) and/or assist person(s) in committing or concealing the commission of rule violation(s).”

OAR 291-105-015(4) provides:

“Assault: Except when absolutely necessary for self-defense, no inmate shall engage in a fight or intentionally inflict physical injury upon another person.”

2 Although it is not clear what records the Superintendent reviewed, petitioner moved “for correction of the judicial record’ ’ to include the interoffice memorandum describing the incident that gave rise to the challenged disciplinary order. Respondent did not oppose the motion.

ORS 183.482(4) provides, in part:

“The court may require or permit subsequent corrections or additions to the record when deemed desirable.”

We allowed petitioner’s motion and we have reviewed the additional documents to determine whether there is substantial evidence to support the disciplinary order. See ORS 421.195; ORS 183.482(8)(c).