Rios v. Mazur-Hart

859 P.2d 1204, 124 Or. App. 193, 1993 Ore. App. LEXIS 1759

• Court: Court of Appeals of Oregon
• Decided: October 20, 1993
• Docket: 92C-10107; CA A76700
• Status: Published

Opinion

PER CURIAM

Plaintiff filed a petition for a writ of habeas corpus, alleging that defendant violated his rights under the Eighth Amendment to the United States Constitution and Article I, sections 13 and 16, of the Oregon Constitution. The trial court granted defendant’s motion to dismiss. ORS 34.680. We affirm.

Plaintiff, a patient in the Oregon State Hospital maximum security ward, filed a habeas corpus petition. The court issued a writ. Defendant filed a return and plaintiff filed a replication that stated his allegations in detail. Pursuant to ORS 34.680(1), defendant filed a motion to dismiss the writ, supported by an affidavit asserting that plaintiffs claims were false. Plaintiff filed a memorandum opposing dismissal but included no evidence controverting the facts stated in the áffidavit. The court granted defendant’s motion.

Plaintiff contends that his petition and replication controvert the evidence that accompanied defendant’s motion to dismiss. Plaintiffs petition and replication are pleadings, not evidence. McClintock v. Schiedler, 123 Or App 334, 859 P2d 580 (1993). Because plaintiff failed to controvert defendant’s evidence, the court did not err in granting defendant’s motion to dismiss.

Affirmed.