Bagby v. Oregon State Penitentiary, Dept. of Corrections

• Citation: 118 Or.App. 421,847 P.2d 898
• Parties: Larry Neal BAGBY, Petitioner, v. OREGON STATE PENITENTIARY, DEPARTMENT OF CORRECTIONS, Respondent. A74108. . On Petitioner's Request for Reconsideration
• Decision Date: 27 May 1992
• Court: Court of Appeals of Oregon

Page 898

847 P.2d 898

118 Or.App. 421

Larry Neal BAGBY, Petitioner, v. OREGON STATE PENITENTIARY, DEPARTMENT OF CORRECTIONS, Respondent.

A74108.

Court of Appeals of Oregon.

On Petitioner's Request for

Reconsideration May 27, 1992, and

Respondent's Motion to Dismiss Nov. 27, 1992.

Decided March 3, 1993.

Reconsideration Denied June 23, 1993.

Larry Neal Bagby, pro se.

Charles S. Crookham, Atty. Gen., Virginia L. Linder, Sol. Gen., and Michael D. Reynolds, Asst. Atty. Gen., Salem, for respondent.

Before RIGGS, P.J., and DE MUNIZ and DURHAM, JJ.

RIGGS, Presiding Judge.

The issues are whether petitioner timely sought judicial review of an order placing him in disciplinary segregation and whether an order placing him in the penitentiary's "intensive management unit" is a judicially reviewable order.

Petitioner filed a petition for judicial review on March 25, 1992, seeking review "of the final order of the respondent, Oregon State Penitentiary dated on or about March 10, 1992, and which ordered petitioner's segregation in the Intensive Management Unit at the Oregon State Penitentiary for one year." Petitioner did not attach a copy of the order. In response to the court's request for a copy of the order, petitioner provided a copy of a disciplinary order dated December 26, 1991, sanctioning petitioner to three months in disciplinary segregation for possessing a dangerous weapon. By order dated May 7, 1992, the court dismissed the judicial review as untimely, because the petition had not been filed within 30 days of the December 26, 1991, disciplinary order. ORS 421.195.

On May 27, 1992, petitioner sought reconsideration of the order of dismissal on the ground that he had intended to seek judicial review of a March 12, 1992, order reclassifying him to maximum custody and placing him in the Intensive Management Unit (IMU). OSP responded that placement in IMU is not judicially reviewable under ORS 421.195 and that the dismissal was proper. Petitioner replied that he was transferred to IMU solely as a result of the conduct that resulted in the December 26, 1991, disciplinary order, and that the conditions of confinement constitute "segregation or isolation status" within the meaning of ORS 421.195. In a separate letter, petitioner also requested "a full Judicial Review of all events that took place from the time of the disciplinary hearing (11-20-91) to the present date."

In order to determine our jurisdiction under ORS 421.195, we directed OSP to file a memorandum addressing these matters: (1) petitioner's allegation that he received no response to his request for administrative review of the December 26, 1991, disciplinary order, in which case the petition for judicial review would have been premature; and (2) why petitioner's placement in IMU was not an "institutional transfer for disciplinary reasons" or "segregation or isolation status" within the meaning of ORS 421.195. Shortly after filing its response to the court's order, OSP released petitioner from IMU and moved to dismiss as moot the judicial review of the order placing petitioner in IMU.

We deny petitioner's motion to reconsider the dismissal as to the disciplinary order of December 26, 1991. We allow reconsideration and reinstate the judicial review of the March 12, 1992, order placing petitioner in IMU. We deny OSP's motion to dismiss.

Petitioner filed a request for administrative appeal of the December 26, 1991, disciplinary order with the superintendent on January 6, 1992. Petitioner claims he received no response until April 22, 1992, and then only after submitting two requests for a copy of the outcome of his administrative appeal to enable him to show that he had filed one. Under Correction Department rules, once an administrative appeal is timely filed from a disciplinary order, the disciplinary order is not final for purposes of judicial review until the petitioner receives the superintendent's response. Sistrunk v. EOCI, 108 Or.App. 19, 813 P.2d 74 (1992).

Petitioner claims that he filed his petition for judicial review on March 25, 1992, before the challenged order was final, in order to preserve his right to judicial review, because OSP would not furnish him with copies of the orders. Although OSP has belatedly sent the court a copy of the superintendent's January 28, 1992, denial of the appeal of the disciplinary order, it did not address, as directed, petitioner's allegation that he did not receive it until April 22, 1992. Under the circumstances, the court accepts petitioner's claim that the date of service of the superintendent's denial was April 22, 1992.

That does not resolve the issue of the timeliness of the petition for judicial review of the original disciplinary order. Under ORS 421.195, petitioner was required to file a petition for judicial review within 30 days of April 22, 1992. He did not do so. The filing of a premature petition for judicial review does not relieve petitioner of the need to file a new petition after the agency order becomes final for purposes of judicial review. On reconsideration, we decline to reinstate judicial review as to the December 26, 1991, disciplinary order.

The petition for judicial review of the March 12, 1992, order placing petitioner in IMU was timely, but OSP challenges the reviewability of that order. ORS 421.195 provides:

"If an order places an inmate in segregation or isolation status for more than seven days, institutionally transfers the inmate for disciplinary reasons or provides for nondeduction from the term of the sentence under ORS 421.120(1)(a) and (b), the order and the proceedings underlying the order are subject to review by the Court of Appeals upon petition to that court filed within 30 days of the order for which review is sought." (Emphasis supplied.)

We directed OSP to respond to petitioner's contention that placement in IMU was an institutional transfer for disciplinary reasons within the meaning of ORS 421.195. We also directed OSP to address how the conditions of confinement of an inmate in "segregation or isolation status" differ from the conditions of confinement in IMU. By its response, OSP demonstrates that IMU is both an institutional transfer for disciplinary reasons and segregation and isolation status.

OSP argued that IMU is different from disciplinary segregation primarily because of the reason an inmate is there: Placement in disciplinary segregation is punishment for a specific act of misconduct while placement in IMU is the result of a custody classification. This court has already rejected that distinction for purposes of judicial review under ORS 421.195. In Evans v. OSP, 87 Or.App. 514, 532, 743 P.2d 168 (1987), we said:

"There is no qualification in the statute that, to be reviewable, a segregation order must be for disciplinary reasons only; the only requirement is that the period of segregation be in excess of seven days." ¹

Thus, the relevant questions in determining whether an order placing an inmate in IMU is judicially reviewable are: (1) whether the placement is for more than seven days; and (2) whether the conditions of confinement in IMU correspond to segregation or isolation status.

The first requirement is satisfied. Although placement in IMU is open-ended, a review must be conducted within the first 30 days and every 60 days thereafter. OAR 291-104-025(3). Consequently, any placement in IMU would normally exceed the seven day stay required for jurisdiction under ORS 421.195. In any event, petitioner was in IMU for more than seven days when he filed his petition for...