McClintock v. Schiedler, C-11119

• Decision Date: 22 September 1993
• Docket Number: C-11119
• Citation: 859 P.2d 580,123 Or.App. 334
• Court: Oregon Court of Appeals
• Parties: Carmen McCLINTOCK, Appellant, v. Robert SCHIEDLER, Superintendent, Oregon Women's Correctional Center, Respondent. 92; CA A76814.

Page 580

859 P.2d 580

123 Or.App. 334

Carmen McCLINTOCK, Appellant, v. Robert SCHIEDLER, Superintendent, Oregon Women's Correctional Center, Respondent.

92C-11119; CA A76814.

Court of Appeals of Oregon.

Argued and Submitted April 5, 1993.

Decided Sept. 22, 1993.

Garrett A. Richardson, Portland, argued the cause and filed the brief, for appellant.

Paul Migchelbrink, Certified Law Student, Salem, argued the cause, for respondent. With him on the brief were Theodore R. Kulongoski, Atty. Gen., Virginia L. Linder, Sol. Gen., and Michael D. Reynolds, Asst. Atty. Gen., Salem.

Before DEITS, P.J., and RIGGS and DURHAM, JJ.

DURHAM, Judge.

Plaintiff appeals from a judgment granting defendant's motion to dismiss her writ of habeas corpus. ORS 34.680(1). We affirm.

Plaintiff filed a sworn petition for a writ of habeas corpus alleging that defendant failed to provide her with adequate medical and dental care in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article I, sections 13 and 16, of the Oregon Constitution. The court issued a writ, defendant filed a return, and plaintiff filed a replication that stated her allegations in detail. Defendant moved to dismiss the writ pursuant to ORS 34.680(1) and provided evidence, including an affidavit and exhibit, that tended to show that plaintiff could not establish a claim for relief. ¹ Plaintiff did not respond, and the court dismissed the writ.

ORS 34.680(1) was enacted in 1991 and authorizes the court to make a summary determination of a habeas corpus proceeding without an evidentiary hearing. It provides, in part:

"The defendant may, at any time after the writ issues, move to dismiss the writ on the grounds that the pleadings, including the petition, the return, the replication, if any, and any supporting evidence, demonstrate that plaintiff has failed to state or establish a claim for habeas corpus relief." ORS 34.680(1).

That procedure was intended to be the functional equivalent of a motion for summary judgment. ²

Plaintiff contends that her sworn petition and the replication controvert the evidence that accompanied the motion to dismiss and that they require an evidentiary hearing. The sworn petition states, as material:

"[T]he Petitioner had been denied legal medical services for her medical problems, and was refuse [sic] any xrays [sic] or the right kind of Medication for her medical problems. Also the Medical staff at OWCC refuse to listen to Miss McClintock [and] refuse to call her mother or her Doctors to get any information on her."

She also said that staff members made "prejudice/harassing remarks" to upset her, that she has emotional problems and that she is a handicapped person. Even if we accept those statements as true, they do not describe deprivations of a prisoner's rights that would require immediate judicial scrutiny for which other remedies are not actually available to plaintiff. Penrod/Brown v. Cupp, 283 Or. 21, 28, 581 P.2d 934 (1978). For that reason, we have no occasion to decide whether a verified petition constitutes evidence that may be sufficient to establish a claim for habeas corpus relief and defeat a motion to dismiss under ORS 34.680(1).

Plaintiff's replication is not sufficient to establish her claim, because it is a pleading, not evidence. Bedell v. Schiedler, 307 Or. 562, 567, 770 P.2d 909 (1989), says:

"The replication to the return is the plaintiff's principal pleading. The plaintiff is not required to file a replication. ORS 34.670. In the replication, the plaintiff may controvert any of the material facts in the return, or allege therein any fact showing grounds for habeas corpus relief. ORS 34.670. The replication must allege with particularity facts which, if true, would entitle the plaintiff to habeas corpus relief. See Smallman v. Gladden, 206 Or. 262, 270, 291 P.2d 749 (1956). A replication may controvert any material fact in a return, or it may allege any fact showing grounds for habeas corpus relief. ORS 34.670. If the defendant agrees, the petition may be treated as the replication. A defendant may move to strike any new matter in the replication, or may controvert it by proof. ORS 34.680."

ORS 34.670 provides:

"The plaintiff in the proceeding, on the return of the writ, may, by replication, signed as in an action, controvert any of the material facts set forth in the return, or the plaintiff may allege therein any fact to show, either that imprisonment or restraint of the plaintiff is unlawful, or that the plaintiff is entitled to discharge; and thereupon the court or judge shall proceed in a summary way to hear such evidence as may be produced in support of or against the imprisonment or restraint, and to dispose of the party as the law and justice of the case may require." (...