Sistrunk v. Eastern Oregon Correctional Inst.

• Decision Date: 15 April 1991
• Citation: 813 P.2d 74,108 Or.App. 19
• Parties: Emanuel SISTRUNK, Petitioner, v. EASTERN OREGON CORRECTIONAL INSTITUTION, Corrections Department, Respondent. F02-91-102; CA A69058. . On Respondent's Motion To Dismiss
• Court: Oregon Court of Appeals

Page 74

813 P.2d 74

108 Or.App. 19

Emanuel SISTRUNK, Petitioner, v. EASTERN OREGON CORRECTIONAL INSTITUTION, Corrections

Department, Respondent.

F02-91-102; CA A69058.

Court of Appeals of Oregon.

On Respondent's Motion To Dismiss April 15, 1991.

Decided June 26, 1991.

Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Ann Kelley, Asst. Atty. Gen., Salem, for the motion.

Emanuel M. Sistrunk, Pendleton, pro se, contra.

Before ROSSMAN, P.J., and NEWMAN and EDMONDS, JJ.

ROSSMAN, Presiding Judge.

Petitioner, an inmate at Eastern Oregon Correctional Institution (EOCI), seeks judicial review of a disciplinary order issued by the EOCI Superintendent. The issue is whether the petition was timely filed. We determine that the petition was timely filed, even though it was filed more than 30 days after the order imposing discipline was originally approved, because it was filed within 30 days after the denial of an administrative appeal.

These events preceded the filing of the petition:

February 14 Hearings officer issued "Finding of Facts, Conclusions and Recommendations."

February 19 Superintendent approved the hearings officer's recommendations.

February 28 Petitioner requested the Superintendent to reconsider the decision.

March 6 Superintendent denied reconsideration.

ORS 421.195 ¹ requires that a petition for judicial review be filed within 30 days after issuance of the disciplinary order for which review is sought. The petition for judicial review was received by this court on April 1. Respondent has moved to dismiss on the ground that the petition was filed more than 30 days after the date when the Superintendent approved the hearings officer's recommendations. Petitioner responds that the Corrections Department's rule relating to discipline provides for administrative review of disciplinary orders. He argues that a disciplinary order is not final until the administrative appeal process is completed and, because he filed his petition for judicial review within 30 days after the Superintendent's denial of reconsideration, the petition was timely.

OAR 291-105-071 ² provides that an inmate has the right to "appeal" a disciplinary decision to the "functional unit manager" who, in this case, is the Superintendent of EOCI. The appeal must be submitted within 15 days after issuance of the initial decision, and the functional unit manager must decide it within 30 days. OAR 291-105-073 ³ says that a petition for judicial review must be filed within one month after the functional unit manager's "final order." The question is whether the final order is the original order as approved by the functional unit manager or the functional unit manager's decision on administrative appeal.

An administrative agency cannot change the statutory requirement that judicial review be sought within 30 days after the issuance of a disciplinary order, but its rules may determine when an order becomes final. Under OAR 291-105-071, only when an inmate appeals to the functional unit manager is the order not final until the manager decides the appeal. It follows that a petition for judicial review is timely if it is filed within 30 days after the manager's disposition of the appeal. To hold otherwise would allow an inmate to be deprived of the statutory right to judicial review by making a timely appeal to the manager, only to have the time for seeking judicial review expire during the administrative appeal process.

Petitioner timely appealed the disciplinary order to the Superintendent. The Superintendent issued his decision on the appeal within 30 days. Petitioner filed his petition for judicial review within 30 days after the Superintendent's decision. The petition was timely.

Motion to dismiss denied.

1 ORS 421.195 provides in relevant part:

"If an order places an inmate in segregation or isolation status for more than seven...