From Casetext: Smarter Legal Research

Newcomb v. Thompson

Oregon Court of Appeals
Aug 15, 2001
176 Or. App. 167 (Or. Ct. App. 2001)

Summary

holding that the Board could not make a finding of present severe emotional disturbance absent a "cognizable psychiatric or psychological diagnosis"

Summary of this case from Birch v. Thompson

Opinion

96C-13744; A100622

Submitted on remand July 13, 2000.

Filed: August 15, 2001

On remand from the Oregon Supreme Court. Newcomb v. Thompson, 330 Or. 360, 6 P.3d 1101 (2000).

Appeal from Circuit Court, Marion County. Joseph V. Ochoa, Judge.

George W. Kelly for appellant.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Katherine H. Waldo, Assistant Attorney General, for respondent.

Before HASELTON, Presiding Judge, and EDMONDS and LANDAU, Judges.


PER CURIAM

Reversed and remanded.


Plaintiff appeals from the dismissal of his petition for a writ of habeas corpus, asserting that the trial court erred in granting defendant's motion to dismiss based on its finding that the Board of Parole and Post-Prison Supervision properly concluded that plaintiff suffered from a present severe emotional disturbance such as to constitute a danger to the health or safety of the community, and thus properly deferred plaintiff's parole release date. Plaintiff asserts that the psychological evaluation on which the Board relied did not provide sufficient evidence to support the Board's conclusion.

We have held that "the determination as to whether a prisoner suffers from a severe emotional disturbance such as to constitute a danger to the health and safety of the community is a judgment that the legislature intended the Board to make." Weidner v. Armenakis, 154 Or. App. 12, 19, 959 P.2d 623, vacated and rem'd 327 Or. 317 (1998), withdrawn by order July 13, 1998, reasoning readopted and reaffirmed Merrill v. Johnson, 155 Or. App. 295, 964 P.2d 284, rev den 328 Or. 40 (1998). However, we also have held that a prerequisite for such a finding by the Board is a "psychiatric or psychological diagnosis." ORS 144.125(3) (1991). Christenson v. Thompson, 176 Or. App. 54, 31 P.3d 449 (2001). The psychological report on which the Board relied in deferring plaintiff's parole release contained no cognizable "psychiatric or psychological diagnosis," but indicated only that plaintiff had "some elements" of a personality disorder. Under Christenson, that is not a sufficient record to support the Board's action.

Reversed and remanded.


Summaries of

Newcomb v. Thompson

Oregon Court of Appeals
Aug 15, 2001
176 Or. App. 167 (Or. Ct. App. 2001)

holding that the Board could not make a finding of present severe emotional disturbance absent a "cognizable psychiatric or psychological diagnosis"

Summary of this case from Birch v. Thompson

In Newcomb v. Thompson, 176 Or.App. 167, 33 P.3d 319 (2001), the court similarly concluded that a psychological report "indicat[ing] only that plaintiff had `some elements' of a personality disorder" did not satisfy the diagnosis prerequisite.

Summary of this case from Birch v. Thompson
Case details for

Newcomb v. Thompson

Case Details

Full title:SHAWN M. NEWCOMB, Appellant, v. S. FRANK THOMPSON, Superintendent, Oregon…

Court:Oregon Court of Appeals

Date published: Aug 15, 2001

Citations

176 Or. App. 167 (Or. Ct. App. 2001)
33 P.3d 319

Citing Cases

Birch v. Thompson

Prior to a 1993 amendment, Oregon's parole review statute required an expert diagnosis as a prerequisite to a…

Hess v. Bd. of Parole

Christenson v. Thompson, 176 Or.App. 54, 31 P.3d 449, 451 (2001) (internal quotation marks omitted). Further,…