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Rios v. Mazur-Hart

Oregon Court of Appeals
Oct 20, 1993
859 P.2d 1204 (Or. Ct. App. 1993)

Opinion

92C-10107; CA A76700

Argued and submitted March 8, 1993.

Affirmed October 20, 1993.

Appeal from Circuit Court, Marion County, Richard D. Barber, Judge.

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

Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before Deits, Presiding Judge, and Riggs and Durham, Judges.


PER CURIAM

Affirmed.


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 plaintiff's claims were false. Plaintiff filed a memorandum opposing dismissal but included no evidence controverting the facts stated in the affidavit. The court granted defendant's motion.

Plaintiff contends that his petition and replication controvert the evidence that accompanied defendant's motion to dismiss. Plaintiff's petition and replication are pleadings, not evidence. McClintock v. Schiedler, 123 Or. App. 334, 859 P.2d 580 (1993). Because plaintiff failed to controvert defendant's evidence, the court did not err in granting defendant's motion to dismiss.

Affirmed.


Summaries of

Rios v. Mazur-Hart

Oregon Court of Appeals
Oct 20, 1993
859 P.2d 1204 (Or. Ct. App. 1993)
Case details for

Rios v. Mazur-Hart

Case Details

Full title:Reynaldo RIOS, Appellant, v. Stanley MAZUR-HART, Superintendent, Oregon…

Court:Oregon Court of Appeals

Date published: Oct 20, 1993

Citations

859 P.2d 1204 (Or. Ct. App. 1993)
859 P.2d 1204

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