Opinion
CV88-668; CA A60634
Argued and submitted October 23, 1989
Reversed and remanded March 7, 1990
Appeal from Circuit Court, Umatilla County.
J.F. Olsen, Judge.
Kurt C. Bendixsen, Hermiston, argued the case for appellant. With him on the brief was Garry L. Reynolds, P.C., Hermiston.
Keith Wingfield, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Graber, Presiding Judge, and Riggs and Edmonds, Judges.
PER CURIAM
Reversed and remanded.
Plaintiff, an inmate at Eastern Oregon Correctional Institution, appeals the granting of defendant's motion for summary judgment in plaintiff's habeas corpus action. The return to the writ alleges only that plaintiff is in custody pursuant to a judgment and sentencing order. Plaintiff alleges in his replication that he has blurred vision and bad headaches. He claims that he has "been restrain[ed] of liberty without due process" in that he "has requested and been denied the right to see an optometrist because he is in segregation." See Mueller v. Cupp, 45 Or. App. 495, 608 P.2d 1203 (1980).
The Oregon Rules of Civil Procedure apply to habeas corpus proceedings except where a different procedure is specified by statute. Bedell v. Schiedler, 307 Or. 562, 565, 770 P.2d 909 (1989). Bedell concluded that "any motion practice other than an ORS 34.680 motion to strike is inappropriate in habeas corpus actions" because ordinary pre-trial motions "would only lengthen and complicate actions intended to provide an expeditious and summary resolution of the issues presented." 307 Or at 566.
It was error for the trial court to dismiss plaintiff's habeas corpus action under ORCP 47C.
Reversed and remanded.