RIOS v. MAZUR-HART

PER CURIAM

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.