S054622, Opinion — Barrett v. Belleque

91
Argued and submitted November 6, 2007, decision of Court of Appeals and
judgment of circuit court affirmed February 7, 2008
JACOB BARRETT,
Petitioner on Review,
v.
Brian BELLEQUE,
Superintendent,
Oregon State Penitentiary,
Respondent on Review.
(CC 05C 1 1 5 16; CA A127929; SC S054622)
176 P3d 1272

CJS, Habeas Corpus § 18.
On review from the Court of Appeals.*
Charles M. Simmons, Rader, Stoddard & Perez, P.C .,
Ontario, argued the cause and filed the briefs for petitioner
on review.
Kathleen Cegla, Assistant Attorney General, Salem,
argued the cause and filed the briefs for respondent on
review. With her on the briefs were Hardy Myers, Attorney
General, and Mary H. Williams, Solicitor General.
Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Kistler, and Walters, Justices.**
BALMER, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
* Appeal from Marion County Circuit Court, Joseph V. Ochoa, Judge. 209 Or
App 295, 150 P3d 1064 (2006).
** Linder, J., did not participate in the consideration or decision of this case.

Cite as 344 Or 91
BALMER, J.
While serving a prison term in Oregon, petitioner
filed a petition for a writ of habeas corpus claiming that he
was entitled to a hearing before prison officials removed him
from the general prison population and placed him in the
prison's intensive management unit (IMU). The trial court
dismissed the petition for failure to state a claim. The Court
of Appeals affirmed on different grounds, holding that,
because petitioner could have challenged the state's place
ment of him in IMU without a hearing under 42 USC section
1983, that alternative remedy foreclosed habeas relief.
Barrett v. Belleque, 209 Or App 295, 150 P3d 1064 (2006).
Petitioner filed a petition for review in this court, which we
allowed. Before oral argument, the state notified the court
that Oregon prison officials had sent petitioner to Oklahoma
under the Interstate Corrections Compact, ORS 421.245, to
serve his Oregon sentence there and moved to dismiss the
proceeding as moot. We denied the motion. In briefing and
oral argument before this court, the state renewed its motion
to dismiss. We now affirm our earlier ruling that this matter
is not moot. On the merits, we affirm the decision of the Court
of Appeals, but we do so on different grounds .
I. FACTS
We take the facts from the pleadings. Officials sus
pected petitioner of involvement in gang violence in the
prison. In February 2003, while he was at Two Rivers Correc
tional Institution (TRCI), prison officials accused petitioner
of instigating a fight between two other prisoners, Cavan and
Lewis. Following a hearing, officials put petitioner in admin
istrative segregation for 180 days. Petitioner unsuccessfully
appealed that disciplinary sanction. Petitioner was trans
ferred to Snake River Correctional Institution (SRCI) and
placed in IMU in March 2003. In March 2003, petitioner filed
an administrative appeal of his IMU placement, which was
upheld. See OAR 291-055-0019(4) (providing for administra
tive review of a prisoner's "maximum custody classification/
assignment to IMU").
Prison officials created IMU as both a program and a
physical area to which they can assign prisoners who pose

94 Barrett v. Belleque
security risks because of possible escape, chronic misconduct,
or activity involving other prisoners (such as membership in
prison gangs). See OAR 291-055-0005 to 291-055-0050
(establishing IMU and procedures for IMU placement); OAR
291- 104-0005 to 291-104-0135 (establishing general proce
dures for determining inmate custody levels). IMU facilities
exist at SRCI and at the Oregon State Penitentiary. IMU
prisoners are separated from the general prison population.
IMU provides greater scrutiny of prisoner conduct and poten
tial deprivation of certain prison privileges, such as tele
phone use, nonfamily visits, outdoor recreation, and classes.
Prison officials attempt to use the potential restoration of
those privileges-and release from IMU-as a means of
inducing prisoners to improve their behavior in prison. From
the state's perspective, placement in IMU is not punishment,
but rather a security matter related to the needs of safely
administering the prison.
"Maximum custody inmates shall be assigned to an
IMU or IMU status cell. * * * An inmate demonstrates the
need for maximum custody housing by demonstrating
behaviors that cannot be controlled in other housing as
indicated by high severity and/or chronic misconduct sanc
tions, escape activity or security threat group activities
causing serious management concerns."
OAR 291-055-0019( 1). As a prison official explained:
"IMU was developed as a system for dealing with inmates
who would not conform their behavior to the requirements
of a penal institution. Placement in IMU is for an indeter
minate period of time, with the inmate having control over
when they will be released from IMU. One ofthe fundamen
tal considerations in creating IMU was that inmates be able
to 'program out' based on their behavior and programming
while in the IMU."
Petitioner himself admits that IMU placement is based on an
inmate's behavior.
In July 2003, petitioner was transferred back to
TRCI, which does not have an IMU. In September 2003, offi
cials accused petitioner of fighting with a prisoner named
Yancey. A prison guard also alleged that petitioner swung at

Cite as 344 Or 91
her with a closed fist. Prison officials held a hearing regard
ing those two incidents. Petitioner declined to attend the
hearing, but alleged in his habeas petition that no evidence
showed that he was responsible for the fight with Yancey.
Following the hearing, prison officials placed petitioner in
the TRCI Disciplinary Segregation Unit (DSU) for 180 days.
Officials then sent petitioner back to the IMU at SRCI. Peti
tioner maintains that his "IMU placement was therefore an
extension of [his] DSU punishment." Petitioner asserts that
his appeal from placement in IMU was denied, but the peti
tion is unclear as to the date of that denial.1
Petitioner asserts that, in September 2004, the con
ditions in which he was held deteriorated after his transfer to
"A-pod" within IMU. He then states:
"After approximately a week of being subject to the IMU
conditions in A-pod and not being told why I was dropped
level 1, I became mentally distraught and made a 'shank'
out of a stapler from the inmate legal library and flooded
the tier with my toilet and had staff suit up. I intended to
stab staff when they come through the door."
(Footnote omitted.) Prison officials also suspected petitioner
of involvement in a conspiracy to attack prison guards.
Finally, petitioner asserts that he slit the throat of another
prisoner for being an informant.
To summarize: Prison officials believed that peti
tioner was involved in gang violence in prison, and petitioner
admits both gang involvement and fighting. In an effort to
deter further misconduct, officials threatened to send peti
tioner to IMU if his behavior did not improve. Petitioner con
tinued to fight and otherwise misbehave, and prison officials
then placed him in IMU twice.
1 Prison officials also reviewed petitioner's IMU classification on February 15,
2006, but decided not to change his IMU placement. According to the state, peti
tioner chose not to seek administrative review of that classification, even though
such review was available to him. On August 15, 2006, officials again reviewed
petitioner's placement in IMU, and ordered testing to consider the possibility of his
reassignment from IMU, but pending such an evaluation his classification
remained at "level five," the maximum level for disruptive inmates. The record
does not reflect whether petitioner sought administrative review of the August
2006 decision, nor does it reflect additional reviews in the Oregon prison system.

96 Barrett v. Belleque
II. PROCEEDINGS BELOW
Petitioner filed a petition for a writ of habeas corpus
alleging the facts described above. Petitioner identified six
claims for relief in his petition, but the common element in all
of them is his claim that prison officials took actions with
respect to him in violation of his procedural due process
rights. In particular, petitioner asserts that placement in
IMU is punishment and that prison officials violated his due
process rights by placing him in IMU without first holding a
hearing.
The trial court dismissed the petition as meritless
under ORS 34.370(6) and (7).2 The court summarized the
allegations as follows: petitioner had been placed in IMU on
two occasions; the conditions in IMU were oppressive; and
petitioner had been subjected to discrimination.3 The court
concluded:
"Plaintiff alleges that he has unlawfully been placed in the
Intensive Management Unit (!MU). There is no constitu
tional right to placement outside the IMU. The oppressive
conditions plaintiff alleges are not actionable in an[ ] action
for habeas corpus relief. Allegations of discrimination, even
if true, are insufficient to invoke habeas corpus relief."
(Citations omitted.) The trial court dismissed the petition
without prejudice. Later, the trial court allowed reconsidera
tion, but adhered to its earlier judgment of dismissal.
Petitioner appealed, and the Court of Appeals
affirmed. The Court of Appeals declined to address the trial
court's conclusion that petitioner had "no constitutional right
to placement outside the IMU [.]" Instead, the court rejected
petitioner's claims on the threshold ground that petitioner
"was not entitled to raise his challenge in a petition for a writ
2 See ORS 34.370(6) ("The court may, on its own motion, enter a judgment
denying a meritless petition brought under ORS 34.310 to 34.730."); ORS 34.370(7)
("As used in this section, 'meritless petition' means one which, when liberally con
strued, fails to state a claim upon which habeas corpus relief may be granted.").
1 On appeal, petitioner took issue with the trial court's characterization of his
claims: "Petitioner has a constitutional right to Due Process in placement in the
[IMU] . Petitioner never challenged 'oppressive conditions' [and] never raised the
issue of discrimination[.]"

Cite as 344 Or 9 1 	9 7
of habeas corpus." Barrett, 209 O r App at 298 (footnote omit
ted). The court relied upon Penrod/ Brown u. Cupp, 283 Or
2 1 , 28, 581 P2d 934 ( 1978), for the proposition that one of the
two "essential elements" for habeas relief is the "practical
inadequacy of an alternative remedy" to meet the need for
immediate attention to the constitutional deprivation that a
petitioner alleges. The court held that petitioner had the
"alternative remedy" of a federal civil rights action under 42
USC section 1983 in which he could assert his due process
and other federal constitutional rights and that habeas
therefore was not available to him. Barrett, 209 Or App at
299-301.
Judge Edmonds concurred in the result. He dis
agreed with the majority's conclusion that the existence of a
federal remedy precluded petitioner's claim, but stated that
the trial court correctly had found that petitioner failed to
state a habeas claim. In Judge Edmonds's view, whether
placement of an inmate in IMU was punishment or not would
depend on the facts of each case. Petitioner's claims, even
when liberally construed, did not "demonstrate that he is
indeed subject to atypical and significant hardships in IMU
that differ from the ordinary incidents of prison life [.]" Id. at
305. The petition therefore did not state a claim for relief. Id.
As noted, petitioner filed a petition for review, which
we allowed.
III. MOOTNESS
In May 2007, while petitioner's petition for review
was pending, Oregon prison officials transferred petitioner to
the Oklahoma prison system under the Interstate Correc
tions Compact (ICC). We briefly describe the ICC, before
turning to the state's argument that petitioner's transfer to
Oklahoma pursuant to that compact renders this case moot.
The ICC provides a means for states to send prison
ers to other states to serve their sentences. The signatory
states "declare that it is the policy of each of [those] states to
provide such facilities and programs on a basis of cooperation
with one another, thereby serving the best interests of such
offenders and of society and effecting economies in capital
expenditures and operational costs." ORS 421 .245, Art I. The

purpose of the compact is to "provide for the mutual develop
ment and execution of such programs of cooperation for the
confinement, treatment and rehabilitation of offenders with
the most economical use of human and material resources."
Id. Prison officials sometimes attempt to break up prison
gangs by sending problem prisoners out of state. See, e.g. ,
Salstrom v. State, 148 Ariz 382, 7 14 P2d 875 (Ariz Ct App
1986) (describing circumstances in which Nevada prison offi
cials sent prisoner to Arizona because of his involvement in
gang activities and involvement in conspiracy to take staff
members hostage).
Under the ICC, transferred inmates remain under
the jurisdiction of the sending state and may be returned to
the sending state.4 An inmate still enjoys the legal rights that
the inmate would have had in the sending state. 5 In other
words, an inmate's rights do not change as a result of the
transfer out of state.6
The state asserts that this case is moot because peti
tioner, having been transferred to a prison in Oklahoma, now
is subject to the rules of that prison system, rather than the
rules of the Oregon prison system. The state submitted an
affidavit from an administrator in the Oregon prison system,
asserting that Oregon officials have given Oklahoma officials
no guidance on how to treat the prisoner.
"(Oregon Department of Corrections (ODOC)] transferred
[petitioner] to another state for population management
4 "Inmates confined in an institution pursuant to the terms of this compact
shall at all times be subject to the jurisdiction of the sending state and may at
any time be removed therefrom for * * any other purpose permitted by the
laws of the sending state [.]"
ORS 421 .245, Art IV\3J.
5 "The fact of confinement in a receiving state shall not deprive any inmate so
confined of any legal rights which said inmate would have had if confined in an
appropriate institution of the sending state."
ORS 421.245, Art IV(5).
6 "Any inmate confined pursuant to the terms of this compact shall have any
and all rights to participate in and derive any benefits or incur or be relieved of
any obligations or have such obligations modified or the status of the inmate
changed on account of any action or proceeding in which the inmate could have
participated if confined in any appropriate institution of the sending state
located within such state."
ORS 421.245, Art IV<Sl.

Cite as 344 Or 9 1
reasons. * * * ODOC officials did not direct the receiving
state to confine [petitioner] in security housing or to house
him in any particular unit. Once an agreement is made
between two states for the transfer of an inmate under the
interstate corrections compacts, the state receiving the
inmate has both the authority and the responsibility to
review the inmate's history and circumstances and decide
how that state will manage the inmate in its corrections
system, including the location and type of housing assign
ment that the receiving state deems appropriate."
Because Oregon has no control over Oklahoma's decision on
the manner in which the prisoner should be housed, the state
argues, the petition is moot.
Petitioner tells a different story, however, asserting
that Oregon officials still have influence over his treatment
in Oklahoma. Petitioner states that he was placed in a max
imum security unit in Oklahoma that is the equivalent of
Oregon's IMU. Petitioner filed a declaration stating:
"On June 5, 2007, I was given a hearing before being
placed in 'H-Unit.' I was told at that time that Oregon had
ordered the Oklahoma Department of Corrections to keep
me in the Maximum Security SHU Housing pursuant to the
Interstate Corrections Compact Transfer Contract agree
ment. I cannot be released from SHU without Oregon's
authorization."
In addition, a letter to petitioner from the Oklahoma coordi
nator for the ICC explained that Oregon officials had deter
mined, at least in part, how Oklahoma prison officials will
treat petitioner.
''You will probably remain in Maximum Security for a min
imum of one ( 1) year. After the assessment period, your
Case Manager can request a transfer to medium custody
through this office. At that time I will ask Oregon for their
approval. When I get their okay, you will be allowed to be
moved.
"The level system you refer to in Oregon is not the same as
the level system in Oklahoma. You will be allowed to pro
mote to Level 3 and possibly Level 4 for privileges only. For
time, all of your calculations are performed by the State of

100 Barrett v. Belleque
Oregon. I do not control your promotions. Your Case man
ager and the Unit Classification Committee will determine
when you are eligible for Level 3.
"Any rights or privileges that Oklahoma does not offer must
be requested from Oregon."
Finally, petitioner submitted a document that he received
from an Oklahoma prison official, which states that in the
Oklahoma prison system, ICC inmates "are housed either
[in] maximum or medium security." In his case, Oklahoma
prison officials will not change the prisoner's security level
without an instruction from Oregon prison officials: "A reduc
tion to a lower security is not possible without recommenda
tion from [the] assigned Case Manager and written approval
from the sending states' Compact Authority."
The state argues that this case is moot because peti
tioner is now in Oklahoma. As the state notes, in order to
qualify for habeas relief, a petitioner must be "imprisoned or
otherwise restrained of liberty, within this state [.]" ORS
34.310 (emphasis added); see White v. Gladden, 209 Or 53,
303 P2d 226 ( 1956) (habeas petition properly dismissed
because, in light of release of prisoner on parole, prison war
den no longer had custody). Petitioner is not "within this
state" and, more importantly, his custodian is not within this
state. Both are in Oklahoma.
The terms of the ICC, however, supplement the ordi
nary habeas jurisdictional analysis . Petitioner committed his
crimes in Oregon, was convicted and sentenced in Oregon,
and is serving an "Oregon" sentence. Under the ICC, peti
tioner cannot be deprived of any legal rights that he would
have enjoyed in Oregon. See ORS 42 1 . 243, Art IV(5) (so stat
ing) . Although Oregon officials contend that they have not
instructed Oklahoma on the details of how petitioner must be
treated, petitioner's declaration and documents indicate that
Oklahoma officials, at least in part, will seek agreement from
Oregon officials in determining petitioner's treatment in the
Oklahoma prison system. Petitioner argues that Oregon
prison officials' decision to place him in IMU still has conse
quences for his treatment in Oklahoma prison, and the evi
dence before us, while not conclusive, tends to support that
claim. Based on the record before us, we cannot conclude that

Cite as 344 101
this dispute is moot. We therefore address petitioner's claims
to the extent that they may affect his current incarceration in
Oklahoma.7
IV. MERITS OF PETITIONER'S HABEAS CLAIM
Petitioner argues that the Court of Appeals erred in
holding that petitioner could not pursue habeas relief
because he had the "alternative remedy" of a section 1983
claim to vindicate the alleged violations of his federal due
process rights. The Court of Appeals relied upon the follow
ing passage from Penrod I Brown:
" ' (W]e emphasize the two essential elements that must
coincide to make the writ of habeas corpus a proper instru
ment of judicial inquiry [into the circumstances respecting
the custody of a prisoner]: The need for immediate atten
tion, if this appears from the urgency of the harm to which
the prisoner claims to be exposed or if it is found to be
required as a matter of constitutional law, and the practical
inadequacy of an alternative remedy to meet this need.' "
Barrett, 209 Or App at 299 (quoting Penrod / Brown, 283 Or
at 28). However, as Penrod/Brown makes clear in the sen
tences immediately preceding the passage quoted by the
Court of Appeals, that passage refers to alleged deprivations
of a prisoner's legal rights other than a prisoner's claim that
he has been unlawfully subjected to further "imprisonment
or restraint" of his person while in custody. Penrod I Brown,
283 Or at 28. In Penrod I Brown, this court stated that a
habeas writ is available for "two kinds of cases"-those chal
lenging a prisoner's "further" restraint and those alleging
other deprivations of a prisoner's legal rights, such as over
crowding, the quality of prison food, and "similar conditions
of imprisonment." 283 Or at 27. It was with respect to "this
second kind" of habeas claim, id. at 28, that this court used
the words quoted by the Court of Appeals and emphasized
that habeas will lie for such claims only if the petitioner
shows the "practical inadequacy of an alternative remedy to
meet this need." Id.
7 We do not address any post-petition claims that might have arisen solely as a
result of petitioner's transfer to and incarceration in Oklahoma.

Here, petitioner specifically disclaims any challenge
to general prison conditions and relies precisely on the claim
that placement in IMU is a "further 'imprisonment or
restraint' of his person," Penrod I Brown, 283 Or at 28, that is
unlawful because it was imposed in violation of his federal
due process rights. Petitioner's claim thus is the kind of claim
that traditionally has been cognizable in habeas. See also
Bekins v. Cupp, 274 Or 1 15, 1 17, 545 P2d 861 ( 1 976) (habeas
petition was proper procedure to challenge prison officials'
placement of petitioner in segregation as alleged violation of
due process rights).
Even if a successful section 1983 action could lead to
injunctive relief, such as an order that petitioner be released
from IMU placement, that alternative remedy does not fore
close petitioner's habeas claim. The wrongful deprivation of
liberty by the state, which petitioner alleges here, is a serious
claim that justifies immediate judicial attention. The writ of
habeas corpus provides a speedy remedy for the deprivation
of a specific constitutional right-the right to be free from
unlawful imprisonment or restraint-when no other remedy
will provide timely relief:
"If the person is imprisoned or restrained by virtue of
any order, judgment or process specified in ORS 34.330 and
the person challenges the conditions of confinement or com
plains of a deprivation of rights while confined, the petition
shall * * * [s]tate facts in support of a claim that the person
is deprived of a constitutional right that requires immediate
judicial attention and for which no other timely remedy is
practicably available to the plaintiff"
ORS 34.362 (emphasis added). As this court stated in Bedell
v. Schiedler, 307 Or 562, 566, 770 P2d 909 ( 1989), "The cen
tral characteristic of the writ of habeas corpus is the speed
with which it triggers judicial scrutiny." If the petition has
legal merit, a judge must issue an order ''without delay,"
requiring the custodian "to show cause why the writ should
not be allowed." ORS 34.370( 1 ). "The court or judge before
whom the party is brought on the writ shall, immediately
after the return thereof, proceed to examine into the facts
contained in the return, and into the cause of the imprison
ment or restraint of such party." ORS 34.580. "If no legal
cause is shown for the imprisonment or restraint, or for the

Cite as 344 Or 91 103
continuation thereof, the court or j udge shall discharge such
party from the custody or restraint under which the person is
held." ORS 34.590. Few other legal remedies provide such
swift relief. Moreover, this court has stated specifically that
the mere existence of a federal remedy does not deprive a
prisoner of the protection of the writ ofhabeas corpus in state
court.8
We conclude that the Court of Appeals erred in hold
ing that a civil rights lawsuit for tort damages and inj unctive
relief is an adequate alternative remedy for a habeas peti
tioner who alleges an unconstitutional "imprisonment or
restraint" of his person.
We turn to the state's alternative argument that,
even if petitioner may challenge his IMU placement in a
habeas petition, his claim fails. Petitioner's principal consti
tutional claim is that placement in IMU is a further depriva
tion of liberty beyond the constraints placed on other prison
ers and, therefore, that he was entitled to a hearing before he
could be placed in IMU. The lack of a hearing before being
transferred to IMU, he contends, violated his rights under
the Due Process Clause of the Fourteenth Amendment to the
United States Constitution.9
The burden that petitioner must meet is a heavy
one. First, because petitioner does not challenge his under
lying convictions or imprisonment, he must show that place
ment in IMU is a further restraint on his liberty that
8 This court has focused on the necessity of providing state remedies for depri
vations of constitutional rights:
"When we emphasized in Penrod I Brown, supra, that the use of the writ of
habeas corpus to trigger judicial inquiry into conditions of confinement
depends on 'the need for immediate attention['] * * * we were referring to
timely remedies available under Oregon law. We did not mean remedies avail
able in federal courts for failure of Oregon to live up to federal standards.
Oregon is responsible for providing its own remedies for legal deprivations,
and in prisoner's cases, this particularly applies to the remedy of habeas cor
pus guaranteed in Article I, section 23, of the Oregon Constitution. That writ
cannot be denied because the prisoner also has turned for help to intervention
by federal authority."
Taruer v. Cupp, 300 Or 154, 156-57, 707 P2d 572 ( 1985) (citations omitted).
9 The Due Process Clause of the Fourteenth Amendment states, in part: "[N]or
shall any State deprive any person oflife, liberty, or property, without due process
of law [.]"

104 Barrett v. Belleque
"imposes atypical and significant hardships in relation to the
ordinary incidents of prison life." Sandin u. Conner, 5 15 US
472, 484, 115 S Ct 2293, 132 L Ed 2d 4 18 ( 1995). Second, peti
tioner must show that the Due Process Clause requires that
the state provide him a hearing before being placed in IMU
and that the procedures afforded him by the state to chal
lenge his IMU placement are constitutionally inadequate.
See Wilkinson u. Austin, 545 US 209, 224, 125 S Ct 2384, 162
L Ed 2d 1 74 (2005) (once liberty interest is established, court
considers "what process is due").
As to the first point, petitioner argues that his privi
leges are curtailed to such an extent in IMU that placement
there is punishment and constitutes further deprivation of
liberty:
"In IMU I am denied access to a phone, I am denied my
property, denied outdoor recreation, denied visits with non
family, denied canteen, I'm not permitted to leave my cell, I
am not permitted educational or learning material as well
as a myriad of other denied privileges and rights. This
denial is based on punishment and not security concerns."
Accordingly, petitioner contends that he is entitled to a hear
ing before placement in IMU:
"Because IMU is a punishment unit my placement in
IMU denies me Due Process rights in a hearing, such as a
notice in accordance with due process, the right to be heard,
the right to question witnesses, to have documentary and
physical evidence, and a prompt hearing violates my consti
tutional rights[.]"
The state responds that the United States Supreme
Court has held that placement of a prisoner in disciplinary
segregation does not "impose[ ] atypical and significant hard
ships in relation to the ordinary incidents of prison life," and
therefore does not implicate a "liberty" interest for due proc
ess purposes. Sandin , 5 15 US at 484. The trial court accepted
that argument, and it provided the basis for the trial court's
conclusion that petitioner had not stated a claim for relief
and for Judge Edrnonds's concurring opinion in the Court of
Appeals.
Sandin, however, involved a 30-day disciplinary
sanction, and petitioner argues that placement in IMU is a

Cite as 344 Or 91
more significant deprivation of liberty than was involved in
Sandin. He asserts that IMU placements may last indefi
nitely and ordinarily are reviewed only every six months. He
contends that, at some of the different "levels" of placement
within IMU, an inmate is in solitary confinement, allowed
out of his cell less than an hour a day, and denied outdoor rec
reation and visits with nonfamily members. Petitioner
argues that those restrictions impose "atypical" and "signifi
cant" hardships on an inmate, compared to the normal inci
dents of prison life and therefore constitute a further depri
vation of a liberty interest protected by the Due Process
Clause.
Petitioner relies on a United States Supreme Court
case decided after Sandin, Wilkinson, in which the Court con
sidered a challenge to the procedures for assignment to an
Ohio "Supermax" prison, where inmates were kept in solitary
confinement, required to remain in their cells 23 hours a day,
and banned from eligibility for parole. The Supermax place
ments were for an indefinite period, subject only to an initial
30-day review and annual reviews thereafter. The Court held
that placement in the Supermax prison constituted a further
deprivation of liberty beyond that experienced by other
inmates in the Ohio prison system and therefore implicated a
liberty interest protected by the Due Process Clause. 545 US
at 223-24.
From petitioner's allegations and the administrative
rules with respect to IMU placement, it is apparent that IMU
placement involves a greater restriction on liberty than the
30-day sanction in Sandin, but less of a restriction than the
solitary confinement in the Ohio Supermax prison at issue in
Wilkinson . Inmates placed in IMU are initially assigned to
"level two" of four program levels, in which the inmate is per
mitted two visits a month, canteen items, and educational
materials that meet security requirements. See OAR 291-
055-0020(2)(b) (IMU inmates begin at level two): OAR 291-
055-0020(1)(b) (description of level two services). Inmates
can be demoted to level one, where they are not permitted to
have visits, if they engage in behavior that threatens the
safe, secure, and orderly operation of the IMU. OAR 291-055-
0020(2)( c). Inmates who have no major rule violations and no
more than one minor rule violation for two months at level

106 Barrett v. Belleque
two are advanced to level three, which allows more visits and
other privileges. OAR 29 1-055-0020(2)(d). Similar good
behavior for three months leads to advancement to level four
and then to review within 30 days for transfer out of IMU.
Id. ; OAR 29 1-055-0031. The state therefore asserts that IMU
placement (and changes in levels within IMU) is based on
inmate behavior and is more fluid and less harsh than Super
max placement. For that reason, the state argues, IMU place
ment does not infringe any protected liberty interest.
We need not decide, however, whether petitioner's
IMU placement deprives him of a protected liberty interest
because, even assuming that it does, his claim fails the sec
ond part of the test for demonstrating a due process violation.
The process required by the Due Process Clause depends
on the nature of the individual's interest that is at stake,
the risk of an erroneous deprivation of that interest given
the procedures used by the state, and the state's interest.
Wilkinson, 545 US at 224-25 ( citing Mathews v. Eldridge, 424
US 319, 335, 96 S Ct 893, 47 L Ed 2d 18 ( 1976)). In Wilkinson,
the Court, as noted, held that placement in the Ohio Super
max prison was an infringement of a liberty interest, but also
concluded that due process requirements could be satisfied
by "informal, nonadversary procedures * * *." Wilkinson, 545
US at 229. The Court in Wilkinson indicated that notice of
the factual basis for the placement and a fair opportunity for
rebuttal were "among the most important procedural mech
anisms" to avoid erroneous decisions, id. at 226, but it
declined to require Ohio to allow an inmate to call witnesses
or to provide "other attributes of an adversary hearing." Id. at
228. Although the Ohio procedures approved in Wilkinson
included an informal, nonadversary hearing before an
inmate was placed in the Supermax prison, nothing in the
Court's decision suggested that due process required a hear
ing before placement. Indeed, the Court in Wilkinson cited its
earlier decision in Hewitt v. Helms, 459 US 460, 4 72, 1 03 S Ct
864, 74 L Ed 2d 675 ( 1983), as "provid[ing] the appropriate
model" for procedures in prisons and as "instructive" for that
decision's "discussion of the appropriate level of procedural
safeguards." Wilkinson, 545 US at 229.

Cite as 344 Or 9 1 107
In Hewitt, the Court held that the prison officials
who placed the inmate in that case in administrative confine
ment ''were obligated to engage only in an informal, nonad
versary review of the information supporting [the inmate's]
administrative confinement, including whatever statement
[the inmate] wished to submit, within a reasonable time after
confin[ement] ." 459 US at 472 (emphasis added). See also id.
at 476, 476 n 8 (due process requires some notice of charges
on which administrative segregation is based and opportu
nity for inmate to present his views; proceeding must occur
within reasonable time after transfer).
Oregon provides inmates placed in IMU with proce
dures to challenge their placement that are similar to those
that the Court found sufficient in Wilkinson and Hewitt.
Oregon inmates receive preplacement written decisions
regarding their classification and assignment and are pro
vided with notice of their opportunities to seek review. OAR
291-055-0019(4). An Oregon inmate can seek administrative
review of an IMU placement and submit a statement and
other evidence in support of the inmate's position. OAR 291-
055-0019(5); OAR 291- 104-0035. The inmate initiates admin
istrative review by submitting a request to the administrator
of the classification unit, OAR 291-104-0135(2)(c), and review
is then conducted by the Special Population Management
Inmate Program Committee, OAR 291-104-01 1 1(22). More
over, IMU placements, and changes in the privileges that are
granted or denied to IMU inmates, are based on specific cri
teria, such as the inmate's type of offense, misconduct in
prison, affiliation with "security threat gangs," time until
release, escape risk, and other factors, thus limiting the
chance of erroneous placement decisions. See OAR 291-104-
0 1 16, Attachment 1 (Custody Classification Guideline); OAR
29 1-055-00 19 to 291-055-0020 (criteria for IMU assignment
and programming levels); OAR 291- 104-0 1 16 (criteria for
determining custody level classification). IMU placements,
like other custody level determinations, are reviewed every
six months. OAR 291-104-0125.
The state does not provide a formal, preplacement
hearing of the kind petitioner seeks before an inmate is
placed in IMU or is "demoted" from an initial IMU level two
to the more restrictive IMU level one. However, as noted, the

108 Barrett v. Belleque
C ourt in Wilkinson held that a formal, adversary hearing
was not required, and while the Ohio procedures upheld in
Wilkinson included an informal hearing prior to transfer, the
Court did not indicate that a prior hearing was constitution
ally mandated. Rather, the Court referred to Hewitt, where it
had held that notice and an opportunity to submit a written
statement within a reasonable period as part of an adminis
trative review after an inmate's transfer to administrative
segregation satisfied due process. That procedure is particu
larly likely to be sufficient to prevent erroneous IMU place
ment because the criteria for the maximum custody classifi
cation that is a prerequisite for IMU placement are specific
and generally objective.
In any event, petitioner himself alleges that the
state conducted a hearing with respect to the February 2003
fight that led to petitioner's 1 80-day administrative segrega
tion and also conducted a hearing (which petitioner declined
to attend) related to the September 2003 fight that led to his
placement for 180 days in a disciplinary segregation unit.
The factual issues related to those fights are the primary
basis for petitioner's challenge to his IMU placement. In
addition to hearings related to two of the fights in which peti
tioner was involved, the state provided him preplacement
notice of the reasons for his IMU placement and an adminis
trative review, which permitted him to submit evidence in
support of his objection to that placement. Defendant does
not challenge the promptness of that review.
For the reasons set forth above, on the facts set forth
in the petition and the due process challenges this petitioner
makes, we conclude that the petition failed to state a claim
for relief and that the trial court properly dismissed the peti
tion as meritless under ORS 34.370(6) and ( 7). 10
The decision of the Court of Appeals and the judg
ment of the circuit court are affirmed.
10 Our decision is based on the allegations in the petition and on the written
procedures regarding the basis for IMU placements and the process by which
placement decisions are made and reviewed. If an inmate were to demonstrate that
those procedures were ignored in practice, resulting in harm to an inmate's liberty
interest, that could be the subject of an appropriate further challenge.