Brown v. Fhuere

No. 1104 November 12, 2026 697 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON STEPHEN LEE BROWN, Plaintiff-Appellant, v. Corey FHUERE, Superintendent, Oregon State Penitentiary, Defendant-Respondent. Marion County Circuit Court 22CV42297; A187479 Sean E. Armstrong, Judge. (Judgment) Lung S. Hung, Judge. (Order Denying Motion for Summary Judgment in Part, Granting in Part) Submitted October 22, 2026. Claire Powers and Equal Justice Law filed the briefs for the appellant. Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, filed the brief for respondent. Before Aoyagi, Presiding Judge, Kamins, Judge, and Pagán, Judge. AOYAGI, P. J. Affirmed. 698 Brown v. Fhuere AOYAGI, P. J. Plaintiff appeals a judgment denying him habeas corpus relief. He raises two assignments of error. First, he argues that the habeas court erred in “granting defendant’s motion to dismiss plaintiff’s claim that defendant violated his constitutional rights by seizing and retaining his out- going legal mail.” Second, he argues that the habeas court erred in “denying plaintiff’s claim that defendant violated his constitutional rights by interfering with his ability to send legal mail to his attorneys by prohibiting him from incurring debt to purchase mailing supplies.” As explained below, we affirm. Background. Plaintiff is in the custody of the Department of Corrections (DOC). In December 2022, while housed at Oregon State Correctional Institute (OSCI), he initiated this habeas corpus proceeding to challenge the conditions of his confinement. Plaintiff alleged that, on September 30, 2022, he sent an envelope containing docu- ments to his attorney, which was sealed in his presence by a law library employee, but that the documents were miss- ing when the envelope was delivered to his attorney, which plaintiff alleged meant that an OSCI employee must have removed and retained them. In June 2023, plaintiff was transferred to the Snake River Correctional Institution (Snake River), and the defendant in this case was thereafter changed to the super- intendent of Snake River. In October 2023, plaintiff filed a replication in his habeas case, in which, as relevant here, he made new allegations regarding his confinement at Snake River. Specifically, he alleged that Snake River employees were unreasonably burdening his right to access to the courts by not allowing him to incur debt to acquire post- age and mailing supplies in excess of the five postage-paid envelopes provided each month.1 According to plaintiff, he was not allowed to incur debt to send additional mail to his 1 Under OAR 291-131-0015(7), “Each month an adult in custody who in the previous month has not accumulated the cost of five postage-paid envelopes (for less than one ounce) in their trust account, will be issued five postage paid enve- lopes by the facility if they request.” Nonprecedential Memo Op: 354 Or App 697 (2026) 699 attorney unless the attorney provided a letter confirming that he had an active case.2 In December 2023, the superintendent of Snake River filed a motion to dismiss all claims, which was granted in part and denied in part after a hearing. The court dis- missed plaintiff’s claim regarding the seizure of his mail at OSCI, reasoning: “The court finds that the alleged opening and removing of legal mail, without more, is a constitutional violation, but there is no genuine issue of material fact that such an isolated incident that occurred at another prison than the current defendant operates is not a matter requiring immediate scrutiny. Plaintiff argues that this incident is an ongoing violation because plaintiff still does not know where the missing materials are and nobody has admitted to the act of removal. The court disagrees. An incident isn’t ongoing because the culprit of that incident has not been discovered, an incident is ongoing if it reoccurs or is likely to reoccur. Plaintiff has not created a genuine issue of material fact that the isolated incident continues, is likely to continue and is in need of immediate judicial scrutiny.” The court denied the motion as to the Snake River allega- tions, however, allowing that issue to proceed to trial. In 2024, plaintiff was transferred to the Oregon State Penitentiary (OSP), and the defendant in this case was thereafter changed to the superintendent of OSP. Trial was held in March 2025. As described in the judgment, it was “a trial on Plaintiff’s claims as set out in his Replication filed October 30, 2023, and as narrowed by the Malheur County Circuit Court’s Order from May 29, 2024, partially dismissing Plaintiff’s claims.” The court ultimately ruled against plaintiff, laying out its reasoning in an opinion and order incorporated into the judgment: “The sole issue before the court at the March 24, 2025 hearing was whether [plaintiff’s] right to counsel was being violated by the requirement that attorneys need to 2 Under OAR 291-139-0180, a “Priority Legal User” who lacks sufficient funds to purchase mailing supplies is to be provided with them, as is a “General Legal User with an imminent Court Deadline.” See OAR 291-139-0110(6), (7), (13) (defin- ing “Priority Legal User,” “General Legal User,” and “Imminent Court Deadline”). 700 Brown v. Fhuere provide documentation that there is an active and pend- ing case before plaintiff can send them mail. The facts adduced at trial on that issue do not give rise to plaintiff’s habeas claim. First, he is not currently incarcerated at Snake River, where the obligation was imposed. Second, he does not have any pending criminal cases, only this civil case, and there was no evidence adduced at trial that his representation on this matter was in some way hampered. In fact, OSP, where he is currently housed, has no such regulation. Finally, the court finds that the requirement imposed upon him at Snake River was made in an effort to determine whether he was entitled to the benefits afforded to him under the applicable Oregon Administrative Rules for indigent parties who need access to attorneys and courts under certain, narrowly defined circumstances—for which plaintiff did not qualify. So construed, the rule appears to the court to facilitate provision of services based upon his indigency rather than restrict his access to counsel.” (Footnote omitted.) First assignment of error. Plaintiff first challenges the pretrial dismissal of his claim regarding the alleged constitutional violation at OSCI. “[I]n reviewing a judgment dismissing a writ of habeas corpus, we will affirm if the record, viewed in the light most favorable to the plaintiff, presents no genuine issue of material fact and the defen- dant is entitled to prevail as a matter of law.” Woodroffe v. Nooth, 257 Or App 704, 705, 308 P3d 225, rev den, 354 Or 491 (2013). Here, the court did not err. To state a claim for habeas corpus relief, a person must “[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(2). The habeas court concluded that plaintiff’s claim did not meet that standard because plaintiff alleged “an isolated inci- dent that occurred at another prison,” which was “not a matter requiring immediate scrutiny.” That reasoning is sound. See Penrod/Brown v. Cupp, 283 Or 21, 28, 581 P2d 934 (1978) (dismissal is appropriate “when the court finds that the alleged deprivations, even if arguably unlawful, do not require immediate judicial intervention”). We also agree Nonprecedential Memo Op: 354 Or App 697 (2026) 701 with the habeas court that the fact that it remains unknown what exactly occurred—including who removed the papers and where they went—does not make for an “ongoing” viola- tion. We see no error in the dismissal of the claim related to the incident at OSCI.3 Second assignment of error. Plaintiff next challenges the judgment after trial. He contends that the habeas court erred in finding against him as to his Snake River allega- tions and also erred by not addressing the situation at OSP, which, according to plaintiff, is even more restrictive than at Snake River. We review for legal error, accepting the habeas court’s factual findings if supported by the record. White v. Reyes, 335 Or App 124, 136, 558 P3d 43 (2024), rev den, 373 Or 284 (2025). Regarding the Snake River allegations, we are unpersuaded that the court erred. Plaintiff argues that it was defendant’s burden to prove that Snake River’s mail practices provide constitutionally sufficient access to courts. That argument was not made below. Moreover, it is mis- guided. The case on which plaintiff relies—Dunn v. Hill, 211 Or App 590, 603, 156 P3d 72 (2007)—stands only for the proposition that, if a plaintiff alleges that specific conditions violate his right of access to the courts, and the defendant argues that alternative methods of access are provided, the defendant bears the burden to prove the alternative meth- ods are adequate. Dunn did not relieve plaintiff of proving that SRCI’s letter requirement impinged on his constitu- tional rights. And plaintiff has not put forward any other persuasive argument as to how the court erred in ruling against him as to the Snake River allegations. As for the situation at OSP, we do not see any error in the habeas court refusing to decide an unpleaded claim regarding conditions at a different institution. Plaintiff did not amend his pleadings after his transfer to OSP, and, although some evidence came in at trial regarding the 3 In his reply brief on appeal, plaintiff argues for the first time that the habeas court’s reasoning for dismissal does not adequately align with the grounds argued in the superintendent’s motion to dismiss. We generally will not consider issues raised for the first time in the reply brief. Federal National Mortgage Association v. Goodrich, 275 Or App 77, 86, 364 P3d 696 (2015). We therefore do not consider or address that argument. 702 Brown v. Fhuere relative situations at Snake River and OSP, the parties never indicated to the court that they had agreed to try an unpleaded claim, nor did the habeas court understand the parties to be trying an unpleaded claim. The court clearly stated its understanding that the only issue for trial was Snake River’s letter requirement—which, as OSP repeat- edly pointed out, did not exist at OSP. We are unpersuaded that the habeas court was somehow required to decide an unpleaded claim in these circumstances. Finally, we observe that, even if we were to conclude that the habeas court had to rule on the situation at OSP, it is unlikely that a reversal and remand on that basis would have any practical effect, given that respondent was recently transferred back to OSCI. Affirmed.