The opinion
EDMONDS, P. J.,
concurring.
The majority concludes that, "[b]ecause plaintiff has another adequate remedy, he was, as a matter of law, not entitled to habeas corpus relief on his due process claim.” 209 Or App at 301. The rule of law arising from the majority’s reasoning appears to be that a plaintiff, validly in custody, who alleges that he has been denied procedural due process of law before being subjected to further restraint of his person, is not entitled to seek habeas corpus relief under ORS 34.310 to 34.730 because 42 USC section 1983 provides an adequate remedy. In my view, that holding is inconsistent with the historical purpose of a writ of habeas corpus, as codified in the above statutes, to inquire into the cause of such restraint, and if illegal, to be immediately delivered therefrom. ORS 34.310. However, I would affirm the trial court’s sua sponte dismissal of plaintiff’s complaint for the failure to otherwise state sufficient facts to state a claim.
In substance, plaintiff’s complaint filed in January 2005 alleges that his placements in the Intensive Management Units (IMU) at the Snake River Correctional Institution and the Oregon State Penitentiary occurred without procedural due process under oppressive conditions and were based on discriminatory actions by prison officials. Plaintiff *302 also alleges that there exists “a need for immediate judicial scrutiny and there are no other plain, adequate or speedy remedies available for plaintiff to seek review of the challenged actions of the defendant.”
Habeas corpus proceedings are governed by ORS 34.310 to 34.730. ORS 34.310 provides that “[e]very person imprisoned or otherwise restrained of liberty, within this state, except in cases specified in ORS 34.330, may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint, and if illegal, to be delivered therefrom.” ORS 34.362 provides that,
“[i]f 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 complains of a deprivation of rights while confined, the petition shall:
‡ iH * *
“(2) State 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 34.370 provides that, upon the filing of a legally adequate petition, a writ shall issue “without delay” directing the defendant custodian to show cause why the writ should not be allowed. ORS 34.580 provides that “[t]he 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 imprisonment or restraint of such party.” If no legal cause is found for the imprisonment or restraint, “the court or judge shall discharge such party from the custody or restraint under which the person is held.” ORS 34.590.
Thus, “[t]he central characteristic of the writ of habeas corpus is the speed with which it triggers judicial scrutiny.” Bedell v. Schiedler, 307 Or 562, 566 , 770 P2d 909 (1989). The majority, however, affirms the trial court’s sua sponte dismissal of plaintiffs complaint on the basis that plaintiff has an adequate remedy under section 1983 even though he had pleaded that he has no other adequate *303 “speedy” remedy. It reasons that plaintiff “challenges only the procedure followed in assigning him to the IMU. Such a challenge can be brought as an action under 42 USC section 1983 .” 209 Or App at 300 (footnote omitted). I disagree with the majority’s reasoning for the reasons that follow.
First, the trial court’s authority to dismiss a petition sua sponte is circumscribed in this case by ORS 34.370(6) and (7). Subsection (6) provides that “[t]he court may on its own motion enter a judgment denying a meritless petition brought under ORS 34.310 to 34.370.” Subsection (7) defines a “meritless petition” as “one which, when liberally construed, fails to state a claim upon which habeas corpus relief may be granted.” Thus, a trial court’s sua sponte dismissal of a petition for a writ of habeas corpus is reviewed to determine whether, “when viewed most favorably to plaintiff, the pleadings and related inferences allege a legally sufficient claim.” Billings v. Gates, 133 Or App 236, 240-41 , 890 P2d 995 (1995) , aff'd on other grounds, 323 Or 167 , 916 P2d 291 (1996) . Second, even when a prisoner is validly in custody, a writ of habeas corpus is available to challenge a further imprisonment or restraint of his person that is unlawful. Penrod/Brown v. Cupp, 283 Or 21, 28 , 581 P2d 934 (1978).
Here, plaintiff alleges a further restraint of his person without procedural due process, i.e., his placement in IMU, and that he has no other “adequate or speed/’ remedy to challenge that restraint. In my view, an ordinary civil action seeking injunctive relief is neither a timely nor an adequate remedy given that defendant would remain in IMU at the will of defendant during the pendency of such an action. Indeed, in Bedell , the court stated, in holding that the trial court erred in ruling that plaintiff had “reasonably available alternative legal remedies,” that
“[w]e cannot find that plaintiff is required to endure additional weeks, months, or perhaps years, of the unconstitutional conditions pleaded in her replication while pursuing tort claims against this defendant, the state, or other potential defendants.”
307 Or at 569 . That reasoning is applicable to this case where plaintiff contends that the conditions of IMU are punitive in *304 nature and that he has been subjected to “further imprisonment” without the process guaranteed by the Due Process Clause of the United States Constitution.
None of the cases relied on by the majority dictates a contrary result. Keenan v. Peterson, 307 Or 323 , 767 P2d 441 (1989), involved a challenge to the monitoring of telephone calls by prison officials. Gage v. Maass, 306 Or 196 , 759 P2d 1049 (1988), involved credit for time served in jail prior to the petitioner’s transfer from the custody of the sheriff to the custody of the Corrections Division; the credit, however, would not have entitled him to actual release. Weidner v. Zenon, 124 Or App 314 , 862 P2d 550 (1993), concerned the denial of handicap access to a prison inmate. Armstrong v. Cupp, 67 Or App 295 , 677 P2d 721 , rev den, 297 Or 340 (1984), involved prison overcrowding. For the most part, the above cases involved allegations that the conditions of each prisoner’s custody were unconstitutional where the conditions themselves did not require immediate scrutiny. In contrast, this is the kind of case that involves further imprisonment under alleged punitive conditions without due process of law and therefore presents the need for immediate judicial scrutiny.
It does not, however, necessarily follow from the fact that plaintiff had no other adequate remedy than habeas corpus to challenge his restraint in IMU that he has pleaded an entitlement to relief. Whether restraint in a unit like IMU is unlawful will depend on the particular facts of a case. In general, prison officials have broad administrative and discretionary authority over the institutions they manage, and lawfully incarcerated persons retain only limited protected liberty interests under the Due Process Clause. Wolff v. McDonnell, 418 US 539 , 94 S Ct 2963 , 41 L Ed 2d 935 (1974). Thus, the transfer of an inmate to a more restrictive unit for nonpunitive reasons is held to be well within the terms of confinement contemplated by a prison sentence, i.e., to protect the prisoner’s safety, to protect other inmates from a particular prisoner, to break up potentially disruptive groups of inmates, or to await later classifications or transfer. Id. By itself, the Due Process Clause confers no liberty interest in freedom from state action “within the sentence imposed” and no right to remain in the general prison population. Hewitt v. Helms, 459 US 460, 468 , 103 S Ct 864 , 74 L Ed 2d 675 (1983).
*305 Nonetheless, states may under certain circumstances create liberty interests that are protected by the Due Process Clause,
“[b]ut these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause by its own force, * * * nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 US 472, 484 , 115 S Ct 2293 , 132 L Ed 2d 418 (1995).
In this case, plaintiffs complaint, even when liberally construed,does not allege facts that demonstrate that he is indeed subject to atypical and significant hardships in IMU that differ from the ordinary incidents of prison life, as Sandin requires. One of the requirements for a legally cognizable petition for habeas corpus relief under ORS 34.360 is that a petition must state more than mere conclusions; it must allege with particularity facts, which, if true, would entitle the plaintiff to relief. Bedell, 307 Or at 566 . For instance, in Troxel v. Maass, 120 Or App 397 , 853 P2d 294 (1993), the plaintiff challenged in a habeas corpus proceeding his placement in IMU based on 11 conditions that he contended were punitive in nature and therefore implicated due process. First, we held that, with the exception of his claim alleging improper placement in IMU, the plaintiffs allegations did not state facts that supported his claim that he had been deprived of a constitutional right. Id. at 399 . With regard to the remaining claim, we ruled that the plaintiff had “no constitutional right to placement outside of IMU. Therefore, his argument that he has a right to a hearing concerning his placement in IMU fails.” Id. at 400 .
Our decision in Troxel should be understood as an application of the applicable standard of review to the specific facts alleged in the plaintiffs claim. Similarly, the rule that a plaintiff must plead more than mere conclusions applies here. Plaintiff alleges, in part:
“IMU is a punishment unit[.] * * * 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 *306 process, the right to be heard, the right to question witnesses, to have documentary and physical evidence, and a prompt hearing!.]”
Plaintiff also alleges that he was involved in a fight with another inmate, a hearing was held, and, as a result, he received sanctions including 180 days in a segregation unit, a fine, and loss of privileges and good time. Thereafter, apparently, he was transferred to IMU. But his allegation that IMU is a “punishment unit” is a mere conclusion. Because plaintiff does not plead how the decision to transfer him to IMU or the conditions of IMU infringe on a liberty interest conferred on him by the state, his complaint was properly dismissed by the trial court.
I also agree with the trial court’s rulings regarding plaintiffs other claims and therefore would affirm the trial court’s dismissal of plaintiffs complaint.