Sullivan v. State

• Jurisdiction: Oregon
• Parties: John Leonard SULLIVAN, Appellant, v. STATE of Oregon, Respondent.
• Citation: Sullivan v. State, 515 P.2d 193, 15 Or.App. 149 (Or. App. 1973)
• Court: Oregon Court of Appeals
• Decision Date: 29 October 1973

Page 193

515 P.2d 193

15 Or.App. 149

John Leonard SULLIVAN, Appellant, v. STATE of Oregon, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Oct. 3, 1973.

Decided Oct. 29, 1973.

Edwin A. York, Portland, argued the cause for appellant. On the brief was Charles Paulson, Portland.

Edward H. Warren, Portland, argued the cause for respondent. With him on the brief were Hershiser, Mitchell & Warren, Portland.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

SCHWAB, Chief Judge.

This is a tort action for general damages allegedly resulting from an illegal detention and false imprisonment of the plaintiff in the Oregon State Penitentiary. The plaintiff tried his case to a jury but, upon a motion at the close of the defendant's case, the court directed a verdict in favor of the state on the basis of immunity under the Oregon Tort Claims Act, ORS 30.260 et seq.

The facts here are not in dispute. On March 9, 1962, the plaintiff began serving a 15-year sentence in the Oregon State Penitentiary; he remained there until his release on July 13, 1971. During most of the time that the plaintiff was in prison he worked either in the prison industries or in prison operation and maintenance. His monthly work reports indicated that his work was always rated good, very good or excellent.

Reduction in sentence is provided to inmates by the provisions of ORS 421.120:

'(1) Each inmate now or hereafter confined, in execution of the judgment of sentence upon any conviction, in the penal or correctional institution, for any term other than life, and whose record of conduct shows that he faithfully has observed the rules of the institution, and where industry and general reformation are certified to the Governor by the superintendent of the penitentiary or correctional institution, shall be entitled, upon the order of the Governor, to a deduction from the term of his sentence to be computed as follows:

'* * *

'(b) From the term of a sentence of more than one year, one day shall be deducted for every two days of such sentence actually served in the penal or correctional institution.

'(c) From the term of any sentence, one day shall be deducted for every 15 days of work actually performed in prison industry, or in meritorious work in connection with prison maintenance and operation, during the first year of prison employment, and one day shall be deducted for every seven days of such work actually performed after the first year to and including the fifth year of prison employment, and one day for every six days of such work actually performed after the fifth year of prison employment.

'* * *

'(f) In this subsection, 'prison employment' includes actual work in prison industry, meritorious work in connection with prison maintenance and operation, actual work in agriculture and actual work at work camp.'

Under the provisions of ORS 421.120(1)(b), plaintiff received an automatic credit of 1,826 days for the statutory deduction. In addition, he was credited with an automatic 219 days' good time for his work in prison industries and 20 days' meritorious good time for his work in prison operation and maintenance. However, plaintiff also worked in prison maintenance and operation for four years, two months and nine days for which he was not awarded any meritorious good time. Had he been awarded this good time, he would have received 208 days' additional credit. Plaintiff contends that, since he received only good, very good and excellent ratings on his work reports during this period, he was automatically entitled to the 208 days' credit, and that no discretion was involved.

ORS 30.265(2)(d) provides that every public body is immune from:

'Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.'

Where there is room for policy judgment and decision there is discretion. Smith v....