CHESTER C. WESTFALL, Plaintiff-Appellant,
STATE OF OREGON, by and through the actions of its agency the Oregon Department of Corrections, Defendant-Respondent
Submitted on Remand: May 27, 2014.
07C23164. Marion County Circuit Court. On remand from the Oregon Supreme Court, Westfall v. Dept. of Corrections, 355 Or. 144, 324 P.3d 440 (2014) . Claudia M. Burton, Judge.
Bradley J. Volk, Richard L. Cowan, and Rockwell & Cowan filed the brief for appellant.
John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Haselton, Chief Judge, and Duncan, Judge.
[266 Or.App. 15] ARMSTRONG, P. J.
This case is before us on remand after the Oregon Supreme Court reversed our decision in Westfall v. Dept. of Corrections, 247 Or.App. 384, 271 P.3d 116 (2011), rev'd and rem'd, 355 Or. 144, 324 P.3d 440 (2014). In our original opinion, we concluded that the trial court had erred in granting summary judgment to the Department of Corrections on the basis of discretionary immunity, which obviated the need for us to address plaintiff's remaining arguments on appeal. On review, the Supreme Court reversed our discretionary-immunity decision and remanded the case to us, explaining:
" That does not mean that the judgment of the trial court must be affirmed. In the Court of Appeals, plaintiff maintained that discretionary immunity does not apply to intentional torts such as plaintiff's false imprisonment claim. Plaintiff also argued that the department's policy required the department's employees at least to bring the questions regarding the meaning of the Josephine County Circuit Court judgment to the attention of a supervisor, if not to actually contact the circuit court themselves. The Court of Appeals did not need to reach either question, given its holding, and the parties did not brief those issues to this court. Accordingly, we remand to the Court of Appeals so that it may consider those arguments in the first instance."
Westfall v. Dept. of Corrections, 355 Or. 144, 170, 324 P.3d 440 (2014). We now consider each of plaintiff's remaining arguments and, for the reasons set out below, affirm.
We take the facts, to the extent that they bear on plaintiff's arguments on remand, from the Supreme Court's opinion on review:
" Plaintiff was serving a prison sentence when he escaped from custody. In July 2001, after he was recaptured, the Marion County Circuit Court sentenced plaintiff to a 20-month consecutive sentence for second-degree escape II. Because the sentence was 'consecutive to any sentence previously imposed,' plaintiff's prison term would end when that 20-month sentence was served.
" In September 2002, plaintiff received six prison sentences in a Josephine County Circuit Court case. Those sentences are the essential source of plaintiff's complaint [266 Or.App. 16] here. Four of the sentences were concurrent, and two were consecutive. Plaintiff received 12-month concurrent sentences on Counts 14 and 22, and 13-month concurrent sentences on Counts 10 and 46. On Count 49, however, the judgment provided that the trial court sentenced plaintiff to 26 months 'consecutive to all previously imposed sentences.' Finally, on Count 5 the trial court sentenced plaintiff to 10 months consecutive to the sentence imposed in Count 49.
" At that time, then, plaintiff's term of imprisonment would have ended when he completed three consecutive sentences sequentially: The 20-month Marion County sentence, the 26-month sentence for Josephine County Count 49, and the 10-month sentence for Josephine County Count 5. All plaintiff's other outstanding concurrent sentences--including the four concurrent sentences in Josephine County--had no effect on the term of imprisonment, at least at that time. They were running concurrently with the 20-month Marion County sentence and would have expired before the Marion County sentence was completed.
" In 2005, however, the 20-month Marion County escape sentence was vacated and remanded. On resentencing, the new sentence in that case was so reduced that plaintiff had already completed that sentence.
" The department thus had to recalculate plaintiff's remaining term of imprisonment. In particular, the department needed to determine which sentence would, when it expired, trigger the beginning of plaintiff's 26-month consecutive ...