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 оf 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 sentencе 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 prisоn 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 goocLor excellent.
Reduction in sentence is provided tо inmates by the provisions of ORS 421.120:
“(1) Each inmate now or hereafter confined, in execution of the judgment of sentеnce Upon any conviction, in the penal or correctional institution, for any term other than life, and whоse' record of conduct shows that he faithfully has observed the rules of the institution, and where industry and *151 general reformation are certified to the Governor by the superintendent of the penitentiary or correctionаl 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 institutiоn.
“(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 оf 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 wоrk 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, aсtual 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 recеived 208 days’ additional credit. Plaintiff contends *152 that, since he received only good, very good and excellеnt ratings on Ms 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 fаilure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.”
"Wherе there is room for policy judgment and decision there is discretion.
Smith v. Cooper,
The mere rating of the work of an inmate on his montMy report as good, very good or excellent does not constitute an exercise of tMs discretion. The montMy work reports contain a block to-be cheeked by the immediate supervisor recommending'the award of meritorious good time; no such recommendation was made for the plaintiff during the contested work period.
*153 The: record does not disclose what definitions prison officials gave the words “good,” “very good,” “excellent” and “meritorious,” which served to distinguish the first three from the statutory word “meritorious.” If a case such as this should arise in the future the prison authorities would he well advised to disclose the distinction, if such there he, ② as a part of the record, particularly if there is a claim of unconstitutional applicаtion of the statute. No such contention, however, is made here and, as pointed out above, under the рrovisions of OES 30.265 (2) (d), even if the prison officials abused their discretion this does not of itself remove the state’s immunity from tort liability. ③
Affirmed.
Notes
The statutory scheme taken as a whole clearly demonstrates a legislative intent that the actual award of credit for service be discretionary as distinguished from automatic. Even if plaintiffs supervisor hád recоmmended that he be given-the 208 days in question on the basis that his work was “meritorious,” it was the superintendent’s duty to certify it to thе Governor only if he found that there had been “general reformation” of the plaintiff. ORS 421.120 (.1). Parenthetically we nоte that if plaintiff “reformed,” his reformation was short-lived. During a brief period of liberty he committed crimes which resulted in his receiving three consecutive 20-year prison sentences which he is now serving.
See,
State v. Sullivan,
The testimony of a prison official indicates that there are in existence guidelines which may make such a distinction, but these guidelines, if in faсt they exist, are not a part of the record.
Not raised here was the question of whether a claim for false imprisonment would lie in any event in view of the fact that during the period involved defendant was in prison pursuant to a valid judgment.