Huskey v. Dept. of Corrections ( 2023 )

No. 637 December 6, 2023 397
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Arnold R. HUSKEY,
Plaintiff-Appellant,
v.
OREGON DEPARTMENT OF CORRECTIONS,
Colette Peters, Guy Hall, Garrett Laney,
and John and Jane Doe(s) 1-10, individually
and in their official capacities,
Defendants-Respondents.
Marion County Circuit Court
22CV21140; A180196
Erious C. Johnson, Jr, Judge.
Submitted June 2, 2023.
Arnold R. Huskey filed the briefs pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert C. Hansler, Assistant Attorney
General, filed the brief for respondents.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
PAGÁN, J.
Judgment on claim for declaratory relief vacated and
remanded for entry of judgment declaring the rights of the
parties; otherwise affirmed.
398 Huskey v. Dept. of Corrections
PAGÁN, J.
Plaintiff, an adult in custody (AIC) appearing pro
se, brought an action against the Oregon Department of
Corrections and certain individuals. He seeks review of
the trial court’s order and judgment dismissing his second
amended complaint. Based on Article I, section 41(3), of the
Oregon Constitution, we hold that plaintiff has no legally
enforceable right to economic damages in the form of lost
income while incarcerated. For that reason, we reject plain-
tiff’s first assignment of error. We reject plaintiff’s second
assignment of error as explained below, and we reject his
fourth assignment without discussion. However, regarding
plaintiff’s third assignment of error, which concerns his
claim for declaratory relief, we vacate the judgment of dis-
missal and remand for the trial court to issue a judgment
that declares the rights of the parties in accordance with
our opinion.
A trial court may dismiss a complaint for failure to
state ultimate facts sufficient to constitute a claim. ORCP
21 A(1)(h). We review the grant of a motion to dismiss under
ORCP 21 for errors of law. Strizver v. Wilsey, 210 Or App
33, 35, 150 P3d 10 (2006), rev den, 342 Or 474 (2007). “[W]
e assume the truth of all well-pleaded factual allegations in
the complaint and draw all reasonable inferences from those
allegations in favor of plaintiffs.” Tomlinson v. Metropolitan
Pediatrics, LLC, 362 Or 431, 434, 412 P3d 133 (2018).
We state the facts based on the allegations in plain-
tiff’s second amended complaint. Around December 2010,
plaintiff settled a civil rights action against the Oregon
Department of Corrections and various individuals associ-
ated with it (hereinafter, defendants). As part of the settle-
ment, plaintiff agreed to dismiss that lawsuit, and defen-
dants agreed to change plaintiff’s placement and not to
retaliate against him. Plaintiff subsequently discovered
that defendants were using his “identity, photographs, and
video footage of him” in training materials, which depicted
plaintiff “in a negative, highly prejudicial, and deleterious
manner.” Plaintiff claims that defendants did so to retaliate
against him.
Cite as 329 Or App 397 (2023) 399
As a result of his negative portrayal in the training
materials, plaintiff claimed to have suffered damages in the
amount of $11,640 because he was denied job assignments,
training opportunities, and opportunities to earn “monetary
awards and/or wages.” Plaintiff also alleged that he suffered
“specific discriminatory treatment in visiting, [and] denial
of housing,” as well as emotional and mental harm. Plaintiff
asserted claims for relief against defendants, including
claims for breach of contract and declaratory relief, and he
sought injunctive relief and punitive damages.
Defendants filed a motion to dismiss. After a hear-
ing, the trial court granted the motion and dismissed plain-
tiff’s second amended complaint. Relying on Article I, sec-
tion 41(3), the trial court determined that plaintiff could
not recover economic damages. Plaintiff filed a motion for
reconsideration. Shortly thereafter, the trial court entered a
general judgment of dismissal. Plaintiff appeals.
Plaintiff’s first assignment of error focuses on the
alleged harm he suffered as a result of his negative por-
trayal in training materials. “To state a claim for breach
of contract, plaintiff must allege the existence of a contract,
its relevant terms, plaintiff’s full performance and lack of
breach and defendant’s breach resulting in damage to plain-
tiff.” Slover v. State Board of Clinical Social Workers, 144
Or App 565, 570, 927 P2d 1098 (1996) (internal quotation
marks omitted). “Damage is an essential element of any
breach of contract action.” Sharma v. Providence Health &
Services-Oregon, 289 Or App 644, 657, 412 P3d 202, rev den,
363 Or 283 (2018) (internal quotation marks omitted).
Economic damages are “objectively verifiable mon-
etary losses,” including “reasonable charges necessarily
incurred for medical, hospital, nursing and rehabilitative
services * * *, burial and memorial expenses, loss of income
and past and future impairment of earning capacity * * *.”
ORS 31.705(2)(a). Noneconomic damages are “subjective,
nonmonetary losses,” including “pain, mental suffering,
emotional distress, humiliation, injury to reputation, loss
of care, comfort, companionship and society, loss of consor-
tium, inconvenience and interference with normal and usual
400 Huskey v. Dept. of Corrections
activities apart from gainful employment.” ORS 31.705(2)
(b).
Considering the well-pleaded facts in plaintiff’s sec-
ond amended complaint, he failed to state facts sufficient
to constitute a claim for breach of contract because AICs
are legally barred from recovering economic damages in
the form of lost income. Generally, if one party breaches
a valid contract, then the other party may have a right to
damages to compensate for the harm caused by the breach.
But Article I, section 41(3), states, in relevant part, that “no
inmate has a legally enforceable right to a job or to other-
wise participate in work, on-the-job training or educational
programs or to compensation for work or labor performed
while an inmate of any state, county or city corrections
facility or institution.”1 If an AIC has no legally enforceable
right to work assignments or training opportunities, then
it follows that an AIC may not sue for breach of contract for
lost income associated with the loss of such opportunities.
Put simply, the constitution bars plaintiff from pursuing a
claim of that nature. See Alexander v. State, 283 Or App 582,
587, 390 P3d 1109 (2017) (taking note of the argument, but
not deciding whether the constitution precludes AICs from
recovering economic damages for lost income).
Relatedly, plaintiff alleged that defendants’ breach
of contract had a negative impact on visits and housing and
caused him to suffer emotional and mental harm. We con-
strue those allegations as claims for noneconomic damages.
ORS 31.705(2)(b). However, noneconomic damages “may not
be awarded to an [AIC] in an action against a public body
unless the [AIC] has established that the [AIC] suffered
economic damages, as defined in ORS 31.705.” ORS 30.650.
Here, as already explained, the constitution precludes plain-
tiff from establishing that he suffered economic damages
in the form of lost income. Therefore, based on plaintiff’s
allegations, we conclude that he cannot seek noneconomic
1
Neither party discusses the legislative history of Article I, section 41. It was
added to the constitution by voter approval of an initiative petition in November
1994. In 1997, the 69th Oregon Legislative Assembly proposed adding language
to section 41(3) clarifying that AICs do not have a right to work or compensation.
See House Joint Resolution (HJR) 2 (1997). That amendment to the constitution
was approved in May 1997.
Cite as 329 Or App 397 (2023) 401
damages for adverse treatment associated with visits and
housing and emotional or mental harm.
We do not mean to imply that AICs may never
recover economic or noneconomic damages. Although plain-
tiff alleged economic damages in the form of lost income,
the statutory definition of economic damages is broader. It
encompasses, for example, “reasonable charges necessarily
incurred for medical, hospital, nursing and rehabilitative
services and other health care services.” ORS 31.705(2)(a).
There is no language in Article I, section 41(3), that pre-
cludes legal enforcement of an AIC’s right to those kinds
of damages. Indeed, ORS 30.650, which provides than an
AIC may not be awarded noneconomic damages without
first establishing economic damages, “recognizes implicitly
the capacity of an [AIC] to sue for both economic and non-
economic damages.” Voth v. State, 190 Or App 154, 160, 78
P3d 565 (2003), rev den, 336 Or 377 (2004). But here, plain-
tiff seeks the kind of economic damages that the constitu-
tion does preclude him from recovering. Therefore, the trial
court did not err in determining that plaintiff failed to state
facts sufficient to constitute a claim for breach of contract.
In his second assignment of error, plaintiff contends
that the trial court erred in dismissing his second amended
complaint because he sought punitive damages. Defendants
argue that plaintiff failed to preserve the issue, but they
acknowledge that plaintiff raised it in his motion for recon-
sideration. Plaintiff could not have raised the issue earlier.
After the trial court entered the order dismissing plain-
tiff’s second amended complaint, plaintiff filed a motion
for reconsideration arguing that the order failed to address
his request for punitive damages. The trial court did not
rule on the motion before entering a judgment of dismissal.
Nevertheless, plaintiff’s motion for reconsideration was his
first opportunity to draw attention to perceived problems in
the order. In State v. Edwards, 231 Or App 531, 535, 219
P3d 602 (2009), we determined that the state preserved its
argument for appeal because it had informed the trial court
of the claimed error at the first opportunity, which was in
a motion for reconsideration. Similarly, here, by raising the
402 Huskey v. Dept. of Corrections
issue of punitive damages in his motion for reconsideration,
plaintiff preserved it for appeal.
On the merits, we reject plaintiff’s second assign-
ment of error. In seeking to recover punitive damages,
plaintiff failed to comply with ORS 31.725, which sets forth
procedures for asserting such a claim, including submitting
documentation and affidavits supporting the claim. Plaintiff
failed to comply with those procedures, and, therefore, there
was no proper claim for punitive damages before the court.
The trial court did not err in dismissing the complaint in
which plaintiff attempted to seek punitive damages. See
Moser v. DKN Ind., 191 Or App 346, 349, 82 P3d 1052 (2004)
(plaintiff who failed to comply with required procedures was
not entitled to recover punitive damages).
In his third assignment of error, plaintiff claims that
the trial court erred in dismissing his claim for declaratory
relief. Like plaintiff’s second assignment of error, plaintiff
raised that issue in his motion for reconsideration, and, for
the same reasons, we conclude that he preserved that issue
for appeal. In arguing otherwise, defendants suggest that
plaintiff could have raised the issue in his opposition to the
motion to dismiss. We are not persuaded by that argument
because defendants’ motion to dismiss did not address plain-
tiff’s claim for declaratory relief.
On the merits, the state concedes that remand is
required because a declaratory judgment action cannot
be dismissed under ORCP 21 A(1)(h). We agree with that
concession. See East Side Plating, Inc. v. City of Portland,
316 Or App 111, 112, 502 P3d 1192 (2021), rev den, 369 Or
675 (2022) (“[T]he law is clear that a declaratory judgment
action cannot be dismissed for failure to state a claim * *
*.”). However, “[w]hen the dismissal of a declaratory judg-
ment action was clearly based on a determination of the
merits of the claim, * * * our practice has been to review
that determination as a matter of law and then remand for
the issuance of a judgment that declares the rights of the
parties in accordance with our review of the merits.” Doe
v. Medford School Dist. 549C, 232 Or App 38, 46, 221 P3d
787 (2009). Therefore, we vacate the judgment of dismissal
and remand for the issuance of a judgment that declares
Cite as 329 Or App 397 (2023) 403
the rights of the parties, including our determination that
plaintiff has no legally enforceable right to economic dam-
ages for lost income.
Judgment on claim for declaratory relief vacated
and remanded for entry of judgment declaring the rights of
the parties; otherwise affirmed.