Clardy v. Gangitano

No. 541 August 7, 2024 213

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Sir Giorgio Sanford CLARDY,

Plaintiff-Appellant,

v.

Dominic GANGITANO,

Heidi Steward, and John and Jane Does,

Defendants-Respondents.

Marion County Circuit Court

21CV23974; A179531

Lindsay R. Partridge, Judge.

Submitted July 7, 2023.

Sir Giorgio Sanford Clardy filed the brief for appellant

pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Carson L. Whitehead, Assistant

Attorney General, filed the brief for respondent.

Before Shorr, Presiding Judge, Lagesen, Chief Judge,

and Mooney, Judge.

MOONEY, J.

Reversed and remanded as to conversion and negligence

claims; otherwise affirmed.

214 Clardy v. Gangitano

Cite as 334 Or App 213 (2024) 215

MOONEY, J.

Plaintiff is an adult in custody of the Oregon

Department of Corrections (ODOC). After ODOC disposed

of certain personal property that belonged to plaintiff, he

brought this action against two ODOC employees, seeking

monetary damages and injunctive relief. The procedural

history in the trial court is somewhat complicated because

the operative pleadings were amended several times and

there was a series of summary judgment motions filed by the

parties. Plaintiff appeals the general judgment of dismissal

that was entered in favor of defendants after the trial court

denied plaintiff’s second motion for summary judgment and

granted defendants’ cross-motion for summary judgment.

Plaintiff appeals from the judgment, raising four assign-

ments of error. In his first assignment, he asserts that the

trial court erred in granting defendants’ cross-motion for

summary judgment on the basis of discretionary immu-

nity. In his second, third, and fourth assignments, he raises

arguments regarding the trial court’s summary judgment

rulings as to each of the three tort claims alleged in his com-

plaint—conversion, a claim under the Vulnerable Person

Act (VPA), and negligence. As we explain, we conclude

that the trial court erred in granting defendants’ cross-

motion for summary judgment on all of plaintiff’s claims

on the basis of discretionary immunity, ORS 30.265(6)(c).1

We also conclude that as a matter of law, summary judg-

ment cannot be sustained on plaintiff’s negligence and con-

version claims because there is an issue of fact. However,

plaintiff’s VPA claim fails on the merits because the

undisputed facts d emonstrate that plaintiff is not a “vul-

nerable person” within the meaning of ORS 124.100(1)(e);

therefore, summary judgment on that claim is affirmed. We

reverse, in part, and remand.

The facts relevant to discretionary immunity are

not in dispute. Plaintiff is an inmate in ODOC custody. In

June 2019, plaintiff was transported from the Oregon State

Penitentiary (OSP) to the Multnomah County Detention

1

ORS 30.265(6)(c) provides that employees and agents of public bodies “act-

ing within the scope of their employment or duties” are immune from liability for

“[a]ny 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.”

216 Clardy v. Gangitano

Center (MCDC) for resentencing after we reversed some

of his convictions on appeal, and after the Supreme Court

denied review of our decision.2 State v. Clardy, 286 Or App

745, 401 P3d 1188, adh’d to as modified on recons, 288 Or App

163, 406 P3d 219 (2017), rev den, 364 Or 680 (2019). On July

18, 2019, plaintiff wrote a letter to defendant Gangitano,

who is employed as a Correctional Corporal in the OSP

property room, to arrange for an outside party to pick up his

legal papers. Plaintiff also requested that his personal prop-

erty be held in the OSP property room pending his court

proceedings in Multnomah County. After MCDC contacted

OSP, Gangitano agreed to keep plaintiff’s property at OSP

until January 1, 2020. Gangitano disposed of plaintiff’s

property on May 1, 2020. Plaintiff returned to OSP in July

2020.

In its letter ruling, the trial court described the

key issue on the question of discretionary immunity, and it

explained its determination that defendants were immune

from liability:

“* * * [D]efendants have produced a declaration from

defendant Gangitano regarding his actions and knowl-

edge with respect to plaintiff’s property. His declaration

clearly establishes his actions as alleged in plaintiff’s

Third Amended Complaint were not outside the scope of his

employment. Plaintiff offers no credible evidence to which

a fact finder could conclude that either defendant Peters or

defendant Gangitano acted outside their scope of employ-

ment in disposing of his property.

“The Oregon Administrative Rules address the han-

dling of inmate property. Plaintiff argues that OAR 291-

117-0120(6) applies because the purpose of his being taken

to MCDC was a ‘trip’ for a court appearance. Defendants

argue that plaintiff was ‘transferred’ to a facility other

than ODOC for which OAR 291-117-[0110] applies.

“There is no genuine issue of material fact in dispute

as to where and when plaintiff was taken, when he was

returned to ODOC/OSP and that ODOC/OSP disposed

of his property prior to his return. As to whether going

to MCDC for over one year constituted a ‘trip’ for a court

2

OSP is an ODOC facility, and MCDC is operated by the Multnomah County

Sheriff’s Office.

Cite as 334 Or App 213 (2024) 217

appearance or a ‘transfer’ to a non-ODOC facility, this

Court cannot conclude that Gangitano (and by extension

Peters) improperly imposed the authority delegated by OAR

291-117-[0110]. The Court agrees that the actions of defen-

dants in applying OAR 291-117-[0110] is ‘both plausible

and consistent’ with the course and scope of their employ-

ment. Gangitano applied OAR 291-117-[0110] by concluding

that plaintiff had been transferred to a facility outside of

ODOC. This conclusion is consistent with the policy guide-

lines given him by OAR 291-117-[0110].

“* * * Under the circumstances, Gangitano’s disposal

decision was a discretionary decision that is entitled to

immunity.

“Plaintiff provides no argument as to why Peters should

be treated differently than Gangitano with respect to the

immunity claim. Accordingly, this Court rules that Peters

is also entitled to discretionary immunity to the extent that

the claims otherwise would apply to her in an individual or

official capacity.”

(Footnotes omitted.)3

We review a trial court’s ruling on cross motions

for summary judgment to determine whether there are any

genuine issues of material fact and whether any party is

entitled to prevail as a matter of law. ORCP 47 C; Lockner

v. Farmers Ins. Co. of Oregon, 333 Or App 27, 28, ___ P3d

___ (2024). The underlying facts regarding the discretion-

ary immunity question are not in dispute and we therefore

review for legal error.

On appeal, plaintiff contends in his first assignment

of error that the trial court “erred by misapplying a prison

rule” and therefore erred in concluding that discretionary

immunity protects defendants. As an initial matter, we note

that plaintiff does not challenge the trial court’s determina-

tion that defendants were acting within the scope of their

employment when disposing of plaintiff’s property. He con-

tends instead that defendants’ actions amounted to routine

decisions made in the course of their day-to-day activities,

3

The trial court’s letter refers to OAR 291-117-140 instead of OAR 291-117-

0110. We understand that reference to be a typographical error. The trial court

quotes the language of the rule, which is the language of OAR 291-117-0110(6);

that is the rule that defendants based their decision upon.

218 Clardy v. Gangitano

which would not be protected by discretionary immunity.

He also argues that defendants justify the disposal of his

personal property under OAR 291-117-0110(6), when they

should have followed OAR 291-117-0120(6) and stored his

property until he returned to OSP. In response, defendants

assert that they were acting in accordance with ODOC pol-

icy and that their construction of OAR 291-117-0110(6) was

plausible and entitled to deference; therefore, according to

defendants, they are immune from plaintiff’s claims.

As to plaintiff’s assertion that defendants’ actions

were routine decisions that are not protected by discre-

tionary immunity, he did not develop that argument in the

trial court or on appeal, and we will not develop it for him.

See Beall Transport Equipment Co. v. Southern Pacific, 186

Or App 696, 700 n 2, 64 P3d 1193, adh’d to as clarified on

recons, 187 Or App 472, 68 P3d 259 (2003) (it is not “our

proper function to make or develop a party’s argument when

that party has not endeavored to do so itself”).

Plaintiff argues that defendants should have applied

OAR 291-117-0120(6). That administrative rule states, in

part,

“When an inmate is transported from the facility for court

appearances, medical trip or other authorized trip for a

period longer than 24 hours, his/her personal property

shall be inventoried, secured, and stored until such time

the inmate returns to the facility.”

Plaintiff argues that he had been transported to MCDC

for a court appearance, and, therefore, defendants should

have secured his property until he returned. He notes that

while the rule applies only to authorized trips away from

the facility that last a minimum period of 24 hours, it does

not contain a maximum time period limitation. According

to plaintiff, his personal property should have been stored

until he returned to the facility.

In addition to arguing that OAR 291-117-0120(6)

was the operative rule by its text, plaintiff submitted dec-

larations from two other inmates, King and Boyd, that

would support the inference that ODOC, too, viewed that

rule as the one applicable to plaintiff’s circumstances. Both

Cite as 334 Or App 213 (2024) 219

inmates attested to the fact that, when they were trans-

ported to county facilities for court proceedings, ODOC

stored their personal property, even though they were gone

for more than 45 days. King stated that, after prevailing on

appeal in his criminal case, he was transported from OSP

to Marion County for resentencing, where he remained from

about October 7, 2020, to December 2, 2021. When he was

returned to OSP following his resentencing, he was “given

back all my personal property that was held by O.S.P.’s

facility.” Similarly, Boyd declared that, after his “appel-

late case was overturned,” he was transported from OSP

to Lane County for a court appearance. Boyd remained in

Lane County for approximately a year, from January 2017

to January 2018, at which point he was returned to OSP.

Upon his return to OSP, he received his personal property

that OSP had stored while he was in Lane County.

Defendants argue that instead of applying OAR

291-117-0120(6), they correctly applied OAR 291-117-0110(6),

which states,

“Transfers to Facilities other Than Department of

Corrections: If the inmate is transferred to a facility other

than the Department of Corrections, it shall be the respon-

sibility of the inmate to make arrangements to have the

property mailed out or picked up by a designated individ-

ual. The inmate shall be responsible for the cost of post-

age to mail the item(s). If the inmate has not made these

arrangements 45 days from the date of transfer, the prop-

erty shall be disposed of as excess property in accordance

with procedures set forth in Disposition of Property (OAR

291-117-0140).”

Defendants supported their cross-motion for summary judg-

ment relating to their discretionary immunity defense with

the declaration of defendant Gangitano. Gangitano stated

that plaintiff’s property qualified as “abandoned” under the

rule and was disposed of for that reason on May 1, 2020.

And, as noted above, defendants assert that we should defer

to their plausible interpretation of that rule, arguing that

the trial court did not err in concluding that they were enti-

tled to immunity for exercising their discretion to apply that

rule to plaintiff.

220 Clardy v. Gangitano

Discretionary immunity is a statutory doctrine

embodied in ORS 30.265, which provides, as relevant to

defendants’ discretionary immunity defense, that,

“(6) Every public body and its officers, employees and

agents acting within the scope of their employment or

duties * * * are immune from liability for:

“* * * * *

“(c) 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.”

Discretionary immunity insulates governmental bodies and

their officers, employees and agents from liability that they

would otherwise have for their decisions and associated con-

duct. The doctrine applies to decisions that are “the result

of a choice involving the exercise of judgment.” Verardo v.

Dept. of Transportation, 319 Or App 442, 447, 510 P3d 983

(2022). But “not all discretionary decisions of governmental

bodies constitute policy decisions entitled to discretionary

immunity.” Id. As we explained,

“The decision must be the result of a choice involving the

exercise of judgment; the decision must involve public pol-

icy as opposed to the routine day-to-day decision-making of

public officials; and the decision must be exercised by a body

or person that has the responsibility or authority to make

it. Turner [v. Dept. of Transportation, 359 Or 644, 652, 375

P3d 508 (2016)] (explaining that conduct is the performance

of a discretionary function or duty when ‘it is the result of

a choice among competing policy considerations, made at

the appropriate level of government’); see also Lowrimore

v. Dimmitt, 310 Or 291, 296, 797 P2d 1027 (1990) (observ-

ing that discretionary immunity does not extend to ‘routine

decisions made by employees in the course of their day-to-

day activities, even though the decision involves a choice

among two or more courses of action’).”

Verardo, 319 Or App at 447.

In Westfall v. Dept. of Corrections, 355 Or 144, 161,

324 P3d 440 (2014), the court explained that discretion-

ary immunity under ORS 30.265(6)(c) “protects discretion-

ary functions * * * if they are carried out by employees or

agents.” It also noted two scenarios in which an action of

Cite as 334 Or App 213 (2024) 221

an employee generally would not be protected by discretion-

ary immunity: (1) “when the employee, for whatever reason,

wrongly fails to apply an otherwise immune policy to a par-

ticular case,” and (2) when “[a]n employee applies an other-

wise immune policy to inapplicable circumstances.” Id. at

160.

It is defendants’ burden to demonstrate entitlement

to discretionary immunity. Robbins v. City of Medford, 284

Or App 592, 596, 393 P3d 731 (2017). “[S]ummary judgment

is appropriate only if [defendants] establish[ ] all of the ele-

ments of the defense as a matter of law.” Id. (Internal quota-

tion marks omitted.) Said another way, the record must be

such that all reasonable factfinders would be compelled to

conclude that defendants sustained their burden. Id.

Defendants did not meet that burden. Whether

compliance with an administrative rule or policy entitles

a defendant to discretionary immunity depends on the cir-

cumstances. Westfall, 355 Or at 159-61. Relevant to the case

at hand, discretionary immunity attaches when “an immune

policy choice expresses a completed thought that fully con-

trols how the employees should apply the policy to a particu-

lar case, and an employee correctly applies the policy to the

case.” Id. at 160. Discretionary immunity does not attach,

however, when an “employee applies an otherwise immune

policy to inapplicable circumstances.” Id. We conclude that

on this record, plaintiff’s evidence that defendants stored the

belongings of other inmates when they were away for more

than 45 days for county court proceedings gives rise to a dis-

pute of fact as to whether this is a situation in which defen-

dants applied the otherwise immune policy choice embodied

in OAR 291-117-0110(6) to the wrong circumstances.

In urging a contrary result, defendants assert that

their interpretation of OAR 291-117-0110(6) to authorize the

disposal of plaintiff’s property under the circumstances is

plausible and, therefore, entitled to deference under Don’t

Waste Oregon Com. v. Energy Facility Siting, 320 Or 132,

881 P2d 119 (1994).4 But that legal principle applies only

4

Regarding deference, we have explained that “[w]e defer to the agency’s

plausible interpretation of its own rule, including an interpretation made in the

course of applying the rule, if that interpretation is not inconsistent with the

222 Clardy v. Gangitano

to interpretations rendered by agency personnel who pos-

sess interpretive authority. See Wright v. PERB, 292 Or App

538, 548, 425 P3d 442 (2018) (rule interpretation advanced

through appellate argument was not the type of interpre-

tation that is entitled to deference); OR-OSHA v. Loy Clark

Pipeline Co., 320 Or App 205, 210, 514 P3d 544, rev den,

370 Or 471 (2022) (stating “that deference is owed only to

the authority that promulgated the rule, not to interpreta-

tions made by those without policy-making authority”). And

there is no indication that the interpretation advanced by

defendants is one rendered by someone with interpretive

authority. Absent that type of interpretation, and given

the evidence submitted by plaintiff of ODOC’s inconsistent

application of the rule, this is not a situation in which def-

erence is appropriate. Absent deference, defendants are not

entitled to judgment as a matter of law on the question of

whether they applied the right rule to plaintiff’s circum-

stances. The trial court therefore erred in dismissing all of

plaintiff’s claims on the basis of discretionary immunity.

Given our conclusion that defendants did not meet

their burden on their discretionary immunity defense, we

briefly turn to the other issues on appeal: whether summary

judgment can be sustained on the ground that the undis-

puted facts demonstrate that, as a matter of law, plaintiff’s

claims fail on their merits.5 On the VPA claim, the undis-

puted facts demonstrate as a matter of law that plaintiff is

not a “vulnerable person” as defined by ORS 124.100(1)(e).

We, therefore, affirm as to that claim, concluding that defen-

dants were entitled to prevail on the VPA claim as a matter

wording of the rule, its context, or any other source of law.” DeLeon, Inc. v. DHS,

220 Or App 542, 548, 188 P3d 354 (2008) (citing Don’t Waste Oregon Com., 320

Or at 142; Papas v. OLCC, 213 Or App 369, 377, 161 P3d 948 (2007); Goin v.

Employment Dept., 203 Or App 758, 763-64, 126 P3d 734 (2006)). Here, defen-

dants applied OAR 291-117-0110(6) because, in their view, plaintiff was trans-

ferred to a facility other than ODOC—he was sent to MCDC, where he ultimately

remained for over a year. There is a question of fact, however, about whether that

rule is the one that ODOC officially interprets to apply to persons in plaintiff’s

situation, given the declarations submitted by plaintiff in opposition to defen-

dants’ cross-motion for summary judgment.

5

The trial court made alternate rulings in the event we disagreed with its

decision regarding discretionary immunity. It stated that it would grant the sum-

mary judgment motion as to the Vulnerable Person Act claim, but it would deny

the motion as to the negligence and conversion claims because genuine issues of

material fact exist as to those claims.

Cite as 334 Or App 213 (2024) 223

of law. As for the negligence and conversion claims, we agree

with the trial court that defendants are not entitled to pre-

vail as a matter of law because genuine issues of material

fact remain as to whether plaintiff “abandoned” his property.

Reversed and remanded as to conversion and negli-

gence claims; otherwise affirmed.