                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             DEC 11 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

JOHN ALLEN TUTOR,                                No. 13-35187

              Plaintiff - Appellant,             D.C. No. 1:12-cv-01549-TC

  v.
                                                 MEMORANDUM*
OREGON DEPARTMENT OF
CORRECTIONS; OFFENDER
INFORMATION AND SENTENCE
COMPUTATION; MAX WILLIAMS,
Past O.D.O.C. director; COLETTE
PETERS, O.D.O.C. director; BETHINYE
SMITH, Administrator O.I.S.C.; J.
WALTERS, prison term analyst; AMY
WEHR, prison term analyst; CHRISTINA
TOWERS, prison term analyst; RISK
MANAGEMENT DIVISION OF ODOC,
Defendants before and after the fact,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                            Submitted October 7, 2014**
                                Portland, Oregon

Before: KOZINSKI, FERNANDEZ, and FISHER, Circuit Judges.

      John Allen Tutor appeals the district court’s dismissal of his action under 42

U.S.C. § 1983 against the Oregon Department of Corrections, Offender

Information and Sentence Computation, Max Williams, Colette Peters, Bethinye

Smith, J. Walters, Amy Wehr, Christina Towers and the Risk Management

Division of ODOC (collectively the Department). We affirm.

      Tutor claims that he is entitled to damages and injunctive relief on the basis

that the Department failed and refused to consider him eligible for good time

credits against his sentence, which resulted in his being incarcerated for a longer

period than that authorized by law. We disagree.1 After Tutor was convicted of


          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      1
        The Department asserts that Tutor’s claim is barred. See Heck v.
Humphrey, 512 U.S. 477, 486–87, 114 S. Ct. 2364, 2372–73, 129 L. Ed. 2d 383
(1994). Considering the clear lack of merit to his claim, we assume, without
deciding, that it is not barred and will decide the matter on the merits. See Dist.
Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 67, 129 S.
Ct. 2308, 2319, 174 L. Ed. 2d 38 (2009). The Department also asserts that Tutor’s
request for injunctive relief is moot because he has been released from
confinement. That appears to be correct. Tutor has been released from
confinement and, under Oregon law, his “release date does not govern the length of
[his] term of post-prison supervision.” State v. Fulleylove, 251 P.3d 201, 202 (Or.
Ct. App. 2011); see also Or. Rev. Stat. § 144.103. Since even a favorable ruling
                                                                          (continued...)

                                           2
two counts of sexual abuse in the first degree,2 he was sentenced on each of them

to incarceration for the mandatory minimum of 75-months3 and was not eligible for

any reduction of that sentence.4 The trial court could have deviated from that

sentence if it had issued findings and determined that as applied to the facts of

Tutor’s case the sentencing statute was unconstitutional,5 or that the so-called

opt-out statute applied.6 It did neither. Thus, his claims for relief are without

merit.7

      AFFIRMED.



      1
       (...continued)
cannot alter either Tutor’s confinement or term of supervision, his claim for
injunctive relief is moot. See Caswell v. Calderon, 363 F.3d 832, 836 (9th Cir.
2004). Even if not moot, the claim would fail on the merits.
      2
          Or. Rev. Stat. § 163.427.
      3
          See id. § 137.700(2)(a)(P).
      4
          Id. § 137.700(1).
      5
          See State v. Rodriguez, 217 P.3d 659, 665, 667–68 (Or. 2009).
      6
       See Or. Rev. Stat. § 137.712. We note that the statute does not apply to
Tutor’s crimes because they were committed prior to the statute’s effective date –
January 1, 2002. See Act of July 27, 2001, ch. 851, §§ 5, 6, 2001 Or. Laws 2249,
2250–52; Or. Rev. Stat. § 171.022. Further, the crimes did not fit the statute’s
ameliorative provisions. See Or. Rev. Stat. § 137.712(2)(e).
      7
       Due to the claims’ lack of merit on their face, the district court was not
required to grant leave to amend. See United States ex rel Lee v. Corinthian Colls.,
655 F.3d 984, 995 (9th Cir. 2011); Reddy v. Litton Indus., Inc., 912 F.2d 291,
296–97 (9th Cir. 1990).

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