August 26 2014
DA 14-0222
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 232N
JOHN O. MILLER,
Plaintiff and Appellant,
v.
LEROY KIRKEGARD, BILLIE
REICH and KRISTY COBBAN,
Defendants and Appellees.
APPEAL FROM: District Court of the Third Judicial District,
In and For the County of Powell, Cause No. DV 14-10
Honorable Ray Dayton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
John O. Miller, self-represented, Deer Lodge, Montana
For Appellees:
Ira Eakin, McKenzie McCarthy, Special Assistant Attorneys General,
Montana Department of Corrections, Helena, Montana
Submitted on Briefs: August 6, 2014
Decided: August 26, 2014
Filed:
__________________________________________
Clerk
Justice Patricia Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section 1, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not serve
as precedent. Its case title, cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 John O. Miller appeals from an order of the Third Judicial District Court, Powell
County, granting Leroy Kirkegard, Billie Reich, and Kristy Cobban’s (Defendants’) motion
to dismiss Miller’s complaint. We affirm.
¶3 Miller, who is incarcerated at Montana State Prison (MSP), filed a complaint against
Defendants on January 28, 2014, alleging breach of legal obligations under § 28-1-203,
MCA, and breach of due process under Article II, § 17 of the Montana Constitution.
Miller’s claims stem from Defendants’ alleged refusal to process Miller’s internal prison
grievances. The initial complaint that has generated this dispute involved the late delivery of
Miller’s newspaper. Later complaints involved an application to add a family member to
Miller’s approved visiting list.
¶4 Defendants are employees of the Montana Department of Corrections. Kirkegard is
the warden at MSP; Cobban and Reich are prison grievance officers. Defendants filed a
motion to dismiss on March 19, 2014, arguing that Miller’s claims were not justiciable, and
that the District Court lacked subject matter jurisdiction because Miller failed to first present
his claims to the Department of Administration. On March 28, 2014, Miller filed an
amended complaint, adding claims for civil conspiracy and for discrimination and breach of
equal protection under Article II, § 4 of the Montana Constitution. Defendants renewed their
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motion to dismiss on April 8, 2014, and the District Court granted the motion on April 10,
2014. The District Court concluded that it did not have subject matter jurisdiction over
Miller’s claims because he had not presented his claims to the Department of Administration.
The court did not address the issue of whether Miller’s claims were justiciable.
¶5 Miller timely appealed. Miller argues that the District Court erred in concluding that
his claims required administrative review under § 2-9-301(1), MCA, because he sued the
Defendants in their “individual capacity,” his claims were not “against a governmental
entity,” and his claims were not for “personal injury.” Defendants counter that Miller should
have filed a tort claim against the State with the Department of Administration because he
seeks money damages for alleged torts committed under state law by state employees acting
within the course and scope of their employment. Defendants also argue that Miller failed to
state a claim upon which relief may be granted because his claims are non-justiciable, he has
not articulated a violation of any constitutional right, and he has not sustained any damages.
¶6 We begin by addressing the issue of subject matter jurisdiction. As stated above, the
District Court “concluded that Miller’s failure to present his claims to the Department of
Administration deprives [the court] of subject matter jurisdiction.” Subject matter
jurisdiction refers to a court’s fundamental authority to hear and adjudicate a particular class
of cases or proceedings. Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 57, 345 Mont. 12, 192
P.3d 186. M. R. Civ. P. 12(h)(3) requires a court to dismiss an action at any time if it
determines that it lacks subject matter jurisdiction. Section 2-9-301(1), MCA, provides in
pertinent part: “All claims against the state arising under the provisions of . . . this chapter
must be presented in writing to the department of administration.” “A complaint based on a
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claim subject to [these] provisions . . . may not be filed in district court unless the claimant
has first presented the claim to the department of administration and the department has
finally denied the claim.” Section 2-9-301(2), MCA.
¶7 Though Miller argues that this statutory requirement is inapplicable because his
claims are against Defendants in their individual capacities and are not “against a
governmental entity” or for “personal injury,” this is clearly not the case. In his amended
complaint, Miller seeks nominal and compensatory damages for actions taken by Defendants
in the scope and course of their employment. Miller’s claims fall under the statutory
umbrella of Title 2, Chapter 9, MCA. See § 2-9-101(1), (3), MCA (Claim is defined as a
“claim against a governmental entity, for money damages only, that any person is legally
entitled to recover as damages because of personal injury or property damage caused by a
negligent or wrongful act or omission committed by any employee of the governmental
entity while acting within the scope of employment . . . .” Governmental entity is defined as
“the state and political subdivisions.”). Nothing in the record indicates that Miller first
presented his claims to the Department of Administration and that the Department denied the
claims. Thus, the District Court did not err in determining that it did not have subject matter
jurisdiction over Miller’s claims.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
internal Operating Rules, which provides for noncitable memorandum opinions. The issues
in this case are legal and are controlled by settled Montana law.
¶9 For the foregoing reasons, we affirm.
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/S/ PATRICIA COTTER
We Concur:
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ JIM RICE
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