Quigg v. Slaughter

IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 76

GARY QUIGG, et al.,

Plaintiffs and Appellants,

v. No. 05-692

BILL SLAUGHTER, Director, MONTANA
DEPARTMENT OF CORRECTIONS, et al.,

Defendants and Respondents.

**************************

ANTHEL L. BROWN,

Petitioner and Appellant,

v. No. DA 06-0013

DEPARTMENT OF CORRECTIONS,

Respondent and Respondent.

APPEALS FROM: The District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause CDV-02-174
and CDV-2004-172,
Honorable Thomas C. Honzel, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, Montana

Anthel L. Brown, pro se, Shelby, Montana

For Respondents:

Valerie D. Wilson, Special Assistant Attorney General, Helena, Montana

Submitted on Briefs: August 16, 2006
Decided: March 20, 2007

Filed: __________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 Gary L. Quigg and sixty-four other plaintiffs (hereinafter Inmates) appeal an order

of the First Judicial District Court, Lewis and Clark County, granting summary judgment

to the defendants, officials of Montana Department of Corrections (hereinafter DOC or

officials) on the Inmates’ claims for injunctive and declaratory relief. Likewise, Anthel

Brown (Brown) appeals an order of the District Court also granting summary judgment to

the officials on Brown’s claims for injunctive and declaratory relief. We entered an order

on February 15, 2006, consolidating these cases for purposes of appeal. We affirm.

¶2 We address the following issues on appeal:

¶3 1. Did the District Court err in granting DOC’s motion for summary judgment in

Quigg, et. al. v. DOC?

¶4 2. Did the District Court err in granting DOC’s motion for summary judgment in

Brown v. DOC?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Prior to 1995, Montana State Prison at Deer Lodge (MSP) was the sole state

correctional facility authorized by the State of Montana to house adult male criminal

offenders. Indeed, the State had no other such facility. In 1995, responding to

overcrowding at MSP, the Montana Legislature authorized the State to contract with local

governments for the housing of male criminal offenders sentenced to MSP. Then, in

1997, the Legislature authorized the State to contract with private prison facilities to

house Montana inmates through the Regional Correctional Facility Act in Title 53,

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Chapter 30, Part 5, MCA, and the Private Correctional Facility Act in Title 53, Chapter

30, Part 6, MCA.

¶6 To manage the adult offender population, DOC places secure custody inmates in

the custody of MSP, the regional prisons in Cascade County and Dawson County, and the

Crossroads Correctional Center, a private prison facility in Shelby. The following factual

representations about these facilities have been offered as evidence in this litigation and

not contested.

¶7 MSP offers the following mental health programs and services: mental health

orientation, topical behaviors, dialectic behavior therapy, individual counseling, and

inpatient mental health treatment. The regional and private prisons offer treatment

opportunities for chemical dependency, alcoholics anonymous, parenting, cognitive

principles, and anger management. Cascade County also provides emergency mental

health services twenty-four hours per day, and services by a licensed and/or certified

mental health professional seven days per week. Crossroads contracts with a psychiatrist

who provides mental health services to the inmates in addition to the psychologist, mental

health counselor, and chemical dependency counselors on staff. Dawson County has a

licensed therapist on staff and provides individual mental health counseling to inmates.

Inmates at any prison facility within the system who require intense mental health

counseling are returned to MSP.

¶8 MSP allows prisoner visitation depending on the particular inmate’s security

designation. As presented herein, MSP’s visitation periods are Wednesday through

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Sunday from 2:00 p.m. to 8:30 p.m. Cascade County’s and Crossroads’ visitation periods

are Saturday and Sunday from 8:30 a.m. to 5:00 p.m. Dawson County’s visitation

periods are Wednesday through Sunday from 2:00 p.m. to 9:00 p.m. At all of the

regional and private prisons, inmates are offered a minimum of seventeen hours of

visitation per week.

¶9 MSP offers the following educational opportunities: adult basic education,

business courses, college courses, community reintegration, correspondence courses,

GED programs, information processing courses, lumber processing courses, technology

courses, agriculture equipment courses, auto mechanics courses, cannery processing

courses, driver’s training, heavy equipment training, machining, and welding. The

regional and private prisons all offer GED programs. Further, Cascade County offers

inmates training in hygiene, nutrition, physical fitness, stress management, and

prevention of sexually transmitted diseases. Dawson County offers post-GED courses,

adult basic education, computer skills, pre-health biology, and science. Crossroads offers

adult basic education, carpentry, correspondence college courses through Ohio

University, computer training, information management, life skills, and typing.

¶10 The Inmates were sentenced to imprisonment terms at MSP prior to 1999. Their

original complaint was filed pro se, but the District Court subsequently certified the

complaint as a class action and appointed counsel for the Inmates. Since originally

incarcerated, Inmates have been transferred from MSP to the regional and private prisons.

The Inmates sought a declaratory judgment from the District Court that prisoners

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sentenced to MSP prior to 1999 must be confined at MSP, and not in the regional and

private prisons, and that the regional and private prisons do not have the same

opportunities for treatment, training, and rehabilitation as MSP, rendering their

incarceration unlawful.

¶11 The District Court granted summary judgment to the DOC on all of the Inmates’

claims, from which the Inmates appeal.

Factual and Procedural History
Specific to Brown

¶12 In 1976, Brown was sentenced to MSP for 194 years. Brown made an appearance

before the Montana Board of Pardons and Parole where his request for parole was denied

due to his numerous disciplinary violations, which had led to his high security

classification and had disqualified him from sex offender treatment that was required for

parole. In order to be eligible for sex offender treatment, an inmate must be given a low

security classification. Brown was briefly classified as low security in June of 2003, but

was returned to a high security classification two months later. Brown was subsequently

transferred to Crossroads. Crossroads does not offer sex offender treatment. The DOC

has a system-wide waiting list for sex offender treatment. When an inmate in a regional

facility becomes eligible for sex offender treatment, he is transferred back to MSP. The

transfer back to MSP for sex offender treatment only takes place if the prisoner has a low

security classification.

¶13 On March 5, 2004, Brown filed a petition for injunctive relief with the District

Court, asking the District Court to order DOC to transfer him back to MSP, and further,
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to require that he be placed in a low security classification so that he can obtain sex

offender treatment. The District Court granted summary judgment to the DOC on all of

Brown’s claims, from which Brown appeals.

STANDARD OF REVIEW

¶14 The standard of review for a district court’s grant of summary judgment is de

novo. Casiano v. Greenway Enterprises, Inc., 2002 MT 93, ¶ 13, 309 Mont. 358, ¶ 13,

47 P.3d 432, ¶ 13. Summary judgment is only proper when no genuine issues of material

fact exist such that the moving party is entitled to judgment as a matter of law.

M. R. Civ. P. 56(c). “The initial burden is on the moving party to demonstrate ‘a

complete absence of any genuine issue as to all facts considered material in light of the

substantive principles that entitle the moving party to judgment as a matter of law and all

reasonable inferences are to be drawn in favor of the party opposing summary

judgment.’” Schmidt v. Washington Contractors Group, 1998 MT 194, ¶ 7, 290 Mont.

276, ¶ 7, 964 P.2d 34, ¶ 7. “Once the moving party meets this burden, the burden shifts

to the non-moving party to establish otherwise.” Schmidt, ¶ 7.

DISCUSSION

Issue 1.

¶15 Did the District Court err in granting DOC’s motion for summary judgment in
Quigg, et. al. v. DOC?

¶16 The Inmates contend they are entitled to be housed at MSP in Deer Lodge. They

base this argument on several grounds. First, the Inmates argue they have a protected

liberty interest in being housed at MSP in Deer Lodge on the basis of Montana’s
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constitutional provisions on cruel and unusual punishment, individual dignity, and

reformation. Second, the Inmates claim a state-created liberty interest in incarceration

solely at MSP based on Chapter 491, Laws of Montana, 1999, § 24, which contains a

“savings clause” that provides the 1999 amendment to § 53-30-101, MCA, does not

affect any rights and duties that had begun prior to the enactment of the savings clause on

April 27, 1999. We will address each of the Inmates’ contentions in turn.

Cruel and Unusual Punishment

¶17 The Inmates claim their right to be free from cruel and unusual punishment, as

prescribed by Article II, Section 22, of the Montana Constitution, has been violated

because the regional and private prisons do not offer the same programming as offered at

MSP. Specifically, the Inmates contend that differences in the availability of medical

care, particularly mental health care, visitation, exercise, and education between MSP and

the regional and private prisons constitute cruel and unusual punishment and “deprive the

inmates of individual dignity.” The Inmates also argue that Article II, Section 28, of the

Montana Constitution, which prescribes one of the State of Montana’s goals for the

criminal justice system as reformation, has been violated because of the alleged

differences between MSP and the other prisons.

¶18 We have looked to federal law for guidance on the issue of cruel and unusual

punishment. “The Constitution ‘does not mandate comfortable prisons’ . . . .” Farmer v.

Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994) (citing Rhodes v. Chapman,

452 U.S. 337, 349, 101 S. Ct. 2392, 2400 (1981)). However, “the treatment a prisoner

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receives in prison and the conditions under which he is confined are subject to scrutiny

under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31, 113 S. Ct. 2475,

2480 (1993).

¶19 The United States Supreme Court has held that “a prison official violates the

Eighth Amendment only when two requirements are met”—first, the deprivation alleged

must be, objectively, sufficiently serious, resulting in the denial of “the minimal civilized

measure of life’s necessities.” Farmer, 511 U.S. at 834, 114 S. Ct. at 1977 (citing

Rhodes, 452 U.S. at 349, 101 S. Ct. at 2399). The second requirement “follows from the

principle that ‘only the unnecessary and wanton infliction of pain implicates the Eighth

Amendment,’” Farmer, 511 U.S. at 834, 114 S. Ct. at 1977 (citing Wilson v. Seiter, 501

U.S. 294, 297, 111 S. Ct. 2321, 2323 (1991)), which requires that a prison official must

act with a state of mind of “deliberate indifference” to the inmate’s health or safety.

Farmer, 511 U.S. at 834, 114 S. Ct. at 1977. Deliberate indifference requires a state of

mind more blameworthy than negligence, but “less than acts or omissions for the very

purpose of causing harm or with knowledge that harm will result.” Farmer, 511 U.S. at

835, 114 S. Ct. at 1978. Prison officials are accorded wide ranging deference in

implementing policies to preserve order and discipline among inmates. Jellison v.

Mahoney, 1999 MT 217, ¶ 12, 295 Mont. 540, ¶ 12, 986 P.2d 1089, ¶ 12.

¶20 Additionally, we have held that Article II, Section 22, of the Montana Constitution

provides Montana citizens with greater protections from cruel and unusual punishment

than does the federal constitution. Walker v. State, 2003 MT 134, ¶ 73, 316 Mont. 103,

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¶ 73, 68 P.3d 872, ¶ 73. In their arguments, Inmates place heavy emphasis on this

increased protection and contend that their placements within the state correctional

system cannot withstand scrutiny under the Montana Constitution.

¶21 First, in regard to medical care, the Inmates make no specific contention as to any

alleged difference in treatment between MSP and the regional and private prisons, except

to merely point out there are “differences,” which they equate to cruel and unusual

punishment. Conversely, the DOC argues that because the regional and private prisons

operate on-site medical clinics with nursing and mid-level care, contract with private

providers for on-site physician services, and transfer inmates who require acute care to

MSP for treatment, there is no evidence of an alleged difference of care between MSP

and the regional and private prisons that would constitute cruel and unusual punishment.

¶22 In regard to visitation, the Inmates contend their right to individual dignity and to

be free from cruel and unusual punishment has been violated because the other prisons

only allow visitation on Saturdays and Sundays as compared to five days a week at MSP.

The DOC responds that at all of the other prisons, inmates are offered a minimum of

seventeen hours of visitation per week and that Dawson County offers five days a week

of visitation. The DOC argues that, under constitutional standards, the differences

between visitation hours at the other prisons and MSP do not constitute cruel and unusual

punishment.

¶23 In regard to education, the Inmates make no specific argument, only generally

contending that “differences in education and other capacity-developing activity”

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between MSP and the regional and private prisons constitute cruel and unusual

punishment. In response, the DOC points out that all the other prisons offer treatment

opportunities on chemical dependency, alcoholics anonymous, parenting, cognitive

principles, anger management, and, except for Cascade County, Native American-

specific opportunities. Cascade County offers inmates training in hygiene, nutrition,

physical fitness, stress management, and prevention of sexually transmitted diseases.

Dawson County offers inmates the opportunity to earn their GED and also offers post-

GED courses, adult basic education, computer skills, pre-health biology, and science.

Finally, Crossroads offers adult basic education, GED training, carpentry,

correspondence college courses through Ohio University, computer training, information

management, life skills, and typing.

¶24 In regard to exercise and recreation, the Inmates argue that recreation

opportunities at MSP are “more substantial” than that of the regional and private prisons.

Inmates do not highlight any specific difference between MSP and the other prisons in

respect to recreation, except to generally point to the policies and handbooks of the

various prisons.

¶25 We conclude that any differences between medical care, visitation, education and

recreation at MSP and the private and regional prisons do not rise to the level of cruel and

unusual punishment as prescribed by both the Eighth Amendment of the United States

Constitution and Article II, Section 22, of the Montana Constitution. The record does not

reveal evidence from the Inmates that any difference in treatment between MSP and the

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regional and private prisons creates a serious deprivation in their treatment or has created

conditions that are “unnecessary and wanton.” Farmer, 511 U.S. at 834, 114 S. Ct. at

1977. Further, we cannot conclude that the Inmates have presented evidence

demonstrating that the DOC has acted with “deliberate indifference” to their health or

safety. Farmer, 511 U.S. at 834, 114 S. Ct. at 1977.

¶26 The Inmates correctly offer that in Walker, we interpreted Article II, Section 22,

along with Article II, Section 4, of the Montana Constitution. There we explained that:

[W]hile we will analyze most cruel and unusual punishment questions
implicating Article II, Section 22 of Montana’s Constitution by reference to
that section alone, in certain instances where Montana’s constitutional right
to individual dignity (Article II, Section 4) is also specially implicated, we
must, of necessity, consider and address the effect of that constitutional
mandate on the question before us.

Walker, ¶ 75. The Inmates argue that Article II, Sections 22 and 4, “are not looked at

separately” and that the alleged differences between their treatment at MSP and the

regional and private prisons violate both of the above-cited provisions of the Montana

Constitution, thus affording further protection. We note, however, that the Inmates’

argument ignores the text of Walker, ¶ 75, which stated that “most” questions involving

Article II, Section 22, will be examined “by reference to that section alone . . . .” Walker

does not explicitly require an analysis of Article II, Sections 22 and 4, in all questions

implicating cruel and unusual punishment.

¶27 As the District Court correctly noted, Walker “is a very fact-specific case and

clearly is distinguishable from what [Inmates] have alleged here.” Walker involved a

mentally ill inmate who was forced to endure a series of Behavior Management Plans
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(BMPs) while he was imprisoned at MSP. The BMPs at issue in Walker were designed

to curtail dangerous behavior and resulted in Walker being detained in a cell while naked,

without mattress, pillow or usual bedding, sleeping on a concrete slab, having the water

turned off to his sink and toilet, having no hot meals and having food passed through the

same opening as toilet cleaning supplies, while his mental health was not properly

monitored. Walker, ¶¶ 18-28. The Court noted testimony that the subject cells contained

blood, feces and vomit. Walker, ¶¶ 77-78. We held that these conditions violated

Walker’s right to human dignity and constituted cruel and unusual punishment by

exacerbating Walker’s mental health condition. Walker, ¶ 84.

¶28 We conclude that Walker is factually distinguishable from the contentions of the

Inmates here. First, the Inmates have presented no evidence that any differences between

MSP and the regional and private prisons have exacerbated their mental health

conditions. Second, the alleged differences the Inmates have presented regarding health

care, education, visitation, and recreation among the state’s facilities clearly do not rise to

the level of “unnecessary and wanton” punishment which occurred in Walker. As such,

Walker does not render unconstitutional the treatment conditions challenged here.

Reformation

¶29 The Inmates further contend that by being placed in the regional and private

prisons, the DOC has deprived them of their rights under Article II, Section 28, of the

Montana Constitution. This section, entitled “Rights of the convicted,” provides that

laws for the punishment of crime shall be founded on the principle of reformation, among

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others. Under Article II, Section 28, the State may limit or abrogate the rights of an

inmate, as long as it is done for reformation of the inmate. Worden v. Montana Bd. of

Pardons and Parole, 1998 MT 168, ¶ 34, 289 Mont. 459, ¶ 34, 962 P.2d 1157, ¶ 34.

¶30 We agree with the DOC that the Inmates have failed to point to any law or policy

that is not founded on principles of reformation. Inmates merely generally contend that

the differences in treatment between MSP and the regional and private prisons violates

the Montana Constitution’s mandate that laws for punishment of crime be founded upon

reformation. Without more, we cannot conclude that any state constitutional violation

has taken place in respect to Article II, Section 28.

Inmates’ Liberty Interest in Being Housed at MSP

¶31 In Wright v. Mahoney, 2003 MT 141, 316 Mont. 173, 71 P.3d 1195, we addressed

whether an inmate possesses a state-created liberty interest in being housed solely at

MSP. In Wright, we first cited federal case law:

[G]iven a valid conviction, the criminal defendant has been constitutionally
deprived of his liberty to the extent that the State may confine him and
subject him to the rules of its prison system so long as the conditions of
confinement do not otherwise violate the Constitution. The Constitution
does not require that the State have more than one prison for convicted
felons; nor does it guarantee that the convicted prisoner will be placed in
any particular prison if, as is likely, the State has more than one
correctional institution . . . . The conviction has sufficiently extinguished
the defendant’s liberty interest to empower the State to confine him in any
of its prisons.

Wright, ¶ 8 (citing Meachum v. Fano, 427 U.S. 215, 224-25, 96 S. Ct. 2532, 2538

(1976)). We concluded that an inmate does not have a constitutional right to be

imprisoned in any particular facility. Wright, ¶ 8.
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¶32 Wright nevertheless argued that he had a state-created liberty interest in not being

transferred from MSP. Wright based this argument on the wording of the Montana laws

in effect at the time of his sentencing. Wright, ¶ 9. We explained that in order for a state

to create a liberty interest, it must first enact a law that establishes a “right of real

substance,” and that, even then, statutorily-defined liberty interests are restricted to

freedom from “atypical and significant hardships in relation to the ordinary incidents of

prison life” or restraints which “inevitably affect[ ] the duration of the prisoner’s

confinement.” Wright, ¶ 9 (citing McDermott v. Montana Dept. of Corrections, 2001 MT

134, ¶ 11, 305 Mont. 462, ¶ 11, 29 P.3d 992, ¶ 11).

¶33 Wright argued that the 1995 statutory definition of “state prison” established a

“right of real substance” to be housed solely at MSP. However, we held that even if this

Court were to determine that the 1995 definition of “state prison” conferred a right of real

substance, the right would be restricted to freedom from “atypical and significant

hardships in relation to the ordinary incidents of prison life” or restraints which

“inevitably affect[ ] the duration of the prisoner’s confinement,” and being transferred

from one prison to another, even out of state, “is neither an ‘atypical and significant’

hardship in relation to the ordinary incidents of prison life, nor does it ‘inevitably affect

the duration’ of Wright’s confinement.” Wright, ¶ 10 (citing McDermott, ¶ 11). We

concluded that “Montana retains the discretion to transfer a prisoner for whatever reason

or no reason at all; the laws in effect at the time of Wright’s sentencing did not impose

conditions on its discretionary power to transfer prisoners” and finally, that “Wright does

14
not have a state-created liberty interest in not being transferred to or from any

correctional facility.” Wright, ¶ 11.

¶34 The District Court relied on the above-cited language from Wright in concluding

that the Inmates do not have a state-created liberty interest in being housed solely at

MSP. The Inmates contend this language from Wright is dicta as “Wright . . . only dealt

with Wright’s ex post facto argument” and thus, the District Court erroneously reached its

conclusion through its reliance on these dicta. We disagree. On appeal, Wright made

three arguments: (1) the DOC lacked authority to transfer Wright outside of MSP based

on the language of his written judgment and by virtue of having a liberty interest in not

being transferred; (2) transferring Wright outside of MSP violated the prohibition against

ex post facto legislation; and (3) transferring Wright outside of MSP violated equal

protection under the Fourteenth Amendment to the United States Constitution. We

reached our holding in Wright by analyzing Wright’s alleged state-created liberty interest

in not being transferred from MSP. Because we determined none of Wright’s substantial

rights were implicated by being transferred, it was not necessary to determine whether a

transfer violated the prohibition against ex post facto legislation. Wright, ¶ 12. Thus, the

reasoning from Wright regarding an inmate’s alleged state-created liberty interest in

being housed at MSP is not dicta and is applicable to the case at bar.

¶35 The facts involving the judgments and sentences of the Inmates and Wright are

substantially similar. Like the Inmates, Wright was sentenced to MSP prior to 1999,

when the only available correctional facility was MSP. Also like the Inmates, Wright has

15
been transferred to one or more of the regional and private prisons. As we determined

that “none of Wright’s substantial rights are implicated by his being housed at a

correctional facility other than the prison at Deer Lodge,” Wright, ¶ 12, we likewise

conclude here that none of the Inmates’ substantial rights are implicated by being housed

at the regional and private prisons. In other words, the Inmates do not possess a state-

created liberty interest in being housed at MSP.

¶36 In 1999, the Montana Legislature enacted Chapter 491, Laws of Montana, 1999.

The result was the amendment of § 53-30-101, MCA, to include the regional and private

prisons as state prisons under Montana law. Prior to 1999, the only statutorily defined

state prison was MSP. Chapter 491, Laws of Montana, 1999, § 24, also contained a

savings clause which stated: “[This act] does not affect rights and duties that matured,

penalties that were incurred, or proceedings that were began before [the effective date of

this act].”

¶37 The Inmates argue that the savings clause in Chapter 491, Laws of Montana, 1999,

§ 24, conferred a liberty interest in incarceration at MSP. Inmates moreover assert the

amendment to § 53-30-101, MCA, in 1999 cannot affect their liberty interest in being

housed solely at MSP because their sentences fall under the savings clause in that the

sentences were penalties that were incurred before 1999. The DOC responds that at the

time of the 1999 legislation, the Inmates did not have a right, per se, to imprisonment at

MSP because MSP was the only imprisonment available. Thus, the DOC argues the

Inmates have failed to demonstrate how the amendments to § 53-30-101, MCA, affected

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any penalties incurred by the Inmates’ initial convictions to create a right of real

substance. Furthermore, the DOC points out that the penalty provisions of Title 45,

MCA (of which the majority of the Inmates have been sentenced pursuant to), have

always provided for imprisonment in the state prison, not specifically imprisonment at

MSP.

¶38 As we have already concluded the Inmates do not possess a state-created liberty

interest in being housed solely at MSP, pursuant to our holding in Wright, we must in

turn conclude that the savings clause of Chapter 491, Laws of Montana, 1999, does not

provide the Inmates a right to be housed solely at MSP. We agree with the DOC that the

savings clause does not confer on the Inmates a special right to be incarcerated at MSP

when that right did not previously exist.

¶39 The District Court properly concluded that there are no genuine issues of material

fact here and that the DOC was entitled to judgment as a matter of law.

¶40 The judgment of the District Court is affirmed.

Issue 2.

¶41 Did the District Court err in granting DOC’s motion for summary judgment in
Brown v. DOC?

¶42 Brown makes three arguments in support of his request for an order that DOC

must transfer him back to MSP and to further place him as a low security classification so

that he can obtain sex offender treatment. We will only address Brown’s first argument,

regarding his liberty interest in parole and due process, and not address his arguments

17
regarding his rights under the Montana Constitution as they have been addressed above in

Quigg v. DOC.

¶43 Brown first contends that he enjoys a liberty interest in being placed in the low

security classification at MSP. Brown argues that because he requires sex offender

treatment to be granted parole, he must be allowed to reside in low security at MSP

because only low security classification prisoners are allowed to attend sex offender

treatment. Brown alleges that the DOC has denied him the opportunity to attend sex

offender treatment by not designating him as a low security prisoner. Brown concludes

that this amounts to a denial of his right to due process.

¶44 The DOC concedes that Brown possesses a liberty interest in parole. Board of

Pardons v. Allen, 482 U.S. 369, 381, 107 S. Ct. 2415, 2422 (1987); Sage v. Gamble, 279

Mont. 459, 464, 929 P.2d 822, 825 (1996). As the DOC correctly points out, the Due

Process Clause “prohibits states from depriving any person of life, liberty or property

without due process of law.” Campbell v. Mahoney, 2001 MT 146, ¶ 7, 306 Mont. 45,

¶ 7, 29 P.3d 1034, ¶ 7. Thus, if Brown possesses a liberty interest, the question becomes

what process Brown is due. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384,

2393 (2005).

¶45 In Sage, we adopted the United States Supreme Court’s reasoning that “due

process in the context of parole does not require ‘repeated, adversary hearings . . . .’”

Moreover, we explained “at minimum, . . . the prisoner be provided an opportunity to be

heard and a written statement explaining why he was denied parole.” Sage, 279 Mont. at

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465, 929 P.2d at 825 (citing Greenholtz v. Inmates of Neb. Penal and Correctional

Complex, 442 U.S. 1, 14, 16, 99 S. Ct. 2100, 2107-08 (1979)).

¶46 Brown has admitted that he received an opportunity to be heard at his January

2003 parole hearing and received a written statement explaining why he was denied the

opportunity for parole. The DOC presented evidence that it has taken no action to

interfere with Brown’s opportunity for parole and moreover, that Brown’s status on the

waiting list for sex offender treatment is the same whether he is at MSP or one of the

regional and private prisons. The DOC further presented evidence that Brown will be

transferred to MSP if or when his name reaches the top of the waiting list for sex offender

treatment. The DOC points out that whether or not Brown achieves low security

designation is completely based on his own conduct.

¶47 We conclude that while Brown has a liberty interest in the opportunity for parole,

the DOC has done nothing to impede his opportunities for parole. Brown has gone

through the requisite parole hearings and has been notified in writing of the reasoning

behind the DOC’s denial of his parole. As such, Brown’s rights to due process in relation

to his liberty interest in parole have not been violated.

¶48 Brown further contends that the absence of sex offender treatment at Crossroads

and his inability to access sex offender treatment at MSP without being reclassified to

low security classification has also violated his liberty interests and rights to due process.

However, we have held that custody classifications do not “generally implicate a liberty

interest sufficient to give rise to due process protection for an inmate.” Jellison, ¶ 9. As

19
such, and particularly here, where Brown has previously been given a lower security

classification by DOC, only to be increased again because of his conduct, we cannot

conclude that, with respect to classification, Brown’s liberty interests and due process

rights have been violated.

¶49 The District Court properly concluded that there are no genuine issues of material

fact here and that the DOC was entitled to judgment as a matter of law.

¶50 The judgment of the District Court is affirmed.

/S/ JIM RICE

We concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ BRIAN MORRIS

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