December 16 2008
DA 08-0138
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 430N
JOHN MIDDLEMISS,
Plaintiff and Appellant,
v.
MIKE FERRITER; MIKE MAHONEY; TOM WOOD;
MARK LOCHRIE; GREGG BUDD; KENNETH NEUBAUER;
TRICIA ROBLES; KEN COZBY; THE DEPARTMENT OF
CORRECTIONS; THE MONTANA STATE PRISON; THE
STATE OF MONTANA,
Defendants and Appellees.
APPEAL FROM: District Court of the Third Judicial District,
In and For the County of Powell, Cause No. DV-06-112
Honorable Ray Dayton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
John Middlemiss, (self-represented); Deer Lodge, Montana
For Appellees:
Hon. Mike McGrath, Montana Attorney General; Valerie D. Wilson,
Special Assistant Attorney General; Helena, Montana
Submitted on Briefs: October 22, 2008
Decided: December 16, 2008
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court 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 Middlemiss (Middlemiss) appeals from the order entered by the Third
Judicial District Court, Powell County, granting summary judgment to all Defendants on
his complaint requesting declaratory and injunctive relief, as well as money damages.
We affirm. The sole issue on appeal is whether the District Court erred in granting the
Defendants summary judgment.
¶3 The Montana Department of Corrections (DOC) houses adult male inmates at the
Montana State Prison (MSP) and various other secure facilities throughout the state.
Prior to November of 2006, each facility employed different rules governing the type and
amount of personal property inmates were allowed to possess within the facility. As a
result, personal property authorized at one facility might be considered contraband at
another facility. Inmates transferred between facilities had the option of either storing
personal property considered contraband at the new facility or sending it to a person
outside the facility.
¶4 On November 1, 2006, MSP Warden Mike Mahoney signed a revised inmate
property policy, which became effective February 1, 2007. The purpose of the revised
2
policy was to resolve the disparity between the facilities regarding allowed personal
property and to reduce safety and security concerns. The revised policy established new
rules applicable to all secure facilities governing what personal property items inmates
are allowed to possess. The revised policy also provided that personal property items
considered contraband under the new policy must be sent out of the facility by the inmate
or would be seized as contraband and destroyed. The cost of shipping contraband
personal property out of the facility is paid for by the Inmate Welfare Fund. As a result
of the revised policy, certain personal property items previously allowed to MSP inmates
are now considered contraband.
¶5 On December 21, 2006, Middlemiss filed this action against the above-named
Defendants. He alleged that the revised personal property policy violated his and other
inmates’ rights under the Montana and United States Constitutions and also violated
various state and federal laws. He also alleged that the DOC was improperly
administering the Inmate Welfare Fund and inmate trust accounts by refusing to place the
funds into interest-bearing bank accounts. His complaint requested a declaratory
judgment, injunctive relief preventing the implementation and enforcement of the revised
personal property policy, and compensatory and punitive damages. He further requested
the District Court to certify the action as a class action pursuant to M. R. Civ. P. 23. The
Defendants answered the complaint and moved for summary judgment.
¶6 The District Court granted summary judgment to the Defendants on all of
Middlemiss’s claims, concluding there were no genuine issues of material fact and the
Defendants were entitled to judgment as a matter of law. The court determined that the
3
revised personal property policy is reasonable and related to legitimate penological
interests. Thus, the revised policy did not violate Middlemiss’s rights under the United
States Constitution. The court further determined that Middlemiss had failed to present
sufficient evidence to support either a claim under the Montana Constitution or a civil
rights claims pursuant to 42 U.S.C. § 1983. As to Middlemiss’s tort claims and request
for damages, the District Court determined it had no jurisdiction to hear those claims
because Middlemiss had failed to exhaust his administrative remedies as required by § 2-
9-301, MCA. The court also concluded that Middlemiss had failed to establish that the
DOC’s administration of the Inmate Welfare Fund and inmate trust accounts violated the
law or otherwise was improper. Finally, because the Defendants were entitled to
judgment as to all of Middlemiss’s claims, the District Court concluded that his request
for certification as a class action was moot.
¶7 Middlemiss appeals the District Court’s grant of summary judgment to the
Defendants, asserting the court erred in concluding there were no genuine issues of
material fact preventing entry of judgment as a matter of law. We review a district
court’s grant of summary judgment de novo, using the same M. R. Civ. P. 56 criteria
applied by that court. Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 36, 345 Mont. 12, ¶ 36,
192 P.3d 186, ¶ 36. In that regard, M. R. Civ. P. 56(c) provides that “[t]he judgment
sought shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.”
4
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. It is manifest on the face of the briefs and the record that the
appeal is without merit because the District Court correctly determined that the
Defendants established the absence of genuine issues of material fact and their
entitlement to judgment as a matter of law.
¶9 Affirmed.
/S/ JIM RICE
We concur:
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
5