Orozco v. Day

96-344

                                                              No. 96-344

                              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                    1997




                                                          DANIEL OROZCO,

                                                 Plaintiff and Appellant,

                                                                     v.

                                  RICK DAY, Director off the Department of
                                     Corrections and Human Services, MIKE
                                   MAHONEY, Section Warden, MYRON BEESON,
                                       Section Warden, CANDYCE NEUBAUER,
                                    Classification Manager, DAVE LANNING,
                                      Unit Manager, MONTANA DEPARTMENT OF
                                   CORRECTIONS AND HUMAN SERVICES, MONTANA
                                                 STATE PRISON.

                                              Defendants and Respondents.




              APPEAL FROM:           District Court of the Third Judicial District,
                                    In and for the County of Powell,
                             The Honorable Ted L. Mizner, Judge presiding.



                                                       COUNSEL OF RECORD:

                                                          For Appellant:

                                Daniel Orozco, Pro Se, Deer Lodge, Montana

                                                        For Respondents:


                           Lois Adams, David L. Ohler, Diana P. Leibinger,
                            Attorneys at Law, Department of Institutions,
                                           Helena, Montana


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                                     Submitted on Briefs: October 10, 1996

                                                  Decided: March 10, 1997
                                                           Filed:



                                __________________________________________
                                                   Clerk

                  Justice Karla M. Gray delivered the Opinion of the Court.


                  Daniel Orozco (Orozco), appearing pro se, appeals from the
             opinion and order of the Third Judicial District Court, Powell
          County, dismissing his complaint for failure to state a claim upon
          which relief could be granted. We affirm in part, reverse in part
            and remand for further proceedings consistent with this opinion.
                            We restate the issues on appeal as follows:
                      1. Did the District Court err in concluding that the
             Department of Corrections and the individual defendants are not
                               "persons" under 42 U.S.C.   1983?
                       2. Did the District Court err in concluding that the
                        individual defendants have qualified immunity?
                                       Factual and Procedural Background
                   Orozco is an inmate at the Montana State Prison (MSP). On
            March 26, 1995, Unit Manager Dave Lanning notified Orozco, via a
              document entitled "Due Process Notifications," that an ongoing
             investigation indicated that he was involved in a conspiracy to
             traffic drugs within the MSP. The notice further stated that a
            classification hearing would be held to address Orozco's custody
          level and job assignment and that Orozco could present evidence on
          his own behalf at the hearing. On the same day, Orozco was placed
         in temporary lock-up in maximum security for investigation purposes
                              pursuant to MSP Policy No. 15-002.
                 Orozco was not provided with a hearing investigator to assist
             in his defense at the classification hearing held on March 28,
              1995. As a result of the hearing, Orozco was reclassified to
           maximum security and was unable to continue earning thirteen days
                                 per month good time credits.
                    Orozco subsequently filed a 42 U.S.C.     1983 civil rights
         action against Rick Day, Director of the Department of Corrections;
         Mike Mahoney, Section Warden; Myron Beeson, Section Warden; Candyce


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            Neubauer, Classification Manager; Dave Lanning, Unit Manager for
         Close Unit One; the Department of Corrections (Department); and the
           MSP. Orozco requested a declaratory judgment that the defendants
          had violated his due process rights under the Fifth and Fourteenth
           Amendments to the United States Constitution by failing to assign
                 a hearing investigator to assist in his defense during the
                 classification hearing which could, and did, result in his
             inability to continue to earn thirteen days per month good time
             credits. He also sought a preliminary and permanent injunction
                 requiring the defendants to adequately train and supervise
               personnel in established policy and discipline personnel for
               failure to comply with such policy; to place him back in the
         general prison population; and to credit him with thirteen days per
              month good time which was lost due to his placement in maximum
              security. Finally, Orozco requested an award of money damages
                                 against each of the defendants.
                  The defendants moved to dismiss Orozco's complaint pursuant to
          Rule 12(b)(6), M.R.Civ.P., for failure to state a claim upon which
              relief could be granted. The District Court held a hearing in
         December of 1995 and, thereafter, granted the defendants' motion to
                                    dismiss. Orozco appeals.
                    Additional facts are set forth below where necessary to our
                                     resolution of the issues.
                                                     Standard of Review
                        The District Court dismissed the entirety of Orozco's
            complaint pursuant to Rule 12(b)(6), M.R.Civ.P. In evaluating a
          Rule 12(b)(6) motion to dismiss, courts are required to construe a
          complaint in the light most favorable to the plaintiff. The court
                should not dismiss the complaint unless it appears that the
            plaintiff is not entitled to relief under any set of facts which
          could be proved in support of the claims. Loney v. Milodragovich,
             Dale & Dye, P.C. (1995), 273 Mont. 506, 509, 905 P.2d 158, 160.
                       The issues Orozco raises on appeal assert error in the
         District Court's conclusions of law. We review a district court's
         conclusions of law to determine whether the court's interpretation
         of the law is correct. Werre v. David (1996), 275 Mont. 376, 385,
                                         913 P.2d 625, 631.
                                                           Discussion
                     1. Did the District Court err in concluding that the
                        Department and the individual defendants are not
                                "persons" under 42 U.S.C.     1983?

                        Orozco based his claim against the Department and each
                  individual defendant on 42 U.S.C.     1983, which provides:
                   Every person who, under color of any statute, ordinance,
                    regulation, custom, or usage, of any State or Territory
                     or the District of Columbia, subjects, or causes to be
                      subjected, any citizen of the United States or other


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                  person within the jurisdiction thereof to the deprivation
                   of any rights, privileges, or immunities secured by the
                     Constitution and laws, shall be liable to the party
                    injured in an action at law, suit in equity, or other
                                proper proceeding for redress.

                  In order to prevail on a    1983 claim, the plaintiff must
                                          establish:
                      (1) a violation of rights protected by the [United
                   States] Constitution or created by federal statute, (2)
                     proximately caused (3) by conduct of a "person" (4)
                               acting under color of state law.

                    Crumpton v. Gates (9th Cir. 1991), 947 F.2d 1418, 1420.
                      The District Court concluded that the Department and the
               individual defendants are not "persons" within the meaning of
                          1983. Orozco contends that the court erred.
                                              Department of Corrections
                    The United States Supreme Court has held that municipalities
             and local government units are among those "persons" to whom 42
         U.S.C.        1983 applies. See Monell v. New York City Dep't of Social
            Serv. (1978), 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d
             611, 635. States and other governmental entities, on the other
         hand, are considered "arms of the state" and, as a result, they are
           not "persons" within the meaning of        1983. See Will v. Michigan
              Dep't of State Police (1989), 491 U.S. 58, 70, 109 S.Ct. 2304,
         2312, 105 L.Ed.2d 45, 57. The exclusion of states and "arms of the
           state" from the term "person" contained in        1983 is based on the
          immunity from suit provided to states by the Eleventh Amendment to
                 the United States Constitution. See Will, 491 U.S. at 66.
                     The Department is an entity within the executive branch of
         government in the State of Montana (State). See           2-15-102(4) and
                2-15-2301, MCA. Thus, it is a governmental entity which is
              considered an "arm of the state" and not a "person" for       1983
                              purposes. See Will, 491 U.S. at 70.
                  Orozco argues that     2-9-305(2), MCA, required him to join the
           Department in this action and, therefore, that the District Court
         erred in concluding that it was not a proper         1983 defendant. The
          Department did not respond to Orozco's argument but, in any event,
                                  Orozco misreads the statute.
                        Section 2-9-305(2), MCA, requires governmental entity
             employers to defend and indemnify employees sued for misconduct
               committed in the course and scope of the employees' office or
             employment, including employees against whom a       1983 action is
                   brought. It does not refer to, or require, joinder of a
           governmental entity when an employee of that entity is sued. See
                    2-9-305(2), MCA. Although the heading of     2-9-305, MCA,
                 contains the language "Governmental entity to be joined as


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               defendant," nothing in the text of the statute relates to or
           supports that portion of the heading. We have held that the text
               of the statute takes precedence over the title in matters of
         statutory interpretation. See ISC Distrib., Inc. v. Trevor (1995),
                          273 Mont. 185, 196, 903 P.2d 170, 177.
                     Orozco's contention that, under     2-9-305(2), MCA, the
          Department was a proper party in his       1983 action is also without
         merit. The statute addresses actions brought against employees; it
                 does not relate to the propriety or impropriety of suing
            governmental entities, and the law is clear that       1983 does not
          apply to arms of the state. See        2-9-305(2), MCA; Will, 491 U.S.
                                           at 70.
                  We hold that the District Court correctly concluded that the
               Department is not a "person" within the meaning of 42 U.S.C.
                                            1983.
                                               Individual Defendants
                    State officials sued for money damages in their official
            capacities also are not "persons" within the meaning of        1983,
          because the suit is not a suit against the state officials, but is
            a suit against the officials' offices. Therefore, an action for
              money damages against a state official in his or her official
             capacity is no different than a suit against the state itself.
                                   Will, 491 U.S. at 71.
                  State officials are "persons" within the meaning of       1983,
           however, if sued for money damages in their individual capacities
           for actions taken under color of state law. See Trout v. Bennett
          (1992), 252 Mont. 416, 425, 830 P.2d 81, 85-86 (following Hafer v.
          Melo (1991), 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301). Orozco
         argues on appeal that, because he sued the individual defendants in
         their individual capacities, the District Court erred in concluding
             that the individual defendants are not "persons" under       1983.
                  Generally, where state officials are sued for damages under
                1983, it is presumed that the officials are sued in their
         individual capacities. See Shoshone-Bannock Tribes v. Fish & Game
               Comm'n, Idaho (9th Cir. 1994), 42 F.3d 1278, 1284 (citation
                                         omitted).
                    Any other construction would be illogical where the
                   complaint is silent as to capacity, since a claim for
                     damages against state officials in their official
                               capacities is plainly barred.

             Shoshone-Bannock Tribes, 42 F.3d at 1284. In cases where the
         complaint does not clearly specify whether state officials are sued
             in their individual or official capacities, the course of the
              proceedings will indicate the type of liability sought to be
           imposed. Larez v. City of Los Angeles (9th Cir. 1991), 946 F.2d
                              630, 640 (citation omitted).
                 Here, Orozco's complaint does not clearly indicate in which


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             capacity he sued the individual defendants. The caption of the
           complaint, in which the individual defendants' names are followed
         by an identification of their positions within the Department or at
                 the MSP, suggests that Orozco sued them in their official
         capacities. In addition, the complaint contains a section entitled
         "DEFENDANT'S [sic]" which sets forth the name of each defendant and
           his or her position, followed by a description of the defendant's
                                        official duties.
                         On the other hand, Orozco's complaint also contains
           indications that Orozco intended to sue the individual defendants
           in their individual, rather than their official, capacities. For
         example, the complaint asserts that the Eleventh Amendment does not
         bar actions against officials who, acting under color of state law,
             deprive a plaintiff of constitutionally protected rights. This
             assertion appears to reflect an awareness by Orozco that, while
              Eleventh Amendment immunity applies to state officials sued in
         their official capacity (see Will, 491 U.S. at 70-71), it "provides
            no shield for a state official confronted by a claim that he had
           deprived another of a federal right under the color of state law"
            (see Scheuer v. Rhodes (1974), 416 U.S. 232, 237, 94 S.Ct. 1683,
                                    1687, 40 L.Ed.2d 90, 97).
                  Orozco's complaint also states that the individual defendants
            are "not entitled to the protection of the good faith immunity."
         Such a defense for the individuals named in Orozco's complaint only
           becomes an issue, however, when they are sued in their individual
         capacities, because personal immunity defenses may be asserted only
            by officials sued in their personal, rather than their official,
             capacities. See Hafer, 502 U.S. at 25. Thus, the reference in
         Orozco's complaint to personal immunity defenses suggests an intent
           to sue the defendants in their individual capacities. Otherwise,
                      inclusion of such a reference would be meaningless.
                   Orozco's complaint further states that the defendants "acted
         with malicious intent, outside [the] scope of their authority." In
             this regard, Orozco's complaint is similar to those in Scheuer,
                    where the plaintiffs alleged that the defendants acted
              intentionally, recklessly, willfully and wantonly either under
            color of state law or outside the scope of their authority. See
               Scheuer, 416 U.S. at 235. Faced with such allegations in the
            context of a trial court's decision to dismiss the complaints at
          the pleading stage, the United States Supreme Court concluded that
          the plaintiffs' allegations demonstrated that they were seeking to
          impose individual liability on the named defendants. Scheuer, 416
                                           U.S. at 238.
                 Orozco's complaint does not clearly and consistently establish
          whether he is suing the individual defendants in their official or
           individual capacities. We conclude, however, that a fair reading
         of the complaint suggests an intent by Orozco to sue the individual
            defendants in their individual capacities. We hold, therefore,


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           that the District Court erred in concluding at the pleading stage
             of this case that the individual defendants were not "persons"
                                 under 42 U.S.C.   1983.
                  2. Did the District Court err in concluding that the
                     individual defendants have qualified immunity?

                      The District Court also concluded that the individual
           defendants were entitled to qualified immunity. Orozco contends
                      that the court erred in this conclusion as well.
                  We recently discussed qualified immunity at length in Boreen
                v. Christensen (Mont. 1996), 930 P.2d 67, 53 St.Rep. 1450.
                Qualified immunity shields government officials performing
              discretionary functions from civil damages "'insofar as their
                 conduct does not violate clearly established statutory or
              constitutional rights of which a reasonable person would have
              known.'" Boreen, 930 P.2d at 70 (quoting Harlow v Fitzgerald
          (1982), 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396). "Qualified
         immunity 'gives ample room for mistaken judgments by protecting all
             but the plainly incompetent or those who knowingly violate the
           law.'" Boreen, 930 P.2d at 70 (quoting Hunter v. Bryant (1991),
             502 U.S. 224, 229, 112 S.Ct. 534, 537, 116 L.Ed.2d 589, 596).
                    Courts apply a two-pronged test in determining whether an
          official is entitled to qualified immunity. First, the court must
           determine whether a clearly established right has been violated;
         and second, the court must determine whether a reasonable person or
            official would have known that his or her conduct violated that
          right. Sacco v. High Country Indep. Press (1995), 271 Mont. 209,
                         216, 896 P.2d 411, 415 (citation omitted).
                 The threshold inquiry in applying the qualified immunity test,
         therefore, is whether the constitutional right allegedly violated--
               here, an alleged right to due process arising from a liberty
         interest in accumulating good time credits--was clearly established
             at the time of the conduct giving rise to the litigation. See
          Boreen, 930 P.2d at 70. Relying on Remington v. Dep't of Corr. &
         Human Serv. (1992), 255 Mont. 480, 844 P.2d 50, the District Court
         concluded that Orozco did not have a liberty interest in good time
                       credits which implicated due process concerns.
                   In Remington, inmate Daniel Remington petitioned this Court
          for habeas corpus relief, contending that the Department violated
              his right to due process by denying him good time credits for
            successfully completing correspondence courses. Remington, 844
             P.2d at 52. We noted that, if a liberty interest in good time
            credits exists, due process concerns arise in order "'to insure
               that the state-created right is not arbitrarily abrogated.'"
          Remington, 844 P.2d at 52 (quoting Wolff v. McDonnell (1974), 418
              U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935, 951). In
             determining whether a liberty interest existed, we stated that
                    [a] liberty interest is created when the legislature


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                    expressly mandates to an agency the performance of some
                     activity to be carried out within specific parameters
                       which include definitions, criteria, and mandated
                                           "shalls."

             Remington, 844 P.2d at 52 (citing Connecticut Bd. of Pardons v.
                Dumschat (1981), 452 U.S. 458, 466, 101 S.Ct. 2460, 2465, 69
            L.Ed.2d 158, 166). We then scrutinized        53-30-105, MCA (1991),
               which authorized the Department to adopt rules concerning the
          dispensation of good time credits. We concluded that         53-30-105,
           MCA (1991), did not contain definitions, criteria or mandates for
           the good time rules it directed the Department to adopt and, as a
              result, the Department "has virtually unfettered discretion in
          establishing the rules which will govern the dispensation of 'good
          time' credits to prisoners." Remington, 844 P.2d at 52. In light
           of that virtually unfettered discretion, we held that MSP inmates
            do not have a liberty interest in good time credits which raises
                    due process concerns. See Remington, 844 P.2d at 53.
                      Subsequent to Remington, the United States Supreme Court
            changed its focus in defining state-created liberty interests in
          Sandin v. Conner (1995), 515 U.S. ___, 115 S.Ct. 2293, 132 L.Ed.2d
         418. The Supreme Court reflected that, post-Wolff, it had departed
         from determining whether the state had created an interest of "real
          substance" and focused, instead, on whether states had gone beyond
                issuing mere procedural guidelines and used "'language of an
                unmistakably mandatory character' such that the incursion on
         liberty would not occur 'absent specified substantive predicates.'"
              Sandin, 115 S.Ct. at 2298 (citation omitted). Noting that the
             post-Wolff "mandatory language/substantive predicate" focus had
             served as a disincentive for states to codify prison management
              procedures in the interest of uniform treatment and led to the
          involvement of courts in the day-to-day management of prisons, the
         Supreme Court concluded that it was time to return to the "interest
          of 'real substance'" approach to due process established in Wolff.
                                Sandin, 115 S.Ct. at 2298-2300.
                  In Wolff, a Nebraska prison inmate sued under    1983, alleging
         that prison disciplinary proceedings which could result in the loss
             of good time violated the Due Process Clause of the Fourteenth
         Amendment. Wolff, 418 U.S. at 553. Several Nebraska statutes were
          relevant to whether a due process liberty interest existed in good
         time. The first required good time allowances in specified amounts
                for good behavior and mandated reducing an inmate's term of
               commitment by the amount of accumulated good time for parole
               eligibility purposes. Wolff, 418 U.S. at 546 n. 6. It also
            provided that good time reductions of an inmate's term could be
          forfeited or withheld by the head of the prison on the basis of an
                 inmate's misconduct after the inmate "ha[d] been consulted
         regarding the charges of misconduct." Wolff, 418 U.S. at 546 n. 6.


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           Under a different statute, "flagrant or serious misconduct" could
           result in both forfeited or withheld good time credits, affecting
             the term of confinement, and disciplinary segregation affecting
         only conditions of confinement. Wolff, 418 U.S. at 546-47. Prison
            officials had adopted written regulations setting forth policies
          and procedures for controlling misconduct and imposing discipline.
                                 Wolff, 418 U.S. at 548-53.
                   The United States Supreme Court noted at the outset that,
            while an incarcerated person's "rights may be diminished by the
          needs and exigencies of the institutional environment, a prisoner
            is not wholly stripped of constitutional protections when he is
                imprisoned for crime." Wolff, 418 U.S. at 555. Thus, the
         protection afforded by the Due Process Clause extends to inmates of
            state prisons, but it can be limited by institutional needs and
                          objectives. See Wolff, 418 U.S. at 556.
                     The Supreme Court observed that Nebraska had provided a
           statutory right to good time credits and had specified that such
                 credits could be forfeited only as a sanction for serious
          misbehavior. Wolff, 418 U.S. at 557. On that basis, the Supreme
              Court concluded that Nebraska had created an interest of real
            substance "embraced within Fourteenth Amendment 'liberty'" which
          entitled Nebraska prison inmates to minimum due process procedures
            appropriate under the institutional circumstances to insure that
         the state-created right to good time was not abrogated arbitrarily.
                                   Wolff, 418 U.S. at 557.
                    The United States Court of Appeals for the Ninth Circuit
             recently applied the Sandin/Wolff "interest of real substance"
             approach to due process inquiries with regard to state-created
           rights in Gotcher v. Wood (9th Cir. 1995), 66 F.3d 1097. There,
            Norman Gotcher, a Washington prison inmate, alleged in a      1983
          action that Washington Department of Corrections employees failed
             to afford him due process in prison disciplinary hearings; his
            claim was premised on an asserted liberty interest in receiving
              good time credits. Gotcher, 66 F.3d at 1098-99. The federal
               district court relied on the "mandatory language/substantive
              predicate" analysis in concluding that Gotcher did not have a
          liberty interest in receiving good time. See Gotcher, 66 F.3d at
                                         1098, 1100.
                      On appeal, the Ninth Circuit reversed. It noted that
                  Washington's statutes regarding good time credits were
           indistinguishable from those enacted in Nebraska and held by the
          Supreme Court in Wolff to create a liberty interest. Gotcher, 66
                F.3d at 1100. Because the Supreme Court had abandoned the
          "mandatory language/substantive predicate" analysis in Sandin and
          returned to the Wolff principles, the Ninth Circuit held that the
         federal district court erred in concluding that no liberty interest
              in good time credits existed. Gotcher, 66 F.3d at 1100-1101.
                     Our holding in Remington that MSP inmates do not have a


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             liberty interest in good time credits predated Sandin and was
         premised on the "mandatory language/substantive predicate" analysis
            of state-created rights. See Remington, 844 P.2d at 52-53. In
           light of Sandin and Gotcher, it is clear that Remington must be,
          and is hereby, overruled insofar as it applied that analysis. As
          a result, we must determine whether Orozco had a liberty interest
         in good time credits under the Sandin/Wolff due process principles.
                           Section 53-30-105, MCA (1993), provided:
                     (1) The department of corrections and human services
               shall adopt rules providing for the granting of good time
                  allowance for inmates employed in any prison work or
               activity. . . . The good time allowance shall operate as
                   a credit on the inmate's sentence as imposed by the
                 court, conditioned upon the inmate's good behavior and
                compliance with the rules made by the department or the
                                         warden.
                                         . . . .
                      (2) In the event of . . . a violation of the rules
               prescribed by the department or warden, the inmate may be
                   punished by the forfeiture of part or all good time
                                       allowances.

         This statute mandated rules granting good time for work activity as
           a credit on an inmate's sentence. Consistent with this statute,
            the Department adopted Policy No. 505, which required that good
              time allowances provide a credit on the inmate's sentence as
          imposed by the court. The policy clarified when good time accrual
            begins and set forth the circumstances, including an increase in
              custody classification, which could result in the loss of the
                opportunity to earn, or a reduction of, good time credits.
                   By these legislative and administrative actions, the State
               created a right to good time as a direct credit to inmates'
         sentences. As in Wolff, the good time provisions contained in both
               53-30-105, MCA (1993), and Policy No. 505 directly affect the
                duration of inmates' confinement at the MSP. Applying the
          Sandin/Wolff due process analysis, we conclude that the State had
          created an interest of real substance sufficiently embraced within
             Fourteenth Amendment "liberty" so as to entitle Orozco to due
          process procedures appropriate under institutional circumstances.
              See Sandin, 115 S.Ct. at 2300; Wolff, 418 U.S. at 557. As a
          result, we hold that the District Court erred in determining that
                         no liberty interest existed in this case.
                 The existence of a liberty interest giving rise to due process
         requirements is not dispositive, however, of the qualified immunity
              issue presently before us. As discussed above, our threshold
         inquiry in addressing qualified immunity is whether the due process
           right arising from Orozco's liberty interest in good time credits
           was clearly established at the time of the individual defendants'


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           conduct which gave rise to this action. See Boreen, 930 P.2d at
                                 70. We hold that it was not.
                 We decided Remington in 1992 and held therein--on the basis of
             the Supreme Court's "mandatory language/substantive predicate"
           analysis--that Montana inmates do not have a liberty interest in
                   good time credits. See Remington, 844 P.2d at 53. The
                classification hearing which resulted in Orozco losing the
             opportunity to earn additional good time credits, and which he
             alleges violated his due process rights, occurred on March 28,
               1995. Remington was the controlling Montana case on Montana
         statutes and Department policies relating to good time on the date
               of Orozco's hearing. As of that date, then, no Montana case
            recognized a state-created due process liberty interest in good
                                         time credits.
                  Moreover, the Supreme Court did not decide Sandin, in which it
              returned to the Wolff "interest of real substance" principles,
                    until June 19, 1995, nearly three months after Orozco's
          classification hearing. See Sandin, 115 S.Ct. at 2293. The Ninth
          Circuit followed with Gotcher in October of 1995. See Gotcher, 66
           F.3d at 1097. Even assuming those cases interpreted statutes and
           policies identical to Montana's and determined on such bases that
            an interest of real substance in good time credits existed which
         gave rise to due process requirements before those credits could be
                withheld, the cases postdated the conduct of the individual
          defendants which allegedly violated Orozco's due process rights in
                the present case. We conclude, therefore, that the liberty
              interest in good time credits which gives rise to Orozco's due
          process rights here was not clearly established at the time of his
          classification hearing. As a result, we further conclude that the
               individual defendants are entitled to qualified immunity from
                  liability for civil damages. See Boreen, 930 P.2d at 75.
              Accordingly, we hold that the District Court was correct in so
                                          concluding.
                     As previously mentioned, the District Court dismissed the
                entirety of Orozco's complaint--which sought not only money
            damages, but also declaratory and injunctive relief--pursuant to
           Rule 12(b)(6), M.R.Civ.P. The District Court correctly dismissed
         the Department from the entirety of Orozco's        1983 suit because it
            is an arm of the State and, therefore, not a "person" within the
               meaning of     1983. In addition, the District Court correctly
          dismissed the damage claim against the individual defendants based
                 on qualified immunity. Given Orozco's liberty interest in
               accumulating good time credits, however, we conclude that the
          District Court improperly dismissed Orozco's complaint pursuant to
               Rule 12(b)(6), M.R.Civ.P., with regard to the declaratory and
           injunctive relief requested under       1983. See Loney, 905 P.2d at
                   160. As a result, it is necessary to remand for further
             consideration of remaining issues, including what "process" was


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           "due" Orozco before his opportunity to earn good time credits was
           withdrawn and whether Orozco received the process due him. These
               issues, insofar as they relate to Orozco's declaratory and
           injunctive relief claims, have not been addressed by the District
              Court because of the early stage at which the District Court
              dismissed the entirety of Orozco's complaint and the reasons
                               underlying that dismissal.
                  For these reasons, we affirm in part, reverse in part and
             remand this case for further proceedings consistent with this
                                        opinion.

                                                                                   /S/      KARLA M. GRAY




                                                              We concur:

                                                    /S/ J. A. TURNAGE
                                                /S/ WILLIAM E. HUNT, SR.
                                                   /S/ JAMES C. NELSON




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