No. 01-436
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 133N
KENNETH ANTHONY ALLEN,
Plaintiff and Appellant,
v.
MIKE MAHONEY, WARDEN, MONTANA
STATE PRISON, et al.,
Defendants and Respondents.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
Honorable Ted Mizner, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Kenneth Anthony Allen, Pro Se, Deer Lodge, Montana
For Respondents:
Matthew S. Robertson, Special Assistant Attorney General, Montana
Department of Corrections, Helena, Montana
Submitted on Briefs: December 20, 2001
Decided: June 18, 2002
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1996 Internal Operating Rules, the following decision shall not be
cited as precedent but shall be filed as a public document with the
Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of
noncitable cases issued by this Court.
¶2 The Appellant, Kenneth Anthony Allen (Allen), filed a 42
U.S.C. § 1983 Civil Rights complaint alleging violations of his
rights under the Eighth and Fourteenth Amendments of the United
States Constitution. The District Court for the Third Judicial
District, Powell County, dismissed Allen’s complaint, concluding
that Allen did not allege that he was a member of a suspect class
for which relief is available under a civil rights claim and
concluding that the complaint did not allege with specificity how
the acts of the individual defendants denied Allen his
constitutional rights while acting under the color of state law.
We affirm.
ISSUE
¶3 Did the District Court properly dismiss Appellant’s complaint
and amended complaint?
STANDARD OF REVIEW
¶4 A complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to
2
relief. The rules encourage disposition of cases quickly and on the merits. Close
scrutiny should therefore be given when one party moves to have the case disposed of
on grounds other than the merits. Rambur v. Diehl Lumber Co. (1964), 144 Mont. 84,
394 P.2d 745.
¶5 A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., admits
all well-pleaded allegations in the complaint. In considering the
motion, the complaint is construed in the light most favorable to
the plaintiff, and all allegations of fact contained therein are
taken as true. Bar OK Ranch, Co. v. Ehlert,
2002 MT 12, ¶ 31,
308
Mont. 140, ¶ 31, 40 P.3d. 378, ¶ 31 (citation omitted). The court is
not engaged in factfinding when ruling on a motion to dismiss. Any evidence actually
adduced in support of a party’s position in a motion to dismiss is of no consequence
when reviewing the appropriateness of the lower court’s denial of said motion made
prior to a hearing or trial. See Flemmer v. Ming (1980),
190 Mont. 403, 408,
621 P.2d
1038, 1041.
¶6 The District Court’s determination that Allen’s complaint and
amended complaint failed to state a claim is a conclusion of law.
Our standard of review of a district court’s conclusions of law is
whether the tribunal’s interpretation of the law is correct.
Ehlert, ¶ 31.
BACKGROUND
¶7 Because upon a motion to dismiss all allegations of fact in
the complaint are to be taken as true, the following facts are
taken from the complaint and attached exhibits.
3
¶8 Allen is an inmate at the Montana State Prison. On July 3,
1999, approximately 120 inmates at the prison participated in a
sit-down demonstration in an area called the high-side yard, an
area located between the high-side kitchen and three high-side
housing units. Also located adjacent to the high-side yard are the
front doors of the high-side gymnasium. At the start of the
demonstration a number of inmates exited the front doors of the
gymnasium and from outside the recreation yard to join the
demonstration. Those in the gymnasium who wished not to
participate exited the rear doors and walked into an area called
the Reception Unit.
¶9 Allen had informed prison officials approximately a day or two
prior to the demonstration when it was going to take place, and
informed numerous correctional officers that he himself would not
be participating in the demonstration. At the start of the
demonstration, Allen was on break in front of the high-side kitchen
and immediately re-entered the kitchen upon seeing the other
inmates assembling. Like the high-side gymnasium, the high-side
kitchen also contains front and rear exits. Allen and the other
inmates in the kitchen were not given the opportunity to exit
through the rear doors which lead, a few hundred feet away, to the
same Reception Unit near the rear of the high-side gymnasium.
Rather, the rear doors of the kitchen were locked by correctional
officer Thomas Gildebrandt for the safety of the inmates and
overall security of the prison. The kitchen inmates were then
instructed by correctional officer Wayne Lubbes to exit the front
4
doors of the kitchen into the high-side yard, cross through the
sit-down demonstration, and return to the high-side housing units.
¶10 The kitchen inmates, including Allen, exited the front doors
of the kitchen, but because of threats by the demonstrators if they
attempted to cross through the demonstration, the kitchen workers
did not pass through but sat down on the grass nearby. For fear of
his own personal safety, Allen also sat down near the demonstration
rather than attempting to pass through it.
¶11 A short time after the beginning of the demonstration, a
prison official, Captain Geech, requested that two inmates from
each unit come to the high-side security gate to speak with prison
staff about inmate concerns. Upon a vote of the inmates in Allen’s
housing unit, Allen was elected to be the representative on behalf
of his unit. At this point, Allen actively participated in the
demonstration as their representative.
¶12 Subsequently, all inmates who were involved in the
demonstration were placed in temporary lock-up pending disciplinary
Comment [COMMENT1]: Taken
out of fact section because
hearings. The MSP hearing officers eventually dismissed the neither the complaint or
amended complaint contain a
due process challenge, only
disciplinary write-ups of each of the high-side kitchen inmates th th
8 and 14 :
Of the workers originally in
other than Allen. The Unit Disciplinary Team originally scheduled the high-side kitchen, seven
had their disciplinary
write-ups dismissed. The
Allen’s hearing for July 12, 1999. On that day, Allen was granted Unit Disciplinary Team
originally scheduled Allen’s
hearing for July 12, 1999.
a continuance until July 21, 1999, for the purpose of collecting On that day, Allen was
granted a continuance until
July 21, 1999, for the
staff witnesses and statements to attest that Allen did not want to purpose of collecting staff
witnesses and statements to
attest that Allen did not
participate in the demonstration or leave the security of the high- want to participate in the
demonstration or leave the
security of the high-side
side kitchen. kitchen. Allen’s hearing
was subsequently held on
July 19, 1999, prior to
having the opportunity to
collect and therefore
present staff witnesses and
statements.
5
¶13 Allen’s hearing was subsequently held on July 19, 1999, prior
to having the opportunity to collect and therefore present staff
witnesses and statements. The hearing officers found Allen guilty.
His disciplinary infraction report and subsequent hearing decision
reflects that Allen actively participated in the sit-down
demonstration through the representation of his unit, that he
refused orders from prison officials to return to his housing unit,
that he made demands of the administration during the
demonstration, and that his actions were disruptive and interfered
with the operation of the Montana State Prison. Each of these
activities constitute “severe category” violations of the Montana
State Prison Policy and Procedures and Allen’s determined
violations resulted in a subsequent one- to two-year sentence to
the maximum security unit.
¶14 Allen filed a 42 U.S.C. § 1983 Civil Rights complaint in
October of 2000 against Mike Mahoney, Warden of the Montana State
Prison. The caption of the complaint contained only the name of
Mike Mahoney, in his official capacity as Warden of the Montana
State Prison, but also included a section entitled “Parties”
wherein Allen named twenty-one additional defendants, suing each in
their individual capacities and alleging that their actions were
done under color of state law. Allen alleged in his complaint that
prison officials violated his Eighth Amendment right against cruel
and unusual punishment and his Fourteenth Amendment right to equal
protection of the laws. Allen also alleged a Due Process violation
6
because of his inability to present statements from witnesses and
staff during his disciplinary hearing.
¶15 Allen sought from the District Court an order expunging and
dismissing the disciplinary write-ups from his institutional
record, an order requiring an immediate reclassification
evaluation, and compensatory and punitive damages against
correctional officers Gildebrandt and Lubbes and from “all of the
defendants, and/or, whomever the Court deems responsible for the
safety of the inmates in the kitchen.”
¶16 Did the District Court properly dismiss the Appellant’s
complaint and amended complaint for failure to state a claim under
42 U.S.C. § 1983?
¶17 Allen bases his claim against Mahoney and other named
individuals 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
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 other party
injured in an action at law, suit in equity, or other
proper proceeds for redress. . . .
In order to state a sustainable § 1983 claim, the plaintiff must
allege facts to 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. Orozco v. Day (1997), 281 Mont. 341, 347,
934
P.2d 1009, 1012 (citation omitted).
7
¶18 The State argues that Allen’s original and amended complaints
are facially insufficient because, although only Mike Mahoney is
listed in the caption, neither complaint alleges any specific act
or conduct on the part of Mahoney and, in fact, both are completely
silent as to Mahoney other than the appearance of his name in the
captions. The State argues that, in failing to assert any factual
allegations that Mahoney acted or failed to act, the complaints
fail to state a cognizable claim under 42 U.S.C. § 1983. See
Potter v. Clark (7th Cir. 1974),
497 F.2d 1206, 1207. The State
further argues that the complaint did not allege that any
particular defendant acted under the color of state law for the
purposes of
42 U.S.C. § 1983.
¶19 Allen argued before the District Court that, although the
complaint is silent as to Mahoney other than his name in its
caption, specific factual allegations were not necessary because
one could implicitly read into the complaint that Mahoney’s
inaction allowed the high-side kitchen inmates to be treated
differently than the high-side gymnasium inmates. Allen
specifically argues that Mahoney “failed to act by not authorizing
the Correctional Officers in the high side dining area to afford
the inmates of the kitchen the same equal protection that was
afforded to the inmates in the gym by being ‘allowed’ to exit the
rear of the building and subsequently avoiding the ongoing
demonstration.” This implicitly authorized disparate treatment,
Allen argues, allowed correctional officers to treat the kitchen
inmates differently than the gymnasium inmates, thereby violating
8
Allen’s right to receive equal protection of the laws. In other
words, Allen argues that alleged actions by other correctional
officers sufficiently implicates wrongdoing by Mahoney.
¶20 It is well settled that Montana’s Rules of Civil Procedure are
notice pleading statutes and that, pursuant to Rule 8(a),
M.R.Civ.P., a complaint must put a defendant on notice of the facts
the plaintiff intends to prove, and such facts must disclose the
elements necessary to make the claim. Kunst v. Pass, 1998 MT 71, ¶
35,
288 Mont. 264, ¶ 35,
957 P.2d 1, ¶ 35 (citation omitted). This
Court follows the general rule that complaints are to be construed
in a light most favorable to the plaintiff. However, this Court
has also recognized that a complaint must state something more than
facts which, at most, would breed only a suspicion that a plaintiff
has a right to relief. “Liberality does not go so far as to excuse
omission of that which is material and necessary in order to
entitle relief.” Mysse v. Martens (1996),
279 Mont. 253, 266,
926 P.2d 765, 773
(citing Treutel v. Jacobs (1989),
240 Mont. 405, 407,
784 P.2d 915, 916). The complaint
must give notice to the defendant of the facts the plaintiff intends to prove, “and the facts
must disclose the presence of all the elements necessary to make out the claim.” Mysse,
279
Mont. at 266,
926 P.2d at 773 (citations omitted).
¶21 Because neither Allen’s original nor his amended complaint set
forth facts regarding specific actions or inactions by Mahoney,
neither could Mahoney be put on notice of the facts Allen intends
to prove at trial to support his constitutional claims against
Mahoney under § 1983. Even under this Court’s wide latitude and
9
allowances given to pro se litigants, such latitude and flexibility
cannot be so wide as to prejudice the other party or to deprive the
party from whom relief is sought an opportunity to respond. See
First Bank (N.A.) - Billings v. Heidema (1986), 219 Mont. 373, 376,
711 P.2d 1384, 1386. As Allen’s complaint contained no factual
allegations against Mahoney, Mahoney could not have reasonably been
afforded an opportunity to respond. We conclude, therefore, that
the District Court did not err in dismissing Allen’s complaint
because it did not allege with specificity how the actions or
inactions of Mahoney denied Allen his constitutional rights while
acting under the color of state law.
¶22 On appeal, however, Allen asserts that the real crux of his
complaint was against correctional officers Thomas Gildebrandt and
Wayne Lubbes, rather than against Mahoney, and that his complaint
names both officers and sets forth sufficient factual allegations
regarding both. Although the caption of the complaint includes
neither Gildebrandt nor Lubbes, Allen argues that both officers
were properly pled defendants because, although not included in the
caption, they were included in the “Parties” section with nineteen
other defendants.
¶23 Whether or not Gildebrandt and Lubbes were properly pled,
Allen’s complaint likewise lacks sufficient factual allegations
against the officers to defeat a motion to dismiss. Reducing
Allen’s well pleaded facts to their essence and precluding all
legal conclusions, Allen seeks relief because, as an informant, he
was not allowed to remain in the high-side kitchen, away from
10
exposure to the sit-down demonstration, similar to the inmates in
the high-side gymnasium. He further seeks relief because his
disciplinary write-ups were not dismissed like the other kitchen
workers who did not actively participate in the demonstration, and
because he was not given his full extension of time to present
witness statements regarding his initial unwillingness to
participate.
¶24 According to Allen’s complaint, correctional officer
Gildebrandt locked the rear door of the kitchen and correctional
officer Lubbes ordered the kitchen workers to exit the front of the
kitchen, proceed across the demonstration, and return to the high-
side housing units. It is based upon these facts in the context of
Allen’s status as an informant that Allen asserts both an Eighth
and Fourteenth Amendment violation of his rights. Allen alleges
that Lubbes’ order to exit the front of the kitchen was malicious
and sadistic and that he therefore acted with deliberate
indifference, resulting in Allen becoming an unwilling participant
in the sit-down demonstration.
¶25 However, not every government action affecting the interests
or well-being of a prisoner is subject to Eighth Amendment
scrutiny. “After incarceration, only the ‘unnecessary and wanton
infliction of pain’ constitutes cruel and unusual punishment
forbidden by the Eighth Amendment.” Whitley v. Albert (1986), 475
U.S. 312, 319,
106 S.Ct. 1078, 1084,
89 L.Ed.2d 251, 260 (citations
omitted). To be cruel and unusual punishment, “conduct that does
not purport to be punishment at all must involve more than ordinary
11
lack of due care for the prisoner’s interests or safety.” Whitley,
475 U.S. at 319,
106 S.Ct. at 1078,
89 L.Ed.2d at 260.
¶26 Likewise, as this Court has previously stated, the type of
“deliberate indifference” which violates the Eighth Amendment Cruel
and Unusual Punishment Clause is “obduracy and wantonness, not
inadvertence or error in good faith . . . .” Jellison v. Mahoney,
1999 MT 217, ¶ 12,
295 Mont. 540, ¶ 12,
986 P.2d 1089, ¶ 12 (citing
Whitley,
475 U.S. at 319,
106 S.Ct. at 1084,
89 L.Ed.2d at 260-61).
“Prison officials are accorded ‘wide ranging deference’ in
adopting and executing policies to preserve internal order and
discipline among the inmates . . . .” Jellison, ¶ 12 (citing
Whitley,
475 U.S. at 321-22,
106 S.Ct. at 1085,
89 L.Ed.2d at 262).
That deference extends to a prison security measure taken
in response to an actual confrontation with riotous
inmates, just as it does to prophylactic or preventive
measures intended to reduce the incidence of these or any
other breaches of prison discipline. It does not
insulate from review actions taken in bad faith and for
no legitimate purpose, but it requires that neither judge
nor jury freely substitute their judgement for that of
officials who have made a considered choice.
Whitley, 475 U.S. at 322,
106 S.Ct. at 1084,
89 L.Ed.2d at 262.
¶27 Taking the alleged facts in Allen’s complaint as true, the
actions of correctional officers Gildebrandt and Lubbes cannot
support a finding of the type of “deliberate indifference” or
“unnecessary and wanton infliction of pain” which would violate the
Cruel and Unusual Punishment Clause of the Eighth Amendment,
especially in light of the deference extended to prison officials
attempting to restore order and security during a demonstration by
12
prison inmates and in light of the fact that Allen acknowledged the
contrary in his original complaint–that the officers’ motivation
for their actions were for the safety of the inmates as well as for
the overall security of the prison.
¶28 Similarly, regarding Allen’s Equal Protection claim, Allen
does not allege that the Montana State Prison had a policy of
treating high-side kitchen inmates differently than high-side
gymnasium inmates or that officers Gildebrandt and Lubbes somehow
practiced such a policy under state authority, but only that the
two groups of prisoners, however similarly situated, were treated
differently for overall safety and security during an inmate
demonstration. Given the wide deference given to prison officials
for both preventative and restorative security measures and the
prison’s lack of discriminatory policy between kitchen and
gymnasium inmates, Allen’s Equal Protection claim must also fail
upon the facts alleged.
¶29 Finally, Allen asserts a Due Process claim because the prison
hearing officers granted Allen a continuance until July 21, 1999,
for the purpose of collecting staff witnesses and statements, but
then held his hearing two days early without allowing him the
chance to collect the witnesses and statements. We first note that
this Court expresses a similar dissatisfaction as in Jellison,
where prison hearings officers failed to secure Jellison’s
requested witnesses according to the prison’s own internal rules.
As in Jellison, we do not countenance the apparent failure of
13
prison authorities to allow Allen his allotted extension of time
and opportunity to present exculpatory witnesses.
¶30 In the present matter, however, Allen discloses in his
pleading that the purpose for which he intended to present staff
witnesses and statements was to demonstrate that he did not want to
participate in the demonstration or leave the security of the high-
side kitchen. We find that even if Allen had procured such
statements prior to his reclassification hearing, such statements
would have had no bearing on the factual findings of the hearings
officer, namely, that Allen did participate in the sit-down
demonstration as an elected representative of his housing unit,
that he refused orders from prison officials to return to his unit,
that he made demands on the administration during the
demonstration, and that his actions were disruptive and interfered
with the operation of the Montana State Prison. The fact that
Allen may have originally wished to remain in the high-side kitchen
to avoid the demonstration does not change the fact that he did, in
fact, participate, and that his participation was the basis for the
hearing officer’s classification decision.
¶31 Based upon the foregoing, we conclude that the District Court
did not err in concluding that Allen’s complaint failed to allege
with specificity how the acts of any individual defendants denied
Allen his federally protected constitutional rights while acting
under color of state law. The decision of the District Court is
affirmed.
14
/S/ JIM RICE
We concur:
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
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