                                          DA 06-0270

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 197



ANTHEL L. BROWN,

              Plaintiff and Appellant,

         v.

JAMES MacDONALD,

              Defendant and Respondent.




APPEAL FROM:            District Court of the Ninth Judicial District,
                        In and For the County of Toole, Cause No. DV 05-092
                        Honorable Marc G. Buyske, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Anthel L. Brown, pro se, Deer Lodge, Montana

                For Respondent:

                        Trevor L. Uffelman, Browning, Kaleczyc, Berry & Hoven, P.C.,
                        Helena, Montana



                                                   Submitted on Briefs: December 6, 2006

                                                              Decided: August 14, 2007


Filed:

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

¶1     Appellant Anthel L. Brown (Brown) appeals from the order of the Ninth Judicial

District Court, Toole County, affirming the dismissal of his complaint in the Small

Claims Division of the Toole County Justice Court (Small Claims Court). We reverse

and remand.

¶2     We consider the following issue on appeal:

¶3     Did the District Court err in affirming the Small Claims Court’s dismissal of

Brown’s complaint for failure to exhaust administrative remedies?

                                      BACKGROUND

¶4     Brown is an inmate at Crossroads Correctional Center (Crossroads), a private

prison located in Shelby, Montana, which operates under a contract with the Department

of Corrections (DOC). Brown filed a complaint in the Small Claims Court, which

alleged that he had “hired a paralegal office (Constitutional Alternatives) to do legal

research and typing of brief for court” and that Crossroads Warden James MacDonald

“denied access to law office.” The complaint asserted that the Defendant was indebted to

Brown in the amount of $2,250 for “services lost.”

¶5     At the hearing in the Small Claims Court, Judge Jack Stokes placed Brown and

MacDonald under oath. Warden MacDonald offered an oral motion to dismiss the case

for failure to exhaust administrative remedies, offering that exhaustion was required by

this Court’s decision in Nordholm v. MacDonald, 2006 MT 280N, 335 Mont. 397, 149

P.3d 913 (table), that Crossroads followed “Policy 3.3.3 of the Montana Department of

Corrections,” that he had received a letter from Brown but that there was “a series of

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things” to be done under the grievance process, and that Brown had failed to follow the

remedies available to him prior to filing suit. Brown indicated that he had received a

response from MacDonald indicating “that I had met the procedures of the grievance

issue.” Based upon this sworn testimony and argument, the judge concluded that Brown

had failed to exhaust his administrative remedies and dismissed the complaint. Neither

the grievance policy nor the regulations on which it was based were offered.

¶6     Brown appealed to the District Court, which concluded that MacDonald had

asserted a defense of failure to exhaust remedies at his first opportunity in the small

claims process, that the policies of Crossroads “provide a means to address all forms of

complaints arising within the facility,” and that the Small Claims Court “did not commit

a mistake of law when it dismissed the complaint of Plaintiff for failure to exhaust

remedies.” Brown appeals.

                               STANDARD OF REVIEW

¶7     A district court’s inquiry on appeal from a small claims court is limited to

determining whether the small claims court correctly resolved questions of law. Section

25-35-803(2), MCA. “Although the district court review is limited to questions of law,

the question of whether the small claims court’s findings of fact were clearly erroneous is

such a question of law.” Spence v. Ortloff, 271 Mont. 533, 535, 898 P.2d 1232, 1233

(1995). This Court applies the same standard as the district court.

¶8     A three-step test is used to determine whether the findings are clearly erroneous.

First, a court’s findings are clearly erroneous if not supported by substantial credible

evidence. Second, a court’s findings are clearly erroneous if the court has

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misapprehended the effect of the evidence. Finally, a court’s findings are clearly

erroneous if a review of the record leaves the reviewing court with a definite and firm

conviction that a mistake has been committed. Spence, 271 Mont. at 535, 898 P.2d at

1233.

                                       DISCUSSION

¶9   Did the District Court err in affirming the Small Claims Court’s dismissal of
Brown’s complaint for failure to exhaust administrative remedies?

¶10     Brown argues, as he did to the District Court, that he was not required to exhaust

his administrative remedies prior to filing a complaint in the Small Claims Court. Brown

argues that neither the Montana Rules of Justice and City Court Civil Rules, the Montana

Uniform Rules of Justice and City Courts, nor the statutory provisions relating to

procedures in the Montana Justice and City Courts require a plaintiff to exhaust

administrative remedies in order to file an action in small claims court, and thus, this

Court should remand this case to that court for a trial on the merits of his complaint.

Brown also maintains that, even if there was an exhaustion requirement, Warden

MacDonald never advised Brown that he needed to exhaust Crossroads’ grievance

process before seeking judicial relief at the time Brown sent him the demand letter.

¶11     Warden MacDonald responds that the grievance policy requires inmates to exhaust

administrative remedies in all cases before seeking judicial relief, and Brown’s failure to

do so requires that we affirm the District Court. MacDonald also argues that, because the

Small Claims Court is a court of limited jurisdiction, it lacked jurisdiction to entertain

Brown’s complaint, which he argues was, on its face, a civil rights claim under 42 U.S.C.


                                              4
§ 1983, because Brown claimed he was denied access to legal services. Lastly, Warden

MacDonald insists that even if that court had jurisdiction, Brown cannot recover damages

for denial of access to Constitutional Alternatives because Brown, as an inmate, had no

right to receive assistance from non-lawyers outside the prison.

¶12    First addressing MacDonald’s contention that this is a civil rights claim under 42

U.S.C. § 1983, we note that “[s]ection 1983 ‘is not itself a source of substantive rights,

but merely provides a method for vindicating federal rights elsewhere conferred.’” Jones

v. Montana University System, 2007 MT 82, ¶ 32, 337 Mont. 1, ¶ 32, 155 P.3d 1247, ¶ 32

(quoting Albright v. Oliver, 510 U.S. 266, 271, 114 S. Ct. 807, 811 (1994); Graham v.

Connor, 490 U.S. 386, 393-94, 109 S. Ct. 1865, 1870 (1989)). To make out a cause of

action under § 1983, a plaintiff must allege that the defendant is acting under the color of

state law and has deprived plaintiff of his rights as secured by the federal constitution and

federal statutes. WMX Technologies, Inc. v. Miller, 80 F.3d 1315, 1318 (9th Cir. 1996)

(citing Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986), cert. denied, 479

U.S. 1054, 107 S. Ct. 928 (1987)). Therefore, the first step in evaluating whether a

§ 1983 claim exists is to identify the specific federal constitutional or statutory right

allegedly infringed. Graham, 490 U.S. at 394, 109 S. Ct. at 1870.

¶13    Brown’s complaint did not assert that a federal constitutional or statutory right had

been infringed, stating only:

       Comes now, Anthel LaVan Brown the Plaintiff, being first duly sworn,
       upon oath, and complains and alleges that Defendant is indebted to Plaintiff
       in the sum of $2,250.00 for Services Lost. Hired a paralegal office
       (Constitutional Alternatives) to do legal research and typing of Brief for
       court. MacDonald has denied access to law office . . . .

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The complaint merely sought reimbursement for services lost from Constitutional

Alternatives when MacDonald allegedly denied access to that office. A § 1983 claim that

would have exceeded the jurisdiction of the Small Claims Court is not made out by the

complaint.

¶14    MacDonald’s related argument—that because Constitutional Alternatives is not

operated by or does not provide services by a lawyer, Brown’s constitutional right to

access to the courts and counsel was not denied—is not supported by the record. The

complaint itself is contradictory on this point, describing Constitutional Alternatives as

both a “paralegal office” and a “law office.” The Small Claims Court took no evidence

regarding Constitutional Alternatives, its principals, or the services it provides. Nor did

MacDonald introduce evidence of correctional policies which would restrict an inmate’s

communication to those outside the prison, whether legal advisors or lay persons. While

such policies may provide a defense to MacDonald, the policies were not raised as a

defense in the Small Claims Court and evidence was not introduced to establish the

policies. Thus, without a factual foundation, the issue was not preserved and we cannot

resolve it.

¶15    Lastly, the District Court affirmed the Small Claims Court by concluding that

“[t]he policies of the Crossroads Correctional Center provide a means to address all

forms of complaints arising within the facility. Plaintiff did not follow this procedure.”

The testimony from MacDonald was that this Court required exhaustion of administrative

remedies in Nordholm, that Crossroads had adopted a policy requiring exhaustion of

administrative remedies pursuant to Policy 3.3.3 of the Montana Department of

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Corrections, and that Brown had failed to follow that process, which MacDonald

referenced as a “multi-step” policy. Brown disputed that evidence, indicating that he had

submitted a letter and had received a response from MacDonald advising him that he had

followed the procedure.

¶16    However, MacDonald did not offer the grievance policy for introduction into

evidence, nor the DOC policy upon which it was allegedly based. We would note that

MacDonald’s citation to Nordholm was unavailing, as that decision was an “unpublished”

memorandum decision which, pursuant to Section I, Paragraph 3(d)(v), Montana

Supreme Court 1996 Internal Operating Rules (2003), may not be cited as precedent.

Likewise, the letter from MacDonald which Brown referenced was not introduced.

Without evidence of the applicable policies, we are unable to determine the nature and

requirements of the grievance procedure and whether it was complied with. The record

which remains is the parties’ conflicting statements under oath regarding whether the

procedure was satisfied. On this record, we cannot conclude that there was substantial

evidence to support the Small Claims Court’s implicit factual determination that Brown

failed to satisfy the procedure and that, in turn, such failure warranted dismissal as a

matter of law. As a practical matter and in hindsight, it may have been more productive

to have conducted the hearing so that a better record with regard to these issues was

created.

¶17    We conclude that the District Court erred in affirming the Small Claims Court’s

dismissal of Brown’s complaint for failure to exhaust his administrative remedies. We



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reverse and remand to the Small Claims Court for further proceedings consistent

herewith.

                                                      /S/ JIM RICE


We concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS




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