                                                                                          August 26 2014


                                           DA 14-0222

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 232N



JOHN O. MILLER,

              Plaintiff and Appellant,

         v.

LEROY KIRKEGARD, BILLIE
REICH and KRISTY COBBAN,

              Defendants and Appellees.



APPEAL FROM:            District Court of the Third Judicial District,
                        In and For the County of Powell, Cause No. DV 14-10
                        Honorable Ray Dayton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        John O. Miller, self-represented, Deer Lodge, Montana

                For Appellees:

                        Ira Eakin, McKenzie McCarthy, Special Assistant Attorneys General,
                        Montana Department of Corrections, Helena, Montana



                                                    Submitted on Briefs: August 6, 2014
                                                               Decided: August 26, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section 1, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, 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 O. Miller appeals from an order of the Third Judicial District Court, Powell

County, granting Leroy Kirkegard, Billie Reich, and Kristy Cobban’s (Defendants’) motion

to dismiss Miller’s complaint. We affirm.

¶3     Miller, who is incarcerated at Montana State Prison (MSP), filed a complaint against

Defendants on January 28, 2014, alleging breach of legal obligations under § 28-1-203,

MCA, and breach of due process under Article II, § 17 of the Montana Constitution.

Miller’s claims stem from Defendants’ alleged refusal to process Miller’s internal prison

grievances. The initial complaint that has generated this dispute involved the late delivery of

Miller’s newspaper. Later complaints involved an application to add a family member to

Miller’s approved visiting list.

¶4     Defendants are employees of the Montana Department of Corrections. Kirkegard is

the warden at MSP; Cobban and Reich are prison grievance officers. Defendants filed a

motion to dismiss on March 19, 2014, arguing that Miller’s claims were not justiciable, and

that the District Court lacked subject matter jurisdiction because Miller failed to first present

his claims to the Department of Administration. On March 28, 2014, Miller filed an

amended complaint, adding claims for civil conspiracy and for discrimination and breach of

equal protection under Article II, § 4 of the Montana Constitution. Defendants renewed their


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motion to dismiss on April 8, 2014, and the District Court granted the motion on April 10,

2014. The District Court concluded that it did not have subject matter jurisdiction over

Miller’s claims because he had not presented his claims to the Department of Administration.

The court did not address the issue of whether Miller’s claims were justiciable.

¶5     Miller timely appealed. Miller argues that the District Court erred in concluding that

his claims required administrative review under § 2-9-301(1), MCA, because he sued the

Defendants in their “individual capacity,” his claims were not “against a governmental

entity,” and his claims were not for “personal injury.” Defendants counter that Miller should

have filed a tort claim against the State with the Department of Administration because he

seeks money damages for alleged torts committed under state law by state employees acting

within the course and scope of their employment. Defendants also argue that Miller failed to

state a claim upon which relief may be granted because his claims are non-justiciable, he has

not articulated a violation of any constitutional right, and he has not sustained any damages.

¶6     We begin by addressing the issue of subject matter jurisdiction. As stated above, the

District Court “concluded that Miller’s failure to present his claims to the Department of

Administration deprives [the court] of subject matter jurisdiction.”           Subject matter

jurisdiction refers to a court’s fundamental authority to hear and adjudicate a particular class

of cases or proceedings. Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 57, 345 Mont. 12, 192

P.3d 186. M. R. Civ. P. 12(h)(3) requires a court to dismiss an action at any time if it

determines that it lacks subject matter jurisdiction. Section 2-9-301(1), MCA, provides in

pertinent part: “All claims against the state arising under the provisions of . . . this chapter

must be presented in writing to the department of administration.” “A complaint based on a


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claim subject to [these] provisions . . . may not be filed in district court unless the claimant

has first presented the claim to the department of administration and the department has

finally denied the claim.” Section 2-9-301(2), MCA.

¶7     Though Miller argues that this statutory requirement is inapplicable because his

claims are against Defendants in their individual capacities and are not “against a

governmental entity” or for “personal injury,” this is clearly not the case. In his amended

complaint, Miller seeks nominal and compensatory damages for actions taken by Defendants

in the scope and course of their employment. Miller’s claims fall under the statutory

umbrella of Title 2, Chapter 9, MCA. See § 2-9-101(1), (3), MCA (Claim is defined as a

“claim against a governmental entity, for money damages only, that any person is legally

entitled to recover as damages because of personal injury or property damage caused by a

negligent or wrongful act or omission committed by any employee of the governmental

entity while acting within the scope of employment . . . .” Governmental entity is defined as

“the state and political subdivisions.”). Nothing in the record indicates that Miller first

presented his claims to the Department of Administration and that the Department denied the

claims. Thus, the District Court did not err in determining that it did not have subject matter

jurisdiction over Miller’s claims.

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

internal Operating Rules, which provides for noncitable memorandum opinions. The issues

in this case are legal and are controlled by settled Montana law.

¶9     For the foregoing reasons, we affirm.




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                              /S/ PATRICIA COTTER

We Concur:

/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ JIM RICE




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