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                                                                No. 98-633



                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             1999 MT 232N




RUDY STANKO,

Plaintiff and Appellant,



v.



JO ACTON, individually and in her capacity as Warden of

Montana Women's Prison; TOM DONAHUE, individually

and in his capacity as Associate Warden of Montana

Women's Prison; DIANA LEIBINGER-KOCH, individually

and in her capacity as Legal Counsel for the State of Montana,

by and through the Department of Corrections,



Defendants and Respondents.




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APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

Honorable Diane G. Barz, Judge Presiding.




COUNSEL OF RECORD:



For Appellant:



Rudy Stanko, Pro Se, Billings, Montana



For Respondents:



Matthew S. Anderson-Robertson, Special Assistant Attorney General,

Helena, Montana



Submitted on Briefs: August 12, 1999

Decided: September 28, 1999



Filed:




__________________________________________

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Clerk




Chief Justice J. A. Turnage 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.   ¶ Rudy Stanko appeals from the order of the Thirteenth Judicial District Court,
         Yellowstone County, dismissing his complaint against the defendants and
         respondents for alleged infringement of his right to practice his religion. We affirm.
    3.   ¶The dispositive issues are:
    4.   ¶1. Whether the Clerk of Court properly refused to enter a default judgment.
    5.   ¶2. Whether the District Court erred in dismissing the complaint for failure to state a
         claim upon which relief could be granted.
    6.   ¶3. Whether the court erred in dismissing the claim for injunctive relief without a
         hearing.
    7.   ¶4. Whether the court erred in dismissing the pleading for a declaratory judgment
         without addressing the petition pursuant to Rule 57, M.R.Civ.P., and Title 28,
         Chapter 8, MCA.
    8.   ¶In June of 1998, Stanko filed a complaint in District Court asserting that he had
         been ordained a religious minister in the Church of the Creator in 1989. The
         complaint further stated that the defendants had terminated Stanko's visiting
         privileges with prisoners at the Montana Women's Prison in Billings, Montana. The
         reasons, as given in an October 1997 letter, were Stanko's criminal record, the belief
         that he would have a detrimental effect on the orderly operation of the institution,
         and the racially hateful nature of materials he had sent to inmates.
    9.   ¶Stanko contended that this violates his right to practice his religion as guaranteed
         under both the First Amendment to the United States Constitution and Article II,
         Section 5 of the Montana Constitution. He further alleged that the defendants
         engaged in a conspiracy to deprive him of his right to practice religion and that they
         violated his right to equal protection and his double jeopardy right (apparently by
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     punishing him a second time for a felony of which he had been convicted). In his
     complaint, Stanko sought declaratory judgment and injunctive relief. He further
     requested "monetary, punitive, and exemplary relief."
 10. ¶On July 30, 1998, the defendants moved to dismiss for lack of jurisdiction pursuant
     to Rule 12(b)(1), M.R.Civ.P.; for insufficient service of process; and for failure to
     state a claim upon which relief can be granted. The District Court granted that
     motion. Stanko appeals.

                                                                  Issue 1

   1. ¶Did the Clerk of Court properly refuse to enter a default judgment?
   2. ¶On July 24, 1998, Stanko filed an affidavit in support of his damages in this action.
      He states that he demanded that the Yellowstone County Clerk of Court enter a
      default judgment against defendants Jo Acton and Tom Donahue, who were both
      served with process on June 30, 1998. Stanko further states that the Clerk of Court
      refused his demand.
   3. ¶A clerk of court may enter default judgment only after the defendant's default has
      been entered pursuant to Rule 55(a), M.R.Civ.P. There is no indication in the record
      that Stanko moved for the entry of default of the above defendants, nor that he
      supported such a motion by affidavit or otherwise, as required under Rule 55(a), M.
      R.Civ.P.
   4. ¶Further, the clerk may enter a default judgment only when the claim is for a sum
      certain or which can be made certain by computation. Rule 55(b)(1), M.R.Civ.P.
      Stanko's affidavit of damages stated that the damages he sought included
      unspecified amounts for "mental pain, distress, and anguish in the past and present."
      Such damages are not damages for a sum certain or which can be made certain by
      computation. See Hoyt v. Ecklund (1991), 249 Mont. 307, 310-311, 815 P.2d 1140,
      1142. Stanko recognized as much in arguing that he was entitled to a jury trial.
   5. ¶We conclude that the Clerk did not have authority to enter default judgment.

                                                                  Issue 2

   1. ¶ Did the District Court err in dismissing the complaint for failure to state a claim
      upon which relief could be granted?
   2. ¶The crux of Stanko's complaint is that his right to religious freedom was violated
      when he was prohibited from visiting inmates at the Women's Prison in Billings. He
      further contends that he has been denied equal protection of the law in that other

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        religious leaders have permission to visit inmates of the Women's Prison.
   3.   ¶Stanko has cited no authority for the proposition that his right to religious freedom
        gives him a right to proselytize wherever he pleases. Nor has he cited any authority
        that a member of the public has a right to enter a prison. "[P]risons are institutions
        where public access is generally limited." Saxbe v. Washington Post Co. (1974), 417
        U.S. 843, 849, 94 S.Ct. 2811, 2814, 41 L.Ed.2d 514, 519, quoting Washington Post
        Co. v. Kleindienst (D.C. Cir. 1974), 494 F.2d 994, 999.
   4.   ¶Although Stanko contends that religious leaders other than himself are allowed to
        visit the Women's Prison, "there is no principle in the law granting to clerics an
        absolute right to enter a prison." O'Malley v. Brierley (3rd Cir. 1973), 477 F.2d 785,
        793. Stanko concedes in his complaint that he is also a convicted felon. In making
        his equal protection argument, he has not asserted that other religious leaders who
        are convicted felons are allowed to visit the Women's Prison. Stanko has failed to
        plead that he belongs to a suspect class or that he is similarly situated to other
        ministers who are allowed to visit the Montana Women's Prison.
   5.   ¶Additionally, we note that the religion in which Stanko has apparently been
        ordained a minister, the Church of the Creator, has been denied tax exempt status as
        a religious organization. See Church of the Creator, Inc. v. Commissioner of
        Internal Revenue Service (11th Cir. 1983), 707 F.2d 491. Nor is the Church of the
        Creator listed on the Internal Revenue Service's current published list of tax-exempt
        organizations.
   6.   ¶The standard for dismissal under Rule 12, M.R.Civ.P., is whether, considering the
        facts in a light most favorable to the nonmoving party, any set of facts could be
        proven which would entitle that party to relief. Hilands Golf Club v. Ashmore
        (1996), 277 Mont. 324, 328, 922 P.2d 469, 471-72. Stanko has pled no basis under
        which he has a religious freedom right to enter the Montana Women's Prison
        without permission, nor have his pleadings established a basis under which
        prohibiting his entry to the prison may violate equal protection. We conclude that
        the court did not err in dismissing Stanko's complaint.

                                                                  Issue 3

   1. ¶Did the court err in dismissing the claim for injunctive relief without a hearing?
   2. ¶Although Stanko listed this as an issue, he made no argument on it in his initial
        brief. In his reply brief, Stanko listed a paragraph heading relating to this issue, but
        his discussion thereunder relates generally to the right of religious freedom, not to
        injunctive relief. We have discussed Stanko's claim concerning his right to religious

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       freedom under Issue 2 above.
    3. ¶Because Stanko has failed to develop an argument on the issue of his right to a
       hearing on his claim for injunctive relief, we decline to address that issue further.
       See Johansen v. State, Dept. of Natural Resources, 1998 MT 51, ¶ 24, 288 Mont.
       39, ¶ 24, 955 P.2d 653, ¶ 24 (this Court is not obligated to conduct legal research on
       a party's behalf, guess at the party's precise position, or develop a legal analysis
       which may lend support to that position).

                                                                   Issue 4

    1. ¶Did the court err in dismissing the pleading for a declaratory judgment without
       addressing the petition pursuant to Rule 57, M.R.Civ.P., and Title 27, Chapter 8,
       MCA?
    2. ¶Stanko correctly points out that a petition for declaratory judgment may demand
       the right to trial by jury, pursuant to Rule 57, M.R.Civ.P., and § 27-8-302, MCA. He
       asserts that dismissal of this action violates his due process rights; Rule 57, M.R.Civ.
       P.; and Title 27, Chapter 8, MCA, concerning declaratory judgments.
    3. ¶The right to demand a jury trial does not preclude the dismissal of an action in
       which the plaintiff has failed to state a claim as a matter of law. See Federal Land
       Bank of Spokane v. Snider (1991), 247 Mont. 508, 513-14, 808 P.2d 475, 478-79.
       Because the District Court correctly concluded that Stanko's complaint failed to
       state a claim, he retains no right to a jury trial.
    4. ¶Given the resolution of the above issues, it is unnecessary that we address whether
       the dismissal of Stanko's complaint was also justified because of his failure to
       exhaust administrative remedies. We affirm the decision of the District Court.

/S/ J. A. TURNAGE

We concur:



/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER


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/S/ W. WILLIAM LEAPHART




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