Fairservice v


                                               Fairservice v. Johnson
                                               Decided Feb. 18, 1998
                                        (NOT TO BE CITED AS AUTHORITY)

                                                               No. 97-469

                       IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             1998 MT 36N

                                                JOHN G. FAIRSERVICE, SR.,

                                                      Plaintiff and Appellant,

                                                                      v.

                          DARVIN G. JOHNSON, CHERYL ALLISON JOHNSON,
                          MATT BUCK, CUBBY BUCK, DIANE CARTER, JOHN
                          THOMAS, MARY JO FOX, PATRICK T. FLEMMING OF
                          THE MONTANA BOARD OF PARDONS AND PAROLE,
                              AND NINE OTHER JOHN AND JANE DOES,

                                                 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:

                                      John G. Fairservice, Sr., Pro Se, Deer Lodge,
                                                        Montana

                                                          For Respondents:

                                    Robert J. Phillips; Phillips & Bohyer, Missoula,

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                                      Montana (Attorney for Respondent Darvin G.

                                 Johnson); Diana P. Leibinger-Koch, David L. Ohler,

                                       Department of Corrections, Helena, Montana

                                   (Attorneys for Respondents Patrick T. Flemming,

                               John Thomas, and Mary Jo Fox of the Montana Board

                                                       of Pardons and Parole)

                                          Submitted on Briefs: December 11, 1997

                                                  Decided:         February 18, 1998

¶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 John G. Fairservice, Sr. (Fairservice), appearing pro se,
appeals from the orders entered by the Third Judicial District
Court, Powell County, which granted the defendants' motions to
dismiss his complaint. We affirm.


¶3 Fairservice has been incarcerated at the Montana State
Prison since 1991. In 1994, he submitted a parole plan to the
Montana Board of Pardons and Parole stating that he planned to
reside at the Montana Veteran's Home in Columbia Falls, Montana.
In June of 1995, he had a parole hearing before the Board or
Pardons and Parole, the individual members of which were John
Thomas, Mary Jo Fox, and Patrick T. Fleming. At that hearing,
Darvin G. Johnson and others made statements adverse to

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Fairservice. Fairservice was granted parole in accordance with
the plan he had submitted; that is, he was to be paroled to the
Montana Veteran's Home and, indeed, generally restricted to that
location. He specifically was restricted from entering Cascade
County. Other routine terms and conditions also were imposed


¶4 On September 30, 1996, Fairservice filed a civil complaint
in the District Court naming Darvin G. Johnson and the others
who gave statements against him at the parole hearing
(collectively, Johnson) and the Board of Pardons and Parole and
its members (collectively, the Board) as defendants. The thrust
of the complaint was that Johnson's testimony at the parole
hearing was libelous, slanderous, defamatory and humiliating, and
that the Board conspired with Johnson to deprive Fairservice of a
parole he could afford by paroling him to the Veteran's Home.
The complaint requested injunctive relief and money damages.


¶5 Johnson moved to dismiss Fairservice's complaint under Rule
12(b)(6), M.R.Civ.P., for failure to state a claim on which
relief could be granted. The motion was briefed by the parties
and the District Court granted Johnson's motion on the basis that
Johnson's statements at the parole hearing were privileged under
Sec. 27-1-804, MCA. The Board also moved to dismiss for failure
to state a claim. Fairservice did not respond to that motion
and, after the passage of approximately eight weeks, the District
Court granted the Board's motion on the basis of Uniform District
Court Rule 2(b), which provides that a motion to which no
response is filed is deemed well taken. Fairservice appeals from
the District Court's grant of both motions to dismiss.


¶6 With regard to the basis on which the District Court
dismissed Fairservice's complaint against Johnson, it is clear
that Sec. 27-1-804(2), MCA, renders privileged a publication made
"in any legislative or judicial proceeding or in any other
official proceeding authorized by law[.]" Here, Johnson's
statements were made at a parole hearing and, without regard to
whether that hearing was technically a "judicial" proceeding or

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an "other official proceeding authorized by law," the statements
clearly were privileged under the statute. Fairservice advances
no authority establishing error in this regard and, as a result,
we conclude that the District Court did not err in dismissing his
complaint against Johnson.


¶7 With regard to the basis on which the District Court
dismissed Fairservice's complaint against the Board, it is clear
that Uniform District Court Rule 2(b) provides that a party's
failure to timely respond to a motion "shall be deemed an
admission that the motion is well taken" and may subject the
motion to summary ruling. Fairservice does not contend otherwise
and concedes that he did not timely respond. He argues, however,
that he had prepared a response to that motion to dismiss, but
did not file it because he believed that the court's order
dismissing his complaint as to Johnson also granted the motion to
dismiss filed by the Board.


¶8 This argument is unpersuasive for several reasons. First,
Johnson's motion was to dismiss or, in the alternative, to strike
and change venue. The separate motion to dismiss filed by the
Board was captioned, simply, "Motion to Dismiss." The District
Court specifically referred to the alternatively stated motion in
its opinion and order granting that motion. Moreover, the
District Court's opinion and order granting Johnson's motion to
dismiss clearly related only to the statements made by Johnson at
the parole hearing and their privileged nature. It did not
address or reference in any way the complaint against the Board
or the substantive arguments raised by the Board in its motion to
dismiss.


¶9 Fairservice also suggests that the District Court should
have notified him of his obligation to respond to the Board's
motion, given his pro se status. No authority exists for placing
such a duty on a district court, however. For these reasons, we
conclude that Fairservice has not established any error with
regard to the District Court's dismissal of his complaint against

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the Board.


¶10 As is not uncommon in pro se appeals, Fairservice raises a
number of issues not related to, and entirely outside the scope
of, the District Court's orders on the motions to dismiss. We do
not address matters not properly before us.


¶11 The District Court's conclusions are correct and the court
did not abuse its discretion in dismissing Fairservice's
complaint.


¶12 Affirmed.

                      /S/ J. A. TURNAGE

                      /S/ KARLA M. GRAY

                      /S/ JAMES C. NELSON

                      /S/ WILLIAM E. HUNT, SR.

                      /S/ W. WILLIAM LEAPHART




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