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                                                                No. 99-466

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 93N

                                                 DANIEL M. BARNHART, SR.,

                                                       Plaintiff and Appellant,

                                                                      v.

                                                          RICK DAY, et al.,

                                                   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:

                                  Daniel M. Barnhart, Sr., pro se, Deer Lodge, Montana

                                                           For Respondents:

                            Matthew S. Robertson, Special Attorney General, Department

                                                 of Corrections, Helena, Montana



                                           Submitted on Briefs: December 16, 1999

                                                       Decided: April 11, 2000

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                                                                    Filed:

                                    __________________________________________

                                                                     Clerk



Justice Karla M. Gray 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 Daniel M. Barnhart, Sr. (Barnhart) appeals from the order entered by the Third Judicial District
Court, Powell County, granting the motion to dismiss filed by the Defendants, various employees and
officials of the Montana Department of Corrections. We affirm.

¶3 The issue on appeal is whether the District Court erred in dismissing Barnhart's complaint for failure
to state a claim upon which relief can be granted.

                                                            BACKGROUND

¶4 Barnhart filed a complaint in the District Court pursuant to 42 U.S.C. § 1983 alleging that the
Defendants violated various of his rights under the United States and Montana Constitutions by
depriving him of his legal papers and books. The following facts are taken from the allegations in his
complaint.

¶5 In September of 1997, Barnhart was returned to the Montana State Prison (MSP) from Spur, Texas,
where he had been serving his sentence in the Dickens County Correctional Facility. On September 22,
1997, Barnhart was transferred from the MSP to the Cascade County Jail in Great Falls, Montana. On
that date, an MSP employee received and logged in a variety of Barnhart's personal property, including
his legal papers and books. Barnhart returned from Great Falls to the MSP on November 19, 1997. Over
the next eleven months, Barnhart attempted, through both informal and formal channels, to recover his
legal papers and books, but was told that the MSP had no record of receiving any such items.
Eventually, however, the papers and books were located and returned to Barnhart on October 20, 1998.

¶6 Barnhart's complaint alleged that the actions of various MSP employees and officials in failing to
secure his legal papers and books and ensure their prompt return to him violated his civil rights. He

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requested relief in the form of a declaratory judgment and monetary damages. The Defendants moved to
dismiss the complaint for failure to state a claim upon which relief could be granted because it contained
no allegations of actual injury resulting from the alleged deprivation of Barnhart's papers and books as
required by Lewis v. Casey (1996), 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606. The District Court
agreed that Barnhart's complaint failed to allege actual injury as required by Lewis. Rather than
dismissing the complaint, however, the court ordered Barnhart to amend his complaint to conform to the
requirements of Lewis

¶7 Barnhart subsequently filed an amended complaint, as well as a motion for appointment of counsel to
assist him in pursuing his claim. The Defendants then moved to dismiss for failure to comply with the
District Court's order, asserting that the amended complaint also failed to allege an actual injury
resulting from the alleged deprivation of Barnhart's legal materials. The District Court granted the
motion to dismiss and Barnhart appeals.

                                                     STANDARD OF REVIEW

¶8 A district court's ruling on a motion to dismiss a complaint for failure to state a claim upon which
relief can be granted is a conclusion of law which we review to determine whether the court's application
of the law is correct. Missoula YWCA v. Bard, 1999 MT 177, ¶ 3, 983 P.2d 933, ¶ 3, 56 St.Rep. 692, ¶ 3.

                                                              DISCUSSION

¶9 Did the District Court err in dismissing Barnhart's complaint for failure to state a claim upon which
relief can be granted?

¶10 The Defendants contend that the gravamen of Barnhart's complaint is a claim that the alleged
deprivation of his legal papers and books violated his constitutional right to access to the courts.
Barnhart does not dispute this contention. In that regard, the United States Supreme Court has held that
prison inmates have a constitutional right to access to the courts and that state prison officials may not
actively interfere with that right. See, e.g., Bounds v. Smith (1977), 430 U.S. 817, 821-22, 97 S.Ct.
1491, 1494-95, 52 L.Ed.2d 72, 78-79. The Supreme Court also has held that an inmate alleging a
violation of his or her right to access to the courts must show that the alleged actions of the prisons
officials at issue resulted in an actual injury by hindering his or her efforts to pursue a legal claim.Lewis,
518 U.S. at 349-51, 116 S.Ct. at 2179-80, 135 L.Ed.2d at 616-18.

¶11Barnhart first argues that Lewis is factually distinguishable and, therefore, inapplicable here because
it addressed circumstances where prison officials failed to provide inmates with adequate library
facilities and legal assistance, whereas he has alleged that the MSP personnel deprived him of his
personal legal papers and books. This is a distinction without a difference.

¶12 The constitutional right which the Supreme Court has recognized is that of an inmate's access to the
courts. Lewis, 518 U.S. at 350, 116 S.Ct. at 2179, 135 L.Ed.2d at 617 (citing Bounds, 430 U.S. at 821,


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97 S.Ct. at 1494-95, 52 L.Ed.2d at 78-79). This constitutional right is protected by prohibiting state
prison officials from actively interfering with inmates' attempts to pursue legal claims, whatever that
interference may be. Lewis, 518 U.S. at 350, 116 S.Ct. at 2179, 135 L.Ed.2d at 617 (citations omitted).
Thus, the Lewis requirement that an inmate show an actual injury resulting from the alleged official
interference applies to all claims for the violation of an inmate's right to access to the courts and, to that
extent, the manner in which interference by prison officials manifests itself is not a distinguishing factor.

¶13 Moreover, the requirement that an inmate alleging a violation of the right to access to the courts
show an actual injury derives from the doctrine of standing. Lewis, 518 U.S. at 349, 116 S.Ct. at 2179,
135 L.Ed.2d at 616. Under the doctrine of standing, an allegation of a personal injury to the plaintiff is a
prerequisite to an adjudication on the merits of the case. Bowen v. McDonald (1996), 276 Mont. 193,
201-02, 915 P.2d 201, 206-07 (citation omitted). Consequently, a threshold requirement in every case,
especially those where a constitutional violation is alleged to have occurred, is that the plaintiff establish
standing to sue by alleging such a personal injury. Bowen, 276 Mont. at 201, 915 P.2d at 206 (citation
omitted). As a result, the Lewis requirement that an inmate allege a personal injury, being derived from
the concept of standing to sue, is a threshold requirement in any case based on an alleged violation of an
inmate's constitutional right to access to the courts. We conclude that the District Court did not err in
determining that Lewis applies here and requires Barnhart to allege a personal injury resulting from the
alleged deprivation of his legal papers and books.

¶14 Next, Barnhart argues that his amended complaint alleged a personal injury sufficient to satisfy the
Lewis requirements by alleging that the Defendants' actions "prevent[ed] plaintiff from litigating in his
ongoing litigation or future litigation during the time that plaintiff was deprived of said legal
material . . . ." We disagree.

¶15 An inmate bringing an action based on a violation of his or her right to access to the courts must
show that the prison officials' interference "hindered his efforts to pursue a legal claim." Lewis, 518 U.S.
at 351, 116 S.Ct. at 2180, 135 L.Ed.2d at 618. The Supreme Court stated that examples of such
hindrance included showing that an inmate's complaint was dismissed or that the inmate was precluded
for some reason from even filing a complaint. Lewis, 518 U.S. at 351, 116 S.Ct. at 2180, 135 L.Ed.2d at
618. In other words, Lewis requires an allegation that the inmate was precluded from adequately
pursuing litigation in some specific manner.

¶16 Here, Barnhart's amended complaint alleged only that the deprivation of his legal papers and books
prevented him from pursuing current and initiating new litigation. The complaint alleged no specific
injury--such as the inability to timely respond to a motion or the dismissal of a complaint he had filed--
which resulted from the Defendants' alleged actions. We conclude that Barnhart's amended complaint
fails to allege a specific injury as required by Lewis and, consequently, fails to state a claim for violation
of his constitutional right to access to the courts.

¶17 Finally, Barnhart asserts that the District Court erred in ruling on the Defendants' motion to dismiss
prior to ruling on his motion for appointment of counsel. While Barnhart cites various federal cases


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describing circumstances under which it may be appropriate to appoint counsel for an indigent inmate,
he cites no authority under which a district court is required to rule on a motion for appointment of
counsel prior to ruling on a motion to dismiss the complaint for failure to state a claim. Rule 23(a)(4), M.
R.App.P., requires the appellant to support his argument with citation to authority and we regularly
decline to address the merits of arguments not supported with legal authority. See In re Marriage of
Pfennings, 1999 MT 250, ¶ 32, 989 P.2d 327, ¶ 32, 56 St.Rep. 981, ¶ 32 (citations omitted). As a result,
we decline to address this argument further.

¶18 We hold that the District Court did not err in dismissing Barnhart's complaint for failure to state a
claim upon which relief can be granted.

¶19 Affirmed.

                                                        /S/ KARLA M. GRAY

                                                                We concur:

                                                          /S/ J. A. TURNAGE

                                                       /S/ JAMES C. NELSON

                                                   /S/ TERRY N. TRIEWEILER

                                                           /S/ JIM REGNIER




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