                                     No. 8 8 - 3 6 1
                     IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         1988




RANDALL M. RUDOLPH ,
                      Plaintiff and Appellant,
         -vs-

ANN DUSSAULT, et al.,
                      Defendant and Respondent.



APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and for the County of Missoula,
                      The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                      Randall M. Rudolph, pro se, Warm Springs, Montana
         For Respondent :
                      Robert L. Deschamps, 111, County Attorney, Missoula,
                      Montana; Michael Sehestedt, Deputy County Attorney



                                         Submitted on Briefs:   Sept. 23, 1 9 8 8
                                            Decided:   November 1, 1988

Filed:
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                                         Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

     Mr. Rudolph appeals from the dismissal with prejudice of
his pro se complaint by the District Court for the Fourth
Judicial District, Missoula County. We affirm as modified in
this opinion.
     The issue is vrhether the District Court erred in dis-
missing Mr. Rudolph's complaint on its own motion.
     Mr. Rudolph was arrested, tried, and convicted on charg-
es of robbery. While he 97as av~aiting sentencing following
that trial, he commenced this civil action. We are unable to
determine with certainty the specific allegations of the
complaint because the original district court file has been
lost.   However, from the materials we have before us it
appears that the complaint alleged that the defendants,
listed as "city cornrnissioners'~, the "unknown" chief of po-
lice, and 2 "unknown" city police officers, allowed Mr.
Rudolph's constitutional rights to be violated during and
immediately following his arrest. Mr. Rudolph claimed insuf-
ficient grounds for arrest, an unconstitutional line-up, and
inadequate investigation of the crime with which he was
charged. Although Mr. Rudolph filed his complaint with the
District Court, there is no indication that he ever served or
gave any notice of the complaint to the persons named as
defendants.   The court dismissed the complaint on its own
motion four months after it was filed.

     Did the District Court err in dismissing Mr. Rudolph's
complaint on its own motion?
     In dismissing Mr. Rudolph's    complaint, the   District
Court stated that on its face, the complaint was "frivolous
and fails to state any cognizable cause of action."     The
District Court did not explain its reasoning further.    The
record concerning Mr. Rudolph's criminal conviction is now
before this Court on appeal and we have taken notice of that
record.
     The individuals listed by name as defendants in this
suit were, at the time of this action, county commissioners
of Missoula County. The complaint does not allege any con-
nection between county commissioners and the action of city
police which is claimed to have deprived Mr. Rudolph of his
rights. We conclude that as to Ann Dussault, Barbara Evans,
and Janet Stevens, dismissal with prejudice was proper.
     As to the remaining defendants, we recognize that Mr.
Rudolph is appearing pro se and will not be held to the
standards of pleading expected of attorneys. Though it does
not expressly name the statute, Mr. Rudolph's complaint,
broadly viewed, states a cause of action under 42 U.S.C.
S 1983 for violation of civil rights. In such a case, col-
lateral estoppel applies as to previous criminal proceedings.
Allen v. McCurry (1980), 449 U.S. 90, 66 L.Ed.2d 308, 101
S.Ct. 411. Collateral estoppel is the doctrine that issues
previously argued and ruled upon cannot be relitigated.
Aetna Life and Cas. Ins. Co. v. Johnson (1984), 207 Mont.
409, 414-16, 673 P.2d 1277, 1280-81. Mr. Rudolph's claims
may be barred under a theory of collateral estoppel as a
result of the decision in the criminal proceeding against
him.
     The District Court in which this action was filed was
the court which had heard the criminal case. It could prop-
erly take judicial notice, as have we, of that matter.
However, since Mr. Rudolph's criminal conviction is on appeal
before this Court, we conclude that dismissal of his com-
plaint with prejudice was premature.
     We hold that although the matters raised in the com-
plaint may be barred by collateral estoppel, the dismissal
with prejudice was not proper.    We amend the dismissal to
provide as to all parties a dismissal without prejudice.   We
admonish Mr. Rudolph that he is required to have an adequate
basis for the filing of another complaint.



We Concur:    A
