                                          No. 01-436

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2002 MT 133N


KENNETH ANTHONY ALLEN,

              Plaintiff and Appellant,

         v.

MIKE MAHONEY, WARDEN, MONTANA
STATE PRISON, et al.,

              Defendants and Respondents.



APPEAL FROM:         District Court of the Third Judicial District,
                     In and for the County of Powell,
                     Honorable Ted Mizner, Judge Presiding


COUNSEL OF RECORD:

              For Appellant:

                     Kenneth Anthony Allen, Pro Se, Deer Lodge, Montana

              For Respondents:

                     Matthew S. Robertson, Special Assistant Attorney General, Montana
                     Department of Corrections, Helena, Montana



                                                    Submitted on Briefs: December 20, 2001

                                                                 Decided: June 18, 2002

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice 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    The Appellant, Kenneth Anthony Allen (Allen), filed a 42

U.S.C. § 1983 Civil Rights complaint alleging violations of his

rights under the Eighth and Fourteenth Amendments of the United
States Constitution.           The District Court for the Third Judicial
District, Powell County, dismissed Allen’s complaint, concluding

that Allen did not allege that he was a member of a suspect class

for which relief is available under a civil rights claim and

concluding that the complaint did not allege with specificity how
the    acts     of    the    individual         defendants    denied    Allen   his
constitutional rights while acting under the color of state law.

We affirm.

                                         ISSUE

¶3    Did the District Court properly dismiss Appellant’s complaint

and amended complaint?

                                STANDARD OF REVIEW

¶4    A complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle him to


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relief.       The rules encourage disposition of cases quickly and on the merits. Close

scrutiny should therefore be given when one party moves to have the case disposed of

on grounds other than the merits. Rambur v. Diehl Lumber Co. (1964), 144 Mont. 84,

394 P.2d 745.

¶5    A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., admits

all well-pleaded allegations in the complaint.                 In considering the

motion, the complaint is construed in the light most favorable to
the plaintiff, and all allegations of fact contained therein are

taken as true.        Bar OK Ranch, Co. v. Ehlert, 2002 MT 12, ¶ 31, 308

Mont. 140, ¶ 31, 40 P.3d. 378, ¶ 31 (citation omitted).                    The court is

not engaged in factfinding when ruling on a motion to dismiss. Any evidence actually

adduced in support of a party’s position in a motion to dismiss is of no consequence

when reviewing the appropriateness of the lower court’s denial of said motion made

prior to a hearing or trial. See Flemmer v. Ming (1980), 190 Mont. 403, 408, 621 P.2d

1038, 1041.

¶6    The District Court’s determination that Allen’s complaint and

amended complaint failed to state a claim is a conclusion of law.
Our standard of review of a district court’s conclusions of law is

whether the tribunal’s interpretation of the law is correct.
Ehlert, ¶ 31.

                                      BACKGROUND
¶7    Because upon a motion to dismiss all allegations of fact in

the complaint are to be taken as true, the following facts are

taken from the complaint and attached exhibits.

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¶8   Allen is an inmate at the Montana State Prison.                   On July 3,

1999, approximately 120 inmates at the prison participated in a

sit-down demonstration in an area called the high-side yard, an
area located between the high-side kitchen and three high-side

housing units.    Also located adjacent to the high-side yard are the

front doors of the high-side gymnasium.                  At the start of the

demonstration a number of inmates exited the front doors of the

gymnasium   and   from   outside    the      recreation    yard   to     join   the

demonstration.      Those   in     the       gymnasium    who   wished    not    to
participate exited the rear doors and walked into an area called

the Reception Unit.

¶9   Allen had informed prison officials approximately a day or two

prior to the demonstration when it was going to take place, and
informed numerous correctional officers that he himself would not

be participating in the demonstration.                   At the start of the

demonstration, Allen was on break in front of the high-side kitchen
and immediately re-entered the kitchen upon seeing the other

inmates assembling.      Like the high-side gymnasium, the high-side
kitchen also contains front and rear exits.               Allen and the other

inmates in the kitchen were not given the opportunity to exit

through the rear doors which lead, a few hundred feet away, to the
same Reception Unit near the rear of the high-side gymnasium.

Rather, the rear doors of the kitchen were locked by correctional
officer Thomas Gildebrandt for the safety of the inmates and

overall security of the prison.              The kitchen inmates were then

instructed by correctional officer Wayne Lubbes to exit the front



                                         4
doors of the kitchen into the high-side yard, cross through the

sit-down demonstration, and return to the high-side housing units.

¶10   The kitchen inmates, including Allen, exited the front doors

of the kitchen, but because of threats by the demonstrators if they

attempted to cross through the demonstration, the kitchen workers
did not pass through but sat down on the grass nearby.    For fear of

his own personal safety, Allen also sat down near the demonstration

rather than attempting to pass through it.
¶11   A short time after the beginning of the demonstration, a

prison official, Captain Geech, requested that two inmates from

each unit come to the high-side security gate to speak with prison
staff about inmate concerns.   Upon a vote of the inmates in Allen’s
housing unit, Allen was elected to be the representative on behalf

of his unit.    At this point, Allen actively participated in the

demonstration as their representative.

¶12   Subsequently,   all   inmates   who   were   involved   in   the

demonstration were placed in temporary lock-up pending disciplinary
                                                                         Comment [COMMENT1]: Taken
                                                                         out of fact section because
hearings.    The MSP hearing officers eventually dismissed the           neither the complaint or
                                                                         amended complaint contain a
                                                                         due process challenge, only
disciplinary write-ups of each of the high-side kitchen inmates           th      th
                                                                         8 and 14 :
                                                                         Of the workers originally in
other than Allen.     The Unit Disciplinary Team originally scheduled    the high-side kitchen, seven
                                                                         had their disciplinary
                                                                         write-ups dismissed. The
Allen’s hearing for July 12, 1999.    On that day, Allen was granted     Unit Disciplinary Team
                                                                         originally scheduled Allen’s
                                                                         hearing for July 12, 1999.
a continuance until July 21, 1999, for the purpose of collecting         On that day, Allen was
                                                                         granted a continuance until
                                                                         July 21, 1999, for the
staff witnesses and statements to attest that Allen did not want to      purpose of collecting staff
                                                                         witnesses and statements to
                                                                         attest that Allen did not
participate in the demonstration or leave the security of the high-      want to participate in the
                                                                         demonstration or leave the
                                                                         security of the high-side
side kitchen.                                                            kitchen. Allen’s hearing
                                                                         was subsequently held on
                                                                         July 19, 1999, prior to
                                                                         having the opportunity to
                                                                         collect and therefore
                                                                         present staff witnesses and
                                                                         statements.


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¶13     Allen’s hearing was subsequently held on July 19, 1999, prior

to having the opportunity to collect and therefore present staff

witnesses and statements.         The hearing officers found Allen guilty.
 His disciplinary infraction report and subsequent hearing decision

reflects      that    Allen    actively       participated    in   the     sit-down

demonstration through the representation of his unit, that he

refused orders from prison officials to return to his housing unit,

that     he    made     demands      of   the    administration        during   the

demonstration, and that his actions were disruptive and interfered
with the operation of the Montana State Prison.                    Each of these

activities constitute “severe category” violations of the Montana

State     Prison      Policy   and    Procedures     and     Allen’s     determined

violations resulted in a subsequent one- to two-year sentence to
the maximum security unit.

¶14     Allen filed a 42 U.S.C. § 1983 Civil Rights complaint in

October of 2000 against Mike Mahoney, Warden of the Montana State
Prison.       The caption of the complaint contained only the name of

Mike Mahoney, in his official capacity as Warden of the Montana

State Prison, but also included a section entitled “Parties”
wherein Allen named twenty-one additional defendants, suing each in

their individual capacities and alleging that their actions were
done under color of state law.            Allen alleged in his complaint that

prison officials violated his Eighth Amendment right against cruel

and unusual punishment and his Fourteenth Amendment right to equal
protection of the laws.        Allen also alleged a Due Process violation




                                          6
because of his inability to present statements from witnesses and

staff during his disciplinary hearing.

¶15   Allen sought from the District Court an order expunging and

dismissing       the    disciplinary    write-ups     from     his    institutional

record,     an     order    requiring        an    immediate    reclassification
evaluation,       and    compensatory        and   punitive     damages    against

correctional officers Gildebrandt and Lubbes and from “all of the

defendants, and/or, whomever the Court deems responsible for the

safety of the inmates in the kitchen.”
¶16   Did   the    District     Court   properly      dismiss    the    Appellant’s

complaint and amended complaint for failure to state a claim under
42 U.S.C. § 1983?

¶17   Allen      bases    his   claim   against     Mahoney     and    other   named

individuals on 42 U.S.C. § 1983 which provides:
      Every person who, under color of any statute, ordinance,
      regulation, custom, or usage, of any State or Territory
      or the District of Columbia, subjects, or causes to be
      subjected, any citizen of the United States or other
      person within the jurisdiction thereof to the deprivation
      of any rights, privileges, or immunities secured by the
      Constitution and laws, shall be liable to the other party
      injured in an action at law, suit in equity, or other
      proper proceeds for redress. . . .
In order to state a sustainable § 1983 claim, the plaintiff must

allege facts to establish: (1) a violation of rights protected by
the United States Constitution or created by federal statute, (2)

proximately caused (3) by conduct of a “person” (4) acting under

color of state law.         Orozco v. Day (1997), 281 Mont. 341, 347, 934

P.2d 1009, 1012 (citation omitted).




                                         7
¶18    The State argues that Allen’s original and amended complaints

are facially insufficient because, although only Mike Mahoney is

listed in the caption, neither complaint alleges any specific act
or conduct on the part of Mahoney and, in fact, both are completely

silent as to Mahoney other than the appearance of his name in the

captions.       The State argues that, in failing to assert any factual

allegations that Mahoney acted or failed to act, the complaints

fail to state a cognizable claim under 42 U.S.C. § 1983.                               See

Potter v. Clark (7th Cir. 1974), 497 F.2d 1206, 1207.                           The State
further      argues     that        the    complaint     did   not   allege     that   any

particular defendant acted under the color of state law for the

purposes of 42 U.S.C. § 1983.

¶19     Allen argued before the District Court that, although the

complaint is silent as to Mahoney other than his name in its
caption, specific factual allegations were not necessary because

one    could    implicitly          read    into   the    complaint    that     Mahoney’s
inaction allowed the high-side kitchen inmates to be treated

differently          than     the     high-side     gymnasium        inmates.       Allen

specifically argues that Mahoney “failed to act by not authorizing

the Correctional Officers in the high side dining area to afford
the inmates of the kitchen the same equal protection that was
afforded to the inmates in the gym by being ‘allowed’ to exit the

rear    of     the    building       and    subsequently       avoiding   the     ongoing

demonstration.”             This implicitly authorized disparate treatment,

Allen argues, allowed correctional officers to treat the kitchen

inmates differently than the gymnasium inmates, thereby violating



                                               8
Allen’s right to receive equal protection of the laws.                           In other

words, Allen argues that alleged actions by other correctional

officers sufficiently implicates wrongdoing by Mahoney.

¶20    It is well settled that Montana’s Rules of Civil Procedure are

notice     pleading      statutes       and       that,   pursuant     to    Rule    8(a),

M.R.Civ.P., a complaint must put a defendant on notice of the facts
the plaintiff intends to prove, and such facts must disclose the

elements necessary to make the claim.                 Kunst v. Pass, 1998 MT 71, ¶

35, 288 Mont. 264, ¶ 35, 957 P.2d 1, ¶ 35 (citation omitted).                          This

Court follows the general rule that complaints are to be construed

in a light most favorable to the plaintiff.                      However, this Court
has also recognized that a complaint must state something more than
facts which, at most, would breed only a suspicion that a plaintiff

has a right to relief.           “Liberality does not go so far as to excuse

omission of that which is material and necessary in order to

entitle relief.”         Mysse v. Martens (1996), 279 Mont. 253, 266, 926 P.2d 765, 773

(citing Treutel v. Jacobs (1989), 240 Mont. 405, 407, 784 P.2d 915, 916). The complaint

must give notice to the defendant of the facts the plaintiff intends to prove, “and the facts

must disclose the presence of all the elements necessary to make out the claim.” Mysse, 279

Mont. at 266, 926 P.2d at 773 (citations omitted).

¶21    Because neither Allen’s original nor his amended complaint set

forth facts regarding specific actions or inactions by Mahoney,
neither could Mahoney be put on notice of the facts Allen intends

to prove at trial to support his constitutional claims against
Mahoney under § 1983.            Even under this Court’s wide latitude and


                                              9
allowances given to pro se litigants, such latitude and flexibility

cannot be so wide as to prejudice the other party or to deprive the

party from whom relief is sought an opportunity to respond.      See
First Bank (N.A.) - Billings v. Heidema (1986), 219 Mont. 373, 376,

711 P.2d 1384, 1386.     As Allen’s complaint contained no factual

allegations against Mahoney, Mahoney could not have reasonably been

afforded an opportunity to respond.    We conclude, therefore,   that

the District Court did not err in dismissing Allen’s complaint

because it did not allege with specificity how the actions or
inactions of Mahoney denied Allen his constitutional rights while

acting under the color of state law.

¶22   On appeal, however, Allen asserts that the real crux of his

complaint was against correctional officers Thomas Gildebrandt and
Wayne Lubbes, rather than against Mahoney, and that his complaint

names both officers and sets forth sufficient factual allegations

regarding both.     Although the caption of the complaint includes
neither Gildebrandt nor Lubbes, Allen argues that both officers

were properly pled defendants because, although not included in the
caption, they were included in the “Parties” section with nineteen

other defendants.
¶23   Whether or not Gildebrandt and Lubbes were properly pled,

Allen’s complaint likewise lacks sufficient factual allegations
against the officers to defeat a motion to dismiss.        Reducing

Allen’s well pleaded facts to their essence and precluding all

legal conclusions, Allen seeks relief because, as an informant, he

was not allowed to remain in the high-side kitchen, away from



                                 10
exposure to the sit-down demonstration, similar to the inmates in

the high-side gymnasium.             He further seeks relief because his

disciplinary write-ups were not dismissed like the other kitchen
workers who did not actively participate in the demonstration, and

because he was not given his full extension of time to present

witness     statements        regarding     his    initial      unwillingness    to

participate.

¶24    According    to       Allen’s      complaint,      correctional     officer

Gildebrandt locked the rear door of the kitchen and correctional

officer Lubbes ordered the kitchen workers to exit the front of the
kitchen, proceed across the demonstration, and return to the high-

side housing units.          It is based upon these facts in the context of

Allen’s status as an informant that Allen asserts both an Eighth

and Fourteenth Amendment violation of his rights.                   Allen alleges

that Lubbes’ order to exit the front of the kitchen was malicious
and    sadistic    and       that   he   therefore      acted    with    deliberate
indifference, resulting in Allen becoming an unwilling participant

in the sit-down demonstration.

¶25    However, not every government action affecting the interests

or    well-being   of    a    prisoner     is   subject    to   Eighth   Amendment
scrutiny.    “After incarceration, only the ‘unnecessary and wanton

infliction    of   pain’      constitutes       cruel   and   unusual    punishment
forbidden by the Eighth Amendment.”               Whitley v. Albert (1986), 475

U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251, 260 (citations

omitted).    To be cruel and unusual punishment, “conduct that does

not purport to be punishment at all must involve more than ordinary



                                          11
lack of due care for the prisoner’s interests or safety.”       Whitley,

475 U.S. at 319, 106 S.Ct. at 1078, 89 L.Ed.2d at 260.

¶26   Likewise, as this Court has previously stated, the type of

“deliberate indifference” which violates the Eighth Amendment Cruel

and Unusual Punishment Clause is “obduracy and wantonness, not
inadvertence or error in good faith . . . .”       Jellison v. Mahoney,

1999 MT 217, ¶ 12, 295 Mont. 540, ¶ 12, 986 P.2d 1089, ¶ 12 (citing

Whitley, 475 U.S. at 319, 106 S.Ct. at 1084, 89 L.Ed.2d at 260-61).

 “Prison   officials   are   accorded   ‘wide   ranging   deference’   in

adopting and executing policies to preserve internal order and

discipline among the inmates . . . .”           Jellison, ¶ 12 (citing
Whitley, 475 U.S. at 321-22, 106 S.Ct. at 1085, 89 L.Ed.2d at 262).



      That deference extends to a prison security measure taken
      in response to an actual confrontation with riotous
      inmates, just as it does to prophylactic or preventive
      measures intended to reduce the incidence of these or any
      other breaches of prison discipline.        It does not
      insulate from review actions taken in bad faith and for
      no legitimate purpose, but it requires that neither judge
      nor jury freely substitute their judgement for that of
      officials who have made a considered choice.

Whitley, 475 U.S. at 322, 106 S.Ct. at 1084, 89 L.Ed.2d at 262.
¶27   Taking the alleged facts in Allen’s complaint as true, the

actions of correctional officers Gildebrandt and Lubbes cannot
support a finding of the type of “deliberate indifference” or

“unnecessary and wanton infliction of pain” which would violate the

Cruel and Unusual Punishment Clause of the Eighth Amendment,
especially in light of the deference extended to prison officials

attempting to restore order and security during a demonstration by



                                   12
prison inmates and in light of the fact that Allen acknowledged the

contrary in his original complaint–that the officers’ motivation

for their actions were for the safety of the inmates as well as for
the overall security of the prison.

¶28     Similarly, regarding Allen’s Equal Protection claim, Allen

does not allege that the Montana State Prison had a policy of

treating    high-side    kitchen   inmates   differently   than    high-side
gymnasium inmates or that officers Gildebrandt and Lubbes somehow

practiced such a policy under state authority, but only that the

two groups of prisoners, however similarly situated, were treated

differently for overall safety and security during an inmate

demonstration.      Given the wide deference given to prison officials
for both preventative and restorative security measures and the
prison’s     lack   of   discriminatory   policy   between       kitchen   and

gymnasium inmates, Allen’s Equal Protection claim must also fail

upon the facts alleged.

¶29     Finally, Allen asserts a Due Process claim because the prison

hearing officers granted Allen a continuance until July 21, 1999,
for the purpose of collecting staff witnesses and statements, but

then held his hearing two days early without allowing him the

chance to collect the witnesses and statements.         We first note that
this Court expresses a similar dissatisfaction as in Jellison,

where     prison    hearings   officers   failed   to   secure     Jellison’s
requested witnesses according to the prison’s own internal rules.

As in Jellison, we do not countenance the apparent failure of




                                     13
prison authorities to allow Allen his allotted extension of time

and opportunity to present exculpatory witnesses.

¶30    In    the   present   matter,   however,   Allen    discloses    in   his

pleading that the purpose for which he intended to present staff

witnesses and statements was to demonstrate that he did not want to
participate in the demonstration or leave the security of the high-

side kitchen.         We find that even if Allen had procured such

statements prior to his reclassification hearing, such statements

would have had no bearing on the factual findings of the hearings

officer,      namely,   that   Allen   did   participate   in   the    sit-down

demonstration as an elected representative of his housing unit,
that he refused orders from prison officials to return to his unit,

that    he     made     demands   on   the    administration     during      the

demonstration, and that his actions were disruptive and interfered

with the operation of the Montana State Prison.                 The fact that
Allen may have originally wished to remain in the high-side kitchen

to avoid the demonstration does not change the fact that he did, in
fact, participate, and that his participation was the basis for the

hearing officer’s classification decision.
¶31    Based upon the foregoing, we conclude that the District Court

did not err in concluding that Allen’s complaint failed to allege
with specificity how the acts of any individual defendants denied

Allen his federally protected constitutional rights while acting

under color of state law.         The decision of the District Court is
affirmed.




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                               /S/ JIM RICE




We concur:



/S/ TERRY N. TRIEWEILER

/S/ JIM REGNIER
/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART




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