                                          No. 05-631

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2006 MT 173N

                                               _______________________________________

RENA SCHISLER,

              Plaintiff and Appellant,

         v.

BEAVERHEAD COUNTY, a Political Subdivision of
the STATE OF MONTANA,

              Defendant and Respondent.

                                                ______________________________________

APPEAL FROM:         District Court of the Fifth Judicial District,
                     In and for the County of Beaverhead, Cause No. DV 03-12653
                     The Honorable Loren Tucker, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     W. M. Hennessey, Hennessey Law Office, PLLC, Butte, Montana

              For Respondent:

                     Allen B. Chronister, Harlen, Chronister, Parish & Larson, P.C., Helena,
                     Montana


                                                  ____________________________________

                                                       Submitted on Briefs: July 12, 2006

                                                                  Decided: July 25, 2006

Filed:

                        ______________________________________
                                         Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court's quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2     Rena Schisler (Schisler) entered a guilty plea on June 18, 1997, to two counts of

felony forgery. The court imposed a three-year deferred imposition of sentence subject to

restrictions, including a requirement that Schisler pay restitution. Schisler had several

other minor brushes with the law before the State finally filed a “Motion for Order

Revoking Deferred Sentence and for Warrant of Arrest” on October 19, 2000. The State

based its motion on the fact that Schisler had received a citation for stalking, a speeding

citation, an obstruction of justice citation, and had been charged in a separate felony case

of issuing bad checks. The court issued a warrant of arrest and the State arrested

Schisler. She made her initial appearance on the warrant before the Justice of the Peace

in Beaverhead County on October 30, 2000. The State held Schisler in Beaverhead

County jail in lieu of a $5,000 bond.

¶3     Schisler then apparently attempted suicide. The State admitted her to Warm

Springs State Hospital on October 31, 2000. On that same date, the State charged

Schisler in Butte Silver Bow County with issuing bad checks, a felony. The State

released Schisler from Warm Springs on January 10, 2001, and promptly reincarcerated


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her in the Beaverhead County jail based on the October 25, 2000, warrant. The State

eventually released Schisler from jail on March 10, 2001.

¶4    Schisler filed an action on October 23, 2003, against Beaverhead County based

upon the events that began with her sentence in 1997.           Count One of Schisler’s

complaint, brought pursuant to 42 U.S.C. § 1983, alleged that Beaverhead County had

incarcerated her as a result of the “illegal and improper” 1997 sentence. Count Two

alleged a claim for false arrest and imprisonment based upon the fact that her 1997

sentence was “illegal” and therefore tainted any subsequent proceedings.

¶5    Beaverhead County moved for summary judgment on both counts and the court

held a hearing. At the hearing, the court orally granted Beaverhead County’s motion for

summary judgment on Count Two based upon expiration of the applicable statute of

limitations. As to Count One, the court granted Schisler leave to file a supplemental brief

on the issue of whether the County could be found liable based upon the theory of

respondeat superior.   The parties submitted supplemental briefing on this issue and

Schisler also filed a motion for leave to file an amended complaint.

¶6    The District Court issued an order on August 18, 2005, denying Schisler’s motion

for leave to amend the complaint. The Court determined that it was improper for a party

to move to amend the complaint while a motion for summary judgment was pending.

The court, by separate order that same date, granted summary judgment in Beaverhead

County’s favor on Count One. The Court determined that a § 1983 claim against a

governmental entity may not be based upon the theory of respondeat superior. The court

further determined that Schisler had not been able to identify any policy of Beaverhead


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County that caused a deprivation of her constitutional rights. She now appeals.

¶7     We review de novo a district court’s decision to grant summary judgment based on

the same criteria applied by the Court. Hardy v. Vision Service Plan, 2005 MT 232, ¶ 10,

328 Mont. 385, ¶ 10, 120 P.3d 402, ¶ 10. We must determine whether the district court

correctly found that no genuine issues of material fact existed and whether it applied the

law correctly. Hardy, ¶ 10.

¶8     Schisler argues on appeal that the District Court failed to address the material

issue of fact that Beaverhead County failed to comply with the requirements set forth in §

46-23-1012, MCA (1999), that a probationer be afforded a hearing within 36 hours of the

State arresting her. Schisler further asserts that a question of material fact existed as to

whether Beaverhead County denied her liberty in violation of her right to due process of

law. Beaverhead County responds that it is not responsible for the hearing required by §

46-23-1012, MCA (1999), and that none of its employees were involved in Schisler’s

incarceration.

¶9     We have determined to decide this case pursuant to Section I, paragraph 3(d), of

our 1996 Internal Operating Rules, as amended in 2003, that provides for memorandum

opinions. It is manifest on the face of the briefs and record before us that Schisler’s

appeal lacks merit. Settled Montana law clearly controls the legal issues presented and

the District Court correctly interpreted these legal issues.

¶10    Affirmed.

                                                   /S/ BRIAN MORRIS




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We Concur:


/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE




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