                                       No. 05-560

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2006 MT 176N


DOUGLAS BOESE,

                 Plaintiff and Appellant,

         v.

JAMES MacDONALD,

                 Defendant and Respondent.




APPEAL FROM:            The District Court of the Ninth Judicial District,
                        In and For the County of Toole, Cause No. DV 2005-027,
                        Honorable Marc G. Buyske, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Douglas Boese, pro se, Deer Lodge, Montana

                 For Respondent:

                        David M. McLean, Ryan C. Willmore; Browning,
                        Kaleczyc, Berry & Hoven, P.C., Missoula, Montana



                                               Submitted on Briefs: May 10, 2006

                                                          Decided: August 1, 2006

Filed:

                  __________________________________________
                                     Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), 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, 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     Douglas Boese appeals the judgment of the District Court for the Ninth

Judicial District, Toole County, affirming a decision of the Justice Court in favor

of defendant James MacDonald. We affirm.

¶3     We address the following issues on appeal:

¶4     1. Whether the District Court correctly decided that Boese’s right to due

process was not violated by not having all witness statements available.

¶5     2. Whether the District Court correctly decided that Boese’s right to due

process was not violated by not ensuring that all witnesses named on Boese’s

witness list were present at trial.

                       Factual and Procedural Background

¶6      Boese was an inmate at the Crossroads Correctional Center (CCC) in

Shelby.    In December 2004, in response to an anonymous kite alleging that

Boese’s cell contained excess blankets, CCC staff conducted a search of Boese’s

cell. After the search, Boese contended that a garbage bag containing his legal



                                         2
files was confiscated and later destroyed. Boese did not challenge the search of

his cell. Instead, he filed an action in the Toole County Justice Court, Small

Claims Division, against MacDonald, the warden of CCC, seeking relief for the

alleged destruction of his legal files.

¶7     On March 10, 2005, Boese filed a document with the Justice Court entitled

“Motion for Order Directing Defendant James MacDonald to turn over all

previously requested Documents.”          In that document, Boese alleged that the

parties agreed at the February 2, 2005 pre-trial hearing in this matter to collect and

exchange witness statements.       However, Boese provided no evidence of this

agreement and MacDonald denied ever receiving a request from Boese for

statements of staff witnesses. The Justice Court denied Boese’s motion.

¶8     On March 17, 2005, Boese filed a document entitled “Motion for Witness

Subpoenas” wherein he requested that the court issue subpoenas to those

individuals designated as “staff” witnesses on his witness list. Boese failed to

provide subpoenas to the court for the Judge’s signature, however.

¶9     A trial in this matter was conducted on March 31, 2005. The Justice Court

found Boese’s testimony not credible and found in favor of MacDonald.

Thereafter, Boese appealed to the District Court. Both parties submitted written

arguments to the District Court and on July 18, 2005, that court issued its written

decision affirming the lower court and finding in favor of MacDonald. Boese

appeals.




                                            3
¶10    We have determined to decide this case pursuant to Section 1, Paragraph

3(d) of our 1996 Internal Operating Rules, as amended in 2003, which provides

for memorandum opinions.

                                          Issue 1.

¶11 Whether the District Court correctly decided that Boese’s right to due
process was not violated by not having all witness statements available.

¶12    Boese claims that at the pre-trial conference in this matter, the Justice Court

ordered the parties to collect and exchange witness statements and that

MacDonald failed to give him copies of the witness statements of CCC staff.

MacDonald argues, on the other hand, that Boese failed to request the witness

statements and that Boese failed to cite any authority in support of his argument

that he is entitled to said statements.

¶13    In his brief on appeal, Boese cites to Serrano v. Francis (9th Cir. 2003),

345 F.3d 1071, cert. denied, 543 U.S. 825, 125 S.Ct. 43, 160 L.Ed.2d 37 (2004),

for his contention that the Fourteenth Amendment provides that prisoners are

entitled to certain due process protections including the right to call witnesses and

to have written statements.      As MacDonald points out in his response brief,

Serrano actually states that prisoners have the right to call witnesses and “to have

a written statement by the fact-finder as to the evidence relied upon and the

reasons for the disciplinary action taken.”          Serrano, 345 F.3d at 1077-78

(emphasis added). Moreover, Serrano dealt with a prisoner’s rights in relation to a



                                             4
charge of a disciplinary violation. MacDonald correctly points out that rather than

being a charge of a disciplinary violation, this is a civil claim and, as such,

Serrano does not apply.

¶14    Likewise, the other cases cited by Boese, Alcala v. Woodford (9th Cir.

2003), 334 F.3d 862, and Taylor v. Illinois (1988), 484 U.S. 400, 108 S.Ct. 646, 98

L.Ed.2d 798, also do not apply. Both cases are criminal cases concerning the issue

of excluding witnesses and deal with the right of an accused to present witnesses

in his or her defense.

¶15    Here, Boese failed to provide any authority in support of his argument that

he was entitled to the witness statements of CCC staff.

                                      Issue 2.

¶16 Whether the District Court correctly decided that Boese’s right to due
process was not violated by not ensuring that all witnesses named on Boese’s
witness list were present at trial.

¶17    In his brief on appeal, Boese faults the clerk of court for not filling out and

serving subpoenas on all his named witnesses. MacDonald maintains that it was

Boese’s duty to prepare and serve subpoenas to his witnesses and that Boese failed

to do so.

¶18    “It shall be the duty of a party obtaining any order, judgment, warrant

summons, subpoena or like order to present the same in written form for the

signature of the judge at the time of applying for the same.”             Rule 8(a),

M.U.R.J.C.C.     Boese did file a motion to subpoena witnesses in this case.

However, he failed to provide written subpoenas for the judge to sign.


                                          5
Furthermore, Boese had a duty to deliver his subpoenas to the sheriff or other

qualified person for service and a duty to cause the subpoenas to be served. Rules

10(a) and 9(b), M.U.R.J.C.C. Boese failed on both counts.

¶19    In addition, Boese asks that we remand this case to Justice Court for a new

trial or, in the alternative, that we order MacDonald to pay Boese $450.00 to

replace his legal files. We have previously stated that “a judgment for damages

must be supported by substantial evidence that is not mere guess or speculation,

although mathematical precision is not required.” In re Marriage of Mease, 2004

MT 59, ¶ 42, 320 Mont. 229, ¶ 42, 92 P.3d 1148, ¶ 42 (citing Cremer v. Cremer

Rodeo Land & Livestock Co. (1981), 192 Mont. 208, 214, 627 P.2d 1199, 1202).

“Proof of damages must consist of a reasonable basis for computation and the best

evidence obtainable under the circumstances which will enable a judge to arrive at

a reasonably close estimate of the loss.” Mease, ¶ 42 (citing Smith v. Zepp (1977),

173 Mont. 358, 370, 567 P.2d 923, 930). Boese failed to provide any tangible

costs of alleged damages.

                                   Conclusion

¶20    Based on the foregoing, we hold that Boese’s right to due process was not

violated in this case either by the State’s failure to make witness statements

available to him or by the failure of the Justice Court to ensure that all of the

witnesses named on Boese’s witness list were present at trial. We also hold that

because Boese failed to provide any tangible replacement costs of his legal files,

he is not entitled to damages.


                                        6
     ¶21     Affirmed.

                             /S/ JAMES C. NELSON


We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ JIM RICE




                         7
