                            NO.    92-202

          IN THE SUPREME COURT OF THE STATE OF MONTANA




KEVIN MURPHY,
         Plaintiff and Appellant,


HENRY BURGESS, Chairman,
Board of Pardons, 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:
                Kevin Murphy, Pro Se, Deer Lodge, Montana
          For Respondent:
                David L. Ohler, Attorney for Department of
                Corrections and Human Services, Helena, Montana


                                  Submitted on Briefs:   July 30, 1992
Justice Terry N. Trieweiler delivered the opinion of the Court.
       Appellant Kevin Murphy appeals from the decision of the Third
~udicialDistrict Court, Powell County, ordering dismissal of his
complaint on the grounds that it fails to state a claim upon which
relief may be granted.       We affirm.
       Appellant presented three issues for review by this Court.
       1.    Did the District Court err when it dismissed appellant's
complaint for failure to state a claim?
       2.    Did the District Court violate the ex post fact0 clause
when    it   applied   the   1989 version    of   the   parole   statute,
§   46-23-201, MCA, rather than the version of the statute in effect
at the time appellant committed his crimes in 1984?
       3.    Did the District Court err when it suspended discovery
until the court ruled on the motion to dismiss the complaint?
       On December 11, 1984, Kevin Murphy was arrested for the crimes
of burglary and theft.       On June 10, 1985, he was sentenced to ten
years for each crime.    The two sentences were to run consecutively
for a total of a 20-year term. Murphy was committed to the Montana
State Prison and was designated a dangerous offender.             He was
required to serve one-half of his sentence, less good time, before
becoming eligible for parole.
       In late 1990, Murphy was sent to the Billings Pre-release
Center.      In the spring of 1991, two months before his parole
hearing, Murphy was found on two occasions using prohibited drugs
and alcohol while in pre-release.         Consequently, he was removed
                                    2
from pre-release and placed in the Yellowstone County Detention
Facility.
     While he was housed at the Yellowstone County Detention
Facility, Murphy wrote a letter to another inmate at Montana State
Prison.      The letter indicated Murphy     Ithad a good time in
pre-release."     Murphy contends that prison officials illegally
opened, read, and forwarded the letter to the Parole Board. Murphy
asserts that the Board relied on the contents of the letter when it
decided to deny him parole. The Board denies such an allegation.
        Murphy became eligible for parole in the spring of 1991. He
made an initial appearance before the Parole Board on July 30,
1991.     The Board denied his parole application.   The Parole Board
indicated in Murphy's Vase Dispositionr1that parole was denied to
Murphy because of his (1) previous criminal history; (2) a pattern
of similar offenses; and (3) poor history under parole/probation
supervision. Further, the Board wrote that it had no objection to
Murphy being transferred to a pre-release center.     Soon after the
IrCaseDispositionr1
                  was completed, Murphy was denied permission to
attend pre-release because he did not meet the six month clear
conduct requirement for placement in pre-release.
        On September 9, 1991, Murphy filed a complaint pursuant to
42 U.S.C. 5 1983 against the Parole Board and prison officials. He

alleged that the     Parole Board, acting in collusion with prison
officials, violated his constitutional rights when it denied him
parole.
                                  3
     The Parole Board moved to dismiss Murphy's complaint for
failure to state a claim. Additionally, the Board moved to suspend
discovery until the court ruled on the motion to dismiss.         The
District Court granted the Board's motion to suspend discovery and
then dismissed the complaint.
       In his Order of Dismissal, the District Judge did not
address Murphy's allegations that his mail was illegally opened and
sent to the Parole Board. However, the court did address Murphy's
other claims: (1) that he was denied a liberty interest in parole
without due process of law; and (2) that the Board's reasons for
denying Murphy parole were arbitrary because they were based on an
improper consideration of Murphy's mail, they and did not comply
with the parole statute.
       The District Court concluded that, contrary to Murphy's
assertions, he was afforded minimal due process at the parole
hearing. Further, the court concluded that the Board's reasons for
denying Murphy parole were not arbitrary, but rather were based on
requirements of the parole statute, 5 46-23-201, MCA.
     The court ordered the dismissal of Murphy's           complaint,
pursuant to Rule 12 (b)(6), M.R.Civ.P.,   on grounds that he failed to
state a single claim for which relief could be granted.        Murphy
appeals from this judgment.
                                  I
     Did the District Court err when          it dismissed Murphy's
complaint for failure to state a claim?
                                  4
                           STANDARD OF REVIEW
       It is a well established rule in Montana that a complaint
should not be dismissed for failure to state a claim unless it
appears certain that the plaintiff is entitled to no relief under
any set of facts which could be proven in support of the claim.
This test was established in Conley v. Gibson (1957), 355 U.S. 41, 45,

78 S. Ct. 99, 102, 2 L. Ed. 2d 80, 84, and has been endorsed
repeatedly by this Court. Mogan v. City ofHarlem (1987), 227 Mont. 435,

437, 739 P.2d 491, 493; h o t o v . MissoulaCounty (1988), 230 Mont. 351,

353, 749 p.2d 1094, 1096: Busch    V.   Karnmerer (1982), 200 Mont. 130,

132, 649 P.2d 1339, 1340.
       Under Rule 12(b)(6), M.R.Civ.P.,     a motion to dismiss has the
effect    of   admitting   all the well-plead      allegations of    the
complaint.     Busch, 649 P.2d at 1340.     Further, when the district

court considers a motion to dismiss, the complaint must be
construed in the light most favorable to the plaintiff and all
allegations of fact therein are taken as true. Mogan, 739 P.2d at

493.
       Murphy's first contention on appeal is that when the District
Court denied his complaint for failure to state a claim, it failed
to address all of his claims. Murphy asks this Court to consider
the following claims that he contends the District Court ignored:
(1) that prison officials illegally and unconstitutionally opened
a letter Murphy wrote to another inmate; and (2) that prison
                                   5
officials improperly forwardedthe letter to the Parole Board which
subsequently denied him parole. In addition, Murphy requests this
Court to consider his claims that parole is mandatory, that he was
denied his *'rightf1 parole, and that the Board's reasons for
                   to
denial of parole were arbitrary.   Murphy contends that all of his
claims state a cause of action that deserve to be heard by a jury.
                            MAIL CLAIMS
     Murphy does not state a claim for relief with regard to his
first allegation on appeal that prison officials illegally and
unconstitutionally opened a letter he wrote to another inmate.
Both United States Supreme Court decisions and Montana State Prison
Policy No. 16-001 permit, for security reasons,     the opening of
prison mail.
     A prison policy or practice which provides that the prison may
open and censor correspondence sent to or from an inmate does not
violate the U.S.   Constitution if it is Veasonably related to
legitimate penological interests,** such as security.   Turner v Sajley
                                                               .
(1987), 482 U.S. 78, 89, 107 S. Ct. 2254, 2261, 96 L. Ed. 2d 64,
79; Thornburgh v Abbott (1989), 490 U.S. 401, 109 S. Ct. 1874, 1881,
               .
104 L. Ed. 2d 459, 473.
     Montana State Prison Policy No. 16-001 provides that general
correspondence which is not privileged may be opened and read, if
"it is from another correctional fa~ility.'~ MSP Policy 16-001,
5 11, C, 3(a).   This provision furthers security interests of the
prison.   It limits attempts by inmates to pass contraband, money,
or escape plans.
     If in fact prison officials opened the letter that Murphy
wrote to another inmate at Montana State Prison while Murphy was
housed at Yellowstone Detention Facility, the infringement on
Murphy's limited First Amendment rights did not amount to a
constitutional violation.        Murphy is only entitled to those First
Amendment rights that "are not inconsistent with his status as a
prisoner or with the legitimate penological objectives of the
corrections system."     Pel1 v mcunier (1974), 417 U.S.
                              .                             817, 822, 94

S. Ct. 2800, 2804, 41 L. Ed. 2d 495, 501.           Prison officials can
open and censor mail to an inmate from another correctional
institution for security reasons.
    Murphy does not state a claim for which relief may be granted
on his second allegation that prison officials improperly forwarded
his letter to the Parole Board.            Murphy alleges that prison
officials   and    the   Board    conspired   to   deny   him   parole   by
orchestrating the transfer of this letter into Murphy's parole
file. However, despite whether or not the letter should have been
transferred, Murphy can show no causal relationship between the
letter and denial of his parole.         The part of the letter which
Murphy claims was damaging was his statement that he "had a good
time in pre-release."     However, in spite of the letter the Parole
Board stated that it had no objection to his transfer back to a
pre-release center.
       We conclude that Murphy's allegations concerning the opening
and forwarding of his mail do not state a claim for which relief
may be granted. The failure of the District Court to specifically
address these two allegations when it dismissed Murphy's complaint
is harmless error.
                         MURPHY'S OTHER CLAIMS
       In addition to his "mail ~lairns,~'
                                         Murphy asks this Court to
consider his claims: (1) that pursuant to the parole statute
    46-23-201, MCA (1983), parole was mandatory, not discretionary as
the District Court concluded; (2) that he has a "liberty interest"
in parole that transformed into a nvrightft parole because he
                                         to
allegedly    satisfied   all   of   the   statutory     requirements   in
§   46-23-201, MCA (1983); and (3) that the Board's reasons for
denying him parole were arbitrary because they were based on an
improper consideration of Murphy's mail, and they do not comply
with the parole statute. Murphy does not appeal the District Court
finding that he was afforded m i n i m due process.
      The parole statute in effect at the time that Murphy committed
his crimes in 1984 stated in pertinent part that:
            46-23-201.      Prisoners     eligible    for   parole.
       (1) Subject to the following restrictions, the board
      shall release on parole by appropriate order any person
      confined in the Montana state prison     .   ..
                                                   when in its
      opinion there is reasonable probability that the prisoner
      can be released without detriment to the prisoner or to
      the community:
          (2) A parole shall be ordered only for the best
     interests of society and not as an award of clemency or
     a reduction of sentence or pardon. A prisoner shall be
     placed on parole only when the board believes that he is
     able and willing to fulfill the obligations of a
     law-abiding citizen. [Emphasis added.]
     In 1989, 1 46-23-201, MCA, was amended to read:
          46-23-201.    Prisoners   eligible    for   parole.
     (1) Subject to the restrictions contained in subsections
     (2) through (4), the board may release on parole by
     appropriate order any person confined in the Montana
     state prison    . . .  when in its opinion there is
     reasonable probability that the prisoner can be released
     without detriment to the prisoner or to the community.


          (4) A parole may be ordered only for the best
     interests of society and not as an award of clemency or
     a reduction of sentence or pardon. A prisoner mav be
     placed on parole only when the board believes that he is
     able and willing to fulfill the obligations of a
     law-abiding citizen. [Emphasis added.]
     Murphy's contention that parole is mandatory is erroneous and
it fails to state a claim for which relief may be granted.
Although the 1983 statute employs the mandatory word Inshalln1 it
                                                             and
ltncreat[es] presumption that parole release will be grantedn when
           a
the designated findings are made,In Board of Pardons v Allen (1987), 482
                                                     .
U.S. 369, 377-78, 107 S. Ct. 2415, 2420, 96 L Ed. 2d 303, 312, the
                                             .
prerequisite findings in this case were not made. Thus, parole was
correctly denied.
     Under both the 1983 and 1989 statutes, there are three
consistent prerequisites to parole that must be met or parole is
denied.   Upon application of either statute, the inmate will only
be released on parole when the Board makes specific findings:
(1) that in the Board's opinion there is reasonable probability
that the prisoner can be released without detriment to the prisoner
or the community; (2) that the parole is in the best interests of
society; and (3) that in the Board's opinion the prisoner is able
and willing to fulfill the obligations of a law-abiding citizen.
In this case, the Board specifically concluded that Murphy's
release would be a detriment to the community.
       The United States Supreme Court considered the Montana parole
statute, 5 46-23-201, MCA, in Board o Pardom v Allen (1987), 482 U.S.
                                    f        .

369.     In that case, the Court held that the mandatory language
"shallw contained in the parole statute created a                          "liberty
interest" in parole which was protected by the Due Process Clause.
Because there was a liberty interest in parole, Montana inmates
were entitled to minimum due process in decisions of the parole
board.     Those procedures were set forth in a prior decision,
Greenholtz v Inmates
           .            Nebraska
                       ~jf         Penal and Cor. ( 1979) , 442 U   .s.   1, 15, 99

S. Ct. 2100, 2108, 60 L. Ed. 2d 668, 680.
       In 1989, the Montana Legislature amended the parole statute by
inserting the word "may" in place of the word "shall;Iq as amended,
the statue does not create a protected liberty interest in parole.
Maggard v Wynd (8th Cir. 1986), 800 F.2d 195, 198.
        .                                                             Despite the

amendment, however, the three prerequisites to parole remained
intact.
       Murphy contends that if the statute in effect at the time that
he committed his crimes had been applied to his situation, his
liberty interest would have been preserved.               Further, he asserts
that because he satisfiedthe requirements under the parole statute
his liberty interest became a right to parole.
     Murphy's contention fails to state a claim for which relief
may be granted. The District Court applied the 1989 version of the
parole statute to Murphy's situation.          However, under either
version of the statute, Murphy would have been denied parole.
Murphy did not meet the three prerequisites to parole that are
consistent in both statutes.        Therefore, the Board could not
release    Murphy,   nor   was   Murphy   entitled   to   be   released.
Specifically, the Board found that Murphy could not be released
without being a detriment to himself or the community and that his
release would not be in the best interests of society.         It based
its opinion upon Murphy's: (1) criminal history; (2) pattern of
similar offenses; and (3) poor history under parole/probation
supervision.
     In addition, it was the Board's opinion that Murphy needs
further job or vocational        training   and   chemical dependency
treatment to enhance his success on parole.          The Board believed
such training and treatment would further insure that Murphy is
willing and able to fulfill the obligations of a law-abiding
citizen.
     The reasons provided by the Board for the denial of parole are
all proper and consistent with the parole statute in effect in
1983. For these reasons, Murphy's allegations: (1) that parole was
mandatory; (2) that he was illegally denied a liberty interest; and
(3) the Board's reasons were arbitrary, all fail to state a claim
for relief. Murphy is entitled to no relief under any set of facts
which could be proven in support of those claims.
                                     II

       Did the District Court violate the ex post facto clause when
it applied the 1989 version of the parole statute, 5 46-23-201,
MCA, rather than the version of the statute in effect at the time
appellant committed his crimes in 1984?
       Murphy contends that the District Court violated the ex post
facto clause when it considered his complaint under the 1989 parole
statute rather than the statute in effect in 1984 at the time he
committed his crimes.       We conclude (1) that there was no ex post
facto violation, and (2) that upon application of either of the
statutes, Murphy does not meet the three prerequisites to parole.
Therefore, once again, he does not state a claim for which relief
may be granted.
       Federal courts have recognized that there is not an ex post
facto violation when an inmate's parole release would have been
denied under the former statute as well as the latter. Maggard, 800

F.2d   at 197.    An ex post facto law is one which "impose[s] a
punishment for an act not punishable at the time it was committed."
Cummingsv.MtFsouti (1867), 71 U.S.    277, 18 L. ~d 356.   ~ w o
                                                               crucial

elements must be present to establish an ex post facto violation:
(1) the    law must    be    retrospective; and   (2) the    law must
disadvantage the offender making the ex post facto challenge.
Weaverv. Graham (1981), 450 U.S.     24, 29, 101 S. Ct. 960, 964, 67

L. Ed. 2d 17, 23.
     This Court addressed the issue of an ex post facto law in State

v.Cokman (1979), 185 Mont. 299, 605 P.2d 1000. This case involved

a change in the death penalty law. Citing extensively to the U.S.
Supreme Court, our Court stated that:
     Simply because a statute operates on events antecedent to
     its effective date does not make the statute a p o s t f a c t o
     ...   nor does such operation make a law prohibitively
     retroactive.     ...Thus the effect the statute will have
     must determine its validity with respect to apostfacto or
     retroactive inhibitions.
Coleman, 605 P.2d at 1010.

     The District Court applied the 1989 parole statute to Murphy's
complaint rather than the statute in effect in 1984 at the time
Murphy committed his crimes.       In this sense, the law was applied
retroactively.       However, Murphy was not disadvantaged by the
application of the 1989 law. Murphy would have been denied parole
under either statute.       Although the 1983 statute uses the word
*'shall8'
        and the 1989 statute uses the word *'may,*'
                                                  both statutes are
consistent in that they mandate that the inmate must meet three
prerequisites before parole is granted.       The Parole Board did not
believe Murphy could be released without being a detriment to
himself   or   the    community.     Murphy    did   not    satisfy     the
prerequisites.   Thus he was denied parole.       Because the change in
the statute did not have an effect on Murphy's situation, there was
no ex post facto violation.
                                   I11
     Did the District Court err when it suspended discovery until
the court ruled on a motion to dismiss the complaint?
     Murphy contends that his coniplaint should not have been
dismissed without allowing discovery. He asserts that the only way
he could substantiate his claims for relief was to use the
discovery process to demonstrate the arbitrary actions of the
Parole Board.   However, as previously discussed, Murphy could not
recover even if he proved the allegations in his complaint were
true.   Therefore, he was not entitled to discovery to prove his
allegations.
     The judgment of the District Court is affirmed.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.




We concur:
                                  December 30, 1992

                             CERTIFICATE O F SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Kevin Murphy
700 Conley Lake Rd.
Deer Lodge, MT 59722


David L. Ohler and James Obie
Dept. of Corrections and Human Services
1539-11th Ave.
Helena, MT 59620-1301


                                                ED SMITH
                                                CLERK O F THE SUPREME COURT
                                                STATE O F MONTANA
                                                                       1
                                                BY:         ,   I      2
                                                 Deputy     u
