                               NO.    92-345
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1993


EUGENE BRUE,
            Plaintiff and Appellant,
     -vs-
STATE OF MONTANA and
PARK COUNTY, MONTANA,
                                                    -
            Defendants and Respondents.



APPEAL FROM:     District Court of the First Judicial District,
                 In and for the County of Lewis and Clark,
                 The Honorable Jeffrey M. Sherlock, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 Eugene Brue, Pro Se, Livingston, Montana
            For Respondents:
                 Betsy Brandborg, Special Assistant Attorney
                 General, Risk Management and Tort Defense Division
                 Helena, Montana


                                 Submitted on Briefs:     March 25, 1993
                                               Decided:   May 18, 1993
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.



      This is an appeal from the District Court of the First
Judicial District, the Honorable Jeffrey Sherlock presiding. In an
action originally heard by the Honorable Byron Robb in. Park County,
the appellant Eugene Brue (Brue) lost and filed an action against
the State of Montana and P a r k County alleging that their employees
had violated BrueTs civil rights, and that Judge Robb had violated
his oath of office; obstructed justice; committed conspiracy,
collusion, deceit and malfeasance of office; and violated several
rules of statutory construction.      This action was dismissed by
Judge Sherlock on the basis of judicial immunity.      We affirm the
judgment of the District Court.
      Since the filing of the briefs in this appeal, Brue has filed
with this Court the following documents: a "Petition for Emergency
Restraining Orderr1 on March 24, 1993; and on April 7, 1993, a
"Notice of Exception" and a ?ISupplement to Petition for Writ of
re vie^.^^   These matters were dismissed by separate order on April
20, 1993.

      Brue, a pro se litigant, was prosecuted in P a r k County before
Sudge Robb for violation of Park County zoning ordinances.      Judge
Robb found Brue guilty of the violations and permanently enjoined
him from continuing to violate the ordinances.        Brue failed to
appeal the injunction order issued by Judge Robb, the appropriate
remedy, and instead sued the State, filing an action in t h e First
Judicial District before Judga Sherlock who ultimately dismissed
the action.
     The complaint dismissed by Judge Sherlock challenged the
constitutionality of both legislative and judicial immunity.          It
claimed that Brue was denied his right to a jury trial and alleged
violations of the rules of statutory construction in I § 1-2-101,
-103, and -104, MCA.     By order dated May 6, 1992, Judge Sherlock
granted the State's Rule 12(b)(6), M.R.Civ.P., motion, dismissing
Brue's complaint against Judge Robb on the basis of judicial
immunity.
     The issue before this Court is whether Judge Sherlock's order
of May 6, 1992, dismissing Brue's complaint with prejudice was
proper.     The new issues, such as the petitioner's claim that his
property was taken without compensation, are not properly before
this Court for consideration. This Court will not consider issues
or theories of a case raised for the first time on appeal. Weaver
v. Law Firm of Graybill, Ostrem, Warner     &   Crotty (1990), 246 Mont.
175, 803 P.2d 1089; Montana Deaconess Medical Center v. Doherty
(1990), 241 Mont. 243, 786 P.2d 669.
     In     addition,   we   find,   that   Brue    failed   to   request
certification of the District Court's judgment as final, as Rule
54 (b), M.R.Civ.P., requires. See Roy v. Neibauer (1980), 188 Mont.
81, 610 P.2d 1185.      We realize that Brue is appearing pro se; in
the interest of judicial economy, we address the substance of his
claims.
     As the State noted in its brief, it is well settled under
federal common law that a judye is entitled to absolute immunity
from a suit for money damages when acting within the scope of his
or her official judicial capacity. Only if the judge's actions are
outside his or her official capacity may the judge be liable for
resulting damages.       Mireles v. Waco (1991), - U.S. -,            112
S.Ct. 286, 116 L.Ed.2d 9. The United State Supreme Court has held
that a judgers shield of immunity remains intact even if he or she
acted in error, with malice, or in excess of authority.          Stump v.
Sparkman (1978), 435 U.S. 349, 356, 98 S.Ct. 1099, 1105, 55 L.Ed.2d
331, 339.
     Brue's complaint against Judge Robb arose from the order he
issued on January 29, 1992, enjoining Brue from using his property
as a junk yard.       As the issuance of the injunction was a "lawful
discharge of an official duty associated with judicial actions of
the court," Judge Robb has absolute immunity. Section 2-9-112 (2),
MCA, states: IrA member, officer, or agent of the judiciary is
immune from suit for damages arising from his lawful discharge of
an official duty associated with judicial actions of the court."
See Great Falls v. Price (1989), 238 Mont. 99, 775 P.2d 1260;
Knutson v. State (1984), 211 Mont. 126, 683 P.2d 488.
     As for Brue's claim that Judge Robb violated his oath of
office, obstructed justice, and committed conspiracy, collusion,
deceit and malfeasance of office, such bald allegations of untruth
are unsupported by the record.       Nor is there support for Brue's
claim that his civil rights were violated.        Further, there is no
right   under   the    United   States   Constitution or   the    Montana
constitution to a jury trial for an action in equity.
     To date Brue has filed numerous documents in this appeal.   Of
the matters raised in those documents the only issue warranting
this Court's attention is his challenge to the First Judicial
District Court's dismissal of the complaint.          Other matters
assigned by Brue are not properly before the Court.
     The State requests that we consider an award of sanctions to
demonstrate that this Court will not tolerate the abuse recorded
here. We conclude that with the signing of the original pleading,
without even taking into consideration the other numerous documents
he has filed in this one appeal alone, Brue clearly is in violation

of Rule 11, M.R.Civ.P.   However, after careful consideration of his
pro se status and his litigation history in federal as well as
state court, we conclude that a non-monetary sanction, in the form
of a very stern warning, is appropriate.
     Brue is hereby warned that before initiating any further
actions in this Court or a district court of this state, he must
pay close attention to the pleading requirements of Rule 11,
M.R.c~v.P,    If any further action is commenced in state courts
arising out of this same set of operative facts and based on the
same or similar legal theories, Brue shall be subject to monetary
sanctions as well as possible limits upon the filing of future
lawsuits.
     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 concu




.,<
                                     May 18, 1993

                            CERTIFICATE OF SERVICE

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


EUGENE BRUE
RTE 85, Box 4054
Livingston, MT 59047

DEE ANN G. COONEY
Counsel for Park County
UTICK & GROSFIELD
P.O. Box 512
Helena, MT 59624-0512

BETSY BRANDBORG
Special Assistant Attorney General
Risk Management and Tort Defense Division
Rm. 111, Mitchell Building
Helena, MT 59620




                                                ED SMlTH
                                                CLERK OF THE SUPREME COURT
                                                STATE OF MONTANA
