                                                     No. 8 9 - 0 8 8
                                  IN THE SUPREME COURT OF THE STATE OF MONTANA




JACK JOYNER,
                                      Plaintiff and Appellant,
               -vs-
JOHN ONSTAD, and GALLATIN COUNTY,
a political subdivision of the
State of Montana,
                                      Defendants and Respondents.




APPEAL FROM:                          District Court of the Eighteenth Judicial District,
                                      In and for the County of Gallatin,
                                      The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
               For Appellant:
                                      Jack Joyner, pro se, Belgrade, Montana
               For Respondent:

                                      A. Michael Salvagni, County Attorney; Marty Lambert,
                                      Deputy County Atty., Bozeman, Montana



                              I   -                      Submitted on Briefs:    Oct. 25, 1 9 8 9
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            C3               C,                             Decided:   December 21, 1989
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Justice Diane G. Rarz delivered the Opinion of the Court.


      Plaintiff, Jack Joyner, appeals the decision of the
District Court of the Eighteenth Judicial District, Gallatin
County, granting defendants' motion for summary judgment. We
affirm.
      Gallatin County hired Joyner on November 12, 1984 to
work as a jailer in the Gallatin County Detention Center. On
May 10, 1985, Joyner broke regulations by entering the cell
of a female prisoner without being accompanied by another
employee.   A fight ensued between Joyner and the female
prisoner.   As a result of this incident, Gallatin County
Sheriff John Onstad suspended Joyner's employment, pending an
investigation of the incident.
      After completing the investigation, Sheriff Onstad, by
written notice dated May 20, 1985, terminated Joyner's
employment because he improperly entered a prisoner's cell
and because of his abusive behavior.     Joyner appealed his
dismissal to the State Department of Labor and Industry on
January 31, 1986.    After a telephone hearinq, the appeals
division for the department sustained Joyner's dismissal as
proper by written order dated March 17, 1986. The Gallatin
County Board of County Commissioners subsequently voted
unanimously to uphold Joyner's termination.
      On February 27, 1987, Joyner filed a complaint in the
District Court of the Eighteenth Judicial District, Gallatin
County. In Count 11, Joyner alleged that Sheriff Onstad and
Gallatin County wrongfully discharged him and that they had
breached the implied duty of good faith and fair dealing.
Joyner then requested compensatory, punitive and exemplary
damages, costs of the suit, and for such other and further
relief as "may be met in the premises." The court set a jury
trial for December 19, 1988.   On November 23, 1988, Sheriff
Onstad and Gallatin County filed a motion for summary
judgment along with a supporting brief.
      On November 30, 1988, this matter came before the
District Court for hearing on pre-trial motions.      Joyner
requested an additional week--until December 6, 1988--to
reply to the summary judgment motion. On December 6, 1988,
Joyner failed to file a written response before the hearing.
The court, however, did hear Sheriff Onstad's and Gallatin
County's arguments in support of the motion for summary
judqment. Joyner claimed that his response would be typed
December 6, 1988 and submitted to the court.      The court
allowed Joyner to file a written response and ordered that
the matter would be taken under advisement at 5:00 p.m. on
December 6, 1988. Joyner never filed a response.
      On December 12, 1988, the District Court granted
Sheriff Onstad's and Gallatin County's motion for summary
judgment for the reason that Joyner failed to file an
opposing brief.     Judgment was entered against Joyner on
December 20, 1988. Joyner appeals.
       The sole issue raised on appeal is whether the District
Court erred in granting Sheriff Onstad's and Gallatin
County's motion for summary judgment.
       Summary judqment is appropriate when no genuine issue
exists as to any material facts and the moving party is
entitled to a judgment as a matter of law.         Rule 56(c),
M.R.Civ.P.   The burden first rests with the moving party, who
may   rely   upon   pleadings,  depositions,   answers   to
interrogatories, admissions on file, and affidavits, to
establish that no genuine issue exists as to any material
facts. Rule 56(c), M.R.Civ.P. The burden then shifts to the
party opposing the motion.     Bills v. Hannah, Inc. (Mont.
1988), 749 P.2d 1076, 1079, 45 St.Rep. 179, 182. The rule
specifically provides that the adverse party
           may not rest upon the mere allegations or
           denials   of   his   pleading,  but   his
           response, by affidavits or as otherwise
           provided in this rule, must set forth
           specific facts showing that there is a
           genuine issue for trial. If he does not
           SO   respond,    summary   judgment,   if
           appropriate, shall be entered against
           him.
Rule 56 (e), M.R.Civ.P.
      In the present case, Sheriff Onstad and Gallatin County
relied upon § 2-9-111, MCA, and Bieber v. Broadwater County
(Mont. 1988), 759 P.2d 145, 45 St.Rep. 1218, to argue to the
District Court, both orally and in writing, that they had
immunity from Joyner's suit and that their motion for summary
judgment should be granted. Joyner, on the other hand, did
not deny nor rebut defendants' arguments.    Joyner also did
not set forth any facts showing that a genuine issue existed
for trial. The District Court had before it the pleadings,
the decision of the Montana Department of Labor and Industry,
and portions of the interrogatories. The court also held a
hearing in which Joyner failed to argue, either orally or in
writing, that Sheriff Onstad's and Gallatin County's motion
for summary judgment should be denied.
      The District Court did not err in granting Sheriff
Onstad's and Gallatin County's motion for summary judgment in
light of Rule 56 (e), M.R.Civ.P.  As stated before, this rule
provides that summary judgment, if appropriate, shall be
entered for the movant if the opposing party does not respond
and set forth specific facts showing that a genuine issue
exists as to a material fact. Merely because the District
Court did not state specifically that "there is no genuine
issue as to any material fact" does not warrant a reversal of
the District Court's decision. Furthermore, Joyner did not
rebut nor deny Sheriff Onstad's and Gallatin County's motion
for summary judgment nor did he set forth facts showing that
there is a genuine issue of material fact for trial.      The
record    supports the District Court's determination that no
genuine issue exists a s to any material fact.
         Affirmed.
