                                          No. 04-305

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 58


ANTHEL BROWN,

              Petitioner and Appellant,

         v.

DEPARTMENT OF CORRECTIONS,

              Defendant and Respondent.



APPEAL FROM:         District Court of the First Judicial District,
                     In and for the County of Lewis and Clark, Cause No. ADV 2004-172
                     The Honorable Dorothy McCarter, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Anthel Brown, pro se, Crossroads Correctional Center, Shelby, Montana

              For Respondent:

                     Honorable Mike McGrath, Montana Attorney General, Diana Leibinger
                     Koch, Special Assistant Attorney General, Helena, Montana



                                                       Submitted on Briefs: October 6, 2004

                                                                   Decided: March 8, 2005


Filed:



                     __________________________________________
                                       Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Anthel Brown, appearing pro se, appeals the District Court’s dismissal of his petition

for injunctive relief against the Department of Corrections (“DOC”). We reverse and

remand.

                                           ISSUE

¶2     Did the District Court err when it dismissed Brown’s petition for injunctive relief on

the grounds that his claim was res judicata?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     Brown was sentenced to the Montana State Prison (“MSP”) on November 8, 1976,

for several offenses. For most of his time at MSP, Brown was primarily in the high security

area, known as the “High Side” of the prison. In March 2002, Brown, along with sixty-four

other prisoners, filed Quigg v. Slaughter, Cause No. CDV 2002-175 (“Quigg”), in the

Montana First Judicial District Court, which remains pending before that court. In Quigg,

the plaintiffs allege that DOC has moved some of them to various regional or private prisons

where treatment, training, and rehabilitation opportunities are not available. The plaintiffs

seek declaratory relief to preclude DOC from transferring them to any prison other than

MSP.

¶4     After Brown signed on as a plaintiff in Quigg, he came before the Parole Board for

the first time in January 2003. At that time, he had been incarcerated for twenty-seven years,

and had spent a total of about two months in the low security area, or “Low Side” of MSP.

Brown was denied parole. The Parole Board apparently cited Brown’s failure to complete

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sex offender treatment as one reason for the denial. Sex offender treatment is apparently

available only on the Low Side at MSP.

¶5     In June 2003, Brown was reclassified at MSP and sent to the Low Side where he

could obtain sex offender treatment. A Unit Manager on the Low Side objected to Brown’s

classification, and his classification was “overridden” and he was returned to the High Side.

While he was in the process of appealing that decision, Brown was transferred to the

Crossroads Correctional Center (“CCC”) in Shelby, Montana, where no sex offender

treatment programs are available.

¶6     On March 5, 2004, Brown filed a pro se “Petition for Mandatory Injunctive Relief”

in the Montana First Judicial District Court, Lewis and Clark County, under Cause No. ADV

2004-172, arguing that the transfer to CCC and denial of reclassification to Low Side denied

his due process rights. Brown argued that he has a liberty interest in parole, but he cannot

meet the requirement that he obtain sex offender treatment because DOC has kept him in

locations where such treatment is unavailable. Brown requested that the court “mandatorily

enjoin” DOC and order DOC to transfer him to the Low Side at MSP so that he could obtain

the sex offender treatment required by the Parole Board.

¶7     On March 10, 2004, the District Court sua sponte dismissed Brown’s petition with

prejudice. The court concluded that Brown was barred by res judicata from raising his

claims in Cause No. ADV 2004-172 because he was a named Plaintiff in CDV 2002-175,

which the District Court concluded presented identical claims. From this dismissal, Brown

timely appeals.

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                                 STANDARD OF REVIEW

¶8     We review a district court’s conclusions of law to determine whether its interpretation

of the law is correct. State v. Kennedy, 2004 MT 53, ¶ 13, 320 Mont. 161, ¶ 13, 85 P.3d

1279, ¶ 13 (citation omitted).

                                       DISCUSSION

¶9     Did the District Court err when it dismissed Brown’s petition for injunctive relief on

the grounds that his claim was res judicata?

¶10    Brown argues that the District Court erred when it concluded that his petition was

barred by res judicata. He points out that Quigg is still pending before the District Court and

has not been resolved. He further argues that Quigg and the present case are distinguishable

because--while both cases involve a legal question over DOC’s authority to transfer an

inmate from MSP to CCC, where no rehabilitative programs are available--Quigg does not

demand the same relief as he seeks in the present case, nor does it involve a question of

whether an inmate’s liberty interest in parole is violated by transferring that inmate to a

location where he is unable to participate in a treatment program which is required by the

Parole Board for parole eligibility.

¶11    Brown maintains that the cases upon which the District Court relied in dismissing his

case are distinguishable because of the lack of a final judgment in Quigg, and because the

elements of res judicata have not been met as the subject matter of Quigg and the present

action are not identical. Brown further explains that Quigg requests declaratory relief, while

he seeks mandatory injunctive relief as a remedy, and that Quigg does not demand that any

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CCC inmates be returned to MSP, while he personally requests this relief. He claims that

Quigg does not allege any inmates are being irreparably injured when they are transferred

to facilities other than MSP, while in the instant case, he alleges that he is being irreparably

injured because he will be ineligible for parole for so long as he fails to obtain sex offender

treatment, and he will be unable to obtain sex offender treatment for so long as DOC houses

him in locations where such treatment is unavailable.

¶12    The State responds that the District Court correctly dismissed Brown’s petition on the

basis of res judicata because the parties, subject matter, and issues are the same as those

pending in Quigg, or in the alternative, that the plaintiffs in Quigg could have brought these

same issues. The State further argues that the District Court could have dismissed Brown’s

petition on the grounds that he failed to state a claim for relief as inmates do not have a

liberty interest in remaining in any particular prison or custody classification. The State

claims that, although Brown would like to differentiate the subject matter of his case and

Quigg by claiming that, unlike the plaintiffs in Quigg, he will suffer irreparable injury if his

prayer for relief is not granted, this is insufficient to make the two claims distinguishable.

The State maintains that, simply because Brown is more specific in his current petition, the

ultimate issue remains whether or not DOC has the authority to move inmates who are

sentenced to MSP to facilities other than MSP.

¶13    The doctrine of res judicata provides that the parties to an action in which a judgment

on the merits has been rendered, or their privies, are barred from relitigating the same cause

of action in a second proceeding. Audit Services, Inc. v. Anderson (1984), 211 Mont. 323,

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327, 684 P.2d 491, 493 (citation omitted). Four criteria must be met before a plea of res

judicata can be sustained: the parties or their privies must be the same; the subject matter

of the action must be the same; the issues must be the same and relate to the same subject

matter; and the capacities of the persons must be the same in reference to the subject matter

and to the issues between them. Audit Services, 211 Mont. at 327, 684 P.2d at 493 (citing

Smith v. County of Musselshell (1970), 155 Mont. 376, 378, 472 P.2d 878, 880). However,

and significantly, the primary requirement is that there be a judgment on the merits. There

has been no such judgment entered in Quigg. Moreover, where two distinct causes of action

exist, they may be sued on separately notwithstanding the fact that they arise from the same

general course of events, and it makes no difference for purposes of res judicata that they

might have been united in a single suit. Audit Services, 211 Mont. at 328-29, 684 P.2d at

494.

¶14    In the case at hand, the District Court’s determination that Brown’s claim is barred

by res judicata was based upon the fact that Quigg is pending in a district court. As we

stated in Audit Services, the parties to an action in which a judgment on the merits has been

rendered cannot relitigate the same cause of action in a second proceeding. Audit Services,

211 Mont. at 327, 684 P.2d at 493. No judgment on the merits having been rendered in

Quigg, Brown’s case is not properly dismissed on res judicata grounds. This being

dispositive, we need not reach a determination on whether the subject matter and issues of

the two cases are identical.

                                     CONCLUSION

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¶15   For the foregoing reasons, we reverse the District Court’s dismissal of Brown’s

petition and remand for further proceedings consistent with this Opinion.


                                                /S/ PATRICIA O. COTTER



We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ JIM RICE




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