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 

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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. 

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¶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 

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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. 

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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. 

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¶21 Affirmed. 

/S/ JAMES C. NELSON 

We Concur: 

/S/ KARLA M. GRAY 

/S/ PATRICIA COTTER 

/S/ JOHN WARNER 

/S/ JIM RICE 

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