No. 88-361


### IN THE SUPREME COURTOF THE STATE OF MONTANA 1988

RANDALLM. RUDOLPH

## , Plaintiffand Appellant,-vsANN DUSSAULT,et al., Defendantand Respondent.

APPEAL FROM: District Court of the Fourth JudicialDistrict, In and for the County ofMissoula, The Honorable JamesB. Wheelis, Judgepresiding. COUNSEL OF RECORD: ForAppellant: RandallM. Rudolph, pro se,Warm Springs,Montana For Respondent: Robert L. Deschamps, 111,CountyAttorney, Missoula, Montana; Michael Sehestedt,Deputy County Attorney

Submitted on Briefs: Sept. 23, 1988 Decided: November 1, 1988 Filed: k 3 0 c3 1;:"- -- 

# . , Clerk

5 /"Mr. Justice Fred J. Weber delivered the Opinion of the Court.

Mr. Rudolph appeals from the dismissal withprejudice of his pro se complaint by the District Court for the Fourth JudicialDistrict, Missoula County. We affirm asmodified in this opinion. The issue is vrhether the District Court erred in dismissing Mr. Rudolph's complaint on its ownmotion. Mr. Rudolphwas arrested, tried, and convicted on charges of robbery. While he 97as av~aitingsentencing following that trial, he commenced this civil action. We are unable to determine with certainty the specific allegations of the complaint because the original district court file has been lost. However, from the materials we have before us it appears that the complaint alleged that the defendants, listed as "city cornrnissioners'~,the "unknown" chief of police, and 2 "unknown" city police officers, allowed Mr. Rudolph's constitutional rights to be violated during and immediately followinghis arrest. Mr. Rudolph claimed insufficient grounds for arrest, an unconstitutional line-up, and inadequate investigation of the crime with which he was charged. Although Mr. Rudolph filed his complaint with the District Court, there isno indication thathe ever served or gave any notice of the complaint to the persons named as defendants. The court dismissed the complaint on its own motion fourmonths after itwas filed.

Did the District Court err in dismissing Mr. Rudolph's complainton its ownmotion? In dismissing Mr. Rudolph's complaint, the District Court stated that on its face, the complaintwas "frivolous and fails to state any cognizable cause of action." The District Court did not explain its reasoning further. The

### record concerning Mr. Rudolph's criminal conviction is now before this Court on appeal and we have taken notice of that record. The individuals listed by name as defendants in this suit were, at the time of this action, county commissioners of Missoula County. The complaint does not allege any connection between county commissioners and the action of city police which is claimed to have deprived Mr. Rudolph of 

### his rights. We conclude that as toAnn Dussault,Barbara Evans, and Janet Stevens,dismissalwith prejudicewasproper. As to the remaining defendants, we recognize that Mr. Rudolph is appearing pro se and will not be held to the standards of pleading expected of attorneys. Though it does not expressly name the statute, Mr. Rudolph's complaint, broadly viewed, states a cause of action under 42 U.S.C. S 

### 1983 for violation of civil rights. In such a case, collateral estoppel appliesas to previous criminalproceedings. Allen v. McCurry (1980), 449 U.S. 90, 66 L.Ed.2d 308, 101 S.Ct. 411. Collateral estoppel is the doctrine that issues previously argued and ruled upon cannot be relitigated. Aetna Life and Cas. Ins. Co. v. Johnson (1984), 207 Mont. 409, 414-16, 673 P.2d 1277, 1280-81. Mr. Rudolph's claims may be barred under a theory of collateral estoppel as a result of the decision in the criminal proceeding against him. The District Court in which this action was filed was the courtwhich had heard the criminal case. It could properly take judicial notice, as have we, of that matter. However, sinceMr. Rudolph's criminal conviction is on appeal before this Court, we conclude that dismissal of his complaint with prejudicewas premature. We hold that although the matters raised in the complaint may be barred by collateral estoppel, the dismissalwith prejudice was not proper. We amend the dismissal to provide as to all parties a dismissal without prejudice. We admonish Mr. Rudolph that he is required to have an adequate basis for the filing of another complaint.

We Concur: 

## A