No. DA 06-0180 IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 112N

JOHN AND CHRISTINE MIDDLEMISS, Plaintiffs and Appellants,

v. CRYSTAL FOSTER, c/o MSP; BOB GEACH, Former Second Shift Captain, MSP; TOM WOOD, Security Major, MSP; MIKE MAHONEY, Warden, MSP; BILL SL AUGHTER, Director Department of Corrections, Defendants and Respondents.

APPEAL FROM: The District Court of the Third Judicial District, In and For the County of Powell, Cause No. DV 2005-023, Honorable Ted Mizner, Presiding Judge

COUNSEL OF RECORD: For Appellants: John Middlemiss (pro se), Montan a State Prison, Deer Lodge, Montana Christine Middlemiss, (pro se), Conrad, Montana For Respondents: Hon. Mike McGrath, Montana Attorney General, Colleen E. Ambrose, Special Assistant Attorney General, Helena, Montana

Submitted on Briefs: December 13, 2006 Decided: May 8, 2007 Filed:

__________________________________________ ClerkJustice Patricia O. Cotter deliver ed the Opinion of the Court. ¶1 Pursuant to Section I, Para graph 3(d)(v), 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 with the Clerk of the Supreme Court and its case title, Supreme Court cause number and disp osition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 John Middlemiss is an in mate at the Montana Stat e Prison and has been

incarcerated since 1998. He and Christine married in 2004. On March 11, 2005, the

Middlemisses filed a “Notice of Complaint” (Complaint) against several current and former employees of the Department of Corre ctions (DOC) alleging various civil rights violations, torts, and allegati ons of emotional and mental in juries. The Third Judicial District Court dismissed their Complaint and denied their Motions for Entry of Default Judgment against the Defendants. We affirm. ISSUES ¶3 A restatement of the issues before this Court is: ¶4 Did the District Court abuse it discreti on in denying the Middlemisses’ Motions for Entry of Default Judgment against the Defendants? ¶5 Did the District Court err in granting the Defendants’ M. R. Ci v. P. 12(b) (Rule 12(b)) motion to dismiss the Complaint?

FACTUAL AND PROCED URAL BACKGROUND

2¶6 In March 2005 the Middle misses filed a Complaint against Defendants Foster, Geach, Wood, Mahoney and Slaughter (Defenda nts). The Complaint appears to allege various civil rights violations, torts, and alle gations of emotional and mental injuries. Counsel for Foster, Wood, Ma honey and Slaughter accepted service on April 20, 2005. Defendant Geach was not pr operly served until Octobe r 18, 2005. The Montana Attorney General received a le tter with a copy of the Co mplaint on May 9, 2005. ¶7 On May 11, 2005, Middlemi sses moved for entry of default judgment against Geach on the ground that he had not filed a timely answe r. Counsel for the remaining Defendants filed a special app earance opposing the motion, arguing that Geach, a former DOC employee, had not at that point been served wi th process and therefore the District Court did not have jurisdiction over him. ¶8 On June 20, 2005, Foste r, Wood, Mahoney and Slaught er filed a Rule 12(b) Motion to Dismiss, or in the Alternative, Motion for a More Definite Statement. The Motion asserted that the Complaint was “so vague and ambiguous th at Defendants cannot reasonably be required to fra me a responsive pleading.” ¶9 On December 20, 2005, Middlemisses file d a motion for default judgment against all of the Defendants claiming that none of them had filed timely answers to their Complaint. On February 13, 2006, the District Court granted the Defendants’ motion to dismiss the Complaint and denied Middlemiss es’ Motion for Entry of Default Judgment. ¶10 Middlemisses appeal. STANDARD OF REVIEW

3¶11 Whether a complaint fails to state a clai m upon which relief can be granted is a

conclusion of law. We review a district court’s grant of a Ru le 12(b) motion to dismiss to determine whether the court’s interp retation of the law is correct. Cape v. Crossroads

Correctional Center , 2004 MT 265, ¶ 10, 323 Mont. 140, ¶ 10, 99 P.3d 171, ¶ 10 (internal citations omitted). ¶12 We review a court’s grant or denial of a motion for entry of default judgment to

determine if the court a bused its discretion. Johnson v. Matelich , 163 Mont. 329, 517 P.2d 731 (1973). DISCUSSION ¶13 The District Court concluded in its Op inion and Order that the Middlemisses’ Complaint fell “far short of presenting a clai m based upon the law.” It identified several inadequacies in the Co mplaint, including but not limited to, “extensive intermingling of legal terms and legal theory to such a degree that the [c]ourt cannot clearly discern what Plaintiffs are alleging and what legal theori es upon which they are relying.” The court

also observed that the Middlemi sses did not clearly indicate whether they were suing the Defendants in their official cap acities or as individuals. ¶14 We acknowledge that in denying the Middl emisses’ request for default judgment, the District Court incorrectly stated that De fendant Geach never had been properly served and therefore default judgment could not be taken against him. Moreover, the court

failed to address the Middlemisses’ motion fo r default judgment vis-à-vis the remaining Defendants. We conclude, ho wever, that because the Distri ct Court correctly dismissed

4the Complaint against all of the Defendants under Rule 12(b ), this error is harmless and

does not constitute an abuse of the court’s discretion. ¶15 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. It is manifest on the record before us that the District Court correctly dismissed the Middlemisses’ Compla int for its failure to state a claim upon which relief could be granted. ¶16 For the foregoing reasons, we affirm th e judgment of the District Court.

/S/ PATRICIA COTTER

We Concur:

/S/ W. WILLIAM LEAPHART /S/ JOHN WARNER /S/ BRIAN MORRIS /S/ JIM RICE

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