December 31, 2013
CHUCK DEVLIN, Plaintiff and Appellant,
LEROY KIRKEGARD, Warden of the Montana State Prison; KEN COSBY; MYRON BEESON; ROXANNE WIGERT; CARLA STRUTZEL; NANCY SHARKEY; B-UNIT STAFF, in their official capacity as employees of Montana State Prison and in their individual capacities; LLOYD MAIER; DAVID CASTERLINE; and WILLIAM THOMPSON, Defendants and Appellees.
Chuck Devlin, a pro se litigant, appeals an order from the Montana Third Judicial District Court, Powell County, which dismissed his complaint with prejudice on July 23, 2013. Devlin filed a motion for reconsideration of the judgment with the District Court on July 30, 2013, and a Notice of Appeal on August 20, 2013. Ten days after Devlin's Notice of Appeal was filed, the District Court responded to Devlin's modon for reconsideration with an order modifying its previous dismissal to be without prejudice. The District Court retained jurisdiction to file its order dismissing the complaint without prejudice pursuant to M. R. App. P. 4(5)(a)(iv).
The District Court correctly dismissed Devlin's appeal due to procedural deficiencies in serving his complaint on the defendants and Devlin's failure to exhaust his administrative remedies prior to filing his complaint with the District Court. All defendants, including the state, must be properly served with both a summons and a complaint. M. R. Civ. P. 4(d)(1); M. R. Civ. P. 4(1) ("The state, as well as any state board or agency, must be served by delivering a copy of the summons and complaint to the attorney general and any other party prescribed by statute."). Although Devlin suggests that he did not need to file his claim with the Department of Administration because "[t]ort remedies have not been requested or applied for, " his complaint requests "general, special, punitive, and exemplary damages" for allegedly tortious conduct under both state and federal law. Devlin's tort claims against the state must first be filed with the Department of Administration. Cottonwood Hills v. Dept. of Labor and Ind., 238 Mont. 404, 407, 777 P.2d 1301, 1303 (1989); § 2-9-301, MCA.
Devlin's principal argument on appeal is that the District Court should not have dismissed his complaint with prejudice. This Court will not decide moot issues—those that have ceased to exist, are no longer live, or for which we can provide no relief Plan Helena, Inc. v. Helena Reg'I Airport Auth. Bd, 2010 MT 26, ¶ 10, 355 Mont. 142, 226 P.3d 567. The District Court's order modifying its dismissal to be without prejudice constitutes "an intervening event or change in circumstances" that renders moot Devlin's request for reversal of the dismissal of his appeal with prejudice. State v. Benn, 2012 MT 33, ¶ 9, 364 Mont. 152, 274 P.3d 47. The District Court's modified order provides Devlin the opportunity to exhaust his administrative remedy and refile his complaint.
Finally, we observe that Devlin is not entitled to court-appointed counsel in this civil proceeding. Stewart v. Rice, 2013 MT 55, ¶21, 369 Mont. 203, 296 P.3d 1174.
IT IS THEREFORE ORDERED that Devlin's appeal is DISMISSED as moot.
The Clerk is directed to return the District Court Record to the Clerk of the District Court and to give notice of this Order by mail to Chuck Devlin and counsel of record.