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Ellenburg v. Kirkegard

Supreme Court of Montana

December 12, 2017

MICHAEL ELLENBURG, Plaintiff and Appellant,
LEROY KIRKEGARD, et al., Defendants and Appellees.

          Submitted on Briefs: November 15, 2017

         APPEAL FROM District Court of the Third Judicial District, In and For the County of Powell, Cause No. DV-16-92 Honorable Ray Dayton, Presiding Judge.

          For Appellant: Michael Ellenburg, Self-Represented, Deer Lodge, Montana

          For Appellees: Michael R. King, Risk Management & Tort Defense Division, Helena, Montana Ira Eakin, Montana Department of Corrections, Helena, Montana



         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, 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 Michael Ellenburg is an inmate in the Montana State Prison (MSP). He brought suit in November 2016 against former and current employees of the Department of Corrections (DOC) and of the Board of Pardons and Parole (Board) (collectively, the prison officials). Among other claims, the complaint alleged that the prison officials violated his rights in making decisions concerning his parole conditions and medical treatment and breached a 2015 settlement agreement. The Third Judicial District Court granted the prison officials summary judgment. Ellenburg appeals the summary judgment ruling and claims that the court should have allowed discovery before dismissing his case. We affirm.

         ¶3 This Court reviews a district court's grant of summary judgment de novo. Wilson v. Brandt, 2017 MT 290, ¶ 11, Mont., P.3d (citation omitted). A court may grant summary judgment only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3). We review a district court's discovery ruling for an abuse of discretion. Miller v. Goetz, 2014 MT 150, ¶ 9, 375 Mont. 281, 327 P.3d 483.

         ¶4 Ellenburg is serving a twenty-five-year prison sentence arising from the revocation of his 1999 sentence for two felony convictions.[1] In January 2014, Ellenburg filed a complaint against several DOC employees in the Powell County District Court. He alleged in part that he was denied due process in his prison disciplinary proceedings, which potentially could affect a grant of his parole. Ellenburg and the DOC entered into a settlement agreement on June 2, 2015. The agreement stipulated that if Ellenburg could maintain 120 days of clear conduct, then a designated MSP official would submit a parole plan that would request an in-person appearance before the Board and would state that Ellenburg's previous discipline record was not relevant to his success on parole. As part of the settlement, Ellenburg agreed to dismiss four pending lawsuits against MSP, DOC, and their employees.

         ¶5 On July 8, 2015, Ellenburg achieved 120 days of clear conduct. On August 27, 2015, he had a reappearance before the Board. The Board denied his parole request but recommended placement in a pre-release center. Ellenburg returned to the Powell County District Court, claiming breach of the settlement agreement. The District Court construed the DOC employees' response to his renewed complaints as a motion for summary judgment and granted it. Ellenburg appealed the District Court's decision, and we affirmed. Ellenburg v. Wilson, No. DA 16-0057, 2016 MT 187N, ¶¶ 2, 10, 385 Mont. 539, ___P.3d ___(Ellenburg 31).

         ¶6 This Court's unpublished decision upholding the settlement agreement concluded:

Ellenburg clearly manifested intent to be bound by the settlement agreement when he signed it, and again when he filed suit alleging the DOC Defendants breached it. . . . The District Court correctly found that a valid, enforceable contract existed between Ellenburg and the DOC Defendants. [citation omitted.] Ellenburg has not shown that the DOC Defendants breached any of the settlement agreement's terms. The DOC Defendants have shown that Ellenburg has not dismissed his pending lawsuits as required by the settlement agreement. The District Court did not err in enforcing the settlement agreement.

Ellenburg 31, ¶ 9.[2]

         ¶7 On January 28, 2016, while his appeal was pending, Ellenburg had a parole hearing. The Board conditionally granted parole and required an Intensive Supervision Program (ISP) because Ellenburg's parole plan was not complete. Ellenburg sought relief through a petition for a writ of habeas corpus with this Court. He argued that the Board's decision rendered his incarceration illegal and that his due process rights and liberty interest were violated. After receiving a response from the DOC, we denied his petition. Ellenburg v.Kirkegard and Board, No. OP 16-0267, 385 Mont. 539, 382 P.3d 866 (table) (Jul. 26, 2016) (Ellenburg 32). We held that Ellenburg ...

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