ROBERT L. ROSE, Petitioner and Appellant,
STATE OF MONTANA, Respondent and Appellee.
Submitted on Briefs: July 11, 2018
FROM: District Court of the Third Judicial District, In and
For the County of Powell, Cause No. DV-17-106 Honorable Ray
Dayton, Presiding Judge
Appellant: Robert L. Rose, Self-Represented, Deer Lodge,
Appellee: Montana Department of Corrections, Robert Lishman,
Special Assistant Attorney General, Helena, Montana
Jeremiah Shea, Justice
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion, 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.
Robert L. Rose appeals the Orders of the Third Judicial
District Court, Powell County, denying his Application for
Preliminary Injunction and denying his Motion to Alter or
Amend Judgment. We affirm.
On November 21, 2017, Rose, an inmate at Montana State Prison
(MSP), filed an ex parte Application for a Preliminary
Injunction or Temporary Restraining Order (TRO) requesting
the District Court to (1) enjoin and/or temporarily restrain
MSP and the Department of Corrections (DOC) from violating
building codes at MSP by placing more than fifteen inmates in
a housing unit already at maximum capacity; (2) hold a
hearing where evidence may be presented; (3) issue a TRO
protecting Rose and other inmates from potential retaliation;
and (4) award any costs associated with this cause. On
December 1, 2017, the District Court denied Rose's
Application for injunctive relief, reasoning that the
Application failed to satisfy the requirements of §
27-19-201(2), MCA, and that Rose had additional remedies at
his disposal, including serving the DOC with an action to
enjoin it from placing more than fifteen inmates in each
living area, thus allowing both parties to brief their
arguments and to be heard on the matter. On December 14,
2017, Rose filed an ex parte Motion to Alter or Amend
Judgment pursuant to M. R. Civ. P. 59(e). On December 22,
2017, the District Court denied Rose's Motion, reasoning
that a M. R. Civ. P. 59(e) motion is proper only after a
trial is completed or a judgment entered, and in this case,
no trial was held and no judgment was entered. Rose appeals.
We will not disturb a district court's decision to grant
or deny a preliminary injunction absent a manifest abuse of
discretion. Yockey v. Kearns Props., LLC, 2005MT 27,
¶ 12, 326 Mont. 28, 106 P.3d 1185. A manifest abuse of
discretion is one that is "obvious, evident, or
unmistakable." State v. BNSF Ry. Co., 2011 MT
108, ¶ 16, 360 Mont. 361, 254 P.3d 561 (internal
citations omitted). We review for correctness a district
court's conclusions of law. Yockey, ¶ 12. A
district court's refusal to grant an injunction is an
appealable order. Benefis Healthcare v. Great Falls
Clinic, LLP, 2006MT 254, ¶ 13, 334 Mont. 86, 146
P.3d 714 (citing M. R. App. 1(b)(2), now M. R. App. 6(3)(e)).
Section 27-19-201, MCA, provides in pertinent part:
A[ ] [preliminary] injunction order may be granted in the
(1) when it appears that the applicant is entitled to the
relief demanded and the relief or any part of the relief
consists in restraining the commission or continuance of the
act complained of . . .
(2) when it appears that the commission or continuance of
some act during the litigation would produce a great or
irreparable injury to the applicant . . . .
district court should review the record and should consider
all applicable subsections of § 27-19-201, MCA, when
determining whether to grant or deny a preliminary
injunction. See Sweet Grass Farms, Ltd. v. Bd. of Cnty.
Comm'rs, 2000 MT 147, ¶¶ 27, 29, 35, 300
Mont. 66, 2 P.3d 825. A district court's grant or denial
of a preliminary injunction must be accompanied by findings
of fact and conclusions of law, as required by M. R. Civ. P.
52(a). Snavely v. St. John, 2006 MT 175, ¶ 10,
333 Mont. 16, 140 P.3d 492. However, if a district
court's "findings and conclusions are clear to this
Court, failure to state them in the recommended form is not
substantial error." Snavely, ¶ 11. An
injunction will not restrain an act already done. BNSF
Ry. Co., ¶ 19 ("[w]here the entire injury is
in the past, an injunction cannot issue. . . .");
see also Povsha v. City of ...