J. Nezperce v. Salmonsen

11/22/2022

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 22-0619

OP 22-0619

JOSEPH DENNY NEZPERCE, NOV 2 2 2022 Bowen Greenwood (-curt Petitioner, CI cf - .-•tote of .'...Aontana

v. ORDER JAMES SALMONSEN, Warden, Montana State Prison,

Respondent.

Appearing as a self-represented Petitioner, Joseph Denny Nezperce asserts that the Board of Pardons and Parole (Board) should have granted Nezperce parole and that the Board violated his Due Process rights by its denial. Nezperce contends that his incarceration is illegal because the Board's denial is "unusual and retaliatory due to the fact [of the] filed grievances against MSP Policy regarding grooming and canteeen products `MSP Policy No. 441" because Nezperce contends that Nezperce is a "Transwoman within a male prison . . . ."1 Nezperce states that the Montana State Prison (MSP) and the Departrnent of Corrections (DOC) do not have policies for transgender people. Nezperce concludes that his/her civil rights under the Due Process clauses for the State and Federal Constitutions as well as Montana's Human Rights Act have been violated. Nezperce requests that this Court investigate the cause of the parole denial. This Court does not conduct investigations. We have stated many times that the Board has broad discretion and authority to reach its decisions. McDerrnott v. McDonald, 2001 MT 89, ¶11 19-20, 305 Mont. 166, 24 P.3d 200. "Under both Montana and federal precedent, parole is a privilege and not a right." McDerrnott, ¶ 19. We point out that Nezperce did not include a copy of the Board's decision.

Nezpercce does not provide in the instant Petition what pronouns he/she prefers to use.

We obtained a copy of the Board's case disposition. In April 2022, Nezperce had an appearance before the Board for a parole hearing. The Board denied Nezperce parole at that time because Nezperce did not have clear conduct. Pursuant to the Board's administrative rules, lain offender in a secure facility must have 120 days free of major disciplinary violations." Admin. R. M. 20.25.305(5) (2012). The Board continued the parole hearing to October 2022, noting that the hearing was waived at that point. The cause of Nezperce's denial was based upon the lack of clear conduct. Turning to the other claims, Nezperce has not demonstrated illegal incarceration. Section 46-22-101(1), MCA. The claims concerning discrimination, retaliation, and civil or human rights violations cannot be reached through this remedy of a writ of habeas corpus. See Gates v. Missoula Cnty. Comm'rs., 235 Mont. 261, 262, 766 P.2d 884, 884-85 (1988) (the writ of habeas corpus is not the remedy for constitutional claims concerning conditions of confinernent). Nezperce mentioned submitting grievences about the canteen, but it is not apparent whether Nezperce reported any allegations or complaints of discrimination, harassment, or retaliation via DOC's Policy for grievances. See DOC Policy No. 3.3.5 concerning Inmate/Staff Comrnunication Methods and DOC Policy No. 3.3.3 for Offender Grievance Prograrn. "Grievances should provide prison officials with fair notice of a problem and thus an opportunity to address the problem before a lawsuit is filed." Diamond v. Owens, 131 F. Supp. 3d 1346, 1358 (M.D. Ga. 2015) (citing Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir. 2004)). Nezperce has other available rernedies before coming to this Court. Nezperce should utilize the grievance procedure under DOC Policy No. 3.3.3, which would assist any allegations concerning custody and care under a 42 U.S.C. § 1983 claim. Nezperce may seek relief by filing a complaint in the Powell County District Court where a record is developed for this Court to review on appeal. Nezperce has not demonstrated illegal incarceration. Therefore, IT IS ORDERED that Nezperce's Petition for Writ of Habeas Corpus is DENIED and DISMISSED.

The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record and to Joseph Denny Nezperce personally. I', 04 DATED this Z-e----day of November, 2022.

i Justice

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Justices