Abbott v. Blades, Docket No. 34892 (Idaho App. 8/10/2009)

• Decision Date: 10 August 2009
• Docket Number: Docket No. 34892.
• Parties: DENNIS E. ABBOTT, Plaintiff-Appellant, v. RANDY BLADES, Warden, SGT. WALLACE, c/o ALLISON NIELSON, LT. DANIEL BROMLEY, Defendants-Respondents.
• Court: Court of Appeals of Idaho

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DENNIS E. ABBOTT, Plaintiff-Appellant, v. RANDY BLADES, Warden, SGT. WALLACE, c/o ALLISON NIELSON, LT. DANIEL BROMLEY, Defendants-Respondents.

Docket No. 34892.

Court of Appeals of Idaho.

Filed August 10, 2009.

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.

Order denying motion for default judgment and order granting summary judgment, affirmed.

Dennis E. Abbott, Boise, pro se appellant.

Hon. Lawrence G. Wasden, Attorney General; Mary K. Magnelli, Deputy Attorney General, Boise, for respondent.

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

GUTIERREZ, Judge.

Dennis E. Abbott appeals from the district court's denial of his motion for default judgment and grant of summary judgment dismissing his constitutional and tort claims. We affirm.

I. FACTS AND PROCEDURE

Abbott, an inmate in the custody of the Idaho Department of Correction (the Department) filed a complaint against several Department employees (Respondents) on July 6, 2007, alleging a violation of his due process rights and conversion and defamation tort claims. The claims arose from his allegation that prison staff failed to forward his hobby craft magazine after he had moved to a different unit. Abbott filed a motion for default judgment, and the Respondents filed a motion to dismiss the action, alleging improper service of the complaint. The district court denied both motions, and the Respondents subsequently filed an answer.

Thereafter, the Respondents filed a motion for summary judgment, arguing that there existed no genuine issue of material fact and that Abbott had failed to state a claim upon which relief could be granted because his federal rights had not been violated and he had not complied with the notice and bond requirements of the Idaho Tort Claims Act (ITCA). The district court granted the Respondents' motion for summary judgment and awarded attorney fees to the Respondents ruling that Abbott's action was frivolous and failed to state a claim upon which relief could be granted.

Abbott filed a motion for reconsideration, which the district court denied. He then filed a notice of appeal, including a request for partial waiver of transcript fees. The district court denied the request.

II. ANALYSIS

A. Partial Waiver of Transcripts on Appeal

We first address Abbott's contention that the district court erred in denying his motion for partial waiver of transcript fees. The district court denied Abbott's motion for partial waiver of transcript fees on appeal in a written decision, stating:

Indigent prisoners can seek to have their court fees waived under I.C. § 31-3220A which states "If the court finds that the prisoner is an indigent prisoner, the court may order that action to proceed without payment of any court fees." The key is whether the prisoner is "indigent."

The term "indigent prisoner" is defined in I.C. § 31-3220A(1)(b) as "... a prisoner who has no funds in his inmate account for the twelve (12) months preceding filing of the action, or the period of incarceration, whichever is less." (Emphasis added). To demonstrate indigency, the prisoner must file an affidavit of inability to pay court fees and a certified copy of his inmate account reflecting the activity in such account over the period of his incarceration or the past twelve months, whichever is less. See I.C. § 31-3220A(2)(b), (c).

In this case, Abbott filed the inmate account information and an affidavit. These documents reflect that Abbott has the ability to pay the filing fee and any other fees associated with this appeal. According to both documents, Abbott has had substantial funds available to him.

Abbott received payment of $4,000 on February 14, 2007, and on April 11, 2007, another $3,000 to his inmate account.

Thus, Abbott's average monthly deposits were $516.71 for the past twelve month period. See I.C. § 31-2220A. Likewise, the average daily balance for 6 months before this litigation was $2,345.65. Id. The amount of $469.13 reflects 20% of the average monthly deposits. Id. He currently has nearly $600 in his inmate account.

Therefore, in an exercise of discretion, the Court finds Dennis E. Abbott is not entitled to a partial payment of fees and, therefore, denies his Motion.

We note that in rendering its decision, the district court did not apply the version of I.C. § 31-3220A in effect at the time. Rather, the court applied the version of the statute in effect prior to the legislature's amendment of the statute in 2002. However, even assuming the denial of partial waiver of transcripts was error, it is of no consequence to Abbott's instant appeal because the transcripts are not needed where the issues raised involve solely questions of law. See Bernard v. Roby, 112 Idaho 583, 733 P.2d 804 (Ct. App. 1987) (The decision to dismiss the appeal when the transcripts are not provided was an abuse of discretion where the appeal included questions of law that could be decided without the transcripts.). We therefore consider Abbott's issues on appeal on the merits.

B. Motion for Default

Abbott contends that the district court erred in denying his motion for default judgment. We review a district court's grant or denial of a motion for default for abuse of discretion. Mastrangelo v. Sandstrom, Inc., 137 Idaho 844, 849-50, 55 P.3d 298, 303-04 (2002); McKinney v. State, 133 Idaho 695, 704, 992 P.2d 144, 153 (1999); Johnson v. State, 112 Idaho 1112, 1114, 739 P.2d 411, 413 (Ct. App. 1987). In exercising its discretion, the district court may consider factors such as the reasons for the failure to respond, the adequacy of notice, whether the non-defaulting party has been substantially prejudiced by the delay, and the merits of the underlying claim for relief. McKinney, 133 Idaho at 704, 992 P. 2d at 153; Johnson, 112 Idaho at 1114, 739 P.2d at 413.

In his brief to this Court, Abbott states that the district court denied his motion for default because, according to the district court, "the Appellant was suing the state and that the Idaho Court Rules didn't apply to the state as it would if the defendants would be citizens of the state."

In an order denying Abbott's motion for "Permission to File an Interlocutory Appeal" from the denial of his motion for default, the district court stated that "[c]ontrary to Abbott's contention the Court did not state that the rules do not apply to the State. The district court simply pointed out to Abbott that the rules provide a different method for effecting service on a State entity than on an individual."

Idaho Rule of Civil Procedure 4(d)(5) states that

[u]pon the state of Idaho, or any agency thereof, service shall be made by delivering two (2) copies of the summons and complaint to the attorney general or any assistant attorney general.... In all actions brought under specific statutes requiring service to be made upon specific individuals or officials, service shall be made pursuant to the statute in addition to service as provided above.

In addition, as required by Rule 4(d)(5), the unique service requirements of the ITCA must also be complied with given that Abbott alleged state law tort claims in his complaint. The relevant statute provides that "in all actions under this act against the state or its employee the summons and complaint shall be served on the secretary of state with a copy to the attorney general...." I.C. § 6-916. Thus, for Abbott to have perfected service, he would have had to personally serve both the secretary of state and the attorney general or an assistant attorney general.

According to Abbott, the service of process was initially accomplished by his mailing the complaint and summons to the Idaho Department of Corrections on May 22, 2007, and again by the delivery by a process server, Elizabeth Drennon, of the complaint and summons to the Respondents on July 20, 2007. In her amended affidavit, Drennon stated that "[s]ervice was accepted by Joy, the secretary at the front desk on behalf of the department's attorney generals [sic]" and that according to "Joy," because "none of the attorney generals [sic] were in, she would accept service and see that they received the complaint."

We first note that the neither the Idaho Rules of Civil Procedure, nor the ITCA provide for service of process by mail. Thus, Abbott's act of mailing the complaint and summons to the Department did not trigger the Respondents' obligation to respond. Drennon's second attempt at service of process was legally deficient, where personal service was not accomplished on the state attorney general or any assistant attorney general. The service upon a front desk secretary does not meet the requirements for service of process on the state attorney general or any assistant attorney general. Thus, there was ample evidence that Abbott did not complete adequate service of process.

In addition, Abbott has not identified any unfair prejudice resulting specifically from the delay in the filing of Respondents' answer to the complaint. See Johnson, 112 Idaho at 1115, 739 P.2d at 414. Considering these factors, we conclude that the district court did not abuse its discretion in denying Abbott's motion for default judgment.

C. Summary Judgment

Abbott also argues that the district court erred in granting the Respondents' motion for summary judgment. We first note that summary judgment under I.R.C.P. 56(c) is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. On appeal, we exercise free review in determining whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Edwards v. Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct. App. 1986). When assessing a motion for summary judgment, all controverted facts are to be liberally construed in favor of the nonmoving party. Further...