Nezperce v. Salmonsen

• Decision Date: 22 November 2022
• Docket Number: OP 22-0619
• Parties: JOSEPH DENNY NEZPERCE, Petitioner, v. JAMES SALMONSEN, Warden, Montana State Prison, Respondent.
• Court: United States State Supreme Court of Montana

JOSEPH DENNY NEZPERCE, Petitioner, v. JAMES SALMONSEN, Warden, Montana State Prison, Respondent.

No. OP 22-0619

Supreme Court of Montana

November 22, 2022

ORDER

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 Department 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. McDermott v. McDonald, 2001 MT 89, ¶¶ 19-20, 305 Mont. 166, 24 P.3d 200. "Under both Montana and federal precedent, parole is a privilege and not a right." McDermott, ¶ 19. We point out that Nezperce did not include a copy of the Board's decision.

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, "[a]n 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 confinement). 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 Communication...