Opinion
OP 22-0295
06-21-2022
DANNY LEE WARNER JR., Petitioner, v. MONTANA DEPARTMENT OF CORRECTIONS Respondent.
ORDER
Danny Lee Warner has filed an "Application for Writ of Mandamus," pursuant to §§ 27-26-102 and 27-26-201, MCA, against the Department of Corrections (DOC). Warner explains that on September 1, 2021, he received twenty-four disks, pertaining to his underlying criminal case. He states that he "had them in his possession only long enough to determine what they were and that there were indeed twenty-four disks." Warner further states that he did not see them again until April 14, 2022, because an employee of the Montana State Prison had taken them. Warner alleges that he is missing disk #21 and that in its place is "a sticky note that read '#21 legal calls' instead." Warner requests that this Court "issue a mandate posthaste and without notice or service, as neither are required unless the DOC refuses this mandate." Sections 27-26-204 and 27-26-205, MCA.
Warner misapplies the statutes for mandamus. Service of a pleading is required under Montana statutes as well as the appellate rules of this Court. Section 26-27-205, MCA; M. R. App. P. 10(2). "The writ must be served in the same manner as a summons in a civil action[.]" Section 26-27-205, MCA. "Copies of all papers, including any transcript, filed by any party . . ., at or before the time of filing, be served by the party on all other parties to the appeal or review." M. R. App. P. 10(2). This Court does not serve pleadings upon the request of a Petitioner, such as Warner.
Along with Warner's failure to serve, he has not demonstrated that he is entitled to the performance of a clear legal duty by the DOC. Section 27-26-102, MCA; Smith v. Missoula Co., 1999 MT 330, ¶ 28, 297 Mont. 368, 992 P.2d 834. He mentions that he filed a grievance about his missing disk and that he spoke to the Unit Manager, "to no avail." Warner's remedy is with the DOC and Montana State Prison. Therefore, IT IS ORDERED that Warner's Application for Writ of Mandamus is DENIED and DISMISSED.
The Clerk is directed to provide a copy of this Order to counsel of record along with a copy of his pleading and affidavit and to Danny Lee Warner personally.