A06-774

David P. Peterson,

Appellant,

vs.

MCF-Faribault,

Respondent.

Filed January 30, 2007

Affirmed

Hudson, Judge

Rice County District Court

File No. C1-05-1468

David P. Peterson, OID # 123362, 970 Pickett Street North, Bayport, Minnesota 55003-1490 (pro se appellant)

Lori Swanson, Attorney General, Richard L. Varco, Jr., Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2127 (for respondent)

Considered and decided by Hudson, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

Appellant David P. Peterson challenges the district court’s order granting summary judgment and dismissing as frivolous his claim that the Minnesota Correctional Facility-Faribault (“MCF-FRB”) improperly deducted $5 from his inmate account in order to pay a cost of his confinement. Because the district court properly found that no issue of material fact existed, it did not err in dismissing appellant’s claim with prejudice. We affirm.

FACTS

At all times relevant to this appeal, appellant David P. Peterson was an inmate at MCF-FRB.[1] He filed a summons and complaint in Rice County District Court on August 30, 2005, challenging the MCF-FRB staff’s authority to deduct $5 from his inmate account to pay for a required identification card. His previous identification card had become unusable. Appellant alleged that the staff at MCF-FRB billed appellant’s account for the new identification card without obtaining his permission to do so.

On September 16, 2005, MCF-FRB moved to dismiss the complaint pursuant to Minn. R. Civ. P. 12.02(f) for failure to state a claim upon which relief may be granted. Pursuant to Minn. Stat. § 563.02, subd. 3 (2004), the district court dismissed appellant’s claim with prejudice on December 12, 2005, holding that the claim was frivolous. Appellant filed an appeal on January 30, 2006. By order dated March 7, 2006, this court determined that “[b]ecause the December 13 order is not independently appealable and a judgment had not been entered when this appeal was filed, dismissal of the appeal is warranted.”

On February 24, 2006, the district court issued an amended order to dismiss appellant’s claim, and judgment was entered on February 27, 2006. Appellant filed an appeal on April 19, 2006, seeking review of the February 24 order dismissing appellant’s civil action. This court filed an order on May 12, 2006, stating that “an order dismissing an action is not appealable and the proper appeal is from the resulting judgment.” This court stated that it would “construe [this] appeal to be from the February 27 judgment.”

D E C I S I O N

Appellant argues that the district court erred in granting summary judgment, dismissing appellant’s claim as frivolous. This court reviews a grant of summary judgment de novo to determine whether there is a disputed issue of material fact and whether the district court erred in its application of the law. Zip Sort, Inc. v. Comm’r of Revenue, 567 N.W.2d 34, 37 (Minn. 1997). “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

The district court shall grant a motion for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). No genuine issue for trial exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)). “[T]he party resisting summary judgment must do more than rest on mere averments.” Id. at 71.

The Minnesota Commissioner of Corrections may make deductions not only from compensation paid to inmates but also from “other funds in an inmate account.” Minn. Stat. § 243.23, subd. 3 (2004). The commissioner may make deductions in a stated order of priority, which includes “room and board or other costs of confinement.” Id., subd. 3(6). Here, the district court found that other costs of confinement “include fees for ID-cards required for security purposes at correctional facilities.” The district court thus concluded that the commissioner’s deduction of the $5 fee from appellant’s account was appropriate.

Appellant counters and argues that Henderson v. MCF, a case in which a default judgment for $5 was granted to an inmate for an ID-card fee, is analogous to this case. Henderson v. MCF, No. C6-04-1200 (Minn. Dist. Ct. April 14, 2005). However, as the district court properly noted, in Henderson, “the granting of that judgment was not based upon the merit of the claim but was based upon the failure of the Defendant [respondent MCF] to respond to the claim.” Here, respondent MCF-FRB did respond to the claim. Therefore, the district court decided the matter “upon the merit of the claim,” and dismissed appellant’s claim with prejudice as frivolous. Minn. Stat. § 563.02, subd. 3 (2004). Viewing the evidence in a light most favorable to appellant, there is no genuine issue for trial, and respondent is entitled to judgment as a matter of law.

Appellant next argues that the $5 deduction was prohibited by Minn. Stat. § 241.08 (2004). This statute simply governs the management of inmate monies by commissioners and executive officers of various institutions, including the handling of inmate bank deposits. Id. Section 241.08 references section 243.23, subdivision 3, regarding the payout of funds from inmate accounts. But nothing in section 241.08 prevents the commissioner from deducting money from inmates’ accounts.

For the first time on appeal, appellant asserts a due-process claim. As a general rule, the court of appeals must consider “only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.” Thayer v. Am. Fin. Advisors, Inc., 322 N.W.2d 599, 604 (Minn. 1982). Consequently, we decline to address appellant’s due-process claim.

Affirmed.

[1] The appellant is currently an inmate at the Stillwater correctional facility.