Opinion
NO. 2012-CA-001356-MR
06-28-2013
GLENN D. ODOM APPELLANT v. PHILLIP PARKER; SKYLA GRIEF; DUSTIN CLARK; JOHN DUNN; AND HEATHER LOSSER APPELLEES
BRIEFS FOR APPELLANT: Glenn D. Odom, pro se Eddyville, Kentucky BRIEF FOR APPELLEES: Allison R. Brown Department of Corrections Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LYON CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL III, JUDGE
ACTION NO. 12-CI-00069
OPINION
AFFIRMING
BEFORE: COMBS, MAZE AND NICKELL, JUDGES. MAZE, JUDGE: Glenn D. Odom brings this appeal from a Lyon Circuit Court order dismissing his petition for declaration of rights. Having reviewed the record, we affirm.
Odom is an inmate of the Kentucky State Penitentiary (KSP). Within two weeks of his arrival at KSP, Odom had filed seven grievances. Prison officials determined that the grievances were frivolous and harassing, and he was consequently restricted to filing one grievance every ten business days for the next six months. Odom filed a petition for declaration of rights on April 19, 2012, claiming that the restriction was unconstitutional and was being applied in a retaliatory manner. He also asked the trial court to order prison officials to allow inmates in segregation to seek the assistance of a legal aide, and to order the warden to locate two money orders that had been mailed to him but which he had never received.
The trial court dismissed the petition on the grounds that Odom had not shown that KSP officials were violating prison policies by placing him on grievance restriction; that he had failed to show any harm produced by his inability to consult with a legal aide while pursuing a legitimate, non-frivolous claim; and that he had failed to show that he had exhausted his administrative remedies in attempting to recover the missing money orders. As additional grounds for dismissal, the trial court described his petition as legally without merit and factually frivolous pursuant to Kentucky Revised Statutes (KRS) 454.405. This appeal by Odom followed.
The statute provides in pertinent part that "At any time, and upon its own motion or on motion of a party, a court may dismiss a civil action brought by an inmate . . . if satisfied that the action is malicious or harassing or if satisfied that the action is legally without merit or factually frivolous." KRS 454.405(1).
Odom raises the following arguments on appeal: (1) that unwarranted grievance restrictions violate the First Amendment; (2) that placing "jailhouse lawyers" on grievance restriction violates the Equal Protection clauses of the federal and Kentucky constitutions; (3) that inmates have a protected right to assist unlettered and mentally ill inmates with filing grievances; (4) that inmates should be afforded due process before a six-month grievance restriction is imposed; (5) that the trial court failed to construe his pro se allegations of retaliation liberally; and (6) that prisoners should no longer be punished with grievance restrictions.
Kentucky Corrections Policy and Procedure 14.6(E)(3) provides that the warden may limit the number of grievances filed by an inmate if the warden determines that the inmate has abused the grievance procedure by filing numerous frivolous or harassing grievances.
Odom argues that the restrictions placed on the number of grievances he was permitted to file violated his First Amendment rights because the grievances were protected speech. The appellees argue that this argument is unpreserved because in his petition to the circuit court Odom argued only that being placed on grievance restriction and unable to speak to an inmate legal aide while in segregation violated his right to access the courts. Although Odom's petition did not expressly reference the First Amendment, it did include an argument that his "right to free expression" was being restricted. We will therefore review this issue.
Although there is a First Amendment right to file prison grievances, a prisoner must allege that the "retaliatory action does not advance legitimate penological goals, such as preserving institutional order and discipline." Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003) (internal citations omitted).
Odom's First Amendment claim must fail because he has never specified how the decision of the prison officials to impose the restriction overstepped their legitimate interest in preserving institutional order and discipline. According to Odom, he was transferred to KSP on February 22, 2012. The attachments to Odom's petition for declaration of rights include a memorandum from the KSP program director, dated March 23, 2012, which states that a total of eleven grievances had been filed by Odom. The memorandum describes his correspondence regarding the grievances as "somewhat inflammatory and borderline threatening." Under these circumstances, it was well within the legitimate penological goals of KSP officials to place some reasonable restriction on the number of grievances he was permitted to file.
As to the alleged restriction on his access to a legal aide, we note that there is no "abstract, freestanding right to a law library or legal assistance[.]" Lewis v. Casey, 518 U.S. 343, 350, 116 S.Ct. 2174, 2179, 135 L.Ed.2d 606 (1996). Instead, the inmate must "demonstrate that the alleged shortcomings in the . . . legal assistance program hindered his efforts to pursue a legal claim." Id. Odom has failed to show or even to allege that the lack of access to legal assistance caused actual injury, such as "the late filing of a court document or the dismissal of an otherwise meritorious claim." Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). In fact, as the trial court noted, since April 19, 2012, Odom had filed three civil actions and attempted to file a fourth in the Lyon Circuit Court.
Secondly, Odom argues that placing grievance restrictions on "jailhouse lawyers" such as himself is retaliatory and a violation of the Equal Protection Clause. This argument is unpreserved for appeal because it was never presented in the petition to the trial court, beyond a bare reference to the Fourteenth Amendment and brief description of himself as a "jailhouse lawyer" with no further elaboration at the conclusion of his reply to the defendants' motion to dismiss. "The Court of Appeals is without authority to review issues not raised in or decided by the trial court." Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989). Moreover, Odom's arguments regarding his status as a jailhouse lawyer are so vague and lacking in specific details as to evade our ability to meaningfully review the alleged errors. Lukjan v. Commonwealth, 358 S.W.3d 33, 45-46 (Ky. App. 2012) (citing Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v)).
Thirdly, Odom's argument that he was improperly placed on grievance restriction for reporting staff abuse of mentally ill inmates, and filing grievances on their behalf, was never raised before the trial court and cannot be addressed here.
Fourthly, he argues that inmates should be afforded due process before the imposition of grievance restrictions. This argument is also unpreserved.
Fifthly, he argues that the trial court failed to construe his allegations of retaliation broadly as is required for pro se pleadings. Nonetheless, "[w]hile we are willing to overlook inartful pleading by a pro se litigant, we are not willing to create an argument for him. A shotgun blast of random legal jargon and indiscriminate reference to a hodgepodge of legal authority does not a focused or articulate argument make[.]" Grant v. Lynn, 268 S.W.3d 382, 391 (Ky. App. 2008) abrogated on other grounds by Walker v. Blair, 382 S.W.3d 862 (Ky. 2012). Odom has failed to allege any retaliatory motive on the part of prison officials, apart from wishing to reduce the number of frivolous and harassing grievances by Odom. Moreover, he has not alleged any tangible harm resulting from the restriction.
Finally, he argues that grievance restrictions should be abolished altogether. This argument is unpreserved for our review. We note, however, that prison officials are afforded broad discretion in prison disciplinary matters. Yates v. Fletcher, 120 S.W.3d 728, 731 (Ky. App. 2003).
[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. In our view, such a standard is necessary if prison administrators ..., and not the courts, [are] to make the difficult judgments concerning institutional operations.Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261-62, 96 L.Ed.2d 64 (1987) (internal citations and quotation marks omitted). The imposition of restrictions on inmates who file excessive, frivolous grievances furthers the legitimate interest of ensuring that sufficient resources remain available to address the legitimate, non-frivolous grievances of other inmates.
For the foregoing reasons, the order of dismissal of the Lyon Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Glenn D. Odom, pro se
Eddyville, Kentucky
BRIEF FOR APPELLEES: Allison R. Brown
Department of Corrections
Frankfort, Kentucky