Alward v. Golder

148 P.3d 424

Douglas J. ALWARD, Plaintiff-Appellant, v. Gary GOLDER, Mark Broaduss, Tommy Bullard, Raymond Cole, Jason Zwirn, and Jeff Peterson, Defendants-Appellees.

No. 05CA0120.

Colorado Court of Appeals, Div. II.

October 5, 2006.

Douglas J. Alward, Pro Se.

John W. Suthers, Attorney General, Alisha M. Burris, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees.

Opinion by Judge HAWTHORNE.

In this case concerning violation of a prison verbal abuse regulation, plaintiff, Douglas J. Alward, appeals the judgment dismissing his complaint against defendants, Gary Golder, Mark Broaduss, Tommy Bullard, Raymond Cole, Jason Zwirn, and Jeff Petersen all employees of the Colorado Department of Corrections (DOC). We affirm.

Plaintiff is an inmate in the custody of the DOC. In 2004, he filed an informal grievance alleging that he had been denied the use of microwave ovens as group punishment. In that grievance, he referred to prison officials as "wanna-be Nazis" and asserted that they employed "Gestapo tactics." Inmate also referred to prison officials as "doughnut eating, coffee swilling buffoons," "der fueher [sic]," "toad[ies]," and "tinpot Nazi pigs." Inmate further stated that the prison officials should "take your thumb out of your butt and do your job."

The responding prison official requested that inmate resubmit his grievance in a "more respectful manner." Instead of refiling an informal grievance, inmate elected to file a Step 1 grievance, and again referred to prison officials in highly derogatory terms. With regard to his use of such language, inmate stated, "[T]here's nothing you can do about it."

Defendant Peterson reviewed and denied inmate's Step 1 grievance based on the use of abusive language. However, he informed inmate that he could resubmit it using more appropriate language. Inmate refused to do so and filed a Step 2 grievance, which contained similar language.

Thereafter, defendant Peterson issued a notice of charge against inmate for verbal abuse, a Class II Rule 27 violation of the DOC Code of Penal Discipline (COPD), DOC Admin. Reg. 15001 (Sept. 1, 2003).

At his disciplinary hearing, inmate argued that the charge violated his constitutional right to seek redress from the courts. The hearing officer, in his written order, noted that there was a general reluctance to find a violation of the COPD because of the language used in a grievance. Nevertheless, the hearing officer noted that "[inmate] is clearly capable of expressing himself in a non-abusive manner" and found him guilty of the charged offense. Inmate's conviction was upheld on administrative appeal.

Inmate then brought this C.R.C.P. 106(a)(4) action in district court. He asserted that the prison disciplinary action effectively punished him for exercising his First Amendment right to petition the government for redress of his grievance; that the hearing officer improperly granted multiple continuances without placing the reason for the continuances on the record; that the hearing officer improperly discussed the case with the DOC Legal Affairs Office; that the DOC failed to investigate the case; that the hearing officer's decision was not supported by the record; and that Officers Cole and Peterson failed to attend or make themselves available at the hearing.

The district court found that the hearing officer's decision was supported by the record, that inmate's First Amendment right to petition for the redress of his grievances was not denied, and that the DOC did not commit any procedural errors in connection with his hearing. Accordingly, the district court affirmed the disciplinary conviction.

I. First Amendment Claim

Inmate contends that the DOC violated his First Amendment right to petition the government for redress of grievances by punishing him for the statements he made in his grievance. We disagree.

Prisoners have a constitutional right of access to the courts, which, by necessity, includes the right to pursue the administrative remedies that must be exhausted before a prisoner can seek relief in court. DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000); Hale v. Scott, 252 F.Supp.2d 728 (C.D.Ill.2003), aff'd, 371 F.3d 917 (7th Cir. 2004). Additionally, a prisoner retains those First Amendment rights that are not inconsistent with his or her status as a prisoner or with the legitimate penological objectives of the corrections system. Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). Nevertheless, restrictions on the First Amendment rights of a prisoner are constitutional if they are reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). However, there must be more than a formalistic logical connection between a regulation and a penological objective. Beard v. Banks, ___ U.S. ___, ___, 126 S.Ct. 2572, 2581, 165 L.Ed.2d 697 (2006).

The Supreme Court has identified four factors to consider in determining the reasonableness of a prison rule: (1) whether there is a "`valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it"; (2) "whether there are alternative means of exercising the right that remain open to prison inmates"; (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally"; and (4) the "absence of ready alternatives," that is, whether the rule at issue is an "`exaggerated response' to prison concerns." Turner v. Safley, supra, 482 U.S. at 89-90, 107 S.Ct. at 2261-62 (quoting Block v. Rutherford, 468 U.S. 576, 586, 104 S.Ct. 3227, 3232, 82 L.Ed.2d 438 (1984)).

Inmate relies on the Ninth Circuit's opinion in Bradley v. Hall, 64 F.3d 1276 (9th Cir.1995), to support his contention that his First Amendment rights were violated by defendants' actions. In Bradley, an inmate was disciplined for violating the prison's disrespect rules for making the following statement in his grievance:

"[The guard's] actions shows her misuse of her authority and her psychological disorder needs attention. Then you wonder why things happen like that guard getting beat down? I suggest you talk to this woman and have her act professionally instead of like a child." Bradley v. Hall, supra, 64 F.3d at 1278.

The inmate in Bradley brought a civil rights action challenging the validity of the disrespect rules as applied to the statement he made in his grievance. He asserted that his fear of discipline impermissibly burdened his constitutional right of access to the courts and his right to petition the government for redress of his grievances.

The Bradley court concluded that (1) the legitimate penological interests that rules serve could be accommodated without burdening a prisoner's fundamental right of access to the courts; (2) the application of the disrespect rule to the content of the inmate's written grievance represented an "exaggerated response" under Turner v. Safley, supra; and (3) the disrespect rule was facially valid, but invalid as applied to the inmate's written grievance. The court held that prison officials may not punish an inmate merely for using "hostile, sexual, abusive or threatening" language in a written grievance. Bradley v. Hall, supra, 64 F.3d at 1281-82.

In In re Parmelee, 115 Wash.App. 273, 63 P.3d 800 (2003), the court distinguished Bradley v. Hall, supra, and held that prison officials did not unreasonably sanction an inmate for violating the facility's insolence rule. The inmate there had referred to a correctional officer in a negative and threatening manner in a written grievance. The court observed that the purpose of the grievance procedure was to bring issues to the attention of prison officials, and concluded that it should not be used as a forum to make disparaging, degrading, and abusive comments about correctional staff.

In Hale v. Scott, supra, a federal district court also distinguished Bradley v. Hall, supra, and held an inmate's First Amendment rights were not violated because he was disciplined for asserting in a grievance that a female correctional officer was rumored to be having sex with male officers. The court held it was reasonable to discipline the inmate for making such an allegation in his grievance without evidentiary support. See also Ustrak v. Fairman, 781 F.2d 573, 580 (7th Cir.1986) (upholding punishment of an inmate for violating a regulation forbidding disrespect or insolence, concluding it was inimical to prison discipline to allow prisoners to abuse guards and each other; inmate described prison officials as "stupid lazy assholes" and challenged them to "bring their fat asses around the gallery at night").

Here, the grievance submitted by inmate contained abusive language that was unnecessary to explain the facts surrounding the subject of the grievance, and the district court found, with ample support in the record, that inmate was clearly capable of expressing himself in a nonabusive manner. We agree.

In his brief filed in this court, inmate asserts that there is no "requirement expressed in any policy that requires a prisoner to use genteel discourse to accommodate the affected sensibilities of a falsely modest prison guard." Inmate admits that he could have used other words and phrases, but insists that his derogatory statements about the prison guards were "sure to be understood even by a prison guard and convey[ed] necessary information in a succinct manner."

We conclude that (1) the DOC regulation precluding verbal abuse by an inmate has a valid, rational connection to the state's legitimate governmental interest in the safe and efficient operation of its prison system; (2) inmate could have filed a grievance without using the offensive language, and the language he chose was not relevant to the subject matter of the grievance even though he was given two...