Keith Lamont Farmer v. Tennessee Department of Corrections

                                                                                                  12/09/2022
                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                               Assigned on Briefs August 1, 2022

      KEITH LAMONT FARMER v. TENNESSEE DEPARTMENT OF
                       CORRECTION

                  Appeal from the Chancery Court for Lauderdale County
                      No. 16-054 Martha B. Brasfield, Chancellor
                         ___________________________________

                               No. W2021-01252-COA-R3-CV
                           ___________________________________


Keith Lamont Farmer (the “Petitioner”), an inmate in the West Tennessee State
Penitentiary (“WTSP”), filed suit against Tennessee Department of Correction (“TDOC”
or “the State”) after Petitioner received a disciplinary infraction. Petitioner filed a petition
for writ of certiorari in the Chancery Court for Lauderdale County (the “trial court”)
seeking review of the disciplinary proceedings. The State filed a motion to dismiss,
claiming that Petitioner’s case was barred by Tennessee Code Annotated section 41-21-
812. The trial court granted the State’s motion, and Petitioner appealed to this Court.
Discerning no error, we affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

KRISTI M. DAVIS, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and W. NEAL MCBRAYER, J., joined.

Keith Lamont Farmer, Wartburg, Tennessee, Pro se.

Herbert H. Slatery III, Attorney General and Reporter, Andrée Sophia Blumstein, Solicitor
General, and Garrett D. Ward, Assistant Attorney General, for the appellee, Tennessee
Department of Correction.


                                  MEMORANDUM OPINION1


       1
           Rule 10 of the Tennessee Court of Appeals Rules provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion would
                                         BACKGROUND

        This appeal arises from the dismissal of a petition for writ of certiorari (the
“petition”) filed by the Petitioner. All of Petitioner’s pleadings are handwritten, and his
claims are difficult to discern. The petition appears to stem from a disciplinary report
prepared by corrections officers at WTSP on February 13, 2020. The report provides that
on February 11, 2020, Petitioner approached a corrections officer at WTSP and informed
her that Petitioner would drop a previously filed grievance against the officer if she would
“change[] his phone back to unlimited phone calls.” Based on this interaction, Petitioner
was charged with “defiance” for “attempting to intimidate” the corrections officer. A
disciplinary report hearing summary provides that a hearing was held on March 23, 2020.
Petitioner was found guilty of attempting to intimidate the corrections officer, but it is
unclear from the report what Petitioner’s punishment was. Petitioner unsuccessfully
appealed the infraction to the TDOC commissioner.

       On June 23, 2020, Petitioner filed his petition in the trial court. Although difficult
to understand, the petition seems to raise several arguments regarding the disciplinary
hearing. Petitioner claimed that the corrections officers involved made false statements
and were in a civil conspiracy to retaliate against Petitioner and deprive him of his rights
to free speech. Petitioner also claimed that several TDOC policies were violated during
the disciplinary hearing and that Petitioner’s due process rights were violated. Essentially,
Petitioner sought general judicial review of WTSP’s disciplinary proceedings against him.
Petitioner attached a certified copy of his prison trust fund account and an affidavit asking
to proceed in forma pauperis. See 

.

        On August 13, 2020, the State filed a motion to dismiss. It claimed that Petitioner
owed $607.15 in unpaid court costs from another civil lawsuit filed in the Chancery Court
for Bledsoe County. The State maintained that the petition was therefore subject to
dismissal pursuant to Tennessee Code Annotated section 41-21-812. The State also argued
that the petition should be dismissed because Petitioner “failed to file an affidavit stating a
complete list of every lawsuit or claim ever filed by Petitioner, in derogation of [section]
41-21-805.”

        Petitioner filed several handwritten pleadings in response. Petitioner argued that
the trial court “may allow an inmate who has not paid any costs or expenses assessed
against the inmate to file a claim for injunctive relief seeking to enjoin an act . . . that creates
a substantial threat of irreparable injury or serious physical harm to the inmate.” The
particular threat of injury or harm to which Petitioner referred, however, was unclear.
Petitioner also seemed to aver that because he had been allowed to proceed in forma


       have no precedential value. When a case is decided by memorandum opinion it shall be
       designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or
       relied on for any reason in any unrelated case.

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pauperis in a different proceeding in federal court,2 his outstanding court costs in the
Bledsoe County action did not bar the present action, notwithstanding section 41-21-812.

       The trial court entered an order granting the State’s motion on September 28, 2021.
Petitioner filed a timely appeal to this Court on October 19, 2021.3

                                                   ISSUES

        Petitioner raises two issues for review, which we have slightly restated for clarity:

      1.     Whether Tennessee Code Annotated section 41-21-812 is unconstitutional
because access to courts cannot be contingent on wealth.

      2.    Whether the Petitioner’s claim for writ of certiorari to the trial court was
cognizable.

                                               DISCUSSION

        The trial court dismissed the petition on a motion to dismiss. The “standard of
review on appeal from a trial court’s grant of a motion to dismiss is de novo, with no
presumption of correctness as to the trial court’s legal conclusions, and all allegations of
fact in the complaint below are taken as true.” Brown v. Ogle, 

 (Tenn.
Ct. App. 2000) (citing Stein v. Davidson Hotel Co., 

 (Tenn. 1997)).

        As best we can discern, Petitioner argues that section 41-21-812 is unconstitutional.4
At the outset, we note that Petitioner is proceeding pro se in this appeal, as he did in the
trial court. Nonetheless, Petitioner “must comply with the same standards to which lawyers
must adhere.” Watson v. City of Jackson, 

 (Tenn. Ct. App. 2014). As
we have previously explained,

        [p]arties who decide to represent themselves are entitled to fair and equal
        treatment by the courts. The courts should take into account that many pro se
        litigants have no legal training and little familiarity with the judicial system.
        However, the courts must also be mindful of the boundary between fairness
        to a pro se litigant and unfairness to the pro se litigant’s adversary. Thus, the

        2
          Petitioner attached an order granting him leave to appeal in forma pauperis from an unrelated case
in the United States District Court for the Western District of Tennessee.
        3
          Petitioner filed another pleading in the trial court on November 2, 2021, titled “seek relief against
the above trial-court order filed on [September] 28, 2021.” Because Petitioner had already perfected an
appeal to this Court, however, the trial court lacked jurisdiction over the case and entered no further orders.
See First Am. Trust Co. v. Franklin-Murray Dev. Co., L.P., 

 (Tenn. Ct. App. 2001).
        4
           It is unclear whether Petitioner asserts that the statute is facially unconstitutional or
unconstitutional as applied.

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       courts must not excuse pro se litigants from complying with the same
       substantive and procedural rules that represented parties are expected to
       observe.

 at 926–27 (quoting Jackson v. Lanphere, No. M2010-01401-COA-R3-CV, 

, at *3 (Tenn. Ct. App. Aug. 12, 2011)). Pro se litigants may have “little familiarity
with the rules of this Court.” City of La Vergne v. LeQuire, No. M2016-00028-COA-R3-
CV, 

, at *2 (Tenn. Ct. App. Oct. 19, 2016). “For this reason, this Court
has previously stated that ‘the courts give pro se litigants who are untrained in the law a
certain amount of leeway in drafting their pleadings and briefs.’” Burford v. Tenn. Dep’t
of Corr., No. M2020-00575-COA-R3-CV, 

, at *6 (Tenn. Ct. App. July
9, 2021) (quoting Hessmer v. Hessmer, 

 (Tenn. Ct. App. 2003)).

        Nonetheless, having reviewed the record, we conclude that Petitioner’s issues lack
merit for multiple reasons. First, even if we appropriately consider Petitioner’s pro se
status, his issues are waived for failure to comply with Tennessee Rule of Appellate
Procedure 27 and for failure to raise the issues in the trial court. Second, this Court
considered arguments similar to those made by Petitioner recently and soundly rejected
them.

      Turning first to the issue of waiver, Tennessee Rule of Appellate Procedure 27
provides, in pertinent part, that an appellant’s brief shall contain “[a]n argument, which
may be preceded by a summary of argument,” setting forth:

              (A) the contentions of the appellant with respect to the issues
              presented, and the reasons therefor, including the reasons why the
              contentions require appellate relief, with citations to the authorities
              and appropriate references to the record (which may be quoted
              verbatim) relied on; and

              (B) for each issue, a concise statement of the applicable standard of
              review (which may appear in the discussion of the issue or under a
              separate heading placed before the discussion of the issues)[.]

Tenn. R. App. P. 27(a). Compliance with Rule 27 requires appropriate references to the
record. Masserano v. Masserano, No. W2018-01592-COA-R3-CV, 

, at
*4 (Tenn. Ct. App. May 22, 2019). “Failure to substantially comply with Rule 27 will
result in waiver of the issue on appeal.” See 

 (collecting cases). Failure to “develop any
legitimate argument” may also result in waiver of issues, as “[i]t is not the role of the
courts, trial or appellate, to research or construct a litigant’s case or arguments for him or
her.” Smith v. Hughes, 

, 648 (Tenn. Ct. App. 2021) (quotation omitted).

       Here, Petitioner’s brief is incredibly difficult to decipher, not only because it is

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entirely handwritten, but also because portions of the argument appear to be long quotes
from statutes and case law. Large portions of the brief lack record citations. Accordingly,
Petitioner’s argument is insufficiently developed for purposes of Tenn. R. App. P. 27.

        Nonetheless, the very general gist of Petitioner’s argument is gleanable from the
brief, and “this Court gives pro se litigants a certain amount of leeway in their filings[.]”
Masserano, 

, at *5 (citing Hessmer, 

). This Court
may also “in its discretion, suspend or relax the procedural rules in a given case for good
cause.” Burford, 

, at *6 (quoting City of La Vergne, 

,
at *2; Tenn. R. App. P. 2).5 Assuming Petitioner’s brief passes Rule 27 muster, however,
the deficiencies in the brief, particularly the lack of record citations, dovetail with another
issue with Petitioner’s briefing. While Petitioner asserts that Tennessee Code Annotated
section 41-21-812 is unconstitutional because it impedes Petitioner’s access to the courts
and violates the Equal Protection and Due Process clauses, the State argues that Petitioner
waived these arguments by failing to raise them in the trial court. Even bearing in mind
the certain amount of leeway afforded to Petitioner’s filings, we must agree with the State
on this point.

       “‘It is axiomatic that parties will not be permitted to raise issues on appeal that they
did not first raise in the trial court.’” Ellithorpe v. Weismark, 

 (Tenn.
2015) (quoting Powell v. Cmty. Health Sys., Inc., 

 (Tenn. 2010)).
Accordingly, issues raised for the first time on appeal are waived, and “[t]his principle
applies equally to constitutional challenges.” 

      Petitioner did not argue in the trial court that section 41-21-812 is unconstitutional.6
We therefore agree with the State that this issue is waived.

        Out of an abundance of caution, however, we note that the primary arguments
posited by Petitioner have been rejected by the courts of this State. Petitioner contends that
section 41-21-812 violates Petitioner’s rights to access the courts under the Tennessee
Constitution,7 as well as the Equal Protection and Due Process clauses of the United States
Constitution. The statute provides in pertinent part that “a clerk of a court may not accept
for filing another claim by the same inmate until prior fees, taxes, costs and other expenses
        5
           Further, the State has not asserted in its brief that Petitioner’s issues are waived for failure to
comply with Rule 27.
         6
           Petitioner does, however, make conclusory statements in his trial court pleadings about violations
of his various Constitutional rights, asserting for example that the corrections officers at WTSP conspired
with one another to violate Petitioner’s right to free speech. Petitioner also alleged at one point that he was
subject to cruel and unusual punishment in derogation of the Eighth Amendment to the United States
Constitution. Nonetheless, we agree with the State that at no point in the trial court proceedings did
Petitioner assert that section 41-21-812 itself is unconstitutional.
         7
           Article 1, section 17 of the Tennessee Constitution provides that “all courts shall be open; and
every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course
of law, and right and justice administered without sale, denial, or delay.”

                                                    -5-
are paid in full.” 

(a).

       In arguing that section 812 is unconstitutional, Petitioner relies on Clifton v.
Carpenter, 

, 767–68 (6th Cir. 2014). In that case, section 812 was held
unconstitutional as applied to bar a petitioner whose parole had been revoked from
appealing the parole board’s decision because he owed $1,449.15 in court costs from prior
cases. In 2017, however, our Supreme Court examined Clifton and determined that section
41-21-812 does not offend principles of due process or equal protection. See Hughes v.
Tenn. Bd. of Prob. & Parole, 

 (Tenn. 2017). The Court distinguished
Clifton by explaining that

      the petitioner in that case had a liberty interest at stake in the revocation of
      his parole. However, in this case, petitioner was already imprisoned and was
      requesting early release. “There is a crucial distinction between being
      deprived of a liberty one has, as in parole, and being denied a conditional
      liberty that one desires.”

Hughes, 

. The Court went on to explain that section 41-21-812

      passes rational basis review. The Tennessee court system incurs operating
      costs when enabling indigent inmate litigation. The state has a legitimate
      interest in reducing these costs and in reducing the amount of meritless
      inmate litigation. Based on the above discussion, section 41-21-812 is
      rationally related to the state’s interest. The constitutional requirement of
      rationality is satisfied, and Tennessee Code Annotated section 41-21-
      812 does not offend principles of equal protection. . . . [The] petitioner had a
      hearing before the Tennessee Board of Probation and Parole that was not
      contingent upon his ability to pay any filing fees and also had the ability to
      appeal the board’s decision within their internal system. He took advantage
      of the board’s appellate process, and his appeal was denied by letter because
      the board stated, “Upon reviewing the board file and audio recording of the
      hearing, your allegations of misconduct and significant procedural error(s)
      by the Hearings Official were not substantiated.” Therefore, under the facts
      of this case, petitioner was not denied due process.

 at 723–24. As the State aptly notes in its brief, “[a]lthough this case arises out of a
[TDOC] disciplinary infraction rather than a denial of parole, the reasoning from Hughes
is still applicable.”

        Even more recently, this Court considered whether section 41-21-812 violates the
Tennessee Constitution’s Open Courts Clause and determined that it does not. Halliburton
v. Tenn. Bd. of Parole, No. M2020-01657-COA-R3-CV, 

 (Tenn. Ct. App.
Mar. 17, 2022). Relying on Hughes, the Halliburton Court reasoned that

                                           -6-
       

 does not create a permanent barrier to inmates
       filing civil actions. An inmate can pay his or her outstanding fees and proceed
       with filing a lawsuit. If the inmate has no outstanding fees to begin with, the
       statute presents no hurdle. The courts remain open to inmates wishing to file
       civil actions, subject to a constitutionally permissible limitation in the form
       of a statutory requirement that inmates pay their outstanding fees in full.

.

        As has been addressed at length, Petitioner’s argument is underdeveloped and, in
many places, indecipherable. Petitioner has not explained why the above-mentioned cases
are inapplicable, despite their similarities to the case at bar. Rather, Petitioner makes the
conclusory argument, without more, that Clifton renders section 41-21-812 outright
unconstitutional. Nonetheless, we understand Hughes and Halliburton to seriously impair,
if not foreclose, Petitioner’s arguments.

       Consequently, we are unpersuaded that Tennessee Code Annotated section 41-21-
812 is unconstitutional. Discerning no error, we affirm the trial court’s dismissal of the
petition.

                                       CONCLUSION

       The ruling of the Chancery Court for Lauderdale County is affirmed. Costs of this
appeal are assessed to the appellant, Keith Lamont Farmer.


                                                  _________________________________
                                                  KRISTI M. DAVIS, JUDGE




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