MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded                                     FILED
as precedent or cited before any court except                            Jun 23 2020, 9:18 am
for the purpose of establishing the defense of
                                                                              CLERK
res judicata, collateral estoppel, or the law of                          Indiana Supreme Court
                                                                             Court of Appeals
the case.                                                                      and Tax Court




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEES
Robert Peacher                                             Curtis T. Hill, Jr.
Pendleton, Indiana                                         Attorney General of Indiana

                                                           Abigail R. Recker
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                           IN THE
     COURT OF APPEALS OF INDIANA

Robert Peacher,                                            June 23, 2020
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           19A-PL-2242
       v.                                                  Appeal from the Madison Circuit
                                                           Court
Robert Carter, Jr., et al,                                 The Honorable David A. Happe,
Appellees-Defendants.                                      Judge
                                                           Trial Court Cause No.
                                                           48C04-1710-PL-106



  Altice, Judge.




  Court of Appeals of Indiana | Memorandum Decision 19A-PL-2242 | June 23, 2020                   Page 1 of 15
                                             Case Summary
[1]   Robert Peacher appears pro se and appeals the trial court’s dismissal of his

      complaint that challenged the constitutionality of various Indiana Department

      of Correction (DOC) policies concerning inmate mail. Peacher argues that he

      properly stated a claim for relief in that DOC executives and staff (collectively,

      “the Defendants”) violated his constitutional right to access the courts by

      preventing him from receiving mail from various legal entities, businesses, and

      educational institutions.


[2]   We affirm.


                                  Facts and Procedural History

[3]   Peacher is presently incarcerated at the Pendleton Correctional Facility

      (Pendleton) and serving a sentence for multiple convictions, including criminal

      confinement and attempted rape. Peacher’s earliest release date is November 3,

      2071.


[4]   The DOC has various policies in place regarding incoming and outgoing mail.

      Other DOC regulations and policies prohibit certain business activities within

      its facilities. On April 1, 2017, the DOC implemented Executive Directive 17-

      13 (Directive 17-13) for the purpose of promoting the safety and security of

      DOC facilities and preventing the introduction of narcotics into its facilities.

      Directive 17-13 stated that all “[i]ncoming correspondence to offenders must be

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2242 | June 23, 2020   Page 2 of 15
      in a plain white envelope and the letter/correspondence inside the envelope

      must be on originally purchased, plain white, lined paper (no photocopies).”

      Appellees’ Appendix at 47, 82. These requirements were designed to prevent

      synthetic narcotics that had been soaked into paper from being circulated in the

      prisons. It was determined that DOC personnel could more easily detect the

      presence of drugs on lined paper.


[5]   At some point, the DOC rescinded Directive 17-13 and replaced it with other

      versions that ultimately resulted in Directive 18-54. This Directive, which was

      implemented on November 1, 2018, excepted legal mail, religious

      correspondence sent from a religious organization, and educational

      correspondence that was sent by an educational organization from being

      confiscated and subsequently distributed through the DOC. Directive 18-54

      also allowed for an inmate’s receipt of photographs “printed on originally

      purchased photography paper,” and “non-colored black and white computer-

      printed newspaper articles and drawings/artwork and plain white envelopes

      that have text printed on them naturally, or electronically.” Id. at 77.


[6]   The DOC’s Offender Correspondence Policy (Correspondence Policy) defines

      “legal correspondence” as “[c]orrespondence mailed directly from or to a court,

      a judge or an attorney, whether it is the attorney in a criminal or civil action

      involving the offender, including opposing counsel, and which has been

      identified as legal mail.” Exhibits at 49. The Correspondence Policy prohibits

      printed matter that contains multiple copies, and material containing nudity,



      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2242 | June 23, 2020   Page 3 of 15
      which is defined as “a pictorial depiction where genitalia or female breasts are

      exposed.” Id. at 67.


[7]   The DOC’s Offender Business Activities Policy, No. 02-01-116 (the Business

      Policy), prohibits inmates from conducting business activity without prior

      approval from the facility head and deputy commissioner. The Business Policy

      defines a business activity as “[a]ny venture, enterprise, or other activity by

      which an offender or others acting on the behalf of an offender engaged in the

      sale, barter or exchange of goods and/or other services or the solicitation of

      funds and/or services.” Id. at 75.


[8]   Peacher alleged that prior to his arrest, he owned a business “that published a

      men’s lifestyle magazine.” Appellant’s Reply Brief at 12-13. At some point,

      Peacher had filed a civil action against a business associate who “had a power

      of attorney over [the] business” and had mismanaged the company. Id. at 13.


[9]   Peacher filed a grievance with the DOC on April 3, 2017, claiming that

      Directive 17-13 violated his rights under the First, Eighth, and Fourteenth

      Amendments to the United States Constitution because he was prohibited from

      receiving birthday cards, obituaries, legal materials from non-lawyers, and

      typed letters from family members with disabilities. Pendleton’s mailroom

      supervisor denied Peacher’s informal grievance on April 7, 2017, on the

      grounds that Directive 17-13 did not prevent communication with his family,

      and that DOC had enacted the directive for safety and security reasons.

      Peacher filed additional grievances, claiming that he was improperly denied


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-2242 | June 23, 2020   Page 4 of 15
       access to legal and educational materials from non-lawyers who were assisting

       him. Those grievances were also denied.


[10]   In May and June 2017, the mailroom staff withheld mail addressed to Peacher

       from Adams State University that contained educational information and

       transcripts. Peacher filed another grievance, claiming that the materials were

       improperly withheld because there was no DOC policy that prohibited him

       from receiving such correspondence. The supervisor denied the grievance on

       the grounds that while Directive 17-13 prohibited Peacher from directly

       receiving this type of correspondence, it would be confiscated by DOC officials

       and subsequently distributed to him “through the Department.” Appellees’

       Appendix at 57.


[11]   On October 17, 2017, Peacher filed a complaint against the Defendants,

       claiming they violated his First and Fourteenth Amendment rights under the

       United States Constitution because Executive Directive 17-13 denied him

       access to the courts by confiscating from him and preventing his receipt of

       educational materials.


[12]   Peacher’s complaint demanded that: 1) all of the confiscated mail be returned to

       him; 2) he be awarded $1,000 for the destruction of physical evidence; 3) he be

       awarded $5,000 per defendant in punitive damages; 4) the court issue an

       injunction providing him full access to legal research and evidence gathered

       from paralegals, investigators, and others in the legal field; and 5) the trial court

       order the Defendants to pay all of his legal costs and filing fees.


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2242 | June 23, 2020   Page 5 of 15
[13]   Nearly one year later, on October 18, 2018, Peacher filed a motion for a

       preliminary injunction, claiming that the Defendants were wrongfully

       withholding legal work product, documents, and evidence in “pending legal

       cases.” Appellees’ Appendix at 60. In response, the Defendants maintained that

       Peacher failed to identify any specific harm that he might have suffered, and

       that DOC had forwarded the confiscated mail to other individuals “at Peacher’s

       request.” Id. at 74.


[14]   While the litigation was pending, an envelope arrived for Peacher from TPC

       Commedia, LLC, (TPC) that had been stamped “legal papers.” Appellees’

       Appendix at 90; Exhibit 84. Pendleton’s mailroom employee opened the

       envelope because it had not been sent from an attorney. Inside were two

       magazines, both of which DOC determined contained nudity in violation of the

       Correspondence Policy. The magazines were also not permitted because they

       had not been sent by the publisher. Moreover, DOC staff noticed that even

       though the return address listed TPC as a Nevada company, the envelopes were

       postmarked in Indiana. Peacher filed an informal grievance with the mailroom

       supervisor, claiming that the magazines did not contain nudity and that he had

       seen other copies of that same magazine in the facility. Although this mail had

       been initially confiscated by mailroom personnel, DOC forwarded the materials

       to Peacher’s attorney pursuant to Peacher’s request.



[15]   In December 2018, Pendleton’s mailroom personnel confiscated incoming

       correspondence addressed to Peacher that contained suspected evidence of


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2242 | June 23, 2020   Page 6 of 15
       unauthorized business activity. Included was a magazine vendor application

       from the TNG Company, a publisher/distributor purchasing agreement, and a

       new/transition title information sheet. Peacher’s grievance pertaining to the

       confiscation of these mailings was also denied because the materials violated

       the Business Policy.


[16]   Pendleton’s mailroom staff also confiscated mail in November and December

       2018 that Peacher sent to the Madison County Courts and an Indianapolis law

       firm. Both envelopes had been returned to Pendleton by the United States

       Postal Service (USPS) and marked “return to sender.” Exhibits at 100-07. In

       accordance with Directive 18-34, Peacher was afforded the opportunity to

       provide new addresses and envelopes if he wanted to resend the letters.

       Peacher filed grievances complaining about the DOC’s “constant revenge,

       retaliation, and deliberate interference in [his] court cases.” Id. at 103. The

       DOC also denied those grievances.


[17]   Prior to the hearing on the preliminary injunction, Peacher amended his

       complaint, claiming that the Directives and regulations unlawfully restricted

       and censored his mail. The substance of Peacher’s claims remained the same,

       in that he was challenging various DOC policies that allegedly violated his First

       and Fourteenth Amendment right of access to the courts and his right to

       educational materials.


[18]   At the hearing on the preliminary injunction that commenced on January 25,

       2019, the Defendants offered into evidence copies of the correspondence that


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2242 | June 23, 2020   Page 7 of 15
       Pendleton’s mailroom staff had confiscated. 1 Following that hearing, the

       Defendants filed a motion to dismiss on February 20, 2019, claiming that

       Peacher’s complaint should be dismissed in accordance with Indiana Trial

       Rules 12(B)(1) and 12(B)(6) for lack of subject matter jurisdiction and for failing

       to state a claim upon which relief could be granted. In support of their motion,

       the Defendants referenced the mailings described above and other exhibits that

       Peacher had attached to the motion for preliminary injunction and their

       response to that motion.


[19]   The Defendants argued that Directive 18-54—which superseded Directive 17-

       13—exempts legal mail from confiscation and permits an offender to receive

       educational correspondence, once approved by the prison warden. The

       Defendants further asserted that they did nothing to affect or impede Peacher’s

       access to the courts. Therefore, the Defendants claimed that Peacher’s

       complaint failed to state a claim upon which relief could be granted. Finally,

       the Defendants asserted that Peacher’s claim should be dismissed for lack of

       subject matter jurisdiction because Peacher failed to assert a direct violation of

       his constitutional rights and the Directives at issue served legitimate objectives

       including the deterrence of crime and institutional safety.




       1
[1]        Peacher also attached copies of that correspondence to his motion for preliminary injunction.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2242 | June 23, 2020                       Page 8 of 15
[20]   The trial court denied Peacher’s motion for a preliminary injunction on March

       8, 2019, concluding that


               3. The examples of said mail admitted at hearing included
               photographs of women wearing lingerie, swimsuits, and/or
               partially translucent shirts. Other examples cited by [the
               Defendants] included ‘Bull’ magazine, which evidently contains
               similar photographs. Among other things, [Peacher] claims he
               needs access to replacement copies of the May 2016 edition of
               this magazine for ‘court reasons.’


               4. [Peacher] claims he is entitled to relief from DOC policies
               governing prisoners’ receipt of mail.


               5. The Court accepts Defendants’ position that the Court lacks
               jurisdiction to externally review and override internal
               administrative policies of the IDOC, as said policies apply in this
               case. The Court can find no evidence that [Peacher’s] access to
               the Courts or to legal advice has been impaired by denying him
               access to images defined as nudity by the policy. For reasons of
               security, behavioral management, punishment, and
               rehabilitation, IDOC must have the ability to restrict freedoms
               for inmates that un-incarcerated persons could enjoy.



               6. The Court also finds that [IDOC] has adopted a reasonably
               clear policy defining what materials are considered nudity, and
               are therefore banned within the facility.


               7. [Peacher] has failed to meet his burden to demonstrate that he
               will suffer irreparable harm during the pendency of this action,
               that his remedies at law are insufficient, or that he has a
               reasonable likelihood of success on the merits.


       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2242 | June 23, 2020   Page 9 of 15
       Appellees’ Appendix at 171.


[21]   On May 10, 2019, the trial court conducted a hearing on the Defendants’

       motion to dismiss that was subsequently granted on August 26, 2019. The trial

       court determined, among other things, that


               2. The essence of [Peacher’s] claim is that he has been denied
               access to certain mailed items, consisting of magazines which the
               Court has previously ruled fit the [DOC’s] definition of nudity,
               and are therefore banned materials within his facility.


               3. As established at hearing, the materials [Peacher] wants access
               to are not legal materials. To the extent that they affect any legal
               matter, [Peacher] was given an opportunity to have these
               materials sent to a legal representative outside the DOC.


               4. [Peacher] has not established that the Defendants’ actions
               have impinged on his ability to litigate any action, nor infringed
               on his access to the courts.


               5. There are legitimate penological purposes furthered by
               restricting access to mail as happened in this case. It provides at
               least some measure of control over trafficking illegal substances
               into facilities. For reasons of security, behavioral management,
               punishment and rehabilitation, [DOC] must have the ability to
               restrict freedoms for inmates that an un-incarcerated person
               could enjoy.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2242 | June 23, 2020   Page 10 of 15
       Id. at 35-36. The trial court further concluded that it lacked subject matter

       jurisdiction over internal DOC policies. 2 Notwithstanding the jurisdictional

       ruling, the trial court dismissed Peacher’s action with prejudice. Peacher now

       appeals.


                                         Discussion and Decision

                                                I. Standard of Review


[22]   T.R. 12(B)(6) allows a motion to dismiss based on failure to state a claim upon

       which relief can be granted. Robertson v. State, 141 N.E.3d 1224, 1227 (Ind.

       2020). When ruling on a motion to dismiss, the trial court must “view the

       pleadings in the light most favorable to the nonmoving party, with every

       reasonable inference construed in the non-movant’s favor.” Id. A motion to

       dismiss under T.R. 12(B)(6) tests the legal sufficiency of a complaint: “whether

       the allegations in the complaint establish any set of circumstances under which

       a plaintiff would be entitled to relief.” Budner v. Incorporated Town of North

       Judson, 113 N.E.3d 225, 226 (Ind. Ct. App. 2018).


[23]   This court reviews a trial court’s ruling on a motion to dismiss for failure to

       state a claim de novo. Id. We may “affirm the grant of a motion to dismiss if it




       2
         The State concedes, and we agree, that the trial court erroneously determined that it lacked subject matter
       jurisdiction over Peacher’s claims. State courts do have jurisdiction to address federal constitutional
       challenges to DOC policies brought by inmates. Kimrey v. Donahue, 861 N.E.2d 379, 382 (Ind. Ct. App.
       2007), trans. denied. Nonetheless, the error is harmless because the trial court proceeded to consider the issues
       presented in the motion to dismiss.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2242 | June 23, 2020                      Page 11 of 15
       is sustainable on any theory.” Freels v. Koches, 94 N.E.3d 339, 342 (Ind. Ct.

       App. 2018). When ruling on a motion to dismiss, the trial court may also

       consider “materials of which a trial court may take judicial notice.” Moss v.

       Horizon Bank, N.A., 120 N.E.3d 560, 563 (Ind. Ct. App. 2019). The trial court

       may take judicial notice of its own orders in the same case and it may judicially

       notice pleadings and exhibits attached thereto in the very case that is before the

       court. Riviera Plaza Investments, LLC v. Wells Fargo Bank, N.A., 10 N.E.3d 541,

       546 (Ind. Ct. App. 2014).


                                                II. Peacher’s Claims


[24]   Peacher contends that the trial court erred in granting the Defendants’ motion

       to dismiss because he properly asserted a claim that the Defendants interfered

       with his constitutional right of access to the courts. Peacher claims that the

       Defendants impeded his access to the courts when it withheld “relevant and

       material legal mail, documents and evidence” from him. Appellant’s Brief at 15. 3


[25]   The United States Supreme Court has declared that while prisoners have

       constitutional rights, “[m]any of the liberties and privileges enjoyed by other

       citizens must be surrendered by the prisoner.” Overton v. Bazzetta, 539 U.S. 126,




       3
         Although Peacher states in his appellate brief that “his company’s magazine was already being sold around
       the country and in the facility,” and that his “magazine does not contain nudity,” he makes no argument
       regarding Pendleton’s alleged improper confiscation of these materials. Appellant’s Brief at 15. Peacher also
       does not argue on appeal that his constitutional right to receive mail from an educational institution was
       violated. Thus, Peacher has waived these issues for purposes of appeal. See Tavake v. State, 131 N.E.3d 696,
       708 n.3 (Ind. Ct. App. 2019) (holding that the failure to develop a cogent argument results in waiver of the
       issue on appeal) (citing Indiana Appellate Rule 46(A)(8)(a)), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2242 | June 23, 2020                   Page 12 of 15
       131 (2003); see also Kimrey v. Donahue, 861 NE.2d 379, 383 (Ind. Ct. App. 2007),

       trans. denied. Hence, many restrictions on a prisoner’s First Amendment rights

       have been upheld. See, e.g., Beard v. Banks, 548 U.S. 521, 528-33 (2006)

       (upholding a regulation prohibiting prisoners with a high security level from

       accessing newspapers, magazines, and photographs); Overton, 539 U.S. at 131-

       36 (upholding a regulation prohibiting inmates with two substance-abuse

       violations from having visitation); Shaw v. Murphy, 532 U.S. 223, 231-32 (2001)

       (holding that prisoners do not have a First Amendment right to provide legal

       assistance to other prisoners); Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)

       (upholding a regulation that permitted a prison warden to reject publications

       found “to be detrimental to the security, good order, or discipline of the

       institution or if it might facilitate criminal activity”).


[26]   An incarcerated offender’s right to gain access to the courts is limited. More

       specifically, prison officials should provide prisoners with the tools “that the

       inmates need in order to attack their sentences, directly or collaterally, and in

       order to challenge the conditions of their confinement.” Lewis v. Casey, 518

       U.S. 343, 355 (1996). Impairment of any other litigating capacity “is simply

       one of the incidental (and perfectly constitutional) consequences of conviction

       and incarceration.” Id.


[27]   A prisoner asserting a denial of access to the courts claim must also show an

       “‘actual injury’ in the form of interference with a ‘nonfrivolous’ legal claim.”

       Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir. 2009). Put another way, the right

       of access to the courts is tied to and limited by a “prisoner’s right to vindication

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2242 | June 23, 2020   Page 13 of 15
       for a separate and distinct right to seek judicial relief for some wrong.” Id. In

       short, the deprivation of or restriction on legal materials is insufficient to

       support an access-to-courts claim absent evidence of harm. See In re Maxy, 674

       F.3d 658, 660 (7th Cir. 2012) (holding that an inmate had failed to state an

       access-to-courts claim because he did not inform the court of the underlying

       legal claims frustrated by the delay that could have established a nonfrivolous,

       arguable claim); see also Howland v. Kilquis, 833 F.2d 639, 643 (7th Cir. 1987)

       (observing that a prisoner’s conclusory assertions that the defendants’

       “unreasonable interference” with his attempts to conduct meaningful legal

       research resulted in an inability to adequately defend against an armed robbery

       charge and other pending litigation failed to state an access-to-courts claim).


[28]   Here, Peacher alleged in his complaint that the Defendants’ enactment of the

       Directives violated his rights by “denying him access to affidavits, legal

       research, evidence, etc. from witnesses, paralegals, investigators, law students

       and others in the legal field.” Appellees’ Appendix at 139. Hence, Peacher

       asserted that the Defendants’ “policy of restricting and censoring [his] mail

       violated [his] right of access to the courts” . . . and “directly interfere[ed] in

       [his] cases. . . .” Id. at 140, 142.


       Peacher’s complaint does not assert that the Defendants interfered with his

       ability to collaterally challenge his sentence or the conditions of his

       confinement. Rather, Peacher is claiming that the Defendants allegedly

       interfered with his pursuit of unrelated litigation that he had commenced

       against his former attorney and business associate. Moreover, other than

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2242 | June 23, 2020   Page 14 of 15
       advancing conclusory statements about the Defendants’ alleged denial of his

       access to various legal materials and assistance, Peacher did not allege how he

       was harmed by the Defendants’ alleged wrongdoings. In short, Peacher failed

       to allege any actual injury that resulted from the Defendants’ confiscation of his

       mail.


[29]   Additionally, none of the confiscated mailings show that Peacher’s right of

       access to the courts was violated. Although some of the mail was strictly

       prohibited by DOC policy and did not qualify as legal mail under the

       Directives, Peacher was afforded the opportunity to send them to his attorney.

       As for the correspondence that was returned to the facility by the USPS, the

       Defendants played no role in the return of that material, and DOC gave

       Peacher the option to resend them.


[30]   In sum, there is no showing that Defendants interfered with Peacher’s right of

       access to the courts, and Peacher’s complaint fails to state an access-to-courts

       claim upon which relief can be granted. For the reasons discussed above, we

       conclude that the trial court properly granted the Defendants’ motion to dismiss

       Peacher’s complaint.


[31]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PL-2242 | June 23, 2020   Page 15 of 15
