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NOT DESIGNATED FOR PUBLICATION

No. 123,675

 

 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CLEDITH BOHANON,

Appellant,

v.

PATTI KEEN, et al.,

Appellees.

MEMORANDUM OPINION

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed September 

17, 2021. Reversed and remanded with directions.

Cledith Bohanon, appellant pro se.

Jon D. Graves, legal counsel, Kansas Department of Corrections, for appellees.

Before HILL, P.J., ATCHESON and WARNER, JJ.

PER CURIAM: Courts should liberally construe pleadings that inmates prepare 

without the help of an attorney. Alleging that prison officials had violated his 

constitutional rights by systematically opening his legal mail without him being present, 

an inmate at the Hutchinson Correctional Facility, without the benefit of an attorney, sued 

the warden in a limited action case. He sought money damages, injunctive relief, and a 

declaratory judgment as well as his legal costs. Because a party cannot obtain declaratory 

and injunctive relief in a limited action case, the district court dismissed his lawsuit. 

Should the court have looked at the lawsuit in a different way?
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Cledith Bohanon filed his lawsuit in July 2020 in Reno County District Court. 

Bohanon is no stranger to that court. Bohanon has petitioned the district court several 

times under K.S.A. 60-1501 during his incarceration. That statute allows an inmate to 

challenge the conditions of confinement and seek relief for continuing mistreatment of a 

constitutional nature. See Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009). 

By our count Bohanon has filed five such lawsuits. See Bohanon v. Keen, No. 

122,180, 2020 WL 4378017 (Kan. App. 2020) (unpublished opinion); Bohanon v. 

Schnurr, No. 117,492, 2017 WL 5951624 (Kan. App. 2017) (unpublished opinion); 

Bohanon v. Cline, No. 114,302, 2016 WL 4585091 (Kan. App. 2016) (unpublished 

opinion); Bohanon v. Heimgartner, No. 109,023, 2013 WL 3970213 (Kan. App. 2013) 

(unpublished opinion); Bohanon v. Kansas Parole Bd., No. 93,176, 2005 WL 638122 

(Kan. App. 2005) (unpublished opinion).

But his most recent habeas petition gives us a clue why he filed this limited action 

case which is the subject of this appeal. In that habeas petition, Bohanon claimed that 

prison mail officials had violated his constitutional rights by opening legal mail outside 

his presence in July 2017. He sought compensatory and punitive damages, as well as 

injunctive and declaratory relief and his legal costs. The district court construed the 

petition as a claim for property loss and found that it lacked jurisdiction because Bohanon 

had not followed the procedure for bringing that type of claim. 

A panel of our court disagreed and construed the claim as a habeas petition under 

K.S.A. 60-1501. 2020 WL 4378017, at *2-3. Even so, the panel found that dismissal was 

appropriate because Bohanon had petitioned well outside the 30-day time limit set by 

K.S.A. 2019 Supp. 60-1501(b). 2020 WL 4378017, at *2. 

Bohanon continued to have issues with the prison's handling of his mail. In 

February 2020, he filed a grievance with the prison alleging that prison mail officials had 
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again opened his legal mail outside his presence. After getting no response, Bohanon 

filed several other grievances. The warden eventually concluded that no action was 

warranted. Bohanon appealed that decision to the Secretary of Corrections, who affirmed 

the warden's decision. 

Unhappy with that result, Bohanon filed this lawsuit within 30 days of the 

Secretary's decision in the county where he is incarcerated. The petition, which he 

prepared himself, alleged that prison mail officials had violated his rights under the First 

Amendment to the United States Constitution by opening legal mail outside his presence 

in February 2020. Bohanon alleged that this incident was part of a systemic practice. And 

he again sought money damages, injunctive relief, a declaratory judgment, and legal 

costs. But this time, Bohanon asserted that his petition was a limited action claim under 

K.S.A. Chapter 61. 

Limited actions offer limited relief. 

Limited action cases are governed by the Code of Civil Procedure for Limited 

Actions, K.S.A. 61-2801 et seq. That Code provides simplified procedures for some 

lawsuits that arise out of a contract or do not exceed $25,000. See K.S.A. 2020 Supp. 61-

2802(a). The Code also limits the types of cases that can be brought as limited actions. 

Relevant here, petitioners cannot seek declaratory judgments or injunctive relief in 

limited action cases. K.S.A. 2020 Supp. 61-2802(b)(9), (b)(11).

The district court relied on those limitations and dismissed Bohanon's petition for 

failing to state a claim. The court found that Bohanon's request for declaratory and 

injunctive relief were unavailable in limited action cases and that Bohanon had not 

alleged a contractual breach or pleaded the elements of a tort claim. The court reaffirmed 

that ruling after Bohanon asked it to reconsider. Bohanon now appeals to this court. 
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In considering lawsuits concerning the conditions of confinement of prisoners, we look to 

substance over form.

Bohannon did state a claim upon which relief could be granted: prison officials 

repeatedly opened and read his incoming legal mail in violation of his First Amendment 

rights. Courts are more interested in the claim and not how it was packaged and 

presented. 

Pro se pleadings are liberally construed, giving effect to the pleading's content 

rather than the labels and forms used to articulate the defendant's arguments. A 

defendant's failure to cite the correct statutory grounds for his or her claim is immaterial. 

Whether the district court correctly construed a pro se pleading is a question of law 

subject to unlimited review. See State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010). 

By applying the rule in Kelly here, we conclude that the district court erred by 

construing Bohanon's petition as a limited action claim under Chapter 61. To be fair, that 

is how Bohanon characterized his claim. But courts give effect to the content, not label, 

of a pro se pleading, and the substance of Bohanon's claim is that prison officials had 

violated his constitutional rights when his mail was opened when he was not there. That 

is better characterized as a claim under K.S.A. 60-1501, which allows an inmate to 

challenge the conditions of confinement and seek relief for continuing mistreatment of a 

constitutional nature. Bohanon at first tried to challenge the prison officials' actions 

through the prison's grievance process, but after exhausting administrative remedies 

there, he brought this petition. 

It is true that Bohanon sought compensatory and punitive damages for the 

violation of his rights and those damages are unavailable in a habeas corpus proceeding. 

See Foster v. Maynard, 222 Kan. 506, 513, 565 P.2d 285 (1977); Bryant v. Barbara, 11 
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Kan. App. 2d 165, 167, 717 P.2d 522 (1986). But Bohanon also sought declarative and 

injunctive relief.

As the panel of our court that ruled on Bohanon's last habeas petition found, 

"though the fact that Bohanon requested an unavailable remedy might affect the ultimate 

outcome of his claim, it does not transform" his habeas claim into another type of claim. 

Bohanon, 2020 WL 4378017, at *3. 

We cannot ignore the seriousness of Bohanon's claims. Several federal Circuit 

Courts of Appeal have recognized this type of claim. See Haze v. Harrison, 961 F.3d 

654, 658 (4th Cir. 2020) (finding that inmate raised First Amendment free-speech claim 

when prison workers repeatedly opened legal mail outside inmate's presence.); Al-Amin v. 

Smith, 511 F.3d 1317, 1334 (11th Cir. 2008) (finding that a state prison's pattern and 

practice of opening legal mail outside the inmate's presence is a First Amendment 

violation that does not require actual injury.); Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 

2006) (same); Sallier v. Brooks, 343 F.3d 868, 877 (6th Cir. 2003) (holding that a First 

Amendment violation occurs if legal mail is opened outside the presence of a prisoner 

who has specifically requested otherwise); but see Brewer v. Wilkinson, 3 F.3d 816, 825 

(5th Cir. 1993) ("[T]he violation of the prison regulation requiring that a prisoner be 

present when his incoming legal mail is opened and inspected is not a violation of a 

prisoner's constitutional rights.")

Bohanon has also alleged that his rights have repeatedly been violated. Although 

Bohanon cited just one instance of his legal mail being opened in his initial petition, in 

later filings with the district court he asserted that prison workers had repeatedly opened 

his incoming legal mail and he asked the court to take judicial notice of his last case 

before this court. 2020 WL 4378017. In that case Bohanon alleged that prison workers 

had opened his mail four other times.
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We conclude that dismissal is not appropriate under these circumstances. Bohanon 

has alleged repeated violations of his constitutional rights under a legal argument that 

several federal circuit courts have recognized. We do not believe that it can be 

established at this stage that Bohanon has no right to relief. So we reverse the district 

court and remand the matter with directions to construe Bohanon's petition as a K.S.A. 

60-1501 petition. We do not know if he is entitled to any relief, but we do know he has a 

right to make his claim in court. 

We do not ignore the State's complaints about Bohanon's legal drafting. The State 

contends that Bohanon has not complied with Supreme Court Rule 6.02(a) (2021 Kan. S. 

Ct. R. 35). The State complains that Bohanon has merged his discussion of facts and legal 

authority, has failed to cite to the record, and has provided an unhelpful "nature of the 

action" section. It asks us to reject Bohanon's claim without considering it on the merits. 

We decline the State's request. 

Bohanon asked for court-appointed appellate counsel after losing in the district 

court. The district court denied that request, finding that this case was a civil action 

seeking monetary damages. So Bohanon prepared his appellate briefs without the help of 

an attorney. We appreciate that it can be difficult to respond to that type of brief, but the 

fact is that Bohanon has no legal training and was denied help from appellate counsel 

after requesting it. We look to substance over form in these cases. But that does not mean 

that Bohanon will have to go it alone on remand. 

We note that indigent litigants have the right to court-appointed counsel in the 

district court under K.S.A. 22-4506(b). Thus, if Bohannon is indigent and seeks courtappointed counsel on remand, we direct the district court to appoint counsel to assist 

Bohanon. 

Reversed and remanded with directions.