Opinion
No. 09-05-336 CV
November 30, 2006.
On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-172,902.
Before MCKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
Bruce Wayne Houser, an inmate confined in the Texas Department of Criminal Justice — Institutional Division (TDCJ), appeals from the dismissal and final judgment of his pro se, in forma pauperis lawsuit against TDCJ and TDCJ employees Vickie Barrow and Clarence Mosely, Jr. The trial court granted a partial motion to dismiss as frivolous under the provisions of Chapter 14 of the Texas Civil Practice and Remedies Code as to some of Houser's claims, and also granted summary judgment resulting in dismissal of the remaining claims. Tex. Civ. Prac. Rem. Code Ann. §§ 14.00-.014 (Vernon 2002) (Chapter 14); Tex. R. Civ. P. 166a(c). We affirm.
Two other named defendants, and TDCJ employees, Helen R. Bluitt and Kent R. Allen, were not served and made no appearance in this cause. Nevertheless, we have jurisdiction to review the appeal as Tex. Civ. Prac. Rem. Code Ann. § 14.003(a) (Vernon 2002), under which the trial court dismissed Houser's claims, provides that a court may dismiss a claim "either before or after service of process." See also Onnette v. Reed, 832 S.W.2d 450, 451 n. 2 (Tex.App.-Houston [1st Dist.] 1992, no writ). Additionally, the judgment plainly indicates the trial court intended to dispose of all parties and all issues and be a "final judgment." See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001).
The record before us indicates that Houser's access to legal research materials was suspended for a period of sixty days, from March 27, 2004 to May 27, 2004, for having damaged a TDCJ offender grievance manual, after having done so once previously. Denying the allegation, Houser proceeded through the mandatory administrative grievance process but without success. He then filed the instant suit in state district court, seeking relief under Tex. Const. art. I, §§ 13, 19; 42 U.S.C.A. § 1983 (West 2003), and Tex. Civ. Prac. Rem. Code Ann. §§ 101.001-.109 (Vernon 2005 Supp. 2006) ("Texas Tort Claims Act"). Under a protean depiction of the "facts," Houser's petition appears to set out causes of action for improper denial of access to the courts and retaliation. Appellees were sued in both their official and individual capacities. Houser also sought injunctive relief and damages in excess of fifty thousand dollars. TDCJ, Barrow, and Mosely timely filed their answer. Barrow and Mosely jointly filed a motion for summary judgment. Thereafter, TDCJ, Barrow, and Mosely jointly moved for partial dismissal of Houser's suit as frivolous under provisions of Chapter 14. A hearing on both motions was held, with Houser participating via telephone. The record contains no reporter's record from this hearing. Thereafter, the trial court sent a letter to all parties advising them of its decision regarding the partial dismissal and summary judgment motions. This decision was eventually handed down as the trial court's final judgment, rendered on July 13, 2005. From this judgment, Houser appeals.
Upon reading the facts and circumstances alleged by Houser, it is not entirely clear if "denial of access to courts" merely serves as an element of his retaliation allegation or as an independent cause of action in its own right. For the sake of clarity, we will treat the two allegations as separate causes of action.
We review the district court's grant of summary judgment de novo. Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper if the moving party demonstrates the absence of a genuine issue of material fact, a showing which entitles the movant to summary judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). If the movant produces evidence indicating entitlement to summary judgment as a matter of law, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish the existence of a genuine issue of material fact for trial. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990). In this analysis, we review the facts and draw all inferences most favorable to the nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). However, mere conclusory allegations are not competent summary judgment evidence, and such allegations are insufficient, therefore, to defeat a summary judgment motion. See Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997); 1001 McKinney Ltd. v. Credit Suisse First Boston Mortg. Capital, 192 S.W.3d 20, 27 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). Under Chapter 14, a trial court may dismiss a claim if the court finds that the claim is frivolous. Tex. Civ. Prac. Rem. Code Ann. § 14.003(a)(2). Section 14.003(b) lists four factors that the trial court may consider when determining whether an action is frivolous, including whether the claim has no arguable basis in law or in fact. Id. § 14.003(b)(2). We review dismissal of suits under Chapter 14 for abuse of discretion. See Hines v. Massey, 79 S.W.3d 269, 271 (Tex.App.-Beaumont 2002, no pet.). To establish an abuse of discretion, an appellant must show the trial court's actions were arbitrary or unreasonable in light of all the circumstances. Jackson v. Tex. Dep't of Crim. Justice-Inst. Div., 28 S.W.3d 811, 813 (Tex.App.-Corpus Christi 2000, pet. denied). Furthermore, it is firmly established that pro se litigants must comply with applicable laws and rules of procedure. See Pena v. McDowell, 201 S.W.3d 665, 667 (Tex. 2006); Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).
Barrow and Mosely moved for a traditional summary judgment. Tex. R. Civ. P. 166a(c). In Texas, summary judgment is used "to eliminate patently unmeritorious claims and untenable defenses." Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). In a similar vein, Chapter 14 was promulgated "to control the flood of frivolous lawsuits being filed in the courts of this State by prison inmates, consuming valuable judicial resources with little offsetting benefit." Hickson v. Moya, 926 S.W.2d 397, 399 (Tex.App.-Waco 1996, no writ). TDCJ joined Barrow and Mosely in moving for partial dismissal of Houser's claims as frivolous under Chapter 14.
At the outset, we find no abuse of discretion by the trial court in granting summary judgment and partial dismissal of all of Houser's claims based on alleged violations of the Texas Constitution, article I, section 13 (open courts) and section 19 (due course of law). With regard to the open courts clause, even assuming arguendo that it affords a plaintiff a private right of action for damages, see City of Beaumont v. Bouillion, 896 S.W.2d 143, 148-49 (Tex. 1995) (holding that not every provision of the Texas Constitution grants one a private right of action for damages), it has been held that the clause applies only to statutory restrictions upon a legitimate common law cause of action. See Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 410 (Tex. 1997).
Houser fares no better in seeking damages under the "due course of law" clause as we agree with our sister courts that this clause provides no private cause of action for damages. See Patel v. City of Everman, 179 S.W.3d 1, 13 (Tex.App.-Tyler 2004, pet. denied); Securtec, Inc. v. County of Gregg, 106 S.W.3d 803, 816 (Tex.App.-Texarkana 2003, pet. denied); Nueces County v. Ferguson, 97 S.W.3d 205, 221-22 (Tex.App.-Corpus Christi 2002, no pet.); Tex. A M Sys. v. Luxemburg, 93 S.W.3d 410, 425 (Tex.App.-Houston [14th Dist.] 2002, pet. denied); Univ. of Tex. Sys. v. Courtney, 946 S.W.2d 464, 469 (Tex.App.-Fort Worth 1997, writ denied). Dismissal as frivolous under Chapter 14 (claim having no arguable basis in law) and summary judgment (entitled to judgment as a matter of law) favorable to appellees were both appropriate by the trial court as to Houser's claims based on alleged violations of the Texas Constitution.
We also find no error by the trial court in disposing of Houser's claims filed pursuant to the Texas Tort Claims Act. Both the retaliation and denial of access to courts claims are alleged by Houser to have involved intentional acts or omissions by the defendants. Section 101.057 of the act expressly provides that sovereign immunity is not waived as to claims arising out of intentional torts. See Tex. Civ. Prac. Rem. Code Ann. § 101.057(2) (Vernon 2005); see also Harris County, Texas v. Cabazos, 177 S.W.3d 105, 111-12 (Tex.App.-Houston [1st Dist.] 2005, no pet.). Thus, both the Chapter 14 dismissal and summary judgment were proper in favor of appellees for Houser's claims filed pursuant to the Texas Tort Claims Act. We now turn to the claims subject to 42 U.S.C.A. § 1983. 42 U.S.C.A. § 1983 provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
In Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the Supreme Court held that it was not the intent of the United States Congress in promulgating section 1983 to subject either a state or state official acting in his/her official capacity to suit in state courts for "official violation of federally protected rights." See id. at 64-68. As such, neither a state nor a state official acting in an official capacity is considered a "person" under the provisions of section 1983. Id. at 71; see also Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 581 (Tex. 2001). In the instant case, we read Houser's retaliation and deprivation of access to courts actions as alleging a violation of his due process and equal protection rights. Based upon the holding in Will, TDCJ was entitled to dismissal of Houser's section 1983 claim as frivolous under Chapter 14. Barrow and Mosely, in their official capacities, were also entitled to dismissal under Chapter 14 and further entitled to summary judgment on Houser's section 1983 claim as a matter of law.
As for Houser's section 1983 claim against Barrow and Mosely in their individual capacities, the doctrine of qualified immunity shields an official performing discretionary functions from liability for civil damages under section 1983, provided the official's conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would have been aware. See Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In the instant case, it is undisputed that Barrow and Mosely were working in their official positions with TDCJ at all times pertinent to Houser's section 1983 claims.
With regard to his right of access action, Houser was required to identify in his petition the"nonfrivolous," "arguable" underlying claim, either a litigating opportunity yet to be gained or an opportunity already lost, sufficient to provide the appellees fair notice, and was also required to describe the official acts frustrating the underlying litigation. See Christopher v. Harbury, 536 U.S. 403, 414-15, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). Houser's access-to-courts pleading failed to sufficiently describe the underlying action, and its lost remedy, that was frustrated by the official acts of either Barrow or Mosely. See id. at 416-17. Houser was required to state the underlying frustrated action in accordance with Tex. R. Civ. P. 47, "just as if it were being independently pursued," and any such pleading "should describe any remedy available under the access claim and presently unique to it." Id. at 417-18.
Additionally, under a section 1983 action, when a governmental official asserts the affirmative defense of qualified immunity, the burden shifts to the plaintiff to show that the defendant's conduct violated clearly established statutory or constitutional rights of which a reasonable person would have been aware. See Cousin v. Small, 325 F.3d 627, 632 (5th Cir. 2003); Beck v. Tex. State Bd. of Dental Exam'rs, 204 F.3d 629, 633-34 (5th Cir. 2000); Whatley v. Philo, 817 F.2d 19, 20 (5th Cir. 1987). Barrow and Mosely asserted qualified immunity and provided summary judgment evidence of a TDCJ library access procedure for inmates as well as a "law book theft or destruction" disciplinary policy in effect at the time Houser's library privileges were suspended. They also provided copies of the report of Houser's violation and the notice to him of his suspension from access to legal research material. We find that Houser failed in his burden to provide competent summary judgment evidence showing what conduct by either Barrow or Mosely deprived him of a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts, and that any alleged deprivation of opportunity resulted, or would result, in actual harm. See Lewis v. Casey, 518 U.S. 343, 349-51, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). With regard to his retaliation action, Houser's pleading alleged intentional conduct on the part of appellees in "a very illegal criminal conspiracy to unlawfully retaliate" in an attempt to hinder Houser in pursuit of a pending lawsuit he filed against prison employees. It is a criminal offense for an employee of a correctional facility to intentionally deny or impede a person in custody in the exercise of any right, privilege, or immunity, knowing his conduct is unlawful. See Tex. Pen. Code Ann. § 39.04(a)(1) (Vernon 2003). The penal code, however, does not create private causes of action and a victim does not have standing to participate as a party in a criminal proceeding. See Tex. Const. art. I, § 30(e); Tex. Code Crim. Proc. Ann. art. 56.02(d) (Vernon Supp. 2005).
Such a "burden of proof" requirement is held to be substantive federal law, not merely procedural, and, therefore, applicable to a federal statutory cause of action litigated in state court. See Am. Dredging Co. v. Miller, 510 U.S. 443, 454, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994).
As negligent conduct is not actionable as a violation of the United States Constitution, Houser was left to plead intentional conduct in his section 1983 actions. See Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (refusing to recognize constitutional torts sounding in negligence).
Nevertheless, prison officials may not retaliate against a prisoner for availing himself of the courts or attempting to defend his constitutional rights. See Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995). A retaliation action under section 1983 requires an inmate to show the invocation of a specific constitutional right, the defendant's intent to retaliate against the inmate for his exercise of that right, a retaliatory adverse act, and causation, i.e., but for the retaliatory motive the complained-of incident would not have occurred. Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (citing Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995)). In the instant case, Houser was required to allege the violation of a specific constitutional right and establish that but for the retaliatory motive the complained-of incident (suspension of Houser's library privileges) would not have occurred. See Woods, 60 F.3d at 1166. As pointed out by the Court in Woods:
This places a significant burden on the inmate. Mere conclusionary allegations of retaliation will not withstand a summary judgment challenge. The inmate must produce direct evidence of motivation or, the more probable scenario, "allege a chronology of events from which retaliation may plausibly be inferred." Although we decline to hold as a matter of law that a legitimate prison disciplinary report is an absolute bar to a retaliation claim, the existence of same, properly viewed, is probative and potent summary judgment evidence, as would be evidence of the number, nature, and disposition of prior retaliation complaints by the inmate.
Id. (footnotes omitted). See also Thomas v. Collins, 960 S.W.2d 106, 111 n. 5 (Tex.App.-Houston [1st Dist.] 1997, pet. denied). As noted above, the record contains the papers documenting Houser's violation of the library access rules for inmates, and Houser's denial of the charge. Houser provided a confusing "chronology" of allegedly retaliatory events, and further contended that the lawsuit that was pending in state district court in Jefferson County was the main motive. However, Houser's chronology and the pending state litigation involve defendants Helen Bluitt and Kent Allen who were not served by Houser and are not part of this appeal. Houser provides no competent direct summary judgment evidence of retaliatory motivation on the part of either Barrow or Mosely. We find, therefore, that the trial court did not abuse its discretion in dismissing the section 1983 access to courts and retaliation actions as frivolous under Chapter 14, and in granting summary judgment on said actions in favor of Barrow and Mosely in their individual capacities.
We do not address Houser's final issue complaining of the denial of injunctive relief as the record indicates only one of the three applications for such relief pertains to the confiscation of the storage locker mentioned in Issue 22. As for the pertinent injunctive request, the record does not reflect that Houser filed any grievance in connection with this complaint, although the record does contain grievances filed on other issues. Section 14.005 requires that a grievance be filed, and for the grievance procedures to be exhausted, before an inmate may file such a claim in a court of law. Tex. Civ. Prac. Rem. Code Ann. § 14.005 (Vernon 2003); Smith v. Tex. Dep't of Criminal Justice — Inst'l Div., 33 S.W.3d 338, 341 (Tex.App.-Texarkana 2000, pet. denied); see also Tex. Gov't Code Ann. § 501.008(d) (Vernon 2004). As we have found no abuse of discretion by the trial court in disposing of all of Houser's claims in the manner discussed, we overrule the appellate issues presented and affirm the dismissal and final judgment of the trial court.
AFFIRMED.