Opinion
No. 10-03-00388-CV
Opinion delivered and filed February 23, 2005.
Appeal from the 87th District Court, Freestone County, Texas, Trial Court # 02-313-B.
Reformed and affirmed.
Charles L. Johns, Dalhart, TX, pro se.
Elizabeth A. Salinas, Asst. Attorney General, Austin, TX, for appellee/respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA, (Chief Justice GRAY dissenting).
MEMORANDUM OPINION
Charles Louis Johns is an inmate at a Texas prison. He filed an in forma pauperis lawsuit in the district court naming eight individual employees of the Texas Department of Criminal Justice — Correctional Institutions Division as co-defendants. Johns filed his original petition pursuant to 42 U.S.C., section 1983, alleging denial of access to courts, denial of equal protection, retaliation, and harassment in violation of the First, Fifth, and Fourteenth Amendments of the United States Constitution. He further alleged the "tort of theft" and deprivation of personal property. The district court dismissed Johns's claims with prejudice as frivolous under section 14.003 of the Texas Civil Practice and Remedies Code. Johns appeals pro se, arguing (1) that the trial court erred in dismissing his petition as frivolous and (2) that the trial court erred in dismissing his petition with prejudice.
Background
Johns asserted his claims based on allegations that the defendants interfered with his access to court rights by interfering with his law library appointment, by intentionally destroying his legal document, and by confiscating his legal dictionary. He alleges he was harassed and retaliated against for filing grievances and this civil action.
Standard of Review
When an inmate plaintiff files an affidavit of inability to pay, the trial court has broad discretion to dismiss the suit as frivolous or malicious. TEX. CIV. PRAC. REM. CODE ANN. § 14.003(a)(2), (b)(2) (Vernon 2002); Perales v. Kinney, 891 S.W.2d 731, 733 (Tex.App.-Houston [1st Dist.] 1994, no writ). Generally the dismissal of inmate litigation under Chapter 14 is reviewed for abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.-Waco 1996, no writ.).
A trial court may dismiss a claim as frivolous when it has no arguable basis in law or fact. See TEX. CIV. PRAC. REM. CODE ANN. § 14.003(a)(2), (b)(2). A fact hearing is only necessary if the claim has an arguable basis in law. Denson v. T.D.C.J.-I.D., 63 S.W.3d 454, 459 (Tex.App.-Tyler 1999, pet. denied). In this case, the trial court held no fact hearing. Thus its basis for determining that Johns's causes of action were frivolous could not have been because it found they had no arguable basis in fact, but because they had no arguable basis in law. Id. The issue as to whether there was an arguable basis in law is a legal question that we review de novo. Id.; see also In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994) (stating that questions of law are always reviewable de novo). We examine the types of relief and causes of action Johns pled in his petition to determine if they have an arguable basis in law.
Official Capacity Claims
Johns's petition states he is suing five of the eight defendants in their "individual and official capacities" pursuant to 42 U.S.C., section 1983. Suits against state officials in their "official capacities" are equivalent to suits against the State. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). States are not "people" that may be held liable for purposes of section 1983 claims. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Johns's section 1983 claims against the defendants in their official capacities do not have an arguable basis in law and the trial court properly dismissed them.
Access to Courts
Johns's petition claims that defendants Johnson and Nichols interfered with his access to courts in violation of the First and Fourteenth Amendments. Specifically, he alleges that Johnson refused to timely release him from his cell for a library visit and verbally and physically threatened him. He alleges that Nichols harassed him on his way to the law library, destroyed part of a writ of habeas corpus, and confiscated some legal supplies.
An inmate has a constitutional right of access to courts. Tighe v. Wall, 100 F.3d 41, 42 (5th Cir. 1996). That access must be adequate, effective, and meaningful. Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). The right of access requires prison authorities to provide access to adequate law libraries or adequate assistance from persons trained in the law. Id.; Thomas v. Brown, 927 S.W.2d 122, 125 (Tex.App.-Houston 1996, writ denied).
To establish a cognizable claim, however, an inmate must show that he sought library access for a reason — such as litigating civil rights complaints or habeas corpus petitions — that would trigger a constitutional right to access the courts. Blaylock v. Painter, 901 F. Supp. 233, 235 (W.D. Tex. 1995) (citing Mann v. Smith, 796 F.2d 79, 83 (5th Cir. 1986)). Assuming the inmate's purpose in visiting the library would trigger a constitutional right of access, he must still establish that the access was so limited as to be unreasonable and that the inadequate access caused him actual injury. Id. at 236; see also Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993) (holding that an inmate claiming denial of access to courts must allege at least some legal prejudice as a result of the alleged constitutional violation). Johns's petition describes only one occasion where his law library access was delayed. This allegation, if true, would not constitute unreasonably limited access. Johns does not allege that he suffered any legal prejudice or actual harm by the delay. Johns's claim that Nichols took clips holding the carbon paper in place and thereby destroyed part of a writ of habeas corpus also fails to allege harm or prejudice that would support a claim. See Aguilar v. Chastain, 923 S.W.2d 740, 744 (Tex.App.-Tyler 1996, writ denied) (holding that crumpling of papers and loss of some pens was de minimus actual harm and no alleged prejudice). Johns's petition fails to adequately state a claim for denial of access to the courts.
Harassment
Johns's petition alleges harassment and "verbal assaults" in his section 1983 claim. The Fifth Circuit Court of Appeals has held that a claim for "verbal abuse by a prison guard does not give rise to a cause of action under § 1983." Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (citing Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir. 1993)). Johns makes no allegation that he was physically harmed or suffered any bodily injury. Johns's harassment claims have no arguable basis in law.
Retaliation
To prevail on a retaliation claim, an inmate must be able to establish: i) a specific constitutional right; ii) the defendants' intent to retaliate against him for exercising that right; iii) a retaliatory adverse act; and iv) causation — a showing that "but for the retaliatory motive, the complained of incident would not have occurred." McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). A retaliation claimant must be able to show more than a personal belief that he is the victim of retaliation. Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). Johns's petition fails to allege facts or a chronology of events showing that the defendants acted in retaliation against him for exercising a specific constitutional right. Johns failed to adequately state a retaliation claim.
Personal Involvement
Johns's petition alleges that six of the defendants failed to take corrective action or to prevent Johnson and Nichols from violating his rights and therefore denied him equal protection under the Fourteenth Amendment. Personal involvement is an essential element in a civil rights cause of action alleging constitutional deprivation. Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). Under section 1983, supervisory officials are not liable for the acts or omissions of subordinates on any theory of vicarious liability. Id. Supervisors may be held liable if they affirmatively participated in the acts giving rise to the constitutional deprivation or if there is a causal connection between a supervisor's wrongful conduct and the constitutional violation. Id. at 304. Johns fails to allege any affirmative participation by the six defendants in a constitutional deprivation and fails to allege wrongful conduct on their part that caused a constitutional violation. The trial court correctly dismissed Johns's claims as a matter of law.
Personal Property
Johns alleges that Nichols deprived him of paper clips and a legal dictionary. He calls this claim a "tort of theft," but his claim appears to be that he was deprived of his personal property in violation of his due process rights. The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty or property without due process of law." U.S. CONST. amend. XIV. A prison official's unauthorized intentional act that deprives an inmate of property is not a constitutional violation if there exists an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 535, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Aguilar, 923 S.W.3d at 744. The Legislature has provided an administrative remedy to pay inmates' claims for property lost or damaged by the Department of Corrections. See Tex. Gov't Code ANN. §§ 501.007, 501.008 (Vernon 2004). Accordingly, we conclude Johns's due process claim had no arguable basis in law.
With or Without Prejudice
Johns's second issue argues that the trial court abused its discretion by dismissing his claim with prejudice. The defendants agree. Dismissal with prejudice constitutes adjudication on the merits and operates as if the case had been fully tried and decided. Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991). Dismissal with prejudice may also be proper as a sanction for abuse of discovery, on the failure of a plaintiff to amend deficient pleadings when given that opportunity, for the violation of a pretrial order, or on agreement of the parties. Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex.App.-Houston [1st Dist.] 1998, no pet). Dismissal with prejudice is improper in Johns's case. The proper order is dismissal without prejudice.
Conclusion
Because Johns's petition states no claim with an arguable basis in law, the trial court properly dismissed his claim as frivolous. We overrule his first issue. We sustain his second issue that the trial court erred in dismissing the claim with prejudice. We reform the judgment to provide that the cause is dismissed without prejudice. As reformed, the judgment is affirmed.
We note that Johns owes fees in this case. Because he proceeded in forma pauperis in the trial court, our attempts to collect the fees would essentially be a waste of our resources. Thus, payment of all fees is waived.