Birdo v. DeBose

• Decision Date: 30 October 1991
• Docket Number: No. 10-91-052-CV,10-91-052-CV
• Parties: Burnice Joe BIRDO, Appellant, v. Hubert E. DEBOSE, Jr., et al, Appellees.
• Court: Texas Court of Appeals

Page 212

819 S.W.2d 212

Burnice Joe BIRDO, Appellant, v. Hubert E. DEBOSE, Jr., et al, Appellees.

No. 10-91-052-CV.

Court of Appeals of Texas,

Waco.

Oct. 30, 1991.

Rehearing Denied Nov. 27, 1991.

Burnice Birdo, pro se.

Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

VANCE, Justice.

In this appeal we determine the propriety of a dismissal, under section 13.001 of the Civil Practice and Remedies Code, of a suit filed in forma pauperis. See TEX.CIV.PRAC. & REM.CODE ANN. § 13.001 (Vernon Supp.1991).

PROCEDURAL HISTORY

Burnice Birdo, a prison inmate, brought a pro se action in forma pauperis against prison guards Hubert DeBose and Thomas Carl and against Mary Furry and Jerry Bradley, emergency medical technicians working for the prison. Before the defendants were served with process, the court dismissed the cause as being frivolous. See id. Birdo complains that the court abused its discretion when it dismissed the cause before service of process and that the dismissal resulted in a violation of his constitutional rights. Because the court erroneously dismissed Birdo's assault and battery and section 1983 claims, the judgment of dismissal will be reversed. See 42 U.S.C.A. § 1983 (West 1981).

THE STATUTE

Section 13.001 provides:

(a) A court in which an affidavit of inability to pay under Rule 145, Texas Rules of Civil Procedure, has been filed may dismiss the action on a finding that:

(1) the allegation of poverty in the affidavit is false; or

(2) the action is frivolous or malicious.

(b) In determining whether an action is frivolous or malicious, the court may consider whether:

(1) the action's realistic chance of ultimate success is slight;

(2) the claim has no arguable basis in law or in fact; or

(3) it is clear that the party cannot prove a set of facts in support of the claim.

(c) An action may be dismissed under Subsection (a) as frivolous or malicious either before or after service of process.

TEX.CIV.PRAC. & REM.CODE ANN. § 13.001 (Vernon Supp.1991).

THE ALLEGATIONS OF BIRDO'S PETITION

Birdo's petition alleged three separate causes of action. The first was an action against DeBose and Carl asserting that they intentionally, wilfully, knowingly and maliciously committed an assault and battery against him. The second was a section 1983 action against DeBose and Carl asserting that in their "individual capacities" they violated his rights under the 1st and 14th amendments to the United States Constitution. See U.S. CONST. amends. I, XIV; 42 U.S.C.A. § 1983 (West 1981). The third was an action brought under section 104.001 of the Texas Civil Practice and Remedies Code asserting negligent acts and omissions committed by DeBose, Carl, Furry, and Bradley. See TEX.CIV.PRAC. & REM.CODE ANN. § 104.001 (Vernon Supp.1991). He asked for $150,000 as actual damages and $200,000 punitive damages on each claim arising out of the assault and $200,000 actual damages for failure to render medical treatment.

The court specified that Birdo's petition was dismissed because "the action's realistic chance of ultimate success is slight" and because "it is clear that the party cannot prove a set of facts in support of the claim." See id. at § 13.001(b)(1), (3). Point two asserts that the court abused its discretion when it dismissed the cause.

STANDARD OF REVIEW

We review a dismissal under section 13.001 by determining whether the court abused its discretion. See id. at § 13.001; Johnson v. Peterson, 799 S.W.2d 345, 347 (Tex.App.--Houston [14th Dist.] 1990, no writ). Abuse of discretion is determined by whether the court acted without reference to any guiding principles. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939). Stated another way: Was the act of the court arbitrary or unreasonable? Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex.1984); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex.1970). That an appellate court might have decided a matter within the trial judge's discretion in a different manner does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959).

REVIEW OF THIS DISMISSAL

A dismissal under section 13.001(b)(3) is no longer appropriate. See Neitzke v. Williams, 490 U.S. 319, 330, 109 S.Ct. 1827, 1834, 104 L.Ed.2d 338 (1989); Pugh v. Parish of St. Tammany, 875 F.2d 436, 438 (5th Cir.1989); Johnson v. Lynaugh, 800 S.W.2d 936, 938 (Tex.App.--Houston [14th Dist.] 1990, writ granted).

THIRD CAUSE OF ACTION

We overrule Birdo's second point insofar as his third cause of action is concerned. He alleged in this action that DeBose and Carl "negligently" beat and kicked him and that Furry and Bradley "negligently" failed to provide medical treatment. Although his petition cites section 104.001 of the Texas Civil Practice and Remedies Code, which provides for state liability for certain acts of public servants, Birdo brought suit against the employees as individuals and did not name the state or any state agency as a defendant. See TEX.CIV.PRAC. & REM.CODE ANN. § 104.001 (Vernon Supp.1991). Therefore, the court properly dismissed this claim because the action's realistic chance of ultimate success was slight. See id. at § 13.001(b)(1).

Recognizing that the test applicable under the federal statute is the one enumerated in our statute as section 13.001(b)(2) ("a complaint ... is frivolous where it lacks an arguable basis in law or in fact") and that our duty is to affirm the dismissal if it was proper under any legal theory, we will review the dismissal of this negligence action against DeBose, Carl, Furry, and Bradley to see if Birdo's claims had an arguable basis in law and in fact. See id. at § 13.001(b)(2); Neitzke, 490 U.S. at 328, 109 S.Ct. at 1833; Ross v. Walsh, 629 S.W.2d 823, 826 (Tex.App.--Houston [14th Dist.] 1982, no writ).

The federal counterpart of section 13.001 is section 1915(d) of Title 28, which authorizes federal courts to dismiss in forma pauperis suits "if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." See 28 U.S.C.A. § 1915(d) (West 1966). Although the federal statute does not contain guidelines for determining when a suit is frivolous, a dismissal is proper if the claim has no arguable basis in law and fact. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.1991); Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir.1989), cert. denied, 493 U.S. 969, 110 S.Ct. 417, 107 L.Ed.2d 382 (1989); Pugh, 875 F.2d at 438. The "rationale behind granting this power to trial courts is to 'prevent abusive or captious litigation' where the in forma pauperis litigant 'lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.' " Neitzke, 490 U.S. at 324, 109 S.Ct. at 1831; Thompson v. Ereckson, 814 S.W.2d 805, 807 (Tex.App.--Waco 1991, n.w.h.). "To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complainant's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. An example of an indisputably meritless legal theory occurs where the petition asserts claims against which the defendants are immune from suit. Id. An example of factually baseless contentions occurs where the petition describes claims arising out of fantastic or delusional scenarios. Id.

Thus, the court could have concluded that Birdo's third cause of action was based on an indisputably meritless legal theory because he did not make the state a defendant. See id.; TEX.CIV.PRAC. & REM.CODE ANN. §§ 13.001(b)(2), 104.001 (Vernon Supp.1991).

FIRST AND SECOND CAUSES OF ACTION

As to Birdo's first two causes of action, we hold that the dismissal was improper. Birdo's first claim was that DeBose, "acting alone and in concert [with Carl] without any provocation or justification, roughly and tightly grabbed [him] by the neck" while he was handcuffed. He further alleged that he was "slammed" to the floor and hit and kicked by the men. He stated that he suffered physical injuries as well as mental anguish. The petition clearly alleged that the guards were not acting in good faith nor within the scope of their authority. Therefore, they enjoyed no immunity from personal liability. See Johnson, 799 S.W.2d at 347. This action against Carl and DeBose was based on valid legal theories--the common-law torts of assault and battery.

Birdo's second claim was also based on a valid legal theory. Section 1983 of Title 42 of the United States Code imposes liability on "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws...." 42 U.S.C.A. § 1983 (West 1981). Birdo complained in this action that DeBose and Carl violated his constitutional rights of "freedom of speech" and "petition for redress" under the 1st and 14th amendments by intentionally and maliciously, and without provocation, assaulting him in retaliation for letters Birdo had written to the Federal Bureau of Investigation and to certain female prison employees. The petition stated that the letters sent to the F.B.I. informed it that DeBose had told Birdo that certain white officers were plotting to "get [him] real good or kill [him]." Birdo alleged that, as DeBose and Carl were "repeatedly" kicking and beating him, they were saying, "No more letters, no more letters." These allegations were sufficient to raise possible 1st and 14th amendment violations. See, e.g., Andrade v. Hauck, 452 F.2d 1071, 1072 (5th Cir.1971) (holding that, under the 14th amendment, "no person subject to the power of...