Simmonds v. TDCJ, No. 10-07-00361-CV (Tex. App. 2/24/2010)
| Decision Date | 24 February 2010 |
| Docket Number | No. 10-07-00361-CV.,10-07-00361-CV. |
| Parties | GORDON R. SIMMONDS, Appellant, v. TDCJ, ET AL., Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 12th District Court, Madison County, Texas, Trial Court No. 23516.
Affirmed in part, reversed and remanded in part.
Before chief Justice GRAY, Justice REYNA, and, Justice DAVIS (Chief Justice Gray concurs in part and dissents in part with a note)*
Gordon Simmonds, a state prison inmate, appeals the trial court's frivolousness dismissal of his suit against the Texas Department of Criminal Justice—Institutional Division (the TDCJ) and several TDCJ officials or employees: Captain Kenneth N. Simmons, Warden Charles T. O'Reilly, Lieutenant Bob K. Castleberry, Investigator David P. McLeod, and Grievance Investigator Tawn Roddey.
Simmonds's claims center around the alleged wrongful confiscation of his personal property by TDCJ employees. He alleged in his second amended petition that on March 15, 2006, during a semi-annual and unit-wide "shakedown" at the Huntsville Unit, Simmons and Castleberry confiscated (1) Simmonds's typewriter because it contained contraband and (2) numerous personal items belonging to Simmonds because they allegedly were excessive property.
Simmons and Castleberry seized the typewriter because Simmonds had stored inside it a bottle of "white-out" correction fluid and "scotch" tape, both of which are contraband (which Simmonds does not dispute). Simmonds alleged that no TDCJ rule allowed for the typewriter's seizure and that its seizure without such a rule and without disciplinary action being brought against him violates due process.
As for Simmonds's other personal property, Simmonds alleged that the sizing bin that TDCJ uses in a shakedown measures two cubic feet, which is the amount of personal property that inmates may possess. Simmonds had a cell storage bin—a "footlocker"—that measured three cubic feet, and his legal materials took up two-thirds (two cubic feet) of his footlocker. All of Simmonds's nonlegal, personal property would fit in the one cubic foot of remaining space in his footlocker. Simmonds also had personal hygiene items (his "shelf" items) that TDCJ rules allow to be stored on a cell shelf; they did not have to be stored in the footlocker, but they too would have fit in the remaining one cubic foot of space.
In September of 2005, in anticipation of the next shakedown, Simmonds inquired of McLeod if Simmonds needed to obtain an extra storage container for the extra one cubic foot of legal materials that he would need available so that his other cubic foot of legal materials and one cubic foot of personal property would fit in the two-cubic-feet TDCJ sizing bin.1 McLeod told Simmonds that he would not be issued an additional container for his legal materials because all of Simmonds's property, other than his shelf items, would fit in Simmonds's footlocker. Simmonds also asked, and was told by McLeod, that in a shakedown, Simmonds would not have to put his legal materials in the sizing bin.
Simmonds alleged that in the March 15, 2006 shakedown, the inmates were required to take all of their personal property to a gym for inspection and measuring. Simmonds had all of his personal property that would have to fit in the sizing bin in a red mesh bag. All of his shelf items were in a pillow case so they could be set aside and not placed in the sizing bin, and all of his legal materials were in two red mesh bags so that they too could be set aside. Simmons and Castleberry required Simmonds to place all of his property in the sizing bin, and because Simmonds's legal materials were most important to him, he put those in first. After the sizing bin had been filled with Simmonds's legal materials, all of Simmonds's other personal property,2 including his shelf items and his Bible, which Simmonds alleged was exempt from having to fit in his footlocker, were confiscated as excessive property. When Simmonds told Simmons and Castleberry that the shelf items were not required to be stored in his footlocker and should not go in the sizing bin, he was asked, "Do you see any shelves in here [i.e., in the gym]?"
Simmonds further alleged that he had filed a suit in February 2006 against TDCJ officials and that the property confiscation that occurred a month later was in retaliation for this new suit and is thus actionable under 42 U.S.C. § 1997d. Simmonds also alleged that, before the next shakedown, he received a yellow mesh bag for his legal materials, and it was explained to him that the legal materials that he placed in the yellow mesh bag would not have to be placed in the sizing bin. In that next shakedown, Simmonds said that he did not have to place his legal materials in the sizing bin, nor did he have to place his shelf items in the sizing bin. Simmonds asserted that this occasion was an admission that the prior confiscation of his property was unlawful.
O'Reilly, the Warden, signed Simmonds's Step 1 Grievance relating to the confiscation, and Roddey, a grievance investigator, signed his Step 2 Grievance.
Simmonds filed the instant lawsuit pro se, along with his pauper's affidavit with inmate account statement, affidavit relating to previous filings, affidavit relating to exhaustion of administrative remedies, and affidavit relating to the value of confiscated items. The district clerk issued a bill of costs for the $207 filing fee, and the trial court entered an order pursuant to section 14.006 of the Civil Practice and Remedies Code ordering payment of those costs from Simmonds's inmate account.
The trial court also entered an order directing the clerk to forward all of Simmonds's filings to the Attorney General's Law Enforcement Defense Division and directed the Attorney General to review the filings and, as amicus curiae, advise the trial court if Simmonds's filings complied with chapter 14 of the Civil Practice and Remedies Code. The Attorney General filed a reply as amicus curiae and, other than asserting that Simmonds's claims were frivolous, did not note any noncompliance with Simmonds's filings. The Attorney General then filed an answer for all the defendants.
The defendants filed a motion to dismiss under chapter 14, alleging that Simmonds's suit was frivolous. An amended motion was filed, and attached were unauthenticated copies of TDCJ offender property rules and excerpts from the offender orientation handbook. The trial court held a hearing on the amended motion, granted it, and entered an order dismissing the action as frivolous under chapter 14. Simmonds appeals, asserting eight issues in his original brief and an additional issue in a supplemental brief that he was given leave to file.
In his first issue, Simmonds asserts that the trial court erred in dismissing his action as frivolous under chapter 14.
Section 14.003 allows a trial court to dismiss a suit filed by an indigent inmate, either before or after service of process, if the court finds that the claim is frivolous or malicious. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2). In determining whether the claim is frivolous or malicious, the trial court may consider whether (1) the claim's realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Id. § 14.003(b).
. . .
The Texas Supreme Court has expressed doubt about whether a trial court can properly dismiss a suit only because the claim's realistic chance of ultimate success is slight or because it is clear that the party cannot prove facts in support of the claim. Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990). Practically speaking, therefore, the trial court is limited to determining whether the claim has an arguable basis in law or fact. Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d 113, 115 (Tex. App.-Austin 1997, writ denied).
Smith, 33 S.W.3d at 340; see also Spurlock, 88 S.W.3d at 736.
...
The issue of whether there was an arguable basis in law is a legal question that we review de novo. Id.; Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.-Houston [1st Dist.] 2002, no pet.).
To determine whether the trial court properly decided there was no arguable basis in law ..., we examine the types of relief and causes of action ... to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief. Johns, 2005 WL 428465, at *1; Spurlock, 88 S.W.3d at 736. We review and evaluate pro se pleadings by standards less stringent than those applied to formal pleadings drafted by lawyers. Spurlock, 88 S.W.3d at 736 (citing Thomas v. Collins, 860 S.W.2d 500, 503 (Tex. App.-Houston [1st Dist.] 1993, writ denied)). Also, in reviewing the dismissal ..., we are bound to take as true the allegations in his petition. Jackson v. Tex. Dep't Crim. Justice-Inst. Div., 28 S.W.3d 811, 813 (Tex. App.-Corpus Christi 2000, pet. denied).
Brewer v. Simental, 268 S.W.3d 763, 769-70 (Tex. App.-Waco 2008, no pet.). A claim has no arguable basis in law if it is an indisputably meritless legal theory. Leachman v. Dretke, 261 S.W.3d 297, 304 (Tex. App.-Fort Worth 2008, no pet.).
We find no case law on what it means for a claim to have "no arguable basis in fact" under subsection 14.003(b)(2).3 We thus turn to case law under Rule 13, which authorizes a trial court to impose sanctions against an attorney, a represented party, or both, who file a groundless pleading brought in bad faith or brought for the purpose of harassment. TEX. R. CIV. P. 13. Rule 13 defines "groundless" as having "no basis in law or fact and not warranted by good...
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