Terrell v. Carter
| Decision Date | 06 May 2021 |
| Docket Number | NO. 09-19-00373-CV,09-19-00373-CV |
| Parties | SHERON G. TERRELL, Appellant v. JEKERRIA R. CARTER, ET AL, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 411th District Court Polk County, Texas
Pro se Appellant Sheron G. Terrell appeals from orders dismissing his lawsuit with prejudice and declaring him a vexatious litigant. See Tex. Civ. Prac. & Rem. Code Ann. §§ 11.051-.100, 14.001-.014. We affirm.
Procedural Background
On April 8, 2019, Terrell, then an inmate at the Polunsky Unit of the Texas Department of Criminal Justice (TDCJ), filed a pro se petition against Jekerria Carter (Correctional Officer), Cynthia Ivins (Correctional Officer), Steven Stowe (Correctional Officer), Jamar Bey (Correctional Officer), and Lorie Davis (Executive Director of the TDCJ) (collectively "Defendants"). In a First Supplemental Petition, Terrell named three Correctional Officers as defendants: Steven Stowe, Likiva Woods, and "John/Jane Doe."
According to Terrell, in February 2018, he was assigned to the Utility Shower Crew to clean showers in four buildings. Terrell alleged that he was instructed that the shower crew workers were to pick up supplies at the "B-Side Turnout," check in with the desk officer, and turn in their IDs upon arriving at a building, but that workers could move freely between buildings during their shift.
Terrell alleged that in July 2018, he experienced intimidation and harassment from Correctional Officer Stowe while walking in a hallway between two work sites. Terrell sought assistance from a supervisor, Correctional Officer Rose Buffington, on September 4, 2018, and asked Buffington to call Lieutenant Jekerria Carter. Buffington called Carter and said that Terrell needed to know who he worked for and he was having problems with Stowe. According to the petition, Carter said she would call Buffington back, but she did not, and Buffington referred Terrell to Sergeant Cynthia Ivins. Terrell subsequently discussed his complaints about Stowe with Ivins and another officer, and Ivins made a call to Stowe to ask about Terrell's job. The petition alleged that Ivins became "defensive" during the call and told Terrell she was going to talk with Lieutenant Carter about Stowe.
In his petition Terrell alleged that, on the following day, after Terrell had reported for work, Stowe stopped Terrell and asked, "Where do you think you're going?" In response, Terrell claims he said, "I need to talk to Lt. Carter about you!" and he claims he was told to stay put while Stowe called Carter. According to Terrell, after Stowe called Carter, Carter arrived with another officer and instructed Sergeant Bey to lock Terrell up, Terrell was escorted to pre-hearing detention, and Stowe filed disciplinary offenses against Terrell for creating a disturbance and being out of place.
According to the petition, "such rule violations were arbitrary under the circumstances[,]" Terrell suffered harm as a result of retaliation for exercising his right to free speech, and he was deprived of a state-created liberty interest and due process. Terrell alleged that Terrell would not have incurred disciplinary charges and resulting punishment but for Stowe's retaliation for Terrell exercising his constitutional rights to "informally resolve" his problem. Terrell asserted that he had claims under 42 U.S.C. § 1983, the United States Constitution, and the Texas Constitution for harassment and intimidation in retaliation for Terrell's use of the grievance procedure. Terrell sought declaratory and injunctive relief, expunction of a disciplinary offense, transfer to another unit, and compensatory and punitive damages.
On June 28, 2019, the Defendants filed a Motion to Declare Plaintiff Vexatious, Motion for Prefiling Order, and Motion to Dismiss Pursuant to Chapter Fourteen. Defendants' motion argued that Terrell's lawsuit should be dismissed because he failed to meet the procedural requirements of Chapter 14, his claims based on respondeat superior were barred in a section 1983 suit for damages, the denial of relief in the grievance process does not implicate a constitutional due process violation, the Texas Constitution does not recognize a private right of action for damages, and his claim for retaliation is conclusory and fails to allege sufficient facts to establish causation. Defendants' motion also sought to declare Terrell a vexatious litigant because his "present suit is barred by Chapter 14, and he has unsuccessfully prosecuted a glut of frivolous lawsuits in the past."
The trial court held a hearing on Defendants' motion on September 16, 2019, and at the conclusion of the hearing the court stated to Terrell "I'm going to grant the motion to declare you a vexatious litigant." The same day, the trial court signed an order dismissing with prejudice Terrell's claims against the Defendants. The trial court also signed a Pre-Filing Order indicating that Terrell had been declared a vexatious litigant under Chapter 11 and ordering him to obtain permission from a local administrative judge prior to filing any new litigation in State court. Terrell subsequently filed a notice of appeal.
Issues
Appellant argues that the trial court abused its discretion by dismissing the lawsuit without conducting a fact hearing. According to Appellant, a trial court may only dismiss a Chapter 14 lawsuit if it determines the lawsuit has no arguable basis in law, which Appellant argues was error. Appellant also argues that the trial court abused its discretion by granting the Defendants' vexatious-litigant motion. According to Appellant, the trial court never entered an order requiring Appellant to furnish security within a specific timeframe to the Defendants. Appellant then includes several other allegations in support of his stated issues.
Standard of Review
We review the trial court's dismissal of an inmate's claims under Chapter 14 for an abuse of discretion. Brewer v. Simental, 268 S.W.3d 763, 767 (Tex. App.—Waco 2008, no pet.); Retzlaff v. Tex. Dep't of Criminal Justice, 94 S.W.3d 650, 654 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Appellant bears the burden of overcoming the presumption that the trial court's action was justified. See Retzlaff, 94 S.W.3d at 654. Because the order in this case does not specify thesections of Chapter 14 upon which the trial court relied in granting the dismissal, we will affirm the order if any of the grounds presented to the trial court were meritorious. See Garza v. Garcia, 137 S.W.3d 36, 37 (Tex. 2004); Turner v. TDCJ-ID Allen B. Polunsky Unit, No. 09-12-00517-CV, 2013 Tex. App. LEXIS 7820, at *3 (Tex. App.—Beaumont June 27, 2013, pet. denied) (mem. op.) ("We will affirm the trial court's dismissal if it was proper under any legal theory.") (citing Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990)).
We construe an appellant's pro se brief liberally. See Giddens v. Brooks, 92 S.W.3d 878, 880 (Tex. App.—Beaumont 2002, pet. denied); see also Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989) (). Nevertheless, a pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).
Dismissal of the Lawsuit
The trial court may dismiss an inmate's suit before or after service of process if it determines that the suit is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2). In determining whether the suit 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 the partycannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because it arises from the same operative facts. Id. § 14.003(b).
"In most cases, a trial court cannot dismiss an in forma pauperis lawsuit based on a determination that the lawsuit lacks an arguable basis in fact without having a fact hearing." Gibson v. Trapp, No. 09-19-00099-CV, 2019 Tex. App. LEXIS 9574, at *3 (Tex. App.—Beaumont Oct. 31, 2019, no pet.) (mem. op.) (citing In re Wilson, 932 S.W.2d 263, 265 (Tex. App.—El Paso 1996, no writ)); see also Johns v. Johnson, No. 10-03-00388-CV, 2005 Tex. App. LEXIS 1500, at *3 (Tex. App.—Waco Feb. 23, 2005, no pet.) (mem. op.) ("A fact hearing is only necessary if the claim has an arguable basis in law."). However, a trial court does not err under Chapter 14 in dismissing an inmate's claim without a hearing if the inmate's claim has no arguable basis in law. See Sawyer v. Tex. Dep't of Criminal Justice, 983 S.W.2d 310, 311 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). "When a trial court dismisses a claim without conducting a hearing, our review focuses on whether the inmate's claim has no basis in law, which is a question of law that we review de novo." Gibson, 2019 Tex. App. LEXIS 9574, at **3-4 (citing Sawyer, 983 S.W.2d at 311).
Prisoners have a First Amendment right to be free from retaliation for complaining about a prison official's misconduct, and a violation of this right maybe actionable under 42 U.S.C. § 1983. See Institutional Div. of Texas Dep't of Criminal Justice v. Powell, 318 S.W.3d 889, 892 (Tex. 2010) (citing Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995)). To prevail on a claim of retaliation, a prisoner must establish (1) a specific...
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