Keith Lawrence Somerville v. Dallas County Incorporated ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00392-CV
KEITH LAWRENCE SOMERVILLE, APPELLANT
V.
DALLAS COUNTY INCORPORATED, ET AL., APPELLEES
On Appeal from the 30th District Court
Wichita County, Texas
Trial Court No. 186,438-A, Honorable Jeff McKnight, Presiding
August 23, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Keith Lawrence Somerville, a prison inmate1 appearing pro se and in
forma pauperis, appeals an order dismissing as frivolous his suit against multiple Texas
counties and individuals.2 We will affirm the trial court’s order.
1
Change of address notice Somerville filed with the clerk on July 8, 2019, indicates
he may no longer be confined.
2Somerville named as defendants the counties of Bexar, Cherokee, Dallas, Ector,
Harris, Hood, Matagorda, Nueces, Potter, Randall, Smith and Tarrant, and two former
Background
Somerville was convicted of the felony offense of burglary of a habitation with intent
to commit sexual assault and assessed a life sentence.3 In the underlying lawsuit,
Somerville named himself and some twenty-two other inmates as plaintiffs. None of the
additional plaintiffs signed the petition or filed a notice of appeal. Somerville sought
certification of a class consisting of “those who are presently incarcerated, on probation,
parole, community supervis[i]on, civil commitment, and those who are deceased.” The
petition further alleged the putative class members’ “substantial rights were violated
through Official Abuse of Office, Abuse of Official Compacity (sic), Official Oppression, by
taking blank government documents (i.e., indictments) and forging said instruments
(Rubber Stamping) them, then testifying before County District Courts and Municipal
Courts to the veracity of said documents to effect the outcome of an Official Proceeding.”
He alleges that the defendants “did engage in criminal acts against [the class members]
by tampering with official government documents by placing frauds before the court in
Dallas County assistant district attorneys, two former Texas Attorneys General, and two
former Texas governors.
3 See In re Somerville, No. 05-18-00333-CV, 2018 Tex. App. LEXIS 2400, at *1
(Tex. App.—Dallas Apr. 4, 2018, orig. proceeding) (mem. op.) (citing Somerville v. State,
No. 05-92-00395-CR, 1993 WL 459995, at *1 (Tex. App.—Dallas Nov. 10, 1993, pet.
ref’d, untimely filed) (not designated for publication) (opinion found at
http://www.courtstuff.com/cgi-bin/as_web.exe?c05_93.ask+D+1472056)). See also
Somerville v. Thaler, No. 3:11-CV-3146-B (BK), 2012 U.S. Dist. LEXIS 24692 (N.D. Tex.
Feb. 9, 2012) (recounting, to date, Somerville’s unsuccessful habeas attempts in federal
court), report and recommendation adopted, No. 3:11-CV-3146-B (BK), 2012 U.S. Dist.
LEXIS 24681 (N.D. Tex. Feb. 27, 2012); Ex parte Somerville, No. WR-31,451-14, 2017
Tex. Crim. App. Unpub. LEXIS 335 (Tex. Crim. App. May 3, 2017) (noting Somerville had
previously filed six habeas applications and holding his claims were barred from review
under Texas Code of Criminal Procedure Article 11.07 § 4 and were waived and
abandoned for abuse of the writ).
2
criminal proceedings.” Somerville’s complaint is summarized in his pleading’s allegation
that the allegedly fraudulent indictments “were never presented or returned by a grand
jury, and as such; only prima facie appeared to be presented to the court by a grand jury.
As such does not confer jurisdiction upon the courts. Under Ex Dolo Malo, the court can
not (sic) give aid to one whose actions before the court is based on fraud.”4
Somerville alleged the conduct of the defendants deprived class members of
multiple constitutional rights. Although he does not identify 42 U.S.C. § 1983 by citation,
Somerville’s intended remedy appears to be the recovery of money damages in tort and
equitable relief under that statute. Somerville requested the following specific items of
relief:
1. 4.4 Billion in compensatory damages;
2. 2.2 million in punitive damages for each Plaint[i]ff;
3. Criminal complaints filed in accordance with Tex. Penal Code;
4. Disbar[]ment proceedings filed against all Respondent(s);
5. L[ie]ns against property and asse[]ts of all Respondent(s);
6. Public apology to the citizens of Texas;
7. Joinder of any additional Plaintiff(s) and Respondent(s);
8. Joinder of any additional Plaintiff(s);
9. Compensation to the families of Plaintiff(s) who are deceased;
10. Imme[]diate release of Plaintiff(s) from wrongful restr[ai]nt of liberty;
11. no additional legal action taken against Plaint[i]ff(s);
12. Free education at accredited University;
13. Housing and employment imme[]diately after release;
Ex Dolo Malo means “[o]ut of fraud; out of deceitful or tortious conduct.” BLACK’S
4
LAW DICTIONARY, 649 (9th ed. 2009).
3
14. Expung[e]ment and sealing of records of convictions;
15. Free health care for those with chronic illness and existing health
problems.
In response to Somerville’s petition, the Wichita County District Attorney’s Office
filed a document with the district court entitled “Amicus Curiae Advisory Recommending
Denial of Motion to File Suit” urging dismissal of Somerville’s suit on jurisdictional grounds
under sovereign immunity or as a frivolous challenge of Somerville’s conviction.5 Before
process was issued or any defendant appeared, the trial court dismissed the case, finding
it frivolous under Texas Civil Practice and Remedies Code section 14.003(a)(2). It
dismissed the request for class certification as moot. The court stated in the order it
considered the amicus curiae motion to dismiss and the pleadings and found the motion
should be granted. On appeal Somerville filed an appellant’s brief and, with leave of this
court, a supplemental brief. No responsive briefing was filed.
Analysis
In the issues presented section of his brief Somerville identifies six issues but in
substance he argues the trial court erred by dismissing his case as frivolous under section
14.003(a)(2).
We review a trial court’s Chapter 14 dismissal of an indigent inmate’s lawsuit for
abuse of discretion, Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex. App.—Fort Worth
2004, pet. denied), but we review de novo the question whether a claim has an arguable
5 As noted, Wichita County was not named a defendant in Somerville’s petition.
4
basis in law. Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex. App.—Fort Worth 2010,
no pet.). If proper, we will affirm the dismissal under any legal theory. Id.
An inmate who files a lawsuit (other than under the Texas Family Code) with an
affidavit or unsworn declaration of inability to pay costs must comply with the procedural
requirements of Chapter 14. TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a) (West 2017).
Prior to service of process, and without a hearing, a trial court may dismiss an indigent
inmate’s lawsuit if it finds the claim is frivolous or malicious. TEX. CIV. PRAC. & REM. CODE
ANN. § 14.003 (a)(2),(c) (West 2017). To determine whether a claim is frivolous or
malicious a court may consider, inter alia, whether its realistic chance of ultimate success
is slight, whether the claim has no arguable basis in law or fact, and whether the lawsuit
is substantially similar to a suit previously filed by the inmate. TEX. CIV. PRAC. & REM.
CODE ANN. § 14.003(b)(1),(2),(4).
Because Somerville’s suit was dismissed as frivolous without a fact hearing, our
review focuses on whether his lawsuit had an arguable basis in law. Leachman v. Dretke,
261 S.W.3d 297, 304 (Tex. App.—Fort Worth 2008, no pet.) (op. on reh’g). We take as
true the allegations of the pleading; that is, we consider whether, as a matter of law, it
states a cause of action authorizing relief. Scott v. Gallagher, 209 S.W.3d 262, 266-67
(Tex. App.—Houston [1st Dist.] 2006, no pet.). “A claim has no arguable basis in law if it
is an indisputably meritless legal theory.” Leachman, 261 S.W.3d at 304.
For at least three reasons, the record supports the trial court’s dismissal of
Somerville’s case as frivolous: the individual defendants are immune from suit and thus
the trial court lacks subject matter jurisdiction; Somerville’s claims against all of the
5
defendants are subject to the bar of Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364,
129 L. Ed. 2d 383 (1994); and Somerville failed to properly disclose a prior lawsuit that
was substantially similar to the present case, thus permitting an implicit finding it is
frivolous.
Eleventh Amendment Immunity from Suit6
Under the Eleventh Amendment to the United States Constitution a state, its
agencies, and state officials acting in their official capacities are immune from “any suit in
law or equity, commenced or prosecuted . . . by Citizens of another State, or by Citizens
or Subjects of any Foreign State” where the plaintiff seeks money damages. Shugart v.
Hoover, No. 4:17-CV-00633-ALM-CAN, 2018 U.S. Dist. LEXIS 92839, at *12 (E.D. Tex.
Jan. 26, 2018) (citing U.S. CONST. amend. XI), report and recommendation adopted, No.
4:17-CV-633, 2018 U.S. Dist. LEXIS 92690 (E.D. Tex. June 1, 2018); Hoff, 153 S.W.3d
at 48 (“Eleventh Amendment immunity protects nonconsenting states from being sued in
their own courts for federal law claims”); see also Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356, 363, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001) (“Although by its terms the
[Eleventh] Amendment applies only to suits against a State by citizens of another State,
our cases have extended the Amendment’s applicability to suits by citizens against their
own States”). Thus the state is immune from an action brought under 42 U.S.C. § 1983.
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64-66, 109 S. Ct. 2304, 105 L. Ed. 2d 45
(1989) (holding that “a State is not a person within the meaning of § 1983”). A section
1983 suit against a state official in his official capacity is deemed a suit against the state
6See Hoff v. Nueces Cty., 153 S.W.3d 45, 48 (Tex. 2004) (per curiam) (noting
phrase “Eleventh Amendment immunity” is a misnomer but has become a term of art).
6
and therefore barred by Eleventh Amendment sovereign immunity. Tex. Dep’t of Pub.
Safety v. Petta, 44 S.W.3d 575, 581 (Tex. 2001) (citing Will, 491 U.S. at 71); see McIntosh
v. Partridge, 540 F.3d 315, 320 n.3 (5th Cir. 2008) (“Of course, a state department or
agency (and its officers sued for damages in their official capacity) is considered as being
the state for purposes of the Eleventh Amendment”). The Fifth Circuit Court of Appeals
has on several occasions stated that district attorneys and assistant district attorneys in
Texas are agents of the state for Eleventh Amendment purposes when acting in their
prosecutorial capacities. Quinn v. Roach, 326 F. App’x 280, 292 (5th Cir. 2009) (citing
cases).
In his petition, Somerville did not expressly allege the capacity in which he sued
the individual defendants although the pleading identified them by office. Thus Somerville
identified Dan Hagood and Robert Fitzpatrick as former Dallas County assistant district
attorneys; Dan Morales and Greg Abbott were identified as former attorneys general; and
Rick Perry and George W. Bush were identified as former governors.
In his appellate brief, without further explanation or citation to legal authority,
Somerville contends he “made a prima facie case of corruption by Court officers and
Government Officials in their individual compacity, as well as Agents of Counties
incorporated for Fraud, Perjury, Official Abuse of Office, Tampering with Official
Government Documents, Organized Criminal Conspiracy, Organized Criminal Activity.”
(emphasis ours). However, Somerville never alleged in the trial court and has not
demonstrated in this court how the individual defendants acted outside the scope of their
governmental duties.
7
Based on the substance of Somerville’s complaint, that he and other persons
accused of committing felonies were brought to trial on fraudulent indictments, we believe
that by identifying the individual defendants according to their offices Somerville sued
them in their official capacities. Accordingly, we find the named individual defendants are
immune from suit through the Eleventh Amendment. Thus the trial court was entitled to
believe Somerville’s petition was based on an indisputably meritless legal theory as to the
individual defendants.
On the other hand, for the county defendants there is no governmental immunity
from suit regarding Somerville’s section 1983 claim. “‘Municipal defenses-including an
assertion of sovereign immunity-to a federal right of action are, of course controlled by
federal law.’” County of Dallas v. Sempe, 151 S.W.3d 291, 299 (Tex. App.—Dallas 2004
pet. dism’d w.o.j.) (quoting Howlett v. Rose, 496 U.S. 356, 376, 110 S. Ct. 2430, 110 L.
Ed. 2d 332 (1990) (citing Owen v. City of Independence, 445 U.S. 622, 647, 100 S. Ct.
1398, 63 L. Ed. 2d 673 (1980)). And federal law does not afford counties immunity from
section 1983 claims. Id. Any attempt to provide immunity beyond that of section 1983
directly violates federal law. Id. (citing Howlett, 496 U.S. at 375).
Heck v. Humphrey
Somerville seeks damages and other relief allegedly resulting from criminal
conduct for which he was convicted without alleging his conviction has been invalidated.
He effectively seeks to collaterally attack his conviction through a civil suit. Heck, 512
U.S. at 484.
8
In Heck the plaintiff alleged that two county prosecutors and a state police
investigator “engaged in an ‘unlawful, unreasonable, and arbitrary investigation’ leading
to [Heck’s] arrest; ‘knowingly destroyed’ evidence ‘which was exculpatory in nature and
could have proved [his] innocence’; and caused ‘an illegal and unlawful voice
identification procedure’ to be used at [his] trial.” Id. at 479. Acknowledging the principle
that a civil tort action is not the correct means for challenging a criminal judgment, the
court went on to apply that precept to a section 1983 suit for damages. Id. at 486.
Accordingly the court held, “in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas corpus[.]” Id. at 486-87.
Therefore, for a state prisoner seeking damages in a section 1983 suit, “the district court
must consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction or sentence has already been
invalidated.” Id. at 487. Conversely, if “the plaintiff’s action, even if successful, will not
demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the
action should be allowed to proceed, in the absence of some other bar to the suit.” Id.
In Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S. Ct. 1242, 161 L. Ed. 2d 253
(2005) the court explained that a state prisoner’s section 1983 action “is barred (absent
prior invalidation)—no matter the relief sought (damages or equitable relief), no matter
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the target of the prisoner’s suit (state conduct leading to conviction or internal prison
proceedings)—if success in that action would necessarily demonstrate the invalidity of
confinement or its duration.” Thus Heck is applicable regardless of the relief sought.
Pearson v. Holder, 470 F. App’x 305, 306-07 (5th Cir. 2012) (per curiam) (citing Dotson
and affirming dismissal of inmate’s section 1983 suit despite inmate’s argument on appeal
that Heck does not apply to claims for which money damages are not sought).
Heck has also been applied in inmate tort litigation when the remedy alleged was
not under section 1983. In Gentry v. Hous. Police Dep’t, No. 14-08-01094-CV, 2009 Tex.
App. LEXIS 5524 (Tex. App.—Houston [14th Dist.] July 16, 2009, no pet.) (mem. op.) the
inmate alleged various constitutional violations along with “manufacturing of indictment.”
Id. at *1-2. Although his tort claims were not alleged under section 1983, the holding in
Heck was applied. The court found all of the inmate’s claims, if true, would undermine
the validity of his conviction and the record contained no indication his conviction had
been overturned or he had been exonerated. Thus the trial court’s Chapter 14 dismissal
order was affirmed. Id. at *5-8. See Thomas v. Bynum, No. 04-02-00036-CV, 2003 Tex.
App. LEXIS 1763, at *7-8 (Tex. App.—San Antonio Feb. 28, 2003, no pet.) (mem. op. on
mot. for reh’g) (finding an inmate’s fraud claim was a collateral attack on a disciplinary
proceeding and looking to Heck rationale in affirming a summary judgment against the
inmate on the fraud claim).
Somerville does not argue nor does anything in the record even hint that his
conviction has been reversed on direct appeal, expunged or invalidated by executive
order or state tribunal, or questioned by a federal court’s issuance of a writ of habeas
corpus[.] Heck, 512 U.S. at 486-87. Because of the barriers established by Heck and its
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progeny, Dotson, the trial court could have found Somerville’s claims against all
defendants frivolous on the grounds they lacked an arguable basis in law and any ultimate
chance of success was slight.
Affidavit Relating to Previous Filings
Chapter 14 requires an inmate seeking to proceed in forma pauperis to file an
affidavit or unsworn declaration identifying each action the inmate previously filed in which
he was not represented by an attorney. TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a)(1)
(West 2017). In the affidavit or declaration the inmate must specify the operative facts of
each case, its style, its cause number, the court in which it was brought, the names of the
parties, and the result of the suit, including whether it was dismissed as frivolous or
malicious. TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a)(2). If the inmate fails to comply
with the requirements of section 14.004, the court may assume the inmate’s present
lawsuit is substantially similar to one he previously filed, and therefore frivolous. Gowan
v. Tex. Dep’t of Criminal Justice, 99 S.W.3d 319, 322 (Tex. App.—Texarkana 2003, no
pet.); TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(b)(4).
In July 2001 Somerville filed a section 1983 action in federal court against at least
one of the current individual defendants, Dan Hagood. Somerville v. Hagood, No. 3:01-
CV-1454-R, 2002 U.S. Dist. LEXIS 18697 (N.D. Tex. Aug. 12, 2002), report and
recommendation adopted, No. 3:01-CV-1454-R, 2002 U.S. Dist. LEXIS 18704 (N.D. Tex.
Oct. 1, 2002). In the complaint, Somerville alleged, among other things, his conviction
was obtained on a fabricated or fraudulent indictment. In recommending dismissal of the
case for failure to overcome the Heck bar the magistrate judge stated, “If the Court were
11
to grant plaintiff damages for the claimed fraudulent indictment, such ruling would
necessarily implicate the validity of plaintiff’s conviction. . . . Accordingly, under Heck,
plaintiff must demonstrate that his conviction or sentence has been reversed, invalidated,
or expunged prior to bringing the instant action. . . . Plaintiff has failed to make such a
showing.” Id. at *11 (citation omitted).
In his affidavit in the present case, Somerville gave some information regarding
Somerville v. Hagood but he omitted the required statement of operative facts and the
identity of each party to the lawsuit. Whether from the magistrate judge’s report and
recommendation in Somerville v. Hagood or Somerville’s failure to file a sufficient affidavit
relating to previous filings, the trial court could have found frivolousness based on
substantial similarity of the actions. See Bell v. Tex. Dep’t of Criminal Justice—
Institutional Div., 962 S.W.2d 156, 157-58 (Tex. App.—Houston [14th Dist.] 1998, pet.
denied) (affirming dismissal for similar omissions in affidavit).
Finally, to the extent Somerville assigned error to a claim that the trial court abused
its discretion by considering the district attorney’s amicus motion, we find the assertion
without merit. Somerville has not shown us, nor are we aware of, controlling authority
that prohibits a trial court from considering an amicus brief before dismissing an inmate’s
lawsuit as frivolous under Chapter 14. See generally Schmotzer v. Menchaca, No. 13-
15-00416-CV, 2016 Tex. App. LEXIS 13518, at *2 (Tex. App.—Corpus Christi Dec. 21,
2016) (mem. op.) (noting without comment that in the trial court the Office of the Attorney
General filed an amicus curiae brief recommending dismissal of an inmate’s suit under
Chapter 14 as frivolous).
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Conclusion
Based on the preceding discussion, all of Somerville’s issues on appeal are
overruled and the order of the trial court is affirmed. Any additional relief requested over
the course of the case is denied.7
James T. Campbell
Justice
7 Chief Justice Quinn concurs in the decision to affirm based on the second and
third grounds discussed in the opinion.
13