Gayland D. Williams v. Warden Casal, Capt. Gonzales, Sgt. Deanda and Sgt. Trujillo ( 2004 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

GAYLAND D. WILLIAMS,                                 )

                                                                              )     No.  08-03-00396-CV

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     83rd District Court

WARDEN CASAL, CAPT. CONZALES,           )

SGT. DEANDA, and SGT. TRUJILLO,                )     of Pecos County, Texas

                                                                              )

Appellees.                          )     (TC# P-6028-83-CV)

                                                                              )

MEMORANDUM  OPINION

Appellant Gayland D. Williams appeals the dismissal of his civil suit against four employees of the Texas Department of Criminal Justice-Institutional Division.  See Tex.Civ.Prac.&Rem.Code Ann. ' 14.003 (Vernon 2002).  In four issues, Appellant argues that the trial court abused its discretion in dismissing his claims as frivolous without holding a hearing on the merits and that it did not apply the correct legal standard or legal principles. We affirm the trial court=s order.

Appellant Gayland D. Williams is an inmate in the James A. Lynaugh Unit, Texas Department of Criminal Justice-Institutional Division (ATDCJ@) who proceeding pro se, filed this lawsuit against Appellees Warden Casal, Capt. Gonzales, Sgt. Deanda, and Sgt. Trujillo, in their official capacities as TDCJ employees under the Texas Tort Claims Act, Tex.Civ.Prac.& Rem.Code Ann. ' 101.021(B).  In his petition, Appellant alleged that Appellees violated his civil rights and his Eighth Amendment by being deliberately indifferent to him receiving thermal underwear on November 14, 2000, November 21, 2000, and December 26, 2000.  Appellant also alleged that his Acause of action arises under the violations of the Civil Rights Act-T.D.C.J.-ID and the Eighth Amendment of the United States Constitution@ and that the jurisdiction of the trial court was Ainvoked pursuant to Chapter 101.021(B) of the V.T.C.A. Civil Practice and Remedies Code.@  Appellant sought a declaratory judgment that his civil rights had been violated, injunctive relief, and punitive and compensatory damages in the amount of $500,000 under Section 14.003 of the Tex.Civ.Prac.&Rem.Code Ann., as well as reasonable attorney=s fees and costs.  Appellees filed an answer and plea to the jurisdiction, asserting that Appellant=s suit was frivolous  and that the trial court lacked jurisdiction because there was no waiver of sovereign immunity by the State.

By its order entered on July 1, 2003, the trial court dismissed Appellant=s suit as to all claims and gave the following reasons in its order:  (1) Appellant=s failure to plead facts which, if true, would constitute a waiver of sovereign immunity under the Texas Tort Claims Act; (2) Appellant alleged a violation of his civil rights which is not a matter contemplated as a violation of the Texas Tort Claims Act; (3) Appellant had failed to comply with inmate filing requirements contained in Section 14.004 of the Texas Civil Practice and Remedies Code; (4) Appellant had failed to comply with the provision of Sections 14.005(b) and 14.006 of the Texas Civil Practice and Remedies Code; and (5) Appellant had failed to establish an exhaustion of remedies available to him under Section 501.008 of the Texas Government Code.

Sovereign Immunity

Under the doctrine of sovereign immunity, the State of Texas, its agencies, and its officers may not be sued without the consent of the legislature.  Federal Sign v. Texas Southern University, 951 S.W.2d 401, 405 (Tex. 1997).  In the absence of the State=s consent to suit, a trial court lacks subject matter jurisdiction.  Texas Dep=t. of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).  Whether the trial court has subject matter jurisdiction is a question of law subject to de novo review.  See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998), cert. denied, 526 U.S. 1144, 119 S. Ct. 2018, 143 L. Ed. 2d 1030 (1999).  Absence of subject matter jurisdiction may be raised by a plea to the jurisdiction.  Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction.  Texas Ass=n of Bus. v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex. 1993).  We take as true the facts plead in the plaintiff=s petition in determining whether those facts support jurisdiction in the trial court, and we may review the entire record to determine if there is jurisdiction.  Id. at 446.  If the petition does not allege jurisdictional facts, then plaintiff=s suit is subject to dismissal if it is impossible to amend the pleadings to confer jurisdiction.  Id.

In a suit against the State, as in this case, the plaintiff must allege consent to suit either by reference to a statute or to express legislative permission.  Jones, 8 S.W.3d at 638.  In Appellant=s original petition, he asserted that the State=s sovereign immunity had been waived under Section 101.021(B) of the Tex.Civ.Prac.&Rem.Code Ann.  Section 101.021 of the Texas Tort Claims Act provides:

A governmental unit in the state is liable for:

(1)        property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A)       the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B)       the employee would be personally liable to the claimant according to Texas law; and

(2)        personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. 

Tex.Civ.Prac.&Rem.Code Ann. ' 101.021 (Vernon 1997).

Through his pleadings, Appellant was required to allege facts that, if true, would indicate a viable cause of action within the Tort Claims Act.  Appellant alleged that on three separate occasions Appellees Aconducted themselves in a foolish and unprofessional manner as

T.D.C.J.-ID Correctional Supervisors by deliberately, intentionally, and knowingly violating my civil rights and my Eighth Amendment of the United States Constitution, by being deliberately indifferent in getting me some thermal underwear . . . .@ Appellant did not allege he suffered any property damage or personal injury from the use of tangible personal or real property, rather Appellant alleged that Appellees negligent conduct violated his civil rights.  The pleadings of a pro se litigant are to be liberally construed.  See Johnson v. McAdams, 781 S.W.2d 451, 452 (Tex.App.--Houston [1st Dist.] 1989, orig. proceeding)(AThe Supreme Court directs us to seek the substance of a pro se complaint by reviewing pro se applications with liberality and patience.@). Reading Appellant=s allegations liberally, we conclude he has failed to allege a cause of action within the scope of the Texas Tort Claims Act. Therefore, the trial court did not err in dismissing Appellant=s alleged tort claim.

Potential Federal Claim

Construing Appellant=s original petition liberally, it appears that Appellant attempted to assert federal constitutional claims in his cause of action, despite referring to his action as a ATort-Claim, pursuant to V.T.C.A. Civil Practice and Remedies Code 101.021(B).@ For instance, Appellant asserts as his:

First Cause of Action

The actions of all the Defendants stated in the Statement of Facts denied the Plaintiff of his civil rights and his Eighth Amendment rights, the Plaintiff=s Eighth Amendment right to be free from cruel and unusual punishment were violated when:

(A)       When the Defendants retaliated against the Plaintiff.

(B)       When the Defendants harassed the Plaintiff.

(C)       When the Head Warden Casal failed to do his duty to stop the Defendants= wrongful acts of cruel and unusual punishment.

Appellant did not allege in his petition that he intended to bring a cause of action under 42 U.S.C. ' 1983, however, he did attempt to cite to several federal cases involving Section 1983 civil rights claims, including Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994), Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976), and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). Section 1983 provides a remedy when any Aperson@ acting under color of state law deprives another of rights, privileges, or immunities protected by the United States Constitution or laws.  See Thomas v. Collins, 960 S.W.2d 106, 109 (Tex.App.--Houston [1st Dist.] 1997, writ denied).  Neither a state nor its officials acting in their official capacities are Apersons@ under Section 1983.  Will v. Mich. Dep=t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989); Harrison v. Texas Dep=t of Crim. Justice--Institutional Div., 915 S.W.2d 882, 888 (Tex.App.--Houston [1st Dist.] 1995, no writ).

In his petition, Appellant stated that A[t]his civil action is directed to the Texas Department of Criminal Justice-Institutional.  Namely, the above listed staff members of the James A. Lynaugh Unit facility, and also, the Plaintiff would inform this Court that his civil suit

(Tort-Claim) against the above named individuals is in their official capacity.@  A suit against state employees in their official capacities is equivalent to a suit against the State, therefore, employees acting in their official capacities share the State=s sovereign immunity.  See Will, 491 U.S. at 71, 109 S. Ct. at 2312; Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S. Ct. 3099,

3105-06, 87 L. Ed. 2d 114 (1985).  Appellant clearly brought his suit against the four TDCJ employees in their official capacities.  Thus, trial court did not err in dismissing any potential Section 1983 claim when it dismissed Appellant=s cause Aas to all claims.@

Dismissal of Suit under Chapter 14

Within his brief, Appellant also complains that the trial court abused its discretion in dismissing his claims as frivolous without holding a hearing on the merits.  Chapter 14 of the Texas Civil Practice and Remedies Code applies to a lawsuit brought by an inmate who has filed an affidavit or unsworn declaration of inability to pay costs.  See Tex.Civ.Prac.&Rem.Code Ann. ' 14.002 (Vernon 2002).  Section 14.003 permits a trial court to dismiss a suit before or after process is served if the court finds that the claim is frivolous or malicious. See Tex.Prac.& Rem.Code Ann. ' 14.003(2).  In determining whether a claim is frivolous or malicious, the court may consider whether:  (1) the claim=s realistic change 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.  See Tex.Prac.&Rem.Code Ann. ' 14.003(b).  The trial court may, in its discretion, conduct a hearing to determine whether the inmate=s suite is frivolous.  Tex.Civ.Prac.&Rem.Code Ann.' 14.003(c).  The trial court has broad discretion in dismissing a suit under Chapter 14 and our review of the dismissal is under an abuse of discretion standard.  Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex.App.--Houston [1st Dist.] 1998, no pet.).

Here, Appellant contends the trial court abused its discretion in dismissing his cause without a hearing.  When the trial court dismisses a cause without a fact hearing, the issue on review is whether the trial court properly determined that there was no arguable basis in law for the suit.  See Hector v. Thaler, 862 S.W.2d 176, 178 (Tex.App.--Houston [1st Dist.] 1993, no writ); see also In Matter of the Expunction of Wilson, 932 S.W.2d 263, 265 (Tex.App.--El Paso 1996, no writ).  In reviewing that determination, we examine the types of relief and causes of action Appellant plead in his petition to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief.  Lentworth, 981 S.W.2d at 722.

After reviewing the petition, we conclude the trial court did not abuse its discretion because conducting of a hearing is discretionary and, as discussed above, there was no arguable basis in law for Appellant=s suit.  Moreover, Appellant has not challenged the trial court=s finding of numerous procedural deficiencies in his pleadings, which include his failure to comply with Section 14.004 (requiring that inmate file an affidavit identifying all prior litigation and stating the operative facts for which relief was sought in the previous suits), Section 14.005(b) (court shall dismiss claim if inmate fails to file claim before 31st day after the date inmate receives the written decision from the grievance system), and Section 14.006(h)(court may dismiss a claim if inmate fails to pay fees and costs assessed under this section) of the Texas Civil Practice and Remedies Code, and failure to exhaust his remedies under Section 501.008 of the Texas Government Code (remedies available under the grievance system).  See Tex.Civ.Prac.& Rem.Code Ann. '' 14.004, 14.005(b), and 14.006(h); Tex.Gov.Code Ann. ' 501.008 (Vernon 1998).  Therefore, the trial court=s order dismissing Appellant=s suit can be upheld on any of the stated grounds.  We overrule all of Appellant=s issues on appeal.

We affirm the trial court=s dismissal order.

August 31, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.