Russell Ham v. William Stephens, Oliver J. Bell, and Robin Sullivan ( 2015 )

Opinion issued October 15, 2015.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00036-CV
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RUSSELL HAM, Appellant
V.
WILLIAM STEPHENS, OLIVER J. BELL,
& ROBIN SULLIVAN, Appellees
On Appeal from the 411th District Court
Polk County, Texas
Trial Court Case No. CIV28800
MEMORANDUM OPINION
Russell Ham, an inmate at a Texas correctional facility, appeals the trial
court’s dismissal of his lawsuit “as frivolous” under Chapter 14 of the Civil
Practice and Remedies Code. In his sole issue, Ham argues that the trial court
should have allowed him thirty days to amend his pleadings. We affirm.
Background
Russell Ham alleges that during a “shakedown”—a search for contraband
during which each inmate must bring all of his possessions to a room for
inspection—correctional officer R. Sullivan illegally confiscated some of his
property: namely, a Bible, three Dungeons and Dragons books, twenty-six other
books, some photo albums, and legal papers that included Ham’s grandmother’s
will.
Ham complied with the administrative procedures to complain about a
correctional officer’s conduct but could only prove ownership of four books. The
Texas Department of Criminal Justice found no evidence that Sullivan violated
department policies or engaged in misconduct but did replace the four books.
Ham filed this lawsuit alleging causes of action for theft of property and
conversion. Because he is an indigent inmate, he brought the suit under Chapter 14
of the Civil Practice and Remedies Code, which provides for inmate litigation “in
which an affidavit or unsworn declaration of inability to pay costs is filed by the
inmate.” TEX. CIV. PRAC. & REM. CODE ANN. § 14.002 (West 2002). This Chapter
also provides for summary dismissal of frivolous suits. Id. §14.003 (West 2002).
Sullivan filed a motion to dismiss, arguing that this lawsuit is frivolous
because (1) Sullivan is entitled to immunity and (2) Ham cannot prove he owned
the property Sullivan allegedly stole from him. Two days later, without any notice
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that the trial court would consider the matter, the trial court entered a final
judgment that dismissed Ham’s lawsuit “as frivolous.”
Twelve days after the final judgment, Ham moved for leave to file amended
pleadings to “add claims [for violations] of Due Process of Law (Procedural),
Religious Land Use and [Institutionalized Persons] Act of 2000, and . . . [the] right
to worship.” In that amended petition, Ham references the motion to dismiss but
does not address the arguments in the motion. The trial court did not expressly rule
on the motion. Ham appeals the trial court’s order dismissing his lawsuit.
Right to Notice and to Amend the Pleadings
Ham raises a single issue on appeal, arguing that the trial court abused its
discretion by dismissing his case without “allowing him 30 days to cure the defects
of his pleadings” under the election-of-remedies provision of the Texas Tort
Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (West 2011).
Sullivan responds that the trial court “did not abuse its discretion in
dismissing Appellant’s suit because section 101.106(f) was not the sole reason for
dismissal.”
A. The trial court dismissed Ham’s lawsuit under Chapter 14
Because Ham filed this lawsuit as an indigent inmate, this lawsuit is
governed by Chapter 14 of the Civil Practice and Remedies Code. Chapter 14
provides:
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(a) A court may dismiss a claim, either before or after service of
process, if the court finds that:
...
(2) the claim is frivolous or malicious . . . .
(b) In determining whether a claim is frivolous or malicious, the 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.
TEX. CIV. PRAC. & REM. CODE ANN. § 14.003.
Sullivan argued that dismissal was appropriate because Ham could not
support the causes of action he raised in his pleadings: she argued Ham “provided
no proof of ownership for any of the . . . items [he] claims were improperly
confiscated,” “failed to demonstrate a possessory right to the allegedly converted
property,” and “was not authorized to have the items.” Based on these arguments,
the trial court dismissed Ham’s lawsuit as frivolous under Chapter 14, not under
Section 101.106 of the Civil Practices and Remedies Code as Ham argues.1 Ham
does not challenge the merits of this ruling. Rather, he argues that the trial court
committed a procedural error by not granting him 30 days to amend his pleadings.
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Sullivan argued in the alternative that dismissal was proper under the Texas Tort
Claims Act election-of-remedies provision but that is not the basis relied on by the
trial court to dismiss Ham’s lawsuit.
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We construe his argument to be that he was entitled to notice and a 30-day
opportunity to respond before the trial court ruled. We reject this contention.
B. Standard of review
The court of appeals reviews a Chapter 14 dismissal for an abuse of
discretion. Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex. App.—Fort Worth
2010, no pet.). The trial court may dismiss an inmate’s claim under Chapter 14 if it
finds the claim to be frivolous or malicious. TEX. CIV. PRAC. & REM. CODE ANN.
§ 14.003(a)(2) (West 2002); Comeaux v. Tex. Dep’t of Criminal Justice, 193
S.W.3d 83, 86 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). A claim is
frivolous if it has no basis in law or fact. Comeaux, 193 S.W.3d at 86.
C. The trial court did not abuse its discretion
“The legislature enacted chapter 14 . . . to control the flood of frivolous
lawsuits being filed in Texas courts by prison inmates because these suits consume
many valuable judicial resources with little offsetting benefits.” Hamilton, 319
S.W.3d at 809. A trial court may dismiss a lawsuit without notice to the inmate
under Chapter 14. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a) (“court may
dismiss a claim . . . before . . . service of process”); Hamilton v. Williams, 298
S.W.3d 334, 340 (Tex. App.—Fort Worth 2009, pet. denied) (“an inmate who
brings a claim falling within the scope of chapter fourteen has no right to notice of
a motion to dismiss, nor to a mandatory hearing”); Hughes v. Massey, 65 S.W.3d
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743, 745 (Tex. App.—Beaumont 2001, no pet.) (“the inmate had no right to notice
of a motion to dismiss or to an opportunity to amend”); see Bohannan v. Tex. Bd.
of Criminal Justice, 942 S.W.2d 113, 116 (Tex. App.—Austin 1997, writ denied)
(holding similar language in Chapter 13 of Civil Practice and Remedies Code
provides indigent plaintiffs “no right to notice of a motion to dismiss or to an
opportunity to amend”); Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex. App.—
Houston [14th Dist.] 1990, no writ) (same). Thus, Ham was not entitled to notice
before dismissal, and the trial court did not abuse its discretion by dismissing the
lawsuit.
In its order dismissing Ham’s lawsuit, the trial court does not express
whether it dismissed the lawsuit with or without prejudice. Although we cannot
locate any authority discussing whether dismissal under Chapter 14 is with
prejudice in a dismissal order that is silent on the issue, the default rule under Rule
of Civil Procedure 165a assumes that a case is dismissed without prejudice if the
order does not explicitly state that dismissal is with prejudice. See Graves v.
Atkins, No. 01-04-00423-CV, 2006 WL 3751612, at *1, n.1 (Tex. App.—Houston
[1st Dist.] Dec. 21, 2006, no pet.) (mem. op.) (“Though not stated expressly in the
trial court’s order, we presume that the order of dismissal was without prejudice”);
Greenwood v. Tillamook Country Smoker, Inc., 857 S.W.2d 654, 656 (Tex. App.—
Houston [1st Dist.] 1993, no pet.) (“Because the order does not state the case is
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dismissed with prejudice, it is presumed the dismissal is without prejudice . . . .”);
Coleman v. Hughes Blanton, Inc., 599 S.W.2d 643, 645 (Tex. App.—Texarkana
1980, no writ) (same). We see no reason that this default rule would not apply
equally here. Thus, to the extent Ham complains that he was not given an
opportunity to replead, we note that his dismissal is without prejudice.
Conclusion
We affirm the judgment of the trial court. All pending motions are dismissed
as moot.
Harvey Brown
Justice
Panel consists of Justices Jennings, Higley, and Brown.
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