Kirk Wayne McBride Sr. v. Norris D. Jackson ( 2012 )

NUMBER 13-11-00597-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
KIRK WAYNE MCBRIDE SR. Appellant,
v.
NORRIS D. JACKSON, ET AL., Appellees.
On appeal from the 156th District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Justice Vela
Appellant, Kirk Wayne McBride Sr., a Texas prison inmate, appeals, pro se, a trial
court order dismissing his claims. By four issues, appellant argues that the trial court
erred by: (1) dismissing his case pursuant to section 14.004 of the Texas Civil Practice
and Remedies Code because there was no evidence to support the trial court's finding
that he did not list all of his previously filed lawsuits; (2) determining that his pleading was
deficient as a matter of law with respect to his retaliation claim; (3) dismissing his case on
the basis that he failed to allege a claim for violation of his right to due process, theft, and
conversion of property; and (4) dismissing his case on the basis that there was no dispute
that the caloric value of the food he was receiving was below standard. We affirm.
I. BACKGROUND
Appellant originally sued several defendants alleging various claims, but at the
telephonic hearing held in response to the State's motion to dismiss, appellant identified
specific issues he wanted to pursue. He identified a retaliation claim against appellees
Evelyn Castro, Ciraldo Puente, Norris Jackson, Kimberly Pundt, Candace Moore, Kelli
Ward, and Joella Puente. Appellant argues only his claim against appellee Moore in his
brief. Appellant also claimed an action against Gabriel Gomez and Claudio Cantu, staff
members of the McConnell Unit, for conversion and due process claims arising from the
confiscation of a radio. Appellant also made a claim for nutritional deprivation against
appellees, Mr. Farrell and Mr. Jackson, staff members of the McConnell Unit. Although
his notice of appeal suggests claims against fifteen appellees, only five are involved in the
causes he appeals. After a hearing, the trial court found that:
1. Plaintiff's claim against defendants Price and Diaz for access to courts
concerning his inability to receive another offender's legal material is
dismissed under Chapter 14.003 of the Texas Civil Practice and Remedies
Code.
2. Plaintiff's retaliation claim against defendants Evelyn Castro, Ciraldo
Puente, Norris B. Jackson, Kimberly Pundt, Candace Moore, Kelli Ward,
and Joella Puente is dismissed under Chapter 14.003 of the Texas Civil
Practice and Remedies Code.
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3. Plaintiff's retaliation claim against defendants Gomez and Cantu for
conversion, due process and theft liability regarding a confiscated radio are
dismissed under Chapter 14.003 of the Texas Civil Practice and Remedies
Code.
4. Plaintiff's claims against defendants Jackson and Farrell regarding sack
lunches during lockdown and the American Dietician Association's
definition of a "nutritious wholesome meal" are dismissed under Chapter
14.003 of the Texas Civil Practice and Remedies Code.
5. Plaintiff's claims regarding his typewriter were previously litigated and
are dismissed under Chapter 14.003 of the Texas Civil Practice and
Remedies Code.
On appeal, appellant challenges the trial court's determination that he did not
establish a claim for retaliation and erred in its determination that he failed to allege a
violation of his rights with respect to theft and conversion of property, and that the trial
court erred in dismissing his claim "on the basis that there was no challenge that the
caloric contents of the food that Appellant was receiving was below standard."
II. STANDARD OF REVIEW AND APPLICABLE LAW
Here, the State sought dismissal of appellant's action as frivolous pursuant to
Chapter 14 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.
CODE ANN. § 14.003 (West 2002). In making this determination, 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. Id. § 14.003(b).
We review a dismissal of an inmate's lawsuit in forma pauperis under Chapter 14
of the civil practice and remedies code for abuse of discretion. See Harrison v. Tex.
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Dep't of Criminal Justice-Inst. Div., 164 S.W.3d 871, 874 (Tex. App.—Corpus Christi
2005, no pet.); Thomas v. Knight, 52 S.W.3d 292, 294 (Tex. App.—Corpus Christi 2001,
pet. denied). A trial court abuses its discretion when it acts without reference to any
guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).
III. ANALYSIS
A. Retaliation
Appellant argues on appeal that he was disciplined for writing a letter to the
warden complaining about appellee Moore, the law librarian. Specifically, appellant
argued at the hearing that he sent a letter to the warden explaining that Moore was
depriving him of his right to use the law library. Appellant argued that Moore "insinuated
that the letter was saying that appellant had a bogus lien against her."
To prevail on a section 1983 retaliation claim, an inmate must be able to establish:
(1) a specific constitutional right; (2) the defendant's intent to retaliate against him for
exercising that right; (3) a retaliatory adverse act; and (4) causation. McDonald v.
Steward, 132 F.3d 225, 231 (5th Cir. 1998). Retaliation against a prisoner is actionable
only if it is capable of deterring a person of ordinary firmness from further exercising his
constitutional rights. Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006) (adopting de
minimis standard in retaliation claims because it achieves proper balance between the
need to recognize valid retaliation claims and the danger of courts "embroiling
themselves in every disciplinary act that occurs in state penal institutions").
Inconsequential actions, even if retaliatory, are not sufficient to support a retaliation claim.
Id. A retaliation claim fails if the complained-of act, though motivated by retaliatory
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intent, is so de minimis that it would not deter an ordinary person from further exercising
his rights. Id.
The evidence at the hearing was that appellant sent the warden a letter stating that
Moore had deprived him of the use of the law library and notifying Moore that if a
response was not provided within seventy-two hours of the receipt of the document, that it
would "constitute a debt in prospective damages in a sum equal to the maximum allowed
for a fine that could be imposed for a first degree felony under Texas law and not to
exceed the sum of $250,000 that will be subjected to an encumberance on all personal
property that is not exempt under Texas law for direct violation of the complainant's
constitutional rights." Texas Department of Criminal Justice policy was that offenders
who send written notices to officials insinuating that they are liable for a bogus debt may
be disciplined. Here, it is clear that appellant violated such policy. Thus, appellant did
not show that "but for" the alleged retaliation, he would not have been disciplined. We
overrule appellant's second issue.
B. Theft, Conversion, and Due Process
By appellant's third issue, he argues that appellees wrongfully confiscated his
radio. The evidence at the hearing was that the State confiscated his radio because it
had been altered. He claims that such act was a violation of his right to due process and
was theft or conversion of property. At the hearing, appellant argued that this claim was
brought under the Texas Theft Liability Act, and for conversion and lack of due process.
Both parties agreed that the radio was probably in the property room at the prison. The
State claimed it was confiscated because it had been altered and was contraband.
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There was no evidence offered that the radio had been converted by anyone for personal
use. Under section 134.002 of the theft liability act, theft is defined as "unlawfully
appropriating property . . . ." TEX. CIV. PRAC. & REM. CODE ANN. § 134.002 (West 2011).
There was no evidence offered other than the radio was confiscated. There was evidence
that appellant had the option of sending it home. Appellant was given confiscation
papers and signed them. There is simply no claim under the theft liability act.
With respect to conversion of personal property, a plaintiff must prove that: (1)
the plaintiff owned or had legal possession of the property or entitlement to possession;
(2) the defendant unlawfully and without authorization assumed and exercised dominion
and control over the property to the exclusion of, or inconsistent with, the plaintiff's rights
as an owner; and (3) the plaintiff suffered injury. United Mobile Networks, L.P. v. Deaton,
939 S.W.2d 146, 147–48 (Tex. 1997); Apple Imports, Inc. v. Koole, 945 S.W.2d 895, 899
(Tex. App.—Austin 1997, pet. denied). If the defendant originally acquired possession
of the plaintiff's property legally, the plaintiff must establish that the defendant refused to
return the property after the plaintiff demanded its return. Presley v. Cooper, 284 S.W.2d
138, 141 (1955); Apple Imports, 945 S.W.2d at 899. There was no evidence that
appellees unlawfully assumed dominion and control over the property inconsistent with
appellant's rights.
Appellant also urges due process violations. The Due Process Clause is not
violated when a prison official either negligently or intentionally deprives an inmate of
property. See Aguilar v. Chastain, 923 S.W.2d 740, 743–44 (Tex. App.—Tyler 1996, writ
denied) (citing Daniels v. Williams, 474 U.S. 327, 328 (1986) and Hudson v. Palmer, 468
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U.S. 517, 533 (1984)). "[D]eprivations of property caused by the misconduct of state
officials do not infringe constitutional due process provided adequate state
post-deprivation remedies exist." Murphy v. Collins, 26 F.3d 541, 543 (5th Cir.1994).
Thus, even assuming the confiscation was wrongful, appellant has no due process claim
for the confiscation of the radio. The evidence was that he was not actually deprived of
the property in question. He was merely denied the right to use the property in a
particular setting. We overrule appellant's third issue.
By issue four, appellant argues that, while on lock down, he was fed peanut butter
sandwiches and boiled eggs, which are not wholesome meals. Regarding his Eighth
Amendment claim, "[t]he deprivation of food constitutes cruel and unusual punishment
only if it denies a prisoner the minimal civilized measure of life's necessities." Talib v.
Gilley, 138 F.3d 211, 214 n. 3 (5th Cir.1998) (internal quotation marks and citation
omitted). The Eighth Amendment prohibits cruel and unusual punishment. U.S.
CONST. Amend. VIII. Prison officials must provide humane conditions of confinement,
ensure that inmates receive adequate food, clothing, shelter, and medical care; and take
reasonable measures to guarantee the safety of the inmates. Farmer v. Brennan, 511
U.S. 825, 832 (1994) (citations omitted). Conditions that result in "unquestioned and
serious deprivation of basic human needs," or "deprive inmates of the minimal civilized
measure of life's necessities" violate the Eighth Amendment. Rhodes v. Chapman, 452
U.S. 337, 347 (1981); see also Hudson v. McMillian, 503 U.S. 1, 8–10 (1992) (citations
omitted). Appellant's allegations that he sometimes received peanut butter sandwiches
and boiled eggs simply does not amount to the "base, inhuman and barbaric" conditions
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that violate the Eighth Amendment. Novak v. Beto, 453 F.2d 661, 665 (5th Cir.1971);
see also Whitley v. Albers, 475 U.S. 312, 327 (1986) (noting that Eighth Amendment is
"specifically concerned with the unnecessary and wanton infliction of pain . . . "). We
overrule issue four.
By appellant's first issue, he argues that the trial court erred in deciding to grant the
dismissal for the reason that he did not comply with section 14.004 of the Texas Civil
Practice and Remedies Code. The court, in its judgment, noted that it was also granting
appellant's motion because he failed to submit a complete list of previous filings, as
required by the statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a) (West Supp.
2011). Because we have found that the trial court did not abuse its discretion in
dismissing appellant’s claims as frivolous, this issue is not dispositive and we decline to
address it. See TEX. R. APP. P. 47.1.
IV. CONCLUSION
Having overruled all issues necessary to disposition, we affirm the judgment of the
trial court.
ROSE VELA
Justice
Delivered and filed the
12th day of July, 2012.
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