Cary A. Wilke v. Texas Department of Criminal Justice - C.I.D. ( 2012 )

NUMBER 13-11-00698-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CARY A. WILKE, Appellant,
v.
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE – C.I.D., Appellee.
On appeal from the 24th District Court
of DeWitt County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Justice Vela
This is an appeal from a judgment dismissing appellant Carey A. Wilke's claim as
frivolous under Chapter 14 of the Texas Civil Practice and Remedies Code. See TEX.
CIV. PRAC. & REM. CODE ANN. § 14.003 (West 2002). By five issues, which we address
together, Wilke argues that the trial court: (1) dismissed the case regardless of whether
there was an arguable basis in law or fact; (2) did not give him the opportunity to timely
respond to the motion to dismiss; (3) dismissed the case despite the fact that five
defendants had not filed answers; (4) improperly construed the case as a suit of liberty
interest rather than property interest; and (5) failed to hear the merits of the case. We
affirm.
I. BACKGROUND
Wilke filed his pro se lawsuit complaining that correctional officers with appellee,
the Texas Department of Criminal Justice—C.I.D., confiscated eight small maps of the
continental United States that had been torn from an appointment book, as well as a map
of Fredericksburg, Texas. Wilke was found guilty of possession of contraband that
resulted in a reprimand. In his petition for judicial review, Wilke sought a declaratory
judgment exonerating him from what he termed a "false conviction and expunction of this
case from his records by both Unit and State Classifications since this charge has the
potential to adversely affect his parole." He also asked for attorney's fees and costs, but
did not seek reimbursement for the items confiscated.
II. STANDARD OF REVIEW
We review a dismissal of an inmate's action as frivolous under an abuse of
discretion standard. Spurlock v. Johnson, 94 S.W.3d 655, 657 (Tex. App.—San Antonio
2002, no pet.). To establish that the trial court abused its discretion, the complaining
party must show that the court acted without reference to any guiding rules and principles.
Id. In determining whether an inmate’s claim is frivolous, the trial court may consider
whether: (1) the claim's realistic chance of ultimate success is slight; (2) the claim has
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no arguable basis in law or 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.; see TEX. CIV. PRAC. & REM.
CODE ANN. § 14.003(b). We review de novo the legal question of whether there was an
arguable basis in law for the claim. In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994);
Leachman v. Dretke, 261 S.W.3d 297, 303, 304 (Tex. App.—Fort Worth 2008, no pet.).
In reviewing the dismissal, we take as true the allegations in the original petition.
Harrison v. Tex. Dep't of Crim. Justice, 915 S.W.2d 882, 888 (Tex. App.—Houston [1st
Dist.] 1995, no writ).
III. ANALYSIS
Wilke first argues that there was insufficient evidence to support his disciplinary
reprimand, which deprived him of due process. Wilke's reprimand, however, did not
trigger the due process clause. In Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997),
the Fifth Circuit Court of Appeals held that such things as commissary and cell restrictions
as punishment are merely changes in the conditions of a prisoner's confinement and do
not implicate due process concerns. "They are penalties which do not represent the type
of a typical, significant deprivation in which a state might create a liberty interest." Id.
Likewise, disciplinary sanctions such as reprimands or a reduction in class are merely
changes in conditions of confinement and do not implicate due process concerns.
Malchi v. Thaler, 211 F.3d 953, 958–59 (5th Cir. 2000) (holding that, although a reduction
in class reduces the amount of good conduct time an inmate can earn, an inmate does not
have a constitutional right to a particular time-earning status); Madison, 104 F.3d at 768
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(commissary restrictions); Decker v. Dunbar, 633 F. Supp. 2d 317, 353–54 (E.D. Tex.
2008) (commissary and recreation restrictions, and verbal reprimands). "Inmates have
no protectable property or liberty interest in custodial classifications." Harper v.
Showers, 174 F.3d 716, 719 (5th Cir. 1999). Thus, there was no arguable basis for his
claim.
Wilke also argues that appellee denied his step two grievance. However, the
case law is clear that he has no protected liberty interest in having grievances resolved to
his satisfaction. See Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005).
Wilke also argues that the trial court erred in dismissing his lawsuit without a
hearing, without his response, and without service on all parties. A trial court may
dismiss an inmate’s case under chapter 14 without holding a hearing if the claim is "on an
indisputably meritless legal theory." Minix v. Gonzales, 162 S.W.3d 635, 637 (Tex.
App.—Houston [14th Dist.] 2005, no pet.). Wilke’s claims, as set forth above, are based
on meritless legal theories. Thus, the trial court did not err in dismissing his case. We
overrule all of Wilke's issues.
IV. CONCLUSION
The trial court's order of dismissal is affirmed.
ROSE VELA
Justice
Delivered and filed the
19th day of July, 2012.
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