Willie A. Milton v. Nathaniel Quarterman, Director of TDCJ-CID and Mary Hansford, Allred Unit Mail Room Supervisor ( 2011 )


Menu:
  •                          COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-10-00103-CV
    WILLIE A. MILTON                                                APPELLANT
    V.
    NATHANIEL QUARTERMAN,                                           APPELLEES
    DIRECTOR OF TDCJ-CID AND
    MARY HANSFORD, ALLRED UNIT
    MAIL ROOM SUPERVISOR
    ----------
    FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
    ----------
    MEMORANDUM OPINION ON REHEARING1
    ----------
    After considering appellant Willie A. Milton’s Motion for Rehearing, we
    deny the motion, but we withdraw our opinion and judgment of January 27, 2011
    and substitute the following.
    1
    See Tex. R. App. P. 47.4.
    Appellant, a pro se inmate, appeals the trial court’s dismissal with
    prejudice of his suit against appellees Nathaniel Quarterman and Mary Hansford
    under chapter 14 of the civil practice and remedies code. We affirm.
    After appellant sued appellees alleging that they had improperly withheld
    mail from him, appellees filed a motion to dismiss, alleging that (1) appellant had
    failed to attach copies of his Step 1 and Step 2 grievances to his petition as
    required by section 14.005(b) of the civil practice and remedies code, and thus
    did not exhaust his administrative remedies and (2) appellant’s claims are
    frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 14.005(b) (Vernon 2002).
    Appellant responded, admitting that he did not have copies of his Step 1 and
    Step 2 grievance forms to attach but claiming that the I-60 and I-153 forms
    attached to his petition instead were sufficient to meet the requirements of
    section 14.005(b).2 The trial court nevertheless dismissed appellant’s petition
    with prejudice.
    Exhaustion of Administrative Remedies
    Section 14.005, entitled “Grievance System Decision; Exhaustion of
    Administrative Remedies,” provides as follows:
    (a) An inmate who files a claim that is subject to the grievance
    system established under Section 501.008, Government Code, shall
    file with the court:
    2
    Appellant failed to cite any authority or explain why those forms were
    sufficient to exhaust his administrative remedies.
    2
    (1) an affidavit or unsworn declaration stating the date that the
    grievance was filed and the date the written decision described by
    Section 501.008(d), Government Code, was received by the inmate;
    and
    (2) a copy of the written decision from the grievance system.
    (b) A court shall dismiss a claim if the inmate fails to file the claim
    before the 31st day after the date the inmate receives the written
    decision from the grievance system.
    
    Id. § 14.005(a),
    (b) (emphasis added). Section 14.005 does not apply to claims
    that are not grievable under the procedures set forth in the government code.
    Id.; Milton v. Quarterman, No. 02-10-00212-CV, 
    2011 WL 754352
    , at *2 (Tex.
    App.––Fort Worth Mar. 3, 2011, no pet. h.) (mem. op.). Claims involving the
    denial of inmate mail are not grievable because a separate administrative appeal
    mechanism exists for those claims via Texas Department of Criminal Justice
    (TDCJ) Board Policy 3.91. Milton, 
    2011 WL 754352
    , at *2; see Tex. Dep’t of
    Criminal Justice, Board Policy 3.91, Uniform Offender Correspondence Rules 13
    (Feb. 2010), available at http://www.tdcj.state.tx.us/policy/BP0391r2_fnl.pdf.
    Appellant attached to his petition evidence that he complied with the
    appeals procedure in Board Policy 3.91 by sending a written notice of appeal to
    the Director’s Review Committee (DRC) within two weeks of his mail being
    rejected. He also attached a copy of the DRC’s decision upholding the denial of
    mail. The Board Policy does not specify any other steps required for appeal.
    Accordingly, we conclude and hold that appellant exhausted his administrative
    3
    remedies; thus, a dismissal with prejudice would not have been proper on that
    ground. See Milton, 
    2011 WL 754352
    , at *2.
    Frivolousness
    Appellees also contend that the dismissal was proper because appellant’s
    claims are frivolous. In his original petition, appellant contends that appellees
    violated his constitutional rights by denying him trial records of another inmate,
    Michael W. Jewell, which Jewell’s wife mailed to appellant for appellant’s use in
    preparing a witness affidavit in Jewell’s pending suit. Although appellant cites
    numerous authorities in his petition, including 42 U.S.C.A. section 1983, the
    thrust of his contention is that by denying him the trial records, appellees denied
    appellant the right to “participate in an ongoing litigation as a witness.”
    Appellees declined to deliver Jewell’s trial records to appellant, citing a
    TDCJ rule that an offender cannot handle another offender’s mail. According to
    appellant, this reason is not applicable because the trial records are public
    records, and Jewell’s wife intentionally mailed those records to appellant.
    Regardless of whether TDCJ’s stated reason for withholding Jewell’s trial records
    from appellant is applicable, however, appellant’s state and federal constitutional
    claims based on the denial of the mail have no basis in law. See Hamilton v.
    Pechacek, 
    319 S.W.3d 801
    , 809 (Tex. App.––Fort Worth 2009, no pet.) (stating
    that we review de novo whether inmate claim has basis in law).
    Appellant claims that he was denied the right to participate in litigation as a
    witness; however, he never alleges why he needed the court documents to
    4
    prepare his witness affidavit or how he was harmed as opposed to Jewell. See
    Lewis v. Casey, 
    518 U.S. 343
    , 349–50, 
    116 S. Ct. 2174
    , 2179 (1996) (holding
    that an inmate must establish actual injury to state a claim for denial of access to
    the courts under section 1983). Jewell’s suit was based in part on his claim that
    TDCJ had failed for years to meet the staff-to-prisoner ratio mandated by Judge
    William Wayne Justice in Ruiz v. Estelle, 
    503 F. Supp. 1265
    (S.D. Tex. 1980),
    rev’d in part, 
    679 F.2d 1115
    (5th Cir. 1982), and that the shortage of staff was a
    direct cause of dangerous living conditions for inmates, constituting cruel and
    unusual punishment. Jewell v. Bell, No. 6:09cv181, 
    2009 WL 3082525
    , at *1
    (E.D. Tex. Sept. 21, 2009), aff’d, 388 Fed. App’x 435 (5th Cir. 2010). The district
    court dismissed Jewell’s claims because, among other reasons, as an inmate, he
    did not have an independent basis for a civil rights suit based on the ratios
    recommended by Judge Justice in Ruiz.          Jewell, 
    2009 WL 3082525
    , at *3.
    Although it is possible that, being an inmate, appellant could have provided a
    factual affidavit to support Jewell’s allegations of overcrowding, appellant has
    nevertheless failed to show any prejudice or harm to him arising from the
    withholding of Jewell’s trial records.3      Moreover, because appellant sued
    appellees in their official capacities, they are immune from appellant’s section
    3
    The Fifth Circuit also determined that even had Jewell been allowed to
    amend his pleadings to include more specific factual allegations, such
    amendment would have been futile. Jewell, 388 Fed. App’x at 436.
    5
    1983 claim to the extent he seeks damages.4 See 
    Hamilton, 319 S.W.3d at 811
    .
    We therefore conclude and hold that appellant’s claims based on the alleged
    interference with his right to participate in litigation as a witness have no basis in
    law, and the trial court did not abuse its discretion by dismissing those claims.5
    Appellant also alleged that appellees violated his equal rights and engaged
    in a conspiracy to violate his equal rights because white inmates are allowed to
    receive trial records of other offenders; thus, he contends appellee Hansford
    singled him out for withholding Jewell’s trial records because appellant is black
    and that appellee Quarterman has allowed and facilitated Hansford’s actions,
    which constitute a TDCJ policy, custom, or procedure. Appellant did not provide
    any evidence that he was treated differently from similarly situated white inmates;
    moreover, even if the reason given for the withholding of appellant’s mail was
    incorrect, that is still not evidence that the denial was for the reason alleged by
    appellant. See Driver v. Groose, 
    273 F.3d 811
    , 811 (8th Cir. 2001); 72 C.J.S.
    4
    See Will v. Mich. Dep’t of State Police, 
    491 U.S. 58
    , 71 n.10, 
    109 S. Ct. 2304
    , 2312 n.10 (1989) (holding that suits for injunctive relief against state
    officials in their official capacities are not barred by sovereign immunity).
    5
    Appellant cites numerous state and federal statutes and constitutional
    provisions, many of which speak only to the authority of certain government
    officials to pursue criminal charges and the jurisdiction of the district court.
    Accordingly, many of those authorities are not applicable to appellant’s suit;
    however, because all of appellant’s claims relate to the denial of the mail––and
    the sole consequence of the denial that he pled was that he was not able to
    prepare a witness affidavit in Jewell’s case––even if those cited statutes or
    constitutional provisions were applicable, appellant’s allegations based on them
    would not alter the disposition of this appeal.
    6
    Prisons § 51 (2011). Accordingly, we conclude and hold that the trial court did
    not abuse its discretion by dismissing appellant’s claim that he was treated
    differently from white inmates because it has no arguable basis in law. 6
    We overrule all of appellant’s dispositive issues and affirm the trial court’s
    judgment.
    PER CURIAM
    PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
    DELIVERED: April 21, 2011
    6
    Within the trial court’s plenary power, appellant filed an affidavit from
    another inmate at appellant’s unit, Gary Walp. Walp averred that he is white and
    that on at least three occasions he had received “legal documents” on another
    offender from a third party “without interference from the James V. Allred Unit
    mailroom.” Those documents were postmarked 4-18-09, 5-4-09, and 7-31-09.
    However, he also averred that on October 26, 2009, about two months after
    appellant filed the underlying suit, an Allred mailroom clerk denied him copies of
    correspondence from the same third party on the ground that it contained “copies
    of court papers on another offender.” Even if the trial court were required to
    consider this affidavit, the factual allegations still do not state an arguable claim
    that appellees conspired to deny appellant’s mail because of his race or that the
    denial of appellant’s mail as opposed to Walp’s was racially based. See, e.g.,
    Wilson v. Taylor, 
    515 F. Supp. 2d 469
    , 473 (D. Del. 2007).
    7