Fred Hoffman v. Candace Moore ( 2020 )

NUMBER 13-18-00617-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
FRED HOFFMAN, Appellant,
v.
CANDACE MOORE, ET AL., Appellees.
On appeal from the 36th District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Fred Hoffman III, a Texas prison inmate, appeals from a trial court order
dismissing his suit against multiple employees of the Texas Department of Criminal
Justice—Correctional Institution Division (TDCJ–CID). 1 In three issues, which we treat
1 Appellees are Candace Moore, Megan Thompson, Corey Furr, P. Chapa, Grievance Investigator
#2226, and Grievance Investigator #1722. Hoffman sued all appellees in their individual and official
as two, Hoffman argues the trial court abused its discretion by: (1) dismissing the suit as
frivolous under Chapter 14 of the Texas Civil Practice and Remedies Code, see TEX. CIV.
PRAC. & REM. CODE ANN. § 14.001–.014; and (2) permitting the Texas Office of the
Attorney General (OAG) to file an untimely and improper amicus curiae brief. We affirm.
I. BACKGROUND
Hoffman, an inmate at the McConnell Unit in Beeville, Texas, filed this action pro
se and in forma pauperis under Texas Civil Practice and Remedies Code Chapter 14.
See id. Through his live pleading, Hoffman alleges that correctional officer Megan
Thompson and prison law librarian Candace Moore wrote a false disciplinary report
claiming that Hoffman possessed contraband consisting of stamps and envelopes.
Hoffman alleges that such items can be purchased from the commissary, so they are not
contraband. According to Hoffman, the disciplinary hearing officer found Hoffman not
guilty of the alleged violation. Hoffman alleges that Moore, in particular, has a history of
ordering others to write false disciplinary reports against Hoffman. He alleges that prison
administrators Corey Furr and P. Chapa failed to correct the wrongs of Hoffman and
Moore. He further alleges that the grievance investigators who reviewed his allegation of
a false disciplinary report did not take proper corrective action. Hoffman pleaded causes
of action for breach of contract, fraud, conversion, retaliation, and an equal protection
clause violation.
The OAG filed an amicus curiae brief urging the trial court to dismiss Hoffman’s
suit. The trial court signed a final judgment dismissing Hoffman’s suit as frivolous.
capacities.
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Hoffman appeals.
II. STANDARD OF REVIEW & APPLICABLE LAW
To control frivolous, malicious, and excessive inmate litigation, the Texas
Legislature enacted Chapter 14 of the civil practice and remedies code. See id. Chapter
14 governs inmate litigation in which an affidavit or unsworn declaration of inability to pay
costs is filed by the inmate. See id. A trial court may dismiss a suit under Chapter 14 if it
is frivolous, considering 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).
The trial court has broad discretion to dismiss an inmate’s claim as frivolous.
Spurlock v. Schroedter, 88 S.W.3d 733, 736 (Tex. App.—Corpus Christi–Edinburg 2002,
no pet.). Generally, we review a trial court’s dismissal of a lawsuit under Chapter 14 for
an abuse of discretion. In re Douglas, 333 S.W.3d 273, 293 (Tex. App.—Houston [1st
Dist.] 2010, pet. denied). However, where, as here, a trial court dismisses a claim without
a hearing, the issue on appeal is limited to whether the claim had no arguable basis in
law. Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no
pet.). This is a legal issue which we review de novo. Id.
In reviewing the pleadings, we take the inmate’s allegations as true and must
determine “whether, as a matter of law, the petition stated a cause of action that would
authorize relief.” Brewer v. Simental, 268 S.W.3d 763, 770 (Tex. App.—Waco 2008, no
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pet.). We review pro se pleadings “by standards less stringent than those applied to formal
pleadings drafted by lawyers.” Id. A claim has no arguable basis in law only if it is based
on (1) wholly incredible or irrational factual allegations; or (2) an indisputably meritless
legal theory. Nabelek v. Dist. Attorney of Harris Cty., 290 S.W.3d 222, 228 (Tex. App.—
Houston [14th Dist.] 2005, pet. denied). An inmate’s claim may not be dismissed merely
because the court considers the allegations “unlikely.” Id.
III. DISMISSAL AS FRIVOLOUS
By his first issue, Hoffman argues the trial court abused its discretion in dismissing
his suit as frivolous. We will address each cause of action in turn to determine whether
they have an arguable basis in law.
A. Tort Claims
Hoffman’s conversion claim is based on the confiscation of his stamps and
envelopes as contraband. Hoffman alleges that the property was later determined not to
be contraband and that it was returned five months later. His fraud claim alleges that the
disciplinary report falsely asserts that his property was contraband.
1. No Individual Capacity Claims
Hoffman sues each appellee in their official and individual capacity. Government
employees are individually liable for their own torts, even when committed in the course
of employment; therefore, suit may be brought against a government employee in his
individual capacity. Franka v. Velasquez, 332 S.W.3d 367, 383 (Tex. 2011). However,
under § 101.106 of the Texas Tort Claims Act (TTCA),
[i]f a suit is filed against an employee of a governmental unit based on
conduct within the general scope of that employee’s employment and if it
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could have been brought under this chapter against the governmental unit,
the suit is considered to be against the employee in the employee’s official
capacity only.
TEX. CIV. PRAC. & REM. CODE. ANN § 101.106(f). In other words, a tort claim is completely
foreclosed against a government employee when sued in his individual capacity if he is
acting within the scope of his employment. See Franka, 332 S.W.3d at 381.
We conclude that Hoffman’s tort claims implicate each requirement of § 101.106(f).
First, appellees are all employees of TDCJ–CID, a state agency. Second, the TTCA
defines scope of employment as “the performance for a governmental unit of the duties
of an employee’s office or employment and includes being in and about the performance
of a task lawfully assigned to an employee by a competent authority.” TEX. CIV. PRAC. &
REM. CODE ANN. § 101.001(5). Scope of employment “extends to job duties to which the
official has been assigned, even if the official errs in completing the task.” Lopez v. Serna,
414 S.W.3d 890, 894 (Tex. App.—San Antonio 2013, no pet.). Hoffman’s allegations all
relate to tasks lawfully assigned to appellees, whether it be confiscating property
determined to be in violation of TDCJ–CID policy or the review of inmate grievances.
Therefore, it is clear from the record that appellees were acting within the scope of their
employment. See id. (concluding TDCJ–CID employees were acting within the scope of
their employment where the inmate alleged that the defendants committed theft by taking
money from his inmate trust fund account).
Third, we note that “if a state employee is alleged to have committed negligence
or other ‘wrongful conduct’ in the general scope of employment, then the suit is subject
to section 101.106(f) because it could have been brought against the state agency.”
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Lopez, 414 S.W.3d at 895. This principle applies to both unintentional torts, such as
negligence, and intentional torts, such as conversion or fraud. See id. (holding that a suit
for theft against TDCJ—CID employees satisfied the third requirement for §101.106(f)).
Hoffman’s tort claims are subject to § 101.106(f). Therefore, Hoffman’s tort claims are
against appellees in their official, not individual, capacity. See id.
2. Immunity from Intentional Torts
Under Texas law, a suit against a government employee in his official capacity is
a suit against his government employer. 2 Franka, 332 S.W.3d at 382. “[A]n employee
sued in his official capacity has the same governmental [or sovereign] immunity,
derivatively, as his government employer.” Id. at 382–83. TDCJ–CID, a state agency,
enjoys sovereign immunity from suit unless the legislature expressly waives that
immunity. See Tex. Office of Comptroller of Pub. Accounts v. Saito, 372 S.W.3d 311, 313
(Tex. App.—Dallas 2012, pet. denied).
The TTCA provides a limited waiver of immunity for certain suits against
governmental entities. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655
(Tex. 2008); see TEX. CIV. PRAC. & REM. CODE ANN. § 101.025(a) (providing waiver of
immunity from suit “to the extent of liability created by this chapter”). However, the TTCA
does not waive immunity for intentional torts, such as fraud and conversion. See TEX. CIV.
PRAC. & REM. CODE ANN. § 101.057(2) (“This chapter does not apply to a claim . . . arising
2 An exception to this principle is when an employee acts ultra vires. See Franka v. Velasquez,
332 S.W.3d 367, 382 (Tex. 2011). Hoffman argues that the ultra vires exception applies because appellees
acted outside their legal authority. See id. at 382 & n. 69. However, the ultra vires exception does not apply
in this case because Hoffman’s suit is for damages. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372
(Tex. 2009). Furthermore, as noted above, the employees were acting within their legal authority to
confiscate property determined to be in violation of TDCJ–CID policy and in reviewing Hoffman’s
grievances.
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out of assault, battery, false imprisonment, or any other intentional tort.”); Tex. Dep’t. of
Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001).
Because sovereign immunity deprives a trial court of subject matter jurisdiction
over a pleaded cause of action, see Texas Dep’t. of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 224 (Tex. 2004), we conclude that Hoffman’s conversion and fraud claims
against appellees in their official capacity have no arguable basis in law. See Lopez, 414
S.W.3d at 895; see also McCray v. Langehenning, No. 13-07-00143-CV, 2008 WL
3906395, at *1 (Tex. App.—Corpus Christi–Edinburg Aug. 26, 2008, no pet.) (mem. op.)
(noting that a case barred by sovereign immunity has no arguable basis in law and
renders a lawsuit frivolous under Chapter 14).
B. Breach of Contract
Hoffman’s breach of contract claim alleges that appellees Moore and Thompson
violated the disciplinary rules for TDCJ–CID by writing false disciplinary reports. Parties
form a binding contract when the following elements are present: (1) an offer; (2) an
acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4)
each party’s consent to the terms; and (5) execution and delivery of the contract with the
intent that it be mutual and binding. Lucchese Boot Co. v. Licon, 473 S.W.3d 390, 400
(Tex. App.—El Paso 2015, no pet.).
Hoffman does not allege a binding contract between himself and appellees.
Therefore, his claim has no arguable basis in law. See Johnson v. Franco, 893 S.W.2d
302, 303 (Tex. App.—Houston [1st Dist.] 1995, writ dism’d w.o.j.) (holding breach of
contract claim had no basis in law because there was no contract between the inmate
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and the defendant and “[n]either the inmate handbook nor the cited statutes constitute
one”); see also Smith v. Rayford, No. 13-18-00395-CV, 2019 WL 5444392, at *2 (Tex.
App.—Corpus Christi–Edinburg Oct. 24, 2019, no pet.) (mem. op.) (concluding breach of
contract claim was frivolous because it did not allege a binding contract between inmate
and defendants); Horton v. Cooper, No. 06-02-00001-CV, 2002 WL 1285097, at *4 (Tex.
App.—Texarkana June 12, 2002, no pet.) (mem. op.) (affirming dismissal of inmate’s
breach of contract claim which failed to identify a binding contract between the parties).
C. Retaliation
Hoffman alleges that appellees Moore and Thompson filed a false disciplinary
report against Hoffman in retaliation for his previously filed grievances asserting
constitutional violations.
United States Code Title 42, § 1983 provides a private cause of action against
persons acting under color of state law who violate rights secured by the United States
Constitution or federal law. See 42 U.S.C. § 1983; Haver v. Coats, 491 S.W.3d 877, 881
(Tex. App.—Houston [14th Dist.] 2016, no pet.). Prisoners have a First Amendment right
to be free from retaliation for complaining about a prison official’s misconduct. Inst. Div.
of the Tex. Dep’t of Crim. Justice v. Powell, 318 S.W.3d 889, 892 (Tex. 2010) (per curiam).
A violation of this right is actionable under § 1983. Id. To establish retaliation, an inmate
must demonstrate (1) he has a specific constitutional right, (2) the defendant intended to
retaliate against him for exercising that right, (3) a retaliatory adverse act, and (4)
causation. Id.
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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”); see also Conely v. Tex. Bd. of Crim. Justice, No. 03-11-00094-CV, 2012
WL 1959320, at *3 (Tex. App.—Austin May 30, 2012, pet. denied) (mem. op).
Inconsequential actions, even if retaliatory, are not sufficient to support a retaliation claim.
Powell, 449 F.3d at 686. A retaliation claim fails if the complained-of act, though motivated
by retaliatory intent, is so de minimis that it would not deter an ordinary person from further
exercise of his rights. Id.
Hoffman’s allegations do not demonstrate how Moore and Thompson’s conduct,
assuming it was retaliatory, prevented him from exercising any constitutional right.
According to Hoffman, he was found not guilty of the disciplinary charge, and his
confiscated property, envelopes and stamps, was later returned to him. We conclude that
any alleged retaliatory act was inconsequential and did not deter Hoffman from exercising
his constitutional rights. Therefore, Hoffman’s retaliation claim has no arguable basis in
law. See id.
D. Equal Protection
Hoffman alleges that appellees violated the equal protection clause of the United
States Constitution because appellees would not have taken the complained-of actions
against “another inmate that bought stamps and envelopes from the unit commissary.”
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Hoffman further argues that appellees’ enforcement of prison rules was arbitrary and
capricious.
The Equal Protection Clause 3 of the Fourteenth Amendment requires that “all
persons similarly circumstanced be treated alike.” Plyler v. Doe, 457 U.S. 202, 216
(1982). An equal protection claim may be asserted by a plaintiff as a “class of one” if he
alleges that (1) he has been intentionally treated differently from others similarly situated
and (2) there is no rational basis for the difference in treatment. Abbott v. City of Paris,
429 S.W.3d 99, 109 (Tex. App.—Texarkana 2014, no pet.); Sanders v. Palunsky, 36
S.W.3d 222, 225 (Tex. App.—Houston [14th Dist.] 2001, no pet.); City of Lubbock v.
Corbin, 942 S.W.2d 14, 22 (Tex. App.—Amarillo 1996, writ denied). The purpose of the
equal protection clause is to secure persons against intentional and arbitrary
discrimination. City of Floresville v. Starnes Inv. Group, LLC, 502 S.W.3d 859, 868 (Tex.
App.—San Antonio 2016, no pet.); City of Dallas v. Jones, 331 S.W.3d 781, 787 (Tex.
App.—Dallas 2010, pet. dism’d); Leonard v. Abbott, 171 S.W.3d 451, 458 (Tex. App.—
Austin 2005, pet. denied). However, a plaintiff must allege he is being treated differently
from those whose situation is directly comparable in all material respects. City of Dallas,
331 S.W.3d at 787. Conclusory allegations of “class of one” discrimination fail to state a
claim. See Bell v. Woods, 382 F. App’x 391, 393 (5th Cir. 2010) (per curiam).
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The requirements for equal protection under the United States Constitution and the Texas
Constitution are substantially the same. Sw. Bell Tel. Co. v. Combs, 270 S.W.3d 249, 272 n. 46 (Tex.
App.—Amarillo 2008, pet. denied); see also U.S. CONST. amend. XIV, § 1; TEX. CONST. art. I, § 3; Bell v.
Low Income Women of Tex., 95 S.W.3d 253, 266 (Tex. 2002) (“[T]he federal analytical approach applies
to equal protection challenges under the Texas Constitution.”).
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Hoffman’s petition asserts, “This[—the disciplinary report classifying items as
contraband—]would not have happened to another inmate that bought stamps and
envelopes from the unit commissary.” This bare and conclusory assertion is insufficient
to support a “class of one” equal protection claim in that it offers no basis to determine
that persons similarly situated to Hoffman were treated differently without a rational basis.
See id. (conclusory allegation that inmate was treated differently from other sex offenders
failed to state a claim where inmate did not identify any other prisoners who were sexual
offenders and were allowed to enroll in computer courses and inmate did not allege that
other prisoners were convicted of the same offense as he was or that they were allowed
into the same courses for which he applied); see also Kyles v. Garrett, 222 F. App’x 427,
429 (5th Cir. 2007) (per curiam) (holding that a prisoner’s conclusory allegations that
others similarly situated had been granted parole were insufficient to state an equal
protection claim where the prisoner “offer[ed] no specific factual support for his
assertions”). Therefore, we conclude that Hoffman’s equal protection claim lacks an
arguable basis in law. See Moreland, 95 S.W.3d at 394.
E. Equitable Relief
Hoffman also seeks injunctive and declaratory relief which are either duplicative or
dependent on his other causes of action. Because those dependent claims lack an
arguable basis in law, he is not entitled to the requested relief. See Wilson v. TDCJ-CID,
268 S.W.3d 756, 762 (Tex. App.—Waco 2008, no pet.).
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F. Summary
We have concluded that all of Hoffman’s claims lack an arguable basis in law. See
Moreland, 95 S.W.3d at 394. Therefore, the trial court did not err in dismissing Hoffman’s
suit as frivolous. 4 See id. We overrule Hoffman’s first issue.
IV. AMICUS CURIAE
By his second issue, Hoffman argues that the trial court abused its discretion
“when it allowed the OAG to file [an] untimely [and] improper Amicus Curiae Brief[.]” The
OAG filed its amicus curiae brief outside of the deadline imposed by the trial court.
Assuming, without deciding, that permitting the late filing was error, we conclude that the
error was harmless.
An amicus curiae, or “friend of the court,” is defined as “[a] person who is not a
party to a lawsuit but who petitions the court or is requested by the court to file a brief in
the action because that person has a strong interest in the subject matter.” In re A.J.L.,
108 S.W.3d 414, 420 n.1 (Tex. App.—Fort Worth 2003, pet. denied); see also Kelley v.
Scott, No. 14-01-00696-CV, 2003 WL 21229275, at *1 (Tex. App.— Houston [14th Dist.]
May 29, 2003, no pet.) (mem. op.). An amicus curiae is limited to making suggestions to
the court, not posing new questions. Edgewood Indep. Sch. Dist. v. Kirby, 804 S.W.2d
491, 503 n.6 (Tex. 1991). Courts may consider suggestions from an amicus curiae about
questions apparent from the record in the case, but courts can only take actions that it
4
Hoffman also argues that the trial court abused its discretion in “resolv[ing] material disputed facts
[] without a jury.” However, the trial court dismissed Hoffman’s pleaded causes of action as frivolous. We
have concluded that the trial court did not abuse its discretion in doing so because the causes of action
lack an arguable basis in law. In reaching this conclusion, we have accepted Hoffman’s allegations as true.
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could have taken in the absence of these suggestions. See Kelley, 2003 WL 21229275,
at *1.
We will not reverse the trial court’s judgment unless “the error complained
of . . . probably caused the rendition of an improper judgment.” TEX. R. APP. P. 44.1(a).
The trial court’s exercise of its discretionary power to dismiss sua sponte under Chapter
14 does not depend on the OAG filing an amicus curiae brief. See Gross v. Carroll, 339
S.W.3d 718, 722 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing TEX. CIV. PRAC. &
REM. CODE ANN. § 14.003(a)); Wilson v. TDCJ–CID, 107 S.W.3d 90, 92 (Tex. App.—
Waco 2003, no pet.). Under Chapter 14, the trial court has authority to dismiss an inmate’s
suit as frivolous “either before or after service of process.” TEX. CIV. PRAC. & REM. CODE
ANN. § 14.003(a). Even in the absence of the OAG’s amicus curiae brief, the trial court
maintained the authority to dismiss Hoffman’s suit as frivolous. Therefore, any error
associated with permitting the OAG’s submission would not have caused the rendition of
an improper judgment. See TEX. R. APP. P. 44.1(a); see also Johnson v. Conner, No. 07-
11-00055-CV, 2011 WL 3587425, at *2 (Tex. App.—Amarillo Aug. 16, 2011, no pet.)
(mem. op.).
We overrule Hoffman’s second issue.
V. CONCLUSION
We affirm the trial court’s judgment.
LETICIA HINOJOSA
Justice
Delivered and filed the
23rd day of April, 2020.
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