Opinion
No. 14-07-00992-CV
Opinion filed January 15, 2009.
On Appeal from the 412th District Court Brazoria County, Texas, Trial Court Cause No. 45049.
Panel consists of Justices YATES, SEYMORE, and BOYCE.
MEMORANDUM OPINION
Appellant, Kirby Gardner, an inmate in a state correctional facility, filed this pro se, in forma pauperis suit naming the following as defendants: Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ"); Nathaniel Quarterman and Jackie EdwardsCpurportedly directors with TDCJ; James W. MossbargerCallegedly the warden of appellant's facility; and Sharon Fox, a Justice of the Peace in Brazoria County, Texas. Three days later, the trial court sua sponte signed an order dismissing the suit with prejudice on the ground it had no arguable basis in law. In his sole issue, appellant contends the trial court erred by dismissing his suit. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. APPLICABLE LAW AND STANDARD OF REVIEW
Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate in forma pauperis suits. See Tex. Civ. Prac. Rem. Code Ann. §§ 14.001B.014 (Vernon 2002). A court may dismiss such a claim before or after service of process if it is frivolous or malicious. Id. § 14.003(a)(2). In determining whether a claim is frivolous or malicious, the court may consider, among other grounds, whether the claim has no arguable basis in law. Id. § 14.003(b)(2).
Apparently, the trial court dismissed the present suit before service of process and without a hearing. In the order, the trial court did not explicitly state that appellant's claims were "frivolous." Rather, the trial court dismissed the suit because appellant "failed to state a cause of action as a matter of law." We have interpreted identical language as a dismissal based on a finding that claims are frivolous because they have no arguable basis in law. See Minix v. Gonzales, 162 S.W.3d 635, 637 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Further, although a trial court generally has broad discretion to determine whether an inmate's suit should be dismissed, when a court dismisses a claim as frivolous without conducting a fact hearing, we may affirm only if the claim has no arguable basis in law. Retzlaff v. Tex. Dept. of Criminal Justice, 94 S.W.3d 650, 653 (Tex.App.-Houston [14th Dist.] 2002, pet. denied); Denson v. T.D.C.J.-I.D., 63 S.W.3d 454, 459 (Tex.App.-Tyler 1999, pet. denied).
We apply a de novo standard when reviewing whether a claim has an arguable basis in law. Minix, 162 S.W.3d at 637; Retzlaff, 94 S.W.3d at 653. We examine the claims asserted and the relief requested "to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief." Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex.App.-San Antonio 2002, no pet.); see Denson, 63 S.W.3d at 459. To have no arguable basis in law, a claim must be based on "an indisputably meritless legal theory" or wholly incredible or irrational factual allegations. Minix, 162 S.W.3d at 637. An inmate's claim may not be dismissed merely because the court considers the allegations "unlikely." Id.
II. ANALYSIS
Appellant's present suit is based on appellees' alleged actions with respect to a different case. In his petition in the present suit, appellant asserted the following factual allegations. He previously filed a case in the justice court where appellee, Sharon Fox, presides. In that case, appellant alleged appellees, TDCJ, Quarterman, Edwards, and Mossbarger, confiscated appellant's personal property without just compensation and refused to provide effective administrative remedies for its return. Judge Fox sent a notice advising the parties to appear in court at a certain time and warning that appellant's failure to appear would result in dismissal of his case. Appellant sought, but did not obtain, a bench warrant from Judge Fox ordering the TDCJ officials to transport him to the courthouse for the hearing. The TDCJ officials did not transport appellant to the courthouse or facilitate his participation by telephone. Because he failed to appear, Judge Fox dismissed the case with prejudice for want of prosecution.
In the present suit, appellant pleaded that all appellees violated (1) article 1, sections 13, 17, 19, and 27 of the Texas Constitution and (2) article IV, section 2 and the first, seventh, ninth, and fourteenth amendments of the United States Constitution. Appellant also asserted a cause of action against Judge Fox and the TDCJ officials in their individual capacities under 42 U.S.C. section 1983, which provides a remedy for violations of federal rights committed by persons acting under color of state law. See 42 U.S.C. § 1983; Denson, 63 S.W.3d at 461. In essence, appellant's complaints were all based on appellees' alleged denial of appellant's constitutional right to access the courts. Appellant sought monetary damages and equitable relief. We will address the claims against Judge Fox and the TDCJ appellees separately because our analysis as to these parties is different.
In the introductory paragraph of his petition, appellant also contended he was denied rights under Texas Government Code section 501.007 and the Fourth Amendment to the United States Constitution. However, in the body of his petition, appellant did not cite these provisions when specifically outlining his causes of action. Further, he does not mention these provisions on appeal. Thus, he has waived a challenge to dismissal of any claims under these provisions. See Tex. R. App. P. 38.1(h) (providing, appellant's brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and record); Sunnyside Feedyard, L.C. v. Metropolitan Life Ins. Co., 106 S.W.3d 169, 173 (Tex.App.-Amarillo 2003, no pet.) (recognizing appellant's failure to brief issue results in waiver on appeal).
On appeal, appellant also suggests the TDCJ appellees are liable under the Texas Tort Claims Act, but he did not plead a cause of action under this act.
We note that not all constitutional provisions cited by appellant concern a right to access the courts. For instance, he cites the portion of Article IV, Section 2 of the federal constitution providing, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." U.S. Const. art. IV, § 2. Nevertheless, to the extent appellant contended appellees violated provisions guaranteeing the right to access the courts, we conclude his claims lacked an arguable basis in law.
A. Judge Fox
In his petition in the present suit, appellant complained that Judge Fox denied appellant's constitutional right to access the courts by (1) dismissing the justice court case despite her knowledge that his inmate status rendered him unable to appear for the hearing, (2) failing to issue a writ to facilitate his appearance, and (3) failing to provide alternative means for appellant to prosecute the suit, such as participation via filings or telecommunication. On appeal, appellant concedes his claims for monetary damages against Judge Fox are barred by the doctrine of judicial immunity and challenges only the dismissal of his request for equitable relief.
Although an inmate does not have an automatic right to appear personally in every court proceeding, he does not lose the right to access the courts simply because he is incarcerated. In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003); In re R.C.R., 230 S.W.3d 423, 426 (Tex.App.-Fort Worth 2007, no pet.). An inmate requesting a bench warrant must justify the need for his physical presence. In re Z.L.T., 124 S.W.3d at 166. The right of a prisoner to access the courts entails not so much his personal presence as the opportunity to present evidence or contradict evidence of the opposing party. R.C.R., 230 S.W.3d at 426. Thus, if a court determines that a pro se inmate in a civil action is not entitled to leave prison to appear personally in court, the inmate should be allowed to proceed by affidavit, deposition, telephone, or other means. Id.; Boulden v. Boulden, 133 S.W.3d 884, 886-87 (Tex.App.-Dallas 2004, no pet.).
Even if Judge Fox denied appellant's constitutional right to access the courts, his claim for equitable relief in the present suit had no arguable basis in law because of the particular relief requested. Notably, the present suit was not an appeal from Judge Fox's dismissal of appellant's justice court case or a petition for writ of mandamus compelling Judge Fox to take certain actions in that case. C.f., e.g., R.C.R., 230 S.W.3d 423 (reversing trial court's dismissal of inmate's civil complaint for want of prosecution based on his non-appearance as required at hearing where trial court failed to issue requested bench warrant or permit appearance by alternative means); Boulden, 133 S.W.3d 884 (same). Rather, this is a separate suit, in which appellant merely sought "equitable relief as the court deem [sic] appropriate to prevent same occurrence and/or retaliation against [appellant's] person."
Apparently, appellant sought an injunction from the trial court requiring Judge Fox to ensure appellant's appearance personally or by alternative means at future proceedings in cases he may file in her justice court. However, appellant cites no authority allowing a court to issue an injunction compelling the judge of another court to take a particular action in some unknown potential suit. To the contrary, to obtain an injunction, a plaintiff must prove, among other elements, a wrongful act and existence of imminent harm. Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass'n, 25 S.W.3d 845, 849 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). "`An injunction will not lie to prevent an alleged threatened act, the commission of which is speculative and the injury from which is purely conjectural.'" Democracy Coal. v. City of Austin, 141 S.W.3d 282, 296 (Tex.App.-Austin 2004, no pet.) (quoting Markel v. World Flight, Inc., 938 S.W.2d 74, 80 (Tex.App.-San Antonio 1996, no writ)). Whether there is a threat of imminent harm is a legal determination resting with the court. Id. Appellant's request for relief presupposed he will file another suit mandating his appearance and Judge Fox will fail to issue a bench warrant or other pertinent order. Consequently, appellant sought to prevent an alleged future act that is entirely speculative.
To the extent appellant requested equitable relief to prevent "retaliation," he pleaded no supporting factual allegations. He did not allege Judge Fox committed or threatened any retaliation. His only mention of "retaliation" was in his request for relief.
Accordingly, the trial court properly dismissed appellant's claims against Judge Fox on the ground they lacked an arguable basis in law.
B. The TDCJ Appellees
In his petition in the present suit, appellant complained that the TDCJ appellees violated appellant's constitutional right to access the courts by failing to authorize his transportation to the justice court hearing or facilitate his participation by telephone.
Preliminarily, we note appellant did not allege he requested that the TDCJ officials transport him to the hearing or facilitate his participation by telephone. Appellant merely suggested the officials should have ensured his participation because they purportedly received notice of the hearing as parties to the justice court case.
Nevertheless, the authorities we have cited make clear that it is the trial judge who determines whether an inmate may appear for a hearing either personally or by alternative means and issues a bench warrant or other appropriate order. See R.C.R., 230 S.W.3d at 426-27; Boulden, 133 S.W.3d at 886-87. As we have explained, appellant expressly alleged Judge Fox did not issue a bench warrant or other order. Any notice of hearing provided to the officials, as parties to the justice court case, did not equate to an order from Judge Fox requiring the officials to facilitate appellant's participation.
Appellant cites no authority establishing the officials were required, or even allowed, to remove him from confinement and transport him to the courthouse, or facilitate his participation by telephone, absent a court order compelling such action. Citing Bounds v. Smith, 430 U.S. 817 (1977), appellant advances the general proposition that prison officials have a constitutional obligation to provide adequate, effective, and meaningful assistance to aid a prisoner in pursuing a legal claim. However, the full holding of Bounds was, "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Id. at 828. Bounds is not controlling because the holding did not concern an inmate's complaint that prison officials failed to facilitate his appearance at a court hearing in a civil suit. See id.
The Supreme Court has since narrowed and further defined the scope of Bounds with respect to an inmate's rights and obligations of prison officials. See Lewis v. Casey, 518 U.S. 343 (1996). We need not discuss the scope of Bounds because it is inapplicable to the present case.
Therefore, we conclude appellant's claims that the TDCJ appellees violated his constitutional right to access the courts lacked an arguable basis in law. Consequently, the trial court did not err by dismissing appellant's claims against the TDCJ appellees.
We overrule appellant's sole issue and affirm the trial court's order of dismissal.