Opinion
NUMBER 13-17-00003-CV
10-19-2017
SALVADOR ZAVALA TDCJ #1447730, Appellant, v. L. CARRERA, ET AL, Appellees.
On appeal from the 156th District Court of Bee County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Longoria and Hinojosa
Memorandum Opinion by Justice Longoria
Appellant Salvador Zavala, a state prisoner, appeals the trial court's dismissal of his lawsuit as frivolous under Chapter 14 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2) (West, Westlaw through 2017 R.S.). We affirm as modified.
I. BACKGROUND
Appellant is incarcerated in the McConnell Unit of Texas Department of Criminal Justice (TDCJ) located in Beeville, Texas. In March 2016, appellant filed a Step 1 Grievance alleging that prison officials violated his due process rights during a disciplinary hearing accusing him of violating prison regulations. Appellant's grievance form stated that he had been found guilty but did not specify the punishment imposed. The prison warden responded that appellant received all applicable due process protections and rejected the grievance. Appellant filed a Step 2 Grievance reiterating his claims, which was also rejected.
Appellant timely filed suit against appellees—all TDCJ employees—alleging that they conspired to violate and actually did violate his constitutional rights to procedural and substantive due process during the disciplinary hearing. See generally 42 U.S.C.A. §§ 1981, 1983, 1985, 1986 West, Westlaw through P.L. 115-43). Appellant submitted with his lawsuit a "Declaration of Inability to Pay Court Costs" alleging that he was indigent and asking leave to proceed in forma pauperis.
The Texas Attorney General (AG), acting as amicus curiae, filed an advisory brief recommending that the trial court dismiss the suit on the grounds that (1) appellant filed a false declaration of inability to pay costs; (2) appellant's due-process claims were frivolous; and (3) appellees were entitled to official immunity. The trial court entered judgment that appellant's suit was "dismissed as frivolous with prejudice." This pro se appeal followed.
II. DISCUSSION
By what we construe as two issues, appellant asserts that the trial court erred in dismissing his case because he made a prima facie showing of indigence and his claim was not frivolous because it had an arguable basis in law.
A. Applicable Law and Standard of Review
Chapter 14 of the Texas Civil Practice and Remedies Code sets out several procedural requirements that an inmate must satisfy before proceeding in forma pauperis in a civil lawsuit. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a), 14.004-.006 (West, Westlaw through 2017 R.S.). Even if the inmate satisfies these requirements, the trial court may dismiss an inmate's suit "before or after service of process" if it finds: (1) "the allegation of poverty in the affidavit or unsworn declaration is false;" (2) "the claim is frivolous or malicious;" or (3) "the inmate filed an affidavit or unsworn declaration required by this chapter that the inmate knew was false." Id. § 14.003(a).
The court may consider several factors in determining whether a claim is frivolous or malicious, including whether "the claim has no arguable basis in law or in fact." Id. § 14.003(b)(2). When the trial court dismisses an inmate's lawsuit as frivolous without holding a fact hearing, as it did here, "our review focuses on whether the inmate's lawsuit has an arguable basis in law." Hamilton v. Williams, 298 S.W.3d 334, 339 (Tex. App.—Fort Worth 2009, pet. denied); see Harrison v. Tex. Dep't of Crim. Justice, Institutional Div., 164 S.W.3d 871, 875 (Tex. App.—Corpus Christi 2005, no pet.). "A claim has no arguable basis in law if it relies upon an indisputably meritless legal theory." Fernandez v. T.D.C.J., 341 S.W.3d 6, 13 (Tex. App.—Waco 2010, no pet.). To assess whether the trial court properly determined that a claim had no arguable basis in law, "we examine the types of relief and causes of action set out in the petition to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief." Harrison, 164 S.W.3d at 875.
We review an order dismissing an inmate's lawsuit under Chapter 14 for an abuse of discretion. Camacho v. Rosales, 511 S.W.3d 82, 85 (Tex. App.—El Paso 2014, no pet.). A trial court abuses its discretion when it acts without reference to guiding rules or principles so that its action is arbitrary or unreasonable. Sullivan v. Owens, 418 S.W.3d 128, 131 (Tex. App.—Eastland 2011, no pet.). Courts review questions of law de novo under this standard because the trial court has no discretion in determining what the law is or in applying the law to the facts. Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex. 2008). Whether a claim has an arguable basis in law is a legal issue subject to de novo review. Camacho, 511 S.W.3d at 86.
B. No Basis in Law
Appellant asserts in his second issue that the trial court erred because his suit had an arguable basis in law. The AG, again proceeding as amicus curiae, asserts that appellant's claim has no basis in law because the due process clause does not apply in this circumstance.
We agree with the State that appellant's claims have no arguable basis in law. Appellant alleged in his petition that appellees violated his due process rights when: (1) the hearing officer at his disciplinary hearing refused to permit him to cross-examine the corrections officer who accused him of violating prison regulations; (2) they refused to allow appellant to call as a witness another corrections officer who allegedly possessed exculpatory information; (3) they "conspired to subject [appellant] to a system of punitive and preventive detention in violation of his due process rights;" and (4) they failed "to provide adequate disciplinary process [by] denying [him the right to call a] witness and failing to allow cross-examination of [a] witness." To assert a due process claim in this context, a person must allege that he possessed a liberty or property interest protected by the Due Process Clause that was infringed upon by the government. Hamilton v. Williams, 298 S.W.3d 334, 341 (Tex. App.—Fort Worth 2009, pet. denied); Covarrubias v. Tex. Dep't of Criminal Justice—Institutional Div., 52 S.W.3d 318, 324 (Tex. App.—Corpus Christi 2001, no pet.); see Sandin v. Conner, 515 U.S. 472, 478 (1995) (noting that the Due Process Clause "does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner"). Appellant was found guilty at the disciplinary hearing of violating prison regulations, but he does not describe the sanction that was imposed except that it was "the maximum allowed." Absent an allegation that the government violated a liberty or property interest protected by the Due Process Clause, appellant's claim fails as a matter of law. See Hamilton, 298 S.W.3d at 341; Covarrubias, 52 S.W.3d at 324; see also Baker v. McCollan, 443 U.S. 137, 140 (1979) ("The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived of a right 'secured by the Constitution and laws.'").
Based on the deficiency in appellant's pleading, the trial court did not abuse its discretion in dismissing appellant's suit as having no basis in law. Whether the dismissal with prejudice was an abuse of discretion, however, depends on whether appellant's errors could be remedied. See Leachman v. Dretke, 261 S.W.3d 297, 306 (Tex. App.—Fort Worth 2008, no pet.) (op. on reh'g). Appellant could conceivably amend his pleadings to allege that the sanction resulting from the disciplinary proceeding violated a liberty or property interest protected by the Due Process Clause. See id. We conclude that the trial court abused its discretion by dismissing appellant's lawsuit with prejudice. See id. ("Because Leachman could have amended his pleadings to clarify the ambiguities in his claim against Dretke, dismissal with prejudice was an abuse of discretion."). We overrule appellant's issue in part and sustain it in part.
We do not address the AG's official-immunity argument because the result would be the same. Official immunity is an affirmative defense that "presupposes a prima facie claim." Leachman v. Dretke, 261 S.W.3d 297, 315 (Tex. App.—Fort Worth 2008, no pet.) (op. on reh'g) (quoting Denton County v. Johnson, 17 S.W.3d 46, 51 (Tex. App.—Fort Worth 2000, pet. denied)). As we explained in the body of this opinion, appellant did not state a claim for violation of his due process rights but could potentially remedy that failing by re-filing the case with a more specific pleading. It would be an abuse of discretion to deny him that opportunity. See id. at 306.
III. CONCLUSION
We modify the court's judgment to reflect that the dismissal of appellant's suit is without prejudice and AFFIRM the judgment AS MODIFIED. See TEX. R. APP. P. 42.3(b).
NORA L. LONGORIA
Justice Delivered and filed the 19th day of October, 2017.