Summary
finding an inmate's fraud claim was a collateral attack on a disciplinary proceeding and looking to Heck rationale in affirming a summary judgment against the inmate on the fraud claim
Summary of this case from Somerville v. Dall. Cnty. Inc.Opinion
No. 04-02-00036-CV
Delivered and Filed: February 28, 2003
Appeal From the 258th Judicial District Court, Polk County, Texas, Trial Court No. CIV 18,060, Honorable Elizabeth E. Coker, Judge, presiding.
REVERSED AND REMANDED IN PART, AFFIRMED IN PART
We grant Dan Thomas's Panel Motion for Rehearing as to Costs. Due to the amendments to the Texas Rules of Appellate Procedure effective January 1, 2003, we also grant his Motion to the Court to Reconsider Its Decision [as] to Publication of the Opinion. We withdraw our opinion and judgment issued on December 18, 2002 and substitute the following in its place.
We issued an order on January 14, 2003 requesting responses to Thomas's motions from Bynum and Reese. Having received no response, and because the time for filing responses has passed, we now have the opportunity to rule on the motions. See Tex.R.App.P. 49.2.
Dan Thomas appeals the trial court's granting of a no-evidence summary judgment motion against his claims that William Bynum and Billy Reese deprived him of his civil rights under the United States and Texas constitutions and committed the torts of slander, intentional infliction of emotional distress, and fraud. We reverse the judgment of the trial court with respect to Thomas's slander and intentional infliction of emotional distress claims against Bynum and remand to the trial court for further proceedings consistent with this opinion. With respect to all other claims, we affirm the judgment of the trial court.
Background
Thomas, an inmate, asserts that Bynum, a correctional officer, slandered him by calling him a "queer" within earshot of other inmates. Allegedly, Bynum's motive was to retaliate against Thomas for repeatedly filing grievances against Bynum. In response to Thomas's complaints about being called a "queer," Bynum allegedly filed false disciplinary charges against Thomas. The shift lieutenant, Reese, allegedly never investigated Thomas's complaints about Bynum. In addition, Thomas accuses Reese of refusing to let Thomas attend the resulting disciplinary hearing, and notes that at the disciplinary hearing Reese imposed a punishment of thirty days of exercise and commissary restrictions.
Thomas filed suit against Bynum in his individual capacity for slander, intentional infliction of emotional distress, fraud, and violations of his constitutional rights. Thomas also filed suit against Reese in his official capacity for violations of his constitutional rights. He seeks monetary damages and declaratory and injunctive relief. Bynum and Reese filed a motion for summary judgment arguing that Thomas had no evidence for his claims and asserting the defenses of official immunity and sovereign immunity. Thomas filed a response and attached his affidavit, which states: "On September 18, 1999 at or about 9:08 a.m. . . . Correctional Officer Bynum the Defendant did then and there verbally slandered [sic] me maliciously, calling me `queer' baby raping homosexual bastard. . . ." The affidavit continues: "[T]his was witnessed by multiple inmates assigned to the pod living area on 9/18/99." Finally, Thomas attests that "Defendant Bynum then falsely charged me with multiple disciplinary charges, to cover up his wrongdoing and to retaliate against me." The trial court granted the summary judgment motion on all claims. Thomas appeals.
Standard of Review
On appeal, we review a no-evidence summary judgment de novo, viewing the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). A party may move for a no-evidence summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R.Civ.P. 166a(i). A no-evidence summary judgment motion is improperly granted when the respondent brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact. Id.; Gomez v. Tri City Cmty. Hosp., Ltd., 4 S.W.3d 281, 283 (Tex.App.-San Antonio 1999, no pet.).
Causes of Action Arising from the "Queer" Statement
In his summary judgment motion, Bynum argued that Thomas presented no evidence on one of the essential elements of slander. Slander is defined as a defamatory statement orally communicated or published to a third party without explanation or excuse that is either defamatory in itself or defamatory because it results in actual damages. Rogers v. Cassidy, 946 S.W.2d 439, 444 n. 3 (Tex.App.-Corpus Christi 1997, no writ). Here, Bynum argues that the appellation "queer" was neither defamatory in itself ( i.e., slanderous per se) nor resulted in any actual damages to Thomas.
On the contrary, "the statement that someone was a `queer' is slanderous per se because it imputes the crime of sodomy." Head v. Newton, 596 S.W.2d 209, 210 (Tex.Civ.App.-Houston [14th Dist.] 1980, no writ); see also Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308, 311 (5th Cir. 1997) (finding that calling someone a "faggot" is slander per se). By filing his affidavit stating that Bynum called him a queer, Thomas has produced summary judgment evidence raising an issue of material fact regarding the element of slander that requires a statement be either defamatory in itself or result in actual damages. The trial court erred in granting summary judgment for Bynum on the slander claim.
In addition to slander, Thomas alleges that Bynum's statements constitute intentional infliction of emotional distress. The motion for summary judgment does not address the intentional infliction of emotional distress claim. The trial court, therefore, could not properly dispose of that claim in its order granting summary judgment. See Bandera Elec. Coop., Inc. v. Gilchrist, 946 S.W.2d 336, 337 (Tex. 1997) (noting that the trial court erred in disposing on summary judgment of claims that the motion did not address). The trial court erred in granting summary judgment for Bynum on the intentional infliction of emotional distress claim.
Causes of Action Arising from the Disciplinary Proceedings
Thomas raises several claims against Bynum and Reese as a result of their actions in the prison disciplinary process. Regarding Bynum, Thomas alleges that Bynum committed fraud and deprived him of his constitutional rights by filing false disciplinary charges. Regarding Reese, Thomas alleges that Reese deprived him of his constitutional rights by failing to investigate Bynum's misconduct, denying him access to the disciplinary proceeding, and imposing thirty days of exercise and commissary restrictions at that disciplinary proceeding. Thomas relies on the United States constitution, the Texas constitution, 42 U.S.C. § 1983, and the tort of fraud.
Thomas's claims amount to an attack on the validity of the disciplinary proceeding itself. Claims for damages for allegedly unconstitutional imprisonment or other harm caused by actions whose unlawfulness would render a conviction or sentence invalid are not allowed unless the plaintiff can prove the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); see also Edwards v. Balisok, 520 U.S. 641, 646 (1997) (finding that a civil suit seeking damages for the loss of good time credits implies the invalidity of the punishment). Thomas has presented no such evidence, so he cannot use section 1983 to seek damages for his allegations of federal constitutional violations.
In addition, Texas has no implied private right of action for damages for constitutional violations and no statute comparable to section 1983. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex. 1995) (holding that under Texas law there is no implied private right of action for damages for violations of free speech and free assembly rights); Jackson v. Houston Indep. Sch. Dist., 994 S.W.2d 396, 400-01 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (noting that Bouillion applies to other rights under the Texas Constitution). Thomas cannot use the Texas constitution to seek damages for alleged violations of Texas constitutional rights.
Besides the alleged federal and state constitutional violations, Thomas charges that Bynum committed fraud by filing false disciplinary charges. The fraud claim is likewise a collateral attack on the disciplinary proceeding. The trial court properly granted summary judgment on the fraud claim.
Defenses of Official and Sovereign Immunity
Finally, Bynum and Reese asserted in their motion for summary judgment and re-assert on appeal that they are entitled to official immunity. In addition, Reese asserts that he is entitled to sovereign immunity because Thomas has sued him in his official capacity. Because the trial court properly granted summary judgment for Reese on all claims against him, we only address Bynum's defense of official immunity.
Official immunity is an affirmative defense. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). To be entitled to summary judgment on an affirmative defense, a defendant must expressly present and conclusively prove each element of the affirmative defense. Clark, 38 S.W.3d at 580. Bynum brought his summary judgment motion as a no-evidence motion and presented no affidavits or other supporting evidence. Based on the evidence before it, the trial court could not properly have granted summary judgment on the grounds of official immunity. Bynum will have the opportunity to present additional evidence when the trial court considers the slander and intentional infliction of emotional distress claims on remand.
Conclusion
We reverse the judgment of the trial court with respect to Thomas's slander and intentional infliction of emotional distress claims against Bynum and remand to the trial court for further proceedings consistent with this opinion. With respect to all other claims, we affirm the judgment of the trial court.