Thompson, Danny W., TDCJ No. 591762 v. Texas Department of Criminal Justice - Institutional Division--Appeal from 83rd District Court of Pecos County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DANNY W. THOMPSON,

Appellant,

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE-INSTITUTIONAL DIVISION, JEFFREE CALFEE, JOSEPH CASAL, GUILLERMO PACHECO, FRED QUINTELA, WAYNE SCOTT, AND EMORY STROTHER,

Appellees.

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No. 08-01-00232-CV

Appeal from the

83rd Judicial District Court

of Pecos County, Texas

(TC# 5907)

O P I N I O N

This is an appeal from the dismissal of an inmate=s suit under the Texas Tort Claims Act. For the reasons stated, we affirm the judgment.

I. SUMMARY OF THE EVIDENCE

Appellant, Danny W. Thompson, is an inmate at the Clements Unit of the Texas Department of Criminal Justice--Institutional Division. Appellant filed suit against Appellees, the Texas Department of Criminal Justice--Institutional Division, Jeffree Calfee, Joseph Casal, Guillermo Pacheco, Fred Quintela, Wayne Scott, and Emory Strother, under the Texas Tort Claims Act. Appellees moved to dismiss the action as frivolous under Section 14.001 of the Texas Practice and Remedies Code. The trial court granted the motion to dismiss, finding that the petition was Afrivolous and not in compliance with the requirements set forth in Texas Civil Practice and Remedies Code, Chapter 14.@ This appeal follows. Tex. Civ. Prac. & Rem. Code Ann. ' 14.001 (Vernon Supp. 2001).

II. DISCUSSION

In his sole issue, Appellant challenges the trial court=s dismissal order. We address this issue under the abuse of discretion standard of review. Clark v. J.W. Estelle Unit, 23 S.W.3d 420, 421 (Tex. App. Houston [1st Dist.] 2000, pet. filed) (applying abuse of discretion standard to dismissal for not complying with requirements of Civil Practice and Remedies Code section 14.004); Samuels v. Strain, 11 S.W.3d 404, 406 (Tex. App. Houston [1st Dist.] 2000, no pet.) (applying abuse of discretion standard to dismissal on grounds of frivolousness under chapter 14). A court abuses its discretion if it acts without reference to guiding rules or principles. Samuels, 11 S.W.3d at 406. Tex. Civ. Prac. & Rem. Code Ann. ' 14.004 (Vernon Supp. 2001).

Appellees alleged that Appellant=s claims were frivolous and had no basis in law. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(a)(2) (Vernon Supp. 2001). Appellees also alleged that Appellant (1) failed to file a certified copy of his trust account statement as required by Sections 14.004(c) and 14.006(f) of the Civil Practice and Remedies Code;[1] (2) failed to comply with the exhaustion requirements of Section 14.005 of the Civil Practice and Remedies Code and Section 551.008 of the Government Code; and (3) failed to attach a copy of the grievance decision as required by Section 14.005(a)(2) of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. ' 14.004(c), 14.005, 14.005(a)(2), 14.006(f) (Vernon Supp. 2001); Tex. Gov=t Code Ann. ' 551.008 (Vernon Supp. 2001).

A. Exhaustion of Administrative Remedies

An inmate must prove he exhausted all administrative remedies within the penal grievance system before initiating a lawsuit. Pedraza v. Tibbs, 826 S.W.2d 695, 699 (Tex. App. Houston [1st Dist.] 1992, writ dism=d w.o.j.) (stating rule in context of chapter 13 case). Civil Practice and Remedies Code section 14.005(a) provides that an inmate must attach both an affidavit or unsworn declaration stating the date that the grievance was filed and the date the written decision was received by the inmate, and a copy of the written decision from the grievance system. Tex. Civ. Prac. & Rem. Code Ann. ' 14.005(a) (Vernon Supp. 2001).

Appellant contends that he attempted to comply Ato the best of his ability,@ and this attempt is sufficient. Thompson submitted his AStep 1@ grievance form on October 18, 2000. It was returned to him by the unit grievance investigator because it had AInappropriate/excessive attachments.@ Thereafter, Appellant filed a AStep 2@ grievance form on November 2, 2000. It was returned to him on November 16, 2000, with a letter from the Assistant Administrator of Offender Grievance. Appellant was notified that the grievance was not submitted in the proper manner, because he submitted a Step 2 appeal on a Step 1 grievance form that had been returned unprocessed for improper submission. The letter informed Appellant that grievances that qualify for re-submission may be corrected and resubmitted to the unit grievance investigator within 15 days of the signature date on the returned grievance form. Apparently, Appellant did not resubmit his grievance, since we do not find one in the record before us, and therefore did not receive a final decision before filing his lawsuit. Thus, Appellant failed to exhaust his administrative remedies as required by Section 14.005(a). Tex. Civ. Prac. & Rem. Code Ann. ' 14.005(a) (Vernon Supp. 2001). This portion of Issue No. One is overruled.

B. Frivolous Claims

The trial court has broad discretion to dismiss a lawsuit brought under Chapter 14 as frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(a)(2) (Vernon Supp. 2001); Jackson v. Tex. Dep=t of Criminal Justice--Institutional Div., 28 S.W.3d 811, 813 (Tex. App. Corpus Christi 2000, pet. denied); Bell v. Texas Dep=t of Criminal Justice Institutional Div., 962 S.W.2d 156, 157 (Tex. App. Houston [14th Dist.] 1998, pet. denied);Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App. Houston [1st Dist.] 1998, no pet.). In determining whether a claim is frivolous or malicious, the trial court may consider whether: (1) the claim=s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or 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. Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(b) (Vernon Supp. 2001).

In their Motion to Dismiss, Appellees argued that Appellant=s claims were barred by sovereign immunity and, having no arguable basis in law or fact, were frivolous. The Tort Claims Act provides that a governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor driven vehicle or motor driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon Supp. 2001) (emphasis added). The Act clearly contemplates the liability of a Agovernmental unit@ and does not govern suits brought directly against a State employee, regardless of the capacity in which he acted. Id.; see also Perales v. Kinney, 891 S.W.2d 731, 733 (Tex. App.--Houston [1st Dist.] 1994) (affirming dismissal as frivolous claim under the Act against an individual State employee) (citing Huntsberry v. Lynaugh, 807 S.W.2d 16, 17 (Tex. App.--Tyler 1991, no writ)). Thus, the trial court correctly dismissed the suit as to Appellees Calfee, Casal, Pacheco, Quintela, Scott, and Strother. Moreover, because Appellant alleged he was Asexually assaulted and harassed@ by Appellee Pacheco, there is no allegation of use of tangible personal property, as required by the Tort Claims Act, and thus no waiver of sovereign immunity. Id. The trial court properly dismissed the action against Appellee Texas Department of Criminal Justice--Institutional Division.

Finding that Appellant did not exhaust his administrative remedies and finding no waiver

of sovereign immunity, the trial court did not abuse its discretion in dismissing the suit. Issue No. One is overruled and the judgment of the trial court is affirmed.

June 13, 2002

RICHARD BARAJAS, Chief Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)

[1] We note that Appellant did file a certified copy of his account and attached it to his Original Petition.