Alonzo Diego Fuller v. Jack Garner, Sr., Warden, et al.--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-94-038-CV

ALONZO DIEGO FULLER,

Appellant

v.

JACK GARNER, SR., WARDEN, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 28,268

O P I N I O N

This is an appeal from the dismissal of an in forma pauperis action filed under Rule 145 of the Rules of Civil Procedure by Alonzo Diego Fuller against Jack Garner, Sr., Michael Leonard, and Raul Mata. See Tex. R. Civ. P. 145. The trial court dismissed the cause as frivolous against Garner and Mata because the claim had no arguable basis in law or in fact. See Tex. Civ. Prac. & Rem. Code Ann 13.001 (Vernon Supp. 1994). We conclude that the court did not abuse its discretion in dismissing the cause, and we therefore affirm the judgment.

Fuller filed suit against three defendants. The court dismissed the suit as to Garner and Mata. Although no order of severance appears in the record, we believe that an involuntary dismissal under section 13.001 as to a named defendant prior to service of citation on that defendant is an appealable order. See id.

Fuller's petition alleges that in August 1993 he was put on "special cell restriction" for thirty days. During such period, an inmate may only have limited personal property. The remainder of an inmate's personal property is to be inventoried, packaged, and delivered to the prison property officer. Officer Leonard informed Fuller that he would package Fuller's remaining belongings and deliver them to the property officer. According to Fuller, a fan, tennis shoes, a clock, and other miscellaneous items were missing when he returned from special cell restriction.

Fuller's petition alleges that he filed an institutional grievance complaining about the missing items. He pursued his complaint through several levels of the grievance process but did not receive a result satisfactory to him. Fuller's mother spoke with Garner, the prison warden, who assigned Mata to investigate the matter. Again, Fuller was not satisfied with the results.

Fuller filed suit alleging that Leonard negligently overlooked some of his personal property when he inventoried his belongings and "failed to secure" the property Fuller claims was lost or damaged. Fuller's petition alleges that each defendant, in violation of the Texas Tort Claims Act, failed to conduct a thorough investigation of his allegations and failed to properly secure his personal property. See Tex. Civ. Prac. & Rem. Code Ann. 101.021 (Vernon 1986). Fuller also cites section 500.007 of the Government Code for the proposition that the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID) may pay claims made by inmates for property lost or damaged by the department. //

The trial court should be allowed broad discretion when determining whether a suit filed pursuant to Rule 145 should be dismissed as frivolous or malicious under section 13.001. Johnson v. Lynaugh, 766 S.W.2d 393, 394 (Tex. App. Tyler 1989), writ denied per curiam, 796 S.W.2d 705 (Tex. 1990).

The applicable portion of section 101.021 provides:

A governmental unit in the state is liable for:

(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. Code Ann. 101.021(2). Fuller's petition does not allege "personal injury or death" which would bring his claim within the ambit of section 101.021. See id. Furthermore, section 101.021(2) provides for the waiver of the governmental unit's sovereign immunity. Id. The TDCJ-ID was not named as a defendant in this suit. See id. 101.102(b) (Vernon 1986).

Section 501.007 of the Government Code provides that the "institutional division" may pay from miscellaneous funds claims made by inmates for property lost or damaged by the division. Tex. Gov't Code Ann. 501.007. Again, the TDCJ-ID was not named as a defendant in the lawsuit.

We conclude that the court did not abuse its discretion in dismissing the action because the claim had no arguable basis in law or in fact. See Tex. Civ. Prac. & Rem. Code Ann. 13.001. We affirm the judgment dismissing Fuller's claims against Garner and Mata.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed November 30, 1994

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