Louis James Norman v. Edwin D. Curry, et al.--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-94-270-CV

LOUIS JAMES NORMAN,

Appellant

v.

EDWIN D. CURRY, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 27,358

O P I N I O N

Louis James Norman, a prison inmate, filed a pauper's affidavit and a pro se petition alleging that Edwin D. Curry and George R. Guerrero, both employees of the Texas Department of Criminal Justice, wrongfully confiscated an article of his personal property, namely, a radio, in violation of the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. 101.001-.109 (Vernon 1986 & Supp. 1995). For this allegedly wrongful act, Norman requested $2,542,000 in various types of damages, plus attorney's fees and costs. Relying on section 13.001 of the Civil Practice and Remedies Code, the court dismissed the suit on the ground that "plaintiff's claim is frivolous in that it has no arguable basis in law or in fact and that its ultimate chance of success is slight." See id. 13.001(b)(1)-(2) (Vernon Supp. 1995). In his sole point of error, Norman asserts that the court erred when it dismissed the action as frivolous.

Section 13.001 and its federal counterpart authorize the dismissal of pro se suits by paupers if the court is satisfied that the action is frivolous. See id. 13.001(a)(2); 28 U.S.C.A. 1915(d) (West 1994). A court has broad discretion when determining whether to dismiss a suit as frivolous. Johnson v. Lynaugh, 766 S.W.2d 393, 394 (Tex. App. Tyler 1989), writ denied, 796 S.W.2d 705 (Tex. 1990) (per curiam). Here, the court did not specify which factor in Section 13.001(b) it considered dispositive in determining that this action was frivolous; accordingly, we shall affirm upon any theory upon which the trial court may have relied. See Thompson v. Mannix, 814 S.W.2d 811, 812 (Tex. App. Waco 1991, no writ).

A complaint is frivolous when it lacks an arguable basis in law. Tex. Civ. Prac. & Rem. Code Ann. 13.001(b)(2); Thompson v. West, 804 S.W.2d 575, 577 (Tex. App. Houston [14th Dist.] 1991, writ denied). An example of a complaint based on an "indisputably meritless legal theory" is when the defendants are immune from suit, such as here. See Tex. Civ. Prac. & Rem. Code Ann. 101.021 (Vernon 1986); Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 1833 (1989); Thompson v. West, 804 S.W.2d at 576-77 (several employees of the Texas Department of Corrections accused of wrongfully confiscating certain items of personal property from an inmate were immune from liability in a tort suit for wrongful confiscation); see also Wheat v. Texas Dep't of Corrections, 715 S.W.2d 362, 363 (Tex.App. Houston [1st Dist.] 1986, writ ref'd n.r.e.). Norman's cause of action stands no chance of ultimate success. Thus, dismissal of appellant's claim was appropriate under section 13.001(b)(2).

Although not specifically indicated, Norman's pleadings may be read to allege a violation of 42 U.S.C. 1983 (West 1994). He asserts both intentional and negligent conduct on the part of Curry and Guerrero in confiscating his radio and thereby violating his federal due process rights. See U.S. Const. amends. V, XIV. Norman, however, has failed to raise a justiciable complaint under section 1983. To the extent he asserts the conduct of Appellees was intentional, the United States Supreme Court has held that no constitutional violation occurs when an inmate's personal property is destroyed provided an adequate post-deprivation remedy exists. See Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 3204 (1984). An adequate post-deprivation remedy exists in Texas for the wrongful confiscation of an inmate's private property. See Myers v. Adams, 728 S.W.2d 771, 772 (Tex. 1987) (per curiam). To the extent Norman contends Appellees' actions were negligent, the Due Process Clause is not invoked by negligent acts of state officials which cause unintended loss or injury, as such acts do not deprive a person of life, liberty, or property within the meaning of the Fourteenth Amendment. See id. (citing Daniels v. Williams, 474 U.S. 327, 328, 106 S. Ct. 662, 663 (1986)). Norman admits in his pleadings that Appellees were acting under the color of state law. Accordingly, if Appellees were not negligent and were acting under the color of state law, no section 1983 violation could have occurred.

Norman's complaints under section 1983, if indeed he raised any, are without merit. His point or points of error are overruled, and the judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 23, 1995

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