Danny Leon Lucas v. Gary Johnson, et al.--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-98-322-CV

DANNY LEON LUCAS,

Appellant

v.

GARY JOHNSON, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 31,878

O P I N I O N

Appellant Lucas appeals an order of the trial court dismissing his pro se in forma pauperis lawsuit.

Lucas, a prison inmate, brought suit against Gary Johnson, Director of the Texas Prison System, and the following personnel of the Hughes Unit: David Moya, Senior Warden; Charles Bell, Assistant Warden; Major D. Tamlaso; Captain Kenneth Cox; Sergeant John D. Funke; CO3 Lane Curry; CO3 David L. Barrow; CO3 Joseph T. Morrison; CO3 Gary A. Casher; Kay Sheeley, Regional Director; and D. Robbins, a prison employee. All were sued both individually and in their official capacities.

Lucas alleges his action was brought under and by virtue of the Texas Tort Claims Act, Texas Government Code 101.001, et seq.

Lucas allegation is that since September 1992 he has been and is still being held in administrative segregation lock-down because he refuses to stop litigation against Gary Johnson and his staff. He alleges he has suffered serious and significant physical and mental injury because of the cruel or unusual punishment he has received. He also alleges he has developed severe anxiety which interferes with his rehabilitation. Lucas sought $25,000 compensatory damages, $15,000 punitive damages, $10,000 exemplary damages, and $20,000 damages for mental anguish, mental pain, distress, and severe disappointment.

The trial court dismissed Lucas case as to all defendants pursuant to Chapter 14, Texas Civil Practice & Remedies Code, finding such cause to be frivolous and malicious, having no arguable basis in law or fact, and that Lucas failed to state a cause of action.

Appellant appeals asserting the trial court abused its discretion in dismissing his case as frivolous and malicious.

Rule 145, Texas Rules of Civil Procedure, allows a "party who is unable to afford costs" to file an affidavit in lieu of security for costs. Chapter 14, 14.003, Texas Civil Practice & Remedies Code, applies to suits brought by an inmate who has filed an affidavit or unsworn declaration of inability to pay costs. Section 14.003(a) allows a court to dismiss a suit before or after process is served if the court finds (1) that the allegation of poverty in the affidavit is false; (2) the claim is frivolous or malicious; or (3) the inmate filed an affidavit or unsworn declaration required by Chapter 14 that the inmate knew was false. In determining whether a claim is frivolous or malicious, the 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 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 fact. Id. 14.003(a).

Section 14.004 requires the inmate to file a separate affidavit or declaration identifying each prior suit brought by the inmate, specifying the operative facts, the case name, the cause number, the court in which it was brought, the names of the parties, and stating the result of the suit. Id. 14.004(a). This section also requires the inmate to file a certified copy of his trust account statement from the Department. Id. 14.004(c). Section 14.005 applies to complained of acts that are subject to the required grievous procedure set up by the Department.

Our review of a dismissal under Chapter 14 is controlled by the abuse of discretion standard. Abuse of discretion is determined by whether the court acted without reference to any guiding principles. Craddock v. Sunshine Bus Lines, 133 S.W.2d 136 (Tex. 1939).

Before the State of Texas granted the limited waiver of sovereign immunity, the State and its agencies and political subdivisions had full immunity from tort liability. State v. Brannon, 111 S.W.2d 347 (Tex. App. Waco 1937, writ ref d). The State retains that immunity except to the extent waived by the Texas Tort Claims Act. Duhart v. State, 610 S.W.2d 740 (Tex. 1980); Wyse v. Dept. of Public Safety, 733 S.W.2d 224 (Tex. App. Waco 1986, writ ref d n.r.e.).

Section 101.021, Texas Civil Practice & Remedies Code, sets out the state s waiver of immunity:

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.

The above limited waiver of sovereign immunity is not applicable to Appellant s complaints.

Moreover, government officers have an immunity from personal liability while performing discretionary duties within the scope of their employment so long as those duties were performed in good faith. Carpenter v. Barner, 797 S.W.2d 99, 101 (Tex. App. Waco 1990, writ ref d); Campbell v. Jones, 264 S.W.2d 425, 427 (Tex. 1954).

The complained-of acts of Appellees were discretionary duties in the performance of their duties as prison officials. The trial court did not abuse its discretion in dismissing Appellant s case. All of Appellant s contentions are overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Gray, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed May 5, 1999

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