THOMAS W. SHAW v. DIRECTOR, UTMB, ET AL.--Appeal from 12th District Court of Walker County

   NUMBER 13-03-066-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

THOMAS W. SHAW, Appellant,

v.

DIRECTOR, UNIVERSITY OF TEXAS

MEDICAL BRANCH ET AL., Appellee.

 On appeal from the 12th District Court

of Walker County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

Appellant, Thomas W. Shaw, is an inmate at the Ellis Unit in Huntsville, Texas. He seeks review of the trial court=s decision to dismiss as frivolous his claims filed against the Director of the University of Texas Medical Branch (UTMB), three UTMB employees who worked at the Ellis Unit, and one Texas Department of Criminal Justice (TDCJ) employee of the Ellis Unit. Appellant claims the court erred because he was denied a hearing where he could show his suit was not frivolous, and because he substantially complied with the relevant code sections to the best of his limited ability as an inmate. We affirm the judgment of the trial court.

I. Facts and Procedural History

Appellant, a prisoner proceeding pro se and in forma pauperis, suffers from incontinence, hearing problems and heart problems. In October 2001, he was transferred from the J-Wing dormitory to a cell block within the prison. He complained that the accommodations in the cell block did not meet his medical needs and requested a transfer back to the dormitory. The request was denied. In August 2002, appellant was examined by a physician from outside the prison system, who recommended appellant be kept within the dormitory because of his health problems. Appellant was still not transferred back to the dormitory. Appellant filed a Step One Grievance with the TDCJ to no effect.

Appellant then filed suit against appellees on November 22, 2002, alleging (1) violations of his Constitutional right to adequate and proper medical care, and (2) transfer into less desirable conditions of confinement despite the recommendations of his physician. Without a hearing, the trial court dismissed the lawsuit as frivolous and noted appellant failed to meet the requirements of Texas Civil Practice and Remedies Code sections 14.003, 14.004, and 14.005(b). See Tex. Civ. Prac. & Rem. Code Ann. '' 14.003, 14.004, 14.005(b) (Vernon 2002).

II. Claims on Appeal

Appellant=s issues on appeal are not clearly delineated but appear to be as follows:

First, appellant claims the trial court erred by not granting him a hearing to challenge the appellees=motion to dismiss.

Second, appellant claims the trial court mischaracterized his claim as arising under the constitutional prohibition against cruel and unusual punishment under the Eighth Amendment. Appellant denies this interpretation of his claim, arguing he never claimed cruel and unusual punishment. He explains in his brief that the basis of his lawsuit is that UTMB employees were Anot providing the treatment and care recommended by a qualified medical doctor.@ As evidence in support of this claim, he notes (1) the prison=s refusal to transfer him back from the cell block to the dormitory, despite the recommendation of his physician from outside the prison system, and (2) the refusal to discuss his incontinence problem during an annual checkup. Appellant cites Christy v. Robinson, 216 F. Supp. 2d. 398, 408 (D. N.J. 2002), for the proposition that deliberate indifference to an inmate=s medical needs violates the Eighth Amendment.

Third, appellant claims the transfer from the dormitory to the cell block diminished his living conditions and amounted to a punishment meted out without due process. This first three issues will be analyzed under section 14.003, which allow this Court to review the merits of the complaint. See Tex. Civ. Prac. & Rem. Code ANN. ' 14.003(b).

Finally, appellant claims his suit should not have been dismissed for noncompliance with sections 14.004 and 14.005(b), because he substantially complied to the best of his ability given his limited means as a prisoner.

III. Frivolousness of the Claim

1. Applicable Law

With regard to inmate litigation, the trial court may dismiss a claim if it is frivolous. Tex. Civ. Prac. & Rem. Code ANN. '14.003(a)(2). In determining whether a claim is frivolous, the court may consider if the claim's realistic chance of ultimate success is slight, and whether the claim has any arguable basis in law or in fact. Id. ' 14.003(b)(1)-(2).

The proper standard of review for the dismissal of a frivolous claim pursuant to chapter fourteen is an abuse of discretion. Jackson v. Tex. Dep't of Crim. Justice Institutional Div., 28 S.W.3d 811, 813 (Tex. App.BCorpus Christi 2000, pet. denied). To establish an abuse of discretion, an appellant must show the trial court's actions were arbitrary or unreasonable in light of all the circumstances. Id. (citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984)). The standard is clarified by asking whether the trial court acted without reference to any guiding rules or principles. Spurlock v. Schroedter, 88 S.W.3d 733, 735 36 (Tex. App.BCorpus Christi 2002, no pet.).

2. Lack of a Hearing

In his first issue, appellant complains of the dismissal of his petition without a hearing. In determining whether to dismiss a suit under section 14.003, the statute states the court may hold a hearing. Tex. Civ. Prac. & Rem. Code ANN. ' 14.003(c). The plain language indicates the court's determination whether to hold a hearing is discretionary. Spurlock, 88 S.W.3d at 736. Accordingly, it was not mandatory that the trial court conduct a hearing to decide whether appellant=s suit should be dismissed. Id. Because the hearing was not mandatory, the trial court did not necessarily err in failing to hold a hearing. Furthermore, appellant presents no compelling reason to show that even a discretionary hearing ought to have been held. See id. We overrule this issue.

3. Failure to Provide Medical Care

Although appellant insists his case is not brought under the Eighth Amendment=s prohibition against cruel and unusual punishment, both his argument and case law relies on the Eighth Amendment. Appellant offers no other basis of his claim for the constitutional right to medical care. Appellant=s argument regarding unhealthy living conditions directly implicates the Eighth Amendment=s requirement that A[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.@ U.S. Const. amend. VIII. The Eighth Amendment protection from cruel and unusual punishment is applied to the States through the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660, 675 (1962). Furthermore, case law has established that the government=s responsibility to provide medical care to those it incarcerates falls under the Eighth Amendment protection against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 102-03 (1976). With no alternative basis provided for his claim, we will therefore assess appellant=s claim as arising under the Eighth Amendment.

Matters of medical judgment do not necessarily implicate the Eighth Amendment even if they rise to the level of medical malpractice. Estelle, 429 U.S. at 107. To show violation of the Eighth Amendment, appellant would have to show an actual denial of medical treatment with deliberate indifference to serious medical needs. Id. at 104. Medical experts may disagree as to treatment of a patient, and although one doctor recommended a transfer back to the dormitory, the medical personnel at TDJC clearly did not agree. Appellant has failed to establish that a changed living arrangement denied him medical treatment and amounted to deliberate indifference to his medical needs.

Appellant further complains that the physician=s failure to discuss with appellant his incontinence during one physical exam constituted denial of treatment with deliberate indifference to serious medical needs. He does not allege, however, that his incontinence has gone unaddressed or untreated.

Appellant has therefore failed to demonstrate his medical care fell below the levels required by the Eighth Amendment. Although we understand his desire to have the best accommodations possible given his various health issues, we conclude that appellant=s Eighth Amendment rights were not violated by his move to the cell block and by his medical care. See id. This issue is overruled.

4. Lack of Due Process

By his third issue, appellant claims his transfer to the cell block was a punishment imposed without due process. Liberty interests protected by the due process clause are "generally limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 551 U.S. 472, 484 (1995). The cell block experience is unarguably an ordinary incident of prison life. The Constitution Adoes not mandate comfortable prisons.@ Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). The fact that the cell block is less comfortable to appellant than the dormitory accommodations does not impose an atypical hardship on an inmate and therefore does not rise to the level of a due process violation. This issue is overruled.

5. Substantial Compliance

Appellant also argues that he substantially complied, to the best of his limited abilities, with the procedural requirements of sections 14.004 and 14.005(b). However, it is undisputed that appellant failed to correctly file an affidavit or declaration describing each suit he had previously brought as is required by section 14.004, see Tex. Civ. Prac. & Rem. Code Ann. ' 14.004, and that appellant failed to properly exhaust his administrative remedies by filing a Astep 2" grievance within the AOffender Grievance Program,@ as is required by section 14.005. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.005. Because appellant did not comply with the requirements of sections 14.004 and 14.005, we hold the trial court did not abuse its discretion in dismissing appellant's suit. Appellant=s final issue is overruled.

IV. Conclusion

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 22nd day of August, 2005.