Richard H. Archer v. T.D.C.J.-I.D., et al--Appeal from 369th District Court of Anderson County

NO. 12-07-00012-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RICHARD H. ARCHER, APPEAL FROM THE 369TH

APPELLANT

V.

JUDICIAL DISTRICT COURT OF

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE INSTITUTIONAL DIVISION,

MR. WILBANKS, MR. TEETZ, AND

ROBERT FRYAR,

APPELLEES ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Richard H. Archer, an inmate proceeding pro se, filed an in forma pauperis lawsuit against the Texas Department of Criminal Justice - Institutional Division ( TDCJ-ID ) and three TDCJ-ID employees, referred to respectively as Mr. Wilbanks, Mr. Teetz, and Robert Fryar. In two issues, Archer alleges that the trial court abused its discretion by dismissing his lawsuit and contends that we should consider and grant his motion for appointment of counsel. We affirm in part, reverse in part, and overrule the motion for appointment of counsel.1

 Background2

Archer is an inmate of TDCJ-ID. Archer alleges that while incarcerated at TDCJ-ID s Powledge Unit in Palestine, Texas, he was ordered by TDCJ-ID employees to use a cloth and a flammable substance to prime diesel trucks in preparation for moving the trucks to another location at the unit. He alleges that, following his completion of one such procedure, a TDCJ-ID employee began to start the engine of the primed diesel truck. As alleged by Archer, as [the employee] attempted to start the truck, it back fired [sic] with flames from the intake catching [Archer s fuel-covered] left shirt sleeve on fire. According to Archer, doctors established that [Archer] had sustained 2nd and 3rd degree burns to his left arm, side, and face.

On September 5, 2006, Archer filed a lawsuit in the 369th Judicial District Court. On December 13, 2006, the trial court sua sponte dismissed Archer s lawsuit without prejudice. This appeal followed.

Dismissal

In his first issue, Archer contends that the trial court abused its discretion by dismissing his lawsuit.

Chapter 14 Dismissal and Applicable Standard of Review

Inmate lawsuits such as Archer s are controlled by Chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. 14.001-14.014 (Vernon 2002). Chapter 14 was designed to control the flood of frivolous lawsuits being filed in the courts of this state by prison inmates. See Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268, 271 n.1 (Tex. App. Texarkana 2003, no pet.). The Waco Court of Appeals has noted that

[p]risoners have everything to gain and little to lose by filing frivolous suits. It costs them almost nothing; time is of no consequence to a prisoner; threats of sanctions are virtually meaningless; and the prisoner can look forward to a day trip to the courthouse. Thus, the temptation to file a frivolous suit is strong. Such suits, however, waste valuable judicial resources and subject the state and its prison officials to the burden of unwarranted litigation, preventing claims with merit from being heard expeditiously.

 Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App. Waco 1996, no writ) (citations omitted).

We review the trial court s dismissal of an in forma pauperis lawsuit such as Archer s under an abuse of discretion standard. Williams v. Tex. Dep t of Crim. Justice - Institutional Div., 176 S.W.3d 590, 593 (Tex. App. Tyler 2005, pet. denied) (citing Hickson, 926 S.W.2d at 398). The abuse of discretion standard is typically applied when a trial court has discretion either to grant or deny relief based on its factual determinations. In re Doe, 19 S.W.3d 249, 253 (Tex. 2000) (citing Bocquet v. Herring, 972 S.W.2d 19, 20-21 (Tex. 1998)). In conducting an abuse of discretion review, we examine the entire record. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996) (citing Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987)). A trial court abuses its discretion when its decision is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (citing Bocquet, 972 S.W.2d at 21).

The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Childs v. Argenbright, 927 S.W.2d 647, 650 (Tex. App. Tyler 1996, no writ) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985)). However, a trial court has no discretion in determining what the law is or applying the law to the facts. Spitzer v. Berry, No. 12-07-00276-CV, 2008 WL 482299, at * 1 (Tex. App. Tyler Feb. 22, 2008, pet. filed) (quoting In re Kuntz, 124 S.W.3d 179, 181 (Tex. 2003) (orig. proceeding)). Nonetheless, even where a trial court gives an incorrect legal reason for its decision, the trial court s assignment of a wrong reason is not automatically reversible error. Sells v. Drott, No. 12-07-00020-CV, 2007 WL 2045333, at *1 (Tex. App. Tyler July 18, 2007, pet. filed) (mem. op.) (citing Luxenberg v. Marshall, 835 S.W.2d 136, 141-42 (Tex. App. Dallas 1992, no writ)). A trial court does not abuse its discretion if it reaches the right result, even where that result is based upon an incorrect legal reason. Id. Therefore, when a trial court gives an incorrect legal reason for its decision, we will nevertheless uphold that decision on any proper grounds supported by the record. Id.

Section 14.003(a)(2) provides that a trial court may dismiss a claim if the trial court finds that the claim is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. 14.003(a)(2). In determining whether a claim is frivolous or malicious, a 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 inmate 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. Id. 14.003(b). Where a trial court has not held a fact finding hearing, a trial court may dismiss properly filed inmate pro se in forma pauperis claims only if they lack an arguable basis in law or if it is uncontroverted that they are substantially similar to previous frivolous or malicious claims. Pena v. McDowell, No. 12-05-00116-CV, 2007 WL 949614, at *5 (Tex. App. Tyler Mar. 30, 2007, no pet.) (mem. op.) (citing Tex. Civ. Prac. & Rem. Code Ann. 14 .003(b)(4); Gill v. Boyd Distrib. Ctr., 64 S.W.3d 601, 603 (Tex. App. Texarkana 2001, pet. denied)).

To determine whether a trial court has properly decided that there was no arguable basis in law for an inmate s claims, we examine the types of relief and causes of action alleged in the inmate s pleadings to determine whether, as a matter of law, the pleadings state causes of action that would authorize relief. Pena, 2007 WL 949614, at *5 (citing Spurlock v. Schroedter, 88 S.W.3d 733, 736 (Tex. App. Corpus Christi 2002, no pet.)). To have no arguable basis in law, a claim must be based on an indisputably meritless legal theory or the facts alleged must rise to the level of irrational or wholly incredible. Pena, 2007 WL 949614, at *5 (citing Gill, 64 S.W.3d at 603). Stated another way, the pleaded facts must not comprise a cause of action. Pena, 2007 WL 949614, at *5(citing Gill, 64 S.W.3d at 604). In considering the record before us, we review and evaluate pleadings of inmates proceeding pro se in civil lawsuits with liberality and patience. Pena, 2007 WL 949614, at *5 (citing Foster v. Williams, 74 S.W.3d 200, 202 n.1 (Tex. App. Texarkana 2002, pet. denied)).

Claims Against TDCJ-ID

Section 501.008 of the Texas Government Code directs the Department of Criminal Justice to create a grievance system for inmates. Tex. Gov t Code Ann. 501.008 (Vernon 2004); see Brown v. Lubbock County Comm rs Ct., 185 S.W.3d 499, 503-04 (Tex. App. Amarillo 2005, no pet.). According to section 501.008,

A remedy provided by the grievance system is the exclusive administrative remedy available to an inmate for a claim for relief against the department that arises while the inmate is housed in a facility operated by the department or under contract with the department, other than a remedy provided by writ of habeas corpus challenging the validity of an action occurring before the delivery of the inmate to the department or to a facility operated under contract with the department.

Tex. Gov t Code Ann. 501.008(a) (emphasis added). The statute further reads:

An inmate may not file a claim in state court regarding operative facts for which the grievance system provides the exclusive administrative remedy until:

(1) the inmate receives a written decision issued by the highest authority provided for in the grievance system; or

(2) if the inmate has not received a written decision described by Subdivision (1), the 180th day after the date the grievance is filed.

Tex. Gov t Code Ann. 501.008(d) (emphasis added). Where an inmate cannot show that he has met the requirements of the section 501.008, no arguable basis in law exists to support a claim against the Texas Department of Criminal Justice. Id.; see also Brown, 185 S.W.3d at 504; Crain v. Prasifka, 97 S.W.3d 867, 870 (Tex. App. Corpus Christi 2003, pet. denied) (op. on reh g).

The record does not show that Archer has exhausted his administrative remedies against TDCJ-ID. Instead, the record shows that it was determined through the grievance system that Archer had not timely filed a grievance appeal. This grievance appeal constitutes the second part of the grievance system provided for by section 501.008. See Crain, 97 S.W.3d at 868 (describing the grievance system). A failure to timely file a grievance appeal, combined with a rejection of that appeal for untimeliness, is not sufficient to constitute an exhaustion of the administrative remedy system provided by section 501.008. See Nubine v. Herrera, No. 13-01-00395-CV, 2004 WL 793310, at *2 (Tex. App. Corpus Christi Apr. 15, 2004, pet. denied) (mem. op.) (holding that the administrative rejection of a grievance based on an inmate s failure to properly follow the grievance procedures did not constitute the necessary final decision from the highest authority provided for in the grievance system nor informed the trial court of any pending administrative proceedings ); see also Tex. Gov t Code Ann. 501.008(d) (setting forth the necessary requirements constituting an exhaustion). Therefore, Archer s lawsuit against TDCJ-ID, which contains claims solely regarding operative facts for which the grievance system provides the exclusive administrative remedy, has no arguable basis in law.3 As such, it was not an abuse of discretion for the trial court to dismiss Archer s claims against TDCJ-ID. SeeTex. Civ. Prac. & Rem. Code Ann. 14.003(b); Pena, 2007 WL 949614, at *5.

Claims Against TDCJ-ID Employees

Archer s lawsuit also included claims against TDCJ-ID employees Wilbanks, Teetz, and Fryar. These claims were for negligent training and supervision and Eighth Amendment violations resulting from that negligence. Unlike Archer s claims against TDCJ-ID, his claims against the employees are not barred by his failure to exhaust administrative remedies under section 501.008. See Tex. Gov t Code Ann. 491.001(a)(3) (Vernon 2004) ( Department means the Texas Department of Criminal Justice, except in Chapter 509. ); see also Tex. Gov t Code Ann. 501.002 (Vernon 2004) (referring to the department and an employee in a manner such that the two terms were not interchangeable); Tex. Gov t Code Ann. 501.003 (Vernon 2004) (referring to the department and its employees in a manner such that the two terms were not interchangeable). But see Brown, 185 S.W.3d at 504 ( Appellant s claims are not subject to the grievance system under Section 501.008 because they are not against the Department or its employees and did not arise during his confinement. ); Nubine, 2004 WL 793310, at *2 (affirming the dismissal of an in forma pauperis inmate lawsuit against apparent employees of TDCJ); Crain, 97 S.W.3d at 870 (also affirming the dismissal of an in forma pauperis inmate lawsuit against employees of TDCJ).

Negligent training and supervision are causes of action under the laws of Texas. See, e.g., Lang v. City of Nacogdoches, 942 S.W.2d 752, 762 (Tex. App. Tyler 1997, writ denied). Archer s negligence allegations against Wilbanks, Teetz, and Fryar related to an injury caused by the operation of a motor driven vehicle. Therefore, on their face, Archer s negligence allegations have some arguable basis in law and are not barred by sovereign immunity.4 See Tex. Civ. Prac. & Rem. Code Ann. 101.021 (Vernon 2005).

The Eighth Amendment prohibits cruel and unusual punishments. U.S. Const. amend. VIII. The Eighth Amendment does not protect prison inmates from mere negligence. See Berry v. Tex. Dep t of Crim. Justice, 864 S.W.2d 578, 580 (Tex. App. Tyler 1993, no writ); see also Scott v. Britton, 16 S.W.3d 173, 182 (Tex. App. Houston [1st Dist.] 2000, no pet.). Therefore, while Archer has alleged a cause of action for negligence, he has not alleged a cause of action under the Eighth Amendment. As such, Archer s Eighth Amendment claim has no arguable basis in law.

Conclusion

Archer s claims against TDCJ-ID, and his Eighth Amendment claim against Wilbanks, Teetz, and Fryar, have no arguable basis in law. We overrule Archer s first issue in regard to these claims. Archer s negligence claims against Wilbanks, Teetz, and Fryar, as pleaded, have an arguable basis in law. Therefore, it was an abuse of discretion to dismiss those claims. See Pena, 2007 WL 949614, at *5. We sustain Archer s first issue in regard to his negligence claims against Wilbanks, Teetz, and Fryar.

Disposition

We affirm the trial court s dismissal of Archer s claims against TDCJ-ID, and his Eighth Amendment claim against Wilbanks, Teetz, and Fryar. We reverse the trial court s order dismissing Archer s negligence claims against Wilbanks, Teetz, and Fryar, and remand those claims to the trial court for further proceedings consistent with this opinion. Archer has also included a motion, in his brief, requesting this court to appoint Counsel Ad Litem for him. We overrule Archer s motion.

SAM GRIFFITH

Justice

Opinion delivered April 16, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 TDCJ-ID, Wilbanks, Teetz, and Fryar have not filed a brief. We do not make arguments for parties, and so we examine Archer s argument for obvious defects and also consider the reasoning set forth by the trial court. Cf. Strange v. Cont l Cas. Co., 126 S.W.3d 676, 678 (Tex. App. Dallas 2004, pet. denied) (appellant waives argument for failure to adequately brief it.). Ordinarily, we would also consider the arguments made by the appellees before the trial court. See, e.g., Black v. State, No. 12-05-00404-CR, 2006 WL 3020376, at *2 (Tex. App. Tyler Oct. 25, 2006, no pet.) (mem. op., not designated for publication). However, because they were never served at the trial court level, they made no arguments there. As such, additional arguments may exist to support dismissal that have not been considered in this opinion.

2 The allegations set forth below have been gleaned from Archer s petition and Archer s supplemental amendment to his petition. Our opinion should not be construed as an evaluation of the veracity or merits of any allegation that has been made in this lawsuit.

3 Archer s grievance claims against TDCJ-ID were for negligent training and supervision and violations of the Eighth Amendment due to that negligence. In addition to being based upon the same operative facts, the claims alleged against TDCJ-ID by Archer in his lawsuit pleadings closely tracked Archer s grievance claims.

4 Our holding does not mean that Archer will prevail on his claims or that he can ultimately avoid dismissal or summary judgment. Further, our holding does not mean that Archer s pleadings are not subject to special exceptions or that every part of the claims of negligence or forms of damages pleaded by Archer are valid under the law. We merely hold that, at this time, dismissal of these claims, as a whole, was improper.