Michael A. Magoon v. Domingo Carrillo, Keith Clendennen, Jesus Vasquez, Dennis Fenner, Steven Green, Michael Countz and M.B. Thaler--Appeal from 81st Judicial District Court of Karnes County

No. 04-01-00159-CV
Michael A. MAGOON,
Appellant
v.
Domingo CARRILLO, et al.,
Appellees
From the 81st Judicial District Court, Karnes County, Texas
Trial Court No. 00-09-00167-CVK
Honorable Ron Carr, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: September 12, 2001

AFFIRMED

This is a pro se appeal, filed by inmate Michael Magoon ("Magoon"). While Magoon makes several allegations and complaints, this court has determined there to be two points of error based in law. They are: (1) Magoon did not receive adequate notice of the hearing on the appellee's motion to dismiss, and (2) Magoon's due process rights were violated when the hearing was held without affording him the opportunity to attend.

Facts

Magoon brought suit against several employees of the Connally Correctional Unit in Kenedy, Texas for various 42 U.S.C. 1983 violations. Magoon alleges that the prison officials abandoned the statutorily required classification system mandating that prisoners be housed according to their age, height, weight, and violent behavior, among other factors. Magoon maintains that because of complaints he has made and suits he has filed in an effort to protect his rights, a number of prison officials and staff, the appellees, moved him from the minimum security unit of the facility to one populated by the most violent and predatory prisoners.

The Attorney General filed defensive pleadings on behalf of the prison employees. Contained in the appellees' response was a motion to dismiss Magoon's suit as frivolous. A hearing was held Monday, December 11, 2000, during which the trial court dismissed Magoon's suit as frivolous. Magoon appeals.

Discussion

Magoon raises two points of error on appeal: (1) he was not afforded adequate notice to respond to the motion to dismiss, and (2) his due process rights were violated when the trial court held the hearing in his absence.

1) Adequate Notice

Magoon asserts that because he received the notice of hearing on the motion to dismiss on Thursday, December 7, 2000, and the hearing was held the following Monday, he lacked adequate time in which to file a response. Under the Texas Rules of Civil Procedure, however, the appellees are required only to serve Magoon with notice not less than three days before the time specified for the hearing. Tex. R. Civ. P. 21. Appellees mailed notice of the hearing on November 16, 2000, effectively serving Magoon 25 days before the hearing. Further, Magoon received actual notice of the hearing within the proscribed time period of three days. Magoon's first point of error is overruled.

2) Opportunity to Attend

Magoon contends that his due process rights were violated when the trial court held a hearing on the appellees' motion to dismiss without affording Magoon the opportunity to attend. It is well settled that a pro se inmate has no absolute right to attend a court proceeding in a civil matter. Bilby v. Thomas, 40 S.W.3d 166, 168 (Tex. App.-Texarkana 2001, no pet. h.); Brewer v. Taylor, 737 S.W.2d 421, 423 (Tex. App.-Dallas 1987, no writ). Magoon may not be denied access to the courts, however, merely because he is an inmate. Hudson v. Palmer, 468 U.S. 517, 523 (1984); Pruske v. Dempsey, 821 S.W.2d 687, 689 (Tex. App.-San Antonio 1991, no writ). A balancing test is conducted when considering an inmate's right to appear. Brewer, 737 S.W.2d at 423- 24. Courts weigh the preservation of the correctional system's integrity against the prisoner's right of access in an effort to achieve a fundamentally fair result. Id. Review of trial court decisions on this issue is conducted according to an abuse of discretion standard. Id. at 424.

An abuse of discretion occurs when the inmate has been essentially barred from presenting his case to the trial court. Thomas, 40 S.W.3d at 169; Pruske, 821 S.W.2d at 688-89. This was not the case here. Magoon filed a lengthy and detailed petition in the trial court. He referenced prospective witnesses and recited to the court what his evidence would show at trial. There was more than enough information at the trial court's disposal to make a determination on the merits of his claim.

More importantly, Magoon's petition lacked the requisite affidavit showing his compliance with the grievance system established in the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. 14.003, 14.005 (Vernon 2001). Although Magoon's complaints are based on the appellees' alleged violations of the prison classification policies, Magoon did not seek to redress his grievances through the prison grievance system. The Texas Department of Criminal Justice's ("TDCJ's") system to resolve inmate grievances must be exhausted before Magoon can file suit. Tex.Gov't Code Ann. 501.008 (Vernon 1998). The TDCJ inmate grievance procedure specifically applies to Magoon's complaints about the application and alteration of inmate classification policies, the perceived futility of the grievance procedure, and alleged retaliation against inmates for filing grievances or lawsuits. The trial court did not abuse its discretion in dismissing Magoon's suit as Magoon failed to exhaust his administrative remedies. Birdo v. Schwartzer, 883 S.W.2d 386, 388 (Tex. App.-Waco 1994, no writ); Pedraza v. Tibbs, 826 S.W.2d 695, 699 (Tex. App.-Houston [1st Dist.] 1992, writ dism'd w.o.j.). Magoon's second point of error is overruled.

Conclusion

The trial court's judgment is affirmed.

Phil Hardberger, Chief Justice

DO NOT PUBLISH