Edwin H. Witherspoon, TDCJ #101798 v. Gary L. Johnson, et al.--Appeal from 38th Judicial District Court of Medina County

MEMORANDUM OPINION
No. 04-06-00403-CV
Edwin H. WITHERSPOON,
Appellant
v.
Gary L. JOHNSON, Jackie Gotthardt, Brenda Hughes, Dorothy Ingram,
and Samuel Samora, all in their Official and Individual Capacities,
Appellees
From the 38th Judicial District Court, Medina County, Texas
Trial Court No. 04-01-16763-CV
Honorable Antonio G. Cantu, Judge Presiding

Opinion by: Steven C. Hilbig, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: October 31, 2007

 

AFFIRMED

Edwin H. Witherspoon appeals the trial court's judgment dismissing his suit against several Texas Department of Criminal Justice employees on the ground the claims were frivolous. Because we conclude Witherspoon's claims have no arguable basis in law, we affirm.

Background

Witherspoon's petition alleged the defendants retaliated against him for his filing grievances and a lawsuit against Texas Department of Criminal Justice - Institutional Division employees. The alleged retaliation consisted of the defendants confiscating Witherspoon's property, including legal materials, and initiating a disciplinary proceeding against him for possession of contraband. Witherspoon alleged the property was not contraband within the meaning of prison regulations and that defendants intentionally misconstrued the regulations to find him guilty. Witherspoon also alleged one of the defendants kept some property that should have been returned to him.

Witherspoon filed a pro se lawsuit pursuant to 42 U.S.C. 1983 against the executive director of the Texas Department of Criminal Justice and four Department employees in their official and individual capacities. As his causes of action, Witherspoon pled:

6.01 Plaintiff alleges as his cause of action, that the defendants deprived him of his rights under the First, Eighth, and Fourteenth Amendment [sic] to the U.S. Const. by conspiring and retaliating against him for filing internal greivances [sic] and a suit in state court complaining of prison condition [sic] and staff misconduct.

6.02 Defendants acting under color of state law, violated plaintiff's right to be free from cruel and unusual punishment and acts of reprisal for complaining of health hazards and staff misconduct, when said defendats [sic] knowingly and intentionally, and in bad faith and reckless disregard of plaintiff's health, safety, and well being, acted in a concerted and unlawfull [sic] manner by willfully conspiring to contrive false disciplinary actions against the plaintiff, and as a result therof [sic], caused the plaintiff to undergo humiliation, undue punishment, imminent fear for his life, and a chilling effect of [sic] his right to exercise access to the court.

Witherspoon sought "expungement of disciplinary case # 20030299768, to include records that might prejudice plaintiff at parole hearings, unit classification hearings, and grievance denials in appeals/response from his prison record and all punishment of good time restored;" punitive and exemplary damages; a "declaratory judgment in the sum of $2,500.00" for deprivation of his constitutional rights; and attorney's fees and interest. The defendants filed a motion to dismiss pursuant to section 14.003 of the Texas Civil Practice and Remedies Code, alleging Witherspoon's claims are frivolous because they lack any arguable basis in law. The trial court granted the motion and dismissed the case.

Applicable Law and Standard of Review

Witherspoon's lawsuit was filed without prepayment of costs. Accordingly, it is governed by Chapter 14 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. 14.002 (Vernon 2002). A trial court may dismiss a suit filed by an indigent inmate if the court finds the claim is frivolous because it has no arguable basis in law. Id. 14.003(a)(2), (b)(2). We review the trial court's dismissal for abuse of discretion. Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex. App.-San Antonio 2002, pet. denied). A trial court abuses its discretion when it acts without reference to guiding rules or principles of law. Id.

Discussion

On appeal, Witherspoon contends his petition stated viable claims "for monetary and declaratory relief for the unlawful appropriation of his property and violations of his First, Eighth, and Fourteenth Amendments of the United States Constitution." We disagree.

1. Claims against defendants in their official capacities. Witherspoon's section 1983 claims against the defendants in their official capacities were properly dismissed because officers of the State acting in their official capacities are not "persons" for the purposes of section 1983. Texas Dep't. of Pub. Safety v. Petta, 44 S.W.3d 575, 581 (Tex. 2001) (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989)).

2. Access to the courts. To state a claim for unconstitutional denial of access to the courts, an inmate must allege that the unconstitutional conduct "hindered his efforts to pursue a legal claim" and that he suffered "actual injury" as a result of the conduct. Romero v. Vaughn, No. 04-03-00649-CV, 2004 WL 1195714, at *2 (Tex. App.-San Antonio Jun. 2, 2004, pet. denied) (mem. op.) (citing Lewis v. Casey, 518 U.S. 343, 351-52 (1996)). Witherspoon's petition alleged only that the confiscated property would have aided him in his pending cases and that the defendants' conduct had "a chilling effect of [sic] his right to exercise access to the court." These allegations, if true, fail to allege any harm or legal prejudice that would support the claim. Because Witherspoon failed to allege any actual denial of access to a court or any legal prejudice as a result of the confiscation of his property, he failed to state a claim for unconstitutional denial of access to the courts. See id.; Aguilar v. Chastain, 923 S.W.2d 740, 744 (Tex. App.-Tyler 1996, writ denied); Johns v. Johnson, No. 10-03-00388-CV, 2005 WL 428465, at *2 (Tex. App.-Waco Feb. 23, 2005, no pet.) (mem. op.)

3. Retaliation. "[T]to successfully allege a claim of retaliation, a litigant must demonstrate in his pleadings that his protected conduct was a substantial motivating factor in the defendant's conduct. . . . A claimant must show that, but for the retaliatory motive, the incidents to which he refers would not have taken place. . . . Conclusory allegations without a specific factual basis are insufficient to state a claim of retaliation." Aguilar, 923 S.W.2d at 744 (citations omitted). Witherspoon's petition contains only the conclusory allegation that the search of his cell and subsequent disciplinary proceeding were conducted in retaliation for his filing grievances and a lawsuit. The trial court therefore did not abuse its discretion in concluding the retaliation claim was frivolous. See id. (holding allegation in petition that legal papers were destroyed in retaliation for appellant's participation in a federal civil rights suit was insufficient to state a claim for unconstitutional retaliation).

4. Violation of rights under Eighth Amendment. In his petition Witherspoon alleged the defendants' misinterpretation of the disciplinary rule resulted in "unwarranted punishment" that was "cruel and unusual" and that he was "moved to a lessed [sic] privileged area placing him in a more volatile environment." On appeal, Witherspoon only conclusorily states that the defendants violated his rights under the Eighth Amendment. His brief contains no argument as to how any of the conduct alleged in the petition arguably violated his Eighth Amendment rights. By failing to brief the issue, Witherspoon has waived it. See Tex. R. App. P. 38.1(g), (h); Gardner v. Gardner, 229 S.W.3d 747, 756 (Tex. App.-San Antonio 2007, no pet.); Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex. App.-El Paso 2006, no pet.). Moreover, the allegations in the petition are insufficient as a matter of law. To state an Eighth Amendment claim, an inmate must allege that prison officials knew of and disregarded an excessive risk to the inmate's health or safety and that the prison officials' acts or omissions resulted in an objectively serious deprivation. See Farmer v. Brennan, 511 U.S. 825 (1994); Davis v. Scott, 157 F.3d 1003, 1006 (5th Cir. 1998). Witherspoon did not allege facts rising to the level of an "extreme deprivation of any 'minimal civilized measure of life's necessities.'" Davis, 157 F.3d at 1006 (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)).

5. Violations of the Texas Theft Liability Act. Witherspoon contends in his brief that he is entitled to pursue a claim for the theft of his property under the Texas Theft Liability Act. See Tex. Civ. Prac. & Rem. Code 134.001 et seq. (Vernon 2005). However, Witherspoon did not plead a cause of action under the Act nor did his petition include a prayer for compensatory damages resulting from an alleged theft. Accordingly, the issue of whether the Act may provide Witherspoon a ground for relief was not before the trial court and is not properly before us.

6. Denial of equal protection of the laws. Witherspoon also raises, for the first time on appeal, a contention that the defendants' conduct violated his right to equal protection of the laws. Because Witherspoon's petition does not contain an equal protection claim, we do not address it.

7. Denial of procedural due process. Witherspoon next contends he was not afforded "procedures that ensure[d] [his] property right [was] not arbitrarily abrogated," in violation of the Due Process Clause of the Fourteenth Amendment. However, common law tort claims as well as the Texas Theft Liability Act provide adequate postdeprivation remedies for negligent or intentional deprivations of property by state employees. Accordingly, Witherspoon's allegations do not state a claim for the violation of the procedural requirements of the Due Process Clause. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Romero, 2004 WL 1195714, at *2.

8. Unlawful appropriation of property in violation of right to substantive due process. Finally, Witherspoon contends the prison employees violated his right to substantive due process by confiscating his legitimately-obtained property, contriving a disciplinary case against him for possession of contraband, and finding him guilty by misconstruing and disregarding prison policy. His petition seeks expunction of all records of the disciplinary case and restoration of all good time. Witherspoon's contentions necessarily imply the invalidity of the guilty finding in the disciplinary proceeding. However, Witherspoon may not collaterally attack that guilty finding by means of a section 1983 suit. See Edwards v. Balisok, 520 U.S. 641, 646-48 (1997); Heck v. Humphrey, 512 U.S. 477, 485-87 (1994); Thomas v. Bynum, No. 04-02-00036-CV, 2003 WL 553277, at *2 (Tex. App.-San Antonio Feb. 28, 2003, no pet.) (mem. op.); Spellmon v. Collins, 970 S.W.2d 578, 582-83 (Tex. App.-Houston [14th Dist.] 1998, no pet.); see also See Harrison v. Texas Dep't of Criminal Justice - Institutional Div., 164 S.W.3d 871, 876-77 (Tex. App.-Corpus Christi 2005, no pet.) (inmate could not obtain judicial review of prison disciplinary decision or obtain expunction of disciplinary record in suit claiming disciplinary procedures violated his constitutional rights).

Conclusion

Witherspoon did not plead any claims against the defendants that have an arguable basis in law. Accordingly, the trial court did not abuse its discretion in finding the claims were frivolous and dismissing Witherspoon's suit. We affirm the trial court's judgment.

 

Steven C. Hilbig, Justice