Robert Adams v. Jack M. Garner, et al--Appeal from 52nd District Court of Coryell County

NO. 10-91-100-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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ROBERT ADAMS,

Appellant

v.

JACK M. GARNER, ET AL,

Appellees

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From 52nd Judicial District Court

Coryell County, Texas

Trial Court # 25,823

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O P I N I O N

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In this appeal we determine the propriety of a dismissal, under section 13.001 of the Civil Practice and Remedies Code, of a suit filed in forma pauperis. See Tex. Civ. Prac. & Rem. Code Ann. 13.001 (Vernon Supp. 1991).

Robert Adams, a prison inmate, brought a pro se action in forma pauperis against Jack M. Garner, Senion Warden of the Hughes Unit, Wayne Scott, Deputy Director of the Texas Department of Criminal Justice, Institutional Division (TDCJ), and Misty Smith, a corrections officer of the Hughes Unit, alleging "theories of negligence for violations of the

. . . Texas Theft Liability Act . . . Civil Practice and Remedies Code Chapter 134 and . . . Penal Code Chapter 39 for Abuse of Office." Before the defendants were served with process, the court dismissed the cause as being frivolous. See id. Adams complains that the court abused its discretion when it dismissed the cause before service of process. The judgment of dismissal will be affirmed.

Section 13.001 provides:

(a) A court in which an affidavit of inability to pay under Rule 145, Texas Rules of Civil Procedure, has been filed may dismiss the action on a finding that:

(1) the allegation of poverty in the affidavit is false; or

(2) the action is frivolous or malicious.

(b) In determining whether an action is frivolous or malicious, the court may consider whether:

(1) the action's realistic chance of ultimate success is slight;

(2) the claim has no arguable basis in law or in fact; or

(3) it is clear that the party cannot prove a set of facts in support of the claim.

(c) An action may be dismissed under Subsection (a) as frivolous or malicious either before or after service of process.

Id.

The court found "it is clear that the party cannot prove a set of facts in support of the claim." See id. at 13.001(b)(3). Because of recent federal decisions, a dismissal under section 13.001(b)(3) is no longer appropriate. See Neitzke v. Williams, 490 U.S. 319, , 109 S. Ct. 1827, 1834, 104 L. Ed. 2d 338 (1989); Pugh v. Parish of St. Tammany, 875 F.2d 436, 438 (5th Cir. 1989); Johnson v. Lynaugh, 800 S.W.2d 936, 938 (Tex. App. Houston [14th Dist.] 1990, writ granted). The federal counterpart of section 13.001 is section 1915(d) of Title 28, which authorizes federal courts to dismiss in forma pauperis suits "if t he allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." See 28 U.S.C.A. 1915(d) (West 1966). While the federal statute does not contain guidelines for determining when a suit is frivolous, a dismissal is proper if the claim has no arguable basis in law and fact. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir. 1989), cert. denied, U.S. , 110 S. Ct. 417, 107 L. Ed. 2d 382 (1989); Pugh, 875 F.2d at 438. The rationale behind granting this power to trial courts is to "prevent abusive or captious litigation" where the in forma pauperis litigant "lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Neitzke, 490 U.S. at , 109 S. Ct. at 1831, 104 L. Ed. 2d 338. "To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complainant's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Id. at , at 1833 (emphasis added). An example of an indisputably meritless legal theory occurs where the petition asserts claims against which the defendants are immune from suit. Id. An example of factually baseless contentions occurs where the petition describes claims arising out of fantastic or delusional scenarios. Id.

The court also specified that Adams's petition was dismissed because "the action's realistic chance of ultimate success [was] slight." See Tex. Civ. Prac. & Rem. Code Ann. 13.001(b)(1) (Vernon Supp. 1991). The petition alleged that the action was brought pursuant to chapter 134 of the Texas Civil Practice and Remedies Code and that he sustained damages because his broken glasses and a AA battery were confiscated. See id. at 134.001-134.005 (Vernon Supp. 1991). Without referring to any specific section, he also generally asserted that the defendants' acts violated the provisions of chapter 39 of the Penal Code. See Tex. Penal Code Ann. 39.01-39.04.

Section 13.001 provides that a court may dismiss a cause as frivolous before service of process if the action's realistic chance of success is slight. Tex. Civ. Prac. & Rem. Code Ann. 13.001(b)(1) (Vernon Supp. 1991). In evaluating the petition the court could have considered that the named defendants, as employees of the state, were entitled to quasi-judicial immunity from damages. See Johnson v. Peterson, 799 S.W.2d 345, 347 (Tex. App. Houston [14th Dist.] 1990, no writ). The court could also have concluded that the dispute essentially arose over whether the broken glasses were contraband, as defined by the administrative regulations of the prison, and that there was no substance to the allegations that their confiscation amounted to theft. Additionally, the court could also consider that Chapter 39 of the Penal Code creates no private rights of action its provisions are purely penal in nature. Thus, we conclude that the court did not abuse its discretion when it dismissed Adams's petition for the reason stated. See Johnson, 800 S.W.2d at 938; Tex. Civ. Prac. & Rem. Code Ann. 13.001 (Vernon Supp. 1991).

Recognizing that our Supreme Court has declined to "imply approval of a dismissal of an action based solely upon section 13.001(b)(1)," that the test applicable under the federal statute is the one enumerated in our statute as section 13.001(b)(2) ("a complaint . . . is frivolous where it lacks an arguable basis in law or in fact"), and that our duty is to affirm the dismissal if it was proper under any legal theory, we conclude that the dismissal of Adams's claims under 13.001(b)(2) would have been amply justified because the claim had no arguable basis in fact. See Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990); Ross v. Walsh, 629 S.W.2d 823, 826 (Tex. App. Houston [14th Dist.] 1982, no writ); Tex. Civ. Prac. & Rem. Code Ann. 13.001(b)(1), (2) (Vernon Supp. 1991). Because the dispute was essentially over the classification of the broken glasses as contraband, the court could have "pierced the veil" of Adams's factual allegations and concluded that the allegations were of the type whose factual contentions are clearly baseless. See Neitzke, 490 U.S. at , 109 S. Ct. at 1833, 104 L. Ed. 2d 338. We overrule Adams's point.

We affirm the judgment of dismissal.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 1, 1991

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