Jimmy Lee Hickson v. Ferguson, Co. III Officer, et al.--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-94-014-CV

JIMMY LEE HICKSON,

Appellant

v.

FERGUSON, CO. III OFFICER, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 28,259

O P I N I O N

Jimmy Lee Hickson is an inmate of the Texas Department of Criminal Justice, Institutional Division, assigned to the Hughes Unit at Gatesville. He named five individuals, who are employed by the Department, in a suit filed in the District Court of Coryell County. The suit was filed on December 27, 1993, and dismissed by the court on January 11, 1994, on the grounds that it had no basis in law or in fact. Because we conclude that the trial court did not abuse its discretion in dismissing the action against the named defendants, we affirm.

Suits by Indigents

The Texas Rules of Civil Procedure allow an indigent person to file an in forma pauperis suit. Tex. R. Civ. P. 145. This type of suit can be dismissed, however, under section 13.001(a)(2) of the Texas Civil Practice and Remedies Code if the action is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. 13.001(a)(2) (Vernon Supp. 1994). The trial court has broad discretion under this section. McDonald v. Houston Dairy, 813 S.W.2d 238, 239 (Tex. App. Houston [1st Dist.] 1991, no writ). Among the factors it can consider is whether the suit has no arguable basis in law or fact. Tex. Civ. Prac. & Rem. Code Ann. 13.001(b)(2). Because pro se prisoner complaints are notoriously difficult to decipher, we must liberally interpret Hickson's pleading. See Spellmon v. Sweeney, 819 S.W.2d 206, 209 (Tex. App. Waco 1991, no writ) (citing Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986)).

Standard of Review

We review a dismissal under section 13.001 by determining whether the court abused its discretion. See Tex. Civ. Prac. & Rem. Code Ann. 13.001; Johnson v. Peterson, 799 S.W.2d 345, 347 (Tex. App. Houston [14th Dist.] 1990, no writ). Abuse of discretion is determined by whether the court acted without reference to any guiding principles. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939). Stated another way: Was the act of the court arbitrary or unreasonable? Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1982); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex. 1970). That an appellate court might have decided a matter within the trial judge's discretion in a different manner does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959).

Section 1983 Claims

Section 1983 imposes liability on "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . ." 42 U.S.C.A. 1983 (West 1981). Hickson asserted in his petition that Section 1983 was violated when the individuals conspired under color of state law "to deprive Plaintiff of his liberty interest in not having false statements, reports and evidence presented at [his] prison disciplinary hearing . . . ." He alleges that he was disciplined for refusing to work when he had a legitimate reason for refusing. Thus, he reasons, the process by which he was disciplined was arbitrary and capricious.

Denial of Equal Protection

Relying on the same factual allegations, Hickson asserted that he was denied equal protection under the U.S. Constitution, when the individuals "failed to protect [him] from the arbitrary action by other employees," "failed to correct mistreatment," and "allowed other prison officials to conduct such practices not authorized by the department and/or State law."

Review Of This Dismissal

Recognizing 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 will review the dismissal to see if Hickson's claims had an arguable basis in law and in fact. See Tex. Civ. Prac. & Rem. Code Ann. 13.001(b)(2); Neitzke v. Williams, 490 U.S. 319, 324, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338 (1989); Ross v. Walsh, 629 S.W.2d 823, 826 (Tex. App. Houston [14th Dist.] 1982, no writ).

Copies of prison records are attached to Hickson's petition. They show that the dispute over his refusal to work was the subject of an "informal resolution" procedure on October 11, 1993. On October 12, he filed an "Inmate Grievance Form" that alleged he was denied the right to an "impartial hearing body" and that "a legitimate reason was presented to the hearing captain" which was ignored. His grievance was heard on October 14 and was denied by the Warden. The Regional Director thereafter reviewed the grievance and denied the appeal. The Deputy Regional Director further reviewed the appeal and concluded that the grievance was "handled appropriately in accordance with department regulations and relevant court decisions."

Giving his original petition its most liberal construction, we hold that he failed to allege an arguable basis in fact for a cause of action against any of the defendants under the Section 1983 or based on equal protection under the federal constitution. Because the court could have concluded that the action's realistic chance of ultimate success was slight, it did not abuse its discretion when it dismissed the suit on that basis under section 13.001. See Tex. Civ. Prac. & Rem. Code Ann. 13.001.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 24, 1994

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