Joseph Johnson v. J. Ragan and TDCJ--Appeal from 278th District Court of Walker County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00009-CV

Joseph Johnson,

Appellant

v.

J. Ragan AND TDCJ,

Appellees

From the 278th District Court

Walker County, Texas

Trial Court No. 23561

MEMORANDUM Opinion

Joseph Johnson, a Texas inmate, filed an in forma pauperis lawsuit against correctional officer Jennifer Ragan and the executive director of the Texas Department of Criminal Justice Brad Livingston, alleging that Ragan confiscated one of Johnson s books entitled Our Sexuality. The trial court ordered the Attorney General to file an amicus curiae advisory addressing whether Johnson satisfied statutory requirements, obtain authority to represent Ragan and Livingston, and provide the last known address of any defendant that could not be located. The Attorney General was not able to obtain authority to represent Ragan, a former TDCJ employee, and advised the trial court of Ragan s last known address. Johnson filed a motion for default judgment against Ragan. The TDCJ filed an Amicus Curiae reply requesting dismissal of the suit. The trial court dismissed Johnson s suit as frivolous under Chapter 14 of the Civil Practice and Remedies Code. Johnson appeals, arguing that the trial court erred by: (1) dismissing the suit as frivolous; (2) denying the motion for default judgment; (3) allowing the TDCJ to file an untimely amicus curiae reply; (4) accepting the amicus curiae reply; (5) requesting that the Attorney General review the pleadings under Chapter 14; (6) not ordering that Johnson be able to obtain copies of his previous lawsuits; and (7) not making its own determination.[1] We affirm.

DISMISSAL AS FRIVOLOUS

Chapter 14 governs inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. 14.001-.014. (Vernon 2002). A trial court may dismiss a suit under Chapter 14 if it is frivolous and, in doing so, may consider whether: (1) the claim s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear that the party 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. Tex. Civ. Prac. & Rem. Code Ann. 14.003(a)-(b) (Vernon 2002).

We normally review a trial court s dismissal of an inmate s suit under Chapter 14 for abuse of discretion. See Powell v. Clements, 220 S.W.3d 138, 139 (Tex. App. Waco 2007, pet. denied). However, when, as here, the trial court determines without a hearing that a claim is frivolous, that decision may be affirmed on appeal only if the claim has no arguable basis in law. Long v. Tanner, 170 S.W.3d 752, 754 (Tex. App. Waco 2005, pet. denied) (citing Retzlaff v. Tex. Dep t of Crim. Justice., 94 S.W.3d 650, 653 (Tex. App. Houston [14th Dist.] 2002, pet. denied)). We review this issue de novo. Id. We take the allegations of the plaintiff s petition as true. Id. (citing Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268, 272 (Tex. App. Texarkana 2003, no pet.)). We examine the claims asserted and the relief requested to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief. Id. (quoting Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex. App. San Antonio 2002, no pet.)).

The trial court dismissed Johnson s suit as frivolous, without stating the specific grounds for dismissal. The TDCJ argued that Johnson s affidavit identifying previous lawsuits failed to comply with the requirements of section 14.004. See Tex. Civ. Prac. & Rem. Code Ann. 14.004 (Vernon 2002). If Johnson s affidavit was insufficient, the trial court could dismiss on that basis alone. See id. However, the trial court dismissed Johnson s suit with prejudice. A suit cannot be dismissed with prejudice on the basis that the plaintiff failed to comply with Chapter 14 s procedural requirements. See Hickman v. Adams, 35 S.W.3d 120, 124-25 (Tex. App. Houston [14th Dist.] 2000, no pet.).

Nevertheless, the TDCJ argues that the trial court properly dismissed the suit with prejudice because Johnson s substantive arguments also lack merit. Johnson argued that the TDCJ had no right to confiscate his property and did so in violation of TDCJ rules. He sought recovery under Government Code section 501.007, temporary and permanent injunctions, and a declaration that the TDCJ s actions were not justified.

Section 501.007 states:

The department may pay from the miscellaneous funds appropriated to the division claims made by inmates housed in facilities operated by the department for property lost or damaged by the division.

See Tex. Gov t Code Ann. 501.007 (Vernon 2004) (emphasis added). The TDCJ argues that this section does not apply to a claim for confiscation. We agree.

Damage constitutes [l]oss or injury to person or property. Black s Law Dictionary 416 (8th ed. 2004). An article is lost when it is beyond the possession and custody of its owner and not locatable by diligent search. Black s Law Dictionary 965 (8th ed. 2004). Johnson alleges that his book was confiscated. The term confiscate refers to the appropriation of property as forfeited to the government, or the seizure of property but authority of law and so does not comport with the definitions of either damage or loss . Black s Law Dictionary 319 (8th ed. 2004).[2]

Moreover, the TDCJ s response to Johnson s step-one grievance confirms that the book was not lost or damaged:

Your property claim was investigated. Officer J. Ragan denies your allegations stating that the book was confiscated due to being sexual in nature. You were given copies of the confiscation papers when your property was returned. She further states that on 06-26-06, she informed you via I-60, that you would not be allowed to make disposition on the book.

(Emphasis added).[3] [P]rison officials have broad administrative and discretionary authority over the institutions they manage and lawfully incarcerated persons retain only a narrow range of protected liberty interests. Johnson v. Lynaugh, 800 S.W.2d 936, 938-39 (Tex. App. Houston [14th Dist.] 1990, writ denied); see Thompson v. Mannix, 814 S.W.2d 811, 812 (Tex. App. Waco 1991, no writ). The trial court could have determined that the TDCJ was legally justified in confiscating Johnson s personal property. See Johnson, 800 S.W.2d at 938-39; see also Thompson, 814 S.W.2d at 812.

Accordingly, the trial court could properly determine that Johnson s suit had no arguable basis in law and properly dismissed his suit as frivolous. Because Johnson could not establish a probable right of recovery, he was not entitled to a temporary injunction. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) ( To obtain a temporary injunction, the applicant must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim ). Similarly, having failed to show that the TDCJ s conduct was wrongful, neither was he entitled to a permanent injunction. See Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass n, 25 S.W.3d 845, 849 (Tex. App. Houston [14th Dist.] 2000, pet. denied) ( injunctive relief may only be granted upon a showing of (1) the existence of a wrongful act; (2) the existence of imminent harm; (3) the existence of irreparable injury; and (4) the absence of an adequate remedy at law ). We overrule Johnson s first issue. For this reason, we need not consider Johnson s second issue.[4] See Gill v. Russo, 39 S.W.3d 717, 719 (Tex. App. Houston [1st Dist.] 2001, pet. denied) (motion for default judgment considered mootbecause the trial court had dismissed the suit).

AMICUS CURIAE

Issues three, four, five, and seven address the TDCJ s amicus curiae reply, specifically whether the reply was properly filed, accepted, and considered.

We do not agree with Johnson s contention that the amicus curiae reply was untimely filed. The trial court instructed the Attorney General to review the pleadings, determine whether Johnson s pleadings complied with Chapter 14, and file an amicus curiae advising the trial court as to whether Johnson s pleadings satisfied Chapter 14 s requirements.[5] The trial court did not place a time limit on this filing. Rather, the trial court imposed a sixty day time limit within which the Attorney General could file an answer and provide a statement of the last known address for any defendants that could not be located. Because the trial court did not impose a time limit on the filing of the advisory, it was not untimely filed, and the trial court properly accepted the filing.

Neither did the trial court err by requesting that the Attorney General review the pleadings for compliance with Chapter 14. The Attorney General is authorized to defend public servants. See Tex. Civ. Prac. & Rem. Code Ann. 104.004 (Vernon 2005). Trial courts have requested amicus curiae advisories from the Attorney General in numerous Texas cases. See Comeaux v. Tex. Dep t of Crim. Justice, 193 S.W.3d 83, 84-85 (Tex. App. Houston [1st Dist.] 2006, pet. denied); see also Mullins, 111 S.W.3d at 270-71; In re Smith, No. 01-05-00491-CV, 2007 Tex. App. Lexis 1153, at *2-3 (Tex. App. Houston [1st Dist.] Feb. 15, 2007, no pet.) (mem. op.); see also Aranda v. Goodrum, No. 14-05-00119-CV, 2006 Tex. App. Lexis 6949, at *1-2, 11 n.6 (Tex. App. Houston [14th Dist.] Aug. 3, 2006, no pet.) (mem. op.); Williams v. T.D.C.J., No. 01-00-01031-CV, 2002 Tex. App. Lexis 2094, at *1-2 (Tex. App. Houston [1st Dist.] Mar. 21, 2002, no pet.).

Finally, the record does not indicate that the trial court erroneously considered the reply or failed to make its own determination. Courts may entertain suggestions from an amicus curiae, who, as a friend of the court makes suggestionsto the court about questions apparent from the record in the case. See Kelley v. Scott, No. 14-01-00696-CV, 2003 Tex. App. Lexis 4528, at *3 (Tex. App. Houston [14th Dist.] May 29, 2003, no pet.) (mem. op.) (citing State v. The Jefferson Iron Co., 60 Tex. 312, 314-15 (1883), Moseby v. Burrow, 52 Tex. 396, 403 (1880), and Jackson v. Birk, 84 S.W.2d 332, 332 (Tex. Civ. App. Fort Worth 1935, no writ)). An amicus curiae is not a party to the suit and may only make suggestionsto the court; the court can only take actions that it could have taken in the absence of the suggestions from the amicus curiae. Id. at *3-4 (citing The Jefferson Iron Co., 60 Tex. at 314-15). The trial court was entitled to consider the suggestions made in the Attorney General s filings and could have reached the same decision even without those suggestions. [6] See Belton v. Conagra Poultry Co., 98 S.W.3d 729, 731 (Tex. App. Waco 2003, pet. denied) (trial court need not rely upon a motion of the defendant in order to exercise its discretionary power to dismiss under Chapter Fourteen ). We overrule Johnson s third, fourth, fifth, and seventh issues.

AMENDMENT

In his sixth issue, Johnson complains that the trial court erred by not ordering him to seek another form in trying to get a copy of his past law suits. He contends that he attempted to comply with Chapter 14 and should have been allowed an opportunity to comply. However, a trial court does not have a duty to suggest or recommend that an appellant amend his pleadings or affidavit to cure any defects prior to dismissing the suit. See Hickman, 35 S.W.3d at 125. As discussed above, having dismissed the suit with prejudice, the trial court could have granted dismissal on grounds other than compliance with Chapter s 14. We overrule Johnson s sixth issue.

Having overruled Johnson s seven issues, we affirm the trial court s judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray joins only the Court s judgment, and no part of the opinion)

Affirmed

Opinion delivered and filed March 5, 2008

[CV06]

[1] The TDCJ notes that Johnson s brief focuses on whether his affidavit of previous filings complied with Chapter 14; thus, the TDCJ argues that Johnson waived his remaining issues. However, we construe pro se pleadings liberally. See Tex. R. App. P. 38.1(e).

[2] A claim that property was wrongly confiscated is more akin to a claim for theft.

[3] Johnson s step two grievance was likewise denied.

[4] Johnson s brief asks us to hold that the TDCJ is not immune from suit. Even assuming that the TDCJ is not immune, Johnson s suit could properly be dismissed as frivolous.

[5] The document filed by the Attorney General is entitled an Amicus Curiae Reply to the Court s Order to Advise on Chapter Fourteen.

[6] For these reasons, we also reject Johnson s brief suggestion that the amicus curiae advisory shows a bias towards him and so violates due process.