Keith Thomas v. Katrina L. Daniels, et al--Appeal from 85th District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00108-CV

Keith Thomas,

Appellant

v.

Katrina L. Daniels, et al.,

Appellees

From the 85th District Court

Brazos County, Texas

Trial Court No. 06-002644-CV

MEMORANDUM Opinion

Keith Thomas, a Texas inmate, filed an in forma pauperis lawsuit against various employees of the Texas Department of Criminal Justice. The TDCJ filed a motion to dismiss on grounds that Thomas failed to satisfy the amount-in-controversy requirement. The trial court granted the motion and further dismissed Thomas s suit as frivolous under Chapter 14 of the Civil Practice and Remedies Code. Thomas challenges the dismissal of his suit. We affirm.

SUBJECT MATTER JURISDICTION

Subject matter jurisdiction is essential to a court s authority to decide a case. See Tex. Ass n Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). There exists a $500 amount-in-controversy requirement for district-court subject matter jurisdiction. See Chapa v. Spivey, 999 S.W.2d 833, 836 (Tex. App. Tyler 1999, no pet.). The amount-in-controversy is determined by the plaintiff s petition. Picon Transp., Inc. v. Pomerantz, 814 S.W.2d 489, 490 (Tex. App. Dallas 1991, writ denied). Subject matter jurisdiction is reviewed de novo. See Mayhew v. Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

Thomas alleged that TDCJ employees confiscated legal materials, eight books, three magazines, two commissary bags, a fan, headphones, a radio, and a hot-pot.[1] In addition to nominal, compensatory, and exemplary damages, Thomas sought $500 for Legal Material and Personal Property.

The TDCJ argues that Thomas failed to provide a price or value for the property and that these items do not total $500. The TDCJ has not presented any evidence showing either the value of the confiscated property or that the value falls below the $500 requirement.[2] See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) ( when a defendant asserts that the amount in controversy is below the court s jurisdictional limit, the plaintiff s pleadings are determinative unless the defendant specifically alleges that the amount was pleaded merely as a sham for the purpose of wrongfully obtaining jurisdiction, or the defendant can readily establish that the amount in controversy is insufficient ); see also Westbrook v. Horton, No. 02-06-00169-CV, 2007 Tex. App. Lexis 3478, at *5-6 (Tex. App. Fort Worth May 3, 2007, no pet.) (mem. op.) ( Appellees did not offer jurisdictional evidence attempting to estimate the value of the books and mail that Westbrook alleged they confiscated or to show that the items value fell short of the district court s jurisdictional minimum ). Because Thomas pleaded damages in the amount of $500, the trial court improperly dismissed the suit based on subject matter jurisdiction.

CHAPTER FOURTEEN

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, considering 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 (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.[3] 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.)).

Thomas asserted causes of action based on 42 U.S.C. 1983, Civil Practice and Remedies Code 101.021, retaliation, negligence, and Texas Constitution art. I 13 and 19.[4] The TDCJ argues that Thomas s claims were properly dismissed because they have no arguable basis in law.

Section 1983

As the basis for his section 1983 claim, Thomas alleges that the confiscation of his property violates the Fourth, Fifth, and Fourteenth Amendments. The Due Process Clause is not violated when a prison official either negligently or intentionally deprives an inmate of property. See Aguilar v. Chastain, 923 S.W.2d 740, 743-44 (Tex. App. Tyler 1996, writ denied) (citing Daniels v. Williams, 474 U.S. 327, 328, 106 S. Ct. 662, 663, 88 L. Ed. 2d 662 (1986) and Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 3204, 82 L. Ed. 2d 393 (1984)). [D]eprivations of property caused by the misconduct of state officials do not infringe constitutional due process provided adequate state post-deprivation remedies exist. Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994). [T]he tort of conversion fulfills this requirement. Id. Moreover, section 501.007 of the Government Code provides an administrative remedy to inmates whose property has been lost or damaged. See Tex. Gov. Code Ann. 501.007 (Vernon 2004). Thomas s allegation that his property was confiscated does not give rise to asection 1983 claim.[5] See Murphy, 26 F.3d at 543-44; see also Aguilar, 923 S.W.2d at 743-44.

Tort Claims Act

Under section 101.021(1)(A) of the Tort Claims Act, a governmental unit is liable for property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment. Tex. Civ. Prac. & Rem. Code Ann. 101.021(1)(A) (Vernon 2005). Thomas alleged that his property was confiscated via the negligent use of a motor vehicle.

That his property was transferred via motor vehicle does not establish a causal nexus between the alleged confiscation and the operation or use of a motor vehicle. See LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992) (there must be a nexus between the injury negligently caused by a governmental employee and the operation or use of a motor-driven vehicle or piece of equipment ); see also Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003) ( operation or use of a motor vehicle does not cause injury if it does no more than furnish the condition that makes the injury possible ); Tex. Natural Res. Conservation Comm n v. White, 46 S.W.3d 864, 869 (Tex. 2001) (use of the vehicle must have actually caused the injury ). Section 101.021does not apply to Thomas s confiscation claim.

Retaliation

Thomas alleges that prison officials refused to return his property, forced him to stand in the hot sun, and instituted a disciplinary action against him in retaliation for seeking return of his property. However, [c]onclusory allegations without a specific factual basis are insufficient to state a claim of retaliation. Aguilar, 923 S.W.2d at 744. Thomas s allegations are insufficient to support a retaliation claim. See id (claim that damage and destruction of [defendant s] legal papers constituted retaliation for his participation in a federal civil rights suit insufficient to state a claim for retaliation).

Negligence

A confiscation claim is more akin to a claim for theft or conversion than negligence. See Johnson v. Ragan, No. 10-07-00009-CV, 2008 Tex. App. Lexis 1605, at *5 n.2 (Tex, App. Waco March 5, 2008, no pet. h.) (mem. op.) ( A claim that property was wrongly confiscated is more akin to a claim for theft ); see also Horton v. Froelich, No. 06-02-00089-CV, 2002 Tex. App. Lexis 6203, at *4 (Tex. App. Texarkana Aug. 27, 2002, no pet.) (not designated for publication) (allegation that prison official ordered inmate s property stolen may constitute conversion, but not negligence). Thomas s confiscation allegation is not properly raised as a negligence claim.

Texas Constitution

There is no private cause of action for damages based on violations of the Texas Constitution. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex. 1995). Thomas s claim based on article I, sections 13 and 19 of the Texas Constitution is improper.

In summary, the trial court could have concluded that Thomas s causes of action have no arguable basis in law. We cannot say that the trial court erred by dismissing Thomas s suit as frivolous under Chapter 14. We overrule Thomas s contention that his suit was improperly dismissed. The judgment is affirmed.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed May 14, 2008

[CV06]

[1] Thomas filed both an original petition and a first supplemental petition.

[2] The TDCJ points out that the attachments to Thomas s petition indicate that he did not have two commissary bags as alleged in his petition. However, this does not necessarily establish that the value of Thomas s property falls below $500.

[3] Thomas complains that his suit was dismissed without a hearing. However, the decision to hold a hearing on the dismissal of inmate litigation is within the trial court s discretion. Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App. Houston [1st Dist.] 2002, no pet.); see Tex. Civ. Prac. & Rem. Code Ann. 14.003(c) (Vernon 2002) (the court may hold a hearing when deciding whether to dismiss an inmate s claim as frivolous). The trial court did not err by dismissing the suit without a hearing.

[4] The trial court dismissed Thomas s suit on grounds that his realistic chance of ultimate success is slight, his claims have no arguable basis in law or in fact, and he cannot prove the facts supporting his claim. The court also noted Thomas s lengthy history of filing lawsuits against the TDCJ and its employees. With the exception of one pending suit, these previous filings have all been dismissed.

[5] Thomas also complains that his due process rights have been violated by prison officials failure to follow TDCJ policy. However, a prison official s failure to follow the prison s own policies, procedures or regulations does not constitute a violation of due process, if constitutional minima are nevertheless met. Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996). Constitutional minima are satisfied in this case because an adequate post-deprivation remedy is available. See id. at 94-96; see also Aguilar v. Chastain, 923 S.W.2d 740, 744 (Tex. App. Tyler 1996, writ denied); Murphy v. Collins, 26 F.3d 541, 543-44 (5th Cir. 1994).