Robert King Conway, Jr. v. Raynaldo Castro, Richard Thompson, Jason Heaton, Ronald Fox, Nelda Sanders and Martina Cordell--Appeal from 349th District Court of Anderson County

NO. 12-03-00373-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ROBERT KING CONWAY, JR.,   ' APPEAL FROM THE 349TH

APPELLANT

V.   ' JUDICIAL DISTRICT COURT OF

RAYNALDO CASTRO,

RICHARD THOMPSON, III,

JASON HEATON, RONALD FOX,

NELDA SANDERS AND   ' ANDERSON COUNTY, TEXAS

MARTINA CORDELL,

APPELLEES

MEMORANDUM OPINION

Robert King Conway, Jr. appeals from the dismissal of his in forma pauperis, pro se inmate suit against Appellees Raynaldo Castro, Richard Thompson III, Jason Heaton, Ronald Fox, Nelda Sanders, and Martina Cordell. Appellees are all employees of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). In three issues, Conway asserts the trial court erred in dismissing his suit. We affirm in part and reverse in part.

Background

Conway was notified that his craft shop privileges had been revoked and his craft shop property must be sent to someone outside the unit or it would be destroyed. He filed a grievance complaining of the procedure used. Unhappy with the response he received regarding his grievance, Conway filed a lawsuit pursuant to 42 U.S.C. ' 1983 alleging that Appellees= acts violated his right to procedural due process and equal protection as guaranteed by the Fourteenth Amendment of the United States Constitution and article I, section nineteen of the Texas Constitution. He also alleged that those acts constituted conversion. Conway sued Raynaldo Castro in both his official and individual capacities. He sued all other defendants only in their individual capacity. Without a hearing, the trial court found the claims to be frivolous or malicious. Pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code, the trial court dismissed the case with prejudice.

Chapter 14 Dismissal

In his first and second issues, Conway asserts the trial court abused its discretion by dismissing his case as frivolous or malicious because his case has merit. He argues that there is an arguable basis in law for his suit which is based on conversion and Section 1983.

Chapter 14 of the Civil Practice and Remedies Code applies to inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. '' 14.001-14.014 (Vernon 2002). A court may dismiss a suit brought pursuant to that chapter before or after process is served if the court finds that the claim is frivolous or malicious. Id. at ' 14.003(a)(2). In determining whether a claim is frivolous or malicious, the statute provides that the court 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.[1] Id. at ' 14.003(b). However, the supreme court has indicated that the only factor to be considered is whether there is an arguable basis in law or fact. See Johnson v. Lynaugh, 796 S.W.2d 705, 706 (Tex. 1990). When, as here, the trial court dismisses without a fact hearing, it could not have determined the suit had no arguable basis in fact. Harrison v. Texas Dep=t of Criminal Justice-Inst. Div., 915 S.W.2d 882, 887 (Tex. App.BHouston [1st Dist.] 1995, no writ). Therefore, we must consider whether the trial court properly determined there is no arguable basis in law for the suit. Id.

Review of a dismissal under Chapter 14 is generally controlled by the abuse of discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.BWaco 1996, no writ). However, the issue as to whether there is an arguable basis in law is a legal question that we review de novo. In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1993). We are to review and evaluate pro se pleadings by standards less stringent than those applied to formal pleadings drafted by lawyers. Denson v. T.D.C.J.-I.D., 63 S.W.3d 454, 459 (Tex. App.BTyler 1999, pet. denied). To determine whether the trial court properly decided there was no arguable basis in law for the plaintiff=s suit, we examine the types of relief and causes of action pleaded to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief. Jackson v. Texas Dep=t of Criminal Justice - Inst. Div., 28 S.W.3d 811, 813 (Tex. App.BCorpus Christi 2000, pet. denied). To have no arguable basis in law, a claim must be based on an indisputably meritless legal theory or the facts alleged must rise to the level of the irrational or wholly incredible. Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338 (1989); Gill v. Boyd Distrib. Ctr., 64 S.W.3d 601, 603 (Tex. App.BTexarkana 2001, pet. denied) (op. on reh=g).

 42 U.S.C.  ' 1983

A claim under Section 1983 requires that the conduct complained of: (1) was committed by a person acting under color of state law, and (2) deprived a person of privileges or immunities secured by the constitution or laws of the United States. Thomas v. Arthur, 836 S.W.2d 822, 823 (Tex. App.BTyler 1992, no writ). Actions against officials in their official capacities effectively are actions against the governmental unit of which the officials are employees or agents. Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985). Neither a state nor its officials acting in their official capacities are Apersons@ under Section 1983. Harrison, 915 S.W.2d at 889. Appellant=s allegations against Raynaldo Castro in his official capacity do not, as a matter of law, satisfy the first prong of a Section 1983 claim. Therefore, the court properly dismissed Conway=s Section 1983 claim against Raynaldo Castro in his official capacity. Id.

However, a Section 1983 claim will lie against state employees in their personal, rather than their official, capacity. Id. We must consider the pleadings to determine if Conway alleged a constitutional violation. See Thomas, 836 S.W.2d at 824 (Dismissal of inmate=s Section 1983 claim was proper where inmate failed to allege constitutional violation.). Conway complained that Appellees= actions, which permanently deprived him of his property, constituted both a due process violation and an equal protection violation. The due process clause is not invoked when an unauthorized, intentional act of a state prison official causes the loss of property if there is an adequate post-deprivation remedy, such as a suit for conversion. Hudson v. Palmer, 468 U.S. 517, 533-35, 104 S. Ct. 3194, 3204, 82 L. Ed. 2d 393 (1984); Myers v. Adams, 728 S.W.2d 771, 772 (Tex. 1987). As we shall discuss, Conway has just such an adequate post-deprivation remedy. Therefore, Conway does not have a cause of action for a due process violation under Section 1983.

To assert an equal protection claim, Appellant must establish two elements: 1) that he was treated differently than other similarly situated parties, and 2) that he was treated differently without a reasonable basis. Sanders v. Palunsky, 36 S.W.3d 222, 225 (Tex. App.BHouston [14th Dist.] 2001, no pet.). Conway alleged that his rights under the equal protection clause were violated because his property was taken pursuant to a Unit Policy that is arbitrary and capricious and not within the parameters of the established Administrative Directives of TDCJ-ID. He contends that state-created rights, implemented by the department, should not be infringed upon by one unit=s policy. In other words, he alleged that he, and other inmates in his unit, are treated differently from inmates in all other units where the department=s Administrative Directives are followed. He further alleged that his unit=s policy was arbitrary, without a reasonable basis. Under the less stringent standard applied to pro se pleadings, we conclude that Conway=s assertions are sufficient to raise a possible claim that has an arguable basis in law against all defendants in their individual capacities, under Section 1983, for a violation of his rights pursuant to the equal protection clause.

Conversion

Conway alleged that the actions of Appellees permanently deprived him of his personal property even though under TDCJ-ID rules, he is entitled to be only temporarily deprived of his property. Conversion is the wrongful exercise of dominion and control over another=s property in denial of or inconsistent with his rights. Johnson v. Brewer & Pritchard, PC, 73 S.W.3d 193, 210 n.44 (Tex. 2002). Under the less stringent standard applied to pro se pleadings, considering the facts set forth in Conway=s petition, we conclude he has stated a possible claim for conversion against all Appellees that has an arguable basis in law. We overrule in part, and sustain in part, Conway=s first and second issues.

Dismissal With Prejudice

In his third issue, Conway contends the trial court erred in dismissing his suit with prejudice. Dismissal with prejudice constitutes an adjudication on the merits and operates as if the case had been fully tried and decided. Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991). Generally, the proper remedy, when a court lacks subject matter jurisdiction, is to dismiss the case without prejudice. Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268, 274 (Tex. App.B Texarkana 2003, no pet.). However, when the error cannot be remedied, dismissal with prejudice is proper. See Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. App.BHouston [14th Dist.] 2000, no pet.). Here, Conway=s Section 1983 claim against Raynaldo Castro in his official capacity and his Section 1983 due process claims against all Appellees cannot be amended to remedy the error. Therefore, dismissal of these claims with prejudice was proper. Id. We overrule Conway=s third issue.

Conclusion

While facts unearthed during a hearing may reveal that Conway=s claims against Appellees are in fact frivolous, based on the pleadings alone, it cannot be said that all of Conway=s claims are indisputably meritless, irrational, or wholly incredible. The trial court erred in dismissing Conway=s suit based on equal protection violations and conversion before holding a fact-finding hearing, as the pleadings were sufficient to state possible causes of action on which relief could be granted.

We affirm the dismissal as to Conway=s Section 1983 claim against Raynaldo Castro in his official capacity and his Section 1983 claim for due process violations asserted against all Appellees in their individual capacity. We reverse the dismissal as to Conway=s Section 1983 claim for equal protection violations and his claim for conversion as to all Appellees. We remand this cause to the trial court for further proceedings consistent with this opinion.

JAMES T. WORTHEN

Chief Justice

Opinion delivered May 12, 2004.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(PUBLISH)

[1] We note that Conway met all the filing requirements of Chapter 14. His unsworn declaration relating to previous filings indicates he has not previously filed a claim arising from the same operative facts.