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Catland v. Blackwell

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 30, 2017

PETER CATLAND, Appellant,
v.
MARTHA BLACKWELL, KENDRA LONG, ISAAC KWARTENG, WILLIE JARRETT, AND JOSE CHAPA, Appellees.

         On appeal from the 343rd District Court of Bee County, Texas.

          Before Justices Rodriguez, Contreras, and Benavides

          MEMORANDUM OPINION

          DORI CONTRERAS Justice.

         Appellant, Peter Catland, an inmate proceeding pro se and in forma pauperis, appeals from an order dismissing his lawsuit against five employees of the Texas Department of Criminal Justice, Correctional Institution Division (TDCJ), Martha Blackwell, Kendra Long, Isaac Kwarteng, Willie Jarrett, and Jose Chapa, [1] as frivolous.[2]See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (West, Westlaw through Ch. 49, 2017 R.S) (Inmate Litigation statute). Appellant did not sue the TDCJ. By a single issue, appellant contends the trial court erred in dismissing his lawsuit as frivolous. We affirm.

         I. Background

         Appellant filed his original petition with the district court asserting that appellees unlawfully appropriated $100 from his inmate trust fund as a medical co-payment. Appellant also asserted that appellees committed fraud by falsely representing that he was required to pay the fee because he was not a chronic care allergy patient and was therefore not entitled to the exemption applicable to chronic care allergy patients. In response, the Office of the Attorney General (OAG) filed an amicus curiae advisory, in which it argued that the trial court had not abused its discretion in dismissing appellant's claims as frivolous. The advisory urged that appellant's lawsuit should be dismissed because: (1) appellant only named Long in his Step One and Step Two grievance procedures and thus failed to exhaust his administrative remedies as to the other four appellees; (2) appellant's claims have no arguable basis in law because under section 101.106 of the civil practice and remedies code, appellant's suit could have been brought against TDCJ, and is therefore a suit against an employee in the employee's official capacity only, see id. § 101.106(f) (West, Westlaw through Ch. 49, 2017 R.S.); and (3) appellant's claims are claims against appellees in their official capacity, and are therefore barred by sovereign immunity. The trial court dismissed appellant's claims as frivolous pursuant to chapter 14 of the civil practice and remedies code. See id. §§ 14.001-.014. This appeal followed.

         II. Standard of Review and Applicable Law

         Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate litigation in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate. See id. 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. Id. § 14.003(b). The trial court has broad discretion to dismiss an inmate's claim as frivolous. Spurlock v. Schroedter, 88 S.W.3d 733, 736 (Tex. App.-Corpus Christi 2002, no pet.). Generally, we review a trial court's dismissal of a lawsuit under chapter 14 for an abuse of discretion. In re Douglas, 333 S.W.3d 273, 293 (Tex. App.-Houston [1st Dist.] 2010, pet. denied). However, when, as here, a trial court dismisses a claim as frivolous without a hearing, the issue on appeal is limited to whether the claim had no arguable basis in law. Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.-Houston [1st Dist.] 2002, no pet.). This is a legal issue which we review de novo. Id.

         In reviewing the pleadings, we take the inmate's allegations as true and must determine "whether, as a matter of law, the petition stated a cause of action that would authorize relief." Brewer v. Simental, 268 S.W.3d 763, 770 (Tex. App.-Waco 2008, no pet.). We review pro se pleadings "by standards less stringent than those applied to formal pleadings drafted by lawyers." Id. A claim has no arguable basis in law only if it is based on (1) wholly incredible or irrational factual allegations, or (2) an indisputably meritless legal theory. Nabelek v. Dist. Attorney of Harris Cnty., 290 S.W.3d 222, 228 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). An inmate's claim may not be dismissed merely because the court considers the allegations "unlikely." Id. The judgment of the trial court will be affirmed if that judgment can be upheld on any reasonable theory supported by the evidence. Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex. App.-Fort Worth 2010, no pet.).

         III. Discussion

         Appellant's claims against appellees Blackwell, Kwarteng, Jarrett, and Chapa must be dismissed because appellant failed to exhaust his administrative remedies against them. As noted, appellant exhausted his administrative remedies only against appellee Long by naming her in his Step One and Step Two grievances. Appellant named appellee Blackwell in his Step Two grievance, but failed to name her in his Step One grievance. Appellant did not name any of the other three appellees in either grievance procedure, nor did he identify in his petition any specific allegedly wrongful acts or omissions attributable to them.

          Section 501.008 of the Texas Government Code establishes a statutory requirement that inmate grievance procedures be exhausted against all named parties before a subsequent suit is initiated in court. Tex. Gov't Code Ann. § 501.008(d) (West, Westlaw through Ch. 49, 2017 R.S.). Section 14.005 of the civil practice and remedies code allows the trial court to ensure that an inmate proceeding in forma pauperis has first exhausted the grievance procedure, if applicable. See Smith v. Tex. Dep't of Crim. Justice-Inst'l Div., 33 S.W.3d 338, 341 (Tex. App.-Texarkana 2000, pet. denied). A trial court shall dismiss a claim if an inmate fails to exhaust the grievance procedures and fulfill all procedural requirements prior to filing a claim. Tex. Civ. Prac. & Rem. Code Ann. § 14.005. An inmate has not exhausted the grievance procedures for individuals named in his petition who were not named in his grievance. See Leachman v. Dretke, 261 S.W.3d 297, 311 (Tex. App.-Fort Worth 2008, no pet.) (holding that, to satisfy the exhaustion requirement of section 14.005, an inmate must file both a Step 1 and a Step 2 grievance against each defendant); see also Riddle v. TDCJ-ID, No. 13-05-054-CV, 2006 WL 328127, at *2 (Tex. App.-Corpus Christi Feb. 9, 2006, pet. denied) (mem. op.). Here, appellant failed to exhaust his administrative remedies as to appellees Blackwell, Kwarteng, Jarrett, and Chapa, and the trial court did not err in dismissing appellant's claims against them as frivolous.

         As to appellee Long, appellant asserted that a $100 annual health care service fee was "unlawfully appropriated" from his trust fund account. Appellant contended that he was exempt from paying the $100 fee because he was a "chronic care" allergy patient with a documented medical history of treatment for allergies. Appellant contended that Long failed to review his medical history of prior visits. In his petition, appellant characterized his theft claim as a violation of the Theft Liability Act (TLA). See Tex. Civ. Prac. & Rem. Code Ann. § 134.001-.005 (West, Westlaw through Ch. 49, 2017 R.S.). Appellant also asserted that appellees committed fraud by falsely representing that he was not entitled to an exemption for the annual health care service fee.

         A suit against an employee of a government agency that is based on acts within the general scope of the agency's employment relationship is the equivalent of a suit against the agency's employee in his official capacity regardless of whether the defendant can recover on the claim. See Franka v. Velasquez, 332 S.W.3d 367, 382 n.68 (Tex. 2011). In this case, the trial court apparently concluded that appellant was seeking to sue Long under the TLA for activities that allegedly occurred that fell within the scope of her employment as a TDCJ employee. However, the TLA does not include a waiver of immunity for a state agency of the agency's employees for conduct that was within the course of the employees' employment. See Lopez, 414 S.W.3d at 896. ...


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