Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 343rd District Court of Bee County, Texas.
Justices Rodriguez, Contreras, and Benavides
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,  as frivolous.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.
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.
Standard of Review and Applicable Law
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.
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.).
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
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
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.
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. ...