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Morgan v. Varghese

Court of Appeals of Texas, Second District, Fort Worth

May 24, 2018

LARRY JOE MORGAN APPELLANT
v.
BENSON VARGHESE APPELLEE

          FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 342-285895-16

          PANEL: SUDDERTH, C.J.; WALKER and KERR, JJ.

          MEMORANDUM OPINION [1]

          ELIZABETH KERR JUSTICE

         Inmate Larry Joe Morgan sued Benson Varghese-a former Tarrant County Assistant Criminal District Attorney who helped prosecute Morgan for aggravated assault with a deadly weapon-for various torts and penal-code violations. Varghese successfully moved to dismiss Morgan's suit under chapter 14 of the Texas Civil Practice and Remedies Code. Morgan has appealed, asserting that the trial court abused its discretion by (1) dismissing his suit in violation of his constitutional rights; (2) dismissing his suit with prejudice without giving him the opportunity to amend; and (3) denying his request for discovery. We will affirm.

         Background

         In 2013, a Tarrant County jury convicted Morgan of aggravated assault with a deadly weapon, found the enhancement paragraph alleged in the indictment true, and assessed punishment at 20 years' confinement. Morgan v. State, No. 07-13-00136-CR, 2014 WL 2553376, at *1 (Tex. App.-Amarillo June 4, 2014, pet. ref'd) (mem. op., not designated for publication). Morgan's conviction was affirmed on appeal. Id.

         In 2016, Morgan brought this suit in civil court, suing Varghese for damages based on violations of Texas Penal Code sections 15.01-.03, 32.42, 32.46-.48, 32.51, 37.09-.10, 37.12, 38.16, and 39.06 and claims for fraud, collusion, conspiracy, prosecutorial vindictiveness, tampering with or fabricating physical evidence that is not work product, tampering with governmental records, deceptive business records, and altering trial records. All of Morgan's claims arise from Varghese's actions as prosecutor in Morgan's 2013 case. He claims that Varghese tampered with evidence in his criminal trial, altered the record to cover up the lead prosecutor's misconduct, failed to allow Morgan to review the record from the trial, and failed to disclose exculpatory evidence in violation of Brady v. Maryland.[2] Morgan further alleges that Varghese colluded with the lead prosecutor, Morgan's trial and appellate counsel, and the court reporter to secure his conviction.

         Varghese moved to dismiss Morgan's claims under civil practice and remedies code section 14.003, arguing that they are frivolous or malicious because (1) they are substantially similar to Morgan's previous claims against the lead prosecutor, Morgan's former criminal appellate counsel, and Tarrant County that were dismissed as frivolous or malicious, and (2) they have no basis in law or fact because (a) they are barred by Heck v. Humphrey, [3] (b) Varghese is protected by absolute prosecutorial immunity, and (c) limitations has expired. See Tex. Civ. Prac. & Rem Code Ann. § 14.003(a)(2), (b)(2), (b)(4) (West 2017). After a nonevidentiary hearing, the trial court granted Varghese's motion without specifying the grounds upon which it relied and dismissed Morgan's claims with prejudice.

         Dismissal of Frivolous or Malicious Claims under Chapter 14

         Chapter 14 permits a trial court to dismiss an indigent inmate's claim if the court finds that the claim is frivolous or malicious. See id. §§ 14.002, .003(a)(2) (West 2017). In making this determination, the trial 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 fact, (3) it is clear that the inmate cannot prove facts to support the claim, or (4) the claim is substantially similar to a previous claim filed by the inmate because it arises from the same operative facts. Id. § 14.003(b).

         When, as here, the trial court's order dismissing an indigent inmate's claims does not state the grounds on which the trial court granted dismissal, the inmate must challenge all independent bases or grounds that support the dismissal. See Conley v. Tex. Bd. of Criminal Justice, No. 03-08-00239-CV, 2010 WL 1632972, at *1-2 (Tex. App.-Austin Apr. 22, 2010, no pet.) (mem. op.); see also Summers v. State of Tex. Dep't of Criminal Justice, 256 S.W.3d 752, 755 (Tex. App.-Beaumont 2008, no pet.) ("When the trial court's order dismissing an indigent inmate's claims does not state the grounds on which the trial court granted the dismissal, the inmate must show on appeal that each of the grounds alleged in the respective motion to dismiss is insufficient to support the trial court's order."). If an independent ground fully supports the complained of judgment, but the inmate assigns no error to that independent ground, we must accept the validity of that unchallenged independent ground and affirm the dismissal. See Conley, 2010 WL 1632972, at *1; see also Shirley v. Butcher, No. 06-16-00089-CV, 2017 WL 1538164, at *2-3 (Tex. App.-Texarkana Apr. 27, 2017, pet. denied) (mem. op.); Douglas v. Porter, No. 14-10-00055-CV, 2011 WL 1601292, at *3 (Tex. App.-Houston [14th Dist.] Apr. 26, 2011, pet. denied) (mem. op); Hall v. Treon, 39 S.W.3d 722, 724 (Tex. App.-Beaumont 2001, no pet.).

         Dismissal of Morgan's Claims with Prejudice

         In his first issue, Morgan asserts that the trial court's granting Varghese's motion violated his First, Fifth, Sixth, Seventh, Eighth, Ninth, and Fourteenth Amendment rights. In support, Morgan reasserts some of the same allegations made in his petition. But even liberally construing Morgan's arguments, Morgan has failed to challenge any of the independent grounds on which Varghese moved to dismiss Morgan's claims-that they are frivolous or malicious because (1)they are substantially similar to Morgan's previous claims arising out of the same operative facts that have been dismissed as frivolous or malicious and (2)they have no basis in law or fact because they are barred by Heck, Varghese's prosecutorial immunity, and limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2), (b)(2), (b)(4). Because Morgan has failed to challenge any of these independent grounds for dismissal, we must accept their validity and affirm the trial court's dismissal. See Shirley, 2017 WL 1538164, at *2-3; Douglas, 2011 WL 1601292, at *3; Conley, 2010 WL 1632972, at *2; Hall, 39 S.W.3d at 724. We therefore overrule his first issue.

         In his second issue, Morgan contends that the trial court abused its discretion by dismissing his claims with prejudice without first giving him the chance to amend his petition. As Morgan points out, a trial court's dismissal with prejudice is a ruling on the merits and is therefore improper if the dismissal is based on chapter 14 filing defects that the inmate can fix.[4]See Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App.-Beaumont 2011, no pet.) (holding trial court erred by dismissing suit with prejudice for failure to file trust-account statement required by civil practice and remedies code sections 14.004(c) and 14.006(f)); Thomas v. Knight, 52 S.W.3d 292, 295-96 (Tex. App.-Corpus Christi 2001, pet. denied) (holding trial court erred by dismissing suit with prejudice for failure to file an adequate affidavit of previous lawsuits required by civil practice and remedies code section 14.004), cert. denied, 537 U.S. 890 (2002). See generally Peña v. McDowell, 201 S.W.3d 665, 665-66 (Tex. 2006) (stating that dismissal with prejudice inappropriate when an inmate's failure to comply with section 14.004 could be corrected by amended pleading); Hamilton v. Williams, 298 S.W.3d 334, 340 (Tex. App-Fort Worth 2009) (pet. denied) ("A dismissal with prejudice is a ruling on the merits and is therefore improper if the trial court's dismissal is based on procedural defects that the inmate can remedy."). But if the claim has no arguable basis in law, then dismissal with prejudice is appropriate. Hamilton, 298 S.W.3d at 340. When reviewing whether a trial court abused its ...


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