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Morgan v. Whitfield

Court of Appeals of Texas, Eighth District, El Paso

September 27, 2019

LARRY JOE MORGAN, TDCJ NO. 1847262, Appellant,

          Appeal from the 83rd District Court of Pecos County, Texas (TC# P-7504-83CV)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.



         Appellant Larry Joe Morgan appeals from the dismissal without prejudice of his complaints against the warden and two corrections officers at the prison where he is an inmate. We affirm.


         Appellant Larry Joe Morgan, an inmate, filed suit against James A. Whitfield, prison warden of the James Lynaugh Unit of the Texas Department of Criminal Justice, Correctional Institutions Division.[1] Morgan also sued two corrections officers, Sergio Rodriguez and Vicente Hernandez. [2] All defendants purportedly were sued in their individual and official capacities.

         The factual background of Morgan's claims arises from an altercation in which he claimed another inmate attacked him in the prison chow hall with a hard plastic cup. He alleged that Rodriguez and Hernandez failed to intervene, and that Whitfield failed to provide adequate security. The grounds of the lawsuit were listed as: failure to provide protection for prisoner in custody; failure to provide sufficient medical attention; failure to maintain Eighth Amendment protection from physical brutality; harassment; retaliation; falsification of records; gross negligence; and destruction of property.

         Whitfield, Rodriguez, and Hernandez moved to dismiss Morgan's claims on multiple grounds, including sovereign immunity and statutory provisions allowing for the dismissal of frivolous inmate claims, see Tex.Civ.Prac.&Rem.Code Ann. § 14.003(a)(2), and dismissal of claims against employees of governmental units based on conduct within the general scope of the employee's employment, see id. at § 101.106(f). The trial court dismissed the claims without prejudice. Morgan appealed from the denial of his claims.


          Appellant frames his appeal as presenting four issues. In his first two issues, he reasserts part of the substance of his lawsuit, asserting that Whitfield was responsible for his injuries because he allowed the capacity of the chow hall to exceed its capacity of 160 offenders and because he failed to ensure adequate staffing. In his third issue, he contends that his lawsuit should not have been dismissed for failure to satisfy the election-of-remedies provision of the Texas Tort Claims Act, Section 101.106 of the Civil Practice and Remedies Code. Finally, Morgan challenges the dismissal of various constitutional claims asserted against the Appellees.

         I. Allegations concerning management of chow hall

         In his first issue, Morgan contends that Whitfield "allowed the chow hall to exceed the capacity of 160 offenders within." Within his explanation of this issue, he also contends that prison officials "have a duty under the Eighth Amendment to provide humane conditions of confinement." He alleges that Rodriguez and Hernandez "had plenty of time to defuse the situation" before he was attacked with a hard plastic cup. Likewise, Morgan's second issue asserts that Whitfield "did not have adequate staffing" in the prison's chow hall facility.

         We review a dismissal under Chapter 14 for abuse of discretion. Camacho v. Rosales, 511 S.W.3d 82, 85 (Tex.App.-El Paso 2014, no pet.); Loyd v. Seidel, 281 S.W.3d 55, 56 (Tex.App.- El Paso 2008, no pet.). A court may dismiss an indigent inmate's claim if the court finds that the claim is frivolous or malicious. See Tex.Civ.Prac.&Rem.Code Ann. § 14.003(a)(2). "In determining whether a claim is frivolous or malicious, 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." Id. at § 14.003(b). A trial court abuses its discretion if it acts without reference to guiding rules or principles. Loyd, 281 S.W.3d at 56.

         None of Morgan's assertions in his first two issues addressed the Appellees' legal arguments supporting the motion to dismiss his claims as frivolous, nor did he otherwise assign error to the trial court's ruling which dismissed his lawsuit without prejudice. Morgan's brief failed to challenge all of the arguments supporting Appellees' motion to dismiss that his claims as frivolous because they have no arguable basis in law, including but not limited to his failure to exhaust administrative remedies. See Tex.Civ.Prac.&Rem.Code Ann. § 14.003(a)(2), (b)(2); see also Tex.Gov't Code Ann. ยง 501.008(d)(requiring exhaustion of administrative remedies before an inmate may file in state court a claim subject to the inmate ...

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