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McCoy v. Wainwright

Court of Appeals of Texas, Third District, Austin

December 12, 2019

James McCoy, Appellant
Dale Wainwright, Chairman of the Texas Board of Criminal Justice, and Kenneth Green, Disciplinary Captain of the Michael Unit, Appellees


          Before Chief Justice Rose, Justices Kelly and Smith



         James McCoy, a pro se inmate in custody of the Texas Department of Criminal Justice, appeals from the trial court's dismissal of his claims against Dale Wainwright, Chairman of the Texas Board of Criminal Justice (TDCJ), and Kenneth Green, Disciplinary Captain of the Michael Unit. As explained below, we will affirm the trial court's order of dismissal.


         On June 22, 2017, McCoy filed suit against Wainwright and Green in their official and individual capacities, contending that he had twice been disciplined based on untrue allegations by Department personnel and that his rights had been violated in those disciplinary cases. McCoy asserted that "major disciplinary cases" were filed against him in 2016 and 2017. The first case charged that he had committed "the offense of 'Soliciting funds from a person for the offender's personal gain'" after he wrote a letter to the Vietnam Veterans of America asking whether the group "provided financial assistance to incarcerated veterans." McCoy alleged that he successfully appealed but that the same charge, based on the same facts, was refiled, in violation of rules against double jeopardy, and that his second appeal was unsuccessful. The 2017 case charged McCoy with "the offense of 'Attempting to establish an unauthorized business'" after he wrote a letter offering to help a friend who was not incarcerated "start a legitimate business" in exchange for ten percent of "whatever [McCoy's friend] made as a result of the Plaintiff's help/intellectual property." McCoy stated that he unsuccessfully filed a Step 1 grievance from the 2017 case and claimed that he was not required to file a Step 2 grievance because "[i]t is not necessary to complete the grievance process a third time when the violation reoccurs."[1] McCoy asserted that both disciplinary cases were based on lies by correctional officers; that in the disciplinary hearings, he was not allowed to present or view certain evidence; that the Department did not introduce evidence necessary to support the charges; and that he did not receive due process. McCoy further stated that certain TDCJ rules are unconstitutionally vague and that TDCJ's in-house grievance system "fails to produce any adverse consequences to prison officials who violate prison rules" and "promotes a systemic assault on prisoner's constitutionally protected rights." Finally, McCoy alleged that there was an "unwritten policy" of violating prisoners' rights.

         McCoy alleged that Green had falsified TDCJ records and violated TDCJ policies. McCoy asserted that Wainright had "implemented or condoned policies or practices" that "enable prison disciplinary officers to violate prisoner's constitutional rights without consequences," "deny prisoners a meaningful substitute counsel in major disciplinary hearings," and "make prison rules for offenders doing business outside of prison unconstitutionally vague." As a result, McCoy contended, he had been "found guilty of major disciplinary offenses, which he . . . was not guilty of, that will be considered by the parole board when he is reviewed for parole." He sought to have Wainwright and Green enjoined from "violating [McCoy's] constitutional rights in prison disciplinary hearings" and ordered to acknowledge that McCoy had not violated provisions related to starting a business. He also sought an "injunction to prevent any record of these disciplinary cases from ever appearing in Plaintiff's prison/parole files" and asked that both Wainright and Green, in their individual capacities, be ordered to pay McCoy compensatory and punitive damages.

         Wainwright was served with citation, answered, and filed a motion to dismiss, but Green was never served and has never answered or appeared.[2] Wainwright filed a motion to dismiss under Chapter 14, which governs inmate lawsuits in which the inmate asserts an inability to pay costs. See Tex. Civ. Prac. & Rem. Code § 14.002; see generally id. §§ 14.001-.014. On July 20, 2018, the trial court signed an order dismissing McCoy's claims with prejudice "for failure to comply with" Chapter 14. On August 13, the trial court file-stamped McCoy's "Motion to Extend Time to File Motion to Reinstate or Alternatively Motion to Vacate," which was postmarked on August 8 and which recited that McCoy had placed it into the prison's mail system on August 2. On September 19, the trial court held a hearing on McCoy's motion for extension of time. McCoy argued that the timely filing of his motion for extension of time should "allow me to timely file the motion to vacate judgment" and alternatively asked the trial court "to construe my motion as a motion for new trial." The trial court denied McCoy's motion to extend time and stated, "To the extent it can be construed as a motion for a new trial I'm denying the motion for new trial, although I don't think I'm within my plenary power to consider such a thing. But to the extent it is within my plenary power, the Court is denying it."


         On appeal, McCoy asserts two issues: (1) that the trial court abused its discretion in dismissing his lawsuit with prejudice and (2) that the court abused its discretion in "not reconstruing" his motion for extension of time as a motion for new trial. We first consider the dismissal of McCoy's lawsuit with prejudice. Wainwright contends that dismissal with prejudice was proper because McCoy's claims were frivolous, contending that the claims had no realistic chance of success, that McCoy failed to state a valid claim against him, that sovereign immunity barred McCoy's claims against Wainwright, and that McCoy did not exhaust his administrative remedies. Wainwright further contends that dismissal with prejudice was proper because McCoy falsely claimed that he was indigent when the record established that he was able to pay costs.

         Chapter 14 applies to an action filed by an inmate who claims an inability to pay costs in the suit. Id. § 14.002(a). A trial court may dismiss an inmate's claim before or after service of process if the court finds that the allegation of poverty is false, that the claim is frivolous or malicious, or that the inmate filed a required affidavit or unsworn declaration that he knew was false. Id. § 14.003(a). Generally, a case should not be dismissed with prejudice if the plaintiff can remedy the defect.[3] See Harris Cty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004); Josey v. Bell Cty. Law Enf't Ctr., No. 03-02-00612-CV, 2003 WL 1088450, at *1 (Tex. App.- Austin Mar. 13, 2003, pet. denied) (mem. op.); Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App.-Beaumont 2001, no pet.); Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. App.-Houston [14th Dist.] 2000, no pet.). However, a claim that lacks an arguable basis in law or fact may properly be dismissed with prejudice under Chapter 14.[4] Fernandez v. T.D.C.J., 341 S.W.3d 6, 13 (Tex. App.-Waco 2010, no pet.); Hamilton v. Williams, 298 S.W.3d 334, 339-40 (Tex. App.-Fort Worth 2009, pet. denied). "A claim has no arguable basis in law if it relies upon an indisputably meritless legal theory." Williams, 298 S.W.3d at 339. Dismissal with prejudice may also be appropriate if the defendant is immune from suit, see Hirczy de Mino v. University of Hous., No. 03-03-00311-CV, 2004 WL 2296131, at *6 (Tex. App.-Austin Oct. 14, 2004, pet. denied) (mem. op.) (citing Sykes, 136 S.W.3d at 639), or if the error cannot be remedied, see Leachman v. Dretke, 261 S.W.3d 297, 312 (Tex. App.-Fort Worth 2008, no pet.).

         Although McCoy stated in his petition that his suit was brought under tort, asserting that Wainwright was negligent in condoning improper policies, he has not alleged a tort. Instead, as he states in his brief, "[t]he crux of [McCoy's] claims center on falsified prison disciplinary charges" that violated his constitutional rights. And, in his response to Wainwright's motion to dismiss, McCoy "concede[d] that the injuries incurred and the relief sought could be appropriately addressed in a 42 USC § 1983 civil rights lawsuit" and asked the trial court to "construe the suit appropriately" as a "civil rights action or a petition for writ of mandamus." See 42 U.S.C. § 1983 ("Civil action for deprivation of rights"; allowing for lawsuit based on "deprivation of any rights, privileges, or immunities secured by the Constitution" by person acting "under color of any statute, ordinance, regulation, custom, or usage"); Leachman, 261 S.W.3d at 305. A civil-rights claim under Section 1983 "involves two essential elements: (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct deprived a person of rights, privileges, or immunities secured by the Constitution, or the laws, of the United States." Leachman, 261 S.W.3d at 305; see 42 U.S.C. § 1983. An official acting in his official capacity, however, is not a "person" who may be held liable under Section 1983. See, e.g., Leachman, 261 S.W.3d at 305; Esparza v. Diaz, 802 S.W.2d 772, 778 (Tex. App.-Houston [14th Dist.] 1990, no writ). McCoy's claims against Wainwright and Green in their official capacities are thus barred by sovereign immunity and were properly dismissed with prejudice.

         As for McCoy's claims brought against Wainwright and Green in their individual capacities, "[t]he grievance system provides the exclusive administrative remedy for all claims by an inmate while incarcerated except for any 'remedy provided by writ of habeas corpus challenging the validity of an action occurring before the delivery of the inmate' to the prison facility." Jordan v. Menchaca, No. 13-18-00143-CV, 2019 WL 1388741, at *2 (Tex. App.- Corpus Christi-Edinburg Mar. 28, 2019, no pet.) (mem. op.) (quoting Tex. Gov't Code § 501.008(a)). It therefore appears that his claims could and should have been brought up through the TDCJ grievance process. See Tex. Dep't of Crim. Justice, Offender Orientation Handbook, p.74 (Feb. 2017), available at Handbook_English.pdf (grievable issues include "interpretation or application of TDCJ policies, rules, regulations, and procedures"; "actions of an employee or another offender, including denial of access to the grievance procedure"; and reprisal "for the good faith use of the grievance procedure or Access to Courts").[5] Although McCoy frames his claims, at least in part, as attacking the adequacy of TDCJ's overall grievance process, he is, in essence, seeking relief from the disciplinary proceedings and their possible effect on his future parole reviews. See Garner v. Texas Dep't of Crim. Justice, No. 13-05-00588-CV, 2006 WL 2076762, at *2 (Tex. App.-Corpus Christi-Edinburg July 27, 2006, no pet.) (mem. op).

         McCoy's claims arose while he was housed in a TDCJ facility, and he alleges improper behavior by correctional officers during two specific disciplinary proceedings, but he did not file the underlying lawsuit within thirty-one days of receiving a final written decision on his grievances. See Tex. Civ. Prac. & Rem. Code § 14.005 (inmate who files claim subject to TDCJ grievance system must file declaration stating date grievance was filed and date written decision was received, and trial court "shall dismiss a claim if the inmate fails to file the claim before the 31st day after the date the inmate receives the written decision"). His 2016 grievance was disposed of in June 2016, and his 2017 Step 1 grievance was returned to him on April 10, 2017, with a notation, "Redundant, Refer to grievance # 2017115594."[6] McCoy acknowledges that he did not file a Step 2 form, arguing that he was not required to do so. See Evans v. Hernandez, No. 13-10-00593-CV, 2011 WL 1106712, at *1 (Tex. App.-Corpus Christi-Edinburg Mar. 24, 2011, pet. denied) (mem. op.) (offender must submit Step 2 form if ...

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