Fred Franklin Alexander v. Lisa D. Green

Opinion issued

June 24, 2010.

In

The

Court of

Appeals

For

The

First District

of Texas

————————————

NO. 01-09-00220-CV

———————————

Fred Franklin Alexander , Appellant

V.

Lisa D. GrEen , Appellee

On Appeal from the 369th

District Court

Anderson County, Texas

Trial Court Case No. XXX-XX-XXXX [1]

MEMORANDUM

OPINION

Appellant,

Fred Franklin Alexander, appeals the trial court’s order dismissing his suit

for being frivolous or malicious. In a

single issue, Alexander contends he alleged a cause of action for deprivation

of his right of access to the courts by appellee, Lisa D. Green, a correctional

officer at the prison unit in which Alexander is incarcerated. We conclude the trial court properly

dismissed Alexander’s suit. We affirm.

Background

Alexander

filed suit alleging that Green wrongfully denied him access to the library on

August 1, 2008, when he was scheduled for a two-hour session. Alexander filed a grievance complaining of

this alleged violation of his right to access to the courts. After the grievance system determined that Alexander

was denied access to the law library for failing to follow proper orders given

by the law library staff and that no further action was warranted, Alexander

filed this suit against Green in district court. The district court entered an “Order of

Dismissal.” The district court stated it

found Alexander’s claims “to be frivolous and malicious” and dismissed the suit

without prejudice.

Dismissal

of Frivolous Lawsuit

In a single issue, Alexander contends

the trial court erred by dismissing his lawsuit as “frivolous or malicious.”

A. Law Concerning Inmate Litigation

Chapter 14 of the Texas Civil Practice

and Remedies Code, entitled “Inmate Litigation,” applies to a lawsuit brought

by an inmate if the inmate seeks to proceed in forma pauperis by filing an

affidavit or unsworn declaration of inability to pay costs. Tex.

Civ. Prac. & Rem. Code Ann. § 14.002 (Vernon 2002). Un der Chapter 14,

a trial court may dismiss a lawsuit that is malicious or frivolous. Tex.

Civ. Prac. & Rem. Code Ann. § 14.003 (Vernon 2002) ;

Scott v. Gallagher , 209 S.W.3d 262,

265 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A trial court has discretion whether or not

to hold a hearing when dismissing a suit pursuant to Chapter 14. Scott ,

209 S.W.3d at 266 ; (citing Moreland v. Johnson , 95 S.W.3d 392, 394 (Tex.

App.—Houston [1st Dist.] 2002, no pet.)); Tex.

Civ. Prac. & Rem. Code Ann. § 14.003(c) (“the court may hold

a hearing”) (emphasis added). When the

trial court does not hold a hearing before dismissing a lawsuit as malicious or

frivolous, our review focuses on whether the inmate’s lawsuit has an arguable

basis in law, which we review de novo. Scott , 209 S.W.3d at 266 (citing Moreland ,

95 S.W.3d at 394 ). A claim has no

arguable basis in law if it is an “indisputably meritless legal theory.” Scott ,

209 S.W.3d at 265 (quoting Minix v. Gonzales , 162 S.W.3d 635, 637 (Tex.

App.—Houston [14th Dist.] 2005, no pet.)).

In

conducting our de novo review, we take as true the allegations of the inmate’s

petition. Scott , 209 S.W.3d at 266 . In other words, we review the inmate’s

petition to determine whether, as a matter of law, it states a cause of action

that would authorize relief. Id. (citing Lentworth v. Trahan ,

981 S.W.2d 720, 722 (Tex. App.—Houston [1st Dist.] 1998, no pet.)). A court may not dismiss an inmate’s lawsuit

simply because it thinks that the inmate’s allegations are “unlikely.” Id.

(citing Minix , 162 S.W.3d at 637 ).

B. Law

Concerning Access to Courts

Prisoners

have a constitutional right of access to the courts. Thomas

v. Brown , 927 S.W.2d 122, 125 (Tex. App.—Houston [14th Dist.] 1996, writ

denied) (citing Bounds v. Smith , 430

U.S. 817, 822 , 97 S. Ct. 1491, 1495 (1977)).

This access must be adequate, effective, and meaningful. Id.

(citing Bounds , 430 U.S. at 822 , 97

S. Ct. at 1495 ). This right may be

satisfied by access to a law library. Id. (citing Bounds , 430 U.S. at 830–31, 97 S. Ct. at 1499–1500).

In

asserting a claim of deprivation of access to the courts based on denial of

access to a law library, an inmate must allege harm. Drecker

v. Dunbar , 200 S.W.3d 807, 811 (Tex. App.—Texarkana 2006, pet. denied); see Thomas , 927 S.W.2d at 126 (“A prisoner

contending that his right of access to the courts was violated because of

inadequate access to a law library must establish two elements: (1) the access

was so limited as to be unreasonable and (2) the inadequate access caused him

actual injury.”). This is usually done

by alleging that some claim or defense in court was impacted. See Drecker ,

200 S.W.3d at 811 ; see also Brewer v.

Simental , 268 S.W.3d 763 , 771 n.2 (Tex. App.—Waco 2008, no pet.) (stating

“actual injury” due to deprivation of access to law library is usually shown by

“legal prejudice in the litigation the inmate is involved in”).

C. Analysis

The

requirements of Chapter 14 apply to this lawsuit filed by Alexander, an inmate

presently incarcerated within the Texas Department of Criminal Justice who has

filed an unsworn declaration requesting permission to proceed in forma

pauperis. Because the trial court did

not conduct a fact hearing before dismissing Alexander’s suit, we review Alexander’s

petition de novo to determine only whether it had an arguable basis in law. See Scott ,

209 S.W.3d at 266 ; Moreland , 95 S.W.3d at 394 .

In

his petition, Alexander alleged,

On August 1, 2008; I, “Fred Franklin Alexander,” had been

scheduled to use the law library here on the Coffield Unit between the hours of

4:30 AM until 6:30 AM… [sic] Upon my

arrived approximately at 4:40 AM., I knocked on the closed law Library Door at

which time Law Library supervisor Officer Lisa D. Green – CO V., came to the

door and ask where are you coming from.. [sic]

I responded U-Wing. Officer

Green, said, I have already checked in the Law Library Session and closed this

door, you are “ordered” to leave.. [sic] Therefore, Officer Green, “deprived me

of a session in the prison law library which was to have lasted for two

hours”. . . [sic] Officer

Green, “did in fact displayed a willful, wanton, or reckless indifference

toward my interest to be free from deprivation of daily access to the library

without due process;” “she arbitrarily infringed upon my right to attend a

daily session at the library; that she willfully, wantonly, or recklessly

breached her duty of care to assure me daily access to the library; and she

knew or reasonably should have known that her practice maliciously infringed

upon my access to the courts. Ms. Green

actions violated Texas Constitution Article 1, section 9; Penal Code section

39.021(A)(2); and TDCJ-ID Rule AM 03.81.030.

Alexander did not allege any actual

harm or any prejudice in litigation in which he was involved. Alexander’s petition, therefore, does not

allege an element necessary to establish his claim. We conclude the trial court properly

dismissed Alexander’s claim as frivolous.

See Drecker , 200 S.W.3d at 811

(affirming dismissal as frivolous inmate’s claims of deprivation of access to

law library where inmate did not allege “his efforts to pursue a legal claim or

defense in court were in any way impeded”); see

also Scott , 209 S.W.3d at 267–68 (affirming dismissal as frivolous inmate’s

claims of “civil assault and battery” where inmate failed to allege use of

force was malicious or in bad faith, which was element required to avoid

correctional officer’s privilege to use force to maintain security or safety).

Conclusion

We

affirm the trial court’s order of dismissal.

Elsa

Alcala

Justice

Panel consists of Justices

Jennings, Alcala, and Massengale.

[1] This

case was transferred to this Court from the Twelfth Court of Appeals pursuant to an order from Supreme Court of Texas, Misc. Docket No. 08-9177 .