Kenneth Hickman-Bey v. Texas Department of Criminal Justice and Sergeant W. Ward

Opinion issued June 3, 2010.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00019-CV

———————————

Kenneth Hickman-Bey , Appellant

V.

Texas

Department of Criminal Justice and Sergeant W. Ward , Appellees

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Case No. 49974

MEMORANDUM OPINION

Appellant,

Kenneth Hickman-Bey, who is incarcerated and represents himself pro se,

challenges the trial court’s order dismissing his case for failure “to state a

cause of action as a matter of law.” In

four issues, Hickman-Bey argues that he stated a cause of action (1) for

official oppression; (2) for racial and religious discrimination; (3) for

violations of the Texas Public Information Act; and (4) for violations of the

Fourteenth Amendment.

We

affirm.

Background

On November

5, 2008, Hickman-Bey filed his original petition seeking “declaratory and

injunctive relief” against the Texas Department of Criminal Justice (TDCJ) and

Sergeant W. Ward, in his official capacity.

Hickman-Bey alleged that Ward, who is involved in security threat group

management, improperly identified him as a gang member, resulting in denial of

his parole, [1]

and that Ward “provided false information [to the parole board] that [Hickman-Bey]

was knowingly in contact with gang members and was actively involved in gang

activity.” The petition specifically

stated that Ward identified Hickman-Bey as a gang member based on his

“association with a prison clique,” the “Mandingo Warriors, [who] are not

considered a gang” and that the “false information” Ward provided related to

“some secret isolated incident in 2006.”

Hickman-Bey also alleged that “[t]he Security Threat Group Management

has secret rules[,] regulations, [and] policies” to which inmates do not have

access. Hickman-Bey’s petition also

states that he is listed as a member of the Moorish Science Temple of America,

which is a religion recognized by TDCJ “but [is] also associated with being a

gang.” Hickman-Bey also alleged that

“[a]n advocate acting on [his] behalf requested information in the form of the

alleged rules, regulations and policies STGM operates and [his] STG file,”

which was denied.

Hickman-Bey alleged that he “is

subject to Official Oppression by Ward, [because] as a matter of law a public

servant acting under color of his office commits an offense by intentionally

denying or impeding another in the exercise of enjoyment of any right or

privilege.” He also alleged that Ward’s

actions violated his “civil rights as a prisoner” and were the result of racial

and religious discrimination.

Specifically, Hickman-Bey’s petition stated that Ward “has a proven

history of primarily focusing abuses of his authority on former and present

suspected black gang members” and that, while Ward at times monitors Hispanic

and white members, “[h]is records will [reflect] that he targets only black

inmates.” The petition also stated that

Hickman-Bey “has been discriminated against in being considered a gang member”

because of his association with the Moorish Science Temple. Hickman-Bey also alleged that he was “denied

due process of law in being denied an opportunity to be heard” regarding his

grievance against Ward and “in being subject to secret rules.” He alleged that “the defendants are in

violation of the Texas [Public Information] Act [2] in refusing to disclose

records and evidence used against [him] for the purpose of investigation and

clearing him of charges.”

Hickman-Bey specifically requested an

interlocutory injunction ordering that Ward “not alter or remove any existing

records in plaintiffs security threat group file,” an injunction “that will

order TDCJ-CID to provide any and all agents of plaintiff with cop[ies] of his

security threat group file” upon a request under the Texas Public Information

Act, an injunction “that will order TDCJ-CID to reinstate plaintiff as an

ex-gang member,” and a “permanent injunction that will disclose rules[,]

regulations and policies of the security threat group department.” Hickman-Bey also requested declaratory

judgments “that Ward violated plaintiff[’s] rights as a prisoner,” “that Ward

subjected plaintiff to official oppression,” and “that Ward subjected plaintiff

[to] denial of due process and discrimination because of his race [and/or]

religion.”

The petition was accompanied by an

unsworn declaration of his inability to pay the filing fee and the cost of

citation. As required by Chapter 14 of

the Texas Civil Practice and Remedies Code, [3] Hickman-Bey’s petition was

also accompanied by an affidavit of exhaustion of the grievance system and the

necessary documents from the grievance process and an affidavit detailing his

previous court filings.

On

December 12, 2008, before process was served on the defendants, [4] the trial court dismissed

Hickman-Bey’s case, stating,

On this date the court

reviewed the pleadings in the above referenced cause. It appearing that the plaintiff has failed to

state a cause of action as a matter of law, it is ordered that the cause is

dismissed with prejudice to the rights of the Plaintiff to refile the same.

The trial court subsequently gave notice to

Hickman-Bey of its dismissal order, and this appeal followed.

Dismissal of Indigent Inmate Appeals

Under Chapter 14 of the Texas Civil

Practice and Remedies Code, governing inmate litigation, a trial court may

dismiss an inmate suit brought in forma pauperis either before or after service

of process by finding that it is frivolous or malicious. Tex.

Civ. Prac. & Rem. Code Ann . § 14.003(a)(2) (Vernon 2002). In determining whether a claim is frivolous

or malicious, a 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 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)(1)–(4).

Here, the trial court dismissed

Hickman-Bey’s case for failure “to state a cause of action as a matter of

law.” We review such a dismissal for an

abuse of discretion. Moreland v. Johnson , 95 S.W.3d 392, 394

(Tex. App. — Houston [1st Dist.] 2002, no

pet.). When a trial court dismisses a

claim without a hearing, as here, the issue on appeal is whether the claim had

no arguable basis in law. Id.

Thus, we examine whether Hickman-Bey’s claims were frivolous because

they have no arguable basis in law.

The issue of whether a claim has an

arguable basis in law is a legal question that we review de novo. Id. To determine whether there is an arguable

basis in law, we examine the types of relief and causes of action pleaded in

his petition to determine whether the petition states a cause of action that

would authorize relief. Spurlock v. Schroedter , 88 S.W.3d 733,

736 (Tex. App.—Corpus Christi 2002, no pet.). We review and evaluate pro se pleadings by

standards less stringent than those applied to formal pleadings drafted by

lawyers. Id. We are bound to take as

true the allegations in the inmate’s petition.

Jackson v. TDCJ-ID , 28 S.W.3d

811, 813 (Tex. App.—Corpus Christi 2000, pet. denied).

A. Official Oppression

In his first issue, Hickman-Bey

argues that he stated a cause of action for official oppression. To support his contention, he cites Mizell v. State and section 39.03(a)(2)

of the Texas Penal Code. [5] 70 S.W.3d 156 (Tex. App.—San Antonio 2001), aff’d , 119 S.W.3d 804 (Tex. Crim. App. 2003); see also Tex. Penal Code

Ann. § 39.03 (Vernon 2003). However,

the Penal Code does not create a private cause of action, and a victim does not

have standing to participate as a party in a criminal proceeding. Tex.

Const . art. I, § 30(e); Tex. Code

Crim. Proc. Ann. art. 56.02(d) (Vernon Supp. 2009); Brown v. De La Cruz , 156 S.W.3d 560, 567 (Tex. 2004). We conclude that Hickman-Bey failed to state

an official oppression claim with any arguable basis in law. [6]

We overrule Hickman-Bey’s first

issue.

B. Racial and Religious Discrimination and

Fourteenth Amendment

In

his second issue, Hickman-Bey argues that he stated a cause of action for

racial and religious discrimination under Chapter 42, section 1983 of the

United States Code. In his fourth issue,

Hickman-Bey argues that he stated a cause of action for violations of the

Fourteenth Amendment right to due process based on racial and religious

discrimination.

Section

1983 provides:

Every person who, under

color of any statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in action at law,

suit in equity, or other proper proceeding for redress.

42 U.S.C.A. § 1983 (West 2003). Section 1983 provides a private cause of action

and remedy when any person acting under color of state law deprives another of

rights, privileges, or immunities protected by the U.S. Constitution or

laws. Gordon v. Scott , 6 S.W.3d 365, 369 (Tex. App. —Beaumont 1999, pet. denied); see also Parratt v.

Taylor , 451 U.S. 527, 535 , 101 S. Ct. 1908, 1913 (1981), overruled on other grounds by Daniels v. Williams , 474 U.S. 327 , 330 –31, 106 S. Ct. 662 , 664–65 (1986) (holding that the

two essential elements to section 1983 action are “(1) whether the conduct

complained of was committed by a person acting under color of state law; and

(2) whether this conduct deprived a person of rights, privileges, or immunities

secured by the Constitution or laws of the United States”).

The Due Process Clause of the

Fourteenth Amendment encompasses both substantive and procedural due

process. City of Dallas v. Saucedo-Falls , 268 S.W.3d 653, 660 (Tex.

App.—Dallas 2008, pet. denied).

Hickman-Bey does not specify which of these TDCJ and Ward allegedly violated. However, for a claim of either substantive or

procedural due process violations, a party must allege a constitutionally

protected property right. Id.

Hickman-Bey failed to plead that he

was deprived of a right, privilege, or immunity that is protected by the U.S.

Constitution or federal law.

Hickman-Bey’s petition alleged that he was denied parole and other

privileges offered to inmates because of Ward’s identification of him as a gang

member and that he was denied due process in being denied an opportunity to have

his grievance heard and in “being subject to secret rules, regulations and

policies” in attempting to resolve his grievance. However, Hickman-Bey has no right to

parole. See Johnson v. Davis , 178 S.W.3d 230, 239 (Tex. App. —Houston [14th Dist.] 2005, pet. denied). “Both state and federal courts have held that

Texas prison inmates have no protected liberty interest in parole.” Id. (citing

Johnson v. Rodriguez , 110 F.3d 299,

308 (5th Cir. 1997) and Martin v. Tex.

Bd. of Crim. Justice , 60 S.W.3d 226, 230 (Tex. App.—Corpus Christi 2001, no

pet.)). We also note that, although

Hickman-Bey failed to specifically identify the “privileges” denied him, he

does not have a liberty interest in such privileges. See

Geiger v. Jowers , 404 F.3d 371, 374 (5th Cir. 2005) (holding that prisoner

has liberty interest only in freedoms from restraint that impose atypical and

significant hardship on inmate in relation to ordinary incidents of prison life

and does not have federally protected liberty interest in having these

grievances resolved to his satisfaction).

Furthermore, Hickman-Bey does not have a constitutionally protected

right to access a grievance procedure. See Wanzer v. Garcia , 299 S.W.3d 821,

827 (Tex. App.—San Antonio 2009, pet. denied). Therefore, Hickman-Bey

failed to plead a section 1983 claim or a violation of the Fourteenth

Amendment. [7] See

Saucedo-Falls , 268 S.W.3d at 660 ; Gordon ,

6 S.W.3d at 369 .

We

overrule Hickman-Bey’s second and fourth issues.

C. Texas Public Information Act

In

his third issue, Hickman-Bey argues that he stated a cause of action under the

Texas Public Information Act.

Specifically, his petition requested an “injunction that will provide

any and all agents of plaintiff with cop[ies] of his security threat group file

upon Texas Open Records Request.” He

alleged that “[a]n advocate acting on [his] behalf requested information in the

form of the alleged rules, regulations and policies STGM operates and [his] STG

file,” which was denied.

The

Texas Public Information Act provides for certain disclosure of “public

information,” which is defined as information that is collected, assembled, or

maintained (1) by a governmental body or (2) for a governmental body, and the

governmental body owns the information or has a right of access to it. Tex.

Gov’t Code Ann. § 552.002(a) (Vernon 2004). Section 552.028(a) provides that:

A governmental body is not

required to accept or comply with a request for information from:

(1) an individual who is

imprisoned or confined in a correctional facility; or

(2) an agent of that individual,

other than that individual’s attorney when the attorney is requesting

information that is subject to disclosure under this chapter.

Id. §

552.028(a)(1). Hickman-Bey did not allege

that the “advocate” acting on his behalf was his attorney, nor does he make

such an argument in his brief on appeal.

Thus, Hickman-Bey’s pleadings failed to demonstrate any violation of the

Texas Public Information Act.

We overrule

Hickman-Bey’s third issue.

Conclusion

We

affirm the judgment of the trial court.

Evelyn

V. Keyes,

Justice

Panel

consists of Justices Keyes, Hanks, and Higley.

[1]

The notice of parole panel

decision contained in the record stated that Hickman-Bey was denied parole, and

provided three reasons, though it stated that only one was required. First, it stated that Hickman-Bey committed

“one or more violent criminal acts indicating a conscious disregard for the

lives, safety, or property of others” that also had “elements of brutality,

violence, or conscious selection of victim’s vulnerability such that the inmate

poses an undue threat to the public” and stated that Hickman-Bey used a

weapon. Second, it stated that

Hickman-Bey “has repeatedly committed criminal episodes or has a pattern of

similar offenses that indicates a predisposition to commit criminal acts when

released” and that he “is a leader or active participant in gang or organized

criminal activity.” Finally, it stated

that his parole was denied for “continued participation in gang activity.”

[2]

Hickman-Bey refers to this in

his petition and in his brief as a claim under the “Open Records Act.” The Texas Public Information Act was formerly

known as the Texas Open Records Act. See Thomas v. Cornyn , 71 S.W.3d 473, 478

(Tex. App.—Austin 2002, no pet.) (citing Act of May 29, 1995 74th Leg., R.S.,

ch. 1035, § 1, 1995 Tex. Gen. Laws 5127 ).

Thus we construe his pleadings and brief as alleging a cause of action

under the Texas Public Information Act. See Tex.

Gov’t Code Ann. §§ 552.001–.353 (Vernon 2004 & Supp. 2009).

[3]

Chapter 14 of the Texas Civil

Practice and Remedies Code governs suits filed by indigent inmates. Tex.

Civ. Prac. & Rem. Code Ann. § 14.002 (Vernon 2002). Indigent inmates are required to file an

affidavit or declaration of previous court filings and, when filing a claim

that is subject to the grievance system established under Texas Government Code

section 501.008, an affidavit or unsworn declaration with information about the

grievance process and a copy of the written decision from the grievance

system. Tex. Civ. Prac. & Rem. Code Ann. §§ 14.004–.005

(Vernon 2002).

[4] Appellees, TDCJ and Ward, did not

appear in the trial court and did not file a brief on appeal.

[5]

Section 39.03(a)(2) provides

that “[a] public servant acting under color of his office or employment commits

[the offense of official oppression] if he . . . intentionally denies or

impedes another in the exercise or enjoyment of any right, privilege, power, or

immunity, knowing his conduct in unlawful.”

Tex. Penal Code Ann. §

39.03(a)(2) (Vernon 2003).

[6]

Hickman-Bey also mentions

violations of 42 U.S.C. § 1983 and the Fourteenth Amendment in his first

issue. We discuss these in our analysis

of his second and fourth issues. He

failed to identify any other basis for his “violation of the civil rights of a

prisoner.”

[7]

We also note that a section

1983 action will not lie against a state agency, like TDCJ, or an official

acting in his official capacity, like Ward.

See Harrison v. Tex. Dep’t of Crim.

Justice-Institutional Div. , 915 S.W.2d 882, 889 (Tex. App.—Houston [1st

Dist.] 1995, no writ) (holding that

appellant could not pursue section 1983 claim against TDCJ or officials in

their official capacity because “[n]either a state nor its officials acting in

their official capacities are ‘persons’ under § 1983”) (citing Will v. Mich. Dep’t of State Police , 491

U.S. 58, 71 , 109 S. Ct. 2304, 2312 (1989)). The Supreme Court has recognized an

exception to this rule in cases of injunctive relief, stating, “Of course a

state official in his or her official capacity, when sued for injunctive

relief, would be a person under § 1983 because ‘official-capacity actions for

prospective relief are not treated as actions against the State.’” Will ,

491 U.S. at 71 n.10, 109 S. Ct. at 2312 n.10 (quoting Kentucky v. Graham , 473 U.S. 159 , 167 n.14, 105 S. Ct. 3099 , 3106

n.14 (1985)). However, as discussed

above, Hickman-Bey failed to allege any section 1983 claim.