Danny L. Jones v. Kelly A. Guidry, Jr., Mariangelina Martinez

Opinion issued March 18, 2010

In The

Court of Appeals

For The

First District of Texas

________________

NO. 01-08-00729-CV

________________

IN RE DANNY L. JONES

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 48287

MEMORANDUM OPINION

Appellant,

Danny L. Jones, is an inmate at the Darrington Unit of the Texas Department of

Corrections in Rosharon, Texas. In this

appeal, Jones contests the district court’s dismissal of his lawsuit against prison

employees. We affirm.

BACKGROUND

On

July 16, 2008, Jones filed a lawsuit in Brazoria County district court against

Kelly A. Guidry and Mariangelina Martinez, two employees at the Darrington

Unit. Jones’s complaint arose out of his

removal from the Darrington Unit’s craft shop, the apparent result of Jones

being subject to a previous disciplinary action and thus having the privilege

of his access to the craft shop revoked.

His petition alleged claims under Section 1983, [1]

claiming that Guidry and Martinez engaged in racial profiling and racial

discrimination against him, and that his constitutional rights to equal

protection and due process had been violated.

Jones also alleged that Guidry and Martinez had committed “theft and

destruction” of his belongings.

The

clerk’s record does not indicate whether Guidry and Martinez were served or

appeared in the lawsuit. [2] Five days after

Jones filed his petition, the district court dismissed the lawsuit. The district court’s order stated that

“Plaintiff has failed to state a cause of action as a matter of law” and

therefore ordered that the lawsuit be dismissed with prejudice. Jones subsequently filed a “Rebuttal to Order

of Dismissal” in which he urged the district court to reconsider its dismissal

with prejudice. Jones then timely filed

a Notice of Appeal.

ANALYSIS

On

appeal, [3]

Jones contends that the district court erred by (1) dismissing his

lawsuit; (2) dismissing his lawsuit with

prejudice; (3) denying him the opportunity to amend his complaint; and (4)

failing to provide him with notice of its intent to dismiss the lawsuit. Jones raises four additional issues by which

he continues to complain of the conduct of Guidry and Martinez. We construe these as supporting his argument

that the trial court erred by dismissing his lawsuit.

A. Standard of Review

Chapter

Fourteen of the Texas Civil Practice and Remedies Code applies to lawsuits

filed by an inmate in district court and in which the inmate files an affidavit

or unsworn declaration of an inability to pay costs. See Tex.

Civ. Prac. & Rem. Code Ann. § 14.002(a) (Vernon 2008). Under Chapter Fourteen, a trial court may

dismiss an inmate’s lawsuit for failing to comply with the Chapter’s procedural

requirements; it may also dismiss a lawsuit that is malicious or

frivolous. Id. § 14.003; Scott

v. Gallagher , 209 S.W.3d 262, 265 (Tex. App.—Houston [1st Dist.] 2006, no

pet.). The trial court need not rely

upon a defendant’s motion to exercise its discretionary power to dismiss under

Chapter Fourteen. See Tex. Civ. Prac. & Rem. Code Ann §

14.003(a) (suit may be dismissed before service of process); Wilson v.

TDCJ-ID , 107 S.W.3d 90, 92 (Tex. App.—Waco 2003, no pet.).

Review

of a dismissal under Chapter Fourteen is generally controlled by the abuse of

discretion standard. Hickson v. Moya , 926 S.W.2d 397, 398

(Tex. App.—Waco 1996, no writ). However,

the issue as to whether there is an arguable basis in law is a legal question

that we review de novo. In re Humphreys , 880 S.W.2d 402, 404

(Tex. 1993). To determine whether the

trial court properly decided there was no arguable basis in law for the

plaintiff's suit, we examine the types of relief and causes of action pleaded

to determine whether, as a matter of law, the petition stated a cause of action

that would authorize relief. Jackson v. TDCJ-ID , 28 S.W.3d 811, 813 (Tex. App.—Corpus Christi 2000,

pet. denied).

We review and evaluate pro se pleadings by standards less

stringent than those applied to formal pleadings drafted by lawyers. Denson v. TDCJ-ID , 63 S.W.3d 454, 459 (Tex. App.—Tyler 1999, pet.

denied). We take as true the

allegations in the inmate’s petition and review the types of relief and causes

of action set out therein to determine whether, as a matter of law, the

petition stated a cause of action that would authorize relief. See Scott , 209 S.W.3d at 266 ; Harrison

v. TDCJ-ID , 164 S.W.3d 871, 875 (Tex. App.—Corpus Christi 2005, no

pet.). A claim has no arguable basis in

law if it is an indisputably meritless legal theory. Scott , 209 S.W.3d at 266–67. Further, a claim has no arguable basis in law

if the inmate has failed to exhaust his administrative remedies. Retzlaff v. Tex. Dep’t of Criminal Justice ,

94 S.W.3d 650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).

B. Did the District Court Err By Dismissing

Jones’s Claims?

Jones’s pleading is difficult to decipher, but read

broadly, Jones complains that Guidry and Martinez are responsible for his being

excluded from the “old craft shop” after he received a verbal reprimand. Jones’s petition alleged a claim under

Section 1983 against Guidry and Martinez in their individual capacities. [4]

Jones

brings an equal protection claim, arguing that he has been the subject of

racial discrimination by Guidry and Martinez.

Jones, who is black, alleged that Martinez—“for no other reason than

discrimination”—removed him from the craft shop “in a racial manner supported

by [Guidry].” Jones also alleges that

the craft shop is “very racially imbalanced.”

Jones alleges that he attempted to resolve the issue that had led to his

removal from the craft shop, but that “none of the facility’s supervisors

wanted to get involved with any craft shop issues.” Jones also alleges that “none of the [white]

inmates . . . have this type of problem with getting any of their matters they

have resolved.” Jones also alleges that

Guidry and Martinez retaliated against him and harassed him by using racial

slurs and demoting him from his position in the craft shop. According to Jones, “Guidry and Martinez

intended to place [him] in fear of imminent serious bodily injury because they

knew he must stay stress free because of an aneurysm he had.” [5]

In

addition, Jones’s petition claims that he was deprived of due process because

he was not able to defend himself against the allegations that led to his

termination from the craft shop. Finally,

Jones’s petition asserts that Guidry and Martinez, acting in their individual

capacities, committed theft by depriving Jones of tools and items he made in

the craft shop.

1. Jones’s Equal Protection Claim

A cause of action 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. See Parratt v.

Taylor , 451 U.S. 527, 535 , 101 S. Ct. 1908, 1913 (1981), overruled in

part on other grounds , Daniels v. Williams , 474 U.S. 327 , 330–33,

106 S. Ct. 662 , 664–66 (1986); City of Fort Worth v. Robles , 51 S.W.3d

436, 443 (Tex. App.—Fort Worth 2001, pet. denied), disapproved on other

grounds , City of Grapevine v. Sipes , 195 S.W.3d 689 , 695 & n.5

(Tex. 2006). Neither a State nor its

officials acting in their official capacities are “persons” under Section 1983.

See

Harrison , 915 S.W.2d at 889 (citing Will

v. Mich. Dep’t of State Police , 491 U.S. 58 , 71 109 S. Ct. 2304, 2312 (1989));

see also Thomas v. Brown , 927 S.W.2d

122, 125 (Tex. App.—Houston [14th Dist.] 1996, writ denied). To the extent that Jones brings Section 1983

claims against Guidry and Martinez in their official capacities, the district

court properly dismissed those claims.

We next turn to Jones’s claims against Guidry and Martinez on an

individual basis.

Jones first complains that Guidry’s

and Martinez’s actions in excluding him from the craft shop constituted a

denial of his right to equal protection under the law. However, Jones has not pointed us to any

authority establishing that he has a right of access to the craft shop. Accordingly, he has not adequately alleged an

equal protection violation under Section 1983.

Compare, e.g. , Thomas v. Arthur , 836 S.W.2d 822 (Tex.

App.—Tyler 1992, no writ) (reviewing prisoner’s argument that he had cause of

action under Section 1983 arising out of his alleged right to daily shower). The district court therefore properly

dismissed Jones’s equal protection claim under Section 1983.

2. Jones’s Retaliation Claim

To prevail on a retaliation claim

brought under Section 1983, an inmate must establish (1) a specific

constitutional right, (2) the defendant’s intent to retaliate against the

prisoner for his exercise of that right, (3) a retaliatory adverse act, and (4)

causation. Morris v. Powell , 449 F.3d 682, 684 (5th Cir.), cert.

denied , 549 U.S. 1038 , 127 S.

Ct. 596 (2006); see also Vacca v. Farrington , 85 S.W.3d 438 , 441–42 (Tex. App.—Texarkana 2002, no pet.) (applying

facts to retaliation test). The inmate

must allege more than his personal belief that he is the victim of retaliation

and must allege a chronology of events from which retaliation may be plausibly

inferred. Jones v. Greninger , 188 F.3d 322, 325 (5th Cir.

1999). Causation requires a showing that

but for the retaliatory motive, the complained of incident would not have

occurred. McDonald v. Steward , 132 F.3d 225, 231 (5th Cir. 1998).

Reviewing Jones’s petition, we find

that he has failed to state a claim for retaliation under Section 1983. First, as noted above, he has not established

a constitutional right of access to the craft shop. Second, he admits that his disciplinary

action was the cause of his demotion and removal from the craft shop. Finally, while he complains of the underlying

conditions in the prison, and the actions of Guidry and Martinez, we do not

read Jones’s petition as alleging a plausible case of retaliation. Thus, the district court properly dismissed Jones’s

retaliation claim.

3. Jones’s Due Process Claim

Jones also complained that the actions of Guidry and Martinez

permanently deprived him of his property and constituted a due process

violation. The due process clause is not

invoked when an unauthorized, intentional act of a state prison official causes

the loss of property if there is an adequate post-deprivation remedy, such as a

suit for conversion. Hudson v. Palmer , 468 U.S. 517 , 533–35,

104 S. Ct. 3194, 3204 (1984); Myers v.

Adams , 728 S.W.2d 771, 772 (Tex. 1987); see

also Murphy v. Collins , 26 F.3d 541, 543 (5th Cir. 1994) (“[D]eprivations

of property caused by the misconduct of state officials do not infringe

constitutional due process provided adequate state post-deprivation remedies

exist.”). Moreover, Section 501.007 of

the Texas Government Code provides an administrative remedy to inmates whose

property has been lost or damaged. See Tex.

Gov. Code Ann .

§ 501.007

(Vernon 2004). Therefore, Jones does not

have a cause of action for a due process violation under Section 1983.

4. Jones’s Conversion Claim

Jones seeks to recover under Section

1983 for loss of his property, contending that Guidry and Martinez stole the

property that he had stored in the craft shop.

We construe this as a claim under Section 1983 for the tort of

conversion. Section 1983, however, does

not impose liability for violations of duties of care arising under tort law. See

Spacek v. Charles , 928 S.W.2d 88, 93 (Tex.App.—Houston [14th Dist.] 1996,

writ dism’d w.o.j.). Therefore, to the

extent Jones seeks recovery under section 1983 for conversion by Guidry and

Martinez, we hold the district court properly dismissed those claims.

C. Did the District Court Err By Dismissing Jones’s

Lawsuit With Prejudice ?

Jones contends the trial court erred

in dismissing his suit with prejudice. Dismissal with prejudice constitutes an

adjudication on the merits and operates as if the case had been fully tried and

decided. Mossler v. Shields , 818 S.W.2d 752, 754 (Tex. 1991). Generally, the proper remedy, when a court

lacks subject matter jurisdiction, is to dismiss the case without prejudice. Mullins

v. Estelle High Sec. Unit , 111 S.W.3d 268, 274 (Tex. App.—Texarkana 2003,

no pet.). However, when the error cannot

be remedied, dismissal with prejudice is proper. See

Hickman v. Adams , 35 S.W.3d 120, 124 (Tex. App.—Houston [14th Dist.] 2000,

no pet.). Here, Jones’s Section 1983

claims against Guidry and Martinez cannot be amended to remedy the error. Therefore, dismissal of these claims with

prejudice was proper. See id .

D. Did the District Court Err By Denying Jones the

Opportunity to Amend his Complaint or By Failing to Provide Jones Notice?

Jones

complains that the court dismissed his lawsuit without giving him an

opportunity to amend his complaint and without notice of its intent to dismiss. A trial court may dismiss a Chapter Fourteen

suit without affording the inmate notice, opportunity to be heard, or

opportunity to amend the petition. Aguilar

v. Chastain , 923 S.W.2d 740, 745 (Tex. App.—Tyler 1996, writ denied); Kendrick

v. Lynaugh , 804 S.W.2d 153, 155 (Tex. App.—Houston [14th Dist.] 1990, no

writ). Accordingly, we overrule these

issues.

CONCLUSION

The

trial court did not err by dismissing Jones’s Section 1983 lawsuit against

Guidry and Martinez. Accordingly, we

overrule Jones’s issues and affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Justices Jennings, Hanks, and Bland.

[1] See 42

U.S.C. § 1983 (2009).

[2] Neither Guidry nor Martinez filed a brief in this

appeal.

[3] Jones has filed two, substantively different, appellant’s briefs in

this appeal. We consider the latter a

supplement to the first, and address all of the issues Jones raises on appeal. See Tex.

R. App. P. 38.7 (“A brief may be amended or supplemented whenever

justice requires, on whatever reasonable terms the court may prescribe.”).

[4] The petition is entitled “Complaint pursuant to Section VIII; Cause of

Action under Act 1871, 42 U.S.C.A. § 1983 In District County Courts Action

Under Color of State Law With In [sic] Individual Capacity.”

[5] Jones also alleges that Martinez hit him with a door while opening

it. However, he raises this allegation

as part of his retaliation claim and does not allege any other constitutional

or legal injury resulting from this alleged act.