Rob L. Newby v. Sam Chambers, J. Cunningham, G. Currie, M. Roesler, Shannon Kersh, Vickie Barrow, and the State of Texas

Appellant=s Motion for Rehearing is Overruled; Affirmed and Substitute

Memorandum Opinion filed May 21, 2009

Appellant = s Motion for Rehearing is Overruled; Affirmed and Substitute Memorandum Opinion filed May 21, 2009.

In The

Fourteenth Court of

Appeals

_______________

NO. 14-08-00338-CV

_______________

ROB L. NEWBY, Appellant

V.

SAM CHAMBERS, J. CUNNINGHAM, G. CURRIE, M. ROESLER,

SHANNON KERSH, VICKIE BARROW, and THE STATE OF TEXAS, Appellees

On Appeal from the 1A District Court

Tyler County, Texas

Trial Court Cause No. 20614

S U B S T I T U T E M E M O R A N D

U M O P I N I O N

We

withdraw our memorandum opinion of March 31, 2009 and substitute the following

in its place.

Rob L.

Newby, an inmate incarcerated in the Texas Department of Criminal Justice,

appeals pro se from a court order dismissing his lawsuit against appellees and

declaring him a vexatious litigant. We affirm.

I. Factual and Procedural Background

Newby

filed suit against appellees Sam Chambers, J. Cunningham, G. Currie, M.

Roesler, Shannon Kersh, Vickie Barrow, and the State of Texas in their

individual and official capacities for alleged violations of his civil rights.

He stated that:

As to the

damages claims under 42 U.S.C. ' 1983,[ [1] ]

these defendants are sued in their individual capacities.

As to the

claims for damages arising from violations of state statutes and constitution,

these defendants are sued in their individual capacities, and official

capacities.[ [2] ]

Claims for

equitable relief are brought in the defendants = official capacity.

Appellees responded with

a general denial [3] and a motion

to declare Newby a vexatious litigant. In their motion, appellees asserted

that (a) there was no reasonable probability Newby would prevail in his suit

and (b) he had commenced, prosecuted, or maintained in propria persona at

least five litigations, other than small claims, in the past seven years that

had been either determined against him or found frivolous or groundless.

Specifically, appellees stated that there was no reasonable probability Newby

would prevail on his claims because (1) the defendants were entitled to

sovereign immunity to the extent that Newby was suing them in their official

capacity; (2) Newby failed to establish any actual harm from the defendants

alleged violation of his access to courts; and (3) Newby did not have a

federally-protected liberty interest in having his grievances resolved to his

satisfaction. Appellees also listed six cases in which Newby had been

involved, all of which had been resolved against him. [4]

Finally, appellees requested that Newby furnish security for their benefit

sufficient to assure payment of expenses incurred in connection with his suit.

Newby replied by filing a supplemental petition, in which he alleged there was

a reasonable probability he would prevail on his claims and that several of his

previous suits had not been decided on the merits but were dismissed without

prejudice for violations of procedures under Chapter 14 of the Texas Civil

Practice and Remedies Code.

After a

telephonic hearing, the trial court concluded that Newby was a vexatious

litigant. The court ordered Newby to furnish security for his lawsuit or

suffer dismissal of his claim. Newby failed to furnish the requisite security

and his claim was dismissed. Newby timely appealed the trial court = s dismissal order, asserting that the

trial court erroneously declared him a vexatious litigant.

II. Issue Presented

In a

single issue, Newby contends the trial court erred by declaring him a vexatious

litigant.

III. Analysis

A. Standard of Review

We

review the trial court = s determination that an appellant is a vexatious litigant

under an abuse-of-discretion standard. Douglas v. Am. Title Co. , 196

S.W.3d 876, 879 (Tex. App. C Houston [1st Dist.] 2006, no pet.); Leonard v. Abbott ,

171 S.W.3d 451, 459 (Tex. App. C Austin 2005, pet. denied); Forist v. Vanguard Underwriters

Ins. , 141 S.W.3d 668, 670 (Tex. App. C San Antonio 2004, no pet.). The trial

court abuses its discretion by acting arbitrarily, unreasonably, or without

consideration of guiding principles. Walker v. Gutierrez , 111 S.W.3d

56, 62 (Tex. 2003).

B. Applicable Law

If a

defendant establishes there is no reasonable probability that a plaintiff will

prevail in a suit against the defendant, a court may find the plaintiff a

vexatious litigant in several different circumstances. Tex. Civ. Prac. & Rem. Code Ann. ' 11.054. As applicable here, the

court may find a plaintiff a vexatious litigant if, in the seven-year period

immediately preceding the date of the defendant = s motion, the plaintiff has A commenced, prosecuted, or maintained

in propria persona at least five litigations other than in small claims court

that have been . . . finally determined adversely to the plaintiff . . . or . .

. determined by a trial or appellate court to be frivolous or groundless under

state or federal laws or rules of procedure. @ Id. ' 11.054(1)(A), (C). In the event a

court declares a plaintiff a vexatious litigant, it A shall order the plaintiff to furnish

security for the benefit of the moving defendant. . . . @ Id. ' 11.055. A The court shall dismiss a litigation

as to a moving defendant if a plaintiff ordered to furnish security does not

furnish the security within the time set by the order. @ Id. ' 11.056.

C. Application

As a

preliminary matter, we note that on appeal, Newby has only challenged the trial

court = s conclusion that there was no

reasonable probability that he would prevail in his suit against appellees.

Thus, we limit our discussion to whether the trial court abused its discretion

in making this determination. [5]

Newby

sued appellants because appellants allegedly denied him access to grievance

forms and legal research forms. He complained that denial of access to the

grievance forms prevented him from filing grievances because prison officials

would not consider his grievances if they were not presented on the appropriate

grievance forms. He argued that, by denying him legal research forms, he was

prevented from generating legal research to A develop his claims and prepare responsive

pleadings. @ For each of these complaints, he attached copies of Step 1 and Step 2

grievance forms, which had been responded to by prison officials. [6]

Similar

claims filed by Newby have previously been dismissed as frivolous. In Newby

v. Hurley , Newby sued prison officials because he was allegedly unable to

obtain grievance forms. No. 13-08-016-CV, 2008 WL 3868338 , at *1 (Tex. App. C Corpus Christi Aug. 21, 2008, no

pet.) (mem. op.). Citing Comeaux v. Thaler , [7]

the Thirteenth Court of Appeals concluded that Newby = s claim was properly classified as an

allegation of a denial of a right to access to courts. Newby , 2008 WL

3868338 , at *2. To establish a denial of this right, the appellate court

explained that an inmate must show actual harm resulting from the prison

officials = alleged conduct. [8] See id. ;

see also Lewis v. Casey , 518 U.S. 343 , 349 B 52 (1996). The Thirteenth Court of

Appeals concluded that Newby could not A prevail on his access-to-the-courts

claim because he ha[d] not alleged injury in pending litigation in this or any

other case. @ Newby , 2008 WL 3868338 , at *2.

Likewise,

in this case, Newby has not identified any injury caused by the prison

officials = alleged failure to provide him grievance forms or legal research request

forms. Instead, he alleged that the appellees = failure to provide him forms impeded

his A pursuit of legal research @ to A develop [his] claims and prepare

responsive pleadings. @ He also contended that prison officials were A abundantly aware @ he was involved in nine active cause

numbers and was A struggling to manage them. @ But Newby did not specify any legal

claims in which he was challenging his conviction or the conditions of his

confinement that were hindered by the appellees = alleged failure to provide him these

forms. Thus he has not shown any actual harm resulting from such an alleged

failure. See id.

Further,

the law is settled that an inmate does not have a constitutionally protected

right to access a grievance procedure. See Adams v. Rice , 40 F.3d 72,

75 (4th Cir. 1994) (stating A the Constitution creates no entitlement to grievance

procedures or access to any such procedure voluntarily established by a state @ ); Buckley v. Barlow , 997 F.2d

494, 495 (8th Cir. 1993) (holding a prison grievance procedure is merely a

procedural right, which does not confer any substantive right upon inmates and,

therefore, does not create a protected liberty interest implicating the

protections of the Fourteenth Amendment). Thus, a prison grievance procedure

is not an entitlement. See Mann v. Adams , 855 F.2d 639, 640 (9th Cir.

1988) (holding that state prisoners have A no legitimate claim of entitlement to

a grievance procedure @ ). Finally, although Newby may be dissatisfied with

appellees = disposition of his grievances, he does not have a federally-protected

liberty interest in having grievances resolved to his satisfaction. Geiger

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

Under

these circumstances, we cannot say the trial court abused its discretion in

determining that Newby had no reasonable probability of prevailing on his

claims against appellees in either their official or personal capacities. We

therefore overrule his sole issue on appeal.

IV. Conclusion

Having

determined that the trial court did not abuse its discretion in declaring Newby

a vexatious litigant, we hold it did not err in ordering Newby to furnish

security before pursuing the instant lawsuit. Because Newby failed to furnish

the requisite security, the trial court was required to dismiss his claims.

The judgment of the trial court is therefore affirmed.

/s/ Eva M. Guzman

Justice

Panel consists of Justices Yates,

Guzman, and Boyce.

[1] Section 1983 permits suit against officials for

violations of civil rights secured by the Constitution and laws of the United

States. See 42 U.S.C. ' 1983.

[2] Public officials sued in their official capacities

are protected by the same sovereign immunity enjoyed by the governmental unit

they represent. See Kentucky v. Graham , 473 U.S. 159 , 165 B 67 (1985) (explaining the distinction between suits

against government officials in their personal and official capacities); Fed.

Sign v. Tex. S. Univ. , 951 S.W.2d 401, 405 (Tex. 1997) ( A This Court has long recognized that sovereign

immunity, unless waived, protects the State of Texas, its agencies and its

officials from lawsuits for damages, absent legislative consent to sue the

State. @ ), superceded by statute , Tex. Gov = t Code '' 2260.001 B

.108, as recognized in Gen. Servs. Comm = n v. Little Tex. Insulation Co., Inc. , 39 S.W.3d 591, 593 (Tex. 2001); Morris v.

Copeland , 944 S.W.2d 696 , 698 B 99

(Tex. App. C Corpus Christi 1997, no pet.) (holding that suit

against sheriff was a suit against the county, and both were immune from suit

by virtue of sovereign immunity). Although Newby sued appellees in both their

personal and official capacities, he failed to plead waiver of sovereign

immunity regarding any actions taken by appellees in their official

capacities. Thus, the trial court did not abuse its discretion in dismissing

his claims for damages against appellees in their official capacity.

[3] Appellees also asserted their rights to A qualified, official, and sovereign immunity as they

apply @ in their general denial.

[4] Appellees provided copies of the judgments, orders

of dismissals, or opinions associated with these cases.

[5] We note, however, that the appellees attached copies

of six lawsuits that were decided adversely to Newby to their motion to declare

him a vexatious litigant. Further, in an affidavit attached to his original

petition in this lawsuit, Newby listed a total of eleven previously filed civil

actions, several of which he acknowledged had been decided adversely to him.

[6] In Step 1 Grievance No. 2007137942, Newby complained

that prison law library staff refused to provide him with grievance and

research forms. Prison officials responded by stating that Newby had already

received the three items he was permitted from the law library when he made

these requests. In the Step 2 Grievance of this complaint, Newby claimed that

officials had not addressed his issue, stating A the issue was that I-60s [research] and grievances are not readily

available on the wing. @ Prison officials responded by stating that A I-60 = s and grievance

forms are made available to all offenders. @

In Steps 1 and 2 of Grievance No. 2007147635, Newby complained that law library

staff were ignoring his requests for legal materials and A deliberately trying to thwart @ his efforts to A effectively

manage @ his legal cases. Prison officials noted his

grievance and explained that legal research materials and supplies would be

provided to him in accordance with prison policies.

[7] Civil Action No. H-01-1411, 2008 WL 818341 , at *21

(S.D. Tex. March 24, 2008) ( A Comeaux

complains that he has been denied access to the courts because he has had

inadequate access to the prison grievance process and sufficient legal

supplies. The constitutional right implicated by Comeaux = s allegations is the right to access the courts that

is generally protected by the First Amendment, the Due Process Clause, and the

Equal Protection Clause. @ ).

[8] Actual harm is defined as some hindrance to an

inmate = s effort to pursue a legal claim. Lewis , 518

U.S. at 356 . Further, an inmate = s

right to pursue legal claims encompasses only a reasonable opportunity to file

non-frivolous legal claims challenging a conviction or conditions of his

confinement. Id.