willie-a-milton-v-nathaniel-quarterman-director-texas-department-of ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00212-CV
WILLIE A. MILTON APPELLANT
V.
NATHANIEL QUARTERMAN, APPELLEES
DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE-
CORRECTIONAL INSTITUTIONAL
DIVISION; JENNIFER SMITH,
CHAIRPERSON DRC AUGUST
11TH, 2009; AND KARRI
HANSFORD, ALLRED MAIL ROOM
SUPERVISOR
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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION1
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In four points,2 Appellant Willie A. Milton, appearing pro se and in forma
pauperis, appeals the trial court’s order dismissing his claims against Appellees
1
See Tex. R. App. P. 47.4.
Nathaniel Quarterman, Jennifer Smith, and Karri Hansford under chapter 14 of
the civil practice and remedies code. We will affirm the trial court’s judgment.
Background Facts
Mr. Milton is an inmate of the Texas Department of Criminal Justice
(TDCJ). On October 28, 2009, the prison mail room received a package
addressed to Mr. Milton containing publications from a ―Left wing insurrectionary
anarchist organization.‖ TDCJ denied Mr. Milton the receipt of one publication,
entitled Fire to the Prisons, An Insurrectionary Anarchist Quarterly, Issue No. 6.
Three other publications in the package, entitled Unfinished Acts, The January
Rebellions; Modesto Anarcho, The Valley’s Insurrectionary Journal of Class
Struggle; and Fire to the Prisons, Issue No. 5 were not delivered until November
17, 2009. The form denial notice that Mr. Milton received regarding Fire to the
Prisons, Issue No. 6 indicated that the publication was denied because two
pages contained ―material that a reasonable person would construe as written
solely for the purpose of communicating information designed to achieve the
breakdown of prisons through offender disruption such as strikes or riots.‖ Mr.
Milton did not receive any information as to why the three publications were
delayed.
2
Mr. Milton’s brief presents five points of error, but he explicitly ―abandons‖
point five in his brief. Because he has abandoned point five on appeal, we will
not address it.
2
Mr. Milton appealed the denial of Fire to the Prisons, Issue No. 6 to the
Director’s Review Committee (DRC), which upheld the denial. He then filed suit
in the district court seeking review of an administrative agency ruling, declaratory
judgment, injunctive relief, and claiming a violation of his civil rights. The
Appellees filed a motion to dismiss arguing, among other things, that Mr. Milton’s
claims were frivolous; that Mr. Milton did not overcome the Appellees’ qualified
immunity; and that he did not comply with chapter 14 of the civil practice and
remedies code. See Tex. Civ. Prac. & Rem. Code §§ 14.003, .005 (Vernon
2002). The trial court granted the TDCJ’s motion, and Mr. Milton filed this
appeal.
Standard of Review
We review a dismissal of an in forma pauperis suit under an abuse of
discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco
1996, no writ); see Martinez v. Thaler, 931 S.W.2d 45, 46 (Tex. App.—Houston
[14th Dist.] 1996, writ denied). Abuse of discretion exists where a court acts
without reference to applicable guiding principles, acts arbitrarily, or misinterprets
or misapplies those guiding rules or the law. Vacca v. Farrington, 85 S.W.3d
438, 440 (Tex. App.—Texarkana 2002, no pet.); Letson v. Barnes, 979 S.W.2d
414, 417 (Tex. App.—Amarillo 1998, pet. denied). Trial courts are given broad
discretion to determine whether a case should be dismissed because
(1) prisoners have a strong incentive to litigate; (2) the government bears the
cost of an in forma pauperis suit; (3) sanctions are not effective; and (4) the
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dismissal of unmeritorious claims accrues to the benefit of state officials, courts,
and meritorious claimants. See Montana v. Patterson, 894 S.W.2d 812, 814–15
(Tex. App.—Tyler 1994, no writ). We will affirm such a dismissal if it was proper
under any legal theory. Birdo v. Debose, 819 S.W.2d 212, 215 (Tex. App.—
Waco 1991, no writ). In considering the record before us, we review and
evaluate pro se pleadings with liberality and patience, but otherwise apply the
same standards applicable to pleadings drafted by lawyers. Foster v. Williams,
74 S.W.3d 200, 202 (Tex. App.—Texarkana 2002, pet. denied).
Discussion
A court may dismiss a claim under chapter 14 if the court finds that the
claim is ―frivolous or malicious,‖ Tex. Civ. Prac. & Rem. Code Ann. § 14.003, or if
the inmate has failed to exhaust his administrative remedies, Id. § 14.005. In
determining whether a claim is frivolous or malicious, the 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).
When the trial court dismisses a claim without a hearing, we are to
determine on appeal simply whether the claim had no arguable basis in law,
which we review de novo. Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex.
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App.—Houston [1st Dist.] 2002, no pet.); Sawyer v. Tex. Dep’t of Criminal
Justice, 983 S.W.2d 310, 311 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).
That is because when a claim is dismissed without a fact hearing, the trial court
could not have determined that the suit had no arguable basis in fact. Harrison v.
Tex. Dep’t of Criminal Justice-Inst. Div., 915 S.W.2d 882, 887 (Tex. App.—
Houston [1st Dist.] 1995, no writ); see Vacca, 85 S.W.3d at 441; In re Wilson,
932 S.W.2d 263, 265 (Tex. App.—El Paso 1996, no writ). We review Mr. Milton’s
claims accordingly.
A. Exhaustion of Administrative Remedies
Under section 14.005, an inmate who is suing on ―a claim that is subject to
the [TDCJ] grievance system‖ must, as a prerequisite to suit, file a claim with the
grievance system and receive a written decision. Tex. Civ. Prac. & Rem. Code
Ann § 14.005. As the plain language of the statute provides, section 14.005
does not apply to claims that are not grievable. According to the Offender
Orientation Handbook, grievable issues include ‖[t]he interpretation or application
of TDCJ policies, rules, regulations, and procedures‖ and ―[t]he actions of an
employee.‖ Tex. Dep’t of Criminal Justice, Offender Orientation Handbook 53
(Nov. 2004), available at http://www.tdcj.state.tx.us/publications/cid/Offend
OrientHbkNov04.pdf. Non-grievable issues include ―[m]atters for which other
appeal mechanisms exist.‖ Id. In his third point, Mr. Milton claims that the trial
court abused its discretion by dismissing his causes of action for his failure to
exhaust his administrative remedies. We agree with Mr. Milton that he has
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exhausted his administrative remedies in regard to the denial of Fire to the
Prisons, Issue No. 6; however, we do not agree that he has exhausted the
administrative remedies in regard to the delayed delivery of the other
publications.
TDCJ Board Policy 3.91 sets out the appeal process for the rejection of
publications. See Tex. Dep’t of Criminal Justice, Board Policy 3.91, Uniform
Offender Correspondence Rules 13 (Feb. 2010), available at
http://www.tdcj.state.tx.us/policy/BP0391r2_fnl.pdf. To appeal, an inmate must
make a written notice of appeal to the DRC within two weeks of the notification of
rejection. Id. The DRC must then render a decision within two weeks of
receiving the appeal. Id. Mr. Milton appealed the denial of Fire to the Prisons,
Issue No. 6 through the proper channel and filed the final written decision of the
DRC with his petition. Because there was an alternative appeal mechanism for
denials of publications, Mr. Milton was not required (and not able) to file a
complaint through the grievance system. Mr. Milton thus exhausted his
administrative remedies regarding the denial of Fire to the Prisons, Issue No. 6.
However, the Board Policy regarding correspondence does not provide an
appeals process for mail delays. See Board Policy 3.91. As Mr. Milton notes,
the delayed publications were not listed on the publication denial form he
received, and he did not complain of their delay to the DRC. Because there was
no appeals system set up for mail delays, the administrative remedy for such
issues is the grievance system. See Offender Orientation Handbook 53. Under
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chapter 14, Mr. Milton was required to file a grievance regarding the mail delays
and receive a written response. See Tex. Civ. Prac. & Rem. Code Ann.
§ 14.005. Mr. Milton did not file a grievance and therefore did not exhaust his
administrative remedies in regards to the delay of the three publications. The
trial court properly dismissed his claims regarding the delayed publications. We
therefore overrule Mr. Milton’s third point to the extent he complains of the
delayed publications. As to the denied publication, we continue our analysis
below.
B. Frivolous or Malicious Claims under Chapter 14
1. Free Speech Claims
In his first point, Mr. Milton complains that the trial court abused its
discretion by dismissing his claims as frivolous or malicious under chapter 14 of
the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann.
§ 14.003. Mr. Milton first argues that the denial of an issue of the periodical Fire
to the Prisons violates his first amendment rights. See U.S. Const. amend. I.
―[I]n determining the constitutional validity of prison practices that impinge upon a
prisoner's rights with respect to mail, the appropriate inquiry is whether the
practice is reasonably related to a legitimate penological interest.‖ Brewer v.
Wilkinson, 3 F.3d 816, 824 (5th Cir.1993). The denial of the Fire to the Prisons
issue, which was determined by TDCJ to contain ―material that a reasonable
person would construe as written solely for the purpose of communicating
information designed to achieve the breakdown of prisons through offender
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disruption such as strikes or riots,‖ was reasonably related to the legitimate
interest of preventing strikes and riots in the prison. See Chriceol v. Phillips, 169
F.3d 313, 316 (5th Cir. 1999) (holding that prison mail policies which restrict
access to potentially violence-producing materials is constitutionally valid). Thus,
Mr. Milton has failed to set forth a cognizable First Amendment claim.
2. Equal Protection
Mr. Milton next claims that the denial of Fire to the Prisons violates the
equal protection clause of the Constitution because the denial ―wou[l]d not be
employed upon and against a White inmate who has exercised his right to seek
out judicial review in a previous incident of mail denial.‖ See U.S. Const. amend.
XIV. To assert an equal protection claim, Appellant must establish two elements:
1) that he was treated differently than other similarly situated parties, and 2) that
he was treated differently without a reasonable basis. Sanders v. Palunsky, 36
S.W.3d 222, 225 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
Reviewing Mr. Milton’s brief as liberally as possible,3 Mr. Milton has done
nothing more than to state that the appellee’s violation of TDCJ policy ―inherently
3
Mr. Milton complains in his fourth point that the court erred in not liberally
construing his pleadings. We first note that ―[a] pro se inmate’s petition should
be viewed with liberality and patience and is not held to the stringent standards
applied to formal pleadings drafted by attorneys.‖ Minix v. Gonzales, 162 S.W.3d
635, 637 (Tex. App.—Houston [14th Dist.] 2005, no pet.). However, we also
recognize that pro se litigants must abide by the same standards as licensed
attorneys and comply with applicable laws and rules of procedure. See Amir-
Sharif v. Mason, 243 S.W.3d 854, 856–58 (Tex. App.—Dallas 2008, no pet.)
(citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex.1978)).
Even with a liberal review of the pleadings, the trial court acted properly and
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violates‖ the Fourteenth Amendment. He has provided no argument, no
analysis, and no law. Nor did his petition set out any facts or argument regarding
equal protection. His response to the appellee’s motion to dismiss was likewise
devoid of argument, analysis, and law. Mr. Milton’s own pleadings and
documents show that the publication was denied because it contained
―information designed to achieve the breakdown of prisons through offender
disruption‖—a legitimate reason for denial. Mr. Milton has failed to allege any
facts that, if true, would support his contention that the publication was not
denied for a legitimate reason, but instead was denied because of his race. The
trial court was within its discretion to find that Mr. Milton’s equal protection claim
had no realistic chance of success. See Tex. Civ. Prac. & Rem. Code Ann.
§ 14.003(b).
3. Procedural Due Process
Mr. Milton alleges that the Appellees’ failure to note the three ―held‖
publications on the denial notification he received denied him the due process by
which to complain of their delay. As we noted above, Mr. Milton was afforded a
process by which to complain—the TDCJ grievance system. Mr. Milton did not
file a grievance and did not obtain a final administrative decision on the delayed
publications. He cannot now complain of a due process violation as we have
affirmed the trial court’s dismissal of these claims. See Tex. Civ. Prac. & Rem.
within its discretion to dismiss the case for failure to meet the requirements of
chapter 14. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003.
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Code Ann. § 14.005. Mr. Milton’s claims relating to the denied publication had no
arguable basis in law, and he failed to state any constitutional claim.
We hold that the court did not abuse its discretion by dismissing Mr.
Milton’s claims as frivolous or malicious under chapter 14, and we overrule his
first and fourth points. Because we hold that dismissal as to all claims was
proper under at least one theory, we do not reach Mr. Milton’s second point.4
See Tex. R. App. P. 47.1.
Conclusion
Having affirmed the dismissal of Mr. Milton’s claims on at least one theory,
we affirm the judgment of the trial court.
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DELIVERED: March 3, 2011
4
We do note, however, that Mr. Milton’s second point complains that the
trial court erred by dismissing his claims for his failure to provide a certified copy
of his inmate trust fund account statement, as required by chapter 14. See Tex.
Civ. Prac. & Rem. Code Ann. §§ 14.004(c), .006(f). The State conceded in its
brief that Mr. Milton did in fact attach the requisite copy of the account statement.
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