Christopher Karone Turner v. Carlos D. Delgado, James Garland, and Alvin Harris ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00339-CV
____________________
CHRISTOPHER KARONE TURNER, Appellant
V.
CARLOS D. DELGADO, JAMES GARLAND, AND ALVIN HARRIS,
Appellees
_______________________________________________________ ______________
On Appeal from the 411th District Court
Polk County, Texas
Trial Cause No. CIV28315
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MEMORANDUM OPINION
Seeking a judgment for $301,000 in actual damages and $1,000 in punitive
damages under the Texas Theft Liability Act, Christopher Karone Turner sued
three employees of the Texas Department of Criminal Justice, Correctional
Institutions Division. See Tex. Civ. Prac. & Rem. Code Ann. § 134.001-.005 (West
2011). The trial court dismissed Turner’s suit. See Tex. Civ. Prac. & Rem. Code
Ann. § 14.010 (West 2002). In his appeal, Turner complains the trial court abused
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its discretion by denying his motion for a default judgment, by denying his motion
to vacate the judgment and reinstate the case, by dismissing his claim on the basis
that he failed to comply with requirements that apply to filings by indigent
inmates, and by granting the motion to dismiss filed by the employees of the
Department of Criminal Justice. We affirm the judgment of dismissal, which we
note was without prejudice. See Ham v. Stephens, No. 01-15-00036-CV, 2015 WL
6081815, at *3 (Tex. App.—Houston [1st Dist.] Oct. 15, 2015, no pet. h.) (mem.
op.) (holding that the dismissal of a prisoner’s suit pursuant to the court’s authority
under Chapter 14 of the Texas Civil Practice and Remedies Code is without
prejudice where the dismissal order is silent on the issue).
Background
In his original petition, Turner alleged that Sergeant Garland and Lieutenant
Harris moved him to a prehearing detention facility in another building in his
prison. According to Turner, Garland and Harris refused to allow him to take his
property with him to the building when he was being moved, and they ordered
Correctional Officer Delgado to take his property, inventory it, and place it in a
room in a specific building where he understood it was to be stored. According to
Turner, the property was removed from the room he was living in before he was
moved and later, it was never returned to him. Turner also claims that Delgado
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never turned in the inventory on his property. Turner contends that the Texas
Department of Criminal Justice, based on its policies, was required to reimburse or
replace his lost or stolen property; however, he claims the grievances that he filed
regarding the property were either suppressed or denied.1
In May 2014, Turner filed a motion to default Delgado, Garland, and Harris
on the basis that they had failed to file answers. Turner’s motion was denied. In
June 2014, Delgado, Garland, and Harris answered Turner’s suit; on the date they
filed their answers, they moved to dismiss Turner’s suit on the basis that it was
frivolous. Five days after they filed their motion to dismiss, the trial court
dismissed Turner’s claims. The trial court’s judgment states that it dismissed
Turner’s suit because he failed “to comply with Chapter 14 of the Texas Civil
Practice and Remedies Code.”
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Turner attached an unsworn declaration to his petition that was designed to
show that he filed a Step 1 and a Step 2 grievance with the Texas Department of
Criminal Justice regarding his property. In his Step 1 grievance, Turner alleged
that the officer in charge of the property room where Turner understood his
property was to be taken deprived him of his property. However, Turner’s Step 1
grievance does not include a complaint against any of the defendants in this case.
In Turner’s Step 2 grievance, he mentioned that Garland told him that he ordered
Delgado to move Turner’s property into a certain building where it was to be
stored. The grievances reflect that they were denied, as the Department found that
Turner provided insufficient evidence to substantiate his claims about his property.
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Denial of Default Judgment
In issue one, Turner contends the trial court abused its discretion by denying
his motion seeking a default judgment. However, at the time the trial court denied
Turner’s motion, the evidence before the court did not show the defendants had
been served with citation as required under Rule 106 of the Texas Rules of Civil
Procedure. Because Turner failed to establish that the defendants were properly
served, we hold the trial court properly denied Turner’s motion. We overrule issue
one.
Motion to Vacate Judgment
In issue two, Turner contends the trial court abused its discretion when it
denied his motion to vacate the judgment and denied his request to reinstate the
case on the court’s docket. According to Turner, the trial court should not have
ruled on the defendants’ motion to dismiss before he was properly served with the
motion. Turner also contends the trial court lacked jurisdiction over the
defendants’ motion to dismiss because it was not served on him before the motion
was granted.
In a case involving a prisoner, a trial court is not required to wait on the
defendants to file a motion to dismiss before it may dismiss a prisoner’s case. See
Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (West 2002) (providing that a
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court may dismiss a prisoner’s claim “either before or after service of process” on
five grounds, one of which includes cases in which the trial court finds the claim to
be “frivolous or malicious”). A case is frivolous if it has no arguable basis in law.
Fernandez v. T.D.C.J., 341 S.W.3d 6, 13 (Tex. App.—Waco 2010, no pet.). “An
inmate who brings a claim falling within the scope of Chapter 14 has no right to
notice of a motion to dismiss, nor to a mandatory hearing.” Morris v. Tarlton, No.
11-13-00199-CV, 2015 WL 4523531, at *1 (Tex. App.—Eastland July 23, 2015,
no pet. h.) (mem. op.); see also Hamilton v. Williams, 298 S.W.3d 334, 340 (Tex.
App.—Fort Worth 2009, pet. denied) (“an inmate who brings a claim falling within
the scope of chapter fourteen has no right to notice of a motion to dismiss, nor to a
mandatory hearing”); Hughes v. Massey, 65 S.W.3d 743, 745 (Tex. App.—
Beaumont 2001, no pet.) (“the inmate had no right to notice of a motion to dismiss
or to an opportunity to amend”). For the reasons we explain in resolving issue
three, Turner’s claims against Delgado, Garland, and Harris were frivolous. We
hold the trial court did not abuse its discretion by denying Turner’s motion to
vacate or by denying his motion to reinstate the case. We overrule issue two.
Chapter 14 Dismissal
In issue three, Turner argues that the trial court abused its discretion by
dismissing his case as frivolous. According to Turner, he sued the officers that took
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his property based on acts that were not within the scope of their duties as
correctional officers. However, in our opinion, the trial court did not abuse its
discretion by interpreting Turner’s petition to allege claims grounded on the
officers’ duties as correctional officers.
Whether a state employee is acting within the scope of his or her
employment for purposes of the Tort Claims Act depends upon whether the
employee is performing duties generally assigned to them when the tort occurs.
Lopez v. Serna, 414 S.W.3d 890, 894-95 (Tex. App.—San Antonio 2013, no pet.).
“‘Scope of employment’ means the performance for a governmental unit of the
duties of an employee’s office or employment and includes being in or about the
performance of a task lawfully assigned to an employee by competent authority.”
Tex. Civ. Prac. & Rem. Code Ann. § 101.001(5) (West Supp. 2014). “An
employee’s act is not within the scope of employment when it occurs within an
independent course of conduct not intended by the employee to serve any purpose
of the employer.” Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014) (quoting
Restatement (Third) of Agency § 7.07(2) (2006)).
In his petition, Turner alleged that department policy required the employees
of the Department of Criminal Justice to pack, inventory, secure and return inmate-
owned property. He complained in his petition that the theft of his property arose
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from the negligence of Delgado, Garland, and Harris to implement and perform
their obligations based on the policies of the Department of Criminal Justice.
Turner pled that the officers’ conduct, which resulted in the loss of his property,
was subject to the prison grievance system. See generally Tex. Gov’t Code Ann. §
501.008 (West 2012). However, “[a] remedy provided by the grievance system is
the exclusive administrative remedy available to an inmate for a claim for relief
against the department that arises while the inmate is housed in a facility operated
by the department[.]” Id.
In our opinion, the trial court reasonably viewed Turner’s petition as
alleging claims against the officers that related to their acts as employees of the
Department of Criminal Justice. As such, the trial court’s interpretation that
Turner’s claims were claims that he could have brought against the Department of
Criminal Justice was not unreasonable. See Lopez, 414 S.W.3d at 895.
When the employees of a governmental agency are named as defendants in a
suit, and where the claims alleged are claims that could have been brought against
the agency, the suit is considered to be a suit “against the employee in the
employee’s official capacity only.” Tex. Civ. Prac. & Rem. Code Ann. §
101.106(f) (West 2011).
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In his brief, Turner focuses on the claim he brought against the three officers
under the Theft Liability Act, and he says he did not sue them under the Tort
Claims Act. Nonetheless, Turner’s claims, as they were alleged in his petition, are
claims that could have been brought against the Department. “A plaintiff cannot,
through artful pleading, make a common law tort claim a statutory claim under the
Theft Liability Act.” Mason v. Wood, No. 09-12-00246-CV, 2013 WL 1088735, at
*3 (Tex. App.—Beaumont Mar. 14, 2013, no pet.) (mem. op.).
Turner argues that he should be allowed to proceed against the defendants
for mishandling his property because theft is not a claim for which the Legislature
waived the State’s sovereign immunity under the Tort Claims Act. However, a suit
against an employee of a government agency that is based on acts within the
general scope of the agency’s employment relationship is the equivalent of a suit
against the agency’s employee in his official capacity regardless of whether the
defendant can recover on the claim. See Franka v. Velasquez, 332 S.W.3d 367, 382
n.68 (Tex. 2011). “[A]ll tort theories alleged against a governmental unit, whether
it is sued alone or together with its employees, are assumed to be ‘under [the Tort
Claims Act]’ for purposes of section 101.106.” Mission Consol. Indep. School
Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008).
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In this case, the trial court apparently concluded that Turner was seeking to
sue Delgado, Garland, and Harris under the Theft Liability Act for activities that
allegedly occurred that fell within the scope of their employment as officers
employed by the Texas Department of Criminal Justice. However, the Theft
Liability Act does not include a waiver of immunity for a state agency of the
agency’s employees for conduct that was within the course of the employees’
employment. Lopez, 414 S.W.3d at 896. Since Turner cannot sue the three officers
under the Theft Liability Act for acting within the scope of their employment as
employees of the Department of Criminal Justice in removing Turner’s property,
the trial court properly concluded that Turner’s claims, as alleged, were frivolous.
We overrule issue three, and we affirm the trial court’s judgment dismissing
Turner’s suit without prejudice.
AFFIRMED.
________________________________
HOLLIS HORTON
Justice
Submitted on March 23, 2015
Opinion Delivered November 19, 2015
Before McKeithen, C.J., Horton and Johnson, JJ.
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