Rob L. Newby v. Sam Chambers, J. Cunningham, G. Currie, M. Roesler, Shannon Kersh, Vickie Barrow, and the State of Texas ( 2009 )

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

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NO. 14-08-00338-CV

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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.CHouston [1st Dist.] 2006, no pet.); Leonard v. Abbott, 171 S.W.3d 451, 459 (Tex.  App.CAustin 2005, pet. denied); Forist v. Vanguard Underwriters Ins., 141 S.W.3d 668, 670 (Tex. App.CSan 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 Acommenced, 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 Ashall order the plaintiff to furnish security for the benefit of the moving defendant. . . .@  Id. ' 11.055.   AThe 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 Adevelop 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.CCorpus 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, 349B52 (1996).  The Thirteenth Court of Appeals concluded that Newby could not Aprevail 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 Apursuit of legal research@ to Adevelop [his] claims and prepare responsive pleadings.@  He also contended that prison officials were Aabundantly aware@ he was involved in nine active cause numbers and was Astruggling 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 Athe 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 Ano 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.

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^[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, 165B67 (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) (AThis 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, 698B99 (Tex. App.CCorpus 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 Aqualified, 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 Athe issue was that I-60s [research] and grievances are not readily available on the wing.@  Prison officials responded by stating that AI-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 Adeliberately trying to thwart@ his efforts to Aeffectively 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) (AComeaux 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.