Marion R. Mosley v. John Doe Prison Guard 1 and John Doe Prison Guard 2 of the Coffield Unit ( 2010 )

Opinion issued August 12, 2010.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00214-CV

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Marion R. Mosley, Appellant

V.

John Doe Prison GUARD #1 and JOHN DOE PRISON GUARD #2 OF THE COFFIELD UNIT, Appellees

On Appeal from the 369th District Court

Anderson County, Texas[*]

Trial Court Case No. XXX-XX-XXXX

MEMORANDUM OPINION

Appellant Marion R. Mosley appeals the trial court’s judgment dismissing his case without prejudice.  Mosley sued two unidentified employees of the Texas Department of Criminal Justice—Institutional Division alleging that they threw away his dentures during a shakedown of his jail cell.  The trial court dismissed Mosley’s case, finding it to be “frivolous or malicious.” On appeal, Mosley contends that the trial court abused its discretion.

We affirm.

BACKGROUND

          According to Mosley’s petition, two prison guards searched his jail cell, where he had left his dentures.  When he was allowed to return to his cell, the dentures were missing.  Mosley asked to speak to the guards’ supervisor, and they denied his request. Mosley filed a “step 1” grievance seeking replacement of his dentures.  TDCJ responded:

Lt. Davis reports that the housing areas were searched in accordance with Agency Policy.  All property confiscated was properly handled, and confiscation papers were issued. There is no significant information to indicate your dentures were taken by Staff.  No further action is warranted.

          Mosley filed a “step 2” grievance stating that he was dissatisfied with the response to his “step 1” grievance.  TDCJ responded:

An investigation conducted at the Step 2 level revealed your dentures were never in the possession of TDCJ.  Lieutenant Davis reports you have no knowledge of the officer who supposedly removed or threw away in the trash your dentures.  You should contact the Dental Department on your unit of assignment to see if you qualify for some more dentures.  No corrective action is warranted at this time.

          Mosley filed suit in forma pauperis.  He alleged that the trial court had jurisdiction “pursuant to the provision of the TEXAS TORTS LAW.”  His cause of action alleged that during the search of his cell, “John Doe #1 [and] John Doe #2 threw Plaintiff’s dentures in the trash, which was removed from the cell block before Plaintiff was allowed to return to his cell.”  Mosley sought damages in the amount of $2,500. He filed a motion to proceed in forma pauperis and an affidavit related to previous filings (disclosing one prior civil lawsuit).  Nothing in the record indicates that any defendant was served or appeared.  The trial court dismissed Mosley’s case without prejudice.

Standard of Review

Chapter 14 of the Civil Practice and Remedies Code applies to suits brought by inmates in a district court in which an affidavit or unsworn declaration of inability to pay costs has been filed.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001–.014 (Vernon 2002).  When an inmate files an affidavit of inability to pay, the trial court has broad discretion to dismiss the suit as frivolous or malicious.  Id. § 14.003(a)(2), (b); see Retzlaff v. Tex. Dep’t of Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).  

In determining whether a claim is frivolous or malicious, a trial 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.  See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b).  

We review the dismissal of an inmate’s Chapter 14 case under an abuse of discretion standard.  Jackson v. Tex. Bd. of Pardons & Paroles, 178 S.W.3d 272, 278 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no pet.).  An abuse of discretion can be found when the trial court acts without reference to any guiding rules or principles.  Jackson, 178 S.W.3d at 275. However, when a trial court dismisses a claim without a hearing, the issue on appeal is whether the claim had no arguable basis in law.  Moreland, 95 S.W.3d at 394.  Therefore, because there is no indication in the record that the trial court held a hearing, we review de novo the legal question of whether the trial court properly concluded that the claim had no arguable basis in law. Id.

A claim has no arguable basis in law if it is based on an “indisputably meritless legal theory” or is based on “wholly incredible or irrational factual allegations.”  Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Minix v. Gonzales, 162 S.W.3d 635, 637 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

ANALYSIS

          Mosley first contends that the Government Code provides a cause of action for his claim for lost or damaged property.  See Tex. Gov’t Code Ann. § 501.007 (Vernon 2004). Section 501.007 authorizes discretionary payments to inmates for the destruction of their property by prison officials.  Id.  Although a private right of action may arise from a statute, see Lively v. Carpet Services, Inc., 904 S.W.2d 868, 871 (Tex. App.—Houston [1st Dist.] 1995, writ denied), nothing in section 501.007 suggests that the Legislature intended to create a statutory cause of action for an inmate to recover for loss of personal property.  See Hamilton v. Pechacek, No. 02-09-115-CV, 2010 WL 851410, at *8 (Tex. App.—Fort Worth Mar. 11, 2010, no pet.).  Rather, section 501.007 is part of an administrative grievance procedure, which itself is Mosley’s remedy by which to address loss of property.  See Tex. Gov’t Code Ann. §§ 501.007–.008 (Vernon 2004).

          Second, Mosley argues that he could bring suit under Chapter 104 of the Texas Civil Practice and Remedies Code.  Chapter 104 deals with State liability, not the personal liability of individual employees.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 104.001–.009 (Vernon 2005 & Supp. 2009).  “It provides no basis for appellant’s claim that the individual employee defendants are personally liable.”  Birdo v. Williams, 859 S.W.2d 571, 574 (Tex. App.—Houston [1st Dist.] 1993, no writ).  Mosley did not sue the State.  Mosley sued only two individual prison guards, to whom he referred as John Doe #1 and John Doe #2.  Because Mosley is suing the anonymous defendants in their individual capacity, Chapter 104 provides no basis for his claim.

          Third, to the extent that Mosley contends that his case had an arguable basis in the common law of torts, this issue is inadequately briefed because Mosley provided no argument or authority on this issue.  See Tex. R. App. P. 38.1(i); Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex. App.—Houston [1st Dist.] 2002, no pet.).  In both his petition filed in the trial court and his brief on appeal, Mosley fails to identify any particular tort claim for which he has an arguable basis in law.  Although we liberally construe pro se pleadings and briefs, we nonetheless require pro se litigants to comply with applicable laws and rules of procedure.  See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (“pro se litigants are not exempt from the rules of procedure”); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978); Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex. App.—Houston [1st Dist.] 1985, no writ).

We conclude that Mosley’s claims had no arguable basis in law, and we hold that the trial court did not abuse its discretion in dismissing Mosley’s case without prejudice.  We overrule Mosley’s appellate issues.

CONCLUSION

          We affirm the judgment of the trial court.

                                                                   Michael Massengale

                                                                   Justice

Panel consists of Justices Keyes, Sharp, and Massengale.

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[*]        The Texas Supreme Court transferred this appeal from the Court of Appeals for the Twelfth District of Texas.  Misc. Docket No. 08-9177 (Tex. Dec. 15, 2008); see Tex. Gov’t Code Ann. § 73.001 (Vernon 2005) (authorizing transfer of cases).  We are unaware of any conflict between precedent of the Court of Appeals for the Twelfth District and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3.