Robbie Lynn Newby A.K.A. Rob L. Newby v. Nathaniel Quarterman, James R. Cunningham, Vickie Barrow ( 2009 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-08-00385-CV ____________________

ROBBIE LYNN NEWBY a.k.a. ROB L. NEWBY, Appellant

V.

NATHANIEL QUARTERMAN, JAMES R. CUNNINGHAM, VICKIE BARROW, Appellees

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On Appeal from the 1-A District Court Tyler County, Texas Trial Cause No. 20,645

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MEMORANDUM OPINION  

In September 2007, Robbie Lynn Newby filed an application, in forma pauperis, under Chapter 65 of the Texas Civil Practice and Remedies Code requesting a writ of injunction seeking to restrain appellees from refusing to permit inmate-to-inmate correspondence between Newby and other inmates of the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID") whom he alleges are witnesses in his pending action in Newby v. Pate ⁽¹⁾, as well as intended co-plaintiffs in a class action suit Newby alleges he was developing with such inmates prior to his transfer to another unit. Newby's writ application does not indicate the basis of the class action lawsuit he alleges was being developed.

Appellees answered Newby's application for writ of injunction and filed a motion to declare Newby a vexatious litigant, pursuant to section 11.054 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 11.054 (Vernon 2002). In their motion, appellees argued (1) there was no reasonable probability that Newby would prevail on his claims and (2) that Newby had extensive previous unsuccessful lawsuits. Appellees characterized Newby's claims as claims for "interference with access to courts through his right to petition for denying him the right to conduct inmate-to-inmate correspondence with alleged eye-witnesses and/or co-plaintiffs to another suit he has pending." Appellees argued that Newby could not reasonably prevail on his claims because a violation of the right of access to courts is only recognized where an inmate can demonstrate actual harm, specifically, "some hindrance to the inmate's effort to pursue a legal claim." Appellees asserted that Newby failed to establish that the inmates he sought to correspond with were either witnesses in his pending litigation or co-parties to currently active litigation, therefore, there was no merit to Newby's denial of access to court claims, as asserted in his writ application. Appellees rely upon Newby's affidavit of previous filings, filed with his original complaint in Newby v. Pate, which listed six cases filed by Newby that had been dismissed. Newby responded to the motion arguing that he was not a vexatious litigant. Thereafter, appellees supplemented their motion alleging that Newby had previously been declared a vexatious litigant in Tyler County, Texas.

After a hearing on appellees' motion, the court declared Newby to be a vexatious litigant and ordered him to post a $2,000 bond within the time set by the order, or the cause would be dismissed. Newby failed to post the required bond, and on July 29, 2008, Newby was informed by the court that the case had been dismissed. Newby filed a notice of appeal. The court entered its dismissal order on August 22, 2008. This appeal followed.

Appellant's Issue

Appellant argues in a single issue that the trial court erred in dismissing his injunction suit for failure to post a vexatious litigant bond because the court abused its discretion by granting appellees' motion to declare appellant a vexatious litigant.

Chapter 11 of the Texas Civil Practice and Remedies Code provides a mechanism for restricting frivolous and vexatious litigation. See Tex. Civ. Prac. & Rem. Code Ann. §§ 11.001-.104 (Vernon 2002). When Chapter 11 was enacted, the legislature sought to strike a balance between a citizen's right of access to courts and the public interest in protecting defendants from those who abuse the civil justice system by systematically filing lawsuits with little or no merit. Leonard v. Abbott, 171 S.W.3d 451, 455 (Tex. App.--Austin 2005, pet. denied); see also Harris v. Rose, 204 S.W.3d 903, 905 (Tex. App.--Dallas 2006, no pet.); Willms v. Americas Tire Co., 190 S.W.3d 796, 804 (Tex. App.--Dallas 2006, pet. denied).

The trial court's determination that appellant is a vexatious litigant is reviewed under an abuse of discretion standard. Douglas v. Am. Title Co., 196 S.W.3d 876, 879 (Tex. App.--Houston [1st Dist.] 2006, no pet.). "The trial court abuses its discretion by acting arbitrarily, unreasonably, or without consideration of guiding principles." Id. When the trial court makes no formal findings of fact or conclusions of law (as is the case here), we must presume the trial court made all findings necessary to support its judgment. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). In such situations, the trial court's ruling must not be disturbed if "it can be upheld on any legal theory that finds support in the evidence." Id.; see also In re Brookshire Bros., Ltd., 198 S.W.3d 381, 387 (Tex. App.--Texarkana 2006, orig. proceeding [mand. denied]) (holding where a trial court enters no written findings, mandamus court must uphold trial court on any legal theory finding support in evidence).

In order for a court to find a plaintiff a vexatious litigant, the defendant must first show that there is no reasonable probability that the plaintiff will prevail in the litigation against the defendant. Tex. Civ. Prac. & Rem. Code Ann. § 11.054. In addition, the defendant must also prove one of the following:

(1) the plaintiff, in the seven-year period immediately preceding the date the defendant makes the motion under Section 11.051, has commenced, prosecuted, or maintained in propria persona at least five litigations other than in small claims court that have been:

(A) finally determined adversely to the plaintiff;

(B) permitted to remain pending at least two years without having been brought to trial or hearing; or

(C) determined by a trial or appellate court to be frivolous or groundless under state or federal laws or rules of procedure;

(2) after a litigation has been finally determined against the plaintiff, the plaintiff repeatedly relitigates or attempts to relitigate, in propria persona, either:

(A) the validity of the determination against the same defendant as to whom the litigation was finally determined; or

(B) the cause of action, claim, controversy, or any of the issues of fact or law determined or concluded by the final determination against the same defendant as to whom the litigation was finally determined; or

(3) the plaintiff has previously been declared to be a vexatious litigant by a state or federal court in an action or proceeding based on the same or substantially similar facts, transition, or occurrence.

Id. § 11.054 (1)-(3).

On appeal, Newby argues that the trial court abused its discretion in declaring plaintiff a vexatious litigant because (1) appellees failed to show that there was not a reasonable probability that Newby would prevail in his litigation, and (2) that none of the remaining criteria of section 11.054 were met.

Reasonable Probability that Newby will Prevail in his Injunction Suit

Newby argues that appellees incorrectly asserted that the underlying cause of action was an access to courts claim, subject to the actual harm requirement under Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996). Newby contends that while his action sought an injunction for the purpose of securing his right of access to courts, it was brought as an application for an injunction pursuant to Chapter 65 of the Texas Civil Practice and Remedies Code, making the actual harm requirement set forth in Lewis inapplicable. While we agree that Newby's claim in the trial court was an application for injunction, subject to the provisions of Chapter 65, we recognize that in order to prevail under his writ application Newby would have to show he was entitled to the relief he requested. See generally Tex. Civ. Prac. & Rem. Code Ann. § 65.011 (Vernon 2008).

In his application for a writ of injunction, Newby sought "relief from [appellees'] refusal to permit correspondence between [Newby] and witnesses named in an existing action [Newby v. Pate] and intended co-plaintiffs in an action that was being developed by co-plaintiffs (who were separated by prison officials later, and before that action could be filed)." Newby characterized his writ application as an action in equity whereby the applicant seeks a writ of injunction under the principles of equity and the statutes of this state. See id. § 65.011 (3)(granting writ application "if the applicant is entitled to a writ of injunction under the principles of equity and the statutes of this state relating to [an] injunction[.]").

To prevail under his writ application, Newby would have had to show he was entitled to a writ of injunction to restrain appellees from denying him inmate-to-inmate correspondence under the circumstances presented. See id. § 65.011(3). Therefore, Newby would have had to establish that the underlying conduct complained of was wrongful, i.e. that appellees' improperly denied Newby access to courts, viz: by denying him the requested inmate-to-inmate correspondence. See generally § 65.011; see also Jordan v. Landry's Seafood Rest., Inc., 89 S.W.3d 737, 742 (Tex. App.--Houston [1st Dist.] 2002, pet. denied) ("The first element of a permanent injunction requires the existence of a wrongful act."). We conclude that appellees have shown there is no reasonable probability that Newby would prevail under such a claim, and likewise, no reasonable probability that he would have prevailed in his writ application.

In Newby v. Chambers, No. 14-08-00338-CV, 2009 WL 1416078 (Tex. App.--Houston [14th Dist.] May 21, 2009, no pet. h.) (mem. op.), the Houston Court of Appeals addressed similar access of court claims asserted by Newby. In Chambers, Newby sued prison officials after they allegedly denied him access to grievance forms and legal research forms. Chambers, 2009 WL 1416078, at *2. The court recognized that to establish the denial of the right of access to courts, "an inmate must show actual harm resulting from the prison officials' alleged conduct." Id. (citing Lewis v. Casey, 518 U.S. 343, 349-52, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996)). "In other words, he must establish that 'his position as a litigant was prejudiced by his denial of access to the courts.'" Newby v. Hurley, No. 13-08-016-CV, 2008 WL 3868338, at *2 (Tex. App.--Corpus Christi Aug. 21, 2008, no pet.) (mem. op.).

In Lewis v. Casey, the Supreme Court explained that the actual-injury requirement "is not satisfied by just any type of frustrated legal claim." Lewis, 518 U.S. at 354. The Court clarified that an inmate's right to have access to courts does not guarantee inmates the wherewithal to pursue all possible claims. Id. at 355. Rather, inmates are guaranteed only the tools necessary "to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement." Id. The Supreme Court concluded that the "[i]mpairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id.

In Chambers, the Houston Court of Appeals found that Newby failed to "[identify] any injury caused by the prison officials' alleged failure to provide him grievance forms or legal research request forms." Chambers, 2009 WL 1416078, at *3. The court stated,

Instead, [Newby] alleged that the appellees' failure to provide him forms impeded his "pursuit of legal research" to "develop [his] claims and prepare responsive pleadings." He also contended that prison officials were "abundantly aware" he was involved in nine active cause numbers and was "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.

Id. (citation omitted) (emphasis added). The court further noted that "an inmate does not have a constitutionally protected right to access a grievance procedure." Id. Therefore, inmates are not unconditionally entitled to a prison grievance procedure. Id. Finally, the court recognized that there is no federally protected liberty interest in having prison grievances resolved to an inmate's satisfaction. Id. The court concluded under the circumstances of that case that the trial court did not abuse its discretion in finding that Newby had no reasonable probability of prevailing on his access to court claims. Id; see also Hurley, 2008 WL 3868338, at *2 (holding Newby could not prevail on his access to courts claim because Newby failed to allege actual harm in pending litigation).

Newby's pending action in Newby v. Pate is not a suit in which Newby challenges his convictions or the conditions of his confinement. The complaint filed by Newby alleges that in retaliation against Newby for "filing grievances and/or a current litigation," prison officials violated his constitutional rights and denied him access to the courts. Specifically, Newby alleges in his complaint that the law library supervisor, Mr. Pate, conducted an unreasonable search of Newby's outgoing correspondence, improperly citing reasonable suspicion as the basis for the search. Newby alleges his constitutional right to "petition the government for a redress of grievances" was violated by prison officials who denied his request for documentation of the justification of the search and, thereafter, denied him relief through the grievance process.

The record does not indicate the basis of Newby's alleged class action lawsuit, but it is undisputed that such action was merely being "developed" at the time of Newby's request for inmate-to-inmate correspondence.

Even if Newby's claims were the type of claims for which he had the right of court access under Lewis, Newby does not specify what, if any, actual injury occurred in his pending or developing lawsuit as a result of his being denied the requested inmate-to-inmate correspondence. While Newby states generally that he "faces dismissal" in Newby v. Pate, as well as, "the deprivation of his right of access to courts in pursing his intended class action," he does not specify how the inmates' testimony is relevant or significant, or why a failure to obtain such testimony would be fatal to any causes of action challenging his conviction or the conditions of his confinement. Newby has failed to allege any actual harm in support of his denial of access to courts claims, as set forth in support of his application for a writ of injunction. Under these circumstances, we cannot say the trial court abused its discretion in determining that Newby had no reasonable probability of prevailing in his injunction suit against appellees.

Prior Litigations Dismissed as Frivolous or Groundless

Newby argues that appellees have not met their burden to establish the remaining criteria of section 11.054. See Tex. Civ. Prac. & Rem. Code Ann. § 11.054. According to Newby, appellees have shown that Newby has been unsuccessful in at least six previous litigations, but he argues appellees' evidence failed to meet the requirements of the statute. We disagree. Appellees submitted evidence with their motion establishing that Newby had maintained at least six litigations in the seven years immediately preceding the filing of their motion, which were determined by a trial court "to be frivolous or groundless under state or federal laws or rules of procedure." Specifically, appellees presented evidence of dismissals of the following suits maintained by Newby:

(1) Newby v. Dretke, No. 2:05-CV-0128 (N.D. Tex. Sept. 19, 2006) (dismissing cause with prejudice as frivolous); ⁽²⁾

(2) Newby v. Director, TDCJ-CID, No. 6:07-CV-0197 (E.D. Tex. Aug. 22, 2007) (ordering that the plaintiff take nothing by his suit and that the same is dismissed);

(3) Newby v. Ward, No. 20,550 (1-A Dist. Ct., Tyler County, Tex. Sept. 26, 2007) (dismissing case as frivolous);

(4) Newby v. Quarterman, No. 4:07-CV-1177 (S.D. Tex. May 29, 2007) (denying petition for habeas relief and dismissed case with prejudice);

(5) Newby v. Cunningham, No. 20,549 (1-A Dist. Ct., Tyler County, Tex. Sept. 6, 2007) (dismissing case with prejudice); and

(6) In re Newby, No. 07-07-0228-CV, 2007 WL 2066359 (Tex. App.--Amarillo July 19, 2007, orig. proceeding) (dismissing mandamus petition in part and denied in part).

The trial court could reasonably have found sufficient prior lawsuits initiated by Newby determined to be frivolous or groundless to meet the requirements of the statute. See Tex. Civ. Prac. & Rem. Code Ann. § 11.054 (1)(C).

Newby Previously Declared Vexatious Litigant

Appellees supplemented their application with an order, signed by the same trial judge just sixty days before the hearing, in Newby v. Chambers, No. 20,614 (1-A Dist. Ct., Tyler County, Tex. Jan. 11, 2008), wherein the trial court found Newby to be a vexatious litigant. In his affidavit listing his prior lawsuits, Newby described the facts in Newby v. Chambers case as follows: "claim for damages and equitable relief filed August 23, 2007 addressing the refusal of the defendants to provide the plaintiff with 1-60s, grievances and Shepard's requests in April and May of 2007." Essentially, he claimed that his litigation efforts were being thwarted by the defendants. One of the defendants in that suit was Cunningham, who works in the law library and is also a defendant in this case. In this case, Newby claims Cunningham and others are refusing to allow him to correspond with other inmates about his litigation efforts. The "similarity" between at least these two proceedings is determined by the gist of the vexatious litigations; Newby sues in both cases based on alleged attempts by Cunningham and other prison officials to thwart Newby's litigation efforts. If a plaintiff has previously been declared a vexatious litigant in an action "based on the same or substantially similar facts, transition, or occurrence," that order is sufficient alternate proof. See Tex. Civ. Prac. & Rem. Code Ann. § 11.054 (3). From Newby's own pleadings, affidavit, and statements at the hearing, the court could reasonably conclude the two proceedings against Cunningham and others were based on "substantially similar facts, transition or occurrence."

On the record before us we find that the trial court did not abuse its discretion in declaring Newby a vexatious litigant. We overrule appellant's sole issue on appeal and affirm the judgment of the trial court.

AFFIRMED.

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CHARLES KREGER

Justice

Submitted on August 7, 2009

Opinion Delivered November 12, 2009

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. Newby filed a complaint against various individuals employed at the Roach Unit of the Texas Department of Criminal Justice alleging retaliation and interference with his access to the courts. That suit remains pending. Newby v. Pate, No. 2:06-CV-127-J (N.D. Tex. filed May 15, 2006).

2. We note that Newby v. Dretke was dismissed in part, with the remainder of Newby's causes of action remanded to the trial court for further disposition.