Cliff Carlton Rice v. Bryan Collier ( 2022 )

Opinion issued May 17, 2022
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00843-CV
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CLIFF CARLTON RICE, Appellant
V.
BRYAN COLLIER, LEONARD ECHESSA, MICHAEL BUTCHER,
RICHARD BABCOCK, AND RONALD GIVENS, Appellees
On Appeal from the 412th Judicial District Court
Brazoria County, Texas
Trial Court Case No. 91507-I
MEMORANDUM OPINION
Appellant Cliff Carlton Rice, an inmate in the Texas Department of Criminal
Justice (“TDCJ”) Ramsey I Unit, appeals from the purported dismissal of his claims
against current or former prison officials. In his original petition, Rice sought
declaratory and injunctive relief against four prison officials—Bryan Collier,
Michael Butcher, Leonard Echessa, and Richard Babcock—alleging they were
violating the terms of a memorandum agreement entered in previous federal
litigation concerning the Ramsey I Unit.1 Two defendants—Collier and Butcher—
answered and moved to dismiss the claims against them as frivolous under Chapter
14 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.
CODE §§ 14.001–.014 (Inmate Litigation). The trial court granted Collier’s and
Butcher’s motions, noting by handwritten notation that the dismissal orders were
interlocutory because other defendants remained in the case.
Rice then filed an amended petition naming Ronald Givens as a defendant.
Echessa and Babcock were no longer named as defendants in the amended petition.
See Randolph v. Jackson Walker, L.L.P., 29 S.W.3d 271, 274 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied) (“When a party’s name is omitted from an amended
pleading, he is as effectively dismissed as where a formal order of dismissal is
entered.”). Givens answered the amended petition and, like Collier and Butcher
1
Rice alleged that because of federal rulings in Ruiz v. Procunier, Civil Action No.
H-78-987-CA, TDCJ officials and a class of inmates entered into a memorandum
agreement in 1985 (the “Ruiz memorandum”), which provided in relevant part:
“[T]he parties have reached the following agreement with respect to the provision
of dayroom space in certain cellblocks at the . . . Ramsey I Unit . . . In lieu of
constructing additional dayroom space at the Ramsay I Unit, defendants shall effect
the following procedures and improvements with respect to all general population
cellblocks: . . . 3. All prisoners shall have continuous ingress and egress from their
cells, and shall be permitted to lock and unlock their own cells, except during the
hours all cells are locked for sleeping.”
2
before him, moved to dismiss under Chapter 14. See TEX. CIV. PRAC. & REM. CODE
§ 14.003. The record does not include a ruling on Givens’s motion to dismiss.
Even though the record does not contain a ruling on Givens’s motion, Rice
filed a notice purporting to appeal from the dismissal of his claims on that motion
pursuant to an October 2, 2019 order. But the only order issued on October 2 that is
included in the appellate record is unrelated to Givens’s motion to dismiss. The
October 2 order concerns a separate matter—the trial court’s previously issued
notice of its intent to dismiss the case unless Rice obtained service on all defendants.
In addition, the October 2 order is not an order of dismissal. Quite the opposite, it
expressly provides that the action required in the earlier notice of intent to dismiss,
i.e., service, “was . . . accomplished” and that the case was “therefore RETAINED.”
Concerned that an order dismissing Rice’s claims on Givens’s motion was
omitted from the record, we twice requested preparation of a supplemental clerk’s
record to include the appealed-from order. See TEX. R. APP. P. 34.5(a)(5) (requiring
clerk’s record to include “the court’s judgment or other order that is being
appealed.”). In response to both requests, the district clerk certified that the October
2 order issued in connection with the notice of intent to dismiss was the only
appealed-from order, thereby indicating there were no other orders inadvertently
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omitted from the record.2 However, the October 2 order retaining the case is not an
appealable interlocutory order; nor is it a ruling against Rice. See, e.g., TEX. CIV.
PRAC. & REM. CODE § 51.014 (listing appealable interlocutory orders). Moreover,
because the record does not indicate there has been a ruling on Givens’s motion to
dismiss and therefore Rice’s claims against Givens remain pending, there is no final
judgment.
This Court generally has jurisdiction only over appeals from final judgments
and specific interlocutory orders that the legislature has designated as appealable
orders. See CMH Homes v. Perez, 340 S.W.3d 444, 447–48 (Tex. 2011); see also
TEX. CIV. PRAC. & REM. CODE § 51.014. In the absence of an appealable
interlocutory order or a final judgment, we dismiss the appeal for want of
jurisdiction.3 See TEX. R. APP. P. 42.3(a), 43.2(f).
PER CURIAM
Panel consists of Justices Landau, Guerra, and Farris.
2
We note a possible source of confusion in the record is the notice of the October 2
order generated by the district clerk’s office, which indicates that “On October 02,
2019, the following order was signed: Order of Dismissal” despite the district
clerk’s certification that the only order filed on that date is the October 2 order
retaining the case on the trial court’s docket.
3
In compliance with Texas Rule of Appellate Procedure 42.3, we gave Rice notice
of our intent to dismiss this appeal. See TEX. R. APP. P. 42.3(a) (requiring ten days’
notice to all parties of Court’s intention to dismiss for want of jurisdiction).
4