Carl Williams v. Wayne Scott, Linda Patterson, William Boothe, Kenneth Negbenebor, Mark Diaz and Orlando Perez

99-00830 Williams v Scott.wpd No. 04-99-00830-CV Carl WILLIAMS, Appellant v. Wayne SCOTT, et al., Appellee From the 218th Judicial District Court, Karnes County, Texas Trial Court No. 99-06-00102-CVK Honorable Ron Carr, Judge Presiding

Opinion by: Alma L. López, Justice

Sitting: Tom Rickhoff, Justice

Alma L. López, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 15, 2000

AFFIRMED

This appeal arises from a lawsuit filed by the appellant, Carl Williams, a state prison inmate. In his petition, Williams alleged that prison officials, appellees in this appeal, tampered with mail that he sent to his "lady friend," Essie Gardner, and with mail that Gardner allegedly sent to Williams. The defendant prison officials filed motions to dismiss, and the trial judge dismissed Williams's lawsuit as frivolous. Because we find that Williams's claims have no arguable basis in law or in fact, we affirm the trial court's order.

Section 14.003 of the Texas Civil Practices and Remedies Code authorizes a trial court to dismiss a claim, either before or after service of process, if the court finds that the claim is frivolous or malicious.

In determining whether a claim is frivolous or malicious, the 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.

Tex. Civ. Prac. & Rem. Code Ann. § 14.003 (Vernon Supp. 2000). A trial judge's decision to dismiss a lawsuit brought by an inmate is reviewed under an abuse of discretion standard. McCollum v. Mt. Ararat Baptist Church, 980 S.W.2d 535, 536 ( (Tex. App.-Houston [14th Dist.] 1998, no pet.); Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.- Waco 1996, no pet.) After applying that standard here, we find no abuse of discretion.

In his petition, Williams stated that his lawsuit was brought pursuant to the Texas Penal Code, the Texas Tort Claims Act, and the First, Fifth, and Fourteenth Amendments to the United States Constitution. As for Williams's first authority, the penal code does not create any private causes of action, and thus, Williams's allegations based on the penal code must fail as not stating a cause of action recognized by law. See Aguilar v. Chastain, 923 S.W.2d 740, 745 (Tex. App.--Tyler 1996, pet. denied). Accordingly, the trial judge did not abuse his discretion in dismissing Williams's claims brought under the penal code.

Likewise, the trial judge did not abuse his discretion in dismissing Williams's claims brought under the Texas Tort Claims Act (the Act). State employees are entitled to official immunity when sued in their individual capacities for official acts. Median County Com'rs Court v. Integrity Group, 944 S.W.2d 6, 9 (Tex. App.-San Antonio 1996, no pet.). While the Act provides for a limited waiver of governmental immunity, the waiver does not apply to individuals employed by the State. Aguilar, 923 S.W.2d at 744-45. As individual state employees, the appellees-defendants were never proper parties to this lawsuit to the extent that they were sued under the Act, and thus Williams has not stated a claim under the Act. Id. As a result, the trial judge did not abuse his discretion in dismissing Williams's claims brought under the Act. Harrison v. Texas Dept. of Criminal Justice-Institutional Div., 915 S.W.2d 882, 890 (Tex. App.-Hous. [1 Dist.] 1995, no pet.).

As for Williams's federal constitutional claims, in his petition, Williams characterized his lawsuit as a civil rights suit and complained of negligence on the part of prison officials. Although section 1983 of Title 42 of the United States Code provides a basis for suing a governmental unit for a violation of civil rights, a plaintiff is not entitled to a recovery absent proof of a deprivation of a right secured by the Constitution or laws of the United States. Baker v. McCollan, 443 U.S. 137, 140 (1979). Thus, the first inquiry in a section 1983 lawsuit is whether the plaintiff has been deprived of a federally secured right. Baker, 443 U.S. at 140. Violations of duties arising out of ordinary state tort law or injuries resulting from a prison official's negligent conduct are not actionable under section 1983. Daniels v. Williams, 474 U.S. 327, 328 (1986). Because he complains of negligence, Williams has failed to state a constitutional deprivation that is actionable under section 1983. Daniels, 474 U.S. at 328. As a result, the trial judge did nor err by dismissing Williams's section 1983 claims because those claims have no arguable basis in law or in fact.

After considering each of the authorities in Williams's petition, and determining that none of his claims have an arguable basis in law or fact, we conclude that the trial judge did not err by dismissing Williams's petition as frivolous. We affirm the trial court's order.

Alma L. López, Justice

DO NOT PUBLISH