Cary A. Wilke v. Texas Department of Criminal Justice - C.I.D.

• Court: Court of Appeals of Texas
• Decided: July 19, 2012
• Docket: 13-11-00698-CV
• Status: Published

Opinion

NUMBER 13-11-00698-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CARY A. WILKE, Appellant,

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE – C.I.D., Appellee.

On appeal from the 24th District Court of DeWitt County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion by Justice Vela This is an appeal from a judgment dismissing appellant Carey A. Wilke's claim as

frivolous under Chapter 14 of the Texas Civil Practice and Remedies Code. See TEX.

CIV. PRAC. & REM. CODE ANN. § 14.003 (West 2002). By five issues, which we address

together, Wilke argues that the trial court: (1) dismissed the case regardless of whether there was an arguable basis in law or fact; (2) did not give him the opportunity to timely

respond to the motion to dismiss; (3) dismissed the case despite the fact that five

defendants had not filed answers; (4) improperly construed the case as a suit of liberty

interest rather than property interest; and (5) failed to hear the merits of the case. We

affirm.

I. BACKGROUND

Wilke filed his pro se lawsuit complaining that correctional officers with appellee,

the Texas Department of Criminal Justice—C.I.D., confiscated eight small maps of the

continental United States that had been torn from an appointment book, as well as a map

of Fredericksburg, Texas. Wilke was found guilty of possession of contraband that

resulted in a reprimand. In his petition for judicial review, Wilke sought a declaratory

judgment exonerating him from what he termed a "false conviction and expunction of this

case from his records by both Unit and State Classifications since this charge has the

potential to adversely affect his parole." He also asked for attorney's fees and costs, but

did not seek reimbursement for the items confiscated.

II. STANDARD OF REVIEW

We review a dismissal of an inmate's action as frivolous under an abuse of

discretion standard. Spurlock v. Johnson, 94 S.W.3d 655, 657 (Tex. App.—San Antonio

2002, no pet.). To establish that the trial court abused its discretion, the complaining

party must show that the court acted without reference to any guiding rules and principles.

Id. In determining whether an inmate’s claim is frivolous, the trial court may consider

whether: (1) the claim's realistic chance of ultimate success is slight; (2) the claim has

2 no arguable basis in law or 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. Id.; see TEX. CIV. PRAC. & REM.

CODE ANN. § 14.003(b). We review de novo the legal question of whether there was an

arguable basis in law for the claim. In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994);

Leachman v. Dretke, 261 S.W.3d 297, 303, 304 (Tex. App.—Fort Worth 2008, no pet.).

In reviewing the dismissal, we take as true the allegations in the original petition.

Harrison v. Tex. Dep't of Crim. Justice, 915 S.W.2d 882, 888 (Tex. App.—Houston [1st

Dist.] 1995, no writ).

III. ANALYSIS

Wilke first argues that there was insufficient evidence to support his disciplinary

reprimand, which deprived him of due process. Wilke's reprimand, however, did not

trigger the due process clause. In Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997),

the Fifth Circuit Court of Appeals held that such things as commissary and cell restrictions

as punishment are merely changes in the conditions of a prisoner's confinement and do

not implicate due process concerns. "They are penalties which do not represent the type

of a typical, significant deprivation in which a state might create a liberty interest." Id.

Likewise, disciplinary sanctions such as reprimands or a reduction in class are merely

changes in conditions of confinement and do not implicate due process concerns.

Malchi v. Thaler, 211 F.3d 953, 958–59 (5th Cir. 2000) (holding that, although a reduction

in class reduces the amount of good conduct time an inmate can earn, an inmate does not

have a constitutional right to a particular time-earning status); Madison, 104 F.3d at 768

3 (commissary restrictions); Decker v. Dunbar, 633 F.Supp.2d 317, 353–54 (E.D. Tex.

2008) (commissary and recreation restrictions, and verbal reprimands). "Inmates have

no protectable property or liberty interest in custodial classifications." Harper v.

Showers, 174 F.3d 716, 719 (5th Cir. 1999). Thus, there was no arguable basis for his

claim.

Wilke also argues that appellee denied his step two grievance. However, the

case law is clear that he has no protected liberty interest in having grievances resolved to

his satisfaction. See Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005).

Wilke also argues that the trial court erred in dismissing his lawsuit without a

hearing, without his response, and without service on all parties. A trial court may

dismiss an inmate’s case under chapter 14 without holding a hearing if the claim is "on an

indisputably meritless legal theory." Minix v. Gonzales, 162 S.W.3d 635, 637 (Tex.

App.—Houston [14th Dist.] 2005, no pet.). Wilke’s claims, as set forth above, are based

on meritless legal theories. Thus, the trial court did not err in dismissing his case. We

overrule all of Wilke's issues.

IV. CONCLUSION

The trial court's order of dismissal is affirmed.

ROSE VELA Justice

Delivered and filed the 19th day of July, 2012.