Cliff Carlton Rice v. Bryan Collier

Opinion

Opinion issued May 17, 2022

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00843-CV ——————————— 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

3 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