COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-13-00036-CV
MARK WALTERS APPELLANT
V.
MANAGEMENT TRAINING APPELLEES CORPORATION (MTC), CHARLOTTE WALKER, RICKY DENNY, AND BRENDA WILKINSON
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY TRIAL COURT NO. CV11-10-856
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MEMORANDUM OPINION 1
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Appellant Mark Walters appeals the trial court’s order granting the motion
for summary judgment filed by appellees Management Training Corporation
(MTC), Charlotte Walker, Ricky Denny, and Brenda Wilkinson. In four issues,
1 See Tex. R. App. P. 47.4. appellant argues that the trial court erred by allegedly participating in ex parte
communications with appellees, that the trial court abused its discretion by not
entering a default judgment in his favor, that the trial court abused its discretion
by failing to exclude the transcript from his deposition as summary judgment
evidence, and that conflicting material facts precluded summary judgment. We
affirm. 2
Background Facts
In October 2011, appellant, a pro se inmate, sued appellees. The next
month, sheriff’s deputies served them with citation. By February 8, 2012,
appellees had not answered the suit, so appellant filed a motion for default
judgment. Appellees collectively filed an answer eight days later, and over
appellant’s written objection, the trial court did not grant a default judgment.
Appellant eventually filed an amended petition and sought summary
judgment. In the amended petition, appellant pled that in July 2011, he was
assigned to the Bridgeport Correctional Center, which is privately operated by
MTC. He alleged that while there, employees of MTC violated his rights in
several ways, including by delaying notarization of certain documents, refusing to
timely provide legal research materials, 3 not properly processing grievances and
2 This case was originally submitted on January 31, 2014. On July 10, 2014, the court, on its own motion, ordered the appeal to be resubmitted on August 1, 2014; assigned this case to a new panel; and assigned a new author. 3 For example, appellant pled, “There has been a systematic, retaliatory effort made by the unit to keep [appellant] from using the law library.”
2 retaliating against him for filing them, delaying the mailing of legal papers, and
otherwise impeding his access to courts. Citing a federal statute as the
procedural avenue to bring his claims, appellant pled that these acts violated his
rights under the First and Fourteenth Amendments. 4 As relief, he sought
declarations about the alleged violations of his rights, along with compensatory
damages against each appellee. To his amended motion for summary judgment,
appellant attached records related to his requests for legal materials and
responses to those requests.
Appellees also filed a motion for summary judgment on traditional and no-
evidence grounds. 5 They argued, among other assertions, that (1) appellant had
failed to exhaust administrative remedies to the extent that his allegations were
not covered by grievances he had filed, (2) appellant’s access-to-court claims
could not succeed because he could not show any prejudice resulting from his
allegations related to requests for legal materials or appellees’ delayed or
inadequate processing of grievances or mailings, (3) appellant’s retaliation claims
could not succeed because appellees’ interactions with him were policy-based
and were insufficient to qualify as retaliation as a matter of law, and (4) the facts
relied upon by appellant did not violate his due process rights. As evidence for
4 See U.S. Const. amends. I, XIV; see also 42 U.S.C.A. § 1983 (2012); Hollingsworth v. Hackler, 303 S.W.3d 884, 888 (Tex. App.—Fort Worth 2009, pet. denied) (“Section 1983 creates a private right of action for violations of an individual’s federally guaranteed rights by those acting under color of state law.”). 5 See Tex. R. Civ. P. 166a(c), (i).
3 their collective summary judgment motion, appellees attached excerpts from
appellant’s deposition and copies of his grievances. Appellant objected to
appellees’ evidence, arguing that the transcript from his deposition was
inadmissible because he had been prevented from amending it under rule of civil
procedure 203.1(b). 6
After holding a hearing, the trial court granted appellees’ motion for
summary judgment and dismissed appellant’s claims with prejudice. Appellant
brought this appeal.
Alleged Ex Parte Communications
In his first issue, appellant contends that the trial court erred by allegedly
engaging in ex parte communications with appellees. He argues that the trial
court had such communications after he sought a default judgment (when the
trial court allegedly informed appellees of the need to file an answer) and upon
the trial court’s decision to grant appellees’ motion for summary judgment (when
the court instructed appellees to prepare an order).
To reverse a judgment on the ground of judicial misconduct, we must find
judicial impropriety coupled with probable prejudice to the complaining party.
Erskine v. Baker, 22 S.W.3d 537, 539 (Tex. App.—El Paso 2000, pet. denied)
(citing Silcott v. Oglesby, 721 S.W.2d 290, 293 (Tex. 1986)). “An ex parte
6 See Tex. R. Civ. P. 203.1(b) (“The witness may change responses as reflected in the deposition transcript by indicating the desired changes, in writing, on a separate sheet of paper, together with a statement of the reasons for making the changes.”).
4 communication is one that involves fewer than all parties who are legally entitled
to be present during the discussion of any matter.” Murry v. Dodeka, L.L.C.,
No. 02-12-00062-CV, 2013 WL 105664, at *3 (Tex. App.—Fort Worth Jan. 10,
2013, pet. dism’d) (mem. op.).
Appellant does not direct us to any place in the record establishing that the
trial court improperly communicated with appellees after he filed the motion for
default judgment. Instead, appellant speculates that based on the timing of
appellees’ answer after he filed the motion, the trial court must have
communicated with them.
The record does not confirm appellant’s speculation. In fact, he concedes
that the record is “void of the court’s communications with [a]ppellees regarding
default judgment.” Thus, we overrule the first part of appellant’s first issue. See
Kaminetzky v. Dosohs I, Ltd., No. 14-01-00767-CV, 2002 WL 1316148, at *2
(Tex. App.—Houston [14th Dist.] June 6, 2002, pet. denied) (not designated for
publication) (overruling an appellant’s issue concerning an alleged ex parte
communication because the record did not establish error) (citing Simon v. York
Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987)); see also Crider v.
Crider, No. 01-10-00268-CV, 2011 WL 2651794, at *5 (Tex. App.—Houston [1st
Dist.] July 7, 2011, pet. denied) (mem. op.) (holding similarly); Tracy v. Annie’s
Attic, Inc., 840 S.W.2d 527, 539 (Tex. App.—Tyler 1992, writ denied) (overruling
an appellant’s complaint about an alleged ex parte communication because it
was a “mere surmise”).
5 Next, appellant contends that the trial court’s request to appellees to
prepare an order granting summary judgment, along with appellees’ submission
of that order to the trial court, comprised ex parte communications. With respect
to appellees’ submission of the order to the trial court, the record contains a
December 12, 2012 letter that references the prepared order and that represents
delivery to appellant through certified mail. No other part of the record shows
that contrary to this representation, appellees did not mail a copy of the proposed
order to appellant. Thus, we overrule that part of appellant’s first issue. See
Crider, 2011 WL 2651794, at *5; Kaminetzky, 2002 WL 1316148, at *2.
Finally, we cannot agree with appellant that the trial court’s request for
appellees to prepare an order following the parties’ summary judgment
arguments, as referenced in the December 12 letter, constitutes an improper ex
parte communication. The rules against ex parte communications do not
preclude routine and customary communications that do not give a party a
substantial tactical or strategic advantage. See Retzlaff v. GoAmerica Commc’ns
Corp., 356 S.W.3d 689, 694 (Tex. App.—El Paso 2011, no pet.); see also In re
S.A.G., 403 S.W.3d 907, 916 (Tex. App.—Texarkana 2013, pet. filed) (explaining
that the code of judicial conduct does not prohibit communications concerning
uncontested administrative or uncontested procedural matters). Indeed, the
purpose behind prohibiting such communications is to ensure that all interested
parties are given a full right to be heard. Randolph v. Texaco Exploration &
Prod., Inc., 319 S.W.3d 831, 836 (Tex. App.—El Paso 2010, pet. denied).
6 Under the circumstances presented here, we cannot conclude that the trial
court’s request to appellees to prepare an order qualifies as an impermissible ex
parte communication. This was a routine communication that was made after the
trial court had given the parties a full right to be heard on summary judgment
issues and after the trial court had made its dispositive decision on the merits.
See Retzlaff, 356 S.W.3d at 694; see also Randolph, 319 S.W.3d at 836 (“[T]he
trial court’s request that Line file a response to Randolph’s request for findings of
fact and conclusions of law does not constitute an ex parte communication about
the merits of the case. This argument is without merit.”). Moreover, even if the
communication had been improper, appellant cannot establish harm because the
communication occurred after the trial court reached its decision on the merits.
See Tex. R. App. P. 44.1(a); Erskine, 22 S.W.3d at 539; see also In re T.D.M.C.,
No. 12-03-00300-CV, 2005 WL 1000578, at *4 (Tex. App.—Tyler Apr. 29, 2005,
no pet.) (mem. op.). We overrule the remainder of appellant’s first issue.
Alleged Failure to Grant a Default Judgment
In his second issue, appellant argues that the trial court abused its
discretion by not granting a default judgment upon his request when appellees
had not filed an answer to his petition. In the middle of November 2011,
appellees each received service of citation along with appellant’s original petition.
On February 8, 2012, when no appellee had answered the suit, appellant filed a
motion for a default judgment. Appellees responded by filing an answer
(including a general denial of all of appellant’s allegations) on February 16, 2012.
7 Citing rule of civil procedure 239, appellant argues that he was entitled to
judgment by default and that the trial court erred by not granting his motion. See
Tex. R. Civ. P. 239 (“[A]t any time after a defendant is required to answer, the
plaintiff may in term time take judgment by default against such defendant if he
has not previously filed an answer . . . .”); see also Tex. R. Civ. P. 99(b)–(c)
(requiring a defendant to file an answer within a certain time or risk the entry of
an adverse default judgment).
After appellees filed their answer on February 16, 2012, the trial court had
no discretion to grant a default judgment. See Tex. R. Civ. P. 239; Davis v.
Jefferies, 764 S.W.2d 559, 560 (Tex. 1989); $629.00 in U.S. Currency v. State,
No. 02-10-00253-CV, 2010 WL 5187679, at *1 (Tex. App.—Fort Worth Dec. 23,
2010, no pet.) (mem. op.) (“A default judgment may not be granted based on a
failure to answer when the defendant has an answer on file, even if the answer
was filed late.”). Thus, we conclude that the trial court did not err by declining to
sign a default judgment after appellees filed an answer.
To the extent that appellant complains that the trial court did not grant his
motion for a default judgment between February 8, 2012 and February 16, 2012,
the record 7 does not show that the trial court denied the motion during that time
or even that the trial court was aware during that time that the motion had been
7 We must decide this appeal on documents contained in the record, not on documents that are not part of the record but are attached to a party’s brief. See Sutton v. Helwig, No. 02-12-00525-CV, 2013 WL 6046533, at *8 (Tex. App.— Fort Worth Nov. 14, 2013, no pet.) (mem. op.).
8 filed. Thus, we cannot conclude that the trial court abused its discretion by not
granting the motion. 8 See Tex. R. App. P. 33.1(a)(2); Grace Interest, LLC v.
Wallis State Bank, 431 S.W.3d 110, 122 (Tex. App.—Houston [14th Dist.] 2013,
pet. denied); Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 449 (Tex.
App.—Dallas 2011, no pet.). We overrule appellant’s second issue.
Allegedly Improper Summary Judgment Evidence
In his third issue, appellant contends that the trial court erred by denying
his motion to suppress and by refusing to exclude his deposition excerpts as
summary judgment evidence. He argues that circumstances related to his
confinement precluded his attempt under rule of civil procedure 203.1(b) to make
changes to the deposition transcript. He also contends that the excerpts should
have been excluded because the deposition officer failed to file a certificate of
deposition and because appellees’ attorney did not authenticate the excerpts.
Concerning his argument that the deposition excerpts were not properly
authenticated, appellant cites a 1988 case from the Dallas Court of Appeals that
the Texas Supreme Court expressly overruled. See Deerfield Land Joint Venture
v. S. Union Realty Co., 758 S.W.2d 608, 610 (Tex. App.—Dallas 1988, writ
denied), overruled by McConathy v. McConathy, 869 S.W.2d 341, 341–42 (Tex.
8 Appellant does not cite authority for a proposition that the trial court was required to grant a default judgment without knowing of his request to do so. Moreover, even if the trial court was aware of appellant’s motion, it had a “reasonable time” to rule on it. See Davis v. West, 433 S.W.3d 101, 108 (Tex. App.—Houston [1st Dist.] 2014, pet. filed).
9 1994). Because rule of civil procedure 166a does not require authentication of
deposition excerpts, we overrule appellant’s third issue to that extent. See Tex.
R. Civ. P. 166a(d); McConathy, 869 S.W.2d at 341–42 (declining to require a
court reporter’s certificate or an affidavit certifying the accuracy of deposition
excerpts); Neely v. Comm’n for Lawyer Discipline, 302 S.W.3d 331, 344 n.14
(Tex. App.—Houston [14th Dist.] 2009, pet. denied) (“Deposition transcripts . . .
need no authentication and constitute proper summary judgment evidence.”); see
also Hill v. Rich, 522 S.W.2d 597, 600 (Tex. Civ. App.—Austin 1975, writ ref’d
n.r.e.) (explaining that the mere absence of a deponent’s signature on the
transcript does not require suppression of a deposition).
With regard to appellant’s complaint that the circumstances of his
confinement prevented him from amending his deposition testimony under rule of
civil procedure 203.1(b), we cannot conclude that appellant establishes harm
even if he could show error in the trial court’s denial of his motion to suppress.
See Tex. R. App. P. 44.1(a). Appellant’s deposition occurred in July 2012.
Appellees filed their motion for summary judgment, to which they attached the
deposition excerpts, in August 2012. Although appellant objected to the trial
court’s consideration of the deposition excerpts in September 2012 and
October 2012 on the ground that he had not been able to change his responses,
he did not at that time or any time thereafter (including in his briefing on appeal)
identify the changes which he sought to make or explain how his deposition
10 testimony was incomplete or incorrect. The trial court granted appellees’
summary judgment motion in December 2012.
Because nothing in the record establishes the changes that appellant
sought to make to his deposition testimony, we cannot conclude that any error of
the trial court in admitting and considering the unchanged deposition excerpts
harmed appellant. See Tex. R. App. P. 44.1(a); Interstate Northborough P’ship
v. State, 66 S.W.3d 213, 220 (Tex. 2001) (op. on reh’g) (“Typically, a successful
challenge to a trial court’s evidentiary rulings requires the complaining party to
demonstrate that the judgment turns on the particular evidence excluded or
admitted.”); see also Aston Meadows, Ltd. v. Devon Energy Prod. Co., 359
S.W.3d 856, 864 (Tex. App.—Fort Worth 2012, pet. denied) (applying rule 44.1’s
harm standard to the trial court’s evidentiary decision in a summary judgment
case). We therefore overrule the remaining part of appellant’s third issue.
Propriety of the Trial Court’s Summary Judgment Decision
Finally, in his fourth issue, appellant argues that the trial court erred by
granting appellees’ motion for summary judgment. He contends that conflicting,
material facts precluded summary judgment.
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
11 Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
A defendant who conclusively negates at least one essential element of a
cause of action is entitled to summary judgment on that claim. Frost Nat’l Bank
v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).
Also, after an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground
that there is no evidence to support an essential element of the nonmovant’s
claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the
elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the
nonmovant produces summary judgment evidence that raises a genuine issue of
material fact. See Tex. R. Civ. P. 166a(i); Hamilton v. Wilson, 249 S.W.3d 425,
426 (Tex. 2008).
Appellant’s first amended petition was his live pleading at the time of the
trial court’s summary judgment decision. In that petition, he alleged that he was
a prisoner at a correctional center that MTC operated. He brought claims against
appellees on the following theories: (1) “his First Amendment Rights were
violated by retaliation and threats for utilizing the prison grievance system”;
(2) “his First Amendment Rights were violated when the unit failed to process
and [denied] him access to the prison grievance system”; (3) “his Fourteenth
12 Amendment Rights were violated by denying him due process to file his legal
claims in a court of law”; (4) “his Fourteenth Amendment Rights were violated by
threatening and denying other inmates from seeking counsel with the plaintiff, as
they prepared their legal documents”; (5) his “Fourteenth Amendment Rights
were violated when his right to mail legal documents [was interfered] with and
stalled by [Walker and Denny]”; and (6) “his Fourteenth Amendment Rights to
access to courts [were] violated by not giving adequate and timely access to
electronic and digital resources to research his legal cases.” In his argument on
appeal, appellant focuses only on alleged denial of access to the prison’s
grievance system, alleged retaliation for filing grievances and for filing this
lawsuit, and alleged denial of his access to court. 9
Alleged denial of access to grievance system
We construe appellant’s first contention in his fourth issue as a challenge
to the trial court’s decision to grant summary judgment against his claim that his
“First Amendment Rights were violated when the unit failed to process and
[denied] him access to the prison grievance system.” The government code
requires the Texas Department of Criminal Justice to maintain a system for
resolving inmates’ grievances. See Tex. Gov’t Code Ann. § 501.008 (West
9 We therefore affirm the trial court’s summary judgment to the extent that it encompasses claims about which appellant has not presented any appellate argument. See Cuidado Casero Home Health of El Paso, Inc. v. Ayuda Home Health Care Servs., LLC, 404 S.W.3d 737, 743–44 (Tex. App.—El Paso 2013, no pet.).
13 2012); Hamilton v. Williams, 298 S.W.3d 334, 341–42 (Tex. App.—Fort Worth
2009, pet. denied). Appellant contends in his brief that on
numerous occasions, [appellee] Wilkinson expounded grievance rules beyond her authority to prevent [a]ppellant from filing grievances, by either claiming to misinterpret [a]ppellant’s grievance[s] or alleging he violated [protocol], which he did not. . . . Or, [Wilkinson] would just not [input] the grievance into the [computer] system to avoid generating an automated grievance number.
While appellant directs us to pages in the clerk’s record that show his
grievances and Wilkinson’s responses, he does not direct us to summary
judgment evidence establishing that Wilkinson’s responses violated any policy,
as he alleges. For example, appellant refers us to an August 2011 grievance in
which he complained about air conditioning and missing legal research volumes
in the unit’s law library. Wilkinson responded to that grievance by stating that
appellant had impermissibly raised more than one issue in a single grievance.
Although appellant appears to claim that his submission of more than one issue
in a grievance did not violate protocol, he does not direct us to any place in the
record that contains the protocol or proves that Wilkinson responded improperly.
Likewise, in October 2011, appellant wrote a grievance about difficulties he
was facing in conducting legal research, alleging that his unit was not in
compliance with an access-to-court policy. Wilkinson responded that this
14 grievance was redundant with another request. Appellant has not directed us to
summary judgment evidence establishing that this response was improper. 10
Thus, the summary judgment evidence to which appellant directs us does
not support the conclusory premise that underlies the first part of his fourth
issue—that Wilkinson “expounded grievance rules beyond her authority to
prevent [him] from filing grievances.” In other words, we cannot agree with
appellant’s ultimate conclusion that he submitted, beyond mere allegations,
“material facts to support a genuine issue in regards to his claim of denial of
access to the grievance system.” Because the record cites within appellant’s
brief do not support his argument as presented, 11 we overrule the argument.
See Tex. R. App. P. 38.1(i); Jimison v. Tex. Workforce Comm’n & Prof’l
Caretakers, Inc., No. 02-09-00127-CV, 2010 WL 851418, at *4 (Tex. App.—Fort
Worth Mar. 11, 2010, no pet.) (mem. op.) (“We are not obligated to search the
record in an effort to verify [an appellant’s] assertions.”).
Alleged retaliation
Next, appellant contends in his fourth issue that he “submitted to the trial
court factual evidence of retaliation for filing grievance[s] and [for] the filing of this
lawsuit.” In his argument within his fourth issue, he particularly discusses only
10 In fact, a document in the record explains that inmates may not submit redundant requests. 11 We cannot reverse a summary judgment by raising arguments that an appellant has not briefed. See San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209 (Tex. 1990).
15 one alleged instance of retaliation, claiming that Walker “issued a fraudulent
[disciplinary] case against [him] . . . three weeks after the filing of this lawsuit.” 12
To prevail on a claim of retaliation, a prisoner must establish (1) a specific
constitutional right, (2) the defendant’s intent to retaliate against the prisoner for
his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation.
Institutional Div. of Tex. Dep’t of Criminal Justice v. Powell, 318 S.W.3d 889, 892
(Tex. 2010). Appellees sought summary judgment against appellant’s retaliation
claims on the ground that appellant could not “establish each required element of
[that] cause of action.” Appellees then listed the required elements for retaliation.
Later, more specifically, appellees stated, “[I]n order to avoid summary judgment,
[appellant] must produce some evidence of proximate cause, showing that the
adverse act was the result of [appellant’s] invocation of a constitutional right.”
Appellant’s retaliation claim against Walker stems from allegations that in
November 2011, he was in the law library and was using a hole puncher when
Walker confiscated it because it could be used as a weapon. According to
12 We recognize that appellant, through a record reference in his brief, may be attempting to maintain complaints about retaliation based on other matters, including (1) an event when Denny allegedly asked if appellant needed to be in protective custody due to a grievance he had filed that complained about inmate library clerks and (2) an event when appellant was asked where he had received a certain envelope. Appellees sought summary judgment on those claims based, in part, on appellant’s failure to exhaust administrative remedies. Because that independent, unchallenged ground may have supported the trial court’s summary judgment with respect to those retaliation claims, we must overrule appellant’s fourth issue to that extent. See Little v. Delta Steel, Inc., 409 S.W.3d 704, 722– 23 (Tex. App.—Fort Worth 2013, no pet.).
16 appellant, while debating Walker’s confiscation of the hole puncher, he held up a
pen and told her that it could also be used as a weapon. Walker believed that
appellant had threatened her through that statement. A disciplinary case for
threatening Walker was later brought against appellant, and he claimed that the
case was in retaliation for filing this suit against appellees. 13
In his deposition, however, appellant appeared to recognize that he did not
know whether Walker was aware of his lawsuit against her at the time of the
incident. The deposition indicates that Walker received her citation after the
incident. And appellant has not cited to any other evidence in the record
establishing that Walker knew of the pending lawsuit at the time of the incident
and the initiation of disciplinary processes.
Thus, we cannot conclude that there is a genuine issue of material fact
about whether her response during and immediately after the incident was in
retaliation for the filing of the lawsuit. 14 See Tex. R. Civ. P. 166a(i); Powell, 318
S.W.3d at 892; In re Jones, No. 01-08-00729-CV, 2010 WL 987723, at *3 (Tex.
App.—Houston [1st Dist.] Mar. 18, 2010, no pet.) (mem. op.) (“Causation
requires a showing that but for the retaliatory motive, the complained of incident
13 Appellant was initially disciplined for the incident, but that decision was later overturned. 14 Appellant also contends on appeal that he did not receive a fair hearing in relation to the disciplinary case and that the lack of fairness was “motivated by this lawsuit.” But documents submitted by appellant in the trial court show that the officials who decided his disciplinary case and subsequent appeal are not parties to this litigation.
17 would not have occurred.”); see also Armenta v. Pryor, 377 Fed. Appx. 413, 416–
17 (5th Cir. 2010) (affirming a trial court’s decision to grant summary judgment
against an inmate’s retaliation claim because, in part, the inmate did not show
that the defendants had knowledge of grievances against them when they
engaged in allegedly retaliatory acts). We overrule this issue to that extent.
Alleged denial of access to court
Finally, appellant appears to contend that the trial court erred by granting
summary judgment against one of his access-to-court claims. Appellees sought
summary judgment on this claim on the ground that appellant had not “suffer[ed]
any actual detriment” as a result of any allegedly-denied access to court by
appellees.
To sustain a constitutional claim for denial of access to the courts, an
inmate must show actual injury to a legal claim by demonstrating that his or her
position as a litigant has been prejudiced by the defendant’s actions. Hamilton v.
Pechacek, 319 S.W.3d 801, 815 (Tex. App.—Fort Worth 2010, no pet.).
Appellant argues, “The act of denying [him] access to [legal research materials]
[a]ffected [his] ability to litigate, causing a lawsuit filed against TDCJ to be
dismissed . . . .” But appellant does not direct us to any evidence in the record
that shows that a lawsuit was dismissed because of limited access to legal
research materials. Also, appellant’s deposition testimony indicates that litigation
he was involved in had been dismissed for reasons unrelated to delay or
limitations in conducting legal research. Thus, we cannot conclude that the trial
18 court erred by granting summary judgment on this claim, and we overrule the
remainder of appellant’s fourth issue.
Conclusion
Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.
PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.
DELIVERED: September 4, 2014