COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-07-221-CV
MATTHEW JAMES LEACHMAN APPELLANT
V.
DOUG DRETKE, DEBORAH A. JOHNSON, APPELLEES GLENDA J. ADAMS, JOSEPH C. BOYLE, AND DENISE ONCKEN
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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
OPINION ON REHEARING
After reviewing Appellant Matthew James Leachman’s motion for rehearing,
we grant the motion. We withdraw our May 29, 2008 opinion and judgment and
substitute the following.
I. Introduction
Appellant Leachman Matthew James Leachman, an inmate housed in a
Texas Department of Criminal Justice (“TDCJ”) facility, filed suit against appellees Doug Dretke, Glenda J. Adams, Joseph C. Boyle, and Deborah A.
Johnson (“TDCJ employees”) and against appellee Denise Oncken, the Harris
County assistant district attorney who prosecuted him for the crime upon which
his confinement is based.1 The trial court dismissed Leachman’s claims against
Oncken and dismissed with prejudice his claims against the TDCJ employees.
Leachman complains of four points on appeal.
We affirm the trial court’s judgment as to Leachman’s claims against
Adams, Boyle, Johnson, and Oncken. However, with regard to the dismissal
with prejudice of Leachman’s claims against Dretke, we reverse and remand
this claim to the trial court to provide Leachman with a reasonable opportunity
to amend his pleadings.
II. Factual and Procedural History
In 1998, a jury convicted Leachman of aggravated sexual assault of a
child and a trial court sentenced him to forty years’ confinement. See
Leachman v. State, No. 01-98-01255-CR, 2006 WL 2381441, at *1 (Tex.
App.—Houston [1st Dist.] Aug. 17, 2006, pet. ref’d) (mem. op.) (not
1 … His original lawsuit also recited claims against Angela S. Milbern, a former TDCJ mail room supervisor. He nonsuited Milbern in order to proceed with this appeal. Leachman’s lawsuit and this appeal were brought pro se and in forma pauperis.
2 designated for publication). Leachman filed this post-confinement lawsuit in
2004.
In 2005, after amending his pleadings to add other claims and parties,
Leachman made three principal allegations as the basis for his claims: that
Dretke, through his Director’s Review Committee (“DRC”), allowed his mail to
be unfairly withheld; that Johnson unfairly charged him with contacting the
family member of a victim; and that Boyle predetermined the outcome of the
subsequent disciplinary hearing on that charge. He also alleged that Adams
provided ineffective assistance to him during the disciplinary hearing and that
Oncken made false statements that were used against him in that hearing.
In August 2005, the trial court dismissed Leachman’s claims against
Oncken after finding that she was entitled to absolute prosecutorial and
qualified immunity. In December, the TDCJ employees filed a motion to dismiss
Leachman’s lawsuit “under Chapter Fourteen of the Civil Practice and Remedies
Code.” In January 2006, the trial court ordered Leachman’s claims against the
TDCJ employees dismissed with prejudice, as frivolous, for failure to comply
with chapter fourteen’s requirements. This appeal resulted.
III. Chapter Fourteen of the Texas Civil Practice & Remedies Code
In his first, third, and fourth points, Leachman contends that the trial
court erred by dismissing his claims against the TDCJ employees with prejudice
3 under chapter fourteen. In his second point, he complains that the trial court
erred by dismissing his claims against Oncken.
Chapter fourteen applies when, as here, an inmate files suit in a district
court and files an unsworn declaration of indigency. See T EX. C IV. P RAC. & R EM.
C ODE A NN. § 14.002 (Vernon 2008). Under chapter fourteen, a trial court may
dismiss an inmate’s lawsuit for failing to comply with the chapter’s procedural
requirements; it may also dismiss a lawsuit that is malicious or frivolous. Id.
§ 14.003; Scott v. Gallagher, 209 S.W.3d 262, 265 (Tex. App.—Houston [1st
Dist.] 2006, no pet.). The trial court need not rely upon a defendant’s motion
to exercise its discretionary power to dismiss under chapter fourteen. See T EX.
C IV. P RAC. & R EM. C ODE A NN. § 14.003(a); Wilson v. TDCJ-ID, 107 S.W.3d 90,
92 (Tex. App.—Waco 2003, no pet.).
A. Standard of Review
We review a dismissal under chapter fourteen for an abuse of discretion.
Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex. App.—Fort Worth 2004, pet.
denied). To determine whether a trial court abused its discretion, we must
decide whether the trial court acted without reference to any guiding rules or
principles; in other words, we must decide whether the act was arbitrary or
unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). When an inmate’s
4 lawsuit is dismissed as frivolous for having no basis in law or in fact, but no
fact hearing is held, our review focuses on whether the inmate’s lawsuit has an
arguable basis in law. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.003; Scott,
209 S.W.3d at 266. A clear failure by the trial court to analyze or apply the
law correctly is an abuse of discretion. McDaniel v. Yarbrough, 898 S.W.2d
251, 253 (Tex. 1995).
In conducting our review, we take as true the allegations in the inmate’s
petition and review the types of relief and causes of action set out therein to
determine whether, as a matter of law, the petition stated a cause of action
that would authorize relief. See Scott, 209 S.W.3d at 266; Harrison v. Tex.
Dep’t of Criminal Justice, Inst. Div., 164 S.W.3d 871, 875 (Tex. App.—Corpus
Christi 2005, no pet.). A claim has no arguable basis in law if it is an
indisputably meritless legal theory. Scott, 209 S.W.3d at 266–67. Further, a
claim has no arguable basis in law if the inmate has failed to exhaust his
administrative remedies. Retzlaff v. Tex. Dep’t of Criminal Justice, 94 S.W.3d
650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). If an inmate
fails to exhaust his administrative remedies, we may affirm a dismissal even if
the ground was not presented in a motion to dismiss. T EX. C IV. P RAC. & R EM.
C ODE A NN. § 14.005; Retzlaff, 94 S.W.3d at 653.
5 The trial court did not conduct a hearing before it dismissed Leachman’s
lawsuit. Therefore, the issue before us is whether the trial court properly
determined that there was no arguable basis in law for Leachman’s claims. See
Scott, 209 S.W.3d at 266; Retzlaff, 94 S.W.3d at 653.
B. Dismissal of Leachman’s claims
In his first, third, and fourth points, Leachman claims that his pleadings
complied with chapter fourteen’s procedural requirements and that, even if his
pleadings did fail to meet the chapter’s requirements, any deficiency could have
been cured with more specific pleading. In his second point, he complains that
the trial court erred by dismissing his claims against Oncken because she was
not entitled to immunity.
1. Leachman’s claim against Dretke
Leachman argues that the trial court erred by dismissing his claim with
prejudice against Dretke because Dretke was properly named as an official-
capacity defendant in a 42 U.S.C.A. § 1983 claim and because that claim had
an arguable basis in law.
(a) Facts as alleged by Leachman
In December 2003, Leachman received a letter, which was “reviewed in
accordance with prison rules,” and which contained enclosures that the TDCJ
mail room, under then-mail room supervisor Milbern, withheld from him, stating
6 that they contained child pornography. He appealed to the DRC, a panel
appointed by Dretke; the DRC upheld the mail room’s decision. Leachman
completed a Step 1 offender grievance form on the DRC’s decision, but it was
returned to Leachman with the statement, “[t]he issue presented is not
grievable.”
Leachman filed suit against the DRC and Milbern in March 2004, seeking
a release of the letter’s enclosures, a declaratory judgment that the enclosures
were not child pornography, and an injunction requiring the removal from
TDCJ’s records of any indication that he had received child pornography
through the mail. He substituted Dretke for the DRC in his amended petition,
in which he also added claims against Adams, Boyle, Johnson, and Oncken and
sought a number of remedies in his prayer.
(b) Application of law to Leachman’s facts
Leachman contends that he only had one claim against Dretke. In his
amended petition, he claimed that “Dretke, acting in his official capacity and
under color of state law, allowed property to be seized from [Leachman] in
violation of due process when Dretke’s DRC upheld” Milbern’s actions and that
7 this “independently violat[ed Leachman’s] rights under the U.S. Constitution
and the Constitution of Texas.” 2
Leachman did not cite § 1983 in his pleadings, but he contended in
subsequent filings and in his appellate brief that his claim against Dretke was
brought under that section. See 42 U.S.C.A. § 1983 (2003). A cause of
action under § 1983 involves two essential elements: (1) the conduct
complained of was committed by a person acting under color of state law, and
(2) the conduct deprived a person of rights, privileges, or immunities secured
by the Constitution, or the laws, of the United States. See Parratt v. Taylor,
451 U.S. 527, 535, 101 S. Ct. 1908, 1913 (1981), overruled in part on other
grounds, Daniels v. Williams, 474 U.S. 327, 330–33, 106 S. Ct. 662, 664–66
(1986); City of Fort W orth v. Robles, 51 S.W.3d 436, 443 (Tex. App.—Fort
Worth 2001, pet. denied), disapproved on other grounds, City of Grapevine v.
Sipes, 195 S.W.3d 689, 695 & n.5 (Tex. 2006).
When a litigant seeks injunctive relief that involves a state agency’s
unlawful or unauthorized act, he must sue some individual in authority at that
2 … Leachman did not raise or brief any point involving his rights under the Texas constitution. Therefore, for purposes of this appeal, they are waived. T EX. R. A PP. P. 38.1(e), (h); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (discussing the “long-standing rule” that a point may be waived due to inadequate briefing).
8 agency, not the agency itself. See Will v. Mich. Dep’t of State Police, 491 U.S.
58, 71 n.10, 109 S. Ct. 2304, 2312 n.10 (1989); Denson v. T.D.C.J.-I.D., 63
S.W.3d 454, 460 (Tex. App.—Tyler 1999, pet. denied). But, when sued for
damages, officials acting in their official capacities are not “persons” who may
be liable under § 1983. See Will, 491 U.S. at 71, 109 S. Ct. at 2312; Thomas
v. Brown, 927 S.W.2d 122, 125 (Tex. App.—Houston [14th Dist.] 1996, writ
denied).
Leachman did not clearly demarcate his claim for injunctive relief against
Dretke as separate and apart from his claim for actual damages, although he did
make such a distinction with regard to his request for exemplary damages
against Adams, Boyle, Johnson, and Oncken. Therefore, from his amended
petition, the trial court could have reasonably concluded that Leachman had
failed to state a claim with an arguable basis in law because it appeared that he
was seeking damages against someone who, in his official capacity, could not
be held liable under § 1983. See T EX. C IV. P RAC. & R EM. C ODE A NN.
§ 14.003(b)(2); W ill, 491 U.S. at 71, 109 S. Ct. at 2312; Thomas, 927
S.W.2d at 125.
Furthermore, Leachman clearly alleged that Milbern’s act of seizing his
property was a due process violation, but it is unclear from his amended
petition which constitutional rights he alleges that the DRC and Dretke violated,
9 and whether he is attacking the initial deprivation, the policy behind the
deprivation, the DRC’s review procedure, or the DRC’s decision to uphold the
deprivation. He merely states that, by “allowing” and “upholding” Milbern’s
seizure, Dretke, through the DRC, violated Leachman’s “rights under the U.S.
Constitution and the Constitution of Texas.”
Based on the ambiguities presented by Leachman in his claim against
Dretke, we cannot say that the trial court abused its discretion by dismissing
his claim for having no arguable basis in law. 3 See T EX. C IV. P RAC. & R EM. C ODE
A NN. § 14.003(b)(2). Whether the trial court abused its discretion by
dismissing Leachman’s claims with prejudice depends on whether Leachman’s
errors could be remedied. See Hickman v. Adams, 35 S.W.3d 120, 124 (Tex.
App.—Houston [14th Dist.] 2000, no pet.). Because Leachman could have
amended his pleadings to clarify the ambiguities in his claim against Dretke,
dismissal with prejudice was an abuse of discretion. See id. Therefore, we
overrule Leachman’s third issue, but we sustain the portion of Leachman’s first
issue regarding the dismissal with prejudice of his claim against Dretke.
2. Leachman’s claims against Adams, Boyle, Johnson, and Oncken
3 … Leachman does make clear in his briefs to this court that he only sought injunctive relief with regard to the “claim that his mail was unconstitutionally denied.”
10 Leachman asserts that his claims against Adams, Boyle, and Johnson
should not have been dismissed with prejudice under chapter fourteen because
his retaliation claim did not lack an arguable basis in law when he alleged facts
in his amended petition that showed a chronology of events “from which
retaliation may plausibly be inferred.” He also broadly complains that his state
law claims had arguable bases in law and that these claims were not addressed
in the TDCJ employees’ motion to dismiss.4 He contends that it was error for
the trial court to dismiss his claims against Oncken based on its finding of
immunity.
At some point in February 2004, Leachman told Milbern to hold for
litigation the enclosures withheld from him by the DRC and, in retaliation,
Milbern contacted David Mayo, an investigator from the Inspector General’s
office, to initiate an investigation into Leachman’s mail. In July, Leachman sent
4 … However, if Leachman failed to exhaust his administrative remedies, or failed to state an arguable basis in law for his claims, those claims did not need to be addressed in the TDCJ employees’ motion for the trial court to be able to dismiss them. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.003(a); Wilson, 107 S.W.3d at 92; Retzlaff, 94 S.W.3d at 653.
11 a letter to Diana Browning, the mother of a minor who had modeled for
Leachman,5 and in August, TDCJ investigated this letter.
On August 5, Sergeant Billy J. Hampton notified him that he was “being
investigated for a possible violation of Code 10.1,” based on the letter to
Browning.6 Leachman asked Sergeant Hampton to check TDCJ records, stating
that his contact with Browning did not violate Code 10.1 because Browning’s
son was not a “victim” under section 10.1. Leachman’s parents also spoke
with the duty warden with regard to this “baseless charge.” During this time,
Mayo contacted Oncken about the Browning letter, and Oncken told Mayo that
Browning’s son was an “extraneous, unindicted victim” and that Browning’s
son was “not a victim in any case for which [Leachman] is serving time.”
5 … Leachman was a professional photographer. Leachman stated that he contacted Browning because she had made certain statements in a letter to the trial court during the pre-sentence investigation portion of Leachman’s criminal trial, which he believed were based on misconceptions. 6 … Section 10.1 of the TDCJ Disciplinary Rules and Procedures for Offenders prohibits “contacting without authorization the offender’s victim or a member of the victim’s family, if the victim was under the age of seventeen (17) at the time of the offense for which the offender is serving a sentence.” T EX. D EP’T OF C RIMINAL J USTICE, TDCJ D ISCIPLINARY R ULES AND P ROCEDURES FOR O F F E N D E R S 2 4 , a t http://www.tdcj.state.tx.us/publications/cid/GR-106%20Web%20doc%20% 20English%202-07.pdf; see also T EX. G OV’T C ODE A NN. § 498.0042 (Vernon 2008) (setting out the statutory basis for section 10.1).
12 On August 11, Adams, TDCJ counsel substitute, served Leachman with
a disciplinary charge for violating section 10.1, per a report by Johnson, the
new TDCJ mail room supervisor, who based the charge on the Browning letter.
Adams did not tell Leachman that, with regard to the charged violation, “there
were other players in the game,” specifically, Mayo and Oncken. When he
found out about Mayo and Oncken, at the disciplinary hearing on the violation,
held on August 13, Adams told him that it was too late to call them as
witnesses.
Boyle, the disciplinary hearing officer, did not allow Leachman to present
his documentary evidence at the hearing and told him, “You can just put that
in the grievance.” Boyle found Leachman guilty of the violation and Leachman
was punished. Leachman later “heard” that TDCJ employees were packing his
property “[e]ven as [he] was walking to the administrative building” for the
hearing.
The disciplinary case was subsequently overturned.7 Thereafter,
Leachman filed a Step 1 offender grievance form on October 25, 2004,
complaining that the outcome of the August 13 disciplinary hearing was
7 … Leachman attached no documentation to his amended petition and included no explanation to the trial court with regard to how or why the disciplinary case was overturned.
13 predetermined, thereby depriving him of due process. In the same form,
Leachman complained that the investigation into his mail constituted
retaliation.8 These acts, Boyle, and the “mailroom supervisor [who Leachman
told] to hold the ‘child porn’ for litigation” are the only TDCJ actions and actors
that Leachman complained of in the form.
TDCJ returned the form, unprocessed, to Leachman on October 26, with
“Grievable time period has expired” as the screening criteria reason for not
processing it. Leachman filed a Step 2 offender grievance form on November
2, asking, “How can the grievable time period be expired? I sought informal
resolution and filed the grievance within 15 days as soon as I got the
information that makes up the grievance.” TDCJ responded on November 30,
stating, “You may not submit a Step 2 appeal on a Step 1 grievance that was
returned to you unprocessed using one of the screening criteria.” Leachman
stated in his section 14.005 declaration attached to his amended petition that
he received TDCJ’s “final answer on that grievance,” the November 30
communication, on December 6.
8 … Leachman asserted in the grievance, “An ‘investigation’ was started as retaliation for my lawsuit, and at the flimsiest excuse from the investigation, I was illegally tried and sentenced in disciplinary court for an offense the administration knew I did not commit.”
14 In his amended petition, Leachman brought the following claims, jointly
and severally, against Adams, Boyle, Johnson, and Oncken: (1) they violated
his due process rights “by conspiring to continue and enlarge Defendant
Milbern’s campaign of retaliation,” in their personal capacities and under color
of state law; (2) they “conspired to engage in an extreme or outrageous manner
which was calculated and intended to cause [Leachman] severe emotional
distress;” and (3) they “intentionally or recklessly violated [Leachman’s] due
process rights in an extreme or outrageous manner, causing [him] severe
emotional distress.” He also alleged that they “conspired to maliciously and
without probable cause inititate [sic] or continue a civil proceeding” against him;
and that they “insisted upon initiating or continuing a civil proceeding against
[Leachman], maliciously and without probable cause, which civil proceeding
was eventually terminated in [Leachman’s] favor, but which caused actual
interference with [Leachman’s] person or property.”
Leachman also brought due process claims on an individual basis in his
amended petition, alleging that each individual acted in his or her personal
capacity and under color of state law. He alleged that Adams violated his due
process rights in the disciplinary hearing “by utterly failing in her duty to
represent him, either out of deliberate malice or with reckless disregard for
[Leachman’s] rights.” He claimed that Boyle violated his due process rights in
15 the disciplinary hearing “by refusing to let [Leachman] introduce relevant,
exculpatory documentary evidence,” “by finding [Leachman] guilty when Boyle
had the IOC [Inter-Office Communication from Mayo reporting the results of his
investigation] at hand[,] showing [Leachman’s] innocence,” and “by determining
[Leachman’s] guilt and punishment before the disciplinary hearing was held and
evidence was heard.” He contended that Johnson violated his due process
rights in the disciplinary hearing “by mischaracterizing [Browning’s son] as a
victim, deliberately and maliciously or with reckless disregard for [Leachman’s]
rights.” Finally, he stated that Oncken
violated [Leachman’s] due process rights in the disciplinary process by denominating [Browning’s son] a “victim,” knowing that in doing so she was providing a statement to be used against [Leachman] in a disciplinary hearing and possible criminal investigation, and knowing that said statement was false or having a reckless disregard for the truth of the statement.9
(b) Exhaustion of administrative remedies through the grievance process
A TDCJ disciplinary decision is subject to the grievance procedure. See
Comeaux v. Tex. Dep’t of Criminal Justice, 193 S.W.3d 83, 84 (Tex.
9 … Leachman restates his claims in his appellate brief as “[p]ersonal- capacity claims against Johnson, Adams, Boyle, and Oncken under 42 U.S.C.[A.] § 1983 relating to retaliation” and for denial of due process in a disciplinary hearing and state law claims for intentional infliction of emotional distress and for malicious prosecution in an “administrative proceeding.”
16 App.—Houston [1st Dist.] 2006, pet. denied). Allegations of reprisals by TDCJ
employees against inmates for filing grievances or lawsuits, or other inmate
complaints about TDCJ employee actions, are also subject to the grievance
procedure. See Birdo v. Schwartzer, 883 S.W.2d 386, 388 (Tex. App.—Waco
1994, no writ); see also Wolf v. Tex. Dep’t of Criminal Justice, Inst. Div., 182
S.W.3d 449, 450 (Tex. App.—Texarkana 2006, pet. denied) (describing the
Offender Orientation Handbook); T EX. D EP’T OF C RIMINAL J USTICE, O FFENDER
O RIENTATION HANDBOOK 53 (Nov. 2004), available at
http://w w w .tdcj.state.tx.us/publications/cid/O ffendO rientH bkNov04.pdf
(stating that the actions of a TDCJ employee are grievable). Therefore, with
regard to all of his claims against Adams, Boyle, and Johnson, Leachman had
to exhaust his remedies through the grievance process before he could seek
judicial review. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.005(a); T EX. G OV’T
C ODE A NN. § 501.008(d) (Vernon 2004). If he failed to exhaust these remedies,
then this was an appropriate ground upon which the trial court could dismiss
his claims under chapter fourteen. See T EX. C IV . P RAC. & R EM. C ODE A NN. §
14.003(a); Retzlaff, 94 S.W.3d at 653.
There is little authority or discussion with regard to whether an
unprocessed grievance form is sufficient, in a Texas court, to warrant judicial
review. See Elias v. DeLeon, No. 12-04-00143-CV, 2005 WL 2404113, at
17 *1–2 (Tex. App.—Tyler Sept. 30, 2005, no pet.) (mem. op.) (reversing suit’s
dismissal where inmate stated a claim with an arguable basis in law, even
though inmate’s grievances were returned to him unprocessed); Roberson v.
Howell, No. 12-02-00232-CV, 2003 WL 1193759, at *1 (Tex. App.—Tyler
Mar. 14, 2003, pet. denied) (mem. op.) (affirming suit’s dismissal not because
inmate’s Step 1 grievance form was returned to him unprocessed but because
he failed to file suit within the 31-day statutory period); Thompson v. Tex.
Dep’t of Criminal Justice Inst. Div., No. 08-01-00232-CV, 2002 WL 1301575,
at *3 (Tex. App.—El Paso June 13, 2002, no pet.) (affirming dismissal where
trial court found both that inmate failed to exhaust his administrative remedies
and that his claims were frivolous); see also McCullough v. Tex. Dep’t of
Criminal Justice-ID, No. 02-07-00072-CV, 2008 WL 704419, at *4 (Tex.
App.—Fort Worth Mar. 13, 2008, no pet.) (mem. op.) (affirming dismissal
where, among various other procedural defects, inmate failed to file his lawsuit
by statutory deadline).
However, the legislature designed chapter fourteen to control the flood
of frivolous lawsuits being filed in state courts by inmates, consuming valuable
judicial resources with little offsetting benefit. See Bishop, 131 S.W.3d at 574;
Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.—Waco 1996, no pet.).
The Supreme Court recently discussed a similar issue, with regard to whether
18 the exhaustion of remedies requirement under the federal Prison Litigation
Reform Act (“PLRA”) could be satisfied by an inmate filing an untimely or
otherwise procedurally defective administrative grievance or appeal. See
Woodford v. Ngo, 548 U.S. 81, 83–84, 126 S. Ct. 2378, 2382 (2006).
Like the Texas legislature in enacting chapter fourteen, the U.S. Congress
enacted the PLRA to reduce the amount of frivolous prisoner litigation. Id. at
84, 126 S. Ct. at 2382. The Court determined that the proper exhaustion of
administrative remedies was necessary in order for an inmate to subsequently
seek judicial review of his grievances. Id., 126 S. Ct. at 2382. The Court
based its determination on the purposes of the exhaustion requirement, which
are to give the agency an opportunity to correct its own mistakes and prevent
disregard of agency procedures, and to promote efficiency and conserve
resources rather than expend scarce resources on inefficient litigation. Id. at
84, 89, 126 S. Ct. at 2382, 2385.
The Court defined “proper exhaustion” as “compliance with an agency’s
deadlines and other critical procedural rules,” reasoning that no adjudicative
system can function effectively without imposing some orderly structure on the
course of the proceedings. Id. at 90–91, 126 S. Ct. at 2386. The Court
stated:
19 [R]equiring proper exhaustion . . . gives prisoners an effective incentive to make full use of the prison grievance process and accordingly provides prisons with a fair opportunity to correct their own errors. . . . Proper exhaustion reduces the quantity of prisoner suits because some prisoners are successful in the administrative process, and others are persuaded by the proceedings not to file an action in federal court. Finally, proper exhaustion improves the quality of those prisoner suits that are eventually filed because proper exhaustion often results in the creation of an administrative record that is helpful to the court. When a grievance is filed shortly after the event giving rise to the grievance, witnesses can be identified and questioned while memories are still fresh, and evidence can be gathered and preserved.
Id. at 94–95, 126 S. Ct. at 2388. Additionally, “[a] prisoner who does not
want to participate in the prison grievance system will have little incentive to
comply with the system’s procedural rules unless noncompliance carries a
sanction.” Id. at 95, 126 S. Ct. at 2388. 10
10 … The Court explained further that, without requiring “proper exhaustion,”
[A] prisoner wishing to bypass available administrative remedies could simply file a late grievance without providing any reason for failing to file on time. If the prison then rejects the grievance as untimely, the prisoner could proceed directly to federal court. And acceptance of the late grievance would not thwart the prisoner’s wish to bypass the administrative process; the prisoner could easily achieve this by violating other procedural rules until the prison administration has no alternative but to dismiss the grievance on procedural grounds.
Id. at 95, 126 S. Ct. at 2388.
20 The grievance policy set forth by TDCJ is intended to foster efficiency;
by failing to properly follow the grievance procedure, an inmate makes the
entire process less efficient. See Johnson v. Ford, 261 Fed. App’x. 752, 757
(5th Cir. 2008); see also Scott v. Menchaca, 185 S.W.3d 543, 545 (Tex.
App.—Corpus Christi 2006, no pet.) (stating that section 14.005 reflects that
the exhaustion of administrative remedies is mandatory as to claims that are
subject to the grievance system). An inmate may not file a claim in state court
regarding operative facts for which the grievance system provides the exclusive
administrative remedy until (1) the inmate receives a written decision issued by
the highest authority provided for in the grievance system; or (2) if the inmate
has not received a written decision described by Subdivision (1), the 180th day
after the date the grievance is filed. T EX. G OV’T C ODE A NN. § 501.008(d).
An inmate has fifteen days from the date of the alleged incident on which
the grievance is based to complete the Step 1 offender grievance form and
forward it to the Unit Grievance Investigator. Wolf, 182 S.W.3d at 450–51;
T EX. D EP’ T OF C RIMINAL J USTICE, O FFENDER O RIENTATION H ANDBOOK at 53. The
record reflects that Leachman did not file his Step 1 offender grievance form
involving either the retaliation claim or the denial of due process in the August
13 disciplinary hearing until October 25. Leachman provided contradictory
information on this point in his appellate brief, admitting in his fact statement
21 that TDCJ refused to process the grievance based on untimeliness, but also
stating that he received “the Step 2 grievance decision.” TDCJ expressly
informed Leachman that he could not submit a Step 2 grievance on a Step 1
grievance that it had returned to him unprocessed. Leachman’s Step 1
grievance was returned to him by TDCJ because it was untimely filed.
Leachman claims that the November 30 communication, which he
received on December 6, fulfilled his exhaustion requirement. We disagree.
Following the reasoning of the Supreme Court in Woodford, we adopt the
interpretation that the exhaustion of remedies requirement under section
501.008 of the government code and section 14.005 of the civil practice and
remedies code requires proper exhaustion of remedies, i.e., the timely filing of
grievances, before an inmate may seek judicial review. See Woodford, 548
U.S. at 81, 83–84, 90, 126 S. Ct. at 2382, 2385. Because Leachman failed
to properly exhaust his administrative remedies, and therefore failed to comply
with the statutory procedural requirements as to his claims against Adams,
Boyle, and Johnson, the trial court did not err by dismissing these claims as
frivolous. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.005(a); T EX. G OV’T C ODE
A NN. § 501.008(d); Retzlaff, 94 S.W.3d at 654; see also Francis v. TDCJ-CID,
188 S.W.3d 799, 805 (Tex. App.—Fort Worth 2006, no pet.) (stating that the
legislature implicitly authorized dismissal under section 14.005); Smith v. Tex.
22 Dep’t of Criminal Justice-Inst. Div., 33 S.W.3d 338, 341 (Tex.
App.—Texarkana 2000, pet. denied) (stating that section 14.005‘s “obvious
purpose,” in light of section 501.008 of the government code, is to allow the
trial court to dismiss an inmate’s suit when it becomes clear that he has failed
to provide the required statutory information).
Additionally, Leachman’s October Step 1 offender grievance form
mentioned only Boyle by name, and he made no allegations at all with regard
to Adams or Johnson. Therefore, regardless of his untimely filing of the
grievance, he failed to exhaust his remedies through the grievance process as
to Adams and Johnson. See Wolf, 182 S.W.3d at 451 (“Wolf’s grievance does
not address the issues he brought in his civil petition, and we cannot say he
either sought or received a final administrative decision on those issues.”); see
also Riddle v. TDCJ-ID, No. 13-05-00054-CV, 2006 WL 328127, at *2 (Tex.
App.—Corpus Christi Feb. 9, 2006, pet. denied) (mem. op.) (“Riddle did not
exhaust the grievance procedures for those individuals named in the claim who
were not named in the grievance. Thus, Riddle did not fulfill all statutory
procedural requirements.”).
And although Leachman claimed in his October Step 2 offender grievance
form that he did not get the information that made up the grievance until after
he returned from solitary confinement, even if some type of discovery rule
23 applied as an exception to proper exhaustion, it would not benefit Leachman.
As early as August 5, Leachman was aware of the investigation into his letter
to Browning and had informed TDCJ authorities that there were no grounds to
support a charge that he violated Code 10.1. Adams served Leachman with
the charge on August 11 and told him that the charging officer was Johnson;
the hearing was August 13.
Therefore, as to Johnson, Leachman had fifteen days from August 11 to
file his Step 1 offender grievance form to complain of TDCJ employee acts that
he considered retaliation for filing the March 17 lawsuit against a mail room
official. Wolf, 182 S.W.3d at 450–51; T EX. D EP’T OF C RIMINAL J USTICE, O FFENDER
O RIENTATION H ANDBOOK at 53. As to Adams and Boyle, he had fifteen days from
August 13 to file his Step 1 offender grievance form to complain about
retaliation on the same facts and about procedural due process violations in the
24 disciplinary hearing by all three.11 Wolf, 182 S.W.3d at 450–51; T EX. D EP’T OF
C RIMINAL J USTICE, O FFENDER O RIENTATION H ANDBOOK at 53. He failed to meet
these deadlines and therefore failed to properly exhaust his administrative
remedies. Based on all of the foregoing, we overrule Leachman’s fourth point.
Finally, although a dismissal with prejudice is improper if the error can be
remedied, because Leachman failed to timely file his grievances as to Adams,
Johnson, and Boyle, his error as to these claims cannot be remedied; his
fifteen-day deadline to file offender grievance forms on those claims has
passed. See Nabelek v. Dist. Att’y of Harris County, No. 14-03-00965-CV,
2005 WL 2148999, at *7 (Tex. App.—Houston [14th Dist.] Sept. 8, 2005,
pet. denied) (dismissing claims with prejudice where inmate could not remedy
the errors that resulted in the dismissal of his suit). Therefore, it was not an
11 … Because Leachman failed to include his previous grievance with regard to his disciplinary hearing, which resulted in its reversal, the trial court had no way to ascertain whether any of these complaints had previously been addressed and exhausted through the grievance process. See T EX. D EP’T OF C RIMINAL J USTICE, O FFENDER O RIENTATION H ANDBOOK at 52 (listing grounds for appeal of a disciplinary hearing decision as: (1) one or more procedural rights were violated; (2) insufficient evidence to find offender guilty; (3) penalty imposed by the hearing officer was too severe). In his reply brief, Leachman attempts to justify excluding any explanation with regard to the disciplinary hearing reversal by stating that his “first complaints about his disciplinary hearing, which resulted in the reversal of his disciplinary conviction, did not contemplate litigation and are not part of this suit.”
25 abuse of discretion for the trial court to dismiss these claims with prejudice.
We overrule the remaining portion of Leachman’s first issue.
(c) Dismissal based on immunity
Chapter fourteen applies to Leachman’s claims against Oncken. See T EX.
C IV. P RAC. & R EM. C ODE A NN. § 14.002. However, because Oncken was not a
TDCJ employee, the exhaustion requirement addressed above does not apply.
See id. § 14.005(a) (stating filing requirements for claims subject to the
grievance system under section 501.008); T EX. G OV’T C ODE A NN. § 501.008(a)
(“A remedy provided by the grievance system is the exclusive administrative
remedy available to an inmate for a claim for relief against the department.”)
(emphasis added).
Oncken asserted official immunity and qualified immunity in her answer.
The trial court dismissed all of Leachman’s claims against her after making “the
necessary findings that she is entitled to absolute prosecutorial and qualified
immunity.” As Leachman does, we will assume that the trial court meant
federal qualified immunity as to the § 1983 claims and official immunity as to
the state claims.
(i) Oncken’s immunity defense–§ 1983 claims
The doctrine of qualified immunity shields an official performing
discretionary functions from liability for civil damages under § 1983, provided
26 the official’s conduct does not violate clearly established constitutional or
statutory rights of which a reasonable person would have been aware. Harlow
v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982); Thomas v.
Collins, 860 S.W.2d 500, 503 (Tex. App.—Houston [1st Dist.] 1993, writ
denied). After a government official asserts the affirmative defense of qualified
immunity, the burden shifts to the plaintiff to show that the defendant’s
conduct violated clearly established statutory or constitutional rights of which
a reasonable person would have been aware. Thomas, 860 S.W.2d at 503; see
also Whatley v. Philo, 817 F.2d 19, 20–21 (5th Cir.1987) (describing test for
qualified immunity). Therefore, we examine Leachman’s § 1983 claims to
determine which constitutional rights he claims were violated, and whether he
pleaded the violation sufficiently. See Brown v. Texas A & M Univ., 804 F.2d
327, 333–34 (5th Cir. 1986); Thomas, 860 S.W.2d at 503; see also Baker v.
McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 2692 (1979) (“The first inquiry
in any § 1983 suit . . . is whether the plaintiff has been deprived of a right
secured by the Constitution and laws.”).
Leachman alleged conspiracy to retaliate, which he claimed violated his
due process rights, and that Oncken violated his due process rights in the
disciplinary hearing. A § 1983 conspiracy claim is not actionable without an
actual violation of § 1983. Denson, 63 S.W.3d at 463. In order to state a
27 claim for conspiracy under § 1983, a plaintiff must establish conspiracy in some
detail and provide some factual basis for supporting the existence of
conspiracy; conclusory statements suggesting conspiracy are not enough to
state a claim. Id.
Moreover, to prevail on a retaliation claim brought under § 1983, an
inmate must establish (1) a specific constitutional right, (2) the defendant’s
intent to retaliate against the prisoner for his exercise of that right, (3) a
retaliatory adverse act, and (4) causation. Morris v. Powell, 449 F.3d 682, 684
(5th Cir.), cert. denied, 127 S. Ct. 596 (2006); see also Vacca v. Farrington,
85 S.W.3d 438, 441–42 (Tex. App.—Texarkana 2002, no pet.) (applying facts
to retaliation test). The inmate must allege more than his personal belief that
he is the victim of retaliation and must allege a chronology of events from
which retaliation may be plausibly inferred. Jones v. Greninger, 188 F.3d 322,
325 (5th Cir. 1999). Causation requires a showing that but for the retaliatory
motive, the complained of incident would not have occurred. McDonald v.
Steward, 132 F.3d 225, 231 (5th Cir. 1998).
Leachman alleged that Milbern initiated the retaliation against him after
he filed his lawsuit. Therefore, as to the retaliation claim, the specific
constitutional right at issue was Leachman’s right of access to the courts. See
Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 940 (Tex. App.—Fort Worth
28 1997, pet. denied) (stating that prisoners have a constitutional right of access
to the courts). Leachman alleged that Milbern intended to retaliate, and did so,
by instituting an investigation of his mail, which led to the investigation of the
Browning letter and the disciplinary hearing, in which he contended his due
process rights were violated, and which he claimed caused him emotional
distress.12 Therefore, notwithstanding his failure to exhaust his administrative
remedies with regard to any alleged retaliation by TDCJ employees, Leachman
may have stated a claim against Milbern, but Milbern is not a party to this
appeal.
To state a claim for civil conspiracy, Leachman had to allege that (1)
there were two or more persons, (2) an object to be accomplished, (3) a
meeting of the minds on the object or course of action, (4) one or more
unlawful, overt acts, and (5) damages as a proximate result. Profitlive P’ship
v. Surber, 248 S.W.3d 259, 261 (Tex. App.—Fort Worth 2007, no pet.). In
Vacca, an inmate brought a § 1983 action against prison officials, alleging that
in retaliation for filing a federal suit complaining of staff misconduct, he was
12 … Leachman contends that he “suffered intense and severe mental and emotional distress during these events,” and that, now, he “is afraid all the time, knowing that at any minute—even when he has done nothing wrong—vindictive TDCJ-CID employees can railroad and abuse him with virtual impregnability.”
29 subjected to, among other things, the filing of false disciplinary actions against
him. 85 S.W.3d at 439. Specifically, he alleged that three weeks after he
requested an inmate trust account printout that he needed to mail his civil rights
complaint, two TDCJ employees contrived a disciplinary infraction against him,
in retaliation for his suit against their friends and coworkers, by planting a $100
bill on the floor when they strip-searched him. Id. at 441–42. The disciplinary
hearing was held a week later and Vacca was found guilty. Id. at 442. He
alleged that, as a result of the retaliation, he experienced pain, humiliation,
weight loss, emotional distress, imminent fear for his life, and a chilling of his
right to exercise access to the courts. Id.
In contrast to Vacca, Leachman never alleged facts to show that there
was a meeting of the minds between Oncken, Adams, Boyle, and Johnson to
continue and enlarge Milbern’s “campaign of retaliation” against Leachman for
filing the original lawsuit. See Profitlive, 24 S.W.3d at 261. He did not allege
that Oncken knew that he had filed the lawsuit against Milbern or that Oncken
ever spoke with anyone other than Mayo. See id. And he acknowledged that
Oncken told Mayo that Browning’s son was “not a victim in any case for which
[Leachman] is serving time,” that Mayo reported this to Boyle, and that Boyle
chose to ignore this during the disciplinary hearing and imposed punishment.
See id. Therefore, Leachman failed to allege sufficient facts to support his
30 claim that Oncken conspired with Adams, Boyle, and Johnson to continue and
enlarge Milbern’s alleged retaliation.
As to Leachman’s procedural due process claim, the first inquiry in any
due process challenge is whether the plaintiff has been deprived of a protected
property or liberty interest. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 59, 119 S. Ct. 977, 989 (1999); City of Arlington v. Centerfolds, Inc., 232
S.W.3d 238, 248–49 (Tex. App.—Fort Worth 2007, pet. denied). Procedural
due process merely requires that when a governmental entity deprives an
individual of liberty or property, that it do so “in a fair manner.” See United
States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 2101 (1987);
Centerfolds, 232 S.W.3d at 248–49.
Leachman contended that Oncken violated his due process rights in the
disciplinary process by denominating Browning’s son as a “victim,” that Oncken
knew that she was providing a statement to be used against him in a
disciplinary hearing, and that Oncken knew that her statement was false or that
she had reckless disregard to its truth or falsity. However, Leachman also used
Oncken’s statement that Browning’s son was not a victim to argue that he was
deprived of due process by the TDCJ employees. And Leachman also
acknowledged that the disciplinary case, in which Oncken’s statements were
used, had been overturned. Therefore, he failed to allege sufficient facts to
31 state a due process violation under § 1983 against Oncken. See Collins v.
King, 743 F.2d 248, 254 (5th Cir. 1984) (stating that where inmate alleged
that he was denied procedural due process in a disciplinary hearing, but failed
to allege that the procedures for redress of the improper administrative
proceeding were constitutionally inadequate, he failed to allege a due process
violation).
Leachman failed to allege that Oncken conspired with anyone, that she
knew about Milbern’s alleged retaliation, that she knew Milbern or anyone else
who worked in the TDCJ mail room, or that her actions, rather than Boyle’s,
caused his punishment. He also failed to allege sufficient facts to connect his
denial of procedural due process in the subsequently-overturned disciplinary
case to Oncken’s statements, both of which established that Browning’s son
was not a victim of a crime for which Leachman was currently incarcerated.
Therefore, as to Oncken’s qualified immunity defense, Leachman failed to show
that her conduct violated any clearly-established statutory or constitutional right
because he failed to state any constitutional claims in his allegations. See
Whatley, 817 F.2d at 20; Thomas, 860 S.W.2d at 503. Because Leachman
failed to state any constitutional claims against Oncken, the trial court did not
abuse its discretion by dismissing these claims against Oncken. W e overrule
this portion of Leachman’s second issue.
32 (ii) Oncken’s immunity defense—state law claims
Government officials are entitled to official immunity arising out of their
performance of (1) discretionary duties (2) in good faith (3) and within the
scope of their authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653
(Tex. 1994); Souder v. Cannon, 235 S.W.3d 841, 852 (Tex. App.—Fort Worth
2007, no pet.). Official immunity is an affirmative defense, and the burden is
on the officer to plead and prove its elements. Chambers, 883 S.W.2d at 653.
However, “[t]he nature of an affirmative defense presupposes a prima facie
claim.” Denton County v. Johnson, 17 S.W.3d 46, 51 (Tex. App.—Fort Worth
2000, pet. denied). It follows, then, that without a claim for which suit may
be brought, there is no affirmative defense to assert. Id. Therefore, we first
examine Leachman’s pleadings to determine whether he alleged sufficient facts
to set out prima facie claims under state law.
Leachman contended that Oncken conspired with Adams, Johnson, and
Boyle to behave in an extreme and outrageous manner, calculated to cause him
severe emotional distress, and to maliciously initiate or continue a civil
proceeding against him. He also claimed that, individually, she inflicted severe
emotional distress on him through her intentional or reckless violation of his due
process rights. We have previously addressed Leachman’s failure to state due
33 process or conspiracy claims against Oncken and therefore overrule Leachman’s
second issue as it pertains to these claims.
As to his emotional distress claim, Leachman had to allege facts to show
that (1) Oncken acted intentionally or recklessly; (2) her conduct was extreme
and outrageous; (3) her actions caused him emotional distress; and (4) the
resulting emotional distress was severe. Hoffmann-La Roche, Inc. v.
Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004).
Leachman alleged facts to support Oncken’s statements as intentionally
made and alleged that he suffered severe emotional distress. However, he
failed to allege facts to support the causation element because he failed to
allege facts to show that Oncken’s statements, rather than Boyle’s disregard
of those statements during the hearing, were the cause of his punishment.
Therefore, we overrule Leachman’s second issue as it pertains to his emotional
distress claim.
As to his malicious prosecution claim against Oncken, Leachman had to
allege the following facts to support a prima facie claim: (1) that civil
proceedings were instituted or continued against him; (2) by or at Oncken’s
insistence; (3) malice in the commencement of the proceeding; (4) lack of
probable cause for the proceeding; (5) termination of the proceeding in
Leachman’s favor; and (6) special damages. Tex. Beef Cattle Co. v. Green,
34 921 S.W.2d 203, 207 (Tex. 1996). Assuming arguendo that a claim for
malicious prosecution exists for an administrative proceeding, Leachman failed
to allege any facts to show that Oncken insisted on the continuation of the
disciplinary hearing against him. Therefore, we overrule this remaining portion
of Leachman’s second issue.
IV. Conclusion
We reverse the trial court’s dismissal with prejudice as to Leachman’s
claim against Dretke and remand the case to afford Leachman a reasonable
opportunity to amend his pleadings as to that claim only. Having overruled the
remainder of Leachman’s four points, we affirm the rest of the trial court’s
judgment.
BOB MCCOY JUSTICE
PANEL B: DAUPHINOT, GARDNER, and MCCOY, JJ.
DELIVERED: July 10, 2008