Inmate's suit erroneously dismissed with prejudice

Since merits were not reached, dismissal should have been without prejudice. Austin appeals court modifies judgment, and affirms. Hunt v. Travis County District Clerk

Stan Hunt vs. Amalia Rodriguez-Mendoza, Travis County District Clerk, No. (Tex.App.- Austin, Aug. 30, 2007)(Opinion by Justice Pemberton)(Before Chief Justice Law, Justices Pemberton and Waldrop)

Appeal from 98th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. GN501768, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING


M E M O R A N D U M O P I N I O N

We withdraw our opinion dated July 11, 2007, and substitute the following in its place. We overrule Hunt's motion for rehearing.

Stan Hunt appeals from the district court's dismissal of his lawsuit against Travis County District Clerk Amalia Rodriguez-Mendoza for failure to comply with chapter 14 of the civil practice and remedies code, which governs inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (West 2002).

In four issues on appeal, Hunt claims that he was denied his right to a hearing on the dismissal, alleges that the district court interfered with his compliance with the statute, asserts that the district court abused its discretion in ordering the dismissal, and contends that his case should not have been dismissed with prejudice. We reform the judgment to reflect that the dismissal was without prejudice. As reformed, we affirm.

BACKGROUND

Hunt is an inmate confined in the Institutional Division of the Texas Department of
Criminal Justice. In May 2005, Hunt filed suit against Rodriguez-Mendoza, primarily alleging that he was being denied access to court records maintained by the Travis County District Clerk's Office. Hunt filed with his petition an affidavit of his inability to pay court costs and a request for leave to proceed in forma pauperis.

Chapter 14 of the civil practice and remedies code applies to a suit brought by an inmate in a district, county, justice of the peace, or small claims court in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate. See id. § 14.002(a). In accordance with section 14.004(a), Hunt filed a "Declaration of Previous Litigation," in which he listed 42 previously filed lawsuits. See id. § 14.004(a) (West 2002). Pursuant to section 14.006(f), Hunt was also required to file a certified copy of "the inmate's trust account statement." See id. §§ 14.004(c), .006(f) (West 2002). The statement is required because money is withdrawn from the inmate's trust account in order to pay for court fees, court costs, and other costs, and the statement indicates the amount that is available to be withdrawn. See id. § 14.006(a), (e), (f).

However, the record does not reflect that Hunt filed such a statement.

On November 14, 2005, Rodriguez-Mendoza filed a motion to dismiss the suit, alleging that Hunt failed to comply with the requirements of chapter 14. Specifically, Rodriguez-Mendoza claimed that Hunt neglected to mention that one of his previous lawsuits had been dismissed as frivolous, see id. § 14.004(a)(2)(D) (requiring that inmate "describe[] each suit that was previously brought by . . . stating the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise."), and that Hunt failed to file a certified copy of his trust account statement. See id. § 14.004(c) ("The affidavit or unsworn declaration [of inability to pay costs] must be accompanied by the certified copy of the trust account statement required by Section 14.006(f).").

A hearing on the motion to dismiss was set for December 2, 2005. On that date, the district court granted the motion to dismiss. The district court's order specified that the dismissal was "with prejudice." Three days later, on December 5, Hunt filed a response to the motion to dismiss and a "Motion for Telephone Conference Hearing on Defendant's Motion to Dismiss." The motion was overruled by operation of law. This appeal followed.

DISCUSSION

Right to hearing

In his first issue, Hunt asserts that the district court abused its discretion by "implicitly denying" his "timely request to appear by telephone conference at the scheduled dismissal hearing." In lawsuits filed under chapter 14, the district court's decision to hold a hearing prior to dismissal is discretionary. See id. § 14.003(c) ("In determining whether [to dismiss a claim], the court may hold a hearing." (emphasis added)); Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 938 (Tex. App.--Fort Worth 1997, pet. denied). No abuse of discretion is shown when the inmate does not demonstrate that there is evidence that he would have presented at the hearing. See Hall v. Treon, 39 S.W.3d 722, 724 (Tex. App.--Beaumont 2001, no pet.); Thomas, 952 S.W.2d at 938. In his "Motion for Telephone Conference Hearing," Hunt failed to demonstrate that he had specific evidence to present of compliance with chapter 14. On this record we hold that the district court did not abuse its discretion in denying Hunt's motion to appear at the hearing by telephone conference. We overrule Hunt's first issue.

The district court's alleged interference

In his second issue, Hunt alleges that the district court prevented him from complying with chapter 14. Specifically, Hunt asserts that he sent a copy of his inmate trust account statement to various district court officials both before and after the filing of his current lawsuit, but that these officials "refused" to file the statement. Hunt references no competent evidence that would support this claim, and we conclude that the district court did not abuse its discretion in concluding otherwise. We overrule Hunt's second issue.

Dismissal for failure to comply with chapter 14

In his third issue, Hunt asserts that the district court abused its discretion in dismissing his lawsuit. The trial court has broad discretion to dismiss a suit brought pursuant to chapter 14, and we review that dismissal under an abuse of discretion standard. White v. State, 37 S.W.3d 562, 563 (Tex. App.--Beaumont 2001, no pet.); McCollum v. Mt. Ararat Baptist Church, 980 S.W.2d 535, 536 (Tex. App.--Houston [14th Dist.] 1998, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). A clear failure by the trial court to analyze or apply the law correctly also constitutes an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

In her motion to dismiss, Rodriguez-Mendoza alleged two independent grounds on which the district court could have based its dismissal. First, Rodriguez-Mendoza alleged that Hunt omitted information stating that one of his previous lawsuits had been dismissed as frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a)(2)(D). Second, Rodriguez-Mendoza alleged that Hunt failed to file a certified copy of his inmate trust account statement. See id. §§ 14.004(c), .006(f). We need not consider the former contention, because we conclude that the district court did not abuse its discretion in finding that Hunt failed to file a certified copy of his inmate trust account statement. The district court does not abuse its discretion in dismissing a suit for failure to comply with the procedural requirements of chapter 14. See Scott v. Gallagher, 209 S.W.3d 262, 265 (Tex. App.--Houston [1st Dist.] 2006, no pet.); Williams v. Brown, 33 S.W.3d 410, 412 (Tex. App.--Houston [1st Dist.] 2000, no pet.). We overrule Hunt's third issue.

Prejudice

In his fourth issue, Hunt contends that the district court erred in dismissing his case
with prejudice. Dismissal with prejudice functions as a final determination on the merits of a case. Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991); Barcroft v. County of Fannin, 118 S.W.3d 922, 927 (Tex. App.--Texarkana 2003, pet. denied). A dismissal for failure to comply with the rules governing the filing of suits brought pursuant to chapter 14 is not a ruling on the merits. Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App.--Beaumont 2001, no pet.). Therefore, the dismissal in this case should have been without prejudice. Lentworth v. Trahan, 981 S.W.2d 720, 723 (Tex. App.--Houston [1st Dist.] 1998, no pet.). We sustain Hunt's fourth issue.

CONCLUSION

We overrule Hunt's first, second, and third issues and sustain his fourth issue. (1)
Accordingly, we reform the judgment to provide that the cause is dismissed without prejudice. As reformed, the judgment of the district court is affirmed.
_____________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Reformed and, as reformed, affirmed on Motion for Rehearing
Filed: August 29, 2007

1. Subsequent to the filing of this appeal, Hunt filed with this Court a "Motion to Take Judicial Notice." In the motion, Hunt lists various rules, statutes, cases, and alleged facts related to this proceeding and Hunt's previous lawsuits and asks this Court to take "judicial notice" of these items. An appellate court's decision to take judicial notice of a fact on appeal is generally discretionary. Tran v. Fiorenza, 934 S.W.2d 740, 742-43 (Tex. App.--Houston [1st Dist.] 1996, no writ); Martinez v. City of San Antonio, 768 S.W.2d 911, 914-15 (Tex. App.--San Antonio 1989, no writ) (citing Wellborn, Judicial Notice Under Article II of the Texas Rules of Evidence, 19 St. Mary's L.J. 1, 20 (1987)). To be the proper subject of judicial notice, a fact must be one not subject to reasonable dispute and "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Office of Pub. Util. Counsel v. Public Util. Comm'n, 878 S.W.2d 598, 600 (Tex. 1994) (quoting Tex. R. Evid. 201(b)). Furthermore, the requesting party must supply the court with the necessary information. Id. (quoting Tex. R. Evid. 201(d)). We have considered the items in Hunt's motion and determined that: (1) many of the items are not the proper subject of judicial notice; (2) other items contain either incomplete or inaccurate information; and (3) none of the items affect our resolution of the specific issues Hunt raised on appeal. Accordingly, we exercise our discretion and deny Hunt's motion.

Administrative segregation of dangerous inmate does not support IIED claim

IIED = Intentional Infliction of Emotional Distress, a common-law tort

David Mendez v. David Balagia and T. Riley (Tex.App.- Austin, Jul. 26, 2007)(Opinion by Justice Pemberton) (inmate pro se complaint of prison confinement conditions, IIED)(Before Chief Justice Law, Justices Patterson and Pemberton)
Appeal from 98th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. GN500810, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

David Mendez appeals from the district court's grant of summary judgment in favor of David Balagia and T. Riley. We affirm the judgment.

BACKGROUND

Mendez is an inmate serving a life sentence in the Institutional Division of the Texas Department of Criminal Justice (TDCJ) on a capital murder conviction. He was initially booked into the Travis County Jail in 1997 on capital murder charges and was tried, convicted of capital murder, and sentenced to confinement for life in TDCJ, as the State did not seek the death penalty. In March 2000, after sentencing but before transfer to TDCJ, corrections officers classified Mendez as a "high-security risk inmate" based on information that he and another inmate were planning to take a female hostage and attempt to escape. This Court later reversed Mendez's conviction and remanded for a new trial. (1)

Mendez was bench-warranted from TDCJ back to Travis County on July 3, 2002, and was again held in the Travis County Jail pending retrial. Upon his return to the county jail, Mendez was again classified as a high-risk prisoner and was placed in administrative segregation, where he remained for the fifteen months he continued to be held there. Mendez was again convicted of capital murder, received a life sentence, and was transferred to TDCJ. His second conviction was affirmed by this Court. (2)

Mendez, acting pro se, later filed suit against Balagia and Riley, two corrections officers with the Travis County Sheriff's Office. Mendez alleged that Balagia ordered him into administrative segregation in July 2002 "knowing that the escape allegation was false," and complained that Balagia's conduct constituted intentional infliction of emotional distress. Mendez further pleaded that Riley, "a recreation officer," forced him to wear leg irons during his recreation periods that "would wear away plaintiff's flesh on his ankles" and that such conduct constituted intentional infliction of emotional distress. Liberally construing his pleadings, Mendez also alleges that Riley intentionally inflicted emotional distress on him by failing to provide him a "due process hearing" when placing him in administrative segregation and that Balagia is vicariously liable for such conduct.

Balagia and Riley filed a "no evidence" motion for summary judgment asserting, among other grounds, (1) sovereign immunity and absence of a waiver under the tort claims act, see Tex. Civ. Prac. & Rem. Code Ann. § 101.057 (West 2005); (2) Mendez "failed to state a constitutionally cognizable liberty interest"; (3) no evidence of "extreme and outrageous" conduct; and (4) no evidence of damages. In response, Mendez filed an amended petition abandoning any claims against the two corrections officers in their official capacities and purporting to proceed against them exclusively in their individual capacities. The district court granted their motion without stating the grounds. This appeal followed.

DISCUSSION

In six issues on appeal, Mendez challenges the district court's summary judgment in favor of Balagia and Riley, attacking each of the grounds raised in their motion. Mendez also argues that the district court erred in granting summary judgment on his allegation that Balagia is vicariously liable for Riley's conduct because that ground was never explicitly raised in the summary-judgment motion.

Standard of review

We review the district court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Because the district court's order does not specify the grounds for its summary judgment, we must affirm the order if any of the grounds presented to the district court are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 692 (Tex. App.--Austin 2005, pet. denied). We conclude that the motion for summary judgment must be affirmed on no-evidence grounds. A no-evidence motion for summary judgment must be granted if, after an adequate time for discovery, (1) the moving party asserts that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial, and (2) the nonmovant fails to produce more than a scintilla of summary judgment evidence raising a genuine issue of material fact on those elements. Tex. R. Civ. P. 166a(i). A no-evidence summary judgment is essentially a directed verdict granted before trial, to which we apply a legal-sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Perdue v. Patten Corp., 142 S.W.3d 596, 603 (Tex. App.--Austin 2004, no pet.). A no-evidence summary judgment will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, 118 S.W.3d at 751. We view the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). More than a scintilla of supporting evidence exists if the evidence would allow reasonable and fair-minded people to differ in their conclusions. Id. "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion' of a fact." Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

Summary-judgment grounds

To recover damages for intentional infliction of emotional distress, a plaintiff must establish that (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe. Hoffmann-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004). A defendant's conduct satisfies the second element only if it is "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006) (quoting Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)). "Meritorious claims for intentional infliction of emotional distress are relatively rare precisely because most human conduct, even that which causes injury to others, cannot be fairly characterized as extreme and outrageous." Id.
In his response to the motion for summary judgment, Mendez attached a letter from Balagia and a document entitled "Unsworn Declaration of David Mendez." Neither item provides more than a scintilla of evidence that Balagia's and Riley's conduct was "extreme and outrageous."
In the letter, dated April 2001, Balagia wrote Mendez the following:

In regards to the incident you were involved in while incarcerated in the Travis County jail in March of 2000, the investigation could not produce any evidence or facts to support the allegation of an attempt to escape on your part. The investigation also revealed you to be a security risk.

Mendez claims that this letter is evidence that he should not have been placed in administrative segregation. We note that, on its face, the letter reflects determinations that while Mendez had not actually attempted to escape, he was nonetheless a security risk. This letter does not raise a fact issue as to whether placing Mendez in administrative segregation was "extreme and outrageous" conduct. Similarly, Mendez's "Unsworn Declaration" provides no more than a scintilla of evidence of "extreme and outrageous conduct."

In the declaration, Mendez makes various allegations, including that his leg cuffs hurt his ankles, that he had difficulty sleeping while in administrative segregation, and that his many complaints and grievances about being placed in administrative segregation and leg cuffs were ignored by prison officials. Even accepting all of these allegations as true, we hold that they do not rise to the level of conduct that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." See Suberu, 216 S.W.3d at 796.

We can find no authority holding that placing an inmate who has been determined to be a
security risk in administrative segregation or leg cuffs is "extreme and outrageous conduct," nor does Mendez cite any such authority.

We similarly reject Mendez's claims that are predicated on a perceived right to a "due process hearing" regarding his placement in administrative segregation. "[A]bsent extraordinary circumstances, administrative segregation as such, being an incident to the ordinary life of a prisoner, will never be a ground for a constitutional claim." Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998) (labeling such a claim "frivolous").

Further, Mendez adduced no evidence of damages under his intentional-infliction claim. See Hoffmann-La Roche, 144 S.W.3d at 438, 445. Finally, because the foregoing grounds are dispositive of Mendez's claims against Riley, they likewise negate any claim that Balagia is vicarious liable for Riley's conduct.

These grounds are sufficient to support summary judgment in favor of Balagia and Riley. (3) We accordingly overrule Mendez's issues and affirm the district court's summary judgment.
____________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Patterson and Pemberton
Affirmed
Filed: July 26, 2007

1. Mendez v. State, 56 S.W.3d 880 (Tex. App.--Austin 2001, pet. ref'd).
2. Mendez v. State, No. 03-03-00571-CR, 2004 Tex. App. LEXIS 11216, at *1 (Tex. App.--Austin Dec. 16, 2004, pet. ref'd) (mem. op., not designated for publication).
3. Mendez also asserts that the district court erred in granting summary judgment based on sovereign immunity because he non-suited his official-capacity claims. Because the other summary judgment grounds are sufficient to support the district court's judgment, we need not reach this argument.