Michael E. Geiger v. Barbara Landes

NO. 12-01-00152-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS MICHAEL EUGENE GEIGER, § APPEAL FROM THE 349TH APPELLANT V. § JUDICIAL DISTRICT COURT OF BARBARA L. LANDES, ALIAS BARBARA L. LAW, § ANDERSON COUNTY, TEXAS APPELLEE PER CURIAM Inmate Michael Eugene Geiger ("Geiger") filed a pro se in forma pauperis civil suit against Barbara Landes ("Landes"), an attorney employed by the State Counsel for Offenders, a division of the Texas Department of Criminal Justice pursuant to Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001 et seq., commonly known as the Texas Tort Claims Act ("the Act"). Geiger sued for damages resulting from Landes' failure to adequately represent him. He also requested damages pursuant to 42 U.S.C.A. § 1983 (1994) for violation of the United States Constitution and Texas Penal Code §§ 39.02(A)(1) and 39.03(A)(1)(2). The trial court dismissed as frivolous all claims against Landes sua sponte. In two issues, Geiger complains that the trial court erred when it dismissed his suit. We affirm. Background In his petition, Geiger alleged that he was indicted for an assault against a prison guard, for which Landes was appointed to represent him. Geiger complained that Landes did not represent him in a professional manner, only interviewed him twice in a three year period, failed to respond to his written complaints, did not comply with his requests for documents, did not pursue a speedy trial motion, and withdrew as counsel one week before his arraignment. Geiger asserts that these actions were taken because of Landes' racism and religious discrimination. Upon its own motion, the trial court dismissed Geiger's claims as frivolous or malicious pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 14.003 (Vernon Supp. 2002). This appeal followed. Standard of Review Dismissal Of Causes As Frivolous In his two issues, Geiger complains that the trial court abused its discretion when, on its own motion and without a hearing, it dismissed his suit against Landes because it found that the claims against her were frivolous or malicious. When a plaintiff files an affidavit of inability to pay, the trial court has broad discretion to dismiss the suit as frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (Vernon Supp.2002); Perales v. Kinney, 891 S.W.2d 731, 733 (Tex. App.-Houston [1st Dist.] 1994, no writ). A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any guiding rules or principles. Aguilar v. Chastain, 923 S.W.2d 740, 743 (Tex. App.-Tyler 1996, writ denied). In determining whether an action is frivolous or malicious, the statute allows the trial court to consider whether: the claim's realistic chance of ultimate success is slight; the claim has no arguable basis in law or in fact; it is clear that the party cannot prove facts in support of the claim; or Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b) (Vernon Supp. 2002). Case law requires that we only consider the second factor - whether there is an arguable basis in law or fact. See Johnson v. Lynaugh, 796 S.W.2d 705, 706 (Tex. 1990). When, as here, the trial court dismisses without a fact hearing, it could not have determined the suit had no arguable basis in fact. Hector v. Thaler, 862 S.W.2d 176, 178 (Tex. App.-Houston [1st Dist.] 1993, no writ). Thus, the issue before us is whether the trial court properly determined there was no arguable basis in law for the suit. Id. In order to make this determination, we will examine the types of relief and causes of action Geiger pleaded in his petition to ascertain whether, as a matter of law, the petition stated a cause of action that would authorize relief. Texas Tort Claims Act As stated in his petition, Geiger brought suit under the Act and named Landes as defendant. Geiger did not name the State of Texas or any other governmental unit as a party. However, a state official is not a proper party to a suit brought by an inmate under the Texas Tort Claims Act because an official is not a governmental unit. The Act does not provide for recovery against individuals employed by the State. Aguilar, 923 S.W.2d at 744; Harrison v. Texas Dept. of Criminal Justice, 915 S.W.2d 882, 890 (Tex. App.-Houston [1st Dist.] 1995, no writ). No court has jurisdiction over a suit brought under the Act against an employee of the State; therefore, all claims under the Act against Landes were properly dismissed. Perales, 891 S.W.2d at 733; Huntsberry v. Lynaugh, 807 S.W.2d 16, 17 (Tex. App.-Tyler 1991, no writ). However, "an officer who acts outside the scope of his authority is amenable to suit under a traditional common law cause of action." City of Beaumont v. Bouillion, 896 S.W.2d 143, 150 (Tex. 1995). Consequently, even though claims against Landes under the Act are not proper, Geiger did allege facts which may support a common law action against Landes for legal malpractice. But absent a showing that Geiger was exonerated from his criminal conviction for assault, his criminal conduct was the sole proximate cause of his conviction and damages. Barnum v. Munson, Munson, Pierce & Cardwell, P.C., 998 S.W.2d 284, 286 (Tex. App.-Dallas 1999, pet. denied). This warrants a determination that Geiger's malpractice claim against Landes was frivolous. See Id. 42 U.S.C.A. § 1983 Geiger's suit against Landes was also based on 42 U.S.C. § 1983, which provides, in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C.A. § 1983. The initial analysis in a section 1983 action is to determine whether (1) the conduct complained of was committed by a person acting under color of state law, and (2) this conduct deprived a person of rights, privileges or immunities secured by the Constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1913, 68 L. Ed. 2d 420 (1981). Landes, against whom Geiger filed suit, is an employee of the Texas Department of Criminal Justice. We have no difficulty concluding that the trial court did not dismiss the petition on the basis that Geiger could not establish the "color of state law" prong of a section 1983 action. As to the remaining requirement of the first element, when sued for damages, officials acting in their official capacities are not "persons" who may be liable under section 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989). Also, mere negligence by a government official is not actionable under section 1983. Johnson v. Lynaugh, 800 S.W.2d 936, 939 (Tex. App.-Houston [14th Dist.] 1990, writ denied). Furthermore, in his petition, Geiger maintains that Landes' actions were motivated by racism and religious discrimination. In reviewing dismissal of a lawsuit brought by an inmate who has filed an affidavit or declaration of inability to pay costs, the court of appeals is bound to take as true the allegations in the inmate's original petition. Jackson v. TDCJ-ID, 28 S.W.3d 811, 813 (Tex. App.- Corpus Christi 2000, pet. denied). However, to successfully allege a claim of discrimination in a section 1983 cause of action, a litigant must state specific facts, not merely conclusory allegations of discrimination. See Denson v. TDCJ-ID, No. 12-99-00177-CV, 1999 LEXIS 8125 at *6-7, __S.W.3d__, (Tex. App.-Tyler October 28, 1999, writ denied). A contention is frivolous if no facts are advanced in support of a mere conclusory allegation. Id. In the present case, Geiger made conclusory allegations of discrimination with no factual basis, which the court impliedly found frivolous. Therefore, upon the facts and legal allegations contained in Geiger's petition, there is no arguable basis in law for an action under 42 U.S.C. § 1983 because no constitutional right was implicated. Consequently, Geiger's section 1983 action for damages against Landes was not actionable, and the trial court correctly dismissed as to that claim. Texas Penal Code Geiger's pleadings also asserted a cause of action pursuant to sections 39.02 and 39.03 of the Texas Penal Code, alleging that Landes abused her official capacity and engaged in official oppression. However, the Penal Code does not create private causes of action, and a victim "does not have standing to participate as a party in a criminal proceeding." Tex. Const. art. I, § 30(e); Tex. Code Crim. Proc. Ann. art. 56.02(d) (Vernon Supp. 2002). Thus, Geiger's allegations based on the noted penal code sections must fail as not stating a cause of action recognized by law. Finding that Geiger's claims have no arguable basis in law, we overrule issue one. Dismissal Without Hearing In his second issue, Geiger complains that the trial court abused its discretion when it failed to conduct a hearing before dismissing his claim. We disagree. A fact hearing is only necessary if the claim has an arguable basis is law. See In re Wilson, 932 S.W.2d 263, 265 (Tex. App.-El Paso 1996, no writ); McDonald v. Houston Dairy, 813 S.W.2d 238, 239 (Tex. App.-Houston [1st Dist.] 1991, no writ). Since Geiger's suit did not have a basis in law due to his failure to name a governmental entity, because no constitutional right was implicated by his complaint, and because there was no private cause of action under the Penal Code, the trial court did not err when it did not proceed with a fact hearing on Geiger's petition. Accordingly, we overrule issue two. We affirm the judgment of the trial court. Opinion delivered January 31, 2002. Panel consisted of Davis, C.J., Worthen, J., and Griffith, J. (DO NOT PUBLISH)