Luis S. Lagaite, Jr v. William Pittman, V.L. Brisher, Jack Douglas, Wesley Freeman, Timothy Lester and Virgil Weaver

Opinion issued May 10, 2012 In The Court of Appeals For The First District of Texas ———————————— NO. 01-10-00554-CV ——————————— Luis Santos Lagaite, Jr., Appellant V. William Pittman, Virgil Weaver, Wesley Freeman, AND Timothy Lester, Appellees On Appeal from the 60th District Court Jefferson County, Texas Trial Court Case No. B-181,813 MEMORANDUM OPINION Appellant, Luis Santos Lagaite, Jr., an indigent inmate, brought a pro se section 1983 suit against appellees William Pittman, Virgil Weaver, Wesley Freeman, and Timothy Lester (collectively, “the prison officials”). The prison officials moved the trial court to declare Lagaite a vexatious litigant. The trial court declared Lagaite a vexatious litigant, required him to furnish security in the amount of $500 to avoid dismissal, and, when he failed to provide the required security, dismissed his case. In four issues, Lagaite contends that the trial court (1) “erred by failing to allow [him] the opportunity to amend his complaint by furnishing security” when he is indigent; (2) abused its discretion when it failed to assume that all factual allegations contained in his original petition were true; (3) violated his equal protection right “to be heard on the merits of the case exclusively”; and (4) violated the supremacy clause by refusing to consider the merits of his claim. We affirm. Background Lagaite, an inmate in the Mark W. Stiles Unit in Beaumont, filed a pro se petition in forma pauperis against the prison officials for “retaliation and unlawful disciplinary proceedings” pursuant to 42 U.S.C. § 1983. Lagaite alleged that because there was a “hold” on his inmate trust account, he had made an agreement with another inmate that Lagaite’s fiancée would deposit funds into the other inmate’s account and that inmate would then use the funds to make commissary purchases for Lagaite. After the other inmate allegedly failed to honor their agreement, Lagaite contacted Weaver, a sergeant in the “Gang Intelligence” unit, submitted letters concerning the agreement for an “initial investigation,” and requested that he be allowed to file extortion charges against the other inmate. Officials ultimately instituted a disciplinary proceeding for “trafficking and trading” against Lagaite for his role in the matter. Lagaite alleged that Freeman deliberately upgraded the disciplinary offense from a “Level 2 Minor Disciplinary Case” to a “Level 1 Major Case.” Lagaite appeared at a disciplinary hearing before Pittman, a hearing officer, on April 7, 2008. “Despite [Lagaite’s] 2 years clean disciplinary record,” Pittman placed Lagaite on fifteen days’ recreation restriction, fifteen days’ cell restriction, and fifteen days’ commissary restriction, and downgraded Lagaite from “S-4 Line Class.” Over the next week, the prison officials transferred Lagaite to several different “pods” and cells, and he ultimately received an “Ad-Seg [Administrative-Segregation] classification committee hearing evaluation report” informing him that he had been demoted to “level 2A custody.” Lagaite filed a formal grievance protesting Pittman’s disciplinary decision, and Lester upheld Pittman’s decision. Lagaite alleged that Weaver retaliated against him in bringing the disciplinary proceeding “because of the present litigation pending on defendants, and [Lagaite’s] assisting other offenders in legal work.” Lagaite also alleged that Pittman denied him the right to a fair hearing during the disciplinary hearing. He alleged that the prison officials’ “agenda” was to move him to an area in “near proximity of all [Lagaite’s] known enemies because he is a former ex-T.D.C. official” and to keep him at the “Level 2A” classification indefinitely by “repeatedly writing him bogus disciplinary” cases. He alleged that he would not have been “retaliated against with extreme reprisals” had he not filed grievances on Stiles Unit officials, filed “a civil litigation to that [effect],” and assisted another inmate with his legal mail. He further alleged that the prison officials’ actions, including their failure to reinstate his pre-disciplinary proceeding custody level, violated his due process rights and his First Amendment right to free speech. Lagaite sought declaratory relief, including declarations that the prison officials’ actions violated the First and Fourteenth Amendments and constituted civil rights violations under section 1983, and injunctive relief. Specifically, Lagaite sought an injunction ordering the prison officials (1) to immediately arrange for Lagaite to “be removed from F Pod and Level 2A Custody Status”; (2) to immediately arrange for Lagaite to “be given back his Level 1A Custody, S4 Line Class” status; and (3) to reassign Lagaite to “C Pod B Section 16 Cell,” where he was housed prior to his disciplinary proceeding, and expunge his disciplinary record retroactive to November 20, 2005.[1] The prison officials answered on July 7, 2008. On October 7, 2008, ninety days after they answered, the prison officials moved the trial court to declare Lagaite a vexatious litigant and to require Lagaite to furnish security before proceeding with the case. In this motion, the prison officials stated that Lagaite has filed over fifteen civil litigations pro se and in forma pauperis and has “already been sanctioned by the federal courts” as a vexatious litigant. The prison officials argued that there was no reasonable probability that Lagaite would prevail in the litigation because his claims lacked an arguable basis in law and thus were frivolous. The prison officials asserted that a section 1983 action was not the appropriate procedural vehicle for Lagaite’s claims and that “any request to be moved out of the housing assignment he received as punishment at the Stiles Unit is now moot” because Lagaite had been transferred to the Clements Unit in Amarillo.[2] The prison officials also identified seven cases that Lagaite had brought in forma pauperis within the seven-year period preceding the filing of the vexatious litigant motion that were either finally determined adversely to him or dismissed as frivolous. In response, Lagaite filed an objection to the prison officials’ motion. He did not attack the reasons that the prison officials had articulated for why no reasonable probability that he would prevail in the litigation existed, nor did he contest the identification of the seven prior in forma pauperis suits. He did, however, state, “This continuous relationship and unfair equal protection restriction in the courts makes plaintiff’s efforts as if swimming upstream in the torrent and [turbulent] rivers of biases and [pitfalls] the unlettered pro-se litigants face[] in the open legal forum. Plaintiff file[s] this objection to defendant’s motion to declare plaintiff[] a vexatious litigant.” Lagaite did not otherwise challenge the constitutionality of the vexatious litigant statute, and he did not cite to any authority holding that the statute violated equal protection rights. After a brief telephonic non-evidentiary hearing on April 8, 2010, the trial court granted the prison officials’ motion and declared Lagaite to be a vexatious litigant. The court ordered Lagaite to furnish $500 in security by May 10, 2010, and provided that if he did not timely furnish security, it would dismiss his claims. After Lagaite failed to timely furnish security, the trial court signed an order reciting that it had previously determined Lagaite to be a vexatious litigant and dismissing his claims. This appeal followed.[3] Vexatious Litigants Civil Practice and Remedies Code chapter 11 “provides a framework for courts and attorneys to curb vexatious litigation.” Devoll v. State, 155 S.W.3d 498, 501 (Tex. App.—San Antonio 2004, no pet.); see also Leonard v. Abbott, 171 S.W.3d 451, 457 (Tex. App.—Austin 2005, pet. denied) (“The purpose of chapter eleven is to restrict frivolous and vexatious litigation.”). Under this chapter, a trial court “may place limitations on the litigation activities of a person determined by the court to be a ‘vexatious litigant.’” Leonard, 171 S.W.3d at 455. The vexatious litigant statutes “attempt to strike a balance between Texans’ right of access to their courts and the public interest in protecting defendants from those who abuse the Texas court system by systematically filing lawsuits with little or no merit.” Retzlaff v. GoAmerica Commc’ns Corp., 356 S.W.3d 689, 697 (Tex. App.—El Paso 2011, no pet.) (quoting Sweed v. Nye, 319 S.W.3d 791, 793 (Tex. App.—El Paso 2010, pet. denied)). We review a trial court’s vexatious litigant determination for an abuse of discretion. Douglas v. Am. Title Co., 196 S.W.3d 876, 879 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Leonard, 171 S.W.3d at 458–59 (noting that vexatious litigant statute states that trial court “may” determine plaintiff to be vexatious litigant, indicating trial court has discretion in making declaration). A trial court abuses its discretion if it acts arbitrarily or unreasonably and without reference to any guiding rules and principles. Douglas, 196 S.W.3d at 879 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). Civil Practice and Remedies Code section 11.051 provides that a defendant may, on or before the 90th day after the date the defendant files an original answer, move the court for an order (1) determining that the plaintiff is a vexatious litigant and (2) requiring the plaintiff to furnish security. Tex. Civ. Prac. & Rem. Code Ann. § 11.051 (Vernon 2002). The trial court may find that the plaintiff is a vexatious litigant if the defendant demonstrates that there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant and that: the plaintiff, in the seven-year period immediately preceding the date the defendant makes the motion under Section 11.051, has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been: (A) finally determined adversely to the plaintiff; (B) permitted to remain pending at least two years without having been brought to trial or hearing; or (C) determined by a trial or appellate court to be frivolous or groundless under state or federal laws or rules of procedure. Id. § 11.054 (Vernon 2002); Leonard, 171 S.W.3d at 455. If the trial court, after hearing evidence on the motion, determines that the plaintiff is a vexatious litigant, it “shall order the plaintiff to furnish security for the benefit of the moving defendant” and it “shall determine the date by which the security must be furnished.” Tex. Civ. Prac. & Rem. Code Ann. § 11.055(a)–(b) (Vernon 2002) (emphasis added); Leonard, 171 S.W.3d at 456. If the plaintiff does not furnish security within the time period ordered by the trial court, the court “shall dismiss a litigation as to a moving defendant.” Tex. Civ. Prac. & Rem. Code Ann. § 11.056 (Vernon 2002); Leonard, 171 S.W.3d at 456. A. Propriety of Vexatious Litigant Determination Here, the prison officials timely moved the trial court to declare Lagaite a vexatious litigant. In their motion, the prison officials enumerated two legal reasons why no reasonable probability that Lagaite would prevail in the litigation existed: (1) Lagaite’s claims could not be brought in a section 1983 action, and (2) Lagaite’s claims to restore him to his pre-disciplinary proceeding custody status and housing assignment were moot because he had subsequently been transferred to another prison unit. The prison officials also identified seven cases that Lagaite had brought within the seven-year period preceding the filing of their vexatious litigant motion that were either finally determined adversely to Lagaite or dismissed as frivolous. The trial court granted the motion and declared Lagaite to be a vexatious litigant. It also ordered Lagaite to furnish $500 in security by May 10, 2010, or else it would dismiss his case. When Lagaite failed to provide security as ordered, the trial court dismissed his petition. 1. Denial of Amendment of Pleadings In his first issue, Lagaite contends that the trial court erred by denying and failing to allow him the opportunity to amend his pleadings “by furnishing security . . . when he is indigent.” To the extent Lagaite contends that the trial court refused to allow him to amend his pleadings, Lagaite has provided no evidence that he attempted to amend his pleadings, that he sought leave of court to amend his pleadings, or that the trial court issued an order prohibiting him from amending his pleadings. See Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“It is the burden of the appellant to bring forward a sufficient record to show the error committed by the trial court.”). To the extent Lagaite contends that the trial court erred in requiring him to furnish security when he is indigent, we note that section 11.055(a) mandates that the trial court require the plaintiff to furnish security if the court determines that the plaintiff is a vexatious litigant and section 11.056 requires the trial court to dismiss the litigation if the plaintiff does not provide the required security. Tex. Civ. Prac. & Rem. Code Ann. §§ 11.055(a), 11.056; see also Leonard, 171 S.W.3d at 456 (“If the court determines, based on evidence presented at a hearing, that the [plaintiff] is a vexatious litigant, it must order the plaintiff to furnish security for the benefit of the moving defendant . . . . If the plaintiff fails to furnish the court-ordered security by the time set in the order, the court must dismiss the suit.”) (emphasis added). Lagaite does not identify an exception to the security requirement for indigent plaintiffs who are determined to be vexatious litigants. We therefore hold that the trial court did not err when it required Lagaite to furnish security or face dismissal of his claim after it declared him to be a vexatious litigant. We overrule Lagaite’s first issue. 2. Failure to Assume Factual Allegations in Petition Are True In his second issue, Lagaite contends that the trial court erroneously failed to assume that the factual allegations in his original petition were true and failed to construe the factual allegations in the light most favorable to him. In their vexatious litigant motion, the prison officials raised two legal grounds for why there was no reasonable probability that Lagaite could prevail in the litigation: (1) a section 1983 action was not the proper procedural vehicle for bringing his claims and (2) because he had been moved to a different prison unit, his claims for the requested relief—injunctions requiring the prison officials to restore him to his pre-disciplinary proceeding custody status and to reinstate his original housing assignment—were moot. The prison officials also presented evidence that Lagaite had, within the seven-year period preceding their vexatious litigant motion, commenced, prosecuted, or maintained in propria persona at least five litigations that were either finally determined adversely to Lagaite or determined to be frivolous. The trial court granted the prison officials’ motion without stating the basis for its decision. Although Lagaite contends that the trial court did not view his factual allegations as true, he does not, on appeal, challenge the trial court’s implicit determination that, on legal grounds, there was no reasonable probability that he could prevail against the prison officials. He presents no argument, for example, in favor of why he can bring his claims as a section 1983 action, nor does he dispute the prison officials’ contention that his claims are moot. An appellant must attack all independent grounds that support an adverse ruling. Retzlaff, 356 S.W.3d at 698–99 (noting that trial court stated several grounds supporting finding that vexatious-litigant plaintiff did not have reasonable probability of prevailing in litigation, but plaintiff attacked only one stated ground on appeal). Because Lagaite failed to attack all of the independent grounds supporting the trial court’s vexatious litigant declaration, we must uphold the trial court’s ruling. See id. at 699 (citing Fox v. Wardy, 224 S.W.3d 300, 304 (Tex. App.—El Paso 2005, pet. denied)); see also Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (“Generally speaking, an appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment. If an appellant does not, then we must affirm the ruling or judgment. This rule is based on the premise that an appellate court normally cannot alter an erroneous judgment in favor of an appellant in a civil case who does not challenge that error on appeal.”). If an independent ground fully supports the complained-of ruling or judgment, but the appellant assigns no error to that ground, we must accept the validity of that unchallenged ground, and, thus, any error in the grounds actually challenged on appeal is harmless because the unchallenged ground fully supports the judgment. Britton, 95 S.W.3d at 681 (citing Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993)). We overrule Lagaite’s second issue.[4] B. Constitutional Challenges to Chapter 11 In his third and fourth issues, Lagaite contends that application of the vexatious litigant statute violates the equal protection and supremacy clauses because, by declaring him a vexatious litigant and dismissing his claims after he failed to furnish security, the trial court impermissibly declined to consider the merits of his claims.[5] Texas Rule of Appellate Procedure 33.1(a)(1)(A) requires a party, as a prerequisite for appellate review, to make his complaint to the trial court by timely request, objection, or motion that specifically states the grounds for the ruling sought and to obtain a ruling on that complaint from the trial court. Tex. R. App. P. 33.1(a)(1)(A); see In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (applying Rule 33.1 to due process challenges). Constitutional challenges must be raised in the trial court or they are not preserved for appellate review. Drum v. Calhoun, 299 S.W.3d 360, 369–70 (Tex. App.—Dallas 2009, pet. denied) (holding appellant’s open courts challenge to vexatious litigant statute not preserved for appellate review when appellant did not raise argument before trial court); In re S.A.P., 169 S.W.3d 685, 692 (Tex. App.—Waco 2005, no pet.) (“Due process and other alleged constitutional violations also must be raised in the trial court for them to be preserved for appellate review.”). After the trial court granted the prison officials’ vexatious litigant motion and subsequently dismissed his claims, Lagaite did not file a motion for reconsideration or a motion for new trial. Although he argued in his original petition that the prison officials’ conduct violated various provisions of the Constitution, he never argued that the trial court’s application of the vexatious litigant statute violated the Constitution. Instead, he makes these arguments for the first time on appeal. We conclude that, because the record reflects that Lagaite did not challenge the constitutionality of the vexatious litigant statute before the trial court, he failed to preserve his contentions that the statute violated the equal protection and supremacy clauses for appellate review.[6] We overrule Lagaite’s third and fourth issues. Conclusion We affirm the judgment of the trial court. Evelyn V. Keyes Justice Panel consists of Justices Keyes, Bland, and Sharp. [1] After the prison officials answered, Lagaite filed a document entitled “Plaintiff’s Objection to Defendants’ Original Answer and Jury Demand, and Motions the Court for Damages.” Lagaite requested that the trial court award him $250,000 in compensatory damages against the prison officials, jointly and severally, $70,000 in punitive damages from both Pittman and Freeman, $50,000 from Lester, and $40,000 from Weaver. [2] Lagaite currently remains incarcerated at the Clements Unit. [3] Lagaite initially appealed to the Ninth Court of Appeals in Beaumont. Pursuant to its docket equalization authority, the Texas Supreme Court transferred Lagaite’s appeal to this Court. See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005) (“The supreme court may order cases transferred from one court of appeals to another at any time that, in the opinion of the supreme court, there is good cause for the transfer.”). [4] In this issue, Lagaite also contends that he is “entitled [to] a stay and a bond” and cites several statutes and rules, including Texas Rule of Appellate Procedure 24. We note that Rule 24, which provides the means for a judgment debtor to supersede the enforcement of a judgment entered against him, is inapplicable, as Lagaite is not a judgment debtor seeking to supersede execution of a judgment. Tex. R. App. P. 24. None of the other rules or statutes cited by Lagaite address stays or bonds. See Lagaite v. Uy, 347 S.W.3d 890, 893 (Tex. App.—Amarillo 2011, no pet.) (overruling identical issue raised by same appellant in appeal of vexatious litigant determination). [5] We note that appellant has raised these contentions in another appeal and has had these issues decided adversely to him. See Uy, 347 S.W.3d at 893 (“Furthermore, we cannot but acknowledge that the trial court did that which appellant contends was denied him, i.e. considering the merits of the complaint before holding him to be a vexatious litigant. To be held such a litigant, the trial court must find, among other things, that the plaintiff has no reasonable probability of prevailing on the claim at issue. Undertaking that inquiry implicitly requires the trial court to preliminarily accept the factual assertions as true and assess whether they comprise a viable cause of action. So, appellant in fact received that which he said was denied him.”). [6] In his objection to the prison officials’ vexatious litigant motion, Lagaite stated, “This continuous relationship and unfair equal protection restriction in the courts makes plaintiff’s efforts as if swimming upstream in the torrent and [turbulent] rivers of biases and [pitfalls] the unlettered pro-se litigants face[] in the open legal forum.” To the extent that this statement can be construed as a challenge to the constitutionality of the vexatious litigant statute on equal protection grounds, we note that several of our sister courts have held that Civil Practice and Remedies Code chapter 11 is constitutional and does not violate equal protection rights. See, e.g., Clifton v. Walters, 308 S.W.3d 94, 101 (Tex. App.—Fort Worth 2010, pet. denied) (“Clifton’s arguments that chapter 11 denies him equal protection and access to court are unpersuasive.”); Leonard v. Abbott, 171 S.W.3d 451, 458 (Tex. App.—Austin 2005, pet. denied) (noting that “[a]ttorneys are subject to sanctions in various forms, including monetary sanctions pursuant to rule 13” for filing groundless pleadings and holding, “Chapter 11 does not unlawfully discriminate against pro se litigants or violate Leonard’s constitutional right to equal protection”); see also Retzlaff v. GoAmerica Commc’ns Corp., 356 S.W.3d 689, 704 (Tex. App.—El Paso 2011, no pet.) (“[W]hile [chapter 11] places an additional hurdle before vexatious litigants, it does not prevent them from pursuing meritorious litigation.”). We agree with our sister courts and hold that Civil Practice and Remedies Code chapter 11 does not violate the Equal Protection Clause.