     Case: 09-20241     Document: 00511020981          Page: 1    Date Filed: 02/04/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 4, 2010

                                       No. 09-20241                    Charles R. Fulbruge III
                                                                               Clerk

VERNIE MCBRIDE, JR.,

                                                   Plaintiff - Appellant
v.

WILLIAM POWERS, UHCL Director of TDCJ and Adjunct Instructor; ANN
BRANTELY, WSD College Liaison Darrington Unit; KENNETH
NEGBENEBOR, Warden Ramsey Unit; DENISE BUSHART, WSD Principal
Ramsey Unit; DOUG WALDRON, Region III Assistant Regional Director,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-2926


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellee Vernie McBride, Jr. is an inmate in the custody of the
Texas Department of Criminal Justice (“TDCJ”). McBride brought suit under
42 U.S.C. § 1983, seeking declaratory and injunctive relief as to his alleged
entitlement to a tuition exemption for coursework towards a Master’s degree
from the University of Houston-Clear Lake (“UHCL”) under TDCJ’s Academics

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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for Offenders program. In this appeal, McBride seeks reversal of the district
court’s order dismissing his complaint as malicious or frivolous. For the reasons
stated herein, we MODIFY and AFFIRM the judgment of the district court.
                          I. FACTS AND PROCEDURE
                    A. McBride’s Federal and State Complaints
        McBride filed a pro se complaint and supporting memorandum in this case
on September 22, 2008. McBride moved to appear in forma pauperis. He named
five defendants: William Powers, UHCL Director of TDCJ and Adjunct
Instructor for Graduate and Undergraduate Programs at TDCJ’s Ramsey I Unit;
Ann Brantley, Windham School District College Coordinator/Liaison at TDCJ’s
Darrington Unit; Kenneth Negbenebor, Warden of the Ramsey I Unit; Denise
Bushart, Principal, Windham School District; and Doug Waldron, Region III
Assistant Regional Director. All defendants were sued in both their individual
and official capacities, and were alleged to have acted under color of law to
deprive McBride of his rights.
        McBride stated that he submitted an application to UHCL in January
2005.    As a Texas citizen and veteran of the U.S. Armed Forces, McBride
requested an exemption from paying tuition under Texas’s Hinson-Hazlewood
Act, or “Hazlewood exemption.” See T EX. E DUC. C ODE A NN. § 54.203(a) (Vernon
2007). However, McBride stated: “Dr. Bill Powers, Ann Brantley and others
have repeatedly denied my attempts to register, albeit various sources indicate
that I am eligible for Hazelwood [sic] exemption.” McBride said he had already
obtained Bachelor’s and Associate’s degrees using Hazlewood exemptions while
in the custody of TDCJ. However, defendants denied McBride a Hazlewood
exemption because of a prior default on a federal student loan, and also because
he “committed a duplicitous act.” He averred that the denial of a Hazlewood
exemption violates his rights to equal protection and due process.



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      McBride acknowledged that he had previously defaulted on a student loan,
and included as Exhibit 1 to his complaint a letter from the U.S. Department of
Education, Office of Postsecondary Education. The letter, dated January 26,
2001, stated in part:
      As you know, your defaulted student loan has been in collection
      with the Department of Education (ED). ED has now charged off
      this debt as no longer collectible. Although ED will not take any
      further action to collect the debt, ED will continue to report this
      debt to other federal agencies as past due. This past due debt may
      affect your eligibility for Title IV federal financial aid . . . .
There is no indication from McBride or any defendant that this loan was made
or guaranteed by the State of Texas.
      Notwithstanding this unremedied loan default, McBride asserts that he
remains eligible for a tuition exemption. As evidence thereof, he includes as
Exhibit 2 a letter from the Texas Higher Education Coordinating Board
(“THECB”). The letter, dated December 6, 2007, states in relevant part:
      Coordinating Board rules indicate the following with regard to
      eligibility for students in default on loans:
            §21.2102 Eligible Veterans
            In order to be eligible to receive a Hazlewood Act Exemption,
            a veteran shall demonstrate that he or she:
            (5) is not in default on an education loan made or guaranteed
            by the State of Texas and is not in default on a federal loan if
            that default is the reason the student cannot use his or her
            federal veterans’ benefits;
      Apparently the school believes you are in default on a federal loan
      and that the default makes you ineligible for Hazlewood. This is
      only true if the default is keeping you from being able to use your
      federal veterans’ benefits (GI Bill, etc.). If you did not sign up for
      federal veterans’ benefits or if you signed up for them and have used
      all of them, your loan status has no impact on your eligibility for
      Hazlewood.




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Contrary to the above letter, McBride was notified on August 14, 2006 by Susan
Sims, Windham School District Principal, that he was not eligible.        Sims’s
communication is included as Exhibit 3 to the complaint.
      McBride says he was then informed by Sims that courses towards a
Master’s degree would cost “approximately $500 each.” He signed documents
and a contract agreeing to pay for the classes from his inmate trust account. He
was transferred to TDCJ’s Ramsey Unit in May 2007 in order to begin his
coursework. McBride says that upon arrival at Ramsey Unit, Defendant Powers
informed him that UHCL courses would actually cost $865 each. McBride could
not afford the additional cost, and did not pay. Powers also told McBride that
he was ineligible for a Hazlewood exemption due to his loan default.
      McBride says he “repeatedly, but unsuccessfully,” attempted to discuss the
matter with Powers. On March 24, 2008, McBride received a letter from Powers,
included as Exhibit 4 to the complaint, which states in part:
      As I have informed you on countless occasions both face to face and
      through written correspondence, you are prohibited from attending
      [UHCL] utilizing the Hazelwood [sic] waiver because you are in
      default on a student loan. [. . .]
      In addition, you admitted to me that you indicated that you would
      be paying for classes out of your trust fund with no intention of
      doing so, but rather only in order to be transferred to the Ramsey
      unit. In cooperation with Ms. Ann Brantley at WSD, you are not
      permitted to register for classes due to your duplicity.
McBride filed grievances with TDCJ. When these failed to bring relief, McBride
brought suit. He requested declaratory and injunctive relief, and court costs.
McBride noted in his complaint that he had filed a separate lawsuit on or about
July 1, 2008, in Brazoria County Court of Law #4.
                    B. Procedure Before the District Court
      The district court granted McBride’s motion to appear in forma pauperis.
Pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(b), the


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court screened the pleadings and ordered that all defendants be served.
Defendants were instructed to answer within forty days and file dispositive
motions within ninety days. Defendants filed a joint answer on January 6, 2009,
generally denying that McBride qualified for a Hazlewood exemption.
Defendants also asserted defenses including qualified and official immunity.
      On January 30, 2009, defendants moved to dismiss McBride’s complaint.
Defendants asserted that McBride was statutorily disqualified from a Hazlewood
exemption due to his federal loan default. Defendants said the letter from
THECB suggesting that McBride might actually be eligible for an exemption
relied on an administrative rule, and therefore could not supersede the statute.
Defendants also said the lawsuit should be dismissed because it duplicated a
pending state-court lawsuit.    See 28 U.S.C. § 1915(e)(2)(B)(i).     Defendants
included a copy of McBride’s state-court petition, in which McBride recounted
the same facts asserted in his federal lawsuit, and sought declaratory and
injunctive relief concerning his right to a Hazlewood exemption. The state-court
lawsuit named Powers and Brantley as defendants.           McBride opposed the
motion. He argued that only individuals who had defaulted on loans guaranteed
by the State of Texas were disqualified from the Hazlewood exemption.
However, McBride acknowledged that he had filed a “similar complaint in
Brazoria County.”
      McBride also moved for appointment of counsel and filed requests for
admissions and production of documents from defendants. Defendants moved
to stay discovery and enter a protective order. The court denied McBride’s
motion to appoint counsel, ordered that discovery be stayed, and granted
defendants’ motion for a protective order. The court also stated with reference
to defendants’ motion to dismiss: “Because the motion includes various exhibits
and refers to matters outside the pleadings, the Court hereby notifies the parties
that it intends to treat the motion as one for summary judgment . . . .”

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      On April 1, 2009, the district court granted defendants’ motion to dismiss.
The court held that McBride’s complaint was “malicious” within the meaning of
the PLRA because “the underlying facts found in McBride’s pending civil rights
complaint duplicate the allegations presented by him previously in his state
court action.” See id. The court alternatively held that McBride’s complaint
failed to state a claim upon which relief could be granted because McBride did
not qualify for a Hazlewood exemption, owing to his federal loan default.
McBride also failed to state a claim for violation of his equal protection or due
process rights, as inmates have no constitutional right to participate in
rehabilitative or educational programs while incarcerated.            See Moody v.
Daggett, 429 U.S. 78, 88 n.9 (1976). The court assessed McBride a “strike” for
filing a malicious or frivolous claim. See 28 U.S.C. § 1915(g); see Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
                                II. DISCUSSION
      McBride argues in this appeal that he is eligible for the Hazlewood
exemption, and therefore, defendants have violated his due process and equal
protection rights by denying him the opportunity to attend UHCL cost-free. He
also says the district court erred in finding his complaint malicious or frivolous.
While McBride acknowledges that he filed a nearly identical suit in state court,
he says this should not bar his claims in the federal forum because he has
invoked the federal court’s “power for pendant jurisdiction.” Defendants ask us
to affirm the district court’s holdings in their entirety.
      Because McBride appears in forma pauperis, the court “shall dismiss the
case at any time” if it determines that the action or appeal “is frivolous or
malicious.” § 1915(e)(2)(B)(i). An action or appeal must also be dismissed if it
“fails to state a claim on which relief may be granted.” § 1915(e)(2)(B)(ii). In
Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993), we held that a district
court may dismiss a lawsuit as “malicious” if the suit “duplicates allegations of

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another pending federal lawsuit by the same plaintiff.” We review a dismissal
under § 1915(e)(2)(B)(i) for an abuse of discretion. Siglar v. Hightower, 112 F.3d
191, 193 (5th Cir. 1997). Because McBride admitted to filing a near-identical
suit in another forum, we cannot say that the district court erred in dismissing
this case as “malicious.” 1 However, given that this was the basis of the district
court’s holding, dismissal should have been without prejudice. See Pittman, 980
F.2d at 995. Because it was proper to dismiss the lawsuit solely because it
duplicated a state-court lawsuit, we need not review the district court’s
discussion of McBride’s eligibility for the Hazlewood exemption.
       While we do not adjudicate the merits of McBride’s Hazlewood claim, we
note that the Texas Legislature has amended the statute. Until June 19, 2009,
subsection (e) of the statute read in part:
       A person is covered by the [Hazlewood] exemptions if the person’s
       right to benefits under federal legislation is extinguished at the time
       of registration, except that a person is not eligible for an exemption
       from fees under this section if the person’s right to benefits under
       federal legislation is extinguished because the person is in default
       of repayment of a loan made to the person under a federal program
       to provide or guarantee loans for educational purposes.
T EX. E DUC. C ODE A NN. § 54.203(e) (Vernon 2007). Subsection (e-1) of the statute
read: “A person is not eligible for an exemption under this section if the person
is in default on a loan made or guaranteed for educational purposes by the State
of Texas.” Id. § 54.203(e-1). Based on subsection (e), defendants argued, and the
district court held, that McBride was ineligible for the Hazlewood exemption.
McBride apparently relied on subsection (e-1), and argued that because he had




       1
         It appears that the state-court lawsuit was dismissed by the County Court of Law
Number Four, Brazoria County, with prejudice as frivolous on September 11, 2009. The court
did not state reasons. We may take judicial notice of the fact of dismissal. See FED . R. EVID .
201(f). However, the eventual dismissal of McBride’s state-court lawsuit does not change the
fact that his federal lawsuit was malicious at the time it was filed and subsequently dismissed.

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not defaulted on a loan guaranteed by the State of Texas, he was still eligible for
the Hazlewood exemption.
      Effective June 19, 2009, the Texas Legislature has struck from subsection
(e) the language disqualifying a person from a Hazlewood exemption due to a
federal loan default. See T EX. E DUC. C ODE A NN. § 54.203(e) (Vernon 2009). This
change has prospective effect only, and “applies beginning with tuition, dues,
fees, and other charges for the 2009 fall semester.” 2009 Tex. Sess. Law Serv.
ch. 1340, § 4(a) (West). Whether McBride may assert rights under the amended
statute is not before us.    However, because we modify the district court’s
dismissal to be without prejudice, and because any discussion of McBride’s rights
concerns the pre–2009 version of the statute, we discern no impediment to
McBride seeking to re-apply for a Hazlewood exemption under the new statutory
framework.
                               III. CONCLUSION
      We affirm the district court’s dismissal of McBride’s federal lawsuit
because it duplicated a then-pending state-court lawsuit. However, for the
reasons stated, the district court’s judgment is hereby MODIFIED so that the
dismissal is without prejudice to McBride’s rights, past or present, under Section
54.203 of the Texas Education Code.
      MODIFIED, and AFFIRMED as MODIFIED.




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