                                    NO. 07-08-0484-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                 NOVEMBER 16, 2009
                           ______________________________

                                  LUIS S. LAGAITE, JR.,

                                                                 Appellant

                                              v.

                             GREGORY C. BOLAND, ET AL.,

                                                      Appellees
                        _________________________________

             FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

                    NO. 97,061-C; HON. ANA ESTEVEZ, PRESIDING
                         _______________________________

                                      Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Luis S. Lagaite, Jr. (Lagaite) appeals the dismissal of his lawsuit against Gregory

C. Boland, and other prison employees or officials. Through four issues, Lagaite contends

that the trial court erred by failing to allow him opportunity to amend his complaint, take his

facts alleged as true, violated his constitutional rights by not holding a hearing on his suit

and by refusing to consider the merits of his claims. We reverse.
                                        Background

       The following allegations underlying Lagaite’s purported treatment by prison

personnel were taken from his original petition. We make no representation as to their

accuracy.

       Lagaite (appellant) is an inmate at the Clements unit of the Texas prison system.

On July 22, 2008, a search was performed by the defendants in this cause which resulted

in Lagaite receiving disciplinary action for possessing unauthorized drugs, i.e. fifteen

naproxen tablets. According to his petition, he was the only one who received such action

even though others were found to possess contraband. Lagaite did not deny possessing

the contraband. Instead, he explained that the drug upset his stomach; so, when it was

given to him he opted to keep rather than ingest it.

       Though no one else was disciplined even though contraband was found in their

cells, a disciplinary proceeding was initiated against appellant and heard by the disciplinary

officer, Gregory Boland. The latter apparently concluded that appellant violated a prison

rule or regulation and assessed punishment at forty-five days cell restriction, forty-five days

recreation restriction, forty-five days commissary restriction, and loss of thirty days of good

time. Appellant was further demoted in privilege level from a blue to brown where he was

not allowed television, radio and commissary privileges. Upon receiving this punishment,

he filed a grievance, alleging retaliation and the violation of his constitutional rights. The

grievance was denied October 1, 2008.

       On October 27, 2008, Legaite filed the suit at bar. Through his petition, he alleged

that the aforementioned punishment constituted retaliation for 1) his having previously filed

a grievance against a prison nurse for dispensing his medicine by kicking it through the cell

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door and across the floor, 2) appealing Boland’s decision, and 3) for assisting another

inmate in filing a grievance. So too did he allege that Boland denied him a fair hearing by

refusing to reduce the infraction to a minor one. The punishment levied against him further

and purportedly violated his right to be free of cruel and unusual punishment. Though not

included in the initial grievance heard by Boland, appellant also complained of the size of

the desk given him. It allegedly was too small for him to use for purposes of eating and

drafting legal memoranda. For relief, he sought a declaratory judgment, compensatory

damages, punitive damages and injunctive relief.

       The trial court dismissed the matter via order signed on November 5, 2008, and

before the issuance of service of process. It did so after concluding that Lagaite sought

to proceed as an indigent and that his claims were “frivolous and malicious.”

                                      Law and Analysis

       Statute authorizes that a trial court can dismiss a lawsuit filed by an inmate who

claims to be an indigent. TEX . CIV. PRAC . & REM . CODE ANN . §§14.002(a) & 14.003(a)

(Vernon 2002). Dismissal lies within the trial court’s discretion, Retzlaff v. Texas Dep’t of

Criminal Justice, 94 S.W.3d 650, 654 (Tex. App.– Houston [14th Dist.] 2002, pet. denied),

and may be founded on several grounds, one of which is the conclusion that the complaint

is “frivolous and malicious.”     TEX . CIV. PRAC . & REM . CODE ANN . §14.003(a)(2).         In

determining whether a suit falls within that category, the trial judge may consider whether

1) the claim's realistic chance of success is slight, 2) the claim has no arguable basis in law

or in fact, 3) it is clear that the party cannot prove a set of facts in support of the claim, or

4) the claim is substantially similar to a previous one filed by the inmate. Id. §14.003(b).



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Of these four grounds, the first three are addressed through answering whether the

complaint "lacks an arguable basis in law or fact." Johnson v. Lynaugh, 796 S.W.2d 705,

706 (Tex. 1990) (per curiam). We finally note that pro se petitions are to be liberally

construed, and the allegations mentioned therein are to be taken as true. Wilson v. TDCJ-

ID, 268 S.W.3d 756, 758 (Tex. App.–Waco 2008, no pet.).

        Upon liberally reading Lagaite’s petition, we construe it as alleging a complaint

arguably founded in the law.1 Prison officials cannot retaliate against a prisoner for the

latter’s exercise of protected rights, and such rights include the ability to petition for redress

of grievances. See Boxer X v. Harris, 437 F.3d 1107, 1112 (11th Cir. 2006) (stating that

First Amendment rights to free speech and to petition the government for a redress of

grievances are violated when a prisoner is punished for filing a grievance concerning the

conditions of his imprisonment).           Given this, the trial court abused its discretion in

dismissing the suit as frivolous and malicious, and we reverse and remand the cause. Yet,

in doing so, we do not address whether any of his other allegations contained in the

petition have an arguable basis in the law. Nor do we comment upon the ultimate viability

of his complaints.



                                                         Brian Quinn
                                                         Chief Justice




        1
         Because the trial judge did not conduct a hearing to determ ine whether the com plaint had any
arguable factual basis, it could not dism iss the proceeding on that ground. Scott v. Gallagher, 209 S.W .3d
262, 266 (Tex. App.–Houston [1 st Dist.] 2006, no pet.).

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