      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00197-CV




                                  Gerald Allen Perry, Appellant

                                                  v.

                                  Gene A. Kroll et al., Appellees



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
      NO. D-1-GN-09-001806, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Gerald Allen Perry, an inmate in the Stiles Unit of the Texas Department

of Criminal Justice, sued appellee Gene A. Kroll, the warden of that unit, and appellee

Lance C. Knod, an officer at that unit. Perry appeals the district court’s order dismissing the suit as

frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003 (West 2002).

               This action arises out of a prison disciplinary proceeding. Perry was accused of using

abusive language against a prison employee. A major disciplinary hearing was conducted, with

Knod serving as the hearings officer. At the conclusion of the hearing, Knod found that Perry

was guilty of the violation and imposed these penalties: 45 days recreation restriction, 45 days

commissary restriction, 30 days cell restriction, a reduction in class from line one to line two, and

forfeiture of 15 days of good time credit.
                Perry appealed Knod’s decision through the Department’s offender grievance

procedure. Among other things, Perry complained that Knod had been biased against him, had

punished him for exercising his right of access to the courts, and had failed to make a written record

of the evidence on which he based the finding of guilt. The step one grievance form was submitted

to Kroll, who found that the evidence supported the finding of guilt and that no procedural errors had

been committed. The step two grievance form was submitted to a unit grievance investigator who

is not a party to this suit. She also upheld Knod’s decision.

                Perry then filed this lawsuit. In his petition, Perry alleged that the proceedings that

resulted in the forfeiture of his good time credits violated his Fourteenth Amendment due process

rights in three respects: (1) Knod exhibited actual bias against Perry and used the disciplinary

process to harass Perry for exercising his right of access to the courts; (2) Knod failed to specify in

writing the facts and evidence supporting the finding of guilt; and (3) Kroll failed to correct the latter

error when it was brought to his attention in Perry’s grievance. Perry sought relief in the form of

monetary damages and a restoration of his good time credit. See 42 U.S.C.A. § 1983 (West 2003).1

                Knod filed a motion to dismiss on three grounds: (1) Perry failed to submit an

affidavit relating to his previous filings, see Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a) (West

2002); (2) Perry failed to attach a certified copy of his trust fund account statement, see id.

§ 14.004(c); and (3) Perry’s claims have no basis in law, see id. § 14.003(b)(2). Perry subsequently

filed an affidavit relating to his previous filings and a certified copy of his trust fund account


    1
       Perry did not expressly cite section 1983 in his petition, but he cited opinions construing
that statute as the basis for his claims. Perry also relies on section 1983 opinions in his brief to
this Court.

                                                    2
statement. On March 9, 2010, the district court granted the motion in a signed order expressly

dismissing the suit as frivolous.2

                In his first ground of error, Perry urges that the district court erred by concluding that

this lawsuit is frivolous. We review a dismissal under chapter fourteen for an abuse of discretion.

Leachman v. Dretke, 261 S.W.3d 297, 303 (Tex. App.—Fort Worth 2008, no pet.). A trial court

abuses its discretion if it acts without reference to any guiding rules or principles. Id. In light of the

grounds for dismissal contained in Knod’s motion, we infer that the district court concluded that the

lawsuit is frivolous because it has no basis in law. Therefore, we take as true the allegations in the

petition and review the types of relief and causes of action set out therein to determine whether, as

a matter of law, the petition stated a cause of action that would authorize relief. Id. at 304. A claim

has no arguable basis in law if it is an indisputably meritless legal theory. Id.

                An inmate cannot use a section 1983 action to recover good time credit lost in a

prison disciplinary proceeding. Preiser v. Rodriguez, 411 U.S. 475, 448-49 (1973); Clarke

v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998). Therefore, the district court did not abuse its

discretion by concluding that there was no basis in law for Perry’s section 1983 action for injunctive

relief in the form of a restoration of his good time credit.

                In order to recover damages under section 1983 for an unconstitutional conviction

or sentence, the plaintiff must prove that the conviction or sentence has been reversed on direct


   2
      The record reflects that a telephone hearing was held on the motion to dismiss, but there is
no reporter’s record. The district court’s order states that it was made “after considering all
of the pleadings and arguments of the parties filed herein,” and we presume that the
hearing was nonevidentiary. See Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777,
782-83 (Tex. 2005).

                                                    3
appeal, expunged by executive order, or declared invalid in a collateral proceeding.              Heck

v. Humphrey, 512 U.S. 477, 486-87 (1994); Clarke, 154 F.3d at 189. When an inmate seeks

damages in a section 1983 suit, the court must consider whether a judgment in favor of the inmate

would necessarily imply the invalidity of the inmate’s conviction or sentence; if it would, the cause

must be dismissed unless the inmate can demonstrate that the conviction or sentence has already

been invalidated. Heck, 512 U.S. at 487. If, on the other hand, a judgment in favor of the

inmate would not necessarily imply the invalidity of the inmate’s conviction or sentence, the

section 1983 action for damages may proceed. Id.

                A prison disciplinary proceeding that results in the loss of good time credits is a

“conviction” within the meaning of Heck. Edwards v. Balisok, 520 U.S. 641, 648 (1997); Clarke,

154 F.3d at 189. Claims for damages challenging the procedures used in a prison disciplinary

proceeding are not cognizable under section 1983 until that proceeding has been reversed, expunged,

or otherwise declared invalid, if a favorable judgment in the section 1983 action would necessarily

imply the invalidity of the inmate’s “conviction” in the proceeding or the length of his confinement.

Edwards, 520 U.S. at 648 (1997); Clarke, 154 F.3d at 189. But if an inmate seeks to recover

damages for depriving him of good time credit without due process, and if a favorable judgment

would not necessarily imply the invalidity of the disciplinary hearing or its result, the claim is

cognizable under section 1983. Edwards, 520 U.S. at 645.

                Perry’s claim that Knod exhibited actual bias against him and used the disciplinary

hearing to punish him for exercising his constitutional rights necessarily implies the invalidity of the

hearing and its result. See id. at 647 (holding that claim that disciplinary hearing officer was biased



                                                   4
necessarily implied invalidity of hearing and its result). Therefore, the district court did not abuse

its discretion by concluding that there was no basis in law for Perry’s section 1983 action for

damages based on his claim that Knod was biased against him.

                Perry’s claim for damages based on Knod’s alleged failure to make constitutionally

adequate written findings and Knoll’s alleged failure to correct this error is a different matter. Due

process requires that, in prison disciplinary proceedings, there be a written statement by the fact

finder as to the evidence relied upon and the reasons for the disciplinary action. Wolff v. McDonnell,

418 U.S. 539, 564-65 (1974). A claim for damages based on a prison grievance officer’s failure to

specify the facts and evidence supporting the finding of guilt does not necessarily imply the

invalidity of the hearing or its result. See Edwards, 520 U.S. at 649-50 (Ginsburg, J., concurring).

Because Perry’s claim for damages on this basis does not necessarily imply the invalidity of the

disciplinary hearing or the forfeiture of his good time credit, it is not indisputably meritless, and the

district court abused its discretion by dismissing it as frivolous. See White v. Fox, 294 F. App’x 955,

961 (5th Cir. 2008) (holding that claim for damages based on failure to receive written statement of

evidence relied on in prison disciplinary proceeding is cognizable under section 1983).

                We reverse the district court’s dismissal of Perry’s claim for damages under section

1983 based on Knod and Knoll depriving him of good time credits without a constitutionally

adequate written statement of the evidence supporting the finding of guilt. We affirm the district




                                                   5
court’s order of dismissal in all other respects. We remand the case to the trial court for further

proceedings consistent with this opinion.3




                                             __________________________________________

                                             Jan P. Patterson, Justice

Before Chief Justice Jones, Justices Patterson and Henson

Affirmed in part; Reversed and Remanded in part

Filed: December 15, 2010




    3
     Because we remand for further proceedings, we need not address Perry’s ground of error
complaining of the trial court’s failure to act on a pending motion.

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