Opinion filed March 12, 2015




                                      In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-13-00106-CV
                                   __________

                    RICKY LEE STROBLE, Appellant
                                         V.
       PAUL JENNINGS AND ADRIAN CORRELL, Appellees


                    On Appeal from the 259th District Court
                            Jones County, Texas
                        Trial Court Cause No. 022925


                     MEMORANDUM OPINION
      Ricky Lee Stroble is in the custody of the State of Texas at the French M.
Robertson Unit of the Texas Department of Criminal Justice; he is a convicted sex
offender. In his petition, Stroble alleged that on June 1, 2012, Sgt. Paul Jennings
and Capt. Adrian Correll, Appellees, were involved in the confiscation of certain
legal work, map colors, toenail clippers, and five photo albums, all of which were
discovered as a result of a search of his cell. Stroble claims that Sgt. Jennings took
the photo albums because Sgt. Jennings did not like the fact that the females in
some of the photos appeared to be underage.1                              Stroble also alleges that
Sgt. Jennings “denyed [sic] pubicltion [sic] because of sexual altered images.
Edited photos with stars or dots over the private parts.” Later, most of the legal
work, some photos, the map colors, and the toenail clippers were returned to
Stroble.
        Stroble filed this lawsuit pro se and in forma pauperis. In his petition, he
apparently sought to have his property returned and also sought relief for trespass
to personal property, conversion, theft of personal property, and intentional
infliction of emotional distress and mental anguish. He sought “[a]ctual damages
of $65.45 to replace photos” as well as other actual damages in an unspecified
amount. Stroble also sought damages for mental suffering and emotional distress
as well as “exemplary, punitive, and treble damages.”                             As provided for in
Chapter 14 of the Texas Civil Practice and Remedies Code, the trial court
dismissed the lawsuit without holding a hearing. TEX. CIV. PRAC. & REM. CODE
ANN. ch. 14 (West 2002 & Supp. 2014). Stroble appeals; we affirm.
        The legislature enacted Chapter 14 specifically to govern in forma pauperis
inmate proceedings. See id. § 14.002. The main purpose of the legislation is to
provide trial courts with a mechanism whereby the toll of frivolous inmate
litigation on judicial and state resources might be reduced. Sanders v. Palunsky,
36 S.W.3d 222, 226 (Tex. App.—Houston [14th Dist.] 2001, no pet.).                                         In
furtherance of that purpose, the statute provides for dismissal of frivolous inmate


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         The photos and other property alleged to have been confiscated in this case are apparently not
the same ones that Stroble alleged were confiscated by other correctional officers on May 29, 2012, and
on June 4, 2012. Stroble filed lawsuits in connection with those items also. As it did in this case, the trial
court dismissed those lawsuits, and Stroble appealed the dismissals to this court. We have this day
affirmed those dismissals. See Appellate Cause Nos. 11-13-00078-CV and 11-13-00166-CV. Stroble has
filed two cases in the federal courts, which he alleges to be filed under cause numbers 1-11-CV-108-C
and 1-12-CV-055-BL, and one case in justice court. Those cases are unrelated to the cases in our court
and appear to be based upon different facts.


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lawsuits, even before service is had upon the defendants, if it appears to the trial
court that the claim is frivolous or malicious. See CIV. PRAC. & REM. § 14.003(a);
Gross v. Carroll, 339 S.W.3d 718, 722 (Tex. App.—Houston [1st Dist.] 2011, no
writ.).
          We review a dismissal order in lawsuits of this nature for an abuse of
discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no
writ). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or
without reference to any guiding rules and principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). When the trial court does
not specify the grounds for dismissal, we will affirm the decision if any theory is
meritorious. See Walker v. Gonzales Cnty. Sheriff’s Dep’t, 35 S.W.3d 157, 162
(Tex. App.—Corpus Christi 2000, pet. denied).
          Trial courts have broad discretion to determine whether a case should be
dismissed because (1) prisoners have a strong incentive to litigate, (2) the
government bears the cost of an in forma pauperis suit, (3) sanctions are not
effective, and (4) the dismissal of unmeritorious claims accrues to the benefit of
state officials, courts, and meritorious claimants. See Montana v. Patterson, 894
S.W.2d 812, 814–15 (Tex. App.—Tyler 1994, no writ).
          To determine whether a lawsuit is malicious or frivolous, a court may
consider whether (1) the realistic chance of ultimate success is slight, (2) there is
no arguable basis for the claim in law or in fact, (3) it is clear that the party cannot
prove facts that will support the claim, or (4) the claim is substantially similar to a
previous claim filed by the inmate in that the claim arises from the same operative
facts. CIV. PRAC. & REM. § 14.003(b). When an inmate claims relief under an
indisputably meritless legal theory, the claim has no arguable basis in law.
Leachman v. Dretke, 261 S.W.3d 297, 304 (Tex. App.—Fort Worth 2008, no pet.).
A suit in which the defendants are immune from suit provides an example of such
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a meritless legal theory. Birdo v. Ament, 814 S.W.2d 808, 809 (Tex. App.—Waco
1991, writ denied).
       Stroble appears to have sued Appellees in their individual capacities. Suits
against a government employee in his individual capacity are foreclosed if the
employee was acting within the scope of his employment. Franka v. Velasquez,
332 S.W.3d 367, 381 (Tex. 2011). As alleged in his petition, Stroble’s claims were
based on conduct committed by Appellees within the general scope of their
employment and could have been brought against the governmental unit; Stroble
has not alleged that Appellees were acting otherwise. See CIV. PRAC. & REM.
§ 101.106(f) (West 2011); Franka, 332 S.W.3d 367.              Pursuant to Section
101.106(f), such a “suit is considered to be against the employee in the employee’s
official capacity only.” Therefore, we review this case as one against Appellees in
their official capacities.
       Because a suit against a government employee is, in effect, a suit against the
State, sovereign immunity defeats subject-matter jurisdiction unless the State
consents to the suit. The Texas Tort Claims Act provides for such a waiver in
limited circumstances. The Act provides for waiver of immunity from suit in those
instances in which the claimant alleges “personal injury [or] death . . . caused by a
condition or use of tangible personal or real property.”       CIV. PRAC. & REM.
§ 101.021(2). Stroble has not alleged that he was injured as a result of the
condition or use of tangible personal or real property. Furthermore, the Act does
not waive immunity for intentional torts. See id. § 101.057(2) (Act does not apply
to claims “arising out of assault, battery, false imprisonment, or any other
intentional tort.” (emphasis added)); Tex. State Technical Coll. v. Wehba, No. 11-
05-00287-CV, 2006 WL 572022, at *2 (Tex. App.—Eastland Mar. 9, 2006, no
pet.) (mem. op.); Gen. Elec. Co. v. City of Abilene, 795 S.W.2d 311, 313 (Tex.
App.—Eastland 1990, no writ). Stroble has alleged intentional torts only.
                                          4
      Because Appellees are entitled to immunity from suit and because Stroble
has not shown that immunity has been waived, there is no arguable basis in law for
his claim.   We cannot say that the trial court abused its discretion when it
dismissed Stroble’s lawsuit, and we overrule his issues.
      We affirm the judgment of the trial court.




                                             JIM R. WRIGHT
                                             CHIEF JUSTICE


March 12, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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