                                      IN THE
                              TENTH COURT OF APPEALS

                                      No. 10-10-00005-CV

BARRY WION,
                                                                     Appellant
    v.

JANIE COCKRELL, ANN BYROM,
J. MISSILDINE, A.R. MASSINGIL, AND
KELLI WARD,
                                                                     Appellees


                              From the 52nd District Court
                                  Coryell County, Texas
                              Trial Court No. COT-02-34470


                              MEMORANDUM OPINION


         Barry Wion, a prison inmate, sued several prison employees,1 Ann Byrom, J.

Missildine, A.R. Massingil, and Kelli Ward, (the TDCJ employees) for damages

stemming from a disciplinary procedure regarding the damage of an overdue library

book checked out to Wion. This suit was originally filed in 2002. The trial court




1 Janie Cockrell was also sued but the final order indicates that she had been dismissed previously from
the suit. Wion does not challenge her dismissal from the suit.
rendered an order and final judgment granting the TDCJ employees’ motion to dismiss

and motion for summary judgment. Wion appeals, and we affirm.

                      FINDINGS OF FACT AND CONCLUSIONS OF LAW

       In his first issue, Wion contends that the trial court erred in refusing to issue

findings of fact and conclusions of law in the underlying case. The underlying case was

disposed of by summary judgment. A party is not entitled to findings of fact and

conclusions of law following summary judgment.            Ikb Indus. v. Pro-Line Corp., 938

S.W.2d 440, 442 (Tex. 1997). Accordingly, the trial court did not err in refusing to issue

findings of fact and conclusions of law. Wion’s first issue is overruled.

                                       FINAL ORDER

       In his second issue, Wion argues the trial court abused its discretion or otherwise

erred when it issued its order and final judgment. Under this issue, Wion includes

eight sub-points.

Summary Judgment Standard of Review

       In its “Order and Final Judgment” the trial court granted what it called the TDCJ

employees’ “Second Amended Motion to Dismiss and Motion for Summary

Judgment.”2 Wion’s suit was dismissed with prejudice as frivolous, and the TDCJ

employees were granted judgment as a matter of law.

       We review a trial court's decision to grant or to deny a motion for summary

judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d


2 The document that the TDCJ employees filed was titled as a second amended motion for summary
judgment only. However, upon examining the motion, we find that the employees also asked for a
dismissal.

Wion v. State                                                                           Page 2
184, 192, 199 (Tex. 2007).    Under the traditional summary judgment standard, the

movant has the burden to show that no genuine issues of material fact exist and that it

is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop.

Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether there is a disputed

material fact issue precluding summary judgment, evidence favorable to the non-

movant will be taken as true, and every reasonable inference must be indulged in favor

of the non-movant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 548-49.

§ 1983 Claims

       In his first amended original petition, Wion alleges many claims under 42 U.S.C.

§ 1983. Section 1983 provides as follows:

       "Every person who, under color of any statute, ordinance, regulation,
       custom, or usage, of any State or Territory or the District of Columbia,
       subjects, or causes to be subjected, any citizen of the United States or other
       person within the jurisdiction thereof to the deprivation of any rights,
       privileges, or immunities secured by the Constitution and laws, shall be
       liable to the party injured in an action at law, suit in equity, or other
       proper proceeding for redress. . . . "

42 U.S.C. § 1983 (emphasis added). Neither a State nor its officials acting in their official

capacities are “persons” under § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71,

109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989); See Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d

835 (Tex. 2007).

       Qualified Immunity

       Wion contends that the trial court erred when it found he failed to state material

facts that would overcome the TDCJ employees’ qualified immunity defense. Qualified

immunity cloaks a government agent from personal liability for discretionary acts

Wion v. State                                                                           Page 3
which do not violate well-established law. Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct.

2727, 73 L. Ed. 2d 396 (1982); Streetman v. Jordan, 918 F.2d 555, 556 (5th Cir. 1990).

Whether an official protected by qualified immunity may be held personally liable for

an allegedly unlawful official action generally turns on the "objective legal

reasonableness" of the action assessed in light of the legal rules that were "clearly

established" at the time it was taken. Anderson v. Creighton, 483 U.S. 635, 639 (1987). No

longer is a subjective test of good faith, i.e. that the official acted with subjective malice,

used in determining whether an official is entitled to qualified immunity. Saldana v.

Garza, 684 F.2d 1159, 1164 n. 15 (5th Cir. 1982). The contours of the right alleged to have

been violated must be sufficiently clear that a reasonable official would understand that

what he is doing violates that right. Id. at 640.

       Byrom was the librarian who initiated charges against Wion when he failed to

timely return a book which, when returned, was damaged.                  Missildine was the

disciplinary officer who held the disciplinary hearing, found Wion guilty, and assessed

$19.95 in damages against Wion. Massingil was the assistant warden who denied

Wion’s Step 1 grievance. Kelli Ward was the administrator who denied Wion’s Step 2

grievance. She also then reversed Missildine’s decision, finding that the Unit failed to

show that Wion was responsible for the damage to the book, ordered Wion’s

disciplinary report deleted, and ordered the money damage amount credited back to

Wion’s inmate account.

       Wion alleged in his amended petition that Ann Byrom knowingly and

intentionally initiated a false and unsupportable disciplinary action against Wion. He

Wion v. State                                                                            Page 4
claims that J. Missildine knowingly and intentionally, after a hearing, adjudicated Wion

guilty of the disciplinary charge when he knew or should have known the charge was

false and ordered the forfeiture of $19.95 from Wion. Wion further alleges that A.R.

Massingil knowingly and intentionally aided and abetted Byrom and Missildine by

upholding their actions knowing the actions were unlawful. Wion alleges that Kelli

Ward knowingly and intentionally aided and abetted Byrom and Missildine by

upholding and supporting their unlawful actions.

       There is nothing in the evidentiary record to show, and nothing beyond Wion’s

boldest and completely unsupported conclusory allegations suggest, that the TDCJ

employees did anything that a reasonable official would understand to be a violation of

Wion’s rights.   The actions taken by all were objectively reasonable.        The system

worked for Wion. Simply because the decision was ultimately reversed does not mean

the TDCJ employees were not entitled to qualified immunity for actions performed in

the routine course of their jobs. Thus, the trial court did not err in finding Wion did not

state material facts that would overcome the TDCJ employees’ defense of qualified

immunity.

       The granting of the summary judgment as to Wion’s § 1983 claims on this

ground is affirmed.

State Law Claims

       Wion further asserts that the trial court erred in dismissing his state law claims

without addressing those claims. The trial court made findings in its order but then

granted the TDCJ employees’ motion to dismiss and motion for summary judgment.

Wion v. State                                                                        Page 5
The grounds for granting the summary judgment, however, were not specified by the

trial court. If the trial court does not specify the grounds upon which a summary

judgment is granted, we must affirm the summary judgment if any of the grounds

specified in the motion have merit. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 120-21

(Tex. 1970). The appealing party must show on appeal that it is error to base granting a

summary judgment on any ground asserted in the motion. Star-Telegram, Inc. v. Doe,

915 S.W.2d 471, 473 (Tex. 1995).

       The TDCJ employees raised the defense of official immunity to Wion’s state law

claims. Wion does not argue on appeal that the trial court erred in basing its summary

judgment on the official immunity defense.       Accordingly, because Wion does not

challenge the summary judgment of the ground of official immunity, we affirm the

summary judgment as to Wion’s state claims.

Appointment of Counsel

       Lastly, Wion complains that the trial court erred in denying Wion’s motion for

the appointment of counsel. The trial court may appoint counsel for a party who makes

an affidavit that he is too poor to employ counsel. TEX. GOV'T CODE ANN. § 24.016 (West

2004). There is no requirement that a civil litigant must be represented by counsel. See

Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003). But the Texas Supreme Court has

suggested, in other contexts, that under exceptional circumstances, "the public and

private interests at stake [may be] such that the administration of justice may best be

served by appointing a lawyer to represent an indigent civil litigant.” Id., (quoting

Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996)).      Following this

Wion v. State                                                                      Page 6
suggestion, appellate courts have held that a trial court does not abuse its discretion in

refusing to appoint counsel when the indigent party fails to demonstrate why the public

and private interests at stake are so exceptional that the administration of justice is

served by the appointment. Hall v. Treon, 39 S.W.3d 722, 724 (Tex. App.—Beaumont

2001, no pet.); Coleman v. Lynaugh, 934 S.W.2d 837, 839 (Tex. App.—Houston [1st Dist.]

1996, no pet.). That a person is an inmate does not render the cause exceptional. Gibson,

102 S.W.3d at 713.

        Wion provides no basis for a finding that his case warrants the appointment of

counsel. He merely asserts that appellees enjoy a “seriously unequal advantage”

because Wion has no counsel. However, Wion does nothing to explain why the public

and private interests at stake are so exceptional that the administration of justice is

served by the appointment of counsel. Accordingly, the trial court did not abuse its

discretion in denying Wion’s motion to appoint counsel.

                                      CONCLUSION

       Because we affirm the summary judgment as to Wion’s § 1983 claims and his

state law claims, we need not discuss Wion’s remaining issues which challenge the

propriety of the trial court’s judgment granting the TDCJ employees’ motion to dismiss.

Wion’s issues necessary to the disposition of this appeal are overruled and the trial

court’s judgment is affirmed.



                                         TOM GRAY
                                         Chief Justice


Wion v. State                                                                       Page 7
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 30, 2011
[CV06]




Wion v. State                                Page 8
