       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-18-00518-CV


                                   James McCoy, Appellant

                                                v.

         Dale Wainwright, Chairman of the Texas Board of Criminal Justice, and
           Kenneth Green, Disciplinary Captain of the Michael Unit, Appellees




              FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY
   NO. D-1-GN-17-003083, THE HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                           MEMORANDUM OPINION


               James McCoy, a pro se inmate in custody of the Texas Department of Criminal

Justice, appeals from the trial court’s dismissal of his claims against Dale Wainwright, Chairman

of the Texas Board of Criminal Justice (TDCJ), and Kenneth Green, Disciplinary Captain of the

Michael Unit. As explained below, we will affirm the trial court’s order of dismissal.


                                       BACKGROUND

               On June 22, 2017, McCoy filed suit against Wainwright and Green in their

official and individual capacities, contending that he had twice been disciplined based on untrue

allegations by Department personnel and that his rights had been violated in those disciplinary

cases. McCoy asserted that “major disciplinary cases” were filed against him in 2016 and 2017.

The first case charged that he had committed “the offense of ‘Soliciting funds from a person for
the offender’s personal gain’” after he wrote a letter to the Vietnam Veterans of America asking

whether the group “provided financial assistance to incarcerated veterans.” McCoy alleged that

he successfully appealed but that the same charge, based on the same facts, was refiled, in

violation of rules against double jeopardy, and that his second appeal was unsuccessful. The

2017 case charged McCoy with “the offense of ‘Attempting to establish an unauthorized

business’” after he wrote a letter offering to help a friend who was not incarcerated “start a

legitimate business” in exchange for ten percent of “whatever [McCoy’s friend] made as a result

of the Plaintiff’s help/intellectual property.” McCoy stated that he unsuccessfully filed a Step 1

grievance from the 2017 case and claimed that he was not required to file a Step 2 grievance

because “[i]t is not necessary to complete the grievance process a third time when the violation

reoccurs.” 1 McCoy asserted that both disciplinary cases were based on lies by correctional

officers; that in the disciplinary hearings, he was not allowed to present or view certain evidence;

that the Department did not introduce evidence necessary to support the charges; and that he did

not receive due process. McCoy further stated that certain TDCJ rules are unconstitutionally

vague and that TDCJ’s in-house grievance system “fails to produce any adverse consequences to

prison officials who violate prison rules” and “promotes a systemic assault on prisoner’s

constitutionally protected rights.” Finally, McCoy alleged that there was an “unwritten policy”

of violating prisoners’ rights.

       1  Contrary to McCoy’s assertion, the TDCJ inmate grievance system requires an inmate
to file a Step 2 grievance form if he is dissatisfied with the resolution of his Step 1 grievance.
See Tex. Dep’t of Crim. Justice, Offender Orientation Handbook, p.73-75 (Feb. 2017), available
at www.tdcj.texas.gov/documents/Offender_Orientation_Handbook_English.pdf); Evans v.
Hernandez, No. 13-10-00593-CV, 2011 WL 1106712, at *1 (Tex. App.—Corpus Christi-
Edinburg Mar. 24, 2011, pet. denied) (mem. op.) (citing to Offender Orientation Handbook and
stating that “if the informal attempt [to resolve problem] is unsuccessful, a timely step 1
grievance form must be forwarded to the unit grievance investigator and, if unsatisfied with the
step 1 decision, a timely step 2 form must be submitted to the unit grievance investigator”).
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               McCoy alleged that Green had falsified TDCJ records and violated TDCJ

policies. McCoy asserted that Wainright had “implemented or condoned policies or practices”

that “enable prison disciplinary officers to violate prisoner’s constitutional rights without

consequences,” “deny prisoners a meaningful substitute counsel in major disciplinary hearings,”

and “make prison rules for offenders doing business outside of prison unconstitutionally vague.”

As a result, McCoy contended, he had been “found guilty of major disciplinary offenses, which

he . . . was not guilty of, that will be considered by the parole board when he is reviewed for

parole.”   He sought to have Wainwright and Green enjoined from “violating [McCoy’s]

constitutional rights in prison disciplinary hearings” and ordered to acknowledge that McCoy

had not violated provisions related to starting a business. He also sought an “injunction to

prevent any record of these disciplinary cases from ever appearing in Plaintiff’s prison/parole

files” and asked that both Wainright and Green, in their individual capacities, be ordered to pay

McCoy compensatory and punitive damages.

               Wainwright was served with citation, answered, and filed a motion to dismiss, but

Green was never served and has never answered or appeared. 2 Wainwright filed a motion to

dismiss under Chapter 14, which governs inmate lawsuits in which the inmate asserts an inability

to pay costs. See Tex. Civ. Prac. & Rem. Code § 14.002; see generally id. §§ 14.001-.014. On

July 20, 2018, the trial court signed an order dismissing McCoy’s claims with prejudice “for

failure to comply with” Chapter 14.      On August 13, the trial court file-stamped McCoy’s

“Motion to Extend Time to File Motion to Reinstate or Alternatively Motion to Vacate,” which

was postmarked on August 8 and which recited that McCoy had placed it into the prison’s mail

       2  The trial court stated during a hearing that it had been informed that Green left TDCJ in
July 2017, and McCoy alleged in one of his trial-court filings that it was “common knowledge”
at the prison that Green was no longer employed there.
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system on August 2. On September 19, the trial court held a hearing on McCoy’s motion for

extension of time. McCoy argued that the timely filing of his motion for extension of time

should “allow me to timely file the motion to vacate judgment” and alternatively asked the trial

court “to construe my motion as a motion for new trial.” The trial court denied McCoy’s motion

to extend time and stated, “To the extent it can be construed as a motion for a new trial I’m

denying the motion for new trial, although I don’t think I’m within my plenary power to consider

such a thing. But to the extent it is within my plenary power, the Court is denying it.”


                                          DISCUSSION

               On appeal, McCoy asserts two issues: (1) that the trial court abused its discretion

in dismissing his lawsuit with prejudice and (2) that the court abused its discretion in “not

reconstruing” his motion for extension of time as a motion for new trial. We first consider the

dismissal of McCoy’s lawsuit with prejudice. Wainwright contends that dismissal with prejudice

was proper because McCoy’s claims were frivolous, contending that the claims had no realistic

chance of success, that McCoy failed to state a valid claim against him, that sovereign immunity

barred McCoy’s claims against Wainwright, and that McCoy did not exhaust his administrative

remedies. Wainwright further contends that dismissal with prejudice was proper because McCoy

falsely claimed that he was indigent when the record established that he was able to pay costs.

               Chapter 14 applies to an action filed by an inmate who claims an inability to pay

costs in the suit. Id. § 14.002(a). A trial court may dismiss an inmate’s claim before or after

service of process if the court finds that the allegation of poverty is false, that the claim is

frivolous or malicious, or that the inmate filed a required affidavit or unsworn declaration that he

knew was false. Id. § 14.003(a). Generally, a case should not be dismissed with prejudice if the



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plaintiff can remedy the defect. 3 See Harris Cty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004);

Josey v. Bell Cty. Law Enf’t Ctr., No. 03-02-00612-CV, 2003 WL 1088450, at *1 (Tex. App.—

Austin Mar. 13, 2003, pet. denied) (mem. op.); Hughes v. Massey, 65 S.W.3d 743, 746 (Tex.

App.—Beaumont 2001, no pet.); Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. App.—Houston

[14th Dist.] 2000, no pet.). However, a claim that lacks an arguable basis in law or fact may

properly be dismissed with prejudice under Chapter 14. 4 Fernandez v. T.D.C.J., 341 S.W.3d 6,

13 (Tex. App.—Waco 2010, no pet.); Hamilton v. Williams, 298 S.W.3d 334, 339-40 (Tex.

App.—Fort Worth 2009, pet. denied). “A claim has no arguable basis in law if it relies upon an

indisputably meritless legal theory.” Williams, 298 S.W.3d at 339. Dismissal with prejudice

may also be appropriate if the defendant is immune from suit, see Hirczy de Mino v. University

of Hous., No. 03-03-00311-CV, 2004 WL 2296131, at *6 (Tex. App.—Austin Oct. 14, 2004, pet.

denied) (mem. op.) (citing Sykes, 136 S.W.3d at 639), or if the error cannot be remedied, see

Leachman v. Dretke, 261 S.W.3d 297, 312 (Tex. App.—Fort Worth 2008, no pet.).

               Although McCoy stated in his petition that his suit was brought under tort,

asserting that Wainwright was negligent in condoning improper policies, he has not alleged a

tort. Instead, as he states in his brief, “[t]he crux of [McCoy’s] claims center on falsified prison

       3  The dismissal of a case with prejudice operates as an adjudication on the merits as if the
case had been fully tried and decided. See Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex. 1999)
(per curiam); Austin Energy v. Trinity Universal Ins. Grp., No. 03-12-00842-CV, 2014 WL
2522203, at *2 (Tex. App.—Austin May 29, 2014, no pet.) (mem. op.); see also Subaru of Am.,
Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002) (because lack of
jurisdiction due to failure to exhaust administrative remedies “does not implicate the claims’
merits, the trial court must dismiss the claims without prejudice”).
       4 Although Section 14.003(b) states that a trial court may consider the realistic chance of
success or whether the inmate can prove facts to support his claim, Tex. Civ. Prac. & Rem. Code
§ 14.003(b), we “are discouraged from relying on the ‘realistic chance’ or ‘prove facts’ factors in
deciding that a claim is frivolous,” Cline v. Texas Bd. of Crim. Justice, No. 03-04-00757-CV,
2006 WL 952536, at *2 (Tex. App.—Austin Apr. 14, 2001, pet. denied) (mem. op.).
                                                 5
disciplinary charges” that violated his constitutional rights.         And, in his response to

Wainwright’s motion to dismiss, McCoy “concede[d] that the injuries incurred and the relief

sought could be appropriately addressed in a 42 USC § 1983 civil rights lawsuit” and asked the

trial court to “construe the suit appropriately” as a “civil rights action or a petition for writ of

mandamus.” See 42 U.S.C. § 1983 (“Civil action for deprivation of rights”; allowing for lawsuit

based on “deprivation of any rights, privileges, or immunities secured by the Constitution” by

person acting “under color of any statute, ordinance, regulation, custom, or usage”); Leachman,

261 S.W.3d at 305. A civil-rights claim under Section 1983 “involves two essential elements:

(1) the conduct complained of was committed by a person acting under color of state law, and

(2) the conduct deprived a person of rights, privileges, or immunities secured by the

Constitution, or the laws, of the United States.” Leachman, 261 S.W.3d at 305; see 42 U.S.C.

§ 1983. An official acting in his official capacity, however, is not a “person” who may be held

liable under Section 1983. See, e.g., Leachman, 261 S.W.3d at 305; Esparza v. Diaz, 802

S.W.2d 772, 778 (Tex. App.—Houston [14th Dist.] 1990, no writ). McCoy’s claims against

Wainwright and Green in their official capacities are thus barred by sovereign immunity and

were properly dismissed with prejudice.

               As for McCoy’s claims brought against Wainwright and Green in their individual

capacities, “[t]he grievance system provides the exclusive administrative remedy for all claims

by an inmate while incarcerated except for any ‘remedy provided by writ of habeas corpus

challenging the validity of an action occurring before the delivery of the inmate’ to the prison

facility.” Jordan v. Menchaca, No. 13-18-00143-CV, 2019 WL 1388741, at *2 (Tex. App.—

Corpus Christi-Edinburg Mar. 28, 2019, no pet.) (mem. op.) (quoting Tex. Gov’t Code

§ 501.008(a)). It therefore appears that his claims could and should have been brought up

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through the TDCJ grievance process. See Tex. Dep’t of Crim. Justice, Offender Orientation

Handbook, p.74 (Feb. 2017), available at www.tdcj.texas.gov/documents/Offender_Orientation_

Handbook_English.pdf (grievable issues include “interpretation or application of TDCJ policies,

rules, regulations, and procedures”; “actions of an employee or another offender, including

denial of access to the grievance procedure”; and reprisal “for the good faith use of the grievance

procedure or Access to Courts”). 5 Although McCoy frames his claims, at least in part, as

attacking the adequacy of TDCJ’s overall grievance process, he is, in essence, seeking relief

from the disciplinary proceedings and their possible effect on his future parole reviews. See

Garner v. Texas Dep’t of Crim. Justice, No. 13-05-00588-CV, 2006 WL 2076762, at *2 (Tex.

App.—Corpus Christi-Edinburg July 27, 2006, no pet.) (mem. op).

               McCoy’s claims arose while he was housed in a TDCJ facility, and he alleges

improper behavior by correctional officers during two specific disciplinary proceedings, but he

did not file the underlying lawsuit within thirty-one days of receiving a final written decision on

his grievances. See Tex. Civ. Prac. & Rem. Code § 14.005 (inmate who files claim subject to

TDCJ grievance system must file declaration stating date grievance was filed and date written


       5  See also Woodford v. Ngo, 548 U.S. 81, 102 (2006) (overruling argument that requiring
exhaustion of administrative process will lead to procedures “designed to trap unwary prisoners”;
“Corrections officials concerned about maintaining order in their institutions have a reason for
creating and retaining grievance systems that provide—and that are perceived by prisoners as
providing—a meaningful opportunity for prisoners to raise meritorious grievances.”); Gilbert v.
Texas Dep’t of Crim. Justice, 490 S.W.3d 598, 604-09 (Tex. App.—Houston [1st Dist.] 2016, no
pet.) (discussing application of Tex. Gov’t Code § 501.008 and Tex. Civ. Prac. & Rem. Code
§ 14.005 to civil-rights suits under 42 U.S.C. § 1983); McClure v. State, No. 06-12-00075-CV,
2012 WL 6632763, at *1-4 (Tex. App.—Texarkana Dec. 20, 2012, no pet.) (mem. op.) (inmate
sued for civil-rights violations after exhausting grievance process); Birdo v. Schwartzer, 883
S.W.2d 386, 388 (Tex. App.—Waco 1994, no writ) (claims that TDCJ employees deprived
inmate of “state prison-created liberty and property interest rights pursuant to and by improper
application of [prison] policies/regulations . . . without predeprivation hearing or opportunity to
be heard” had to be brought through grievance process).
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decision was received, and trial court “shall dismiss a claim if the inmate fails to file the claim

before the 31st day after the date the inmate receives the written decision”). His 2016 grievance

was disposed of in June 2016, and his 2017 Step 1 grievance was returned to him on April 10,

2017, with a notation, “Redundant, Refer to grievance # 2017115594.” 6 McCoy acknowledges

that he did not file a Step 2 form, arguing that he was not required to do so. See Evans v.

Hernandez, No. 13-10-00593-CV, 2011 WL 1106712, at *1 (Tex. App.—Corpus Christi-

Edinburg Mar. 24, 2011, pet. denied) (mem. op.) (offender must submit Step 2 form if

unsatisfied with Step 1 decision). Even if McCoy could be considered to have exhausted the

grievance process by having his Step 1 grievance form returned as “redundant,” his lawsuit was

filed on June 22, 2017, more than thirty days after the form was returned.

                Further, allegations of due-process violations in disciplinary proceedings, when

the inmate seeks to challenge the punishment imposed, must be brought through a habeas corpus

action in federal court. See Edwards v. Balisok, 520 U.S. 641, 647-48 (1997); Evans v. Eldridge,

No. 13-08-00634-CV, 2009 WL 2462893, at *2 (Tex. App.—Corpus Christi-Edinburg Aug. 13,

2009, pet. denied) (mem. op.); Jones v. Texas Dep’t of Crim. Justice, No. 13-05-00197-CV, 2006

WL 1644685, at *3 (Tex. App.—Corpus Christi-Edinburg June 15, 2006, no pet.) (mem. op.);

see also Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (“when a state prisoner is challenging

the very fact or duration of his physical imprisonment, and the relief he seeks is a determination

that he is entitled to immediate release or a speedier release from that imprisonment, his sole

federal remedy is a writ of habeas corpus”); Ex parte Brager, 704 S.W.2d 46, 46 (Tex. Crim.

App. 1986) (refusing to “entertain claims concerning alleged violations of prison disciplinary

procedures”). Although McCoy attempts to frame his complaints at least in part as a global

       6   There is no information in the record about Grievance # 2017115594.
                                                8
attack on the grievance system, see Alexander v. Ware, 714 F.2d 416, 419 (5th Cir. 1983)

(habeas corpus is not sole remedy for systemic challenge under Section 1983), his claims arise

out of specific disciplinary cases, the relief he seeks is specific to those cases, and if he were to

prevail, it would necessarily imply the invalidity of his punishments, see Eldridge, 2009 WL

2462893 at *2-3; Garner, 2006 WL 2076762, at *2 (although inmate alleged that he was not

seeking review of disciplinary findings “but rather of the decision that deprived him of due

process by not providing an adequate administrative process, he is, in essence, seeking relief

from a disciplinary finding which is a challenge to the fact and duration of his custody”).

               For the reasons stated above, the trial court did not err in dismissing with

prejudice McCoy’s claims related to and arising from the disciplinary actions taken against him.

We overrule McCoy’s first issue on appeal.

               In his second issue, McCoy states that the trial court abused its discretion in not

“reconstruing” his motion for extension of time as a motion for new trial, stating that a motion

for new trial “would have presented the same arguments” as his first appellate issue. He asserts

that the court “had the authority to do so” under the rules of civil procedure 7 and should have

looked to the substance of the motion to determine the relief sought. See Surgitek, Bristol-Myers

Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999); In re Guardianship of Archer, 203 S.W.3d 16,

19 n.5 (Tex. App.—San Antonio 2006, pet. denied).

       7  McCoy cites to rule 5, which explains when a trial court may extend the deadlines for
filing motions. Tex. R. Civ. P. 5. A court may not, however, “enlarge the period for taking any
action under the rules relating to new trials except as stated in these rules.” Id. A motion for
new trial “shall be filed prior to or within thirty days after the judgment is signed,” id.
R. 329b(a), and a trial court may not enlarge the time for filing such a motion, Moritz v. Preiss,
121 S.W.3d 715, 720 (Tex. 2003); Texas MRG, Inc. v. Schunicht, No. 10-04-00029-CV, 2005
WL 1703617, at *1 (Tex. App.—Waco July 20, 2005, no pet.) (mem. op.). Thus, if McCoy
instead is complaining that the trial court should have granted him an extension of time to file a
motion for new trial, the court did not err in refusing to do so.
                                                 9
               During the hearing on his motion, McCoy said that he was seeking additional time

to file a motion to vacate the judgment but that, “alternatively, . . . a motion for new trial would

be appropriate, and, therefore, you do have the power to construe my motion as a motion for new

trial.” The trial court first said that “based on the argument from counsel, based on the record as

I see it, I’m denying your motion to extend time.” It went on to say, “To the extent it can be

construed as a motion for a new trial I’m denying the motion for new trial.” Thus, contrary to

McCoy’s assertion on appeal, the record reflects that the court viewed the motion as a motion for

new trial as McCoy requested—rather than refusing to do so—and then denied it.

               Further, a motion for new trial must explain the asserted grounds with sufficient

specificity that “the objection can be clearly identified and understood by the court,” and general

objections “shall not be considered by the court.” Tex. R. Civ. P. 321, 322; see In re Columbia

Med. Ctr., 290 S.W.3d 204, 210 (Tex. 2009) (orig. proceeding); Beard Family P’ship v.

Commercial Indem. Ins. Co., 116 S.W.3d 839, 847 (Tex. App.—Austin 2003, no pet.). McCoy’s

motion, however, stated only that he was a “layman of the law,” was incarcerated, and had

limited access to the law library and that he therefore requested a thirty-day extension of time “to

submit his Motion To Reinstate under TRCP 165a or alternatively a Motion To Vacate pursuant

to TRCP 329(b).” The motion did not assert any grounds on which a new trial could be granted,

nor did it assert that it was error to dismiss his claims with prejudice. Because the motion did not

assert any possible grounds for new trial, McCoy cannot show that the trial court erred in

denying the motion after viewing it as a motion for new trial. We overrule McCoy’s second

issue on appeal.




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                                       CONCLUSION

              Having overruled McCoy’s issues on appeal, we affirm the trial court’s order of

dismissal.



                                            __________________________________________
                                            Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Kelly and Smith

Affirmed

Filed: December 12, 2019




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