                              NUMBER 13-08-00634-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

MICHAEL ANTHONY EVANS,                                                          Appellant,

                                              v.

ANDREA E. ELDRIDGE, MICHAEL
JACKSON, LANA K. PODSIM, TONY
CLEMENTS, AND HEATHER JUNKERMEIER,                                              Appellees.


   On appeal from the 267th District Court of De Witt County, Texas.


                           MEMORANDUM OPINION
                  Before Justices Rodriguez, Garza, and Vela
                   Memorandum Opinion by Justice Garza
       Appellant, Michael Anthony Evans, is an inmate currently housed in the Stevenson

Unit of the Texas Department of Criminal Justice-Institutional Division (“TDCJ-ID”). Evans

brings the instant pro se appeal complaining that the trial court erred by dismissing his civil

rights suit against appellees, TDCJ-ID employees Tony Clements, Andrea Eldridge,

Michael Jackson, Heather Junkermeier, and Lana Podsim. We affirm.

                                      I. BACKGROUND

       On March 28, 2008, Eldridge, a correctional officer at the Stevenson Unit, filed a

disciplinary report alleging that Evans committed sexual misconduct by masturbating in
public. On April 2, 2008, a hearing regarding the allegations was held before Jackson, a

disciplinary hearing officer. After reviewing the evidence, Jackson rendered a finding of

guilt and assessed various punishments against Evans, including restrictions on his

recreation and commissary privileges as well as a modification of Evans’s custody level

from minimum security to medium security. Jackson’s decision was later affirmed on

appeal by Podsim, a grievance investigator.1

         Evans, proceeding pro se and in forma pauperis, filed his original petition against

appellees on June 26, 2008, seeking damages and alleging that the appellees had

deprived him of, and conspired to interfere with, his civil rights. See 42 U.S.C. §§ 1983,

1985(3) (2009).            The petition specifically alleged that Eldridge, along with fellow

correctional officers Clements and Junkermeier, conspired to file a false disciplinary report

against Evans in retaliation for prior legal actions taken by Evans against the TDCJ. The

petition further alleged that Evans was denied a fair and impartial disciplinary hearing by

Jackson, and that he was denied fair and impartial appellate review by Podsim.

         On July 28, 2008, Eldridge, Jackson, Junkermeier, and Podsim filed an answer

generally denying Evans’s allegations, as well as a motion to dismiss Evans’s suit as

frivolous. See TEX . CIV. PRAC . & REM . CODE ANN . § 14.003(a)(2) (Vernon 2002). The

motion to dismiss alleged specifically that: (1) Evans failed to exhaust his administrative

remedies against Podsim and Jackson; (2) Evans’s civil rights claims are not cognizable

because judgment for him would “necessarily imply” the invalidity of the disciplinary actions

taken against him; and (3) Evans’s allegations do not support a retaliation or due process

claim under section 1983 or a conspiracy claim under section 1985. The trial court granted

          1
            The TDCJ’s adm inistrative grievance process, instituted at the behest of the legislature, see T EX .
G O V ’T C OD E A N N . § 501.008(a) (Vernon 2004), begins with an inform al attem pt to resolve the inm ate’s
problem . If the inform al attem pt is unsuccessful, two steps follow. First, the inm ate has fifteen days from the
grievable event to forward a step 1 grievance form to the unit grievance investigator. If unsatisfied with the
step 1 decision, the inm ate m ay appeal by subm itting a step 2 form to the unit grievance investigator within
fifteen days of the step 1 response. See T EX . D EP ’T OF C R IM IN AL J U STIC E , O FFEN D ER O R IEN TATIO N H A N D BO O K
52 (rev. Nov. 2004), available at http://www.tdcj.state.tx.us/publications/cid/OffendOrientHbkNov04.pdf (last
visited July 16, 2009); see also W hirty v. Grimes, Nos. 07-08-0394-CV, 07-09-0111-CR, 2009 Tex. App.
LEXIS 2535, at *4-5 (Tex. App.–Am arillo Apr. 14, 2009, no pet.) (m em . op., not designated for publication).
It is undisputed that Evans exhausted this procedure with respect to Clem ents, Eldridge, and Junkerm eier.

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the motion to dismiss on August 18, 2008, without specifying the grounds upon which it

was granted.

       Evans filed a motion for new trial on September 5, 2008 and a motion for default

judgment with respect to Clements on October 7, 2008. The motions for new trial and for

default judgment were denied on October 22, 2008. This appeal followed.

                                        II. DISCUSSION

A.     Applicable Law and Standard of Review

       Chapter 14 of the Texas Civil Practice and Remedies Code applies to all suits, such

as the suit at bar, filed by inmates who declare themselves unable to pay costs. TEX . CIV.

PRAC . & REM . CODE ANN . § 14.002(a) (Vernon 2002). Section 14.003 authorizes a trial

court to dismiss any claim in such a suit where the court finds that the claim is frivolous or

malicious. Id. § 14.003(a)(2). The statute states that, in determining whether a claim is

frivolous or malicious, the trial court may consider whether:

       (1)     the claim’s realistic chance of ultimate success is slight;

       (2)     the claim has no arguable basis in law or in fact;

       (3)     it is clear that the party cannot prove facts in support of the claim; or

       (4)     the claim is substantially similar to a previous claim filed by the inmate
               because the claim arises from the same operative facts.

Id. § 14.003(b). A trial court may dismiss a chapter 14 suit without affording the inmate

notice, opportunity to be heard, or opportunity to amend the petition. Aguilar v. Chastain,

923 S.W.2d 740, 745 (Tex. App.–Tyler 1996, writ denied) (citing Timmons v. Luce, 840

S.W.2d 582, 586 (Tex. App.–Tyler 1992, no writ); Kendrick v. Lynaugh, 804 S.W.2d 153,

155 (Tex. App.–Houston [14th Dist.] 1990, no writ)).

       When a trial court dismisses an inmate’s suit as frivolous or malicious, we review

that ruling under an abuse of discretion standard. Jackson v. Tex. Dep’t of Criminal

Justice-Institutional Div., 28 S.W.3d 811, 813 (Tex. App.–Corpus Christi 2000, pet. denied).

To establish an abuse of discretion, Evans must show that the trial court’s action was


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arbitrary or unreasonable in light of all the circumstances in the case, or that the trial court

acted without reference to any guiding rules and principles. Lewis v. Johnson, 97 S.W.3d

885, 887 (Tex. App.–Corpus Christi 2003, no pet.); see Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); see also McCray v. Langehenning, No. 13-07-

00143-CV, 2008 Tex. App. LEXIS 6522, at *2-3 (Tex. App.–Corpus Christi Aug. 26, 2008,

no pet.) (mem. op.). Because the trial court did not specify the grounds for dismissal, we

will affirm the decision if any theory advanced in the motion to dismiss is meritorious.

Walker v. Gonzales County Sheriff’s Dep’t, 35 S.W.3d 157, 162 (Tex. App.–Corpus Christi

2000, pet. denied) (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Trigo v.

Munoz, 993 S.W.2d 419, 421 (Tex. App.–Corpus Christi 1999, pet. denied)).

B.      Analysis

        It is well settled that if an inmate wishes to challenge a disciplinary conviction or

punishment that he receives while he is incarcerated, as in this case, he must file a habeas

corpus action in federal court. See Preiser v. Rodriguez, 411 U.S. 485, 500 (1973);

Alexander v. Ware, 714 F.2d 416, 419 (5th Cir. 1983); Ex parte Brager, 704 S.W.3d 46,

46 (Tex. Crim. App. 1986) (holding that Texas state courts will not entertain habeas actions

challenging violations of prison disciplinary procedures); see also Jones v. Tex. Dep’t of

Criminal Justice-Corr. Insts. Div., No. 13-05-197-CV, 2006 Tex. App. LEXIS 5088, at *7-8

(Tex. App.–Corpus Christi June 15, 2006, no pet.) (mem. op.). That is because a federal

habeas corpus petition is the exclusive remedy available to a claimant where the relief

requested would “undermine the validity of a state conviction.” Alexander, 714 F.2d at 419

(citing Richardson v. Fleming, 651 F.2d 366, 373 (5th Cir. 1981)). This reasoning extends

to appeals where the requested relief would undermine the validity of a prison disciplinary

ruling. See id.2


       2
         Under these circum stances, an inm ate’s civil rights claim s will nevertheless be cognizable if it is
dem onstrated that the conviction or sentence has previously been invalidated. Heck v. Humphrey, 512 U.S.
477, 487 (1994); see Edwards v. Balisok, 520 U.S. 641, 643 (1997). It is undisputed that none of the
punishm ents im posed upon Evans at the April 2, 2008 disciplinary hearing have been invalidated in any way.

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       Evans asserts that a judgment in his favor “would not necessarily imply the invalidity

of his disciplinary hearing.” See Heck v. Humphrey, 512 U.S. 477, 487 (1994) (holding that

habeas is the exclusive remedy for a state prisoner where the relief requested would

“necessarily imply” the invalidity of the conviction or sentence). However, the Fifth Circuit

Court of Appeals has held that:

       Whatever the nature of the relief he seeks for an isolated violation, the
       prisoner must resort to habeas corpus and exhaust state remedies. On the
       other hand, we have suggested that “a broad due process challenge” to a
       prison disciplinary system would represent a challenge to conditions of
       confinement, for which a civil rights remedy would be available.

Alexander, 714 F.2d at 419 (internal citations omitted). Evans states that the gravamen

of his suit is a challenge to the “conditions of confinement,” but his allegations stem solely

from the disciplinary hearing held on April 2, 2008, and the subsequent administrative

appeal. Evans does not make a “broad due process challenge” to the conditions of

confinement; rather, he merely contends that he was deprived of fair hearings in this

particular, isolated instance. We therefore conclude that, under the doctrines set forth in

Preiser and Alexander, none of Evans’s civil rights claims are cognizable under sections

1983 or 1985 of title 42 of the United States Code.

       Because Evans’s suit had no arguable basis in law or fact, the trial court was within

its discretion to dismiss it as frivolous under section 14.003(b) of the civil practice and

remedies code. Evans’s issue is overruled.

                                      III. CONCLUSION

       The judgment of the trial court is affirmed.




                                                  DORI CONTRERAS GARZA,
                                                  Justice

Memorandum Opinion delivered and
filed this the 13th day of August, 2009.




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