                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                NO. 2-07-221-CV


MATTHEW JAMES LEACHMAN                                           APPELLANT

                                        V.

DOUG DRETKE, DEBORAH A. JOHNSON,                                  APPELLEES
GLENDA J. ADAMS, JOSEPH C. BOYLE,
AND DENISE ONCKEN

                                    ------------

          FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

                                    ------------

                            OPINION ON REHEARING

                                    ------------

      After reviewing Appellant Matthew James Leachman’s motion for rehearing,

we grant the motion. We withdraw our May 29, 2008 opinion and judgment and

substitute the following.

                                 I. Introduction

      Appellant Leachman Matthew James Leachman, an inmate housed in a

Texas Department of Criminal Justice (“TDCJ”) facility, filed suit against
appellees Doug Dretke, Glenda J. Adams, Joseph C. Boyle, and Deborah A.

Johnson (“TDCJ employees”) and against appellee Denise Oncken, the Harris

County assistant district attorney who prosecuted him for the crime upon which

his confinement is based.1 The trial court dismissed Leachman’s claims against

Oncken and dismissed with prejudice his claims against the TDCJ employees.

Leachman complains of four points on appeal.

      We affirm the trial court’s judgment as to Leachman’s claims against

Adams, Boyle, Johnson, and Oncken. However, with regard to the dismissal

with prejudice of Leachman’s claims against Dretke, we reverse and remand

this claim to the trial court to provide Leachman with a reasonable opportunity

to amend his pleadings.

                      II. Factual and Procedural History

      In 1998, a jury convicted Leachman of aggravated sexual assault of a

child and a trial court sentenced him to forty years’ confinement.         See

Leachman v. State, No. 01-98-01255-CR, 2006 WL 2381441, at *1 (Tex.

App.—Houston [1st Dist.] Aug. 17, 2006, pet. ref’d) (mem. op.) (not




      1
       … His original lawsuit also recited claims against Angela S. Milbern, a
former TDCJ mail room supervisor. He nonsuited Milbern in order to proceed
with this appeal. Leachman’s lawsuit and this appeal were brought pro se and
in forma pauperis.

                                      2
designated for publication). Leachman filed this post-confinement lawsuit in

2004.

      In 2005, after amending his pleadings to add other claims and parties,

Leachman made three principal allegations as the basis for his claims: that

Dretke, through his Director’s Review Committee (“DRC”), allowed his mail to

be unfairly withheld; that Johnson unfairly charged him with contacting the

family member of a victim; and that Boyle predetermined the outcome of the

subsequent disciplinary hearing on that charge. He also alleged that Adams

provided ineffective assistance to him during the disciplinary hearing and that

Oncken made false statements that were used against him in that hearing.

      In August 2005, the trial court dismissed Leachman’s claims against

Oncken after finding that she was entitled to absolute prosecutorial and

qualified immunity. In December, the TDCJ employees filed a motion to dismiss

Leachman’s lawsuit “under Chapter Fourteen of the Civil Practice and Remedies

Code.” In January 2006, the trial court ordered Leachman’s claims against the

TDCJ employees dismissed with prejudice, as frivolous, for failure to comply

with chapter fourteen’s requirements. This appeal resulted.

     III. Chapter Fourteen of the Texas Civil Practice & Remedies Code

      In his first, third, and fourth points, Leachman contends that the trial

court erred by dismissing his claims against the TDCJ employees with prejudice

                                      3
under chapter fourteen. In his second point, he complains that the trial court

erred by dismissing his claims against Oncken.

      Chapter fourteen applies when, as here, an inmate files suit in a district

court and files an unsworn declaration of indigency. See T EX. C IV. P RAC. & R EM.

C ODE A NN. § 14.002 (Vernon 2008). Under chapter fourteen, a trial court may

dismiss an inmate’s lawsuit for failing to comply with the chapter’s procedural

requirements; it may also dismiss a lawsuit that is malicious or frivolous. Id.

§ 14.003; Scott v. Gallagher, 209 S.W.3d 262, 265 (Tex. App.—Houston [1st

Dist.] 2006, no pet.). The trial court need not rely upon a defendant’s motion

to exercise its discretionary power to dismiss under chapter fourteen. See T EX.

C IV. P RAC. & R EM. C ODE A NN. § 14.003(a); Wilson v. TDCJ-ID, 107 S.W.3d 90,

92 (Tex. App.—Waco 2003, no pet.).

      A. Standard of Review

      We review a dismissal under chapter fourteen for an abuse of discretion.

Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex. App.—Fort Worth 2004, pet.

denied). To determine whether a trial court abused its discretion, we must

decide whether the trial court acted without reference to any guiding rules or

principles; in other words, we must decide whether the act was arbitrary or

unreasonable.    Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). When an inmate’s

                                        4
lawsuit is dismissed as frivolous for having no basis in law or in fact, but no

fact hearing is held, our review focuses on whether the inmate’s lawsuit has an

arguable basis in law. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.003; Scott,

209 S.W.3d at 266. A clear failure by the trial court to analyze or apply the

law correctly is an abuse of discretion. McDaniel v. Yarbrough, 898 S.W.2d

251, 253 (Tex. 1995).

      In conducting our review, we take as true the allegations in the inmate’s

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. See Scott, 209 S.W.3d at 266; Harrison v. Tex.

Dep’t of Criminal Justice, Inst. Div., 164 S.W.3d 871, 875 (Tex. App.—Corpus

Christi 2005, no pet.).    A claim has no arguable basis in law if it is an

indisputably meritless legal theory. Scott, 209 S.W.3d at 266–67. Further, a

claim has no arguable basis in law if the inmate has failed to exhaust his

administrative remedies. Retzlaff v. Tex. Dep’t of Criminal Justice, 94 S.W.3d

650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). If an inmate

fails to exhaust his administrative remedies, we may affirm a dismissal even if

the ground was not presented in a motion to dismiss. T EX. C IV. P RAC. & R EM.

C ODE A NN. § 14.005; Retzlaff, 94 S.W.3d at 653.




                                        5
      The trial court did not conduct a hearing before it dismissed Leachman’s

lawsuit.   Therefore, the issue before us is whether the trial court properly

determined that there was no arguable basis in law for Leachman’s claims. See

Scott, 209 S.W.3d at 266; Retzlaff, 94 S.W.3d at 653.

      B. Dismissal of Leachman’s claims

      In his first, third, and fourth points, Leachman claims that his pleadings

complied with chapter fourteen’s procedural requirements and that, even if his

pleadings did fail to meet the chapter’s requirements, any deficiency could have

been cured with more specific pleading. In his second point, he complains that

the trial court erred by dismissing his claims against Oncken because she was

not entitled to immunity.

            1. Leachman’s claim against Dretke

      Leachman argues that the trial court erred by dismissing his claim with

prejudice against Dretke because Dretke was properly named as an official-

capacity defendant in a 42 U.S.C.A. § 1983 claim and because that claim had

an arguable basis in law.

                  (a) Facts as alleged by Leachman

      In December 2003, Leachman received a letter, which was “reviewed in

accordance with prison rules,” and which contained enclosures that the TDCJ

mail room, under then-mail room supervisor Milbern, withheld from him, stating

                                       6
that they contained child pornography.      He appealed to the DRC, a panel

appointed by Dretke; the DRC upheld the mail room’s decision. Leachman

completed a Step 1 offender grievance form on the DRC’s decision, but it was

returned to Leachman with the statement, “[t]he issue presented is not

grievable.”

      Leachman filed suit against the DRC and Milbern in March 2004, seeking

a release of the letter’s enclosures, a declaratory judgment that the enclosures

were not child pornography, and an injunction requiring the removal from

TDCJ’s records of any indication that he had received child pornography

through the mail. He substituted Dretke for the DRC in his amended petition,

in which he also added claims against Adams, Boyle, Johnson, and Oncken and

sought a number of remedies in his prayer.

                  (b) Application of law to Leachman’s facts

      Leachman contends that he only had one claim against Dretke. In his

amended petition, he claimed that “Dretke, acting in his official capacity and

under color of state law, allowed property to be seized from [Leachman] in

violation of due process when Dretke’s DRC upheld” Milbern’s actions and that




                                       7
this “independently violat[ed Leachman’s] rights under the U.S. Constitution

and the Constitution of Texas.” 2

      Leachman did not cite § 1983 in his pleadings, but he contended in

subsequent filings and in his appellate brief that his claim against Dretke was

brought under that section. See 42 U.S.C.A. § 1983 (2003). A cause of

action under § 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. See Parratt v. Taylor,

451 U.S. 527, 535, 101 S. Ct. 1908, 1913 (1981), overruled in part on other

grounds, Daniels v. Williams, 474 U.S. 327, 330–33, 106 S. Ct. 662, 664–66

(1986); City of Fort W orth v. Robles, 51 S.W.3d 436, 443 (Tex. App.—Fort

Worth 2001, pet. denied), disapproved on other grounds, City of Grapevine v.

Sipes, 195 S.W.3d 689, 695 & n.5 (Tex. 2006).

      When a litigant seeks injunctive relief that involves a state agency’s

unlawful or unauthorized act, he must sue some individual in authority at that




      2
        … Leachman did not raise or brief any point involving his rights under the
Texas constitution. Therefore, for purposes of this appeal, they are waived.
T EX. R. A PP. P. 38.1(e), (h); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881
S.W.2d 279, 284–85 (Tex. 1994) (discussing the “long-standing rule” that a
point may be waived due to inadequate briefing).

                                        8
agency, not the agency itself. See Will v. Mich. Dep’t of State Police, 491 U.S.

58, 71 n.10, 109 S. Ct. 2304, 2312 n.10 (1989); Denson v. T.D.C.J.-I.D., 63

S.W.3d 454, 460 (Tex. App.—Tyler 1999, pet. denied). But, when sued for

damages, officials acting in their official capacities are not “persons” who may

be liable under § 1983. See Will, 491 U.S. at 71, 109 S. Ct. at 2312; Thomas

v. Brown, 927 S.W.2d 122, 125 (Tex. App.—Houston [14th Dist.] 1996, writ

denied).

      Leachman did not clearly demarcate his claim for injunctive relief against

Dretke as separate and apart from his claim for actual damages, although he did

make such a distinction with regard to his request for exemplary damages

against Adams, Boyle, Johnson, and Oncken. Therefore, from his amended

petition, the trial court could have reasonably concluded that Leachman had

failed to state a claim with an arguable basis in law because it appeared that he

was seeking damages against someone who, in his official capacity, could not

be held liable under § 1983.        See T EX. C IV. P RAC. & R EM. C ODE A NN.

§ 14.003(b)(2); W ill, 491 U.S. at 71, 109 S. Ct. at 2312; Thomas, 927

S.W.2d at 125.

      Furthermore, Leachman clearly alleged that Milbern’s act of seizing his

property was a due process violation, but it is unclear from his amended

petition which constitutional rights he alleges that the DRC and Dretke violated,

                                       9
and whether he is attacking the initial deprivation, the policy behind the

deprivation, the DRC’s review procedure, or the DRC’s decision to uphold the

deprivation. He merely states that, by “allowing” and “upholding” Milbern’s

seizure, Dretke, through the DRC, violated Leachman’s “rights under the U.S.

Constitution and the Constitution of Texas.”

      Based on the ambiguities presented by Leachman in his claim against

Dretke, we cannot say that the trial court abused its discretion by dismissing

his claim for having no arguable basis in law. 3 See T EX. C IV. P RAC. & R EM. C ODE

A NN. § 14.003(b)(2).      Whether the trial court abused its discretion by

dismissing Leachman’s claims with prejudice depends on whether Leachman’s

errors could be remedied. See Hickman v. Adams, 35 S.W.3d 120, 124 (Tex.

App.—Houston [14th Dist.] 2000, no pet.). Because Leachman could have

amended his pleadings to clarify the ambiguities in his claim against Dretke,

dismissal with prejudice was an abuse of discretion. See id. Therefore, we

overrule Leachman’s third issue, but we sustain the portion of Leachman’s first

issue regarding the dismissal with prejudice of his claim against Dretke.

             2. Leachman’s claims against Adams, Boyle, Johnson, and Oncken




      3
      … Leachman does make clear in his briefs to this court that he only
sought injunctive relief with regard to the “claim that his mail was
unconstitutionally denied.”

                                         10
      Leachman asserts that his claims against Adams, Boyle, and Johnson

should not have been dismissed with prejudice under chapter fourteen because

his retaliation claim did not lack an arguable basis in law when he alleged facts

in his amended petition that showed a chronology of events “from which

retaliation may plausibly be inferred.” He also broadly complains that his state

law claims had arguable bases in law and that these claims were not addressed

in the TDCJ employees’ motion to dismiss.4 He contends that it was error for

the trial court to dismiss his claims against Oncken based on its finding of

immunity.

                  (a) Facts as alleged by Leachman

      At some point in February 2004, Leachman told Milbern to hold for

litigation the enclosures withheld from him by the DRC and, in retaliation,

Milbern contacted David Mayo, an investigator from the Inspector General’s

office, to initiate an investigation into Leachman’s mail. In July, Leachman sent




      4
        … However, if Leachman failed to exhaust his administrative remedies,
or failed to state an arguable basis in law for his claims, those claims did not
need to be addressed in the TDCJ employees’ motion for the trial court to be
able to dismiss them. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.003(a);
Wilson, 107 S.W.3d at 92; Retzlaff, 94 S.W.3d at 653.

                                       11
a letter to Diana Browning, the mother of a minor who had modeled for

Leachman,5 and in August, TDCJ investigated this letter.

      On August 5, Sergeant Billy J. Hampton notified him that he was “being

investigated for a possible violation of Code 10.1,” based on the letter to

Browning.6 Leachman asked Sergeant Hampton to check TDCJ records, stating

that his contact with Browning did not violate Code 10.1 because Browning’s

son was not a “victim” under section 10.1. Leachman’s parents also spoke

with the duty warden with regard to this “baseless charge.” During this time,

Mayo contacted Oncken about the Browning letter, and Oncken told Mayo that

Browning’s son was an “extraneous, unindicted victim” and that Browning’s

son was “not a victim in any case for which [Leachman] is serving time.”




      5
        … Leachman was a professional photographer. Leachman stated that he
contacted Browning because she had made certain statements in a letter to the
trial court during the pre-sentence investigation portion of Leachman’s criminal
trial, which he believed were based on misconceptions.
      6
        … Section 10.1 of the TDCJ Disciplinary Rules and Procedures for
Offenders prohibits “contacting without authorization the offender’s victim or
a member of the victim’s family, if the victim was under the age of seventeen
(17) at the time of the offense for which the offender is serving a sentence.”
T EX. D EP’T OF C RIMINAL J USTICE, TDCJ D ISCIPLINARY R ULES AND P ROCEDURES FOR
O     F     F    E     N    D    E    R   S           2     4    ,         a    t
http://www.tdcj.state.tx.us/publications/cid/GR-106%20Web%20doc%20%
20English%202-07.pdf; see also T EX. G OV’T C ODE A NN. § 498.0042 (Vernon
2008) (setting out the statutory basis for section 10.1).

                                       12
      On August 11, Adams, TDCJ counsel substitute, served Leachman with

a disciplinary charge for violating section 10.1, per a report by Johnson, the

new TDCJ mail room supervisor, who based the charge on the Browning letter.

Adams did not tell Leachman that, with regard to the charged violation, “there

were other players in the game,” specifically, Mayo and Oncken. When he

found out about Mayo and Oncken, at the disciplinary hearing on the violation,

held on August 13, Adams told him that it was too late to call them as

witnesses.

      Boyle, the disciplinary hearing officer, did not allow Leachman to present

his documentary evidence at the hearing and told him, “You can just put that

in the grievance.” Boyle found Leachman guilty of the violation and Leachman

was punished. Leachman later “heard” that TDCJ employees were packing his

property “[e]ven as [he] was walking to the administrative building” for the

hearing.

      The disciplinary case was subsequently overturned.7           Thereafter,

Leachman filed a Step 1 offender grievance form on October 25, 2004,

complaining that the outcome of the August 13 disciplinary hearing was




      7
        … Leachman attached no documentation to his amended petition and
included no explanation to the trial court with regard to how or why the
disciplinary case was overturned.

                                      13
predetermined, thereby depriving him of due process.          In the same form,

Leachman complained that the investigation into his mail constituted

retaliation.8 These acts, Boyle, and the “mailroom supervisor [who Leachman

told] to hold the ‘child porn’ for litigation” are the only TDCJ actions and actors

that Leachman complained of in the form.

      TDCJ returned the form, unprocessed, to Leachman on October 26, with

“Grievable time period has expired” as the screening criteria reason for not

processing it. Leachman filed a Step 2 offender grievance form on November

2, asking, “How can the grievable time period be expired? I sought informal

resolution and filed the grievance within 15 days as soon as I got the

information that makes up the grievance.” TDCJ responded on November 30,

stating, “You may not submit a Step 2 appeal on a Step 1 grievance that was

returned to you unprocessed using one of the screening criteria.” Leachman

stated in his section 14.005 declaration attached to his amended petition that

he received TDCJ’s “final answer on that grievance,” the November 30

communication, on December 6.




      8
       … Leachman asserted in the grievance, “An ‘investigation’ was started
as retaliation for my lawsuit, and at the flimsiest excuse from the investigation,
I was illegally tried and sentenced in disciplinary court for an offense the
administration knew I did not commit.”

                                        14
      In his amended petition, Leachman brought the following claims, jointly

and severally, against Adams, Boyle, Johnson, and Oncken: (1) they violated

his due process rights “by conspiring to continue and enlarge Defendant

Milbern’s campaign of retaliation,” in their personal capacities and under color

of state law; (2) they “conspired to engage in an extreme or outrageous manner

which was calculated and intended to cause [Leachman] severe emotional

distress;” and (3) they “intentionally or recklessly violated [Leachman’s] due

process rights in an extreme or outrageous manner, causing [him] severe

emotional distress.” He also alleged that they “conspired to maliciously and

without probable cause inititate [sic] or continue a civil proceeding” against him;

and that they “insisted upon initiating or continuing a civil proceeding against

[Leachman], maliciously and without probable cause, which civil proceeding

was eventually terminated in [Leachman’s] favor, but which caused actual

interference with [Leachman’s] person or property.”

      Leachman also brought due process claims on an individual basis in his

amended petition, alleging that each individual acted in his or her personal

capacity and under color of state law. He alleged that Adams violated his due

process rights in the disciplinary hearing “by utterly failing in her duty to

represent him, either out of deliberate malice or with reckless disregard for

[Leachman’s] rights.” He claimed that Boyle violated his due process rights in

                                        15
the disciplinary hearing “by refusing to let [Leachman] introduce relevant,

exculpatory documentary evidence,” “by finding [Leachman] guilty when Boyle

had the IOC [Inter-Office Communication from Mayo reporting the results of his

investigation] at hand[,] showing [Leachman’s] innocence,” and “by determining

[Leachman’s] guilt and punishment before the disciplinary hearing was held and

evidence was heard.” He contended that Johnson violated his due process

rights in the disciplinary hearing “by mischaracterizing [Browning’s son] as a

victim, deliberately and maliciously or with reckless disregard for [Leachman’s]

rights.” Finally, he stated that Oncken

      violated [Leachman’s] due process rights in the disciplinary process
      by denominating [Browning’s son] a “victim,” knowing that in doing
      so she was providing a statement to be used against [Leachman]
      in a disciplinary hearing and possible criminal investigation, and
      knowing that said statement was false or having a reckless
      disregard for the truth of the statement.9

                  (b) Exhaustion of administrative remedies through the
                  grievance process

      A TDCJ disciplinary decision is subject to the grievance procedure. See

Comeaux v. Tex. Dep’t of Criminal Justice, 193 S.W.3d 83, 84 (Tex.




      9
        … Leachman restates his claims in his appellate brief as “[p]ersonal-
capacity claims against Johnson, Adams, Boyle, and Oncken under 42
U.S.C.[A.] § 1983 relating to retaliation” and for denial of due process in a
disciplinary hearing and state law claims for intentional infliction of emotional
distress and for malicious prosecution in an “administrative proceeding.”

                                       16
App.—Houston [1st Dist.] 2006, pet. denied). Allegations of reprisals by TDCJ

employees against inmates for filing grievances or lawsuits, or other inmate

complaints about TDCJ employee actions, are also subject to the grievance

procedure. See Birdo v. Schwartzer, 883 S.W.2d 386, 388 (Tex. App.—Waco

1994, no writ); see also Wolf v. Tex. Dep’t of Criminal Justice, Inst. Div., 182

S.W.3d 449, 450 (Tex. App.—Texarkana 2006, pet. denied) (describing the

Offender Orientation Handbook); T EX. D EP’T OF C RIMINAL J USTICE, O FFENDER

O RIENTATION       HANDBOOK         53     (Nov.      2004),       available      at

http://w w w .tdcj.state.tx.us/publications/cid/O ffendO rientH bkNov04.pdf

(stating that the actions of a TDCJ employee are grievable). Therefore, with

regard to all of his claims against Adams, Boyle, and Johnson, Leachman had

to exhaust his remedies through the grievance process before he could seek

judicial review. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.005(a); T EX. G OV’T

C ODE A NN. § 501.008(d) (Vernon 2004). If he failed to exhaust these remedies,

then this was an appropriate ground upon which the trial court could dismiss

his claims under chapter fourteen. See T EX. C IV . P RAC. & R EM. C ODE A NN. §

14.003(a); Retzlaff, 94 S.W.3d at 653.

      There is little authority or discussion with regard to whether an

unprocessed grievance form is sufficient, in a Texas court, to warrant judicial

review. See Elias v. DeLeon, No. 12-04-00143-CV, 2005 WL 2404113, at

                                         17
*1–2 (Tex. App.—Tyler Sept. 30, 2005, no pet.) (mem. op.) (reversing suit’s

dismissal where inmate stated a claim with an arguable basis in law, even

though inmate’s grievances were returned to him unprocessed); Roberson v.

Howell, No. 12-02-00232-CV, 2003 WL 1193759, at *1 (Tex. App.—Tyler

Mar. 14, 2003, pet. denied) (mem. op.) (affirming suit’s dismissal not because

inmate’s Step 1 grievance form was returned to him unprocessed but because

he failed to file suit within the 31-day statutory period); Thompson v. Tex.

Dep’t of Criminal Justice Inst. Div., No. 08-01-00232-CV, 2002 WL 1301575,

at *3 (Tex. App.—El Paso June 13, 2002, no pet.) (affirming dismissal where

trial court found both that inmate failed to exhaust his administrative remedies

and that his claims were frivolous); see also McCullough v. Tex. Dep’t of

Criminal Justice-ID, No. 02-07-00072-CV, 2008 WL 704419, at *4 (Tex.

App.—Fort Worth Mar. 13, 2008, no pet.) (mem. op.) (affirming dismissal

where, among various other procedural defects, inmate failed to file his lawsuit

by statutory deadline).

      However, the legislature designed chapter fourteen to control the flood

of frivolous lawsuits being filed in state courts by inmates, consuming valuable

judicial resources with little offsetting benefit. See Bishop, 131 S.W.3d at 574;

Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.—Waco 1996, no pet.).

The Supreme Court recently discussed a similar issue, with regard to whether

                                       18
the exhaustion of remedies requirement under the federal Prison Litigation

Reform Act (“PLRA”) could be satisfied by an inmate filing an untimely or

otherwise procedurally defective administrative grievance or appeal.        See

Woodford v. Ngo, 548 U.S. 81, 83–84, 126 S. Ct. 2378, 2382 (2006).

      Like the Texas legislature in enacting chapter fourteen, the U.S. Congress

enacted the PLRA to reduce the amount of frivolous prisoner litigation. Id. at

84, 126 S. Ct. at 2382. The Court determined that the proper exhaustion of

administrative remedies was necessary in order for an inmate to subsequently

seek judicial review of his grievances. Id., 126 S. Ct. at 2382. The Court

based its determination on the purposes of the exhaustion requirement, which

are to give the agency an opportunity to correct its own mistakes and prevent

disregard of agency procedures, and to promote efficiency and conserve

resources rather than expend scarce resources on inefficient litigation. Id. at

84, 89, 126 S. Ct. at 2382, 2385.

      The Court defined “proper exhaustion” as “compliance with an agency’s

deadlines and other critical procedural rules,” reasoning that no adjudicative

system can function effectively without imposing some orderly structure on the

course of the proceedings. Id. at 90–91, 126 S. Ct. at 2386. The Court

stated:




                                      19
      [R]equiring proper exhaustion . . . gives prisoners an effective
      incentive to make full use of the prison grievance process and
      accordingly provides prisons with a fair opportunity to correct their
      own errors. . . . Proper exhaustion reduces the quantity of prisoner
      suits because some prisoners are successful in the administrative
      process, and others are persuaded by the proceedings not to file an
      action in federal court. Finally, proper exhaustion improves the
      quality of those prisoner suits that are eventually filed because
      proper exhaustion often results in the creation of an administrative
      record that is helpful to the court. When a grievance is filed shortly
      after the event giving rise to the grievance, witnesses can be
      identified and questioned while memories are still fresh, and
      evidence can be gathered and preserved.

Id. at 94–95, 126 S. Ct. at 2388. Additionally, “[a] prisoner who does not

want to participate in the prison grievance system will have little incentive to

comply with the system’s procedural rules unless noncompliance carries a

sanction.” Id. at 95, 126 S. Ct. at 2388. 10




      10
       … The Court explained further that, without requiring “proper
exhaustion,”

      [A] prisoner wishing to bypass available administrative remedies
      could simply file a late grievance without providing any reason for
      failing to file on time. If the prison then rejects the grievance as
      untimely, the prisoner could proceed directly to federal court. And
      acceptance of the late grievance would not thwart the prisoner’s
      wish to bypass the administrative process; the prisoner could easily
      achieve this by violating other procedural rules until the prison
      administration has no alternative but to dismiss the grievance on
      procedural grounds.

Id. at 95, 126 S. Ct. at 2388.

                                       20
      The grievance policy set forth by TDCJ is intended to foster efficiency;

by failing to properly follow the grievance procedure, an inmate makes the

entire process less efficient. See Johnson v. Ford, 261 Fed. App’x. 752, 757

(5th Cir. 2008); see also Scott v. Menchaca, 185 S.W.3d 543, 545 (Tex.

App.—Corpus Christi 2006, no pet.) (stating that section 14.005 reflects that

the exhaustion of administrative remedies is mandatory as to claims that are

subject to the grievance system). An inmate may not file a claim in state court

regarding operative facts for which the grievance system provides the exclusive

administrative remedy until (1) the inmate receives a written decision issued by

the highest authority provided for in the grievance system; or (2) if the inmate

has not received a written decision described by Subdivision (1), the 180th day

after the date the grievance is filed. T EX. G OV’T C ODE A NN. § 501.008(d).

      An inmate has fifteen days from the date of the alleged incident on which

the grievance is based to complete the Step 1 offender grievance form and

forward it to the Unit Grievance Investigator. Wolf, 182 S.W.3d at 450–51;

T EX. D EP’ T OF C RIMINAL J USTICE, O FFENDER O RIENTATION H ANDBOOK at 53. The

record reflects that Leachman did not file his Step 1 offender grievance form

involving either the retaliation claim or the denial of due process in the August

13 disciplinary hearing until October 25.    Leachman provided contradictory

information on this point in his appellate brief, admitting in his fact statement

                                       21
that TDCJ refused to process the grievance based on untimeliness, but also

stating that he received “the Step 2 grievance decision.”          TDCJ expressly

informed Leachman that he could not submit a Step 2 grievance on a Step 1

grievance that it had returned to him unprocessed.            Leachman’s Step 1

grievance was returned to him by TDCJ because it was untimely filed.

      Leachman claims that the November 30 communication, which he

received on December 6, fulfilled his exhaustion requirement. We disagree.

      Following the reasoning of the Supreme Court in Woodford, we adopt the

interpretation that the exhaustion of remedies requirement under section

501.008 of the government code and section 14.005 of the civil practice and

remedies code requires proper exhaustion of remedies, i.e., the timely filing of

grievances, before an inmate may seek judicial review. See Woodford, 548

U.S. at 81, 83–84, 90, 126 S. Ct. at 2382, 2385. Because Leachman failed

to properly exhaust his administrative remedies, and therefore failed to comply

with the statutory procedural requirements as to his claims against Adams,

Boyle, and Johnson, the trial court did not err by dismissing these claims as

frivolous. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.005(a); T EX. G OV’T C ODE

A NN. § 501.008(d); Retzlaff, 94 S.W.3d at 654; see also Francis v. TDCJ-CID,

188 S.W.3d 799, 805 (Tex. App.—Fort Worth 2006, no pet.) (stating that the

legislature implicitly authorized dismissal under section 14.005); Smith v. Tex.

                                         22
Dep’t    of   Criminal   Justice-Inst.   Div.,   33   S.W.3d   338,    341   (Tex.

App.—Texarkana 2000, pet. denied) (stating that section 14.005‘s “obvious

purpose,” in light of section 501.008 of the government code, is to allow the

trial court to dismiss an inmate’s suit when it becomes clear that he has failed

to provide the required statutory information).

        Additionally, Leachman’s October Step 1 offender grievance form

mentioned only Boyle by name, and he made no allegations at all with regard

to Adams or Johnson.        Therefore, regardless of his untimely filing of the

grievance, he failed to exhaust his remedies through the grievance process as

to Adams and Johnson. See Wolf, 182 S.W.3d at 451 (“Wolf’s grievance does

not address the issues he brought in his civil petition, and we cannot say he

either sought or received a final administrative decision on those issues.”); see

also Riddle v. TDCJ-ID, No. 13-05-00054-CV, 2006 WL 328127, at *2 (Tex.

App.—Corpus Christi Feb. 9, 2006, pet. denied) (mem. op.) (“Riddle did not

exhaust the grievance procedures for those individuals named in the claim who

were not named in the grievance.         Thus, Riddle did not fulfill all statutory

procedural requirements.”).

        And although Leachman claimed in his October Step 2 offender grievance

form that he did not get the information that made up the grievance until after

he returned from solitary confinement, even if some type of discovery rule

                                         23
applied as an exception to proper exhaustion, it would not benefit Leachman.

As early as August 5, Leachman was aware of the investigation into his letter

to Browning and had informed TDCJ authorities that there were no grounds to

support a charge that he violated Code 10.1. Adams served Leachman with

the charge on August 11 and told him that the charging officer was Johnson;

the hearing was August 13.

      Therefore, as to Johnson, Leachman had fifteen days from August 11 to

file his Step 1 offender grievance form to complain of TDCJ employee acts that

he considered retaliation for filing the March 17 lawsuit against a mail room

official. Wolf, 182 S.W.3d at 450–51; T EX. D EP’T OF C RIMINAL J USTICE, O FFENDER

O RIENTATION H ANDBOOK at 53. As to Adams and Boyle, he had fifteen days from

August 13 to file his Step 1 offender grievance form to complain about

retaliation on the same facts and about procedural due process violations in the




                                        24
disciplinary hearing by all three.11 Wolf, 182 S.W.3d at 450–51; T EX. D EP’T OF

C RIMINAL J USTICE, O FFENDER O RIENTATION H ANDBOOK at 53. He failed to meet

these deadlines and therefore failed to properly exhaust his administrative

remedies. Based on all of the foregoing, we overrule Leachman’s fourth point.

      Finally, although a dismissal with prejudice is improper if the error can be

remedied, because Leachman failed to timely file his grievances as to Adams,

Johnson, and Boyle, his error as to these claims cannot be remedied; his

fifteen-day deadline to file offender grievance forms on those claims has

passed. See Nabelek v. Dist. Att’y of Harris County, No. 14-03-00965-CV,

2005 WL 2148999, at *7 (Tex. App.—Houston [14th Dist.] Sept. 8, 2005,

pet. denied) (dismissing claims with prejudice where inmate could not remedy

the errors that resulted in the dismissal of his suit). Therefore, it was not an




      11
        … Because Leachman failed to include his previous grievance with
regard to his disciplinary hearing, which resulted in its reversal, the trial court
had no way to ascertain whether any of these complaints had previously been
addressed and exhausted through the grievance process. See T EX. D EP’T OF
C RIMINAL J USTICE, O FFENDER O RIENTATION H ANDBOOK at 52 (listing grounds for
appeal of a disciplinary hearing decision as: (1) one or more procedural rights
were violated; (2) insufficient evidence to find offender guilty; (3) penalty
imposed by the hearing officer was too severe). In his reply brief, Leachman
attempts to justify excluding any explanation with regard to the disciplinary
hearing reversal by stating that his “first complaints about his disciplinary
hearing, which resulted in the reversal of his disciplinary conviction, did not
contemplate litigation and are not part of this suit.”

                                        25
abuse of discretion for the trial court to dismiss these claims with prejudice.

We overrule the remaining portion of Leachman’s first issue.

                    (c) Dismissal based on immunity

      Chapter fourteen applies to Leachman’s claims against Oncken. See T EX.

C IV. P RAC. & R EM. C ODE A NN. § 14.002. However, because Oncken was not a

TDCJ employee, the exhaustion requirement addressed above does not apply.

See id. § 14.005(a) (stating filing requirements for claims subject to the

grievance system under section 501.008); T EX. G OV’T C ODE A NN. § 501.008(a)

(“A remedy provided by the grievance system is the exclusive administrative

remedy available to an inmate for a claim for relief against the department.”)

(emphasis added).

      Oncken asserted official immunity and qualified immunity in her answer.

The trial court dismissed all of Leachman’s claims against her after making “the

necessary findings that she is entitled to absolute prosecutorial and qualified

immunity.”   As Leachman does, we will assume that the trial court meant

federal qualified immunity as to the § 1983 claims and official immunity as to

the state claims.

                         (i) Oncken’s immunity defense–§ 1983 claims

      The doctrine of qualified immunity shields an official performing

discretionary functions from liability for civil damages under § 1983, provided

                                      26
the official’s conduct does not violate clearly established constitutional or

statutory rights of which a reasonable person would have been aware. Harlow

v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982); Thomas v.

Collins, 860 S.W.2d 500, 503 (Tex. App.—Houston [1st Dist.] 1993, writ

denied). After a government official asserts the affirmative defense of qualified

immunity, the burden shifts to the plaintiff to show that the defendant’s

conduct violated clearly established statutory or constitutional rights of which

a reasonable person would have been aware. Thomas, 860 S.W.2d at 503; see

also Whatley v. Philo, 817 F.2d 19, 20–21 (5th Cir.1987) (describing test for

qualified immunity).   Therefore, we examine Leachman’s § 1983 claims to

determine which constitutional rights he claims were violated, and whether he

pleaded the violation sufficiently. See Brown v. Texas A & M Univ., 804 F.2d

327, 333–34 (5th Cir. 1986); Thomas, 860 S.W.2d at 503; see also Baker v.

McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 2692 (1979) (“The first inquiry

in any § 1983 suit . . . is whether the plaintiff has been deprived of a right

secured by the Constitution and laws.”).

      Leachman alleged conspiracy to retaliate, which he claimed violated his

due process rights, and that Oncken violated his due process rights in the

disciplinary hearing. A § 1983 conspiracy claim is not actionable without an

actual violation of § 1983. Denson, 63 S.W.3d at 463. In order to state a

                                       27
claim for conspiracy under § 1983, a plaintiff must establish conspiracy in some

detail and provide some factual basis for supporting the existence of

conspiracy; conclusory statements suggesting conspiracy are not enough to

state a claim. Id.

      Moreover, to prevail on a retaliation claim brought under § 1983, an

inmate must establish (1) a specific constitutional right, (2) the defendant’s

intent to retaliate against the prisoner for his exercise of that right, (3) a

retaliatory adverse act, and (4) causation. Morris v. Powell, 449 F.3d 682, 684

(5th Cir.), cert. denied, 127 S. Ct. 596 (2006); see also Vacca v. Farrington,

85 S.W.3d 438, 441–42 (Tex. App.—Texarkana 2002, no pet.) (applying facts

to retaliation test). The inmate must allege more than his personal belief that

he is the victim of retaliation and must allege a chronology of events from

which retaliation may be plausibly inferred. Jones v. Greninger, 188 F.3d 322,

325 (5th Cir. 1999). Causation requires a showing that but for the retaliatory

motive, the complained of incident would not have occurred. McDonald v.

Steward, 132 F.3d 225, 231 (5th Cir. 1998).

      Leachman alleged that Milbern initiated the retaliation against him after

he filed his lawsuit.   Therefore, as to the retaliation claim, the specific

constitutional right at issue was Leachman’s right of access to the courts. See

Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 940 (Tex. App.—Fort Worth

                                      28
1997, pet. denied) (stating that prisoners have a constitutional right of access

to the courts). Leachman alleged that Milbern intended to retaliate, and did so,

by instituting an investigation of his mail, which led to the investigation of the

Browning letter and the disciplinary hearing, in which he contended his due

process rights were violated, and which he claimed caused him emotional

distress.12 Therefore, notwithstanding his failure to exhaust his administrative

remedies with regard to any alleged retaliation by TDCJ employees, Leachman

may have stated a claim against Milbern, but Milbern is not a party to this

appeal.

      To state a claim for civil conspiracy, Leachman had to allege that (1)

there were two or more persons, (2) an object to be accomplished, (3) a

meeting of the minds on the object or course of action, (4) one or more

unlawful, overt acts, and (5) damages as a proximate result. Profitlive P’ship

v. Surber, 248 S.W.3d 259, 261 (Tex. App.—Fort Worth 2007, no pet.). In

Vacca, an inmate brought a § 1983 action against prison officials, alleging that

in retaliation for filing a federal suit complaining of staff misconduct, he was




      12
       … Leachman contends that he “suffered intense and severe mental and
emotional distress during these events,” and that, now, he “is afraid all the
time, knowing that at any minute—even when he has done nothing
wrong—vindictive TDCJ-CID employees can railroad and abuse him with virtual
impregnability.”

                                       29
subjected to, among other things, the filing of false disciplinary actions against

him. 85 S.W.3d at 439. Specifically, he alleged that three weeks after he

requested an inmate trust account printout that he needed to mail his civil rights

complaint, two TDCJ employees contrived a disciplinary infraction against him,

in retaliation for his suit against their friends and coworkers, by planting a $100

bill on the floor when they strip-searched him. Id. at 441–42. The disciplinary

hearing was held a week later and Vacca was found guilty. Id. at 442. He

alleged that, as a result of the retaliation, he experienced pain, humiliation,

weight loss, emotional distress, imminent fear for his life, and a chilling of his

right to exercise access to the courts. Id.

      In contrast to Vacca, Leachman never alleged facts to show that there

was a meeting of the minds between Oncken, Adams, Boyle, and Johnson to

continue and enlarge Milbern’s “campaign of retaliation” against Leachman for

filing the original lawsuit. See Profitlive, 24 S.W.3d at 261. He did not allege

that Oncken knew that he had filed the lawsuit against Milbern or that Oncken

ever spoke with anyone other than Mayo. See id. And he acknowledged that

Oncken told Mayo that Browning’s son was “not a victim in any case for which

[Leachman] is serving time,” that Mayo reported this to Boyle, and that Boyle

chose to ignore this during the disciplinary hearing and imposed punishment.

See id.   Therefore, Leachman failed to allege sufficient facts to support his

                                        30
claim that Oncken conspired with Adams, Boyle, and Johnson to continue and

enlarge Milbern’s alleged retaliation.

      As to Leachman’s procedural due process claim, the first inquiry in any

due process challenge is whether the plaintiff has been deprived of a protected

property or liberty interest. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 59, 119 S. Ct. 977, 989 (1999); City of Arlington v. Centerfolds, Inc., 232

S.W.3d 238, 248–49 (Tex. App.—Fort Worth 2007, pet. denied). Procedural

due process merely requires that when a governmental entity deprives an

individual of liberty or property, that it do so “in a fair manner.” See United

States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 2101 (1987);

Centerfolds, 232 S.W.3d at 248–49.

      Leachman contended that Oncken violated his due process rights in the

disciplinary process by denominating Browning’s son as a “victim,” that Oncken

knew that she was providing a statement to be used against him in a

disciplinary hearing, and that Oncken knew that her statement was false or that

she had reckless disregard to its truth or falsity. However, Leachman also used

Oncken’s statement that Browning’s son was not a victim to argue that he was

deprived of due process by the TDCJ employees.           And Leachman also

acknowledged that the disciplinary case, in which Oncken’s statements were

used, had been overturned. Therefore, he failed to allege sufficient facts to

                                         31
state a due process violation under § 1983 against Oncken. See Collins v.

King, 743 F.2d 248, 254 (5th Cir. 1984) (stating that where inmate alleged

that he was denied procedural due process in a disciplinary hearing, but failed

to allege that the procedures for redress of the improper administrative

proceeding were constitutionally inadequate, he failed to allege a due process

violation).

      Leachman failed to allege that Oncken conspired with anyone, that she

knew about Milbern’s alleged retaliation, that she knew Milbern or anyone else

who worked in the TDCJ mail room, or that her actions, rather than Boyle’s,

caused his punishment. He also failed to allege sufficient facts to connect his

denial of procedural due process in the subsequently-overturned disciplinary

case to Oncken’s statements, both of which established that Browning’s son

was not a victim of a crime for which Leachman was currently incarcerated.

Therefore, as to Oncken’s qualified immunity defense, Leachman failed to show

that her conduct violated any clearly-established statutory or constitutional right

because he failed to state any constitutional claims in his allegations. See

Whatley, 817 F.2d at 20; Thomas, 860 S.W.2d at 503. Because Leachman

failed to state any constitutional claims against Oncken, the trial court did not

abuse its discretion by dismissing these claims against Oncken. W e overrule

this portion of Leachman’s second issue.

                                        32
                         (ii) Oncken’s immunity defense—state law claims

      Government officials are entitled to official immunity arising out of their

performance of (1) discretionary duties (2) in good faith (3) and within the

scope of their authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653

(Tex. 1994); Souder v. Cannon, 235 S.W.3d 841, 852 (Tex. App.—Fort Worth

2007, no pet.). Official immunity is an affirmative defense, and the burden is

on the officer to plead and prove its elements. Chambers, 883 S.W.2d at 653.

However, “[t]he nature of an affirmative defense presupposes a prima facie

claim.” Denton County v. Johnson, 17 S.W.3d 46, 51 (Tex. App.—Fort Worth

2000, pet. denied). It follows, then, that without a claim for which suit may

be brought, there is no affirmative defense to assert. Id. Therefore, we first

examine Leachman’s pleadings to determine whether he alleged sufficient facts

to set out prima facie claims under state law.

      Leachman contended that Oncken conspired with Adams, Johnson, and

Boyle to behave in an extreme and outrageous manner, calculated to cause him

severe emotional distress, and to maliciously initiate or continue a civil

proceeding against him. He also claimed that, individually, she inflicted severe

emotional distress on him through her intentional or reckless violation of his due

process rights. We have previously addressed Leachman’s failure to state due




                                       33
process or conspiracy claims against Oncken and therefore overrule Leachman’s

second issue as it pertains to these claims.

      As to his emotional distress claim, Leachman had to allege facts to show

that (1) Oncken acted intentionally or recklessly; (2) her conduct was extreme

and outrageous; (3) her actions caused him emotional distress; and (4) the

resulting emotional distress was severe.       Hoffmann-La Roche, Inc. v.

Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004).

      Leachman alleged facts to support Oncken’s statements as intentionally

made and alleged that he suffered severe emotional distress. However, he

failed to allege facts to support the causation element because he failed to

allege facts to show that Oncken’s statements, rather than Boyle’s disregard

of those statements during the hearing, were the cause of his punishment.

Therefore, we overrule Leachman’s second issue as it pertains to his emotional

distress claim.

      As to his malicious prosecution claim against Oncken, Leachman had to

allege the following facts to support a prima facie claim: (1) that civil

proceedings were instituted or continued against him; (2) by or at Oncken’s

insistence; (3) malice in the commencement of the proceeding; (4) lack of

probable cause for the proceeding; (5) termination of the proceeding in

Leachman’s favor; and (6) special damages. Tex. Beef Cattle Co. v. Green,

                                      34
921 S.W.2d 203, 207 (Tex. 1996).        Assuming arguendo that a claim for

malicious prosecution exists for an administrative proceeding, Leachman failed

to allege any facts to show that Oncken insisted on the continuation of the

disciplinary hearing against him. Therefore, we overrule this remaining portion

of Leachman’s second issue.

                                IV. Conclusion

      We reverse the trial court’s dismissal with prejudice as to Leachman’s

claim against Dretke and remand the case to afford Leachman a reasonable

opportunity to amend his pleadings as to that claim only. Having overruled the

remainder of Leachman’s four points, we affirm the rest of the trial court’s

judgment.




                                           BOB MCCOY
                                           JUSTICE

PANEL B:    DAUPHINOT, GARDNER, and MCCOY, JJ.

DELIVERED: July 10, 2008




                                      35
