                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00212-CV


WILLIE A. MILTON                                                    APPELLANT

                                         V.

NATHANIEL QUARTERMAN,                                               APPELLEES
DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE-
CORRECTIONAL INSTITUTIONAL
DIVISION; JENNIFER SMITH,
CHAIRPERSON DRC AUGUST
11TH, 2009; AND KARRI
HANSFORD, ALLRED MAIL ROOM
SUPERVISOR


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         FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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                        MEMORANDUM OPINION1
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      In four points,2 Appellant Willie A. Milton, appearing pro se and in forma

pauperis, appeals the trial court’s order dismissing his claims against Appellees

            1
             See Tex. R. App. P. 47.4.
Nathaniel Quarterman, Jennifer Smith, and Karri Hansford under chapter 14 of

the civil practice and remedies code. We will affirm the trial court’s judgment.

                                Background Facts

      Mr. Milton is an inmate of the Texas Department of Criminal Justice

(TDCJ).    On October 28, 2009, the prison mail room received a package

addressed to Mr. Milton containing publications from a ―Left wing insurrectionary

anarchist organization.‖ TDCJ denied Mr. Milton the receipt of one publication,

entitled Fire to the Prisons, An Insurrectionary Anarchist Quarterly, Issue No. 6.

Three other publications in the package, entitled Unfinished Acts, The January

Rebellions; Modesto Anarcho, The Valley’s Insurrectionary Journal of Class

Struggle; and Fire to the Prisons, Issue No. 5 were not delivered until November

17, 2009. The form denial notice that Mr. Milton received regarding Fire to the

Prisons, Issue No. 6 indicated that the publication was denied because two

pages contained ―material that a reasonable person would construe as written

solely for the purpose of communicating information designed to achieve the

breakdown of prisons through offender disruption such as strikes or riots.‖ Mr.

Milton did not receive any information as to why the three publications were

delayed.




      2
        Mr. Milton’s brief presents five points of error, but he explicitly ―abandons‖
point five in his brief. Because he has abandoned point five on appeal, we will
not address it.


                                      2
      Mr. Milton appealed the denial of Fire to the Prisons, Issue No. 6 to the

Director’s Review Committee (DRC), which upheld the denial. He then filed suit

in the district court seeking review of an administrative agency ruling, declaratory

judgment, injunctive relief, and claiming a violation of his civil rights.       The

Appellees filed a motion to dismiss arguing, among other things, that Mr. Milton’s

claims were frivolous; that Mr. Milton did not overcome the Appellees’ qualified

immunity; and that he did not comply with chapter 14 of the civil practice and

remedies code.     See Tex. Civ. Prac. & Rem. Code §§ 14.003, .005 (Vernon

2002).    The trial court granted the TDCJ’s motion, and Mr. Milton filed this

appeal.

                               Standard of Review

      We review a dismissal of an in forma pauperis suit under an abuse of

discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco

1996, no writ); see Martinez v. Thaler, 931 S.W.2d 45, 46 (Tex. App.—Houston

[14th Dist.] 1996, writ denied). Abuse of discretion exists where a court acts

without reference to applicable guiding principles, acts arbitrarily, or misinterprets

or misapplies those guiding rules or the law. Vacca v. Farrington, 85 S.W.3d

438, 440 (Tex. App.—Texarkana 2002, no pet.); Letson v. Barnes, 979 S.W.2d

414, 417 (Tex. App.—Amarillo 1998, pet. denied). Trial courts are given broad

discretion to determine whether a case should be dismissed because

(1) prisoners have a strong incentive to litigate; (2) the government bears the

cost of an in forma pauperis suit; (3) sanctions are not effective; and (4) the

                                      3
dismissal of unmeritorious claims accrues to the benefit of state officials, courts,

and meritorious claimants. See Montana v. Patterson, 894 S.W.2d 812, 814–15

(Tex. App.—Tyler 1994, no writ). We will affirm such a dismissal if it was proper

under any legal theory. Birdo v. Debose, 819 S.W.2d 212, 215 (Tex. App.—

Waco 1991, no writ).      In considering the record before us, we review and

evaluate pro se pleadings with liberality and patience, but otherwise apply the

same standards applicable to pleadings drafted by lawyers. Foster v. Williams,

74 S.W.3d 200, 202 (Tex. App.—Texarkana 2002, pet. denied).

                                    Discussion

      A court may dismiss a claim under chapter 14 if the court finds that the

claim is ―frivolous or malicious,‖ Tex. Civ. Prac. & Rem. Code Ann. § 14.003, or if

the inmate has failed to exhaust his administrative remedies, Id. § 14.005. In

determining whether a claim is frivolous or malicious, the 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).

      When the trial court dismisses a claim without a hearing, we are to

determine on appeal simply whether the claim had no arguable basis in law,

which we review de novo.       Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex.



                                     4
App.—Houston [1st Dist.] 2002, no pet.); Sawyer v. Tex. Dep’t of Criminal

Justice, 983 S.W.2d 310, 311 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).

That is because when a claim is dismissed without a fact hearing, the trial court

could not have determined that the suit had no arguable basis in fact. Harrison v.

Tex. Dep’t of Criminal Justice-Inst. Div., 915 S.W.2d 882, 887 (Tex. App.—

Houston [1st Dist.] 1995, no writ); see Vacca, 85 S.W.3d at 441; In re Wilson,

932 S.W.2d 263, 265 (Tex. App.—El Paso 1996, no writ). We review Mr. Milton’s

claims accordingly.

        A. Exhaustion of Administrative Remedies

        Under section 14.005, an inmate who is suing on ―a claim that is subject to

the [TDCJ] grievance system‖ must, as a prerequisite to suit, file a claim with the

grievance system and receive a written decision. Tex. Civ. Prac. & Rem. Code

Ann § 14.005. As the plain language of the statute provides, section 14.005

does not apply to claims that are not grievable.         According to the Offender

Orientation Handbook, grievable issues include ‖[t]he interpretation or application

of TDCJ policies, rules, regulations, and procedures‖ and ―[t]he actions of an

employee.‖ Tex. Dep’t of Criminal Justice, Offender Orientation Handbook 53

(Nov.    2004),   available   at   http://www.tdcj.state.tx.us/publications/cid/Offend

OrientHbkNov04.pdf.      Non-grievable issues include ―[m]atters for which other

appeal mechanisms exist.‖ Id. In his third point, Mr. Milton claims that the trial

court abused its discretion by dismissing his causes of action for his failure to

exhaust his administrative remedies.       We agree with Mr. Milton that he has

                                      5
exhausted his administrative remedies in regard to the denial of Fire to the

Prisons, Issue No. 6; however, we do not agree that he has exhausted the

administrative remedies in regard to the delayed delivery of the other

publications.

      TDCJ Board Policy 3.91 sets out the appeal process for the rejection of

publications. See Tex. Dep’t of Criminal Justice, Board Policy 3.91, Uniform

Offender     Correspondence      Rules    13     (Feb.    2010),    available       at

http://www.tdcj.state.tx.us/policy/BP0391r2_fnl.pdf. To appeal, an inmate must

make a written notice of appeal to the DRC within two weeks of the notification of

rejection.   Id.   The DRC must then render a decision within two weeks of

receiving the appeal. Id. Mr. Milton appealed the denial of Fire to the Prisons,

Issue No. 6 through the proper channel and filed the final written decision of the

DRC with his petition. Because there was an alternative appeal mechanism for

denials of publications, Mr. Milton was not required (and not able) to file a

complaint through the grievance system.         Mr. Milton thus exhausted his

administrative remedies regarding the denial of Fire to the Prisons, Issue No. 6.

      However, the Board Policy regarding correspondence does not provide an

appeals process for mail delays. See Board Policy 3.91. As Mr. Milton notes,

the delayed publications were not listed on the publication denial form he

received, and he did not complain of their delay to the DRC. Because there was

no appeals system set up for mail delays, the administrative remedy for such

issues is the grievance system. See Offender Orientation Handbook 53. Under

                                    6
chapter 14, Mr. Milton was required to file a grievance regarding the mail delays

and receive a written response.       See Tex. Civ. Prac. & Rem. Code Ann.

§ 14.005. Mr. Milton did not file a grievance and therefore did not exhaust his

administrative remedies in regards to the delay of the three publications. The

trial court properly dismissed his claims regarding the delayed publications. We

therefore overrule Mr. Milton’s third point to the extent he complains of the

delayed publications. As to the denied publication, we continue our analysis

below.

      B. Frivolous or Malicious Claims under Chapter 14

         1. Free Speech Claims

      In his first point, Mr. Milton complains that the trial court abused its

discretion by dismissing his claims as frivolous or malicious under chapter 14 of

the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann.

§ 14.003. Mr. Milton first argues that the denial of an issue of the periodical Fire

to the Prisons violates his first amendment rights. See U.S. Const. amend. I.

―[I]n determining the constitutional validity of prison practices that impinge upon a

prisoner's rights with respect to mail, the appropriate inquiry is whether the

practice is reasonably related to a legitimate penological interest.‖ Brewer v.

Wilkinson, 3 F.3d. 816, 824 (5th Cir.1993). The denial of the Fire to the Prisons

issue, which was determined by TDCJ to contain ―material that a reasonable

person would construe as written solely for the purpose of communicating

information designed to achieve the breakdown of prisons through offender

                                     7
disruption such as strikes or riots,‖ was reasonably related to the legitimate

interest of preventing strikes and riots in the prison. See Chriceol v. Phillips, 169

F.3d 313, 316 (5th Cir. 1999) (holding that prison mail policies which restrict

access to potentially violence-producing materials is constitutionally valid). Thus,

Mr. Milton has failed to set forth a cognizable First Amendment claim.

          2. Equal Protection

      Mr. Milton next claims that the denial of Fire to the Prisons violates the

equal protection clause of the Constitution because the denial ―wou[l]d not be

employed upon and against a White inmate who has exercised his right to seek

out judicial review in a previous incident of mail denial.‖ See U.S. Const. amend.

XIV. To assert an equal protection claim, Appellant must establish two elements:

1) that he was treated differently than other similarly situated parties, and 2) that

he was treated differently without a reasonable basis. Sanders v. Palunsky, 36

S.W.3d 222, 225 (Tex. App.—Houston [14th Dist.] 2001, no pet.).

      Reviewing Mr. Milton’s brief as liberally as possible,3 Mr. Milton has done

nothing more than to state that the appellee’s violation of TDCJ policy ―inherently


      3
        Mr. Milton complains in his fourth point that the court erred in not liberally
construing his pleadings. We first note that ―[a] pro se inmate’s petition should
be viewed with liberality and patience and is not held to the stringent standards
applied to formal pleadings drafted by attorneys.‖ Minix v. Gonzales, 162 S.W.3d
635, 637 (Tex. App.—Houston [14th Dist.] 2005, no pet.). However, we also
recognize that pro se litigants must abide by the same standards as licensed
attorneys and comply with applicable laws and rules of procedure. See Amir-
Sharif v. Mason, 243 S.W.3d 854, 856–58 (Tex. App.—Dallas 2008, no pet.)
(citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex.1978)).
Even with a liberal review of the pleadings, the trial court acted properly and

                                      8
violates‖ the Fourteenth Amendment.          He has provided no argument, no

analysis, and no law. Nor did his petition set out any facts or argument regarding

equal protection. His response to the appellee’s motion to dismiss was likewise

devoid of argument, analysis, and law.           Mr. Milton’s own pleadings and

documents show that the publication was denied because it contained

―information designed to achieve the breakdown of prisons through offender

disruption‖—a legitimate reason for denial. Mr. Milton has failed to allege any

facts that, if true, would support his contention that the publication was not

denied for a legitimate reason, but instead was denied because of his race. The

trial court was within its discretion to find that Mr. Milton’s equal protection claim

had no realistic chance of success. See Tex. Civ. Prac. & Rem. Code Ann.

§ 14.003(b).

         3. Procedural Due Process

      Mr. Milton alleges that the Appellees’ failure to note the three ―held‖

publications on the denial notification he received denied him the due process by

which to complain of their delay. As we noted above, Mr. Milton was afforded a

process by which to complain—the TDCJ grievance system. Mr. Milton did not

file a grievance and did not obtain a final administrative decision on the delayed

publications. He cannot now complain of a due process violation as we have

affirmed the trial court’s dismissal of these claims. See Tex. Civ. Prac. & Rem.

within its discretion to dismiss the case for failure to meet the requirements of
chapter 14. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003.


                                      9
Code Ann. § 14.005. Mr. Milton’s claims relating to the denied publication had no

arguable basis in law, and he failed to state any constitutional claim.

      We hold that the court did not abuse its discretion by dismissing Mr.

Milton’s claims as frivolous or malicious under chapter 14, and we overrule his

first and fourth points. Because we hold that dismissal as to all claims was

proper under at least one theory, we do not reach Mr. Milton’s second point.4

See Tex. R. App. P. 47.1.

                                    Conclusion

      Having affirmed the dismissal of Mr. Milton’s claims on at least one theory,

we affirm the judgment of the trial court.



                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DELIVERED: March 3, 2011




      4
        We do note, however, that Mr. Milton’s second point complains that the
trial court erred by dismissing his claims for his failure to provide a certified copy
of his inmate trust fund account statement, as required by chapter 14. See Tex.
Civ. Prac. & Rem. Code Ann. §§ 14.004(c), .006(f). The State conceded in its
brief that Mr. Milton did in fact attach the requisite copy of the account statement.


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