Newby v. Chambers (Tex.App.- Houston [1st Dist.] May 21, 2009)(Guzman)
AFFIRMED: Opinion by Justice Guzman
Before Justices Brock Yates, Guzman and Boyce
14-08-00338-CV Rob L. Newby v. Sam Chambers, J. Cunningham, G. Currie, M. Roesler,
Shannon Kersh, Vickie Barrow, and The State of Texas
Appeal from 1A District Court of Tyler County
Trial Court Judge: Judge Jerome Owens
Trial Court Cause No. 20614
S U B S T I T U T E M E M O R A N D U M O P I N I O N
We withdraw our memorandum opinion of March 31, 2009 and substitute the following in its place.
Rob L. Newby, an inmate incarcerated in the Texas Department of Criminal Justice, appeals pro
se from a court order dismissing his lawsuit against appellees and declaring him a vexatious
litigant. We affirm.
I. Factual and Procedural Background
Newby filed suit against appellees Sam Chambers, J. Cunningham, G. Currie, M. Roesler,
Shannon Kersh, Vickie Barrow, and the State of Texas in their individual and official capacities for
alleged violations of his civil rights. He stated that:
As to the damages claims under 42 U.S.C. § 1983,[[1]] these defendants are sued in their
individual capacities.
As to the claims for damages arising from violations of state statutes and constitution, these
defendants are sued in their individual capacities, and official capacities.[[2]]
Claims for equitable relief are brought in the defendants' official capacity.
Appellees responded with a general denial[3] and a motion to declare Newby a vexatious litigant.
In their motion, appellees asserted that (a) there was no reasonable probability Newby would
prevail in his suit and (b) he had commenced, prosecuted, or maintained in propria persona at
least five litigations, other than small claims, in the past seven years that had been either
determined against him or found frivolous or groundless. Specifically, appellees stated that there
was no reasonable probability Newby would prevail on his claims because (1) the defendants
were entitled to sovereign immunity to the extent that Newby was suing them in their official
capacity; (2) Newby failed to establish any actual harm from the defendants alleged violation of
his access to courts; and (3) Newby did not have a federally-protected liberty interest in having
his grievances resolved to his satisfaction. Appellees also listed six cases in which Newby had
been involved, all of which had been resolved against him.[4] Finally, appellees requested that
Newby furnish security for their benefit sufficient to assure payment of expenses incurred in
connection with his suit. Newby replied by filing a supplemental petition, in which he alleged there
was a reasonable probability he would prevail on his claims and that several of his previous suits
had not been decided on the merits but were dismissed without prejudice for violations of
procedures under Chapter 14 of the Texas Civil Practice and Remedies Code.
After a telephonic hearing, the trial court concluded that Newby was a vexatious litigant. The
court ordered Newby to furnish security for his lawsuit or suffer dismissal of his claim. Newby
failed to furnish the requisite security and his claim was dismissed. Newby timely appealed the
trial court's dismissal order, asserting that the trial court erroneously declared him a vexatious
litigant.
II. Issue Presented
In a single issue, Newby contends the trial court erred by declaring him a vexatious litigant.
III. Analysis
A. Standard of Review
We review the trial court's determination that an appellant is a vexatious litigant under an abuse-
of-discretion standard. Douglas v. Am. Title Co., 196 S.W.3d 876, 879 (Tex. App.- Houston [1st
Dist.] 2006, no pet.); Leonard v. Abbott, 171 S.W.3d 451, 459 (Tex. App.- Austin 2005, pet.
denied); Forist v. Vanguard Underwriters Ins., 141 S.W.3d 668, 670 (Tex. App.- San Antonio
2004, no pet.). The trial court abuses its discretion by acting arbitrarily, unreasonably, or without
consideration of guiding principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).
B. Applicable Law
If a defendant establishes there is no reasonable probability that a plaintiff will prevail in a suit
against the defendant, a court may find the plaintiff a vexatious litigant in several different
circumstances. Tex. Civ. Prac. & Rem. Code Ann. § 11.054. As applicable here, the court may
find a plaintiff a vexatious litigant if, in the seven-year period immediately preceding the date of
the defendant's motion, the plaintiff has “commenced, prosecuted, or maintained in propria
persona at least five litigations other than in small claims court that have been . . . finally
determined adversely to the plaintiff . . . or . . . determined by a trial or appellate court to be
frivolous or groundless under state or federal laws or rules of procedure." Id. § 11.054(1)(A),
(C). In the event a court declares a plaintiff a vexatious litigant, it “shall order the plaintiff to
furnish security for the benefit of the moving defendant. . . ." Id. § 11.055. “The court shall
dismiss a litigation as to a moving defendant if a plaintiff ordered to furnish security does not
furnish the security within the time set by the order." Id. § 11.056.
C. Application
As a preliminary matter, we note that on appeal, Newby has only challenged the trial court's
conclusion that there was no reasonable probability that he would prevail in his suit against
appellees. Thus, we limit our discussion to whether the trial court abused its discretion in making
this determination.[5]
Newby sued appellants because appellants allegedly denied him access to grievance forms and
legal research forms. He complained that denial of access to the grievance forms prevented him
from filing grievances because prison officials would not consider his grievances if they were not
presented on the appropriate grievance forms. He argued that, by denying him legal research
forms, he was prevented from generating legal research to “develop his claims and prepare
responsive pleadings." For each of these complaints, he attached copies of Step 1 and Step 2
grievance forms, which had been responded to by prison officials.[6]
Similar claims filed by Newby have previously been dismissed as frivolous. In Newby v. Hurley,
Newby sued prison officials because he was allegedly unable to obtain grievance forms. No. 13-
08-016-CV, 2008 WL 3868338, at *1 (Tex. App.- Corpus Christi Aug. 21, 2008, no pet.) (mem.
op.). Citing Comeaux v. Thaler,[7] the Thirteenth Court of Appeals concluded that Newby's claim
was properly classified as an allegation of a denial of a right to access to courts. Newby, 2008
WL 3868338, at *2. To establish a denial of this right, the appellate court explained that an
inmate must show actual harm resulting from the prison officials' alleged conduct.[8] See id.; see
also Lewis v. Casey, 518 U.S. 343, 349B52 (1996). The Thirteenth Court of Appeals concluded
that Newby could not “prevail on his access-to-the-courts claim because he ha[d] not alleged
injury in pending litigation in this or any other case." Newby, 2008 WL 3868338, at *2.
Likewise, in this case, Newby has not identified any injury caused by the prison officials' alleged
failure to provide him grievance forms or legal research request forms. Instead, he alleged that
the appellees' failure to provide him forms impeded his “pursuit of legal research" to “develop [his]
claims and prepare responsive pleadings." He also contended that prison officials were
“abundantly aware" he was involved in nine active cause numbers and was “struggling to manage
them." But Newby did not specify any legal claims in which he was challenging his conviction or
the conditions of his confinement that were hindered by the appellees' alleged failure to provide
him these forms. Thus he has not shown any actual harm resulting from such an alleged failure.
See id.
Further, the law is settled that an inmate does not have a constitutionally protected right to access
a grievance procedure. See Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (stating “the
Constitution creates no entitlement to grievance procedures or access to any such procedure
voluntarily established by a state"); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (holding
a prison grievance procedure is merely a procedural right, which does not confer any substantive
right upon inmates and, therefore, does not create a protected liberty interest implicating the
protections of the Fourteenth Amendment). Thus, a prison grievance procedure is not an
entitlement. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (holding that state prisoners
have “no legitimate claim of entitlement to a grievance procedure"). Finally, although Newby may
be dissatisfied with appellees' disposition of his grievances, he does not have a federally-
protected liberty interest in having grievances resolved to his satisfaction. Geiger v. Jowers, 404
F.3d 371, 374 (5th Cir. 2005).
Under these circumstances, we cannot say the trial court abused its discretion in determining that
Newby had no reasonable probability of prevailing on his claims against appellees in either their
official or personal capacities. We therefore overrule his sole issue on appeal.
IV. Conclusion
Having determined that the trial court did not abuse its discretion in declaring Newby a vexatious
litigant, we hold it did not err in ordering Newby to furnish security before pursuing the instant
lawsuit. Because Newby failed to furnish the requisite security, the trial court was required to
dismiss his claims. The judgment of the trial court is therefore affirmed.
/s/ Eva M. Guzman
Justice
Panel consists of Justices Yates, Guzman, and Boyce.
[1] Section 1983 permits suit against officials for violations of civil rights secured by the
Constitution and laws of the United States. See 42 U.S.C. § 1983.
[2] Public officials sued in their official capacities are protected by the same sovereign immunity
enjoyed by the governmental unit they represent. See Kentucky v. Graham, 473 U.S. 159,
165B67 (1985) (explaining the distinction between suits against government officials in their
personal and official capacities); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997)
(“This Court has long recognized that sovereign immunity, unless waived, protects the State of
Texas, its agencies and its officials from lawsuits for damages, absent legislative consent to sue
the State."), superceded by statute, Tex. Gov't Code §§ 2260.001 B .108, as recognized in Gen.
Servs. Comm'n v. Little Tex. Insulation Co., Inc., 39 S.W.3d 591, 593 (Tex. 2001); Morris v.
Copeland, 944 S.W.2d 696, 698B99 (Tex. App.- Corpus Christi 1997, no pet.) (holding that suit
against sheriff was a suit against the county, and both were immune from suit by virtue of
sovereign immunity). Although Newby sued appellees in both their personal and official
capacities, he failed to plead waiver of sovereign immunity regarding any actions taken by
appellees in their official capacities. Thus, the trial court did not abuse its discretion in dismissing
his claims for damages against appellees in their official capacity.
[3] Appellees also asserted their rights to “qualified, official, and sovereign immunity as they
apply" in their general denial.
[4] Appellees provided copies of the judgments, orders of dismissals, or opinions associated with
these cases.
[5] We note, however, that the appellees attached copies of six lawsuits that were decided
adversely to Newby to their motion to declare him a vexatious litigant. Further, in an affidavit
attached to his original petition in this lawsuit, Newby listed a total of eleven previously filed civil
actions, several of which he acknowledged had been decided adversely to him.
[6] In Step 1 Grievance No. 2007137942, Newby complained that prison law library staff refused
to provide him with grievance and research forms. Prison officials responded by stating that
Newby had already received the three items he was permitted from the law library when he made
these requests. In the Step 2 Grievance of this complaint, Newby claimed that officials had not
addressed his issue, stating “the issue was that I-60s [research] and grievances are not readily
available on the wing." Prison officials responded by stating that AI-60's and grievance forms are
made available to all offenders." In Steps 1 and 2 of Grievance No. 2007147635, Newby
complained that law library staff were ignoring his requests for legal materials and “deliberately
trying to thwart" his efforts to “effectively manage" his legal cases. Prison officials noted his
grievance and explained that legal research materials and supplies would be provided to him in
accordance with prison policies.
[7] Civil Action No. H-01-1411, 2008 WL 818341, at *21 (S.D. Tex. March 24, 2008) (“Comeaux
complains that he has been denied access to the courts because he has had inadequate access
to the prison grievance process and sufficient legal supplies. The constitutional right implicated by
Comeaux's allegations is the right to access the courts that is generally protected by the First
Amendment, the Due Process Clause, and the Equal Protection Clause.").
[8] Actual harm is defined as some hindrance to an inmate's effort to pursue a legal claim. Lewis,
518 U.S. at 356. Further, an inmate's right to pursue legal claims encompasses only a
reasonable opportunity to file non-frivolous legal claims challenging a conviction or conditions of
his confinement. Id.
Reversed and Remanded and Memorandum Opinion filed May 19, 2009.