Opinion filed March 12, 2015



### In The 

# Eleventh Court of Appeals

__________ No. 11
- 1 3
- 00 078
- CV

__________ RICKY LEE STROBLE, Appellant
V.
SGT. HAROLD ROBIN SON ET AL. , Appellees

On Appeal from the 259 th District Court Jones County, Texas Trial Court Cause No. 022887

M E M O R A N D U M O P I N I O N Ricky Lee Stroble is in the custody of the State of Texas at the French M. Robertson Unit of the Texas Department of Criminal Justice; he is a convicted sex offender. In his petition, Stroble allege d that o n May 29, 2012, Appellees 1

1 Appellees are Sgt. Harold Robinson, Officer Felix Vigil, Warden Richard Leal, and Officer Linda Richey.2 confiscated certain folders of his that contained some 160 photographs of partially dressed girls , including color catalogs for which Stroble had paid $89. 2 Stroble filed this lawsuit pro se and in forma pauperis . In his petition, he apparently sought to have his property returned and also sought relief for trespass to personal property, conversion, theft of personal property , and intentional infliction of emotional distress and mental anguish. He sought “[a]ctual and unliquidated dama ges” in an unspecified amount. As provided for in Chapter 14 of the Texas Civil Practice and Remedies Code, the trial court dismissed the lawsuit without holding a hearing. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. ch. 14 (West 2002 & Supp. 2014). Stroble appeals; we affirm. The l egislature enacted Chapter 14 s pecifically to govern in forma pauperis inmate proceedings. Se e id. § 14.00 2

. The main purpose of the legislation i s to provide trial courts with a mechanism whereby the toll of frivolous inmate litigation on judicial and state resources might be reduced

. Sanders v. Palunsky , 36 S.W.3d 222, 226 (Tex. App.

— Houston [14th Dist.] 2001, no pet.)

. In furtherance of that purpose, the statute provides for dismissal of frivolous inmate lawsuits , even before service is had upon the d efendants , if it appear s to the trial court that the claim is frivolous or malicious. See C IV

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. & R EM

. § 14.003(a) ; Gross v. Carroll , 339 S.W.3d 718, 722 (Tex. App.

— Houston [1st Dist.] 2011, no pet .)

.

2 The photographs and other property alleged to have been confiscated in this case are apparently not the same ones that Stroble alleged were confiscated by other correctional officers on June 1, 2012, and on June 4, 2012. Stroble filed lawsuits in connection with those items also. As it did in this case, the trial court dismissed those lawsuits , and Stroble appealed the dismissa ls to this court. We have this day affirmed those dismissals

. See Appellate Cause N os. 11

- 13

- 00 106

- CV and 11

- 13

- 001 6 6

- CV. Stroble has filed two cases in the federal courts, which he alleges to be filed under cause numbers 1

- 11

- CV

- 108

- C and 1

- 12

- CV

- 055

- B L, and one case in justice court. Those cases are unrelated to the cases in our court and appear to be based upon different facts.3 We review a dismissal order in lawsuits of this nature for an abuse of discretion. Hickson v. Moya , 926 S.W.2d 397, 398 (Tex. App.

— Waco 1996, no writ ) . A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules and principles. Downer v. Aquamarine Op erators , Inc. , 701 S.W.2d 238, 241

– 42 (Tex. 1985)

. When the trial court d oes not specify the grounds for dismissal, we will affirm the decision if any theory is meritorious. See Walker v. Gonzales C nty

. Sheriff’s Dep’t , 35 S.W.3d 157, 162 (Tex. App.

— Corpus Christi 2000, pet. denied). T rial courts have 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 dismissal of unmeritor ious 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)

. To determine whether a lawsuit is mal icious or frivolous , a court may consider whether (1) the realistic chance of ultimate success is sli ght, (2) there is no arguable basis for the claim in law or in fact, (3) it is clear that the party cannot prove facts that will support the claim, or (4) the claim is substantially similar to a previous claim filed by the inmate in that the claim arises from the same operative facts. C IV

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. § 14.003(b)

. When an inmate c laims relief under an indisputab ly meritless legal theory, the claim has no arguable basis in law. Leachman v. Dretke , 261 S. W.3d 297, 304 (Tex. App.

— Fort Worth 2008, no pet.). A suit in which the defendants are immune from suit provides an example of such a meritless legal theory

. Bi rdo v. Ament , 814 S.W.2d 808, 809 (Tex. App.

— Waco 1991, writ denied). Stroble appears to have sued Appellees in their individual capacities. Suits against a government employee in his individual capacity are foreclosed if t he4 employee was acting within t he scope of his employment. Franka v

. Velasquez , 332 S.W.3d 367, 381 (Tex. 2011). As alleged in his petition, Stroble’s claims were based on conduct committed by Appellees within the general scope of their employment and could have been brought against the governmental unit; Stroble has not alleged that Appellees were acting otherwise. See C IV

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. § 101.106( f ) ( West 2011) ; Franka , 332 S.W.3d 367. Pursuant to Section 101.106(f), such a “suit is considered to be against the employee in the employee’s official capacity only.” Therefore , we review this case as one against Appellees in their official capacities. Bec ause a suit against a government employee is, in effect, a suit against the State, sov ereign immunity defeats subject

- matter jurisdiction unless the State consents to the suit. The Texas Tort Claims Act provides for such a waiver in limited circumstances. The Act provides for waiver of immunity from suit in those instances in which the claimant alle ges “personal injury [or] death . . . caused by a condition or use of tan gible pe rsonal or real property. ” C IV

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. § 101.021 (2)

. Strob le has not alleged that he was injured as a result of the condition or use of tangible personal or real property. Furthermore, the Act does not waive immunity for intentional torts. Se e id. § 101.057(2) ( Act does not apply to claims “arising out of assault, battery, false imprisonment , or any other intentional tort .” (e mphasis added)); Tex

. State Technical Coll

. v. Wehba , No. 11

- 05

- 00287

- CV, 2006 WL 572022, at *2 ( Tex. App.

— Eastland Mar

. 9, 2006 , no pet. ) (mem. op.) ; Gen

. Elec

. Co. v. City of Abilene , 795 S.W.2d 311, 313 (Tex. App.

— Eastland 1990, no writ). Stroble has alleged intentional torts only. Because Appellees are entitled to immunity from suit and because Stroble has not shown that immunity has been waived, there is no arguable basis in law for his claim . We cannot say that the trial court abused its discretion when it dismissed Stroble’s lawsuit , and we overrule his issues.5 We affirm the judgment of the trial c ourt.

JIM R. WRIGHT CHIEF JUSTICE

March 12, 2015 Panel consists of : Wright, C.J., Willson, J

. , and Bailey, J.