NO. 07-97-0360-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO PANEL A OCTOBER 2, 1998

______________________________ DAN THOMAS, APPELLANT

V. COGBURN, ANDERSON & WAKEMAN, APPELLEES

_________________________________ FROM THE 320TH DISTRICT COURT OF POTTER COUNTY; NO. 81,323-D; HONORABLE DON EMERSON, JUDGE

_______________________________ Before BOYD, C.J., and DODSON and REAVIS, JJ. Proceeding pro se and in forma pauperis, appellant Dan Thomas,
an inmate of the Texas Department of Crimina l Ju stice, Institutional Division (TDCJ-ID), appeals from the dismissal of his declaratory judgment suit ag ain st Vickey Cogburn, a TDCJ-ID employee. We affirm. Ap pellant filed suit seeking declaratory relief, as well a s actual and punitive damages against Cogburn and two other TDCJ-ID employees after he was restricted to his cell for seven (7) days1 The sui t ag ainst the two other TDCJ-ID employees was

dismissedby separate order and appellant has not appealed the final dismissal as applied to them. 2 for trafficking and trading with other priso ners in violation of TDCJ-ID rules. 1 Ap pellan t sought recovery for deprivation of his constitutional rights under color of law pursuant to 42 U.S.C. § 1983. The trial court dismissed the suit as frivolous under Texas Civil Practice and Remedies Code section 13.001(b)(2) (Vernon Supp. 1998). By three points of error, appellant contends the trial court erred: (1) in failing to grant his motion for default judgment against Cogburn, (2) in denying him due process and due course of law in failing to provide him with notice and a hearing
on Cogburn’s motion to dismiss, and (3) in dismissing his claim as frivolous under section 13.001(b)(2) of the Civil Practice and Remedies Code.
Wit h rega rd to appellant’s first point of error, the record indicates that Cogburn was served with citation on August 29, 1995, andthat the Attorney General did not file an answer on her behalf until November 16, 1995. Appellant filed a motion for default judgment on September 12, 1995, but the record does not show that appellant complied with the notice requirements of section 39.001 of t he C ivil Practice and Remedies Code. Because he failed to comply with the notice requirement s of s ection 39.001, the trial court did not err in failing to grant appellant’s motion for3

default judgment. See Tex. Civ. Prac. & Rem. Code Ann. §§ 39.001 & 39.002 (Vernon 1997). Moreover, because the damages sought are unliquidated, a hearin g on t he amount of damages was required before a default judgment could be entered, andno such hearing was held. See Tex. R. Civ. P. 243. For both the aforementioned reasons, appellant’s first point of error is overruled. Turning now to appellant’s second and third points of error, the standard of review of a dismissal under Texas Civil Practice andRemedies Code Section 13.001 is whether the trial court abused its discretion. Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d113, 115 (Tex.App.--Austin 1997, writ denied). A trial court abuses its discretion if it acts arbitrarily or unreasonably, or without reference to any guiding rules and principles. Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Under section 13.001 the trial court abuses its discretion if it dismisses a c ase that has an arguable basis in law or fact. B ohannan , 942 S.W.2d at 115. However, because no evide ntiar y hearing was held in the present case, the issue is limited to whether the claim had any arguable basis in law. Id .; McDonald v. Houston Dairy, 813 S.W.2d 238, 239 (Tex.App.--Houston [1st Dist.] 1991, no writ). Appellant argues that being restricted to his cell for seven days was a deprivation of his liberty interest in violation of the4

Due Process and Due Course of Law Clauses of the federal and Texas Constitutions. It has been recognized however, that a prisoner’s liberty interest is limitedto freedoms fromrestraint which impose atypical and significant hardships on the inmate in relation to the ordinary incidents of prison life. Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 22 93, 132 L .Ed.2d 418 (1995). Due process does not protect every change in the conditions of confinement having a substantial adverse impact on an inmate. Sandin , 132 L.Ed.2d at 426. Seven days of segregatedconfinement in the instant case does not present a type of atypical, significant de privat ion in which this State has created a protected liberty interest. Sandin , 132 L.Ed.2dat 431. See also Madison v. Parker, 104 F.3d 765 (5th Cir. 1997) (where it was held that state created liberty interests in inmates are generally limited to statutes and regulations affecting the quantity of time rather than the quality of time served by the inmate and that a 30 day cell restrict ion did no t implicate due process). Because appellant had no liberty interest in not being restrictedto his cell for seven days, neither his due process, nor his due course of law rights were implicated, and the trial court correctly ruled that his claim had no arguable basis in law. Without an arguable basis in law, appellant was not entitled to an evidentiary hearing on appellee’s motion to dismiss. Moreover, appellant sought a declaratory j u dgment that the defendant(s) violated 42 U.S.C. § 1983 by depriving him of his due5

process a nd due course of law rights under both the federal an d Texas Constitutions by subjecting him to seven days confinement in his cell. In connection with his action for declaratory relief, appellant sought $1,700.00 in tort damages, however, a declaratory judgment action is not a proper procedure for the determination of tort liability . Ab or v. Black, 695 S.W.2d 564, 566 (Tex. 1985); Stein v. First Nat. Bank of Bastrop, 950 S.W.2d 172, 174 (Tex.App. --Austin 1997, no pet.). As Section 1983 violations are ordinarily consideredtorts, appellant’s declaratory judgment was an improper proceeding to establish such liability. Cf . Sylvester v. Watkins, 538 S.W.2d 827, 831 (Tex.App.--Amarillo 1976, writ ref ’d n .r.e.) (where it was held that declaratory relief ordinarily will not be grantedwhere the cause of action has fully maturedand the action invokes an appropriate present remedy at law). Consequently, the trial court did not err in finding no arguable basis in law to support appellant’s declarator y ju dgment action. Points two and three are overruled. Accordingly, the judgment is affirmed.

Don H. Reavis Justice

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