### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00094- CV

P atric k Earl Conely, App ellant

v. Texas Board of

Crim inal Ju stice e t al., Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GN-0 0049 2, H ONO RAB LE RHO NDA HURLEY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Patrick Earl Conely , an inmate confine d in the I nstitut ional Division of the Texas Depa

rtment of Criminal J ustice (TDCJ), who is appea ring pro se and in forma pauper is, appea ls the dismiss al of his suit ag ainst the Texas B oard of Criminal Justi ce and Candac e Moore. Be cause we conclude that the trial court did not abuse its discretion in dismis s i n g C o n ely ’s suit pursuant to chapte r 14 of the Texas Civil Practice and Remedies Code, we will aff irm. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (West 2002).

F ACTUAL AND P ROCEDURAL BACK GR OUND Conely filed suit in district court p u rsuant to 42 U.S.C. § 1983 (2003). Conely alleg ed that McConnell Unit librarian Candac e Moore deprive d him of his rig ht to ex er ci s e h is relig ion thro u gh h er actions rela ted to his corr espondenc e with Bill Buc holtz , a member of a J ehovah’ s Wit ness cong reg ation with w h o m Co n e ly c la im e d to have “a close relig ious rela tionship.”Conely contende d that Moore’ s conduct was in reta liation for his havin g fi l ed numerous

admi nistrative g rieva

nces ag ainst her or rela ted to her actions. Acc ording to Cone l y , M o o re ’s conduct violated his First, Four teenth, and Eig hth Amendment rig hts to fre ely exercise his relig ion, to be fre e fr om retaliation, and to due proce ss. Conely also alleg ed that Moore ’s conduc t violated the Texas Theft L iability Act, see Tex. Civ. Prac. & Rem. Code Ann. §§ 134.001-.005 (West 2011), and 18 U.S.C. § 1702 (2000), whic h makes obstruc tion of corr espondenc e a c riminal offe nse.

The defe ndants filed a motion to dismiss the suit as frivolous pursuant t o s ection 14.003 of the civil prac tice and reme dies code on the g round that the claims asser ted had no arg uable b asi s in law. See id. § 14.003. The defe ndants also moved to dismiss the suit on the g round that Conely failed to c omply

with chapter

14’s proc edura l require ments. See id. §§ 14.004, .006. The district court g rante d the motion and dismiss ed the suit with prejudice on the g round that the claims

are frivolous. Conely

perf ecte d this appeal.

DISCUSSIO N Chapter 14 of the Texas Civil Practice and Remedies Code applies to all suits, such

as this one , filed by inmates who decla re themselves unable to pa y costs. Id. § 14.002(a)

. Section 14. 0 0 3 au thorizes a trial court to dismiss an inm ate’ s claim, fil ed in forma pauper is, either before

or afte r service of proce ss occur s, if the court finds the claim to be frivolous. Id. § 14.003(a) (2). A claim is frivolous if it has no basis in law or fac t or if its rea listi c chanc e of succe ss is slight. See id. §14.003(b)( 1), (2). A claim is considere d to have no arg uable basis in law when either t h e leg al theory o n wh i ch it is based is meritless or the fac tual alleg ations on which it is based are wholly

2incre dible or irratio nal. Nabelek v. District Att’y of Harris Cnty. , 290 S.W .3d 222, 228 (Tex.

App.—Houston [14th Dis t.] 2005, pet. denied)

.

We revie w dismiss al under chapte r 14 for an abuse of discretion. L eachman

v. Dretke , 261 S.W .3d 297, 303 (Tex. App.—For t Worth 2008, no pet.). A trial court ab u s es its discretion if it acts unrea sonably or without ref ere nce to any g uiding rules or principles

. Id. We revie w de novo whether the plaintiff’s claims have no basis in law such that dismiss al on that g round is authorized. See Retzlaff , 94 S.W .3d at 6 5 3

. I n conducting our revie w, we take as true the alleg ations in the plaintiff’s petition. Scott v. Gallagher , 209 S.W .3d 262, 266 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We exa m i n e t h e cl aims asser ted and the relief reque sted to deter mine whether the petition stated a cause of action that could authorize relief

. Ha mi l t o n v. W

illiams , 298 S.W .3d 334, 339 (Tex. App.—For t Worth 2009, pet. denied). I n his second issue, Conely claims that the trial court err ed in dismiss ing his “F irst and Four teenth Amendment due proce ss claims” bro u ght pursuant to 42 U.S.C. § 1983. As an initial matter, we note that the First Amendment does not contain any due proce ss protec tions. The alleg ations Conely relied on in his petition to support his “F ourtee nth Amendment claim” are (1) as

a result of Moore’ s conduct, Buc holtz did not rec eive so m e b i b l i ca l documents that Conely was attempting to return to him, and (2) Conely did not rec eive notice from Moore, as required by the opera tions manual for the mailroom, that the stamp on his letter was re m o v ed or that his letter to Buc holtz was sent to anothe r destination. Elsewhe re in the petition, Conely alleg ed that B ucholtz did rec eive t h e l et t er he sent but appar ently not the bi blical documents. I t appea rs, t here fore , that Conely claimed to have been deprive d of a stamp and some biblical documents without due proce ss.

3Although it is not entirely clea r from his pleading s, it seems that the b i blical documents did not belong t o Conely but to Buc holtz , which is why Conely was returning them. And the stamp that Moore alleg edly confisca ted wa s one provided by Buc holtz for Conely ’s use in returning his completed lesson and the biblical documents to Buc holtz

. Assuming, howeve r, that the stamp and biblical documents did be long to Conely , the Due Proc ess Clause is not nece ssarily violated when

a prison officia l either neg lige ntly or intentionally deprive s an inmate of p ro p er t y . See Aguilar

v. Chastain , 923 S.W .2d 740, 743-44 (Tex. App.—Ty ler 1996, writ denied) (citi n g Daniels

v. W illiams , 474 U.S. 327, 328 (1986), and Hudson v. Palmer , 468 U.S. 517, 533 (1984))

. “[D]eprivations of proper ty ca u s ed b y the misconduct of state officia ls do not infring e constitutional due proce ss provided adequate state post-depriva tion reme dies exis t.” Murphy

v. Colli ns , 26 F.3d 541, 543 (5th Cir. 1994). The leg islature has provided an administrative reme dy
t o p ay inmates’ claims for proper ty lost or damag ed by the TDCJ

. See Tex. Gov’t C o d e An n . §§ 501.007, .008 (West 2004). There fore , Conely ’s alleg ation that his proper ty was confiscated does
not g ive rise to a section 1983 claim. See Murphy , 26 F.3d at 543-44; see also Aguilar , 923 S.W .2d
at 7 4 3 -4 4

. To the extent Conely complains that his due proce ss rig hts wer e violated by Moore’s failure to follow TDCJ policy , “a prison officia l’s failure to follow the prison’s own po l i ci es , proce dures or reg ulations does not constitute a violation of due proce ss, if constitutional mimina are

never theless met.” Mye rs v. Kleve nhagen , 97 F.3d 91, 94 ( 5th Cir. 1996)

. Constit utional minim a

are satisfied in this case beca use an adequate post-depriva tion reme d y was available

. See id. at 94-96; see also Aguilar , 923 S.W .2d at 744; Murphy , 26 F.3d at 543-44. Conely ’s due proce ss claim

4there fore had no arg uable basis in law, and the trial court p ro p er l y d i smissed it. We overr ule the second a ppellate issue. I n his first issue, Conely asser ts that the trial court err oneously d i s missed his reta liation claim. Prisoners have a First Amendment rig ht to be fre e from reta li at i o n for complaining ab o u t a p ri son officia l’s misconduct, and a violation of t his rig ht is actionable under 42 U.S.C. § 1983. W

oods v. Smith , 60 F.3d 1161, 1163 (5th C i r. 1 9 9 5 ). To preva il on a section 1983 re t al i ati on claim, an inmate m ust be able to establish: (1) a specific constitutional rig ht; (2) the defe ndant’s intent to reta liate ag ainst him for exercising that rig ht; (3) a reta liatory adver se act; and (4) causa tion. McD onald v . Stevard , 132 F.3d 225, 231 ( 5th Cir. 1998). Retaliation ag ainst a prisoner is actionable only if it is capa ble of deter

ring a person of o rd i nary firmness from further exercising his constit u t i o n al rig hts. Morris v. Powell , 449 F.3d 682, 686 (5th Cir. 2006), cert. denied , 549 U.S. 1038 (2006) (adopting de minimis standard in reta liation claims beca use it achie ves proper balanc e betwee n need to rec og nize valid reta liation claims and dang er of courts “embr oiling themselves in ever

y disciplinary act that occur s in state penal instit utions”). I nconseque ntial actions,

even if reta liatory , are not sufficie nt to support a reta liation claim. Id. A reta liation claim fails if the complained- of act, though motivated b y reta liatory intent, is so de minimis that it would not deter an ordina ry person f rom furthe r exercise of his rig hts. Id. I n his brief, Conely arg

ues that his petition set forth a chron o l o g y of events from which it could plausibly be inferr ed that Conely ’s past g rieva nces and lawsuits cause d M o o re to “interf ere with his relig ious activities or First Amendment rig ht to fre edom of relig ion by stopping his outgoing corr espondenc e addre ssed to his relig ious instructor, Bill Buc holtz [,] and sending it to

5another person besides Bill, and stealing or trashing his biblical documents.” The fac ts Conely relies

on to demonstrat e t h at Moore’ s conduct interfe red with his relig ious activities are that (1) Moore informed Buc holtz that, “for m at er i al g ain,” inmates with whom he corr esponded remove d the stamps he supplied them to use when returning biblical materia ls to him, (2) Moore forwa rded this letter to the “hea d elder over the cong reg ation” instead of to Buc holtz , and (3) as a result, Buc holtz

rec eived Conely ’s bible lessons and letter later tha n he would have if mailed to him directly

. Conely ’s alleg ations did not state how Moore’ s conduct, assuming it was reta liatory , preve nted him from p ra cti cing his relig ion. He did not claim that he was preve nted from

corr esponding with Buc holtz , and in fac t his pleading s indicate that their corr es p o n d ence has continued and that the cong reg ation has continued to send him self-a ddresse d stamped envelope s for that purpose. We concl u d e t h at any alleg ed reta liatory act was inconseque ntial and did not deter Conely from exercising his constitutional ri gh t t o fr eedom of relig ion. The trial court did not err i n concluding that Conely did not state a valid claim for reta liation. We overr ule the first appellate issue. 1

I n his third issue , C o n el y challeng es the trial court’s dismiss al of his claim that Moore’ s conduct is a ctionable under the theft liability act. See Tex. Civ. Prac. & Rem. Code Ann. § 134.001-.005. The alleg ations Conely relies on to support his theft claim are that (1) as a re sult

Having conclude d that the trial court did not err in dismiss ing Conely ’s section 1983 claims 1 as having no arg uable basis in law, we need not addre ss Conely ’s six th appellate issue, in which he contends that he met the minimum amount-in-controversy require ment for invoking di strict-cour t jurisdiction. See Tex. Const. art. V, §§ 8, 19; Tex. Gov’t Code Ann. § 24.007 (West 2004 & Supp. 2011). Our dispos ition also rende rs m oot Conely ’s s eventh appellate issue, i n which he contends that the trial court err ed in deny ing his reque st for a decla ration that Moore’ s conduct violated state and fe dera l law. 6of Moore’ s conduct, Buc holtz did not rec eive the biblical document s Conely was attempting to

return to him, and (2) Moore “stole or remove d a stamp for her persona l use and trashed [C onely ’s] b i b l i cal documents.” As an initial matter, the rec ord indicates that the biblical documents an d the stamp belong ed to Buc holtz or the congr egation, not to Conely

. Conely claimed to be “re turning ” the biblical documents to Buc holtz , and the stamp was provided by the cong reg ation for that purpose. Neve rtheless, even assuming the documents and the stamp belong ed to Cone ly , the trial court did not err in dismiss ing this claim as frivolou s b ec au s e Conely failed to exhaust his

a dminist rative reme dies with reg ard to his claim that Moore stole proper ty belong ing to him. Section 14.005(a) (1) of the civil prac tice and reme dies code provides that an inmate who files a claim subject
to th e TDCJ g rieva

nce sy stem must file an aff idavit or unsworn decla

ration stating the date his gri ev an ce was filed and the date he rec eived the written decision descr ibed by g overnme nt code

s ec t i o n 501.008(d). Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a) ; see Tex. Gov’t Code Ann. § 501.008(d) (inmate may not file claim until he rec eives written decision issued by highe st authority provided for in g rieva

nce sy stem or, if inmate has not rec eived written decision, until 180th day afte r date g rieva

nce was filed). I f an inmate does not strictly comply with section 14.005(a) , a trial court does not abuse its discretion in dismiss ing the claim. Brewer v. Simental , 268 S.W .3d 763, 7 6 8 (T ex. App.—Amar illo 2009, no pet.). The aff idavit of exhaustion of administrative reme d i es supplied by Conely reve als that he did not file a g rieva nce complaining of Moore’ s alleg ed theft of his proper

ty

. Rather, the g rieva

nce he fil ed com p lains only that Moore retaliated ag ainst him and interfe red with his constit u t i o n al rig hts by redire cting his corr espondenc e and notify ing the

7cong reg ation of her belief that inmat es were removing stamps from self-a ddresse d stamped

envelope s the cong reg ation had provided and then reque sting p o s t age fr o m the TDCJ indige nt prog ram. Nowher e in the grieva nce filed does C onely alleg e that Moore stole any proper ty

. This alleg ation appea

rs for the first time in Conely ’s petition. Be cause Conely failed to demonstrate that he exhausted his administrative reme dies with respe ct to his clai m t h at M o ore committed theft of his proper

ty , the trial court did not err in dismiss ing this claim. We ov er ru l e C onely ’s third appellate issue.

I n his fourth issue, Conely asser ts that the trial court err ed in failing “to continue [hi s] defa ult judgme nt hear ing.” By this issue Conely contends that he was entitled to e ntry of a defa ult judgme nt and that the trial court made a partial ruling in his favor but also stated that she would not rule until she revie wed documentat i o n d em o n strating service of citation. Be fore the defa ult judgme nt was signe d, the defe ndants filed their answe r. We understand Conely to complain that the trial court should ha

ve rende red defa

ult judg ment sooner, i.e., befor e the answe rs wer e filed. This

ar gu m ent is without merit. The trial court deter mined, and we ag ree , that Conely ’s claims are frivolous beca

use they have no arg uable basis in la w. A defa

ult judg ment is proper ly g rante d only if the fa cts set out in the petition alleg e a cause of action for which relief may be g rante d. I n such

a case , the defa

ult judgme nt conclusively establishes the defe ndant’s liability

. Morgan

v. Compugraphic Corp. , 675 S

. W.2d 729, 731 (Tex. 1984). Her e, beca use Conely ’s claims as alleg ed could not succe ed as a matter of law, the trial court would have err ed by g ranting a defa ult judgme nt. See Huynh v. Vo , No. 01-02-00295- CV, 2003 WL 1848607, at *3 (Tex. App.—Houston [1st Dist.] Apr. 10, 2003, no pet.) (mem. op.) (whe n plaintiff’s claim could not succe ed as matter of

8law, trial court err ed in rende ring judgme nt on claim). Moreove r, even when a district court ref uses to r ule on a motion for defa

ult judg ment, once an answ er ha s been f iled, any complaints reg arding the district court’s prior failure to act are rende red moot. See Palacios v. Rayburn , 516 S.W .2d 292, 294 (Tex. Civ. App.—Houston [1st Dist.] 1974, no writ) (plaintiff’s petition for writ of mandamus ag ainst trial court judge who ref used to g rant defa

ult judgme nt ag ainst non-answe ring defe ndant was rende red moot whe n defe ndant filed a nswer) . We overrule Conely ’s fourth issue. I n his fifth issue, Conely contends that the trial court’ s fa ilure to rule on pending motions was a denial of his due proce ss rig hts. Specifica lly , Conely claims that the trial court failed
to rule on his motion for defa ult judgme nt, motion for partial judgme nt on liability , motion to compel discovery , and motion to strike. The trial court may rule on a motion either expressly or implicitl y . See, e.g. , Tex. R. App. P. 33.1(a) (2) (for party to prese nt complaint for appellate revie w, rec ord must show that trial court either ruled on moti o n , expressly or implicitl y , or ref used to rule and complaining part objected to r efusa l). Her e, by g ranting the dispositi ve motion to dismiss without order ing the defe ndants to answe r discovery , the district court implicitl y denied this motion. See In the Interest of

Z.L.T

. , 124 S.W .3d 163, 165 (Tex. 2003) (conc luding that trial court implicitl y denied inmate’s reque st for bench war rant by proce eding to trial without issuing one). The t ri al co u rt ’s dismiss al of Conely ’s claims likewise i mplicitly denied the motions for default j udg ment and for partial judgme nt on liability

. Be cause we conclude that the district court eff ect i v el y ru l ed on Conely ’s motions, we overr ule his fifth appe llate issue.

CONCLUSION Having overr

uled Conely ’s appe llate issues, we a ffirm the tria l court’s judg ment.

9_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Affir med Filed: May

30, 2012

10