### NUMBER 13 - 1 5 - 00 324 - C V 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

TRACEY W. MURPHY , Appellant ,
v. CHRISTOPHER PAULEY, ET AL. , Appellee s .

On appeal from the 343rd District Court

of Bee County, Texas.



## MEMORANDUM OPINION Before Justices Benavides , Perkes , and Longoria Memorandum Opinion by Justice Longoria Appellant Tracey Murphy is an inmate housed in the Texas Department of Criminal Justice

— Institutional Division (TDCJ

— ID). Murphy brought suit against Christopher Pauley, Maria Ramirez, Mich a e l Alsobrook, Dacho Ongudu, and Joe Fernandez, all employed by the TDCJ

— ID, in their individual capacities for retaliatory acts and violations2

of his due process rights under the Fourteenth Amendment. See U.S. C ONST

. amend. XIV; 42 U.S.C § 1983 (2015) (West, Westlaw through P.L. 104

- 317) . The trial court dismissed all of Murphy’s claims against defendants. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 14.003(a)(2) (West, Westlaw through 2015 R.S.). Murphy argues on appeal that the trial court erred by dismissing his case as frivolous pursuant to Chapter 14. We affirm.
I. B ACKGROUND On March 24, 2014, Murphy approached Sergeant Fe rnandez for help in contacting Lieutenant Pauley to obtain “emergency legal stamps” from the commissary. Murphy needed to mail papers to meet a filing deadline for a criminal case against him

. Murphy claims that Fernandez refused to call in his request. While in the recreation yard, Murphy asserts that he saw Lieutenant Pauley and approached him directly about obtaining stamps. According to Murphy, Pauley cursed and exclaimed that he does n o t care about Murphy’s legal problems and that he would n o t be g etting any special treatment. Murphy claims that he then told Lieutenant Pauley that he did not appreciate the cursing or treatment he received , and he further told Pauley that he would be filing a grievance claim against him . Murphy then claims that Lie utenant Pauley had Officer Ongudu file a false incident report against Murphy. The report asserted that Murphy refused to obey Officer Ongudu’s order to go inside the building and cursed at Ongudu. The report was submitted to Major Alsobrook, who Murphy argues allowed Pauley to preside at the disciplinary hearing, even though Pauley should not have been allowed to preside since he had been involved in the incident. As a result of the disciplinary action , Murphy received a thirty

- day commissary restrictio n, a thirty

- day recreation restriction, and a ten

- day cell restriction. However, the3

disciplinary action was subsequently dismissed. Murphy filed a step one grievance with Assistant Warden Ramirez, claiming that Pauley, Fernandez, Ongudu, and Alsobrook d enied him due process during the disciplinary case and for taking retaliatory acts (filing an allegedly false report) against him for threatening to file a complaint against Pauley. Ramirez denied the appeal. Murphy filed a step two grievance, which was also denied. Thereafter, Murphy filed suit against all defendants. After a hearing, the trial court held that: (1) the injuries sustained from the alleged retaliatory acts were de minimus ; (2) Murphy’s asserted inmate privileges in this case are not protected liberty interests under § 1983; and (3) all of the Defendants were entitled to qualified immunity. Accordingly, the trial court dismissed the case as frivolous. This appeal followed

. II. C HAPTER 14 D ISMISSAL Murphy argues on appeal that it was an abuse of discretion to dismiss his case as frivolous because: (1) he suffered more than a de minimus injury; (2) his due process rights were violated under § 1983; and (3) the defendants were n ot entitled to qualified immunity. A. Standard of Review We review a dismissal under Chapter 14 for an abuse of discretion. Moreland v. Johnson , 95 S.W.3d 392, 394 (Tex. App.

— Houston [1st Dist.] 2002, no pet.). A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any guiding principles or rules. Brewer v. Collins, 857 S.W.2d 819, 822 (Tex. App.

— Houston [1st Dist.] 1993, no writ). Trial courts have broad discretion in dismissing a case under Chapter 14 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) the4

dismissal of unmeritorious claims accrues to the benefit of state officials, courts, and merit orious claimants.” Retz laff v. Tex. Dep’t of Criminal Justice , 94 S.W.3d 650, 653 (Tex. App.

— Houston [14th Dist.] 2002, no pet.).
B. Applicable Law A court may dismiss a claim that is frivolous or malicious. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 14.003(a)(2). In determining whether a claim is frivolous or malicious, the court may consider, among other factors, whether the claim has no arguable basis in law or in fact. See id. § 14.003(b). “Prisoners have a First Amendment right to be free fr om retaliation for complaining about a prison official's misconduct, and a violation of this right is actionable under 42 U.S.C. § 1983.” Institutional Div. o f Tex. Dep’t of Criminal Justice v. Powell , 318 S.W.3d 889, 892 (Tex. 2010). To state a valid cl aim for retaliation under 42 U.S.C. § 1983, a prisoner must allege (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation. S ee Powell , 318 S.W.3d at 892. Under the third prong, the inmate must show that he suffered a retaliatory adverse act that would “chill or silence a person of ordinary firmness from future First Amendment activities.” Morris v. Powell , 449 F.3d 682, 685

– 86 (5th Cir. 2006). In other words, “acts of retaliation that are de minimis do not satisfy the ‘retaliatory adverse act’ requirement.” See Powell

, 318 S.W.3d at 892. Examples of injuries that are more than de minimus and meet the retaliatory adverse act requirement would be: transferring the inmate to a more dangerous prison; subjecting the prisoner to subzero temperatures for several hours; or5

confiscating more than $11,000 of the inmate’s personal property. See Powell, 318 S.W.3d at 892. C. De Minimus In jury It is Murphy’s assertion that the defendants retaliated against him for exercise of his First Amendment right to complain about a prison official’s conduct by instructing Ongudu to write a false incident report . Murphy alleges that the retaliation occurred because Murphy threatened to file a complaint against Lieutenant Pauley for failure to assist him in obtaining legal stamps. Murphy claims emotional distress resulting from the disciplinary action and the ev ents that transpired. Assuming without deciding that the defendants’ acts were retaliatory, we still cannot conclude that Murphy’s injuries were more than de minimus , nor can we conclude that the defendants’ retaliatory motive was the but

- for cause of the disciplinary case against Murphy. Murphy admits that the disciplinary charge against him was ultimately dismissed. A single allegedly “retaliatory disciplinary charge that is later dismissed is insufficient to serve as the basis of a § 1983 action” and t hus counts as a de minimus injury. Powell , 318 S.W.3d at 892. Also, w e cannot conclude that the harm Murphy suffered would “chill or silence a person of ordinary firmness from future First Amendment activities.” Morris , 449 F.3d at 685. Murphy’s injuri es, if any, were de minimus. See id. Furthermore, even though Murphy contends that he did not curse at the officer, he does not deny that he ignored Officer O n gudu’s order to go inside. Only “some evidence” is required to support a disciplinary charge . S ee Espinoza v. Benoit , 108 Fed. Appx. 869, 871 (5th Cir. 2004). The testimony that Murphy disobeyed an officer is “some evidence , ” and thus Murphy has not shown that the disciplinary action would not have occurred but

-6

for the defendants’ alleged retaliato ry motives because there ex ists a perfectly legitimate reason for the disciplinary action taken against Murphy. See id. Murphy’s § 1983 retaliation claim fails because it has no arguable basis in law or fact. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 14.003(b)

. We overrule Murphy’s first issue.
III. D UE P ROCESS Murphy also claims that his due process rights were violated during the disciplinary procedure against him. More specifically, he argues that the defendants’ failure to properly investigate the facts that gave rise to his disciplinary case and having Lieutenant Pauley preside over the disciplinary hearing itself violated his due process rights. Even though due process is available to prisoners, the minimal due process procedures that are required for more severe actions such as the loss of good time are not required “for the imposition of lesser penalties such as the loss of privileges.” Wolff v. McDonnell , 418 U.S. 539, 556 (1974). For a prison disciplinary hearing, due process requires that th e inmate receive “ advance, written notice of the charges; a written statement by the factfinder as to the evidence upon which it relies as well as to the reasons for the action taken; and the right to present evidence, subject to reasonable restrictions ne cessary to maintain order within the penal institution .” Id. at 563. Murphy does not claim he was denied any of these due process rights. Murphy asserts alleged violations of TDCJ

— ID policies, but that alone is not a sufficient § 1983 claim. See id

. In addition, the liberty interests protected under the Fourteenth Amendment are generally limited to those that impose atypical or significant hardship. S ee Wanzer v. Garcia , 299 S.W.3d 821, 827 (Tex. App.

— San Antonio 2009 , pet. denied ) ; see also Kennedy v. Keith , No. 04

- 99

- 00100

- CV , 2000 WL 31865 , at *1 (Tex. App.

— San Antonio7

2000 , no pet. ) (memo. op.) (holding that an inmate receiving a fifteen

- day cell restriction and forty

- five day recreation and commissary restrictions was not an actionable claim under § 1983 because it did not involve “atypical or significant” hardships protected by due process rights ). Thus, we conclude that the trial court did not err in finding that Murphy’s privileges were not protected under the Fourteenth Amendment . We overrule Murphy’s second issue. Having concluded that Murphy’s injuries were de minimus and that his due process rights were not violated, we need not address Murphy’s immunity argument. See T EX

. R. A PP

. P. 47.1. Even if we agreed with Murphy that the defendants were not entitled to qualified immunity, we have already concluded that Murphy’s retaliation and due process claims have no arguable basis in law or fact. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 14.003(b)

. Therefore, we conclude that the trial court did not abuse its discretion in dismissing Murphy’s claims as frivolous.
IV. C ONCLUSION We affirm the trial court’s judgment.

Nora L. Longoria Justice Delivered and filed the 26th day of May , 201 6

.