Court of Appeals of Texas,
Tyler.
William Espinoza PENA, Appellant
v.
David W. McDOWELL, Lennis R. Nichols, Elwin E. Hogan, Stacy Johnson, Tracie L. Shirey and Raymond E. Thompson, Appellees.

No. 12-08-00407-CV.
Oct. 30, 2009.

Appeal from the 369th Judicial District Court of Anderson County, Texas.
William Espinoza Pena, for Appellant.

Hon. Gregory W. Abbott, Mr. David E. Brice for Appellees.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.


MEMORANDUM OPINION
JAMES T. WORTHEN, Chief Justice.

*1 William Espinoza Pena, while an inmate in the Texas Department of Criminal Justice (TDCJ), proceeding pro se, filed an in forma pauperis suit against David W. McDowell, Lennis R. Nichols, Elwin E. Hogan, Stacy Johnson, Tracie L. Shirey, and Raymond E. Thompson (collectively Appellees). In three issues, Pena contends that the trial court improperly dismissed his suit with prejudice pursuant to Texas Civil Practice and Remedies Code, chapter 14. We affirm.

Background
On November 18, 2004, Pena, while incarcerated, filed an in forma pauperis civil suit against Appellees. By his suit, Pena sought damages from Appellees for violations of his civil rights. Specifically, Pena alleged that, on or about August 26, 2002, he was injured as a result of his being forced to move heavy boxes containing his personal property during an unwarranted cell transfer .FN1 Johnson did not answer or otherwise make an appearance. According to Pena, such coerced labor arose from a conspiracy by Appellees to retaliate against him for his prolific practice as a writ-writer/jailhouse-lawyer. The trial court dismissed Pena's suit pursuant to Texas Civil Practice and Remedies Code, chapter 14, and Pena appealed. By opinion delivered March 30, 2007, we affirmed the trial court's dismissal in part, reversed the trial court's dismissal in part, and remanded the case to the trial court for further proceedings.FN2

FN1. Pena previously filed a lawsuit based on this same occurrence within the two year statute of limitations. The trial court dismissed the suit with prejudice pursuant to chapter 14. We reformed the trial court's judgment to reflect a dismissal without prejudice and, as reformed, affirmed the judgment. See Pena v. McDowell, No. 12-03-00141-CV, 2004 WL 2423546, at *4 (Tex.App.-Tyler Oct.29, 2004, no pet.) (mem.op).


FN2. See Pena v. McDowell, 12-05-00116-CV, 2007 WL 949614, at *10 (Tex.App.-Tyler Mar.30, 2007, no pet.) (mem.op.). The mandate pertaining to our March 30 order issued on May 29, 2007.


On June 7, 2007, Pena filed a motion for a Spears FN3 hearing. On October 19, 2007, Pena was released from prison on parole. Thereafter, Pena was hospitalized from October 22, 2007 until April 18, 2008. On April 30, 2008, Pena filed a motion for setting.

FN3. See Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir.1985) (establishing courtroom hearing as substitute for motion for more definite statement in pro se cases), overruled on other grounds, Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989).


On July 31, 2008, the trial court conducted a status hearing. At the hearing, the trial court questioned Pena concerning what efforts he had made in the past year to determine why citation had not been issued. Pena responded that he had been hospitalized for the past year and a half, but had kept abreast with the courts and [let the court] know [his] change of address and why [he] was out of circulation. At the conclusion of the hearing, the trial court ordered that citation issue.

Citation was returned dated August 1, 2008 for each appellee except Johnson, who, according to the return, was no longer a TDCJ employee. Subsequently, Appellees FN4 answered and moved to dismiss pursuant to Chapter 14. Specifically, Appellees argued that Pena had not exercised diligence in serving them with process. Pena filed a response, but failed to specifically address Appellees' argument that he had not exercised diligence in serving them other than to aver that Appellees' argument was without grounds as a matter of fact. On September 25, 2008, the trial court dismissed Pena's suit with prejudice as frivolous pursuant to chapter 14. This appeal followed.

FN4. Johnson did not answer or otherwise make an appearance.


Service of Process, Limitations, and Exercise of Diligence
In his first, second, and third issues, Pena argues that the trial court erred in dismissing his lawsuit.FN5 We review the trial courts dismissal of an in forma pauperis suit under an abuse of discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.Waco 1996, no writ). A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any guiding rules or principles. Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex.App.Houston [1st Dist.] 1998, no pet.). The trial courts are given 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 unmeritorious claims accrues to the benefit of state officials, courts, and meritorious claimants. See Montana v. Patterson, 894 S.W.2d 812, 81415 (Tex.App.Tyler 1994, no writ). We will affirm a dismissal if it was proper under any legal theory. See Johnson v. Lynaugh, 796 S.W.2d 705, 70607 (Tex.1990); Birdo v. Ament, 814 S.W.2d 808, 810 (Tex.App.Waco 1991, writ denied).

FN5. We have construed Pena's issues liberally in the interest of justice. See, e.g., Newman v. Castro, No. 12-04-00051-CV, 2005 WL 1243418, at *1 n. 1 (Tex.App.-Tyler May 25, 2005, pet dism'd w.o.j.).


*2 Service of citation is a term that describes the formal process by which a plaintiff gives a defendant notice that it has been sued. See Texas Nat. Res. Conserv. Comm'n v. Sierra Club, 70 S.W.3d 709, 813 (Tex.2002). The purpose of the citation is to give the trial court jurisdiction over the defendant, to satisfy due process requirements, and to give the defendant the opportunity to appear and defend. See Cockrell v. Estevez, 737 S.W.2d 138, 140 (Tex.App.-San Antonio 1987, no writ).

When a suit is timely filed, as in the case at hand, but the defendant is not served until after the limitations period expires, the date of service relates back to the date of filing if the plaintiff exercised diligence in effecting service. Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex.App.-Texarkana 1997, no pet.). A plea of limitation is an affirmative defense. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.1988). Whether a plaintiff's claim is barred by limitations depends on whether the plaintiff interrupted the running of limitations. See Murray v. San Jacinto Agency, 800 S.W.2d 826, 829-30 (Tex.1990). Generally, the mere filing of a suit does not interrupt the running of limitations unless due diligence is exercised in the issuance and service of citation. Id. at 830.

It is the responsibility of the party requesting service to ensure that service is properly accomplished. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994); Aguilar v. Stone, 901 S.W.2d 955, 955 (Tex.App.-Houston [1st Dist.] 1995, no writ). It is the attorney's duty to ascertain the status and completion of citation. See Weaver, 942 S.W.2d at 169. Here, because Pena had no attorney, it was his duty. Id.

Pena was a pro se litigant during the time period that service of citation was delayed. A party proceeding pro se must comply with all applicable procedural rules. Id.; see also Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex.1978); Clark v. Yarbrough, 900 S.W.2d 406, 409 (Tex.App.-Texarkana 1995, writ denied). A pro se litigant is held to the same standard that applies to a licensed attorney. Weaver, 942 S.W.2d at 169; Brown v. Tex. Employment Comm'n, 801 S.W.2d 5, 8 (Tex.App.-Houston [14th Dist.] 1990, writ denied). No allowance is to be made for the fact that a plaintiff is not a lawyer. Weaver, 942 S.W.2d at 169; Bailey v. Rogers, 631 S.W.2d 784, 786 (Tex.App.-Austin 1982, no writ).

In the case at hand, a period of approximately fifteen months elapsed from the date of our mandate pertaining to the remand of Pena's lawsuit to the trial court until the date Appellees were served with process. The record further reflects that, during that time period, Pena was hospitalized. However, despite his hospitalization, Pena sought to obtain discovery from the office of the Attorney General and notified the court of changes of address. Yet, there is no indication from the record that Pena made any effort to have Appellees served with process. There is further no indication in the record that, during the three months following his release from the hospital, Pena made any effort to investigate why service had not been accomplished.

*3 Based on our review of the record, we conclude that Pena cannot demonstrate that he exercised diligence in having Appellees served with process. Other courts have held that periods of inactivity far shorter than that in the case before us constituted a lack of diligence as a matter of law. See, e.g., Meza v. Hooker Contracting Co., 104 S.W.3d 111, 114 (Tex.App.-San Antonio 2003, no pet.) (eight months); Webster v. Thomas, 5 S.W.3d 287, 290 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (four months); Weaver, 942 S.W.2d at 169-70 (nine months); Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex.App.-Corpus Christi 1991, no writ) (five months). As such, it follows that Pena's filing of suit did not interrupt the period of limitations.FN6 See Murray, 800 S.W.2d at 830. Therefore, we hold that the trial court did not abuse its discretion in dismissing Pena's suit with prejudice.FN7 Pena's first, second, and third issues are overruled.

FN6. See Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a) (Vernon Supp.2009) (two year limitations period for personal injury suits); see also Ali v. Higgs 892 F.2d 438, 439 (5th Cir.1990) (federal courts borrow forum state's general personal injury limitations period for section 1983 civil rights action).


FN7. Because the limitations period has expired, Pena cannot remedy the error. Therefore, the dismissal with prejudice is appropriate. See Garrett v. Williams, 250 S.W.3d 154, 160 (Tex. App-Fort Worth 2008, no pet.).


Disposition
Having overruled Pena's first, second, and third issues, we affirm the trial court's judgment.

Court of Appeals of Texas,
Tyler.
William Espinoza PENA, Appellant
v.
David W. McDOWELL, individually and in his official Capacity, et al., Appellees.

No. 12-05-00116-CV.
March 30, 2007.

Appeal from the 369th Judicial District Court of Anderson County, Texas, Bascom W. Bentley, III, Judge.
William Espinoza Pena, pro se.

Gregory W. Abbott, Garret Clarkson Higley, for appellee.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.


MEMORANDUM OPINION
SAM GRIFFITH, Justice.

*1 William Espinoza Pena, an inmate proceeding pro se, filed an in forma pauperis civil lawsuit against the Texas Department of Criminal Justice (?TDCJ?) and its employees, Captain David W. McDowell, Lieutenant Lennis R. Nichols, Officer Elwin E. Hogan, Officer Stacy Johnson, Sergeant Traci L. Shirey, and Senior Warden Raymond E. Thompson (collectively ?the Employees?). Pena appeals the trial court's order dismissing his lawsuit as frivolous and malicious pursuant to section 14.003 of the Texas Civil Practice and Remedies Code. In six issues, Pena argues that the trial court's dismissal was improper. Appellees have not filed a brief. We affirm in part, reverse in part, and remand for further proceedings.

Background
Pena is an inmate of TDCJ. Pena alleges that, while incarcerated at TDCJ's Beto Unit in Tennessee Colony, Texas, he was the subject of a conspiracy to retaliate against him for his ?prolific practice as a[n] inmate-writ-writer/jailhouse-lawyer.? According to Pena, the Employees were all part of this conspiracy.

Pena alleges that on August 26, 2002, Captain McDowell ordered Pena to move his belongings from one prison area to another as part of this retaliation. Pena allegedly informed Captain McDowell that he was a ?Disabled Vietnam ... Veteran? and that he would be unable to safely move his belongings without assistance from others or the use of a cart. Pena's requests for assistance and the use of a cart were denied, and Captain McDowell repeatedly ordered Pena to move his possessions. These orders were allegedly accompanied by profane language and threats from Captain McDowell that he would mace Pena if he did not comply. Pena complied and claims that while he was moving his belongings, he severely injured his back.

On February 11, 2003, Pena filed a lawsuit against TDCJ and the Employees in the 369th District Court of Anderson County, Texas. On February 20, 2003, without conducting a hearing, the trial court sua sponte dismissed Pena's lawsuit with prejudice, finding it to be frivolous and malicious, pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. Pena appealed the trial court's ruling. We affirmed the trial court's dismissal but reformed the judgment, making it a dismissal ?without? prejudice. Pena v. McDowell, No. 12-03-00141-CV, 2004 WL 2423546, at *4 (Tex.App.-Tyler Oct.29, 2004, no pet.) (mem.op.).

On November 18, 2004, Pena again filed a lawsuit against TDCJ and the Employees in the 369th District Court. Pena's previous lawsuit had been properly dismissed due to his failure to file a complete affidavit of previous lawsuits. Id. at *2. His new lawsuit was filed with what appeared to be a complete affidavit.FN1 On January 5, 2005, without conducting a hearing, the trial court sua sponte dismissed Pena's lawsuit with prejudice pursuant to Chapter 14, finding the lawsuit to be frivolous and malicious. This appeal followed.

FN1. Pena later discovered that this new affidavit was incomplete, but filed an amended affidavit that appears complete on its face.


Chapter 14
*2 Inmate lawsuits such as Pena's are controlled by Chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. §§ 14.001-14.014 (Vernon 2002). Chapter 14 was designed to control the flood of frivolous lawsuits being filed in the courts of this state by prison inmates, consuming valuable judicial resources with little offsetting benefit. Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268, 271 n. 1 (Tex.App.-Texarkana 2003, no pet.). The Waco Court of Appeals has noted that

[p]risoners have everything to gain and little to lose by filing frivolous suits. It costs them almost nothing; time is of no consequence to a prisoner; threats of sanctions are virtually meaningless; and the prisoner can look forward to a day trip to the courthouse. Thus, the temptation to file a frivolous suit is strong. Such suits, however, waste valuable judicial resources and subject the state and its prison officials to the burden of unwarranted litigation, preventing claims with merit from being heard expeditiously.

Hickson v. Moya, 926 S.W.2d 397, 399 (Tex.App.-Waco 1996, no writ) (citations omitted).

Section 14.003(a)(2) provides that a trial court may dismiss a claim if the trial court finds that the claim is frivolous or malicious. Tex. Civ. Prac. & Rem.Code Ann. § 14.003(a)(2). In determining whether a claim is frivolous or malicious, a trial court may consider whether (1) the claim's realistic chance of ultimate success is slight, (2) the claim has no arguable basis in law or fact, (3) it is clear that the party cannot prove facts in support of the claim, or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Id. § 14.003(b).

Dismissal Without a Hearing
In his first issue, Pena contends that the trial court abused its discretion in not conducting a hearing prior to dismissing his lawsuit. He contends that a hearing was required under Rule 165a(1) of the Texas Rules of Civil Procedure. He further contends that this omission was an abuse of discretion because he was deprived of his rights of due process of law and equal protection under the United States Constitution and of his rights under the due course of law and open courts provisions of the Texas Constitution.

When there has been no fact hearing, a trial court may dismiss a claim as frivolous or malicious under section 14.003 where the claim involved has no arguable basis in law. See Gill v. Boyd Distrib. Ctr., 64 S.W.3d 601, 603 (Tex.App.-Texarkana 2001, pet. denied). Nonetheless, Pena argues that Rule 165a(1) of the Texas Rules of Civil Procedure conflicts with section 14.003 and guaranteed him a right to a hearing. We disagree. Rule 165a governs the dismissal of civil cases for want of prosecution. See Tex.R. Civ. P. 165a. It does not govern section 14.003 dismissals of inmate litigation as frivolous or malicious. See id. Pena's argument regarding Rule 165a(1) is without merit.

*3 Pena also contends that this omission was an abuse of discretion because he was deprived of his rights of due process of law and equal protection under the United States Constitution and of his rights under the due course of law and open courts provisions of the Texas Constitution. We begin by noting that we have liberally construed Pena's brief in order to give effect to his arguments. See Tex.R.App. P. 38.9. However, a pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 677 (Tex.App.-Dallas 2004, pet. denied). If a pro se litigant is not required to comply with the applicable rules of procedure, he would be given an unfair advantage over a litigant who is represented by counsel. Greenstreet v. Heiskell, 940 S.W.2d 831, 835 (Tex.App.-Amarillo 1997, no writ).

On appeal, as at trial, a pro se appellant must properly present his or her case. Strange, 126 S.W.3d at 678. The Texas Rules of Appellate Procedure require an appellant's brief to contain ?a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.? Tex.R.App. P. 38.1(h). We have little latitude on appeal and cannot remedy deficiencies in a litigant's brief. Strange, 126 S.W.3d at 678. When an appellant does not adequately comply with Rule 38.1(h), nothing is presented for appellate review. See State v. Gonzalez, 855 S.W.2d 692, 697 (Tex.Crim.App.1993); Nguyen v. State, 177 S.W.3d 659, 669 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd).

Pena's constitutional argument consists of a single assertion that the trial court's actions were ?too harsh by any standards of law.... Such being a violation of Pena's right to due course and due process ... and deprived him of equal protection of the laws .? He cites no authority for this conclusory statement other than the Fourteenth Amendment to the United States Constitution and Article I, Sections 13 and 19 of the Texas Constitution. Because Pena has failed to provide us with an adequate substantive analysis of his constitutional arguments, he has presented nothing for our review. See Gonzalez, 855 S.W.2d at 697; Nguyen, 177 S.W.3d at 669. Pena does not contend that this case presents an issue of first impression; however, even if such an issue were presented, providing a ?discussion of analogous ... cases as well as applying said cases to the facts of the instant case is at least necessary so as to give this Court some idea as to the scope of the appellate complaint.? Bullard v. State, 891 S.W.2d 14, 15 (Tex.App.-Beaumont 1994, no writ).

We cannot conclude, based upon Pena's argument, that a hearing was required before dismissal of Pena's claims as frivolous or malicious under section 14.003. See Gill, 64 S.W.3d at 603. Therefore, we overrule Pena's first issue.

Dismissal Without Prior Notice
*4 In his second issue, Pena contends that if he was not entitled to a hearing, he was, at a minimum, entitled to prior notice before dismissal of his lawsuit. He argues that dismissal without prior notice is an abuse of discretion and bases his arguments on essentially the same grounds as he relied upon in his first issue. Likewise, Pena cites no authority for his conclusory assertion of constitutional violations other than the Fourteenth Amendment to the United States Constitution and Article I, Sections 13 and 19 of the Texas Constitution. Thus, he again fails to provide us with an adequate substantive analysis of his constitutional complaints. For the same reasons as those set forth in our discussion of Pena's first issue, we cannot conclude, based upon Pena's arguments, that prior notice was required before dismissal of Pena's claims as frivolous or malicious under section 14.003. We overrule Pena's second issue.

Dismissal Pursuant to Prison Litigation Reform Act
In his third issue, Pena argues that the trial court improperly dismissed his lawsuit pursuant to the ?three strikes rule? of the Prison Litigation Reform Act (PLRA).FN2 A review of the record shows that the trial court's dismissal of Pena's lawsuit occurred pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code, not the PLRA. The error Pena complains of did not occur. Therefore, we overrule Pena's third issue.

FN2. See 28 U.S.C.A. § 1915(g) (West, Westlaw through Apr. 1996 amendments).


Pendent Jurisdiction
In his fifth issue, Pena appears to argue that the dismissal of his state causes of action was improper because the trial court had pendent jurisdiction over these claims by way of its jurisdiction over Pena's federal claims. Therefore, the trial court was without authority to dismiss Pena's State law claims.

Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). In cases where a lawsuit contains both state and federal causes of action that derive from a common nucleus of operative facts, the doctrine of pendent jurisdiction may extend the jurisdiction of the federal courts to include those state causes of action. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349, 108 S.Ct. 614, 618, 98 L.Ed.2d 720 (1988). Unlike federal courts, Texas state district courts are courts of concurrent jurisdiction. Stringer v. Griffin Grocery Co. ., 149 S.W.2d 158, 160 (Tex.Civ.App.-Dallas 1941, writ ref'd). As such, state district courts have concurrent jurisdiction with federal courts over federal law causes of action unless that jurisdiction has been limited or abridged by other law. See id. Therefore, pendent jurisdiction, as it exists in the federal court system, did not apply to Pena's state court lawsuit. However, even if pendent jurisdiction did apply, the trial court had authority to dismiss these claims where such dismissal would otherwise be proper. See, e.g., Rheaume v. Tex. Dep't of Pub. Safety, 666 F.2d 925, 931-32 (5th Cir.1982). We overrule Pena's fifth issue.

Dismissal of Pena's Claims
*5 In his sixth issue, Pena argues that the trial court abused its discretion by dismissing his lawsuit.FN3 More specifically, Pena contends that his causes of action were not frivolous or malicious and that the trial court's dismissal was ?clearly arbitrary and erroneous ... and an abuse of discretion.?

FN3. Pena has identified only five issues in his brief. However, throughout his argument of those five issues he complains that the trial court abused its discretion by dismissing his lawsuit as frivolous or malicious. Accordingly, we consider that complaint as a sixth issue and address it separately.


Standard of Review
We review the trial court's dismissal of an in forma pauperis lawsuit such as Pena's under an abuse of discretion standard. Hickson, 926 S.W.2d at 398. A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any guiding rules or principles. Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex.App.-Houston [1st Dist.] 1998, no pet.). We will affirm a dismissal if it was proper under any legal theory. See Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex.1990). In considering the record before us, we review and evaluate pleadings of inmates proceeding pro se in civil lawsuits with liberality and patience. Foster v. Williams, 74 S.W.3d 200, 202 n. 1 (Tex.App.-Texarkana 2002, pet. denied).

Where a trial court has not held a fact finding hearing, a trial court may dismiss properly filed inmate pro se in forma pauperis claims only if they lack an arguable basis in law, Gill, 64 S.W.3d at 603, or are substantially similar to previous frivolous or malicious claims. See Tex. Civ. Prac. & Rem.Code Ann. § 14 .003(b)(4). To determine whether a trial court has properly decided that there was no arguable basis in law for an inmate's claims, we examine the types of relief and causes of action pleaded in the inmate's petition to determine whether, as a matter of law, the petition states causes of action that would authorize relief. See Spurlock v. Schroedter, 88 S.W.3d 733, 736 (Tex.App.-Texarkana 2002, no pet.). To have no arguable basis in law, a claim must be based on an indisputably meritless legal theory or the facts alleged must rise to the level of irrational or wholly incredible. Gill, 64 S.W.3d at 603. Stated another way, the pleaded facts must not comprise a cause of action. Id. at 604.

Discussion
Pena brought section 1983 civil rights claims against TDCJ and the Employees. See 42 U.S.C.A. § 1983 (West, Westlaw through Oct. 1996 amendments). Pena also brought claims against them pursuant to the Texas Tort Claims Act (the ?TTCA?). See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001-.109 (Vernon 2005 & Supp.2006). All of Pena's claims against the Employees were brought against them in both their official and individual capacities. None of Pena's claims were substantially similar to any previously filed frivolous or malicious claims.

Claims Against TDCJ Under the TTCA
Pena brought claims against TDCJ under the TTCA. Pena alleged that TDCJ negligently failed to set polices to ensure that all TDCJ correctional officers at the Beto Unit were properly trained and supervised. Pena sought money damages from TDCJ and declaratory relief condemning TDCJ's failure to set and enforce proper safety policies and declaring that Pena's injury was the result of that failure. He also sought injunctive relief ordering TDCJ to set new policies.

*6 The doctrine of sovereign immunity protects the State of Texas from lawsuits for damages in all instances where the State has not waived such immunity. Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.2001). The doctrine derives from the principle that the sovereign may not be sued in its courts without its consent. Nueces County v. Ferguson, 97 S.W.3d 205, 216 (Tex.App.-Corpus Christi 2003, no pet.). This immunity from suit deprives the trial court of subject matter jurisdiction, even if liability is undisputed. Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 248 (Tex.2002). Further, if a claim is barred by sovereign immunity, it has no arguable basis in law. Mullins, 111 S.W.3d at 272.

Under this doctrine, the State is immune from liability unless liability is waived by a constitutional or legislative provision. Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex.1994). The TTCA is one such legislative provision that waives governmental liability under certain circumstances. Seifullah v. Heaton, No. 12-02-00076-CV, 2003 WL 21998762, at *3 (Tex.App.-Tyler Aug.20, 2003, no pet.) (mem.op.). Section 101.056 excepts discretionary actions from its waiver of sovereign immunity. See Tex. Civ. Prac. & Rem.Code Ann. § 101.056. The claims presented in Pena's petition involve whether TDCJ (1) set proper policies, (2) properly trained its employees, and (3) properly supervised its employees. Deciding how to properly set policies, train employees, and supervise employees is a discretionary act. See City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex.1994) (?If an action involves personal deliberation, decision and judgment, it is discretionary; actions which require obedience to orders or the performance of a duty to which the actor has no choice, are ministerial.?). Because the omissions complained of by Pena were discretionary in nature [ ] Pena was barred by the doctrine of sovereign immunity from bringing his claims for money damages against TDCJ. See Tex. Civ. Prac. & Rem.Code Ann. § 101.056.

Pena also sought injunctive and declaratory relief. By way of injunctive relief, Pena sought to compel TDCJ to set new policies. This was an attempt to control the action of the State and was, likewise, barred by the doctrine of sovereign immunity absent a waiver of that immunity. See Short v. W.T. Carter & Bro., 133 Tex. 202, 217-18, 126 S.W.2d 953, 962 (Tex.1938). Because there had been no such waiver, Pena was barred by the doctrine of sovereign immunity from bringing his state law claims for injunctive relief against TDCJ. See Tex. Civ. Prac. & Rem.Code Ann. § 101.056. Pena's state law claims for injunctive relief had no arguable basis in law. See Mullins, 111 S.W.3d at 272.

Regarding Pena's state law claims for declaratory relief,

[t]he supreme court has been adamant ... that where a party brings a suit ostensibly to determine or protect rights but actually seeks monetary damages, sovereign immunity bars such a suit.... The supreme court has roundly condemned such actions, stating, ?private parties cannot circumvent the State's sovereign immunity from suit by characterizing a suit for money damages ... as a declaratory judgment claim.?

*7 Ferguson, 97 S.W.3d at 218 (emphasis in original) (quoting Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 856 (Tex.2002)). Pena's suit, at its heart, was a suit for money damages. In fact, Pena sought millions of dollars in compensatory damages alone. Therefore, sovereign immunity was not waived as to Pena's request for declaratory relief, and Pena was barred from bringing his state law claims for such relief against TDCJ. See Ferguson, 97 S.W.3d at 218. Pena's state law claims for declaratory relief had no arguable basis in law. See Mullins, 111 S.W.3d at 272.

Claims Against TDCJ Under Section 1983
Section 1983 provides that

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

42 U.S.C.A. § 1983. Pena's section 1983 claims against TDCJ did not comprise a valid cause of action because TDCJ, a state agency, did not qualify as a ?person? under section 1983. See Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 581 (Tex.2001). Therefore, Pena had no arguable basis in law for his section 1983 claims against TDCJ. See Conway v. Castro, No. 12-03-00373-CV, 2004 WL 1103584, at *2 (Tex.App.-Tyler May 12, 2004, no pet.) (mem.op.).

Claims Against the Employees Under the TTCA
Pena brought claims under the TTCA against the Employees for a variety of allegedly negligent acts or omissions. Pena alleged that Captain McDowell negligently failed to (1) practice and maintain proper safety, disciplinary, and administrative procedures, (2) take the necessary remedial actions to minimize Pena's injuries, (3) enter truthful statements on his employment application, (4) enter truthful statements during Pena's grievance procedure, and (5) timely inform TDCJ that he was not properly trained and supervised. Pena also alleged that Captain McDowell was negligent in his use of mace on the occasion in question. Pena brought four claims against Lieutenant Nichols, Sergeant Shirey, and Officers Hogan and Johnson. Pena alleged that each one negligently failed to (1) ensure that he or she was properly trained and supervised, (2) practice and maintain proper safety procedures, (3) take the necessary remedial actions to minimize Pena's injuries, and (4) enter truthful statements on his or her employment application. Pena also brought one claim alleging that Warden Thompson negligently failed to practice and maintain proper safety procedures. In each instance, Pena sued the Employees in both their official and individual capacities and sought money damages as well as injunctive and declaratory relief.

*8 A person sued in his official capacity enjoys the protections of sovereign immunity to the same extent as those protections are available to his employer; thus, if his employer is a governmental unit that is immune from suit under sovereign immunity, the person is also immune. Ferguson, 97 S.W.3d at 214-15. Sovereign immunity protects the state from lawsuits that are based upon vicarious liability for the tortious acts of its agents or employees. See Davis v. City of Palestine, 988 S.W.2d 854, 857 (Tex.App.-Tyler 1999, no writ). In the context of governmental units such as TDCJ, the TTCA has been interpreted as waiving sovereign immunity in three general areas: (1) the use of motor driven equipment, (2) premises defects, and (3) personal injuries arising out of the condition or use of personal property. See Mullins, 111 S.W.3d at 272. Only the last area is pertinent to this discussion. See id. at 272-74.

Regarding personal injuries arising out of the condition or use of personal property, ?use? means ?to put or bring into action or service; to employ for or apply to a given purpose.? Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 869 (Tex.2001). Generally, the nonuse of property is not considered use under the Texas Tort Claims Act. Mullins, 111 S.W.3d at 272. Waiver of sovereign immunity is further limited to situations where the injury was proximately caused by a condition or use of the property. Id. at 273 (citing Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 342 (Tex.1998)).

None of Pena's allegations against the Employees fell within the ?condition or use of personal property? waiver of sovereign immunity. As pleaded in Pena's petition, Pena's alleged injuries were caused by the actions and omissions of Captain McDowell and the other employees, not out of the condition or use of personal property. This was so even as to Pena's allegation that Captain McDowell negligently used mace. Captain McDowell's orders to Pena, along with his threats regarding the use of mace, did not constitute the use of personal property. Captain McDowell never actually put or brought the mace into action or service. Furthermore, the facts alleged by Pena contain only allegations of the threat of mace, not the use of mace. Consequently, the mace did not proximately cause Pena's alleged injuries. Therefore, the conduct alleged by Pena did not fall within the waiver of sovereign immunity in the TTCA. See Mullins, 111 S.W.3d at 272-74.

Because the Employees enjoyed sovereign immunity, Pena was barred from bringing his state law claims for money damages against them in their official capacities. See id. Pena was likewise barred from seeking the state law injunctive relief sought in his petition because seeking such relief was an attempt to control the action of the State. See Short, 126 S.W.2d at 962. Further, Pena's suit was, at its heart, a suit for money damages. Therefore, sovereign immunity was not waived in the context of Pena's requests for declaratory relief, and Pena was barred from bringing his state law claims for such relief against the Employees. See Ferguson, 97 S.W.3d at 218. Pena had no arguable basis in the law for his state law claims against the Employees in their official capacities. Mullins, 111 S.W.3d at 272.

*9 Pena also brought claims, under the TTCA, against the Employees in their individual capacities. While the Act provides for state liability for certain acts of public servants in their official capacities, it does not provide any legal basis for private actions against state employees in their individual capacities. See Spellmon v. Sweeney, 819 S.W.2d 206, 211 (Tex.App.-Waco 1991, no writ). Pena's reliance upon the Act as the basis for his state law claims against the Employees in their individual capacities constituted reliance upon an ?indisputably meritless legal theory.? See id. Pena had no arguable basis in law for these claims as pleaded. See id.

Claims Against the Employees Under Section 1983
Pena's section 1983 claims against the Employees in their official capacities did not comprise valid causes of action because the Employees, in their official capacities, are not ?persons? for the purposes of section 1983. See Petta, 44 S.W.3d at 581. Therefore, Pena had no arguable basis in law for his section 1983 claims against the Employees in their official capacities. See Conway, 2004 WL 1103584, at *2.

Pena also alleged section 1983 claims against the Employees in their individual capacities. Pena brought essentially one claim against the Employees: that the Employees were allegedly part of a conspiracy to deprive him of constitutional rights and that the acts and omissions of these conspirators did, in fact, effectuate such a deprivation. Pena pleaded that the Employees were working together in an effort to retaliate against Pena for exercising his right to redress the government on behalf of himself as well as other inmates .FN4 Their efforts, as pleaded, included, among other things, ordering Pena to move an unsafe amount of personal possessions, failing to act to circumvent these unsafe orders, failing to take the necessary remedial actions to minimize Pena's injuries, and participating in a coverup of the incident in question.

FN4. See Buise v. Hudkins, 584 F.2d 223, 229-31 (7th Cir.1978) (discussing the limited, but existent, constitutional protection afforded a ?jailhouse lawyer.?).


Because petitions of prison inmates are to be construed liberally, we hold that Pena's pleaded section 1983 claims against the Employees in their individual capacities for money damages and declaratory judgment were facially valid causes of action which, if proved, would authorize relief. See 42 U.S.C.A. § 1983. Therefore, these claims had an arguable basis in law. See Spurlock, 88 S.W.3d at 736. Pena's claims for injunctive relief, however, were barred by the doctrine of sovereign immunity because, at their essence, these claims sought to control the action of the State. See Short, 126 S.W.2d at 962. Therefore, they did not have an arguable basis in law. See Mullins, 111 S.W.3d at 272-74.

We hold that the trial court abused its discretion by dismissing Pena's section 1983 claims for money damages and declaratory relief against the Employees in their individual capacities. Our holding does not mean that Pena will prevail on his claims or that he can avoid summary judgment. Further, our holding does not mean that Pena's petition is not subject to special exceptions. We merely hold that dismissal of these claims was improper.

Conclusion
*10 The trial court abused its discretion by dismissing Pena's section 1983 claims for money damages and declaratory relief against the Employees in their individual capacities. All other claims asserted by Pena against TDCJ or the Employees lacked any arguable basis in law and were properly dismissed. We sustain in part, and overrule in part, Pena's sixth issue.

Dismissal with Prejudice
In his fourth issue, Pena contends the trial court erred in dismissing his suit with prejudice. Dismissal with prejudice constitutes an adjudication on the merits and operates as if the case had been fully tried and decided. Mossler v. Shields, 818 S.W.2d 752, 754 (Tex.1991). Generally, the proper remedy when a court lacks subject matter jurisdiction is to dismiss the case without prejudice. Mullins, 111 S.W.3d at 274. However, when a dispositive defect cannot be remedied, dismissal with prejudice is proper. See Hickman v. Adams 35 S.W.3d 120, 124 (Tex.App.-Houston [14th Dist.] 2000, no pet.).

The trial court should not have dismissed Pena's section 1983 claims for money damages and declaratory relief against the Employees in their individual capacities. All other claims asserted by Pena lacked any arguable basis in law and were properly dismissed. Further, these dispositive defects cannot be remedied by the amendment of Pena's pleadings. Therefore, to the extent that the trial court's dismissal was proper, dismissal with prejudice was also proper. See id. We sustain in part, and overrule in part, Pena's fourth issue.

Disposition
We affirm the trial court's dismissal with prejudice of Pena's claims against TDCJ; his TTCA claims against the Employees, in both their official and individual capacities; and his section 1983 claims against the Employees in their official capacities. We reverse the trial court's dismissal of Pena's section 1983 claims for money damages and declaratory relief against the Employees in their individual capacities. Finally, we affirm the trial court's dismissal with prejudice of Pena's section 1983 claims for injunctive relief against the Employees in their individual capacities. We remand this case to the trial court for further proceedings.