Opinion
No. 04-03-00269-CV
Delivered and Filed: April 6, 2005.
Appeal from the 334th Judicial District Court, Harris County, Texas, Trial Court No. 01-42336, Honorable J. Dale Wainwright, Judge Presiding.
Affirmed in Part; Reversed and Remanded in Part.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Inmate Ivo Nabelek appeals the trial court's order finding him to be a vexatious litigant in his suit against the prison system and prison officials for denying him educational loan assistance. We affirm the trial court's dismissal of Nabelek's suit against the Texas Board of Criminal Justice, the Texas Department of Criminal Justice, and the Texas Department of Criminal Justice — Institutional Division and in all other respects reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.
Factual and Procedural Background
Nabelek's complaint alleges that he attended college classes by virtue of educational loans provided by the Texas Department of Criminal Justice — Institutional Division (TEXAS DEPARTMENT OF CRIMINAL JUSTICE — INSTITUTIONAL DIVISION) before 1988. On June 1, 1988, however, the TEXAS DEPARTMENT OF CRIMINAL JUSTICE — INSTITUTIONAL DIVISION, the Division of Continuing Education, and the Board of Criminal Justice enacted Policy No. 1.04.1, entitled "Student Eligibility," which provides "[t]he offender must not have a verified Immigration and Naturalization or felony detainer. Offenders in this category may participate on a space available basis if they pay all reimbursable costs at registration." Under this policy, Nabelek, as a resident legal alien with an Immigration and Naturalization detainer, is no longer eligible for educational loans; and he cannot pay for the classes because he is indigent. Seeking redress, Nabelek filed this suit against the defendants, "in their official capacities only" alleging Policy No. 1.04.1 violates his state and federal statutory and constitutional rights to equal protection and due process and constitutes a breach of an implied contract and fraud. Nabelek seeks "prospective injunctive and declaratory relief only."
In response to Nabelek's suit, the defendants filed their "Original Answer, Special Exceptions, Motion to Have Plaintiff Determined as [sic] a Vexatious Litigant, Motion to Dismiss, and Notice of Submission." In its motion to determine Nabelek a vexatious litigant under chapter 11 of the Texas Civil Practices and Remedies Code, the State alleged "there is no reasonable probability that [Nabelek] will prevail in the litigation against the defendant" and that Nabelek, "in the seven-year period immediately preceding the date" the defendants filed their motion, "ha[d] commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that" were:
(A) finally determined adversely Nabelek;
(B) permitted to remain pending at least two years without having been brought to trial or hearing; or
(C) determined by a trial or appellate court to be frivolous or groundless under state or federal laws or rules of procedure;
Tex. Civ. Prac. Rem. Code Ann. § 11.054(1) (Vernon 2002)). The trial court, "after considering the pleadings of the parties," granted the defendants' motion and dismissed "Nabelek's due process and equal protection claims . . . with prejudice as frivolous." The trial court also found Nabelek "to be a vexatious litigant," ordered the clerk "to refuse the filing of any litigation presented by Ivo Nabelek unless he obtains an order from the local administrative judge permitting the filing," and "prohibited [Nabelek] from filing, in propria persona, any new litigation in a court in this state."
Nabelek appealed. His brief contains the following eleven issues:
1. the trial court erred in determining Nabelek to be a vexatious litigant under chapter 11 of the Texas Civil Practices and Remedies Code;
2. the trial court deprived Nabelek of his due process rights by scheduling and conducting the vexatious litigant hearing without notice to Nabelek, without bench warranting him to the hearing, and without preserving the reporter's record;
3. the trial court erred in ordering the trial court clerk to refuse any filing by Nabelek without permission of the local administrative judge;
4. the trial court erred in issuing an order prohibiting Nabelek from filing any new litigation in a Texas court in propria persona;
5. the trial court erred in denying Nabelek's motion to proceed in forma pauperis
Although this issue, as stated in Nabelek's brief, also encompasses the trial court's denial of his motion to suspend the rules, he concedes "[t]he denial of [his] motion to suspend the rules is `moot' and irrelevant."
6. the trial court erred in granting temporary orders;
7. the trial court erred in dismissing Nabelek's claims as time barred;
8. the trial court erred in dismissing Nabelek's claims for noncompliance with sections 14.004 and 14.005 of the Texas Civil Practices and Remedies Code;
9. the trial court erred in granting the defendants' motion to dismiss without a hearing, with prejudice, and as frivolous;
10. the trial court erred in dismissing all of Nabelek's claims without a hearing on the claims;
11. the trial court erred in dismissing all of Nabelek's claims without addressing the merits of the claims.
The State's brief argues the trial court correctly granted the defendants' motion to dismiss Nabelek's suit under chapter 14 of the Texas Civil Practices and Remedies Code and thus responds only to Nabelek's eighth and ninth issues.
Vexatious Litigant
Nabelek first contends the trial court erred in determining Nabelek to be a vexatious litigant, because the State failed to prove that Nabelek, "in the seven-year period immediately preceding the date" the defendants filed their motion, "ha[d] commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that" were:
(A) finally determined adversely Nabelek;
(B) permitted to remain pending at least two years without having been brought to trial or hearing; or
(C) determined by a trial or appellate court to be frivolous or groundless under state or federal laws or rules of procedure;
Tex. Civ. Prac. Rem. Code Ann. § 11.054(1) (Vernon 2002)). Relatedly, in his second issue, Nabelek contends the trial court deprived Nabelek of his due process rights by scheduling and conducting the vexatious litigant hearing without notice to Nabelek, without bench warranting him to the hearing, and without preserving the reporter's record.
Standard of Review
We review a trial court's determination that a plaintiff is a vexatious litigant under an abuse of discretion standard. Devoll v. State, No. 04-03-00920-CV, 2004 WL 2671709, at *3 (Tex.App.-San Antonio, Nov. 24, 2004, no pet.).
Discussion
The State's motion to dismiss pursuant to chapter 11 alleged that "Nabelek has previously brought nine (9) litigations — each of which were brought within the past seven years: two (2) of which have remained on the court's docket for longer than two years and three (3) of which were dismissed as frivolous by either a state or federal court with competent jurisdiction. To date, [Nabelek] has never prevailed." The State alleged the "nine litigations" were those set forth in Nabelek's Unsworn Declaration of Previous Filings at 1-3, which are as follows:
1. Nabelek v. City of Houston, et al., No. 1998-25891, in the 113th Judicial District Court of Harris County, Texas
2. Nabelek v. C.O. Bradford, et al., No. 1999-38380, in the 129th Judicial District Court of Harris County, Texas
3. Nabelek v. Knight, No. 1998-39503
4. Nabelek v. Scott, No. H-00-3396, in the United States District Court for the Southern District of Texas, Houston Division
5. Nabelek v. Garrett, No. 2000-58444, in the 189th Judicial District Court of Harris County, Texas
6. Nabelek v. Powers, No. 2001-31889, in the 133rd Judicial District Court of Harris County, Texas
7. Nabelek v. Texas Board of Pardons and Paroles, et al. (cause number and court not yet assigned)
8. Nabelek v. Stradford, et al. (cause number and court not yet assigned)
9. Nabelek v. District Attorney of Harris County, Texas (cause number and court not yet assigned)
The State further alleged the first and third of these "litigations" had remained on the court's docket for longer than two years, while the fourth, fifth, and seventh had been dismissed as frivolous. However, these assertions were not supported by documentary proof or verification. In his response, Nabelek admitted that two cases had been pending more than two years without having been brought to trial; but he asserted one of the cases had been pending for more than two years because the defendant Knight had disappeared, while in the other Nabelek's motion for summary judgment had been denied and the City's motion for summary judgment remained pending. Nabelek also admitted that two cases had been dismissed as frivolous; but, he argued, the judgments in these cases could not be considered for purposes of section 11.054(1)(A) because neither was a final judgment since both were on appeal. Nabelek thus specifically denied that five cases had been pending for more than two years or dismissed as frivolous. In short, Nabelek argued, "because only one (1) case out of nine (9) would fall under the criteria under Chapter 11 to determine whether Nabelek is [a] vexatious litigant, and the rules require at least five (5) cases, Nabelek COULD NOT BE FOUND UNDER THE CIRCUMSTANCES TO BE A VEXATIOUS LITIGANT." Nabelek thus concluded that "Defendants' motion to find Nabelek to be a vexatious litigant is without merit and should be denied." Unlike the State's motion, Nabelek's response certifies "under penalty of perjury" that it is true and correct. It thus appears that Nabelek's response raised a fact issue that could be resolved only in an evidentiary hearing. See Tex. Civ. Prac. Rem. Code Ann. § 11.053(a) ("On receipt of a motion under Section 11.051, the court shall , after notice to all parties, conduct a hearing to determine whether to grant the motion.") (emphasis added); § 11.055(a) ("A court shall order the plaintiff to furnish security for the benefit of the moving defendant if the court, after hearing the evidence on the motion , determines that the plaintiff is a vexatious litigant.") (emphasis added). But the record does not establish that such a hearing was ever held.
The State's answer is supported by its attorney's verification; but the verification encompasses only the statements made in the State's "Original Answer and Special Exception."
The record does contain the State's notice of submission, setting a hearing for October 12, 2001, at 10:00 a.m. However, Nabelek objected to this setting because it did not comply "with the statutory and Local rules, in that it did not provide [him] with at least 10 days notice to respond." Nabelek asked that the court "vacate any and all previously entered orders and issue new ones upon the proper notice of submission. . . ." In any event, the trial court's order finding Nabelek to be a vexatious litigant was not signed until July 5, 2002; and its terminology does not indicate that a hearing was held on October 12, 2001 or any other date. Accordingly, the fact issue raised by Nabelek's response remained unresolved.
Because the record does not establish the State met its burden to establish that Nabelek was a vexatious litigant, we vacate the trial court's vexatious litigant order.
Motions to Proceed In forma Pauperis
Nabelek next argues the trial court erred in denying Nabelek's motion to proceed in forma pauperis on the basis that "inter alia, plaintiff's claims may be litigated in one of the other nine cases he has pending." We agree. Rule 145 expressly contemplates that a trial court may require a party who files an affidavit of indigency to pay costs "[i]f the court shall find at the first regular hearing in the course of the action that the party (other than a party receiving a governmental entitlement) is able to afford costs." See Tex. R. Civ. P. 145(1). The record contains no such finding. And neither the rule nor any case law that we have found permits a trial court to require a party to pay costs because his claims may be litigated elsewhere. We therefore vacate the trial court's order denying Nabelek's motion to proceed in forma pauperis.
Temporary Orders
Nabelek next argues the trial court erred in granting temporary orders. As Nabelek recognizes, the original clerk's record does not contain any temporary orders; and the only indication in the record that temporary orders were signed appears on a "Justice Information Management System Civil Court Activity General Inquiry" form. Nabelek thus asks that we "determine the extent of any error or abuse of discretion by the trial court in regards to granting those `temporary orders', if any." We have obtained a supplemental record containing a copy of the "temporary orders" from the Harris County District Clerk and ascertained that it is the order we vacated in the preceding paragraph.
Dismissal — Limitations
Nabelek next argues the trial court erred in dismissing his claims and suit as "time barred," because he pleaded fraud, which is subject to a four-year, rather than two-year, statute of limitations. We recognize Nabelek pleaded that "Defendants further committed a fraud when they entered into contract with Nabelek on [the] pretext of providing him with the loans for his degree plan to complete the same, when they deceived him and later deprivded [sic] [him] of such results and loans." However, this allegation falls far short of pleading a fraud cause of action. See Formosa Plastics Corp. USA v. Presidio Eng'rs and Contractors, Inc., 960 S.W.2d 41, 47-48 (Tex. 1998) ("A fraud cause of action requires `a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth, which was intended to be acted upon, which was relied upon, and which caused injury.'"). Nabelek's mere use of the word "fraud" in his petition is insufficient to defeat the defendants' statute of limitations argument.
Nabelek next argues that, "if the claims were time barred, the trial court then lacked jurisdiction to consider them and had to dismiss for `want of jurisdiction', not as frivolous or with denial of the claim." This is incorrect. If a claim is time barred, the proper disposition is a take-nothing judgment against the pleader. See, e.g., Flour Bluff Indep. Sch. Dist. v. Bass, 133 S.W.3d 272, 274 (Tex. 2004) (because plaintiff's cause of action was barred by limitations, the court rendered judgment that the plaintiff take nothing).
Nabelek next argues "the Defendants' claim that [Nabelek's] claims were untimely for alleged non-compliance with Section 14.005, Texas Civ. Prac. Rem. Code, was incorrect and without merit," because "[t]he Section applies only to a claim. . . . `that is subject to the grievance system'"; and Nabelek's "issues and claims were not subject to the . . . grievance procedures," as evidenced by the Offender Grievance Form, which states that the claims Nabelek asserts in this lawsuit are "not grievable." We agree. By its terms, section 14.005 applies only to claims that are subject to the grievance system; and the Offender Grievance Form establishes that Nabelek's claims are not subject to the grievance system.
Finally, Nabelek argues "the two (2) year statutory time limitation for torts and § 1983 [claims] . . . does not apply," because "[t]he claims arise out-of `continuing and on-going violations and deprivations' subject to the exception to the limitation periods under the law." In support of his argument, Nabelek cites Wise v. New York City Police Dept., 928 F. Supp. 355 (S.D.N.Y. 1996), in which the court rejected the defendants' argument that "only events that occurred after March 25, 1990 can be used as part of [the plaintiff's] equal protection claim because any earlier alleged incidents of harassment are barred by the statute of limitations." Id. at 366. The court held "the continuing violation doctrine applies" since the plaintiff had "presented sufficient evidence to raise a triable issue of fact concerning whether the Department had a policy and practice of discrimination." Id. at 367. As the Wise Court explained, "[t]he continuous violation doctrine typically applies to situations where there are specific discriminatory policies or mechanisms, such as discriminatory seniority lists or employment tests." Id. at 366. This of course is precisely what Nabelek alleges — Policy No. 1.04.1 governing inmate eligibility for educational loans constitutes a specific policy that discriminates against legal aliens on a continuous and on-going basis. And, as noted above, the defendants have not favored us with any briefing on the limitations issue. Because Nabelek pleaded the continuing violation doctrine, and it appears applicable, we hold the trial court erred in dismissing Nabelek's claims as time-barred, if it did so.
Section 14.004
Nabelek next argues the trial court erred in dismissing his suit "with prejudice and as frivolous for alleged non-compliance with . . . Section 14.004 . . ., Texas Civil Practice and Remedies Code." We again agree.
In their motion to dismiss, the defendants argued that Nabelek's "suit" failed to comply with sections 14.004(a)(2) and 14.004(b). Section 14.004 provides as follows:
(a) An inmate who files an affidavit or unsworn declaration of inability to pay costs shall file a separate affidavit or declaration:
(1) identifying each suit, other than a suit under the Family Code, previously brought by the person and in which the person was not represented by an attorney, without regard to whether the person was an inmate at the time the suit was brought; and
(2) describing each suit that was previously brought by:
(A) stating the operative facts for which relief was sought;
(B) listing the case name, cause number, and the court in which the suit was brought;
(C) identifying each party named in the suit; and
(D) stating the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise.
(b) If the affidavit or unsworn declaration filed under this section states that a previous suit was dismissed as frivolous or malicious, the affidavit or unsworn declaration must state the date of the final order affirming the dismissal.
(c) The affidavit or unsworn declaration must be accompanied by the certified copy of the trust account statement required by Section 14.006(f).
Tex. Civ. Prac. Rem. Code Ann. § 14.004 (Vernon 2002). However, much of the information required by sections 14.004(a)(2) and 14.004(b) is in fact contained in Nabelek's original unsworn declaration. And Nabelek's First Supplemental Pro Se Unsworn Declaration of Previous Filings provides still more information. As Nabelek explained in his response to the defendants' motion to dismiss, at the time Nabelek filed his first supplemental affidavit, the defendants had not yet been served and thus were not yet parties to the suit; accordingly, Nabelek was not required to serve and did not serve the defendants with a copy of the declaration. In its brief on appeal, the State argues the trial court correctly dismissed Nabelek's suit because Nabelek's declaration of previously-filed lawsuits "stated he had filed only six previous lawsuits," while the State's investigation revealed "at least eight other cases." The State's assertion may well be true; but, as discussed above, so far as the record before us is concerned, it is just that — an assertion — that is not proved by the record.
For instance Nabelek's declaration supplies the following information for the first-listed suit:
1) Ivo Nabelek v. City of Houston, et.al.; No. 1998-25991; 113th District Court of Harris County, Texas; Parties: Lee F. Brown, Mayor, City of Houston; C.O. Bradford, Chief, City of Houston Police Department; City of Houston Police Department; City of Houston; City of Houston Inventory Department; Bill N. Aldrich, City of Houston Investigator; — Defendants
Civil Action under Texas TOrt [sic] and Theft Liability Acts, and 42 U.S.C. § 1983, for negligence, theft, conspiracy to commit theft, unlawful conversion of property, due process, First Amendment, recovery and deprivation of property, and other violations;
Status: pending;
For instance, for the first-listed suit, Nabelek's first supplemental declaration adds the following:
Status: Case pending settlement negotiations after hearing on motions for summary judgment; Court denied Plaintiff's motion for summary judgment on Defendants' liability only; No ruling on Defendants['] motion for summary judgment; The case is up for the Court's trial schedule; Pending resolution of the similar cause pending in the 129th Court and on appeal from summary judgment motions;
The State also argues that the trial court correctly dismissed Nabelek's suit because his declaration of previously-filed lawsuits failed to state the date of the orders affirming the dismissals of his suits as frivolous or malicious, as required by section 14.004(b). However, Nabelek's first supplemental declaration states that two of his suits had been dismissed as frivolous and lists the dates of the orders. The State concludes this section of its brief as follows:
Nabelek v. Scott, No. H-00-3396, in the Southern District Court of Texas, Houston Division, and Nabelek v. Garrett, No. 2000-58444, in the 189th Judicial District Court of Harris County, Texas.
Because the "supplemental filing required by Section 14.004 . . . is an essential part of the process by which courts review inmate litigation . . . a court [may] dismiss a suit that is filed without the affidavit or declaration." Hickson v. Moya, 926 S.W.2d 397, 399 (Tex.App.-Waco 1996, no writ).
We do not disagree. However, as set forth above, Nabelek filed an original declaration the same day he filed suit and two supplemental declarations long before the trial court dismissed his suit; and these declarations, taken together, comply with section 14.004. We therefore hold the trial court erred in dismissing Nabelek's suit for failing to comply with section 14.004.
Frivolous
Finally, Nabelek argues the trial court erred dismissing his suit with prejudice as frivolous. We agree in part.
In their motion to dismiss, the defendants sought dismissal of Nabelek's suit as frivolous on three grounds: (1) Nabelek's failure to sue a "person" within the meaning of section 1983 because neither the individual defendants in their official capacities nor the Board of Criminal Justice are; (2) as an "illegal alien" Nabelek has no due process or equal protection right to state subsidized educational loans; and (3) limitations. We rejected the limitations issue above. We now consider the defendants' first and second grounds for dismissal.
Contrary to the premise of the defendants' second ground, Nabelek is not an illegal alien; he is a resident alien. "The Fourteenth Amendment, as well as the Fifth Amendment, protects every alien within the jurisdiction of the United States from deprivation of life, liberty, or property without due process of law." Jackson v. S.P. Leasing Corp., 774 S.W.2d 673, 675-76 (Tex.App.-Texarkana 1989, writ denied) (citing Yang Sung v. McGrath, 339 U.S. 33, 48-51 (1950)). We therefore hold the trial court erred in dismissing Nabelek's suit on this ground, if it did so.
It is true that "[n]either a State nor its officials acting in their official capacities are `persons' under section 1983." Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). However, Nabelek sued the "defendants in their official capacities only for purposes of prospective injunctive and declaratory relief only." And, as Nabelek points out, "a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because `official-capacity actions for prospective relief are not treated as actions against the State.'" Id. at 71 n. 10. Accordingly, the trial court properly dismissed the suit against the governmental agencies, but erred in dismissing Nabelek's suit against the individual defendants on this ground.
Conclusion
In light of the above, we hold the trial court abused its discretion in ruling that Nabelek is a vexatious litigant and in dismissing Nabelek's suit against the individual defendants. We therefore affirm the trial court's order dismissing Nabelek's claims against Texas Board of Criminal Justice and the Texas Department of Criminal Justice — Institutional Division and in all other respects reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.