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Guard's Intentional Destruction of Typewriter States §1983 and Texas Tort Claims

A Texas state court of appeals has held that a guard's intentional destruction of a prisoner's typewriter states a claim under 42 U.S.C. §1983 and Texas tort law.

Robert Gordon, a Texas state prisoner, filed suit under 42 U.S.C. § 1983 and state tort law after a guard knocked his word processing typewriter off a table during a cell search, damaging the typewriter. Before filing suit, Gordon properly exhausted his state remedies by filing prison grievances. The warden answered Gordon's grievance, stating that the destruction of the typewriter was accidental and the grievance procedure had no provision for the reimbursement of prisoners for accidental destruction of their personal property by a guard.

In the trial court, defendants moved to dismiss the suit, claiming that Gordon could not sue for intentional or negligent destruction of personal property under § 1983 so long as the state provided an adequate remedy such as the grievance system. The trial court then dismissed the suit without holding a hearing on the motion.

Following Lentworth v. Traham, 981 S.W.2d 720 (Tex. App.-Houston (1st Dist.] 1998), the court of appeals held that because he held no hearings on the motion to dismiss, the trial judge could not dismiss the suit based on it having no arguable basis in fact. Thus, the issue on appeal was whether the suit had an arguable basis in law.

Because it was a dismissal based on a motion to dismiss against a pro se plaintiff, the court of appeals had to liberally construe the petition and accept all of the allegations in the petition as true. In doing so, the court determined that Gordon had stated both a tort claim and a claim pursuant to § 1983 for the intentional destruction of his typewriter.

The court held that neither the state nor the officials acting in their official capacities could be sued because they were not "persons" pursuant to § 1983. However, because the warden and guard failed to show that they were performing a discretionary in good faith and within the scope of the employee's authority, they were not entitled to qualified immunity and could be sued in their personal capacities.

The court also held that the prison's grievance procedure pursuant to §§ 501.007-501.008, Texas Government Code, does not necessarily provide an adequate state remedy, precluding a § 1983 claim. The legislature clearly foresaw that prisoners might sue when, pursuant to § 501.008(d), they made exhaustion of the grievance procedure a requirement prior to filing suit. Prisoners may sue under § 1983 for intention destruction of their personal property. Daniels v. Williams, 474 U.S. 327 (1986). A state common law/statutory scheme exists for negligent, intentional or reckless destruction of property. Therefore, whereas the trial court correctly dismissed the claims against the warden and guard in their official capacities, it should not have dismissed the claims against them in their personal capacities. The case was returned to the trial court for reinstatement. See: Gordon v. Scott, 6 S.W.3d 365 (Tex. App.-Beaumont 1999)(rehearing overruled).

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Related legal case

Gordon v. Scott

[24] The judgment, therefore, is affirmed in part and reversed in part.



[27] Justice

[28] Submitted on October 15, 1999

[29] Publish


[31] I must dissent to the majority's decision to rule on the merits of this appeal. Based upon the record before me, the good faith amount in controversy is $270. The various "$10,000.00" damage allegations for intentional or reckless conduct on the part of the appellees contained in appellant's petition filed with the trial court should be considered as having been waived because appellant's written administrative requests for relief to the prison authorities were silent as to any intentional or reckless acts involved in the destruction of his typewriter. As a general rule, an administrative litigant may preserve a complaint only by giving the agency an opportunity to review the legal ground on which the complaint is based. See Sears v. State Bd. of Dental Examiners, 759 S.W.2d 748, 750 (Tex. App.--Austin 1988, no writ); Burke v. Central Educ. Agency, 725 S.W.2d 393, 396-397 (Tex. App.--Austin 1987, writ ref'd n.r.e.).

[32] The record reflects that appellant was repeatedly informed by the prison authorities that the typewriter was destroyed "unintentionally." Appellant did not take issue with this response at the administrative

[33] Appellant did not take issue with this response at the administrative

[34] level. As such, any later allegations that the destruction was caused intentionally or recklessly should be considered made in bad faith. As amount in controversy between parties, for purposes of subject matter jurisdiction, is determined by good faith pleadings of the parties, see Smith Detective Agency & Nightwatch Service, Inc. v. Stanley Smith Sec., Inc., 938 S.W.2d 743, 747 (Tex. App.--Dallas 1996, writ denied), the amount in controversy in the instant case is limited to $270. *fn7

[35] In the instant case, because the only amount in controversy alleged in good faith is $270, the trial court lacked subject matter jurisdiction to entertain the case. This is based upon the finding that although both Tex. Gov't Code Ann. § 24.007 (Vernon 1988), and Tex. Const. art. V, § 8 were recodified and amended, respectively, in 1985, so as to delete the $500 minimum amount in controversy, the legislature did not intend any substantive change in the former law by said recodification and amendment. See Chapa v. Spivey, 999 S.W.2d 833, 835-836 (Tex. App.--Tyler 1999, no pet.). Because the majority finds trial court jurisdiction, and then proceeds to rule on the merits of the appeal instead of dismissing the appeal for lack of jurisdiction by this Court, I dissent.


[37] Chief Justice

[38] Dissent Delivered December 16, 1999 Publish

Opinion Footnotes

[39] *fn1 The remaining co-defendant, Wayne Scott, apparently was never served with citation and made no appearance before the trial court. As the trial court's order contains what is known as a "Mother Hubbard" clause, the order is final for appellate purposes. See Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex. 1993).

[40] *fn2 § 14.003. Dismissal of Claim (a) A court may dismiss a claim, either before or after service of process, if the court finds that: (1) the allegation of poverty in the affidavit or unsworn declaration is false; (2) the claim is frivolous or malicious; or (3) the inmate filed an affidavit or unsworn declaration required by this chapter that the inmate knew was false. (b) In determining whether a claim is frivolous or malicious, the 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 in 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. (c) In determining whether Subsection (a) applies, the court may hold a hearing. The hearing may be held before or after service of process, and it may be held on motion of the court, a party, or the clerk of the court. (d) On the filing of a motion under Subsection (c), the court shall suspend discovery relating to the claim pending the hearing. (e) A court that dismisses a claim brought by a person housed in a facility operated by or under contract with the department may notify the department of the dismissal and, on the court's own motion or the motion of any party or the clerk of the court, may advise the department that a mental health evaluation of the inmate may be appropriate.

[41] *fn3 Notably, the motion does not seek dismissal under either §§ 14.004 or 14.005.

[42] *fn4 Nor does the motion allege the suit is not within the jurisdictional amount of the district court. See Arteaga v. Jackson, 994 S.W.2d 342 (Tex. App.--Texarkana 1999, pet. denied); Arnold v. West Bend Co., 983 S.W.2d 365, 366 (Tex. App.--Houston [1st Dist.] 1998, no pet.); but cf. Chapa v. Spivey, 999 S.W.2d 833 (Tex. App.--Tyler 1999, no pet.).

[43] *fn5 § 501.007. Inmate Claims for Lost or Damaged Property The department may pay from the miscellaneous funds appropriated to the division claims made by inmates housed in facilities operated by the department for property lost or damaged by the division. The department shall maintain a record of all transactions made under this section and shall send a copy of that record to the state auditor at least annually. The record must show the amount of each claim paid, the identity of each claimant, and the purpose for which each claim was made. The department may not pay under this section more than $500 on a claim. § 501.008. Inmate Grievance System (a) The department shall develop and maintain a system for the resolution of grievances by inmates housed in facilities operated by the department or under contract with the department that qualifies for certification under 42 U.S.C. Section 1997e and the department shall obtain and maintain certification under that section. A remedy provided by the grievance system is the exclusive administrative remedy available to an inmate for a claim for relief against the department that arises while the inmate is housed in a facility operated by the department or under contract with the department, other than a remedy provided by writ of habeas corpus challenging the validity of an action occurring before the delivery of the inmate to the department or to a facility operated under contract with the department. (b) The grievance system must provide procedures: (1) for an inmate to identify evidence to substantiate the inmate's claim; and (2) for an inmate to receive all formal written responses to the inmate's grievance. (c) A report, investigation, or supporting document prepared by the department in response to an inmate grievance is considered to have been prepared in anticipation of litigation and is confidential, privileged, and not subject to discovery by the inmate in a claim arising out of the same operative facts as are alleged in the grievance. (d) An inmate may not file a claim in state court regarding operative facts for which the grievance system provides the exclusive administrative remedy until: (1) the inmate receives a written decision issued by the highest authority provided for in the grievance system; or (2) if the inmate has not received a written decision described by Subdivision (1), the 180th day after the date the grievance is filed. (e) The limitations period applicable to a claim arising out of the same operative facts as a claim for which the grievance system provides the exclusive remedy: (1) is suspended on the filing of the grievance; and (2) remains suspended until the earlier of the following dates: (A) the 180th day after the date the grievance is filed; or (B) the date the inmate receives the written decision described by Subsection (d)(1). (f) This section does not affect any immunity from a claim for damages that otherwise exists for the state, the department, or an employee of the department.

[44] *fn6 Since there have been no special exceptions, those claims may include negligent, reckless and intentional damage to property and § 1983 claims based on the reckless and intentional damage to property.

[45] *fn7 Similarly, a mere unfounded claim to a penalty or attorney's fees will not serve to place a case within the jurisdiction of a district court. See Bybee v. Fireman's Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910, 913 (1960).