Opinion issued December 8, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00697-CV
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LAKEITH AMIR-SHARIF, Appellant
V.
DEDRIC D. BOSTIC AND BETTY HIGHTOWER, Appellees
On Appeal from the 412th Judicial District Court
Brazoria County, Texas
Trial Court Case No. 75570-I
MEMORANDUM OPINION
This is a prison inmate’s suit against prison officials. The inmate sought
compensation for the loss of his personal property, but a jury found that the
officials had not converted the inmate’s property in violation of the Texas Theft
Liability Act and had not conspired to deprive him of it. The trial court dismissed
the inmate’s other claims for constitutional violations, and it entered judgment on
the jury’s verdict. The inmate appeals, contending that the trial court erred in
dismissing his constitutional claims and that the evidence does not support the
jury’s verdict. We conclude that the trial court did not err in dismissing the
inmate’s constitutional claims and that sufficient evidence supports the jury’s
verdict. We therefore affirm.
Background
Lakeith Amir-Sharif sued Dedric Bostic and Maggie Hightower, among
others who are not parties to the appeal, alleging that they wrongfully confiscated
and destroyed Amir-Sharif’s personal items during intake processing at the
Holliday Prison Unit. Amir-Sharif alleged that, upon his return to prison after his
temporary transfer of custody under a bench warrant, Bostic improperly
confiscated and destroyed his personal property, consisting of coffee, sweeteners,
toiletries, a writing tablet, an eraser, nitroglycerin pills, asthma pumps, pictures,
and law books. He alleged that the confiscation and destruction of his property
violated his federal and state due process rights, the Eighth Amendment and the
Equal Protection Clause of the federal constitution, and the Texas Theft Liability
Act. He further alleged claims for retaliation and intentional infliction of
emotional distress and named Hightower as a co-conspirator.
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The trial court dismissed all of Amir-Sharif’s claims except his Theft
Liability Act claim against Bostic and his conspiracy claim against Bostic and
Hightower, which were tried to a jury. The jury rejected both claims.
Discussion
On appeal, Amir-Sharif contends that the trial court abused its discretion by
dismissing the claims that were not tried to the jury under Chapter 14 of the Texas
Civil Practice and Remedies Code. He further contends that the evidence is legally
and factually insufficient to support the jury’s findings that (1) Bostic did not
unlawfully appropriate Amir-Sharif’s property; and (2) Bostic and Hightower did
not conspire to retaliate against him. Finally, Amir-Sharif contends that the trial
court abused its discretion by denying Amir-Sharif’s motions for new trial, for
judgment notwithstanding the verdict, and to reopen the evidence to allow him to
call additional Texas Department of Corrections officials to testify at trial.
A. Standard of Review and Applicable Law
Chapter 14 of the Texas Civil Practice and Remedies Code governs a lawsuit
filed by an inmate and accompanied by the inmate’s affidavit or declaration of
inability to pay costs. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002 (West
2002). It requires an inmate to exhaust the administrative remedies available
through the TDCJ grievance system before the inmate may file the claim in state
court. See id. § 14.005(a)(1) (mandating that inmate who files claim subject to
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TDCJ grievance system file affidavit or unsworn declaration stating date grievance
was filed and date inmate received written grievance decision). The exhaustion
requirement applies to “operative facts for which the grievance system provides the
exclusive administrative remedy.” TEX. GOV’T CODE ANN. § 501.008(d) (West
1995).
A trial court properly dismisses a suit brought under Chapter 14 if an inmate
fails to comply with the statute’s requirements. TEX. CIV. PRAC. & REM. CODE
ANN. §§ 14.002(a), 14.004–5 (West 2002); Bell v. Tex. Dep’t of Crim. Justice–
Inst’l. Div., 962 S.W.2d 156, 158 (Tex. App.—Houston [14th Dist.] 1998, pet.
denied). Under Chapter 14, a trial court also may dismiss the suit if it finds that the
inmate’s suit is frivolous or malicious—that is, if the claims raised in the suit have
no arguable basis in law or fact. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003
(West 1995). We review a trial court’s dismissal pursuant to Chapter 14 for an
abuse of discretion. Id.; Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.—
Houston [1st Dist.] 1998, no pet.). A trial court abuses its discretion if its action is
arbitrary or unreasonable in light of all the circumstances. Moreland v. Johnson,
95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Thomas v.
Knight, 52 S.W.3d 292, 294 (Tex. App.—Corpus Christi 2001, pet. denied).
An appellant attacking the legal sufficiency of an adverse finding on an issue
on which he had the burden of proof must demonstrate that the evidence
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conclusively establishes all vital facts in support of the issue. Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 241 (Tex. 2001). The appellant must show that there is
no evidence to support the finding and the evidence conclusively establishes the
opposite of the finding. Id. We first examine the record for any evidence
supporting the jury’s finding while ignoring all evidence to the contrary. Id. If no
evidence supports the finding, then we review the entire record to determine
whether the contrary proposition is established as a matter of law. Id.
When a party attacks the factual sufficiency of an adverse finding on an
issue for which he has the burden of proof, he must demonstrate that the adverse
finding is against the great weight and preponderance of the evidence. Id. at 242;
Benavente v. Granger, 312 S.W.3d 745, 748 (Tex. App.—Houston [1st Dist.]
2009, no pet.) We may set aside the verdict only if the finding is so against the
great weight and preponderance of the evidence that it is clearly wrong and unjust.
Dow Chem. Co., 46 S.W.3d at 242; Benavente, 312 S.W.3d at 748; Cain v. Bain,
709 S.W.2d 175, 176 (Tex. 1986). A jury may believe one witness and disbelieve
another, and it may resolve inconsistencies in any witness’s testimony. Eberle v.
Adams, 73 S.W.3d 322, 327 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).
A trial court has wide discretion in denying a motion for new trial, and its
action will not be disturbed on appeal absent an abuse of discretion. Hicks v.
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Ricardo, 834 S.W.2d 587, 590 (Tex. App.—Houston [1st Dist.] 1992, no writ);
Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983).
We review the grant or denial of a motion for JNOV under a legal-
sufficiency standard, under which the appellant must show that there is no
evidence to support the factfinder’s finding and the evidence conclusively
establishes the opposite of the finding. Dow Chem. Co., 46 S.W.3d at 241. The
trial court has broad discretion on whether to admit or to exclude evidence. Tex.
Workers’ Comp. Comm’n v. Wausau Underwriters Ins., 127 S.W.3d 50, 56 (Tex.
App.—Houston [1st Dist.] 2003, pet. denied). We review a trial court’s rulings on
the admissibility of evidence for an abuse of discretion. Gharda USA, Inc. v.
Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). An appellate court must
uphold the trial court’s evidentiary ruling if there is any legitimate basis for the
ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.
1998).
B. Analysis
1. Chapter 14 Partial Dismissal
Amir-Sharif’s claim is subject to Chapter 14 because he is an inmate who
has filed an affidavit of inability to pay costs. See TEX. CIV. PRAC. & REM. CODE
ANN. §§ 14.002(a), 14.004–5; Bell, 962 S.W.2d at 158. In Amir-Sharif’s
grievance, he complained Bostic and Hightower had intentionally destroyed his
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personal property. The grievance contains the phrase “should have reasonably
known that their acts and omissions were violative of my well-established federal
rights of due process and of freedom from unlawful property seizures,” but it does
not describe any facts giving rise to a claim besides the destruction of his property.
Amir-Sharif’s grievance does not name other defendants or allude to other causes
of action.
Amir-Sharif’s grievance complained only of his theft and conspiracy claims
against Bostic and Hightower arising out of their alleged conduct in taking and
destroying Amir-Sharif’s personal property. The facts alleged in Amir-Sharif’s
lawsuit involve individuals who were not identified in the grievance as well as
conversations and actions that were not the subject of the grievance. Amir-Sharif
thus failed to exhaust administrative remedies for the claims he asserts against the
previously unidentified defendants or for other causes of action, including
unrelated violations of federal and state due process based on retaliatory conduct
and violations of the Equal Protection Clause and the Texas Constitution, negligent
failure to train or supervise employees, or intentional infliction of emotional
distress. A claim has no arguable basis in law if the inmate has failed to exhaust
his administrative remedies regarding the operative facts underlying it. See TEX.
CIV. PRAC. & REM. CODE ANN. § 14.005 (West 1995); TEX. GOV’T CODE ANN. §
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501.008(d); Hill v. Smith, 14-11-00773-CV, 2012 WL 8017140, at *2 (Tex.
App.—Houston [14th Dist.] Feb. 16, 2012, no pet.) (mem. op.).
Accordingly, the trial court acted within its discretion in dismissing these
claims. See Wolf v. Tex. Dep’t of Crim. Justice, Inst’l. Div., 182 S.W.3d 449, 451
(Tex. App.—Texarkana 2006, pet. denied) (“Wolf’s grievance does not address the
issue he brought in his civil petition, and we cannot say he either sought or
received a final administrative decision on those issues.”); Riddle v. Tex. Dep’t of
Crim. Justice, Inst’l. Div., 13-05-054-CV, 2006 WL 328127, at *2 (Tex. App.—
Corpus Christi Feb. 9, 2006, pet. denied) (mem. op.) (“Riddle did not exhaust the
grievance procedures for those individuals named in the claim who were not
named in his grievance. Thus, Riddle did not fulfill all statutory procedural
requirements”.).
To the extent that Amir-Sharif’s due process claim is related to the
destruction of his property, it fails as a matter of law. Inmates in Texas have no
arguable basis in law for asserting a due process claim for the intentional
destruction of their property because Texas inmates have a meaningful post-
deprivation remedy. See TEX. GOV’T CODE ANN. § 501.007 (West 2011)
(providing a cause of action for inmates for damaged property); Hudson v. Palmer,
468 U.S. 517, 533, 104 S. Ct. 3194, 3203 (1984) (holding that intentional
deprivations of inmate property by a state employee do not constitute a violation of
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due process where meaningful postdeprivation remedies are available); Aguilar v.
Chastain, 923 S.W.2d 740, 744 (Tex. App.—Tyler 1996, writ denied) (holding that
Texas provides an adequate remedy for inmate property claims). We hold that the
trial court did not abuse its discretion in granting Bostic and Hightower’s motion to
dismiss Amir-Sharif’s claims that were not tried to the jury.
2. Sufficiency of the Evidence
Amir-Sharif next complains that the evidence is legally and factually
insufficient to support the jury’s findings that Bostic did not unlawfully appropriate
Amir-Sharif’s property and that there was no retaliation or conspiracy against him.
Amir-Sharif points to testimony from offender property officer Brenda Juarez and
intake officer Betty Hightower as some evidence that Bostic had violated
Department policies during intake. Upon cross examination, however, Hightower
and Juarez clarified that neither Bostic nor Hightower had unlawfully appropriated
Amir-Sharif’s property or violated any Department policies. Bostic, grievance
investigator Kennard Palumbo, and Assistant Warden Kari Cook testified that
neither Bostic nor Hightower had engaged in any misconduct toward Amir-Sharif
nor violated any Department policies. The jury reasonably could have credited this
testimony, which precludes any conclusive showing of unlawful conduct. Further,
the jury’s resolution of this factual dispute is not against the great weight and
preponderance of the evidence. Accordingly, we hold that factually and legally
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sufficient evidence supports the jury’s findings that Bostic did not unlawfully
appropriate property from Amir-Sharif and that Bostic and Hightower did not
conspire or retaliate against him.
3. Other Complaints
Amir-Sharif next complains that the trial court abused its discretion by
denying his motion for JNOV and his motion for new trial, in which Amir-Sharif
alleged that (1) the jury verdict was contrary to the weight of the evidence; (2) the
placement of an unadmitted exhibit in view of the jury undermined the integrity
and fairness of the jury verdict; (3) the defense attorney improperly mentioned the
absence of a settlement offer during closing argument; (4) the jury’s verdict was
legally and factually insufficient; (5) the defendants did not enjoy qualified
immunity; (6) the jury charge was improper; (7) the trial court abused its discretion
in denying his request for additional witnesses; (8) the trial court abused its
discretion by not requiring all eight defendants on duty to provide sworn affidavits;
(9) the trial court erred by not requiring production of the employee roster; (10) the
trial court erroneously found for the defendants on the issue of qualified immunity;
and (11) the trial court erroneously denied Amir-Sharif’s request for at least one of
the officers who trained Bostic and Hightower to testify.
We have determined that legally and factually sufficient evidence supports
the jury verdict. This holding disposes of Amir-Sharif’s challenge to the trial
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court’s denial of his JNOV motion as well as the evidentiary sufficiency challenge
made in his motion for new trial. With respect to his trial presentation challenges,
Amir-Sharif waived his complaints by failing to contemporaneously raise them to
the trial court and obtain rulings on them. See TEX. R. APP. P. 52(a); Bushell v.
Dean, 803 S.W.2d 711, 712 (Tex. 1991).
The record reveals that the jury did not reach the issue of qualified
immunity. The record further reveals that the jury charge instructed the jurors that,
“The Defendants have stipulated that Dedric Bostic took Plaintiff’s nitro glycerin
pills and two (2) asthma pumps. These were put into a box by Dedric Bostic and
destroyed.” Because the record contradicts Amir-Sharif’s new trial complaints
about these matters, we hold that the trial court did not abuse its discretion in
overruling them.
Amir-Sharif contends that the trial court abused its discretion in excluding
testimony from prison officials and the officers who trained Bostic and Hightower.
Trial courts have discretion to exclude cumulative evidence. Parker v. Miller, 860
S.W.2d 452, 458 (Tex. App.—Houston [1st Dist.] 1993, no writ). For the
exclusion of evidence to constitute reversible error, the complaining party must
show that (1) the trial court committed error and (2) the error probably caused the
rendition of an improper judgment. State v. Cent. Expwy. Sign Assocs., 302
S.W.3d 866, 870 (Tex. 2009); McCraw v. Maris, 828 S.W.2d 756, 757 (Tex.
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1992); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). The
exclusion of evidence is harmless if the evidence is merely cumulative of other
evidence in the record. See McCraw, 828 S.W.2d at 762; Pyle v. S. Pac. Transp.
Co., 774 S.W.2d 693, 696 (Tex. App.—Houston [1st Dist.] 1989, writ denied).
During a pretrial hearing, Amir-Sharif acknowledged that the witness he
would have called, A. Davis, would have contributed nothing of value because the
defendants had stipulated to the jury that they had destroyed Amir-Sharif’s
property, and the property forms identifying Amir-Sharif’s property were admitted
into evidence. Amir-Sharif complains that the property forms were insufficient in
lieu of officials’ testimony about the circumstances and Department policies. But
Amir-Sharif did not proffer evidence of the nature of their additional testimony.
Since the testimony would have been cumulative of the admitted property forms
and Amir-Sharif did not otherwise proffer the substance of their excluded
testimony, we hold that the trial court did not abuse its discretion in excluding it.
See McCraw, 828 S.W.2d at 762 (holding that exclusion of cumulative testimony
is not harmful). Nor has Amir-Sharif demonstrated that the exclusion of this
evidence resulted in an improper judgment.
Amir-Sharif also contends that the Holliday Unit warden and the medical
department supervisor, as well as the officers who trained Bostic and Hightower
have personal knowledge of the facts and thus should have testified. But Amir-
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Sharif did not proffer the substance of their testimony. Amir-Sharif conceded that
no high-ranking prison officials were present when Bostic disposed of Amir-
Sharif’s property. His bare assertion that the testimony would have highlighted the
need for “further juror scrutiny” of Bostic’s and Hightower’s actions fails to
demonstrate that the trial court erred in excluding them as witnesses or that the
ruling probably caused the adverse judgment. See Cent. Expwy. Sign Assocs., 302
S.W.3d at 870 (holding that appellant must show that the exclusion probably
caused rendition of an improper judgment to show harm); McCraw, 828 S.W.2d at
757 (same); Gee, 765 S.W.2d at 396 (same).
Amir-Sharif contends that the trial court abused its discretion by denying
him discovery by failing to compel production of affidavits of three of the eight
employees in the intake area and of the employee roster. Amir-Sharif alleges that
the three affidavits that he did not receive might have corroborated his account, but
acknowledges that he did not know what the employees would have testified.
Similarly, Amir-Sharif complains that the trial court’s denial of his request to
compel production of the turnout roster prevented him from accessing medical
personnel witnesses, but he does not identify what the witnesses would have
testified or show that testimony would have resulted in the rendition of a different
judgment. Because Amir-Sharif fails to demonstrate that the exclusion of the
witnesses probably caused the rendition of the adverse judgment, he has failed to
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demonstrate reversible error. See TEX. R. APP. P. 44.1; Cent. Expwy. Sign Assocs.,
302 S.W.3d at 870 (holding that appellant must show that the exclusion probably
caused rendition of an improper judgment to show harm); McCraw, 828 S.W.2d at
757 (same); Gee, 765 S.W.2d at 396 (same).
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Radack, Jennings, and Bland.
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Lakeith Amir-Sharif v. Dedric D. Bostic and Betty Hightower
Combined Opinion