Brian Lee Sporn v. Bryan Collier

Opinion filed December 19, 2024

In The

Eleventh Court of Appeals
__________

No. 11-22-00349-CV
__________

BRIAN LEE SPORN, Appellant
V.
BRYAN COLLIER ET AL., Appellees

On Appeal from the 106th District Court
Dawson County, Texas
Trial Court Cause No. 22-10-20999

MEMORANDUM OPINION
Appellant, Brian Lee Sporn, is an inmate confined in the Institutional Division
of the Texas Department of Criminal Justice (TDCJ). Appearing pro se, he appeals
the trial court’s dismissal of his “complaint with jury demand” against Bryan Collier
(director of TDCJ), Brian Williams (warden), Jimmy Webb (warden), Texas Tech
Medical Department, Colin Richards (head of medical operations), R. Wells (LVN),
Ms. Cortez (admin. personnel), and Ms. Marshall (LVN). 1 Appellant sued each of
these defendants in their individual and official capacities, including Texas Tech
Medical Department. Appellant filed his complaint as “a civil rights action” for
damages and injunctive relief under Section 1983. See 42 U.S.C. § 1983. In his
complaint, Appellant alleged that the defendants acted with deliberate indifference
by denying him medical care for problems he was having with his hands. He
asserted that the alleged denial of medical care violated his Eighth Amendment right
to be free of cruel and unusual punishment. See U.S. CONST. amend. VIII. He also
asserted a common law claim for assault and battery.
Appellant filed his complaint on October 3, 2022. On October 5, 2022, prior
to any of the defendants being served with the complaint, the trial court entered an
order directing the trial court clerk to forward Appellant’s complaint to the Office of
the Attorney General. The trial court’s order also directed the Office of the Attorney
General to file as amicus curiae an “advisory” with the trial court with respect to
whether Appellant had complied with the statutory requirements for an inmate filing.
The Office of the Attorney General filed its advisory on October 31, 2022. In
the advisory, the Office of the Attorney General stated that Appellant’s claims were
subject to Chapter 14 of the Texas Civil Practice and Remedies Code, and that
Appellant had not complied with many of the filing requirements of the statute. The
Office of the Attorney General further asserted that Appellant had not filed a timely
complaint. Finally, the Office of the Attorney General contended that Appellant’s
claims for assault and battery were frivolous.

1
We are listing the defendants as identified by Appellant in his complaint. We note that the Office
of the Attorney General suggested to the trial court that, although Appellant named “Texas Tech Medical
Department” as a defendant, the entity that provides health care services through Texas Tech University is
the Texas Tech University Health Sciences Center.
2
On November 7, 2022, the trial court signed an order dismissing Appellant’s
claim “with prejudice as frivolous claims.” See Gross v. Carroll, 339 S.W.3d 718,
722 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (A trial court has discretion to
dismiss an indigent inmate’s claims sua sponte under Chapter 14, regardless of the
status of any action taken by the defendant in seeking dismissal.). Appellant filed a
notice of appeal from this order. The defendants have not entered an appearance in
this appeal because they were not served with Appellant’s complaint prior to
dismissal.
Appellant presents one issue on appeal wherein he asserts that the trial court
abused its discretion by dismissing his complaint for pleading deficiencies. He
presents several arguments in connection with this issue. First, he contends that he
asserted a nonfrivolous claim. Next, he asserts that he should have been afforded an
opportunity to amend his pleading to correct any deficiencies. Appellant also
contends that the trial court should have honored his request for a Spears hearing
prior to dismissal. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). Finally,
Appellant contends that Chapter 14 is unconstitutional under the Equal Protection
Clause. See U.S. CONST. amend. XIV, § 1. We modify and affirm.
Analysis
In Sporn v. Marcantonio, we recently noted that Chapter 14 of the Texas Civil
Practices and Remedies Code was enacted in response to the amount of inmate
litigation found to be frivolous and without merit. No. 11-22-00044-CV, 2023
WL 5109777, at *2 (Tex. App.—Eastland Aug. 10, 2023, no pet.) (mem. op.).
Chapter 14 applies to inmate suits brought where an “affidavit or unsworn
declaration of inability to pay costs is filed by the inmate.” TEX. CIV. PRAC. & REM.
CODE ANN. § 14.002(a) (West 2017). To preserve judicial resources, under Chapter
14, a trial court may dismiss an inmate’s lawsuit for failing to comply with the

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chapter’s procedural requirements; it may also dismiss a lawsuit that is malicious or
frivolous. Id. § 14.003(a); Scott v. Gallagher, 209 S.W.3d 262, 265 (Tex. App.—
Houston [1st Dist.] 2006, no pet.). Because Appellant is an inmate proceeding pro
se who filed a statement of inability to pay costs, this suit is governed by Chapter 14.
CIV. PRAC. & REM. § 14.002(a).
We first address Appellant’s contention that Chapter 14 is unconstitutional.
Appellant does not cite, and we have not found, any place in the appellate record
where he raised an argument to the trial court that Chapter 14 is unconstitutional.
See TEX. R. APP. P. 33.1(a). Even constitutional complaints must be presented to the
trial court to be preserved for appellate review. See Perry v. United Servs. Auto.
Ass’n, 602 S.W.3d 915, 916 n.1 (Tex. 2020) (per curiam). Accordingly, Appellant
did not preserve his constitutional complaint for appellate review.
Moreover, Texas courts have repeatedly held that Chapter 14 does not violate
the Equal Protection Clause. Sanders v. Palunsky, 36 S.W.3d 222, 224–25 (Tex.
App.—Houston [14th Dist.] 2001, no pet.); see Hines v. Massey, 79 S.W.3d 269,
271 (Tex. App.—Beaumont 2002, no pet.); Thomas v. Bilby, 40 S.W.3d 166, 170–
71 (Tex. App.—Texarkana 2001, no pet.). As noted in Sanders, the principle of
equal protection guarantees that all persons similarly situated should be treated alike,
and Chapter 14 does not violate equal protection because its provisions apply to all
inmate suits in which an affidavit or unsworn declaration of inability to pay costs is
filed. 36 S.W.3d at 224–25. Accordingly, Appellant’s claim of a constitutional
violation is without merit.
Appellant’s request for a Spears hearing is also without merit. As noted by
the Waco Court of Appeals, a Spears hearing is a creature of federal practice and
there is not a comparable provision applicable to Texas courts that requires such a
hearing. Walters v. TDCJ, No. 10-11-00366-CV, 2012 WL 5295161, at *2 (Tex.

4
App.—Waco Oct. 25, 2012, no pet.) (mem. op.). Further, a court dismissing an
inmate suit under Chapter 14 is not required to hold a hearing. See CIV. PRAC. &
REM. § 14.003(c) (“In determining whether [to dismiss], the court may hold a
hearing.” (emphasis added)); Hamilton v. Pechacek, 319 S.W.3d 801, 808 (Tex.
App.—Fort Worth 2010, no pet.).
We review a trial court’s dismissal of a suit governed by Chapter 14 for an
abuse of discretion. Brewer v. Simental, 268 S.W.3d 763, 767 (Tex. App.—Waco
2008, no pet.). If, as in this case, the trial court dismisses a claim without conducting
a hearing, we are limited to reviewing whether the claim had an arguable basis in
law. Smith v. Tex. Dep’t of Crim. Justice–Institutional Div., 33 S.W.3d 338, 340
(Tex. App.—Texarkana 2000, pet. denied). A claim does not have an arguable basis
in law if the claim is based on a meritless legal theory or if the inmate failed to
exhaust his administrative remedies. Hamilton v. Williams, 298 S.W.3d 334, 339
(Tex. App.—Fort Worth 2009, pet. denied). We will affirm the trial court’s
dismissal if it is proper under any legal theory. See Johnson v. Lynaugh, 796 S.W.2d
705, 706–07 (Tex. 1990).
In its advisory, the Office of the Attorney General alleged several deficiencies
in Appellant’s complaint with respect to Chapter 14. Those deficiencies included:
• Appellant did not file a list of previous or ongoing lawsuits as required
by Section 14.004;

• Appellant did not include a copy of his inmate trust account balance at
the time of filing his declaration of indigency as required by Section
14.006(f);

• Appellant did not timely file his complaint and he did not exhaust his
administrative remedies in TDCJ’s grievance system as required by
Section 14.005; and

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• Appellant’s claim for assault and battery is frivolous because the State
has not waived sovereign immunity for these claims under the Texas
Tort Claims Act.
A pro se inmate proceeding in forma pauperis must comply with Chapter 14’s
procedural requirements, and the inmate’s failure to do so will result in the dismissal
of his suit. See Brewer, 268 S.W.3d at 767. Section 14.004 requires the inmate to
file a separate affidavit or declaration that (1) identifies each pro se action, other than
one brought under the Family Code, that he has previously brought and (2) describes
those actions by providing the operative facts; the case name; the cause number; the
court in which each case was filed; the parties’ names; and the disposition of each
case. CIV. PRAC. & REM. § 14.004(a). This supplemental filing “is an essential part
of the process by which courts review inmate litigation.” Hickson v. Moya, 926
S.W.2d 397, 399 (Tex. App.—Waco 1996, no writ). Thus, “when an inmate does
not comply with the affidavit requirements of Section 14.004, the trial court is
entitled to assume the suit is substantially similar to one previously filed by the
inmate, and therefore, frivolous.” Bell v. Tex. Dept. Crim. Justice-Institutional Div.,
962 S.W.2d 156, 158 (Tex. App.—Houston [14th Dist.] 1998, pet. denied); see
Hall v. Treon, 39 S.W.3d 722, 724 (Tex. App.—Beaumont 2001, no pet.).
Accordingly, a trial court may dismiss without prejudice an inmate’s claim as
frivolous when the inmate fails to file the affidavit or unsworn declaration that
Section 14.004 requires. See Bright v. Quarterman, No. 10-08-00140-CV, 2010 WL
3036475, at *1 (Tex. App.—Waco Aug. 4, 2010, no pet.) (mem. op.).
Another procedural requirement for filing a Chapter 14 suit is found in
Section 14.005. Under Section 14.005, before filing suit, an inmate must exhaust
the remedies available through TDCJ’s grievance system as established under
Section 501.008 of the Texas Government Code. CIV. PRAC. & REM. § 14.005(a);
TEX. GOV’T CODE ANN. § 501.008 (West 2012); Crain v. Prasifka, 97 S.W.3d 867,
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869–70 (Tex. App.—Corpus Christi–Edinburg 2003, pet. denied). Thus, if the
inmate’s claim is subject to the grievance system, Section 14.005(a) requires the
inmate to file with the trial court (1) an affidavit or unsworn declaration stating the
date that the grievance was filed and the date the written decision was received by
the inmate and (2) a copy of the written decision from the grievance system. CIV.
PRAC. & REM. 14.005(a). An inmate’s failure to comply with Section 14.005(a) is
grounds for dismissal of his suit. See Bright, 2010 WL 3036475, at *1–2.
Because Appellant did not file either an affidavit or declaration of his prior
pro se actions as required by Section 14.004, his suit was subject to dismissal. See
id. Appellant’s lack of compliance with Section 14.005 is not as clearcut. Appellant
included a section in his complaint addressing the exhaustion of administrative
remedies. However, he did not include the exact date that he filed his first grievance,
instead only stating that he filed it “at the beginning of July.” Further, he alleged
that it had not been ruled upon prior to filing suit in October.
Because Appellant failed to comply with the requirements of Section 14.004,
the trial court did not err by dismissing his suit. However, a dismissal for failure to
comply the procedural requirements of Chapter 14 should be without prejudice.
Hosea v. Alamanza, 659 S.W.3d 129, 134–35 (Tex. App.—El Paso 2022, no pet.)
(Hosea I); Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. App.—Houston [14th
Dist.] 2000, no pet.); see Sporn, 2023 WL 5109777, at *3–4. Here, the trial court
expressly dismissed Appellant’s claims “WITH PREJUDICE AS FRIVOLOUS
CLAIMS.” A dismissal with prejudice is a ruling on the merits. Hamilton, 298
S.W.3d at 340. A dismissal of an inmate’s claim with prejudice is appropriate if the
dismissal is based on the conclusion that the claim has no arguable basis in law. Id.
Accordingly, we must determine if Appellant’s claims have an arguable basis in law.

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The Office of the Attorney General correctly asserted that Appellant’s claim
for assault and battery is frivolous because it has no arguable basis in law. First,
with respect to Appellant’s claim for assault and battery against Texas Tech Medical
Center/Texas Tech University Health Sciences Center and the claim against the
other defendants in their official capacity, the claim is barred by the Texas Tort
Claims Act (TTCA). In Texas, the TTCA is the only source for common-law
recovery against a governmental unit, thus, all tort theories alleged against a
governmental unit are assumed to be under and subject to the TTCA. Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008); Pecan Valley
Mental Health Mental Retardation Region Operating as Pecan Valley Centers for
Behavioral & Developmental Healthcare v. Doe, 678 S.W.3d 577, 585 (Tex. App.—
Eastland 2023, pet. denied). The TTCA does not waive sovereign immunity for
claims “arising out of assault, battery, false imprisonment, or any other intentional
tort.” Texas Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001); see CIV.
PRAC. & REM. § 101.057 (West 2019); Pecan Valley, 678 S.W.3d at 592.
Even though a government employee may be sued in his individual capacity,
the TTCA has an election of remedies provision which provides:
If a suit is filed against an employee of a governmental unit based
on conduct within the general scope of that employee’s employment
and if it could have been brought under this chapter against the
governmental unit, the suit is considered to be against the employee in
the employee’s official capacity only.
CIV. PRAC. & REM. § 101.106(f); see Hosea v. Dominguez, 668 S.W.3d 704, 709
(Tex. App.—El Paso 2022, pet. denied) (Hosea II). Thus, “[a] government
employee ‘is entitled to a dismissal when the plaintiff’s suit (1) is based on conduct
within the scope of the defendant’s employment with a governmental unit and
(2) could have been brought against the governmental unit under the TTCA.’”

8
Hosea II, 668 S.W.3d at 709 (quoting Demar v. Garcia, No. 13-19-00182-CV, 2020
WL 3396602, at *2 (Tex. App.—Corpus Christi–Edinburg June 18, 2020, no pet.)
(mem. op.)). Here, there is no dispute that Appellant was suing the defendants based
on conduct within the general scope of their employment with the State.
Because Appellant’s claim for assault and battery are for actions taken by the
defendants in the scope of their employment, it could have been brought under the
TTCA. See Hosea II, 668 S.W.3d at 709 (citing Demar, 2020 WL 3396602, at *2).
Thus, the election of remedies provision applies, and Appellant’s claim for assault
and battery against the defendants are in their official, not individual, capacities. Id.
“Sovereign immunity, however, bars intentional tort suits against state employees
while acting in their official capacities.” Id. at 709–10 (citing Lopez v. Serna, 414
S.W.3d 890, 895 (Tex. App.—San Antonio 2013, no pet.)).
Additionally, the Office of the Attorney General correctly asserted that
Appellant’s claim for assault and battery has no arguable basis in law because it does
not involve any physical contact by the defendants with Appellant. See Huynh v.
Walmart Inc., 30 F.4th 448, 456–57 (5th Cir. 2022) (addressing Texas law and
noting that the civil causes of action for assault and battery in Texas require some
level of physical contact with the plaintiff).
For the reasons identified by the Office of the Attorney General, Appellant’s
claim for assault and battery lacks an arguable basis in law. Accordingly, the trial
court did not err in dismissing that claim with prejudice.
We do not reach the same conclusion with respect to Appellant’s Section 1983
claim. An inmate seeking to establish an Eighth Amendment violation regarding
medical care must allege facts showing that prison officials were deliberately
indifferent to his medical needs. Morris v. Livingston, 739 F.3d 740, 747 (5th Cir.

9
2014). Thus, Appellant’s Section 1983 claim is not based on a meritless legal theory
per se. 2 See id.
Finally, Appellant contends that the trial court should have allowed him to
cure his pleading deficiencies prior to dismissal. This contention is relevant to the
dismissal of Appellant’s suit for failing to comply with the procedural requirements
of Chapter 14. Because a trial court may dismiss an action as frivolous either before
or after service of process, the trial court is under no duty to suggest or recommend
that an inmate amend his pleadings or other filings prior to dismissal for
noncompliance with Chapter 14. Hickman, 35 S.W.3d at 125 (citing Kendrick v.
Lynaugh, 804 S.W.2d 153, 156 (Tex. App.—Houston [14th Dist.] 1990, no writ)).
Accordingly, the trial court did not err by dismissing Appellant’s complaint without
giving him an opportunity to remedy his omissions. See id.
We sustain in part and overrule in part Appellant’s sole issue on appeal.
This Court’s Ruling
We modify the trial court’s order dismissing Appellant’s claims to reflect
that Appellant’s Section 1983 claim is dismissed without prejudice. As modified,
we affirm the order of the trial court.

JOHN M. BAILEY
CHIEF JUSTICE

December 19, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

2
We express no opinion on the merits of a Section 1983 claim that Appellant may pursue in the
future for the denial of medical care that he asserted in his complaint at issue in this appeal.
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