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Hector v. Thaler6/6/1996
filed June 6, 1996
OPINION
Appellants are prison inmates who sued appellees, prison employees, the Texas Department of Criminal Justice (TDCJ), and the Texas Department of Criminal Justice--Institutional Division (TDCJ-ID), alleging that the prison is too noisy. The trial judge granted summary judgment. We affirm.
In 1992, appellants sued, alleging appellees negligently failed to enforce the prison's low-volume radio regulation. The suit was dismissed as frivolous, pursuant to TEX. CIV. PRAC. & REM. CODE ANN. 13.001 (Vernon Supp. 1996), and they appealed. A panel of this Court held that prisoners do not have a constitutionally-protected right to a noise-free environment, but observed that appellants did not allege constitutional violations. Hector v. Thaler, 862 S.W.2d 176, 178 (Tex. App.--Houston [1st Dist.] 1993, no writ) (hereafter called Hector I). The panel quoted the low-volume radio rule and set forth appellants' allegations that:
"(1) inmates regularly violate the rule; (2) appellees have a duty to enforce the rule; (3) appellees do not enforce the rule; (4) appellees admit a noise problem exists; (5) appellees told appellants to help the building major enforce its own rules; and (6) appellants have physical and mental damages from appellees' acts or omissions. Id. The panel reversed and remanded, holding, "Appellants asserted claims that have arguable bases in law or in fact; thus, the trial court abused its discretion in dismissing the claims as frivolous." Id. at 179. This is a further appeal of the same suit that was ruled on in Hector I."
In points of error one and two, appellants contend the trial judge erred by granting summary judgment.
In their fifth amended original petition, appellants assert five causes of action: (1) guards yell too loudly, too often, too late, and they loudly slam doors unnecessarily; (2) inmates play their radios too loudly; (3) appellees play televisions too loudly; (4) the above claims show gross negligence, give appellants headaches, make them nervous, keep them awake, and make them depressed; and (5) appellees fail to enforce rules requiring inmates to wear headphones. Appellants contend the prison failed to make, enforce, or follow rules against noise. The judge granted summary judgement without stating any grounds. Thus, we will affirm if any of appellees' theories were meritorious. See Rogers v. Ricane Enter. Inc., 772 S.W.2d 76, 79 (Tex. 1989).
In Johnson v. Kinney, 893 S.W.2d 271 (Tex. App.--Houston [1st Dist.] 1995, no writ), Johnson sued the TDC because it failed to enforce its rules to keep his fellow inmates from talking too loud and playing their televisions too loudly. A panel of this Court (Justices Hedges, Cohen, and Wilson) that included none of the panel members in Hector I (Justices Duggan, Dunn, and Andell) held that such a claim had no arguable basis in law and therefore affirmed a judgement dismissing the suit as frivolous. The Johnson court wrote:
"We conclude that appellant's claim has no arguable basis in law. He complains that TDCJ officials had an obligation to enforce the regulations in the Inmate Orientation Manual and that he has standing to complain of their negligence when they fail to do so. We do not believe that state law recognizes a right to damages for prison officials' negligent or even gross negligent failure to enforce rules applicable to the inmates." Id. at 272-73. This holding conflicts with the holding in Hector I. We disagree with Hector I's apparent holding that a cause of action exists for failure to enforce the prison's noise rules. However, this case is distinguishable from Hector I.
First, H
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