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Kleven v. Texas Dept. of Criminal Justice

Neither a state nor its officials acting in their official capacities are "persons" for purposes of 42 U.S.C. '1983.

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OPINION

Richard Allen Kleven, II appeals from an adverse summary judgment granted in his suit against the Texas Department of Criminal Justice -Institutional Division (TDCJ). Kleven, an inmate acting pro se, sued the TDCJ and two of its employees, Matthew Cheatham and Gary Stevens, in their individual and official capacities. In his initial petition, Kleven contended the TDCJ was depriving him of his right to compensation under Tex. Gov’t Code Ann. � 501.007 (Vernon 1998) *fn1 and under the United States and Texas Constitutions without due process of law. *fn2 He requested a declaratory judgment, specific performance, and an injunction to prevent reprisals from other inmates, who allegedly were threatening him. Kleven also alleged Cheatham and Stevens took items of his personal property, ostensibly to verify their ownership, but failed to return the property. He further alleged Cheatham and Stevens were negligent per se in failing to conform with TDCJ’s operating procedures.

The TDCJ filed a motion to dismiss the suit as frivolous, which the trial court granted. On appeal, we reversed the trial court’s judgment, holding that the trial court’s basis for granting the dismissal, that the TDCJ is immune from liability for ordinary negligence claims, did not address Kleven’s theory of liability, i.e., that the TDCJ failed to provide meaningful administrative procedures for him to receive redress for the loss of his property. Kleven v. Texas Dep’t of Criminal Justice – Institutional Div., 35 S.W.3d 112, 114-15 (Tex. App.-Texarkana 2000, no pet.).

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