IN THE

TENTH COURT OF APPEALS

No. 10-02-025-CV

     PAUL EARL DORSEY,

                                                                         Appellant

     v.

     GARY L. JOHNSON

     AND JOE MISSILDINE,

                                                                         Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # COT-99-32530

MEMORANDUM OPINION

      Paul Dorsey was being held by the Texas Department of Criminal Justice, Institutional Division in a Coryell County prison, the Hughes Unit, on an eighteen-year sentence from Harris County for burglary of a building. He sued two employees of the Department, Gary L. Johnson and Joe Missildine, under section 1983 of title 42 of the United States Code, seeking monetary damages due to a change in his classification as a prisoner that would affect the rate at which he will accumulate “good-time credit.” The employees sought a summary judgment, which the court granted. On appeal, Dorsey asserts three issues: (1) he is entitled to judgment “as a matter of law” on his motion for summary judgment; (2) the employees did not establish their right to a summary judgment; and (3) his due-process rights were violated during the telephone conference hearing on the motions for summary judgment.

STANDARD OF REVIEW FOR SUMMARY JUDGMENT

      We first note that the employees’ second (amended) motion for summary judgment was styled a “no-evidence” motion under Rule 166a(i) of the Rules of Civil Procedure. Tex. R. Civ. P. 166a(i). However, they supported their motion with summary judgment evidence in the form of a “Disciplinary Hearing Record” and Dorsey’s Motion for Full Discontinuance. Thus, following our prior decisions, we will review their motion under the standards for a traditional motion. See Williams v. Bank One, Texas, N.A., 15 S.W.3d 110, 117 (Tex. App.—Waco 1999, no pet.) (“[W]e generally treat a summary judgment motion filed with supporting evidence as a traditional motion for summary judgment.”).

      The standards for reviewing a summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to the summary judgment as a matter of law. Id. The reviewing court must accept all evidence favorable to the non-movant as true. Id. at 548-49. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in his favor. Id. at 549. We review the grant of a summary judgment de novo. Rucker v. Bank One, 36 S.W.3d 649, 653 (Tex. App.—Waco 2000, pet. denied).

      When competing motions for summary judgment are filed, the appellate court can "determine all questions presented, and may reverse the trial court judgment and render such judgment as the trial court should have rendered, including rendering judgment for the other movant." Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988); see also Tobin v. Garcia, 316 S.W.2d 396, 400 (Tex. 1958). Accordingly, we will first address Dorsey’s second issue, i.e., whether the court properly granted summary judgment in favor of the employees. Only if we decide that summary judgment was improper will we consider whether Dorsey established that he is entitled to a summary judgment.

WAS THE SUMMARY JUDGMENT PROPER?

      Dorsey’ second issue asserts that the employees did not establish their right to the summary judgment—a Malooly point. Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). Although the trial court specified that it was granting a “no-evidence” summary judgment, we review the grant of a summary judgment motion de novo and, under the decisions of this court cited above, in the manner in which the trial court should have considered the motion. See Williams, 15 S.W.3d at 116. We may not consider any grounds not expressly presented to the court in the written motion for summary judgment. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339-41 (Tex. 1993).

      The employees’ first ground for summary judgment is dispositive: Dorsey’s claims (for monetary damages) cannot be maintained under 42 U.S.C. § 1983. In 1973, the Supreme Court decided that a prisoner cannot use section 1983 to recover good-time credits lost in a prison disciplinary proceeding. See Preiser v. Rodriguez, 411 U.S. 475, 487, 93 S.Ct. 1827, 1835, 36 L.Ed.2d 439 (1973). The court left open the question of recovery of monetary damages, the only remedy Dorsey’s petition seeks. But in 1994, the Court decided that a claim for damages that would render a “conviction” invalid when the conviction has not been otherwise invalidated is not cognizable under section 1983. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct 2364, 2372, 129 L.Ed.2d 383 (1994). “Conviction” includes a ruling in a disciplinary proceeding that results in loss of good-time credits. See Edwards v. Balisok, 520 U.S. 641, 644-49, 117 S.Ct. 1584, 1587-89, 137 L.Ed.2d 906 (1997); see also DeWalt v. Carter, 214 F.3d 606, 615 (7th Cir. 1999) (noting that Edwards extended the Heck rule to section 1983 claims for damages challenging the loss of good-time credits in prison disciplinary actions). Based on these decisions, we find that the court properly granted the summary judgment. As a result, it would have been improper to grant Dorsey’s. We overrule issues one and two.

TELEPHONE CONFERENCE ON MOTIONS

      The court permitted Dorsey to participate in the hearing on the summary judgment motions by telephone from the prison. His third issue complains that the “appellees conspired with co-officials before time” to position him in a hallway that was so noisy due to a shift-change taking place that his attention was distracted.

      His complaint in this instance is about the prison officials, not the trial court. Acts of the prison officials are not before us. The issue is overruled.

CONCLUSION

      Because the trial court properly granted the employee-defendants’ motion for summary judgment, we affirm it.

                                                                   BILL VANCE

                                                                   Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

      (Justice Gray concurring)

Affirmed

Opinion delivered and filed October 9, 2002

Do not publish

[CV06]