Williams, Howard Vanzandt v. Texas Department of Criminal Justice-Institutional Division Wayne Scott, Dada Brown, and JamesGonzales--Appeal from 23rd District Court of Brazoria County

Affirmed and Opinion filed August 8, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00646-CV

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HOWARD VANZANDT WILLIAMS, Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICEBINSTITUTIONAL DIVISION, WAYNE SCOTT, DANA BROWN, AND JAMES GONZALES, Appellees

On Appeal from the 23rd District Court

Brazoria  County, Texas

Trial Court Cause No. 15108*I01

O P I N I O N

In five issues, Howard Williams, an inmate suing in forma pauperis, appeals the dismissal of his tort and retaliation claims. We reform the judgment and affirm.

Background

This lawsuit is appellant=s second, identical suit against appellees for personal injury sustained by the Ause and misuse of tangible personal property, namely . . . [paper].@[1] Appellant also contends appellees have engaged in a conspiracy to violate his civil rights by removing his legal briefs from the prison mail facility, destroying his typewriter, and filing false disciplinary actions. See 42 U.S.C. ' 1983 (2000) (civil rights act). The trial court dismissed appellant=s first suit as frivolous for failure to attach a certified copy of his trust account statement, as required by section 14.004(c) of the Texas Civil Practice and Remedies Code. The dismissal, without prejudice, of the prior suit was affirmed in Williams v. Brown,et al., 33 S.W.3d 410, 412 (Tex. App.CHouston [1st Dist.]2000, no pet.).

On the State=s motion, the trial court dismissed this second suit as frivolous. See Tex. Civ. Prac. & Rem. Code Ann. '14.003 (Vernon Supp. 2002). The motion stated appellant failed to comply with Texas Civil Practice and Remedies Code sections 14.004 (requiring that an inmate file an affidavit identifying all prior litigation), 14.005 (requiring that an inmate file copies of grievance decisions), and 14.006(f) (requiring that inmate file a certified copy of his trust fund account statement). Neither Wayne Scott nor the Department of Criminal Justice filed an answer to this suit.

I. Discussion

We review the trial court=s dismissal under an abuse of discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.CWaco1996, no writ). In determining whether an inmate suit is frivolous or malicious, a trial court may consider whether the claim is substantially similar to a previous claim filed by the inmate because the claim arises out of the Asame operative facts.@ See Tex. Civ. Prac. & Rem. Code Ann. '14.003(b)(4). To enable a trial court to determine whether the suit is substantially similar to a previous one, an inmate is required to file a separate affidavit or unsworn declaration describing all other suits the inmate has brought and stating the Aoperative facts@upon which relief was sought. Id. ' 14.004(a)(2)(A). Because appellant=s sworn statement of prior litigation fails to adequately describe the operative facts of each case he has previously filed, the trial court=s dismissal was not an abuse of discretion.[2] White v. State, 37 S.W.3d 562, 565 (Tex. App.CBeaumont 2001, no pet.); Bell v. Texas Dep=t. of Criminal JusticeC Institutional Div., 962 S.W.2d 156, 158 (Tex. App.CHouston [14th Dist.] 1998, pet. denied). Dismissal was also proper because appellant=s sworn statement does not disclose whether some of the prior suits were dismissed as frivolous or malicious and does not provide the dates of the final orders affirming the dismissals. See Tex. Civ. Prac. & Rem. Code Ann. ''14.004(a)(2)(D), 14.004(b). We overrule appellant=s first issue.

Appellant next contends that: (1) the trial court must hold a hearing before granting a dismissal under Chapter 14; (2) the dismissal of the claims against Wayne Scott and the Department of Criminal Justice was unauthorized without an answer from those two defendants; and (3) Chapter 14 violates the Supremacy Clause of the United States Constitution by limiting his rights to seek redress under section 1983. We address each of these issues in turn.

First, a trial court need not hold a hearing before dismissing an inmate suit under Chapter 14. See, e.g., Retzlaff v. Tex. Dep=t of Criminal Justice, No. 14-01-00371-CV, 2002 WL 959480, at *4 (Tex. App.CHouston [14th Dist.] May 9, 2002, no pet.); Thomas v. Bilby, 40 S.W.3d 166, 168 (Tex. App.CTexarkana 2001, no pet.). Second, because a trial court is authorized to dismiss a suit under Chapter 14 either before or after service of process, it is also authorized to dismiss a suit in the absence of an answer from each and every defendant. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(a) (Acourt may dismiss a claim, either before or after service of process@); Bilby, 40 S.W.3d at 168. Third, the application of Chapter 14 to appellant=s section 1983 suit is neither arbitrary nor capricious, and does not violate the Supremacy Clause. Thomas v. Bush, 23 S.W.3d 215, 217B18 (Tex. App.CBeaumont 2000, pet. denied). Rather, Chapter 14 imposes neutral procedural rules to section 1983 suits. Id. See also Howlett v. Rose, 496 U.S. 356, 372 (1990) (holding neutral State procedure may be applied to federal claims unless pre-empted). We overrule each of these issues.

II. Dismissal with or without prejudice

Appellant=s final issue on appeal is a complaint regarding the trial court=s apparent oversight in indicating whether the dismissal was granted with or without prejudice. A dismissal with prejudice constitutes an adjudication on the merits and operates as if the case had been fully tried and decided. See Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex. 1999). Thus, orders dismissing cases with prejudice have full res judicata and collateral estoppel effect, barring subsequent relitigation of the same causes of action or issues between the same parties. See Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630B31 (Tex. 1992). A dismissal with prejudice is improper if the error can be remedied. Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex. App.CCorpus Christi 2001, pet. denied); Hickman v. Adams, 35 S.W.3d 120, 125 & n.1 (Tex. App.CHouston [14th Dist.] 2000, no pet.).

Appellant=s failure to comply with Chapter 14 in his first lawsuit could have been remedied through more specific pleading. When an inmate fails to comply with Chapter 14, dismissal with prejudice is appropriate only after the inmate has had an opportunity to amend. See Hickman, 35 S.W.3d at 125 & n.2 (citing Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex. App.CHouston [14th Dist.] 1990, no writ) (affirming dismissal with prejudice where failure to comply with Chapter 14 persisted after opportunity to amend petition)). Here, appellant has had an opportunity to amend his complaint by virtue of his filing of this second and identical suit. However, appellant=s pleadings in this suit also fail to comply with Chapter 14 because, as we discuss above, his statement of prior litigation is purposefully inadequate for the trial court to determine whether this or a substantially similar suit had been brought on a prior occasion. Under these circumstances, we hold dismissal with prejudice is appropriate.

To the extent appellant=s brief raises issues not addressed above, we deem them waived. See Tex. R. App. P. 38.1(h) (requiring that a brief clearly and concisely delineate issues and provide citations to authority and the record).

We reform the judgment to reflect that the cause is dismissed Awith prejudice.@ As reformed, the judgment is affirmed.

/s/ Eva M. Guzman

Justice

Judgment rendered and Opinion filed August 8, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Do Not Publish CTex. R. App. P. 47.3(b).

[1] Appellant fails to provide the court with further insight into the nature of his injury from paper.

[2] Appellant has filed approximately 35 inmate suits, at least some of which, from the limited information given, appear to contain allegations similar to those of this suit. The precise number and nature of the prior suits is impossible to determine because appellant has deliberately massed his descriptions together in an incomprehensible narrative.