Williams, Howard Vanzandt v. Wayne Scott, TDCJ-ID, Myson Foster and Lester Mitchell--Appeal from 23rd District Court of Brazoria County

Affirmedand Memorandum Opinion filed January 16, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00696-CV

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HOWARD VANZANDT WILLIAMS, Appellant

V.

WAYNE SCOTT, TDCJBID, MYSON FOSTER, and LESTER MITCHELL, Appellees

On Appeal from the 23rd District Court

Brazoria  County, Texas

Trial Court Cause No. 15848*I 01

M E M O R A N D U M O P I N I O N

Appellant Howard Vanzandt Williams, an inmate, appeals the dismissal of his lawsuit stemming from an alleged assault by two prison guards. We affirm.

In a suit brought by an inmate who asserts an inability to pay costs, the inmate must file an affidavit or declaration providing certain information about each previous lawsuit he or she has filed. See Tex. Civ. Prac. & Rem. Code Ann. '14.004 (Vernon 2002). If the inmate fails to comply with this requirement, the trial court may dismiss the lawsuit as frivolous. See id. '14.003; Bell v. Tex. Dep=t of Crim. JusticeBInst=l Div., 962 S.W.2d 156, 158 (Tex. App.CHouston [14th Dist.] 1998, pet. denied). We review the trial court=s dismissal for an abuse of discretion. Hickman v. Adams, 35 S.W.3d 120, 123 (Tex. App.CHouston [14th Dist.] 2000, no pet.).

In this case, Williams filed a declaration identifying numerous lawsuits he has filed in state and federal court. However, Williams=s declaration fails to state the operative facts for each lawsuit, as required by section 14.004. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.004(a)(2)(A). Instead, Williams supplies only general descriptions of the type of claim or the ground for legal recovery, such as AThis case was filed under the Texas Tort Claims Act@ or A[Defendants= acts] violated petitioner=s 1st and 14th Amendment rights.@ Thus, the trial court could not possibly determine whether the current suit arises from the same operative facts as these previously filed suits, and dismissal was appropriate. See White v. State, 37 S.W.3d 562, 565 (Tex. App.CBeaumont 2001, no pet.).

Williams claims that he was prevented from complying with the requirements of section 14.004 because of a TDCJBID rule requiring inmates to either destroy or send home all non-active legal materials. The only Aevidence@Williams presents supporting the existence of this rule is the following statement, which appears after the list of federal-court filings in his Unsworn Declaration of Previously Filed Lawsuits:

There may be other cases filed in the federal court system; however Petitioner due to a lapse of time, coupled with a new rule of TDCJBID that all non-active litigation material must either be sent home or destroyed, cannot properly comply.

Even if we were to conclude this statement constitutes some evidence that such a rule exists, Williams does not explain how this rule would have prevented him from providing the operative facts underlying the lawsuits that he does remember or that are currently pending. Accordingly, the trial court=s decision to dismiss was not an abuse its discretion.

Williams also claims the trial court abused its discretion by refusing to rule on several motions he filed, including a Motion for Entry of Default against the two individual prison guards, Myson Foster and Lester Mitchell. Foster and Mitchell were each served with citation in May 2001; however, they did not file an answer until March 13, 2002. On June 25, 2001, Williams filed a Motion for Entry of Default against Foster and Mitchell, requesting entry of a default judgment against them.[1] Williams claims that if the trial court had timely ruled on his motion and granted a default judgment against Foster and Mitchell, they would have been foreclosed from asserting their motion to dismiss. However, regardless of whether Williams=s motions were meritorious, the trial court still could have dismissed the petition in its entirety based on Williams=s failure to comply with section 14.004. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(a) (giving trial courts discretion to dismiss an inmate=s claims as frivolous on the court=s own motion or motion of a party Aeither before or after service of process@); Thomas v. Bilby, 40 S.W.3d 166, 168 (Tex. App.CTexarkana 2001, no pet.) (stating that a trial court may dismiss an inmate=s suit without notice for failure to comply with section 14.004). Accordingly, we cannot say the trial court abused its discretion by not ruling on Williams=s motions.

We affirm the trial court=s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed January 16, 2003.

Panel consists of Justices Yates, Anderson, and Frost.

[1] Williams also sought a default judgment against ATDCJBID.@ Although this entity=s name appears in the caption of Williams=s petition, Williams did not bring any claims against it; instead, Williams asserted claims against Wayne Scott in his capacity as executive director of Texas Department of Criminal Justice, Institutional Division. Scott filed an answer before Williams filed his motion for entry of a default judgment.