Kelly, William Steed v. Scott, Wayne Et Al.--Appeal from 278th District Court of Walker County

Affirmed and Memorandum Opinion filed May 29, 2003

Affirmed and Memorandum Opinion filed May 29, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-00696-CV

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WILLIAM STEED KELLEY, Appellant

V.

WAYNE SCOTT, EXECUTIVE DIRECTOR OF THE TDCJ-ID; GARY L. JOHNSON, DIRECTOR OF THE TDCJ-ID; DEBBIE LILES; LEPHER JENKINS; MARK A. DIAZ; ORLANDO PEREZ; WILLIAM BOOTHE; BRIAN RODEEN; VERNON K. PITTMAN; MAJOR D. CARRILLO; CALVIN LANGFORD; ARMANDO CAVADA; WILLIAM NEWSOME; M. B. BROWN; CHARLES BRIDGES; RAFAEL MENCHACA; F. N. U. BROWN; ROY D. GLOVER, JR.; ROBERTO ROMANOS; MELISSA BRISE OS; AMADOR CHAPA; WESLEY W. HEMPHILL; J. G. REDDICK; WARNER C. COLLIER; HERMAN M. CALLAHAN; DARREN B. WALLACE; MIGUEL A. NIEDERHAUSER; SHIELA DELGADO-STARR; MARIA URBANO; ROBERTO BALLONES; PHILLIPA LANG; ELI CORDOVA; SANDRA LOPEZ; DEBBIE BALLARD; MICHAEL P. SKAU; ERNEST J. Del BOSQUE; FIVE (5) JOHN DOES; RICKY HAILE; DANIEL DOMINGUEZ; ERIC LANG; MORRIS DODSON; XAVIER DUENEZ; ROY MORALES; HARVEY MUELLER; RANDY LEAL; SABAS ENCENIAS, JR.; JOSEPH LANG, JR.; THOMAS M. DUGAN; PABLO GARZA; HECTOR OLIVAREZ; HAROLD DONOSO; WILLIE MARTIN, JR.; FRANK HOKE; RENE NIETO; JULIA LOPEZ; ORALIA GARCIA; DAVID A. BROWN; LISA MARIA GONZALEZ; SAMUAL R. SEGOVIA; DENNIS S. TORRES, JR.; STEPHEN T. BURNS; TONY L. MALDONADO; KERRY DIXON; LAURIE MEDINA; BRANDON D. TURNER; DAVID M. BLACKWELL; JANICE LARTY; K. SEGOVIA; TIMOTHY SCHMIDT; THOMAS EL-SHABBAZZ; I. J. HILBURN; WILLIS J. DOSSEY; JANE HOE; WILLIE WOE; F.N.U. _______; ROBERT L. HOLBROOK, JR.; ROBERT E. CUMMINGS; KIMBERLY CLINKSCALES; JUAN M. BENAVIDES; CPT. M. MITTON; CO. III M. HORRELL; CO. III D. DRETKE; NORMA SHERMAN; CPT. G. L. STEPHENSON; BRIAN EVANS; SGT. CHRISTOPHER GREEN; JEFFREY WYATT; DONNA M. ALLEN, CPT.; JAMES E. KRUEGER; JoANN DAVIS; FRANCES ALMENDAREZ; LINDA PATTESON; M. DIXON (M.S.C.P.); DIRECTOR=S REVIEW COMMITTEE MEMBERS (UNKNOWN); J. WEST; M. TODD; L. DAVIDSON;  Appellees

On Appeal from the 278th District Court

Walker  County, Texas

Trial Court Cause No. 98-137

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

William Steed Kelley appeals the trial court=s dismissal of his claims under Chapter 14 of the Texas Civil Practice and Remedies Code. We affirm.

I. Factual and Procedural Background

Kelley is an inmate in the Texas Department of Criminal Justice (ATDCJ@), Institutional Division. Kelley and other inmates filed a lengthy pro se, in forma pauperis lawsuit against numerous individuals alleging various claims, including violations of 42 U.S.C. '1983. After the trial court dismissed all of these claims, this court affirmed the dismissal as to the plaintiffs other than Kelley and as to Kelley=s claims for equitable and declaratory relief; however, this court reversed and remanded Kelley=s claims for monetary damages. See Kelley v. Scott, 38 S.W.3d 751, 752B53 (Tex. App.CHouston [14th Dist.] 2001, no pet.).

On remand, the Attorney General of Texas, acting as amicus curiae, requested that the trial court dismiss all of Kelley=s claims against the unserved and unrepresented defendants under Chapter 14 of the Texas Civil Practice and Remedies Code. After an oral hearing, in which Kelley participated, the trial court dismissed Kelley=s claims for, among other reasons, Kelley=s failure to comply with section 14.005 of the Texas Civil Practice and Remedies Code.

II. Issues and Analysis

On appeal, Kelley asserts, among other things, that the trial court abused its discretion by allowing the Attorney General to act as amicus curiae and by dismissing his claims for failure to comply with section 14.005 of the Texas Civil Practice and Remedies Code.

A. Did the trial court abuse its discretion by allowing the Attorney General to act as amicus curiae?

In his fourth issue, Kelley asserts the trial court abused its discretion by allowing the Attorney General to act as amicus curiae because of an alleged conflict of interest created by the fact that the Attorney General would represent the defendants if they are served.[1] Kelley asserts that the trial court erroneously gave the defendants Atwo bites at the apple@ by allowing the Attorney General to act as amicus curiae and then represent the defendants later if they are served.

Courts may entertain suggestions from an amicus curiae, who, as a Afriend of the court@ makes suggestions to the court about questions apparent from the record in the case. See State v. The Jefferson Iron Co., 60 Tex. 312, 314B15 (Tex. 1883); Moseby v. Burrow, 52 Tex. 396, 403 (Tex. 1880); Jackson v. Birk, 84 S.W.2d 332, 332 (Tex. Civ. App.CFort Worth 1935, no writ). An amicus curiae is not a party to the suit and may only make suggestions to the court; the court can only take actions that it could have taken in the absence of the suggestions from the amicus curiae. See The Jefferson Iron Co., 60 Tex. at 314B15. Under Chapter 14 of the Texas Civil Practice and Remedies, the trial court has the power to dismiss an inmate=s suit before service of process for failure to comply with section 14.005. See Tex. Civ. Prac. & Rem Code '' 14.003, 14.005(b); Moreland v. Johnson, 95 S.W.3d 392, 393B95 (Tex. App.CHouston [1st Dist.] 2002, no pet.). We hold that the trial court did not err by allowing the Attorney General act as amicus curiae. See The Jefferson Iron Co., 60 Tex. at 314B15. We overrule Kelley=s fourth issue.

  B. Did the trial court abuse its discretion by dismissing Kelley=s claims for failure to comply with section 14.005 of the Texas Civil Practice and Remedies Code?

Under his third issue, Kelley asserts that the trial court erred by dismissing his claims for failure to comply with section 14.005 of the Texas Civil Practice and Remedies Code for the following reasons: (1) Kelley allegedly does not have to comply with this section as to one of his claims because it is not subject to the inmate grievance system; (2) Kelley allegedly substantially complied with this section; (3) Kelley allegedly does not have to comply with this section because, as applied to Kelley, this section violates his constitutional rights to due process by depriving him of his access to the courts; and (4) Kelley allegedly was entitled to equitable tolling of the requirement that he file suit within thirty-one days of receiving a written decision from the inmate grievance system.

We review a trial court=s dismissal of an inmate=s claims under Chapter 14 of the Texas Civil Practice and Remedies Code under an abuse-of-discretion standard. Retzlaff v. Texas Dept. of Criminal Justice, 94 S.W.3d 650, 654 (Tex. App.CHouston [14th Dist.]2002, pet. denied). To establish an abuse of discretion, Kelley must show that the trial court acted without reference to any guiding rules and principles or, alternatively, that the trial court=s actions were arbitrary or unreasonable based on the circumstances of the individual case. Id. The fact that, under similar circumstances, an appellate court might decide a matter differently than did the trial court does not demonstrate that an abuse of discretion has occurred. Id.

  1. Does section 14.005 of the Texas Civil Practice and Remedies Code not apply to Kelley=s publication claim because it is not subject to the grievance system?

Section 14.005 applies to inmate claims that are subject to the inmate grievance system established under section 501.008 of the Texas Government Code. See Tex. Civ. Prac. & Rem. code ' 14.005(a); Tex. Gov. Code ' 501.008. On appeal, Kelley admits that his damage claims are generally subject to the inmate grievance system, even though that system cannot award Kelley any damages. However, Kelley asserts that one of his claims is not subject to the inmate grievance system because it relates to publications. The inmate grievance system under section 501.008 of the Texas Government Code provides Athe exclusive administrative remedy available to an inmate for a claim for relief against the [TDCJ] that arises while the inmate is housed in a facility operated by the [TDCJ] or under contract with the [TDCJ], other than a remedy provided by writ of habeas corpus challenging the validity of an action occurring before the delivery of the inmate to the [TDCJ] or to a facility operated under contract with the [TDCJ].@ See Tex. Gov. Code '501.008(a).

One of Kelley=s claims relates to his allegation that defendants improperly confiscated a written work that he had authored. Kelley asserts that his claim regarding this publication is not subject to the inmate grievance system established under section 501.008 of the Texas Government Code but rather is subject to ACorrespondence Review Procedures,@ which he purports to cite. Kelley did not properly prove up the existence and nature of these procedures in the trial court. Further, presuming for the sake of argument that there are procedures containing the language Kelley purports to quote, these procedures are consistent with the inmate grievance system applying to Kelley=s claim regarding his alleged publication. In the trial court, Kelley did not allege or prove facts that would show that this claim is not subject to the inmate grievance system. See Retzlaff, 94 S.W.3d at 654 (stating that the inmate grievance system provides the exclusive administrative remedy for inmate claims arising under the Texas Tort Claims Act); Allen v. Texas Dep=t of Crim. Justice-Inst. Div., 80 S.W.3d 681, 684 (Tex. App.CHouston [1st Dist.] 2002, pet. denied) (holding inmate claims for damages are subject to inmate grievance system even though inmates cannot be awarded damages under this grievance system). Accordingly, we hold that the trial court correctly determined that section 14.005 applied to all of Kelley=s claims.

2. Did Kelley substantially comply with section 14.005 of the Texas Civil Practice and Remedies Code?

Section 14.005 of the Texas Civil Practice and Remedies Code states:

(a) An inmate who files a claim that is subject to the grievance system established under Section 501.008, Government Code, shall file with the court:

(1) an affidavit or unsworn declaration stating the date that the grievance was filed and the date the written decision described by Section 501.008(d), Government Code, was received by the inmate; and

(2) a copy of the written decision from the grievance system.

(b) A court shall dismiss a claim if the inmate fails to file the claim before the 31st day after the date the inmate receives the written decision from the grievance system.

Tex. Civ. Prac. & Rem. code ' 14.005(a), (b).

On appeal, Kelley argues that he substantially complied with section 14.005, but he does not explain how he did so. In the trial court, Kelley asserted that he had complied with this section by attaching a written ruling on his grievance number 9246. Kelley did attach to his petition an unsworn declaration that he asserted was made under section 14.005. This declaration did not state the date that Kelley filed any grievance, and it did not state the date that Kelley received a written decision from the inmate grievance system. Though Kelley did attach a copy of a written decision from the grievance system on his grievance number 9246, this decision was rendered on June 27, 1996, almost two years before Kelley signed his petition in this case on June 22, 1998, and more than two years before his petition was received by the district clerk in July of 1998.

Kelley also seems to argue that he complied with section 14.005 by filing thousands of pieces of paper relating to various grievances along with his response in opposition to the Attorney General=s suggestion that the trial court dismiss Kelley=s claims. However, the record indicates that Kelley received all of the written decisions on the grievances contained in these materials more than thirty-one days before he filed this lawsuit.

In sum, the record shows that Kelley did not substantially comply with the requirements contained in subsections (a) and (b) of section 14.005. Accordingly, we hold that the trial court did not abuse its discretion in dismissing Kelley=s petition for failure to comply with this section and for failure to file suit within thirty-one days of receiving a written decision issued by the highest authority provided in the grievance system. See Tex. Civ. Prac. & Rem. code '14.005; Tex. Gov. Code '501.008(d); Moreland, 95 S.W.3d at 395 (holding trial court did not abuse its discretion in dismissing inmate=s claims because he did not show that he filed suit within thirty-one days of receiving a written decision from the grievance system); Retzlaff, 94 S.W.3d at 654 (holding trial court did not abuse its discretion by dismissing inmate=s tort claims for failure to exhaust administrative remedies).

  3. Does section 14.005 of the Texas Civil Practice and Remedies Code violate Kelley=s constitutional rights to due process and access to the courts?

Kelley also asserts he does not have to comply with section 14.005 because, as applied to Kelley, this section violates his constitutional rights to due process by depriving him of his access to the courts. We presume that section 14.005 is constitutional. See Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 725 (Tex.1995). In the trial court, Kelley had the burden of proving all facts necessary to show that this statute is unconstitutional. Id. We conclude that Kelley did not show that section 14.005 is unconstitutional as applied to him in this case.

Kelley claims that various aspects of the inmate grievance system prevented him from filing this suit within thirty-one days of receiving a written decision from the grievance system. Kelley alleges that he is limited to asserting one issue in each grievance and that he is allowed to file only one grievance every seven days. Kelley claims that these limitations, combined with an alleged requirement that the grievance be filed within fifteen days of the occurrence made the basis of the grievance, prevent Kelley from exhausting his administrative remedies and filing suit within thirty-one days so as to avoid dismissal under section 14.005(b). Presuming for the sake of argument that Kelley correctly characterizes the restrictions placed on him, he still has shown no constitutional violation.

Kelley uses a hypothetical in his brief to show how these limitations allegedly might have this effect; however, Kelley does not explain or point to any evidence in the record showing how these alleged restrictions prevented Kelley from exhausting administrative remedies and filing suit within thirty-one days in this case. Kelley states generally that these alleged restrictions prevented him from properly pursuing administrative remedies as to his Eighth Amendment claim, even though he states in his brief that the papers relating to the grievances that he has filed constitute thousands of pages of material. If Kelley claims that the overall conditions of his confinement violate the Eighth Amendment of the United States Constitution, Kelley has not alleged or shown that anything would prevent him from presenting this in a single grievance. If Kelley has claims about specific incidents of alleged wrongful conduct, he has not shown that he was unable to assert grievances regarding these claims in accordance with the alleged restrictions on him. Indeed, the record indicates that Kelley has filed many grievances. Therefore, even if Kelley had an arguable claim that section 14.005 violated his constitutional rights based on these alleged restrictions, Kelley did not prove up this alleged constitutional violation by showing that the alleged restrictions prevented him from exhausting administrative remedies as to these claims. See Edgewood Indep. Sch. Dist., 917 S.W.2d at 725; Tex Air Helicopters, Inc. v. Galveston County Appraisal Review Bd., 76 S.W.3d 575, 585B86 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).

Kelley also complains that thirty-one days is not enough time for him to investigate the facts and the law, and draft and file a petition. Kelley=s argument appears to be based on a misunderstanding of section 14.005. Kelley indicates in various portions of his argument that the thirty-one-day period starts at the time of the occurrence made the basis of suit or the time of filing the grievance. However, the thirty-one-day period in section 14.005 starts after the inmate receives a final written decision from the grievance system, not when the inmate=s claim accrues or the inmate files a grievance. See Tex. Civ. Prac. & Rem. code ' 14.005(b). For an inmate who already has pursued a grievance through the administrative channels and exhausted those potential remedies, thirty-one days to convert that grievance into a lawsuit is ample time to act. See Sanders v. Palunsky, 36 S.W.2d 222, 227 (Tex. App.CHouston [14th Dist.] 2001, no pet.). This is not a circumstance in which the inmate merely has thirty-one days to discover the claim and then initiate suit upon it; he already knows about the claim and already has pursued the administrative steps to act upon it. Id. Kelley has not alleged or proven any conditions that prevented him from filing suit within thirty-one days of the written decisions on his grievances or anything that made this time limitation unreasonable as applied to him. Therefore, we reject Kelley=s argument that this time limitation is unreasonable and violates the Fourteenth Amendment of the United States Constitution and the due-course-of-law and open-courts provisions of the Texas Constitution. Id. (rejecting similar open-courts challenge); Randle v. Wilson, 26 S.W.3d 513, 515B16 (Tex. App.CAmarillo 2000, no pet.) (rejecting similar due-process/access-to-courts challenge). Kelley also alleges that there is an unconstitutional conspiracy to make his claims time-barred under section 14.005 by delaying ruling on them under the grievance system. Again, however, the time period under this section does not begin until Kelley receives a final written decision, so even if officials were delaying the completion of the process, this would not have resulted in Kelley=s claims being barred under section 14.005. Furthermore, under section 501.008(d) of the Texas Government Code, inmates can proceed with state-court claims despite failure to complete the grievance process if the inmate has not received a final written decision within 180 days after filing the grievance. See Tex. Gov. Code '501.008(d). Therefore, presuming for the sake of argument that officials are not ruling on Kelley=s grievances, this would not deny Kelley access to courts because Kelley can file suit in state court without exhausting administrative remedies if there has been no ruling 180 days after Kelley filed the grievance.

Lastly, Kelley asserts that, based on the alleged misconduct made the subject of his constitutional challenges, the time period in section 14.005 should be equitably tolled. Kelley cites no case allowing equitable tolling under this section, and we have found none. Even if equitable tolling were available, we hold that, on this record, the trial court did not abuse its discretion in refusing to apply equitable tolling.

III. Conclusion

We hold that the trial court properly rejected appellant=s argument that section 14.005 does not apply to all of his claims as well as his constitutional challenges to this section and his equitable tolling argument. We hold that the trial court did not abuse its discretion by dismissing Kelley=s claims under section 14.005 of the Texas Civil Practice and Remedies Code. Accordingly, we overrule Kelley=s third issue. Given this disposition, we need not address Kelley=s first and second issues. We affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed May 29, 2003.

Panel consists of Justices Yates, Anderson, and Frost.

[1] Kelley also asserts that the Attorney General engaged in an Aunjust representation of government interests over the rights of [Kelley]@ and that there was Acollusion between the district court and the Attorney General=s office.@ However, nothing in the record indicates that the trial court or the District Attorney=s office did anything improper in this regard.