Patrick Lee Mullins v. Susan Schumacher, et al--Appeal from 1A District Court of Tyler County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-03-497 CV
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PATRICK LEE MULLINS, Appellant
V.
S. SCHUMACHER, ET AL., Appellees
On Appeal from the 1-A District Court
Tyler County, Texas
Trial Cause No. 18,587
MEMORANDUM OPINION (1)

Patrick Lee Mullins, a Texas Department of Criminal Justice, Correctional Institutions Division inmate, filed suit against Department employees S. Schumacher, K. Ward, D. Bone, A. Cantu, B. Thomas, E. Verret, F. Rawls, G. Mouvre, H. Seagrove, I. Karkowski, W. Shackleford, D. Powell, and C. Mann. Mullins filed in forma pauperis, making his claims subject to the procedural requirements of Chapter 14 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. 14.001-.014 (Vernon 2002). The trial court dismissed Mullins's claims against all defendants with prejudice. Mullins raises six issues in his appeal. (2)

Mullins alleged that he pursued and exhausted his administrative remedies by submitting his claims to the inmate grievance procedure. Copies of the Step 1 and Step 2 grievance decisions were attached to the petition. The allegations in the five grievances in substance correspond to the causes of action stated in the petition. With the date of the Step 2 administrative decision, they are: (1) a complaint regarding administrative segregation impeding Mullins's access to the courts and to his personal property, resolved March 6, 2003; (2) a complaint regarding being placed on book restriction in the law library, resolved February 20, 2003; (3) a complaint relating to a shakedown of his cell and resulting placement on food loaf for seven days, resolved February 21, 2003; (4) a complaint of a fabricated sexual misconduct disciplinary action with an attendant disclosure of medical information, resolved March 3, 2003; and (5) a complaint regarding withholding medical supplies and declining to issue an order for Mullins to be handcuffed in front rather than in back, resolved February 18, 2003. The suit was filed on May 1, 2003, more than thirty (30) days following the resolution of each of the administrative proceedings. With his petition, Mullins filed an undated document titled "Affidavit of Plaintiff, Patrick Lee Mullins, of Exhaustion of Administrative Remedies and Compliance with Ch. 14, Tex. Civ. Prac. & Rem. Code Ann." That document alleged a "return date" for each of the grievances. The first was returned March 12, 2003, the second was "still pending," the third return date was March 3, the fourth March 12, and the fifth February 28. Except for the library restriction grievance alleged to be still pending, none of these dates is within thirty-one (31) days of May 1.

Schumacher and Ward raised the late filing issue in a motion to dismiss filed with the trial court on June 27, 2003. Also on June 27, 2003, Mullins filed a document titled "Verification of Exhaustion of Remedies and Compliance with Chapter 14, Texas Civil Practice & Remedies Code," in which Mullins claimed to have received the Step 2 grievance on the law library restrictions on June 10, 2003. The document containing the signed resolution of the grievance is dated either "03/28/03" or "05/28/03." On July 7, 2003, the trial court dismissed the appeal pursuant to Chapter 14 without expressly ruling on the motion to dismiss. That same day, Mullins filed a document titled "Plaintiff's Ex Parte Objections to Defendants' Motion to Dismiss Converting Motion into Summary Judgment Motion for the Plaintiff." In that document, Mullins states, "This Action/Lawsuit was mailed to the Tyler County Court on the 07th day of April 2003 A.D. An [sic] can be proved by the Indigent Mail Records of the Gib Lewis Ext. CellBlock Mailroom." The same document acknowledges, "This Lawsuit was not filed until May 01st, 2003 AD. By the Tyler County Court."

A document is "filed" when it is tendered to the clerk, or otherwise put under the custody or control of the clerk. Tex. R. Civ. P. 74; Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 787 S.W.2d 371, 372 (Tex. 1990). An incarcerated litigant's claim, which is governed by Chapter 14, is deemed filed "when the inmate places the document in a properly addressed and stamped envelope or wrapper in the hands of prison authorities. . . ." Warner v. Glass, No. 03-0214, slip op. at 4, 2004 Tex. LEXIS 438, at *9-13 (Tex. May 7, 2004) (not yet reported)(adopting Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988)). The pleadings establish Mullins's noncompliance with Section 14.005(b) as to only one of the five groups of claims. By his own pleadings and responses, Mullins established that the claims relating to the shakedown of his cell and the subsequent disciplinary case were exhausted administratively on February 21, 2003, and that he received notice of the Step 2 ruling on March 3, 2003. Mullins alleges he deposited the petition in the prison mail system on April 7, 2003. Therefore, the trial court did not err in dismissing those claims with prejudice. See Hines v. Massey, 79 S.W.3d 269, 272 (Tex. App.--Beaumont 2002, no pet.)("A suit which is not timely filed pursuant to section 14.005(b) is barred and may be dismissed with prejudice."). The facially late-filed claims include one of the two sets of claims against Rawls and all of the allegations against Thomas and Verret.

Mullins's remaining claims relate to administrative segregation, law library book restrictions, the disciplinary action with disclosure of medical information, and the withholding of medical supplies and failure to issue an order regarding modified restraints. These claims were not demonstrably filed more than thirty (30) days after the date Mullins received the written decision from the grievance system.

The petition, however, suffers from another deficiency under Chapter 14. Mullins did not file the trust account statement required by Section 14.004(c). See Tex. Civ. Prac. & Rem. Code Ann. 14.004(c) (Vernon 2002). Mullins alleged he had requested but had not received a trust account statement. On appeal, he argues that a dismissal on these facts would be an abuse of the trial court's discretion. No authority is offered for that proposition, however, and the statute does not provide an inmate with the right to file a suit without the statement. Section 14.006(f), which provides for court-ordered payment of fees based upon a percentage of the inmate's trust account balance, does state that the trial court may order the Department to furnish a trust account statement. Tex. Civ. Prac. & Rem. Code Ann. 14.006(f) (Vernon 2002). The statute does not, however, require the trial court to order the Department to furnish a trust account statement if the inmate does not comply with Section 14.004(c). Therefore, the trial court could act within its discretion in dismissing the suit. Unlike a claim dismissed under Section 14.005(b), however, such a dismissal is not a ruling on the merits of the claim. See Tex. Civ. Prac. & Rem. Code Ann. 14.005(b) (Vernon 2002). Therefore, the trial court erred in dismissing the claim with prejudice. Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App.--Beaumont 2001, no pet.).

Finally, Mullins argues that the trial court erred in failing to notify Mullins of its intent to dismiss the suit. Although a motion to dismiss had been filed, the trial court dismissed the suit pursuant to its authority under Section 14.003(a). An inmate does not have a right to prior notice or to an opportunity to amend his pleadings before the trial court exercises its right to dismiss the case without prejudice under Section 14.003(a). See Tex. Civ. Prac. & Rem. Code Ann. 14.003(a) (Vernon 2002). Hughes, 65 S.W.3d at 746. Issue five is overruled.

We hold that Mullins's suit was subject to dismissal for noncompliance with the statutory requirements for inmate suits filed in forma pauperis. Issue one is overruled. The deficiencies are apparent on the face of the pleadings. Therefore, the trial court did not improperly resolve material fact issues, as argued in issues two and three. Issues two and three are overruled. Mullins's claims regarding the shakedown and subsequent disciplinary action were not timely filed pursuant to Section 14.005(b). Therefore, the trial court did not err in dismissing those claims with prejudice. The claims regarding administrative segregation, law library book restrictions, the disciplinary action with disclosure of medical information, the withholding of medical supplies and the failure to issue an order regarding modified restraint, however, were shown to have been subject to dismissal under Section 14.004(c), not Section 14.005(b). Therefore, the trial court erred in dismissing those claims with prejudice. "The proper remedy is to modify the judgment by deleting the words 'with prejudice' and by substituting the words 'without prejudice.'" Hughes, 65 S.W.3d at 746. Issue six is sustained in part. Because the trial court was authorized to dismiss the entire case for failure to file a trust account statement, we do not address the argument, raised in issue four, that the dismissed claims had an arguable basis in law.

We reform the judgment to dismiss without prejudice the following causes of action in tort: (1) against H. Seagrove, D. Bone, S. Schumacher, and K. Ward, for impeding access to the courts and personal property through administrative segregation; (2) against S. Schumacher, K. Ward, D. Bone, and I. Karkowski, for imposing law library book restrictions; (3) against F. Rawls and D. Bone for filing a false disciplinary case and disclosure of medical information; and (5) against G. Mouvre and W. Shackleford for withholding medical supplies and failing to order modified restraints. (3)

AFFIRMED AS REFORMED.

 

____________________________

STEVE MCKEITHEN

Chief Justice

 

Submitted on April 26, 2004

Opinion Delivered June 10, 2004

 

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. Tex. R. App. P. 47.4.

2. The issues are: (1) whether the trial court abused its discretion in dismissing Mullins's suit pursuant to Chapter 14; (2) whether the trial court improperly resolved fact issues in granting judgment; (3) whether disputed fact issues are material issues; (4) whether the trial court has jurisdiction over the appellant's claims; (5) whether the trial court violated the appellant's due process rights in failing to notify him of its intention to dismiss the case; and (6) whether the trial court properly dismissed the suit on proper grounds.

3. We decide this appeal based upon the technical requirements of Chapter 14. Of course, our opinion addresses only the facial allegations regarding the time elapsed between administrative exhaustion and filing suit. This opinion does not decide whether the suit was in fact timely filed, nor do we decide if the allegations have actual merit.