Roy Jon v. Victor Tuatagola, Otis Bruce, Chauncey Miles, Rodney Dixon, and Texas Department of Criminal Justice-Institutional Division--Appeal from 5th District Court of Bowie County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00116-CV

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ROY JON, Appellant

V.

VICTOR TUATAGOLA, OTIS BRUCE, CHAUNCEY MILES, RODNEY

DIXON, AND TEXAS DEPARTMENT OF CRIMINAL

JUSTICE INSTITUTIONAL DIVISION, Appellees

On Appeal from the 5th Judicial District Court

Bowie County, Texas

Trial Court No. 04C1327-005

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Roy Jon, an indigent inmate proceeding without counsel, filed suit September 27, 2004, against Victor Tuatagola, Otis Bruce, Chauncey Miles, and Rodney Dixon, in their individual capacities, alleging assault, with personal injuries, and a subsequent denial of needed medical care. Jon also sued the Texas Department of Criminal Justice Institutional Division under a theory of negligent supervision. Jon's original petition alleged the underlying altercation between himself and the defendants occurred November 23, 2000.

The case was assigned to the 202nd Judicial District Court as cause number 04-C-1327-202, but was later transferred to the Fifth Judicial District Court, also of Bowie County. The case was thereafter referred to a special master for review. The special master's report to the trial court recommended the case be dismissed because Jon had "(1) failed to allege (and file the proof required by the law) that he had exhausted, in a timely fashion, his administrative remedies; (2) failed to file a proper affidavit with respect to prior filings; and (3) failed to file his cause within the time specified [for inmates who wish to proceed without filing costs]." On August 31, 2005, the trial court formally dismissed Jon's suit, with prejudice, after finding that Jon had not complied with the requirements of Chapter 14 of the Texas Civil Practice and Remedies Code. Jon filed his notice of appeal the same day. Jon now raises six points of error. //

I. Appointment of a Special Master

In his first point of error, Jon contends the trial court erred by appointing a special master to review this lawsuit and make recommendations to the trial court. "As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court by a timely request, objection, or motion . . . ." Tex. R. App. P. 33.1(a). The record before us does not show Jon raised this issue at the trial court level.

Jon contends he was not given an opportunity to object at the trial court level because the trial court dismissed the lawsuit on the same date the special master's report was filed. However, Jon filed his notice of appeal on the same date the trial court dismissed the lawsuit. Because the trial court's order of dismissal references the master's report, Jon knew of the appointment of the master by the time of the court's order. He, therefore, could have raised this issue at the trial court level by filing a motion for new trial. See Tex. R. App. P. 21.2 (motion for new trial is prerequisite to presenting point of error on appeal when necessary to adduce facts not in record). Jon did not file a motion for new trial. //

Therefore, because this issue was not raised at the trial court level, it is not preserved for appellate review. See Tex. R. App. P. 33.1(a). We overrule Jon's first point of error.

II. Dismissal with Prejudice

In his second point of error, Jon ostensibly argues that our prior decision in Jon v. Tuatagola, No. 06-03-00103-CV, did not prevent him from refiling his suit against the appellees in this case, that the statute of limitations was tolled by the prior suit, and that the trial court abused its discretion by dismissing the instant case "with prejudice." Jon then asserts the trial court's dismissal violates the open courts provision of the Texas Constitution. In his fifth point of error, Jon again contends the trial court erred in finding the statute of limitations barred Jon's lawsuit.

A. Dismissing Jon's Suit "With Prejudice"

We review a trial court's decision to dismiss an inmate's claim subject to Chapter 14 under an abuse of discretion standard. To establish an abuse of discretion, an appellant must show the trial court's actions were arbitrary or unreasonable in light of all the circumstances. We must ask whether the trial court acted without reference to any guiding rules or principles. Spurlock v. Schroedter, 88 S.W.3d 733, 735 36 (Tex. App. Corpus Christi 2002, no pet.).

Section 14.005(b) of the Civil Practice and Remedies Code states, "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 Ann. 14.005(b) (Vernon 2002). The clerk's record in our previous opinion shows Jon filed Step 1 and Step 2 grievances with the Department. The Department resolved the Step 2 grievance January 24, 2001, by referring Jon's complaint to the Internal Affairs Division. The record in this case suggests Jon received notice of that disposition February 11, 2001. Ten days later, Jon filed the prior lawsuit. The trial court, however, dismissed the suit with prejudice May 29, 2001. Jon appealed, and this Court affirmed the dismissal, but modified the judgment to a dismissal without prejudice. Jon, 2004 Tex. App. LEXIS 2043, at *4; cf. Thomas v. Skinner, 54 S.W.3d 845, 846 47 (Tex. App. Corpus Christi 2001, pet. denied). Our mandate in that appeal issued May 12, 2004.

Assuming, without deciding, that Jon's prior appeal tolled all deadlines under the doctrine of equitable tolling, // and that Jon's initial filing deadline was allowed to start anew following the conclusion of his prior appeal, the best case scenario for Jon would have required him to refile his lawsuit within thirty-one days from May 12, 2004, the date on which we issued our mandate in the prior appeal. Jon, however, did not file the present lawsuit until September 21, 2004 more than four months later. Jon's petition was, therefore, patently untimely under any scenario. And unlike the situation presented in Jon's prior appeal or in Thomas, 54 S.W.3d at 846 47 (inmate's failure to comply with Chapter 14 could be remedied by amending petition and accompanying affidavits), the time bar now presented cannot be remedied by Jon. Therefore, a dismissal with prejudice was proper. See Tex. Civ. Prac. & Rem. Code Ann. 14.005(b); cf. Diamond, 105 S.W.3d at 697 (where trial court properly dismissed suit with prejudice on statute of limitations, any collateral error ostensibly influencing decision to dismiss is harmless).

B. Article 14.005(b) and the "Open Courts" Provision of the Texas Constitution

Jon also contends Chapter 14 of the Civil Practice and Remedies Code violates the open courts provision of the Texas Constitution. See Tex. Const. art. I, 13. "An open courts challenge has a two-part test: 'First, it must be shown that the litigant has a cognizable common law cause of action that is being restricted. Second, the litigant must show that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute.'" Thomas v. Bush, 23 S.W.3d 215, 218 (Tex. App. Beaumont 2000, pet. denied) (quoting Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983)).

Jon's brief makes no attempt to show how or why Jon believes the restrictions imposed by Chapter 14 are unreasonable or arbitrary. As such, this issue has not been adequately briefed and is overruled as such. See Tex. R. App. P. 38.1(h); cf. Dallas Fire Fighters Ass'n v. Booth Research Group, Inc., 156 S.W.3d 188, 196 (Tex. App. Dallas 2005, pet. denied).

We overrule Jon's second and fifth points of error.

III. Exhaustion of Administrative Remedies

In his third point of error, Jon contends the trial court erred by finding Jon had failed to exhaust his administrative remedies. Our law provides:(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 [trial] 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 Ann. 14.005 (Vernon 2002).

Jon is correct: the records from Jon's appeal in 06-03-00103-CV show that Jon completed both the Step 1 and Step 2 grievance processes before he filed this lawsuit. However, this issue is moot because Jon failed to refile his case within thirty-one days of the date we issued our mandate. Accordingly, we overrule Jon's third point of error as moot.

IV. Affidavit of Prior Lawsuits

In his fourth point of error, Jon contends the trial court erred in finding that his affidavit regarding prior lawsuits was insufficient to meet the requirements of Article 14.004, which provides:

(a) An inmate who files an affidavit or unsworn declaration of inability to pay costs shall file a separate affidavit or declaration:

(1) identifying each suit, other than a suit under the Family Code, previously brought by the person and in which the person was not represented by an attorney, without regard to whether the person was an inmate at the time the suit was brought; and

(2) describing each suit that was previously brought by:

(A) stating the operative facts for which relief was sought;

(B) listing the case name, cause number, and the court in which the suit was brought;

(C) identifying each party named in the suit; and

(D) stating the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise.

(b) If the affidavit or unsworn declaration filed under this section states that a previous suit was dismissed as frivolous or malicious, the affidavit or unsworn declaration must state the date of the final order affirming the dismissal.

(c) The affidavit or unsworn declaration must be accompanied by the certified copy of the trust account statement required by Section 14.006(f).

Tex. Civ. Prac. & Rem. Code Ann. 14.004 (Vernon 2002).

Again, regardless of whether Jon's affidavit "substantially complies," as he contends it does, with all the requirements of Chapter 14, Jon still cannot obtain a reversal of the trial court's dismissal with prejudice because Jon cannot overcome his failure to timely refile his lawsuit. We therefore overrule Jon's fourth point of error.

V. Dismissal of Jon's Civil Rights Claim

In his final point of error, Jon contends the trial court erred by dismissing his civil rights claim after concluding Jon had failed to allege a viable cause of action. As previously discussed, the trial court properly dismissed Jon's lawsuit with prejudice because the suit was untimely filed. Accord Diamond, 105 S.W.3d at 697. Alternatively, Jon's briefing of this final point of error has not directed our attention to any location in the record that would arguably support his position. As such, Jon has not adequately briefed this issue for our review. See Tex. R. App. P. 38.1(h).

We overrule Jon's final point of error.

VI. Conclusion

For the reasons stated, we hold the trial court properly dismissed Jon's lawsuit, with prejudice, because Jon failed to timely refile his lawsuit following the issuance of our mandate in the prior appeal. We therefore affirm the trial court's judgment.

Donald R. Ross

Justice

Date Submitted: January 27, 2006

Date Decided: February 2, 2006