JOHN C. SPURLOCK v. WAYNE SCOTT, ET AL.--Appeal from 24th District Court of De Witt County

NUMBER 13-01-733-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

JOHN C. SPURLOCK, Appellant,

v.

WAYNE SCOTT, ET AL., Appellees.

On appeal from the 24th District Court

of De Witt County, Texas.

O P I N I O N

Before Justices Hinojosa, Ya ez, and Castillo

Opinion by Justice Castillo

Appellant John C. Spurlock is an inmate proceeding pro se to challenge the trial court=s dismissal of his suit for injunctive and monetary relief against several prison officials, including Wayne Scott, then-executive director for the Texas Department of Criminal Justice Institutional Division, two senior wardens of the Stevenson Unit, an assistant warden in the Stevenson Unit, and seven other prison wardens in the Stevenson Unit. Spurlock=s in forma pauperis claims were dismissed with prejudice for lack of subject matter jurisdiction, without a hearing. In two issues presented, Spurlock claims that the district court abused its discretion in dismissing his claims with prejudice without first ruling on his in forma pauperis request and abused its discretion in dismissing the claims without first conducting an evidentiary hearing. We modify the judgment and affirm as modified.

Factual Summary

Spurlock is currently serving a prison sentence with the Texas Department of Criminal Justice Institutional Division. He filed suit on May 10, 2000, claiming a civil conspiracy existed between the appellees to unlawfully interfere with and obstruct his access to the courts and deprive him of the money in his inmate trust account. The alleged acts of appellees included delaying and tampering with mail sent by Spurlock, denying him access to the courts, threatening garnishment of his bank accounts, and Aterroristic threats@ to prevent Spurlock from accessing his funds. Spurlock=s complaints stem from two civil suits brought against him by outside parties. Spurlock employed the services of a fellow inmate, James Bright, to assist him in legal matters related to these suits.[1] Spurlock=s claim of conspiracy includes his assertion that he was denied the right to counsel in these civil suits by the appellees, who refused to allow Bright to represent him in court on these matters and refused to allow Spurlock to meet with Bright for the purpose of legal consultation. Spurlock also consulted with Bright on the transfer of funds from Spurlock=s inmate trust fund to an outside account in the name of Bright=s sister in law, so that Spurlock could use those funds. Bright effected the transfer of those funds and then refused to return them to Spurlock. Spurlock claims that Bright=s actions were part of a conspiracy between Bright and prison officials to defraud Spurlock of the funds in his inmate account. When he complained to Bright about the money, Bright allegedly threatened the lives of Spurlock and his family. This action too, according to Spurlock, was a result of the conspiracy against him.

The appellees filed a motion for dismissal for failure to comply with several requirements under Chapter 14 of the Texas Civil Practice and Remedies Code[2] including: the requirement that the inmate file an affidavit identifying each suit that he had previously filed by the inmate pro se, the requirement that the allegation of poverty included in the pauper=s affidavit be true, the requirement that an inmate exhaust all administrative remedies prior to initiating the lawsuit, and the requirement that an inmate attach a copy of the administrative grievance decision. The trial court dismissed the lawsuit on September 28, 2001.

Standard of Review

We review a trial court's dismissal of an inmate's lawsuit filed in forma pauperis under an abuse of discretion standard. Thomas v. Knight, 52 S.W.3d 292, 294 (Tex. App.BCorpus Christi 2001, pet. denied). A court abuses its discretion if it acts without reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 42 (Tex. 1985); Knight, 52 S.W.3d at 294 95. Where the trial court has not specified the grounds for dismissal in its dispositive order, the order will be affirmed if any of the theories advanced in the motion to dismiss supports the dismissal. Walker v. Gonzales County Sheriff=s Dep=t, 35 S.W.3d 157, 162 (Tex. App.BCorpus Christi 2000, pet. denied).

Application of Chapter 14

In appellant=s first issue, he argues that the trial court abused its discretion by dismissing his claims with prejudice without first ruling on his in forma pauperis request. In effect, appellant is making the argument that, because he was not yet found to be indigent, the requirements of chapter 14 should not have been applied in this case. We disagree.

Chapter 14 of the Texas Civil Practice and Remedies Code applies to any suit Abrought by an inmate in a district, county, justice of the peace, or small claims court in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate.@ Tex. Civ. Prac. & Rem. Code Ann. ' 14.002(a) (Vernon Supp. 2002) (emphasis added). The Adeclaration of inability to pay costs@ filed by the appellant on May 22, 2000 met the statutory definition of an unsworn declaration as applied to inmate suits. See Tex. Civ. Prac. & Rem. Code Ann. ' 132.001 (Vernon 1997). Appellant=s filing of his declaration of inability to pay costs, therefore, triggered the application of chapter 14, and its filing requirements apply to this case.

Appellant=s first issue is overruled.

Dismissal Without A Fact Hearing

In appellant=s second issue, he argues that the trial court abused its discretion by not granting him a fact hearing prior to dismissing his in forma pauperis suit. Appellant appeals both the trial court=s decision to dismiss and the lack of a fact hearing. We find that this issue lacks merit.

Appellees moved to dismiss appellant=s suit for failure to comply with the requirements of sections 14.003, 14.004, and 14.005 of the civil practice and remedies code. Section 14.003(a) states in relevant part that a court may dismiss an inmate=s in forma pauperis claim for three reasons: (1) the allegation of poverty contained in the declaration of inability to pay costs is false; (2) the claim was frivolous or malicious; or (3) the inmate filed an unsworn declaration that he knew to be false. Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(a) (Vernon Supp. 2002).

Section 14.003(b) lists reasons why a claim may be found frivolous or malicious, and thus be dismissed, pursuant to the second clause contained in 14.003(a). These reasons include: (1) the claim has only a slight realistic chance of success; (2) the claim has no arguable basis in law or fact; (3) the inmate cannot prove facts in support of his claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because both claims arise from the same operative facts. Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(b) (Vernon Supp. 2002).

Section 14.004 provides that:

(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 suit was brought; and

(C) 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.

Tex. Civ. Prac. & Rem. Code Ann. ' 14.004(a) (Vernon Supp. 2002). The filing requirements of section 14.004 are designed to assist the trial court in curbing the flow of frivolous inmate suits, and is an essential part of the process by which trial courts accomplish this goal. Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.BWaco 1996, no writ). Where the inmate fails to comply with the filing requirement detailed in section 14.004, the trial court is entitled to assume that the suit is substantially similar to one previously filed by the inmate, and therefore is frivolous. Walker, 35 S.W.3d at 161 (quoting Jackson v. Texas Dep=t of Crim. JusticeBInst. Div., 28 S.W.3d 811, 814 (Tex. App.BCorpus Christi 2000, pet. denied)). The failure to submit an affidavit or declaration complying with section 14.004 is sufficient grounds for a trial court to dismiss a suit as frivolous under section 14.003(b)(4). Walker, 35 S.W.3d at 161; Bell v. Texas Dep=t of Crim. JusticeBInst. Div., 962 S.W.2d 156, 158 (Tex. App.BHouston [14th Dist.] 1998, pet. denied); Hickson, 926 S.W.2d at 399.

Appellant failed to file an affidavit complying with the requirements of section 14.004 along with his original petition and failed to file such an affidavit at any time prior to the trial court=s dismissal of his case as frivolous.[3] Therefore, we find that the trial court did not abuse its discretion in dismissing appellant=s suit as frivolous under section 14.003(a)(2), based on the consideration listed in section 14.003(b)(4), due to appellant=s non-compliance with the filing requirement contained in section 14.004. Further, section 14.003 states that the trial court, in making its determination whether to dismiss a case, may hold a hearing. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(c) (Vernon Supp. 2002) (emphasis added). This hearing may be held Abefore or after service of process.@ Id. The use of the term Amay@ clearly indicates that the trial court has discretion in deciding whether to hold a hearing or not; therefore, it was not incumbent upon the court to conduct a hearing before dismissing appellant=s case. See Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 938 (Tex. App.BFort Worth 1997, pet. denied) (finding that the term Amay@ used in section 14.003(c) indicated that the trial court=s decision to hold a hearing was discretionary).

Therefore, appellant=s second issue as it pertains to dismissal of the lawsuit is overruled.

Dismissal with Prejudice

Appellant also arguably contends in his second issue that the trial court abused its discretion by dismissing his claim with prejudice. Dismissal with prejudice functions as a final determination on the merits and operates as if the case had been fully tried and decided. Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex. 1999); Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. App.BCorpus Christi 2000, no pet.). An order of dismissal with prejudice thus has full res judicata and collateral estoppel effect, barring subsequent relitigation of the same causes of action or issues between the same parties. Hickman, 35 S.W.3d at 124; Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.BHouston [1st. Dist.] 1998, no pet.); see also McConnell v. Attorney Gen., 878 S.W.2d 281, 283 (Tex. App.BCorpus Christi 1994, no writ). Dismissal with prejudice is proper in one of the following situations:

(1) as a sanction for abuse of discovery under Texas Rule of Civil Procedure 215;

(2) when the plaintiff fails to amend deficient pleadings when given the opportunity. Hubler v. City of Corpus Christi, 564 S.W.2d 816, 823 (Tex. App.BCorpus Christi 1978, writ ref=d n.r.e.);

(3) for a violation of a pretrial order. Koslows v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990); or

(4) on agreement of the parties. See generally Golodetz Trading Corp. v. Curland, 886 S.W.2d 503, 504 05 (Tex. App.BHouston [1st Dist.] 1994, no writ).

Lentworth, 981 S.W.2d at 722 23. Lastly, when a suit is barred by sovereign immunity, dismissal with prejudice for want of jurisdiction is proper. University of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 771 (Tex. App.BHouston [1st Dist.] 1999, pet. dism'd w.o.j.).

Appellant=s claim does not fall under any of the categories that are appropriate for dismissal with prejudice. Hohman, 6 S.W.3d at 771; Lentworth , 981 S.W.2d at 722 23. Failure to comply with the conditions set out in section 14.004 does not warrant dismissal with prejudice. Knight, 53 S.W.3d at 295. Where the inmate=s error could be remedied through more specific pleading, dismissal should be made without prejudice, in order to allow the inmate the opportunity to remedy the error. Id.

Conclusion

Accordingly, we modify the judgment to provide that the cause is dismissed without prejudice. As modified, we affirm the judgment.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 9th day of May, 2002.

1 Bright is a non attorney who, according to Spurlock, claimed to have paralegal experience.

2 Tex. Civ. Prac. & Rem. Code Ann.' 14.001-.014 (Vernon Supp. 2002). Chapter 14 is a statute that was enacted by the Texas Legislature in 1995 to regulate and limit the flow of frivolous inmate litigation. Walker v. Gonzales County Sheriff=s Dep=t, 35 S.W.3d 157, 160 (Tex. App.BCorpus Christi 2000, pet. denied) (citing Hicksonv. Moya, 926 S.W.2d 397, 399 (Tex. App.BWaco 1996, no writ)). It applies to all cases in which the inmate has filed an affidavit or unsworn declaration of inability to pay. Tex. Civ. Prac. & Rem. Code Ann. '14.002(a) (Vernon Supp. 2002).

3 Subsequent to dismissal of this suit by the trial court, on October 9, 2001, the appellant filed an affidavit purporting to list his prior lawsuits in compliance with section 14.004.