Michael Scott v. Thomas Prasifka--Appeal from 156th District Court of Bee County

NUMBER 13-04-531-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MICHAEL SCOTT, Appellant,

v.

THOMAS PRASIFKA, ET AL., Appellees.

On appeal from the 156th District Court

of Bee County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Castillo and Garza

Memorandum Opinion by Justice Castillo

Appellant, Michael Scott, an indigent inmate in the Texas Department of Criminal JusticeBInstitutional Division (TDCJ), appeals his pro se case under chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.003 (Vernon 2002). He sued appellees,[1] seeking de novo review in the district court of an administrative decision denying his request for relief on his claim of cruel and unusual punishment. We affirm the trial court's chapter 14 dismissal of the lawsuit.

I. Issues Presented

Scott presents two issues: (1) whether the trial court abused its discretion in dismissing his prisoner's in forma pauperis suitunder chapter 14 as frivolous; and (2) whether the trial court abused its discretion in denying his request to conduct discovery and submit evidence.

 II. Background[2]

On December 5, 2003, Scott filed suit, alleging that during his confinement at the correctional facility from October 1, 2001 through February 24, 2002, a conspiracy existed among the named defendants in their individual capacities to force him to eat contaminated food. He sought damages for cruel and unusual punishment under the Texas Constitution and for civil conspiracy. Scott filed a motion to proceed in forma pauperis and a declaration of previous court filings.

In his original pleading, Scott asserted he exhausted administrative remedies, without relief, and timely filed his chapter 14 lawsuit. To his original pleading, Scott attached copies of two grievance forms dated four days apart in October 2003. His amended pleading did not include the previously filed grievance forms; rather, he filed a motion requesting the trial court order that he had exhausted his administrative remedies, as his grievance was unanswered. In the motion, Scott admits he did not exhaust administrative remedies. We find no declaration of previous grievance filings in the record before us. Appellees filed a motion to dismiss, asserting Scott's live pleading did not comply with the procedural requirements of (1) section 14.004(a) as to his affidavit of previous filings, see Tex. Civ. Prac. & Rem. Code Ann. _14.004(a) (Vernon 2002), and (2) section 14.005(b), as to exhaustion of administrative remedies.[3] See Tex. Civ. Prac. & Rem. Code Ann. _14.004(b) (Vernon 2002).

The trial court convened a telephonic, evidentiary hearing. At the hearing, Scott admitted he did not list all lawsuits he had filed. He explained that he did not receive documents from three courts that would allow him to provide the required information as to previous filings. Scott also admitted that he did not exhaust administrative remedies because, in part, during the window of time to file his grievance, he was transferred to another unit and subsequently returned to the complained-of unit. He admitted that he had approximately fifteen lawsuits pending throughout the State, five of which allege problems with food similar to those set out in his current claim.[4] The trial court granted appellees' motion to dismiss and entered an order dismissing the lawsuit without prejudice.[5] This appeal ensued.

III. Chapter 14

A. Scope and Standard of Review

The purpose of the procedural requirements in chapter 14 is to deter "constant, often duplicative, inmate litigation." See Lilly v. Northrep, 100 S.W.3d 335, 337 (Tex. App.BSan Antonio 2002, pet. denied); Obadele v. Johnson, 60 S.W.3d 345, 348 (Tex. App.BHouston [14th Dist.] 2001, no pet.). The proper standard of review for the dismissal of a frivolous claim pursuant to chapter fourteen is an abuse of discretion. Jackson v. Tex. Dep't of Crim. Justice Inst. Div., 28 S.W.3d 811, 813 (Tex. App.BCorpus Christi 2000, pet. denied). 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. Id. (citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984)); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 42 (Tex. 1985) (holding that an abuse of discretion is determined by examining whether the trial court acted without reference to any guiding rules and principles); Spurlock v. Schroedter, 88 S.W.3d 733, 735 36 (Tex. App.BCorpus Christi 2002, no pet.).

The trial court has broad discretion to dismiss an inmate's claim as frivolous. Jackson, 28 S.W.3d at 813. In making that determination, the trial court may consider whether (1) the claim's realistic chance of ultimate success is slight, (2) the claim has no arguable basis in law or fact, (3) it is clear that the party cannot prove facts in support of the claim, or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(b) (Vernon 2002); Spurlock, 88 S.W.3d at 736; Jackson, 28 S.W.3d at 813.

B. Discussion

By his first issue, Scott maintains that the trial court erroneously dismissed his lawsuit as frivolous because appellees failed to adduce evidence to support their contention of unnamed lawsuits in his declaration. Scott concedes that a "few specific courts would not provide him with any information pertaining to their records due to his indigent status."[6] Appellees counter that Scott did not comply with statutorily mandated prerequisites.

1. Section 14.004 Compliance

Because Scott brought the underlying lawsuit pro se and filed a request to proceed in forma pauperis, he was required to fulfill the following procedural requirements of chapter 14 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. _14.004(a). Under chapter 14, an inmate who files an affidavit or unsworn declaration of inability to pay costs must file a separate affidavit or declaration (1) identifying each pro se suit, other than a suit under the Family Code, previously brought by the person without regard to inmate status, and (2) describing each such suit by stating the operative facts for which relief was sought, listing the case name, cause number, the court in which the suit was brought, and the result of the suit. See id. If the affidavit or unsworn declaration 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. Id. at _14.004(b).

The filing requirements of chapter 14 are designed to assist the court in determining whether a lawsuit is frivolous. Obadele, 60 S.W.3d at 348. Accordingly, when an inmate fails to fulfill the requirements of chapter 14, the trial court is entitled to assume the suit is substantially similar to a prior suit and dismiss the cause of action as frivolous. See id. (citing Bell v. Tex. Dep't Criminal JusticeBInst. Div., 962 S.W.2d 156, 158 (Tex. App.BHouston [14th Dist.] 1998, pet. denied)); Walker, 35 S.W.3d at 161; see also Diles v. Henderson, 76 S.W.3d 807, 810 (Tex. App.BCorpus Christi 2002, no pet.).

Except for fundamental error, to preserve any complaint for appellate review, a party must present to the trial court a timely and specific request, objection, or motion. Tex. R. App. P. 33.1(a); Wal Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999) (per curiam). Scott did not present his current complaint to the trial court. Thus, he did not preserve error for review. Tex. R. App. P.33.1(a); McKenzie, 997 S.W.2d at 280. Even assuming he preserved error, Scott admitted at the evidentiary hearing that he did not identify other pro se suits he filed. Thus, he did not meet the mandatory chapter 14 requirements requiring that he identify and describe each pro se suit. Tex. Civ. Prac. & Rem. Code Ann. _ 14.004(a)(1), (2). Further, Scott admitted that he filed other lawsuits alleging similar contamination of his food. Thus, the trial court was entitled to assume the suit is substantially similar to a prior suit and dismiss the cause of action as frivolous. Obadele, 60 S.W.3d at 348. Because Scott failed to preserve error and to fully comply with the requirements of section 14.004 of the civil practice and remedies code, and because the trial court could properly assume the suit is substantially similar to Scott's prior suits, we conclude that the trial court did not abuse its discretion in dismissing the suit without prejudice. Downer, 701 S.W.2d at 241 42; Jackson, 28 S.W.3d at 813.

 2. Section 14.005 Compliance[7]

Appellees' additional ground for dismissal was Scott's failure to exhaust administrative remedies under section 14.005. Section 14.005 requires an affidavit or unsworn declaration that an inmate proceeding pro se file an affidavit or unsworn declaration stating the date that the grievance was filed and the date the inmate received the written decision. See Tex. Civ. Prac. & Rem. Code Ann. _ 14.005 (Vernon 2002). The plain meaning of the provision contemplates exhaustion of administrative remedies is mandatory. See Tex. Gov't. Code Ann. _ 311.011 (Vernon 2005); St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997) (holding that we interpret a statute that is clear and unambiguous by looking at the plain meaning of the statute's words); Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex. 1994).

Scott did not present his current complaint to the trial court. Thus, he did not preserve error for review. See Tex. R. App. P. 33.1(a); Wal Mart Stores, Inc., 997 S.W.2d at 280. Even assuming he preserved error, Scott's live pleading does not contain an affidavit or unsworn declaration stating the date that a grievance was filed and the date he received a written decision. See Tex. Civ. Prac. & Rem. Code Ann. _ 14.005(a)(1), (2). Further, Scott admitted at the evidentiary hearing that he did not exhaust administrative remedies. Thus, he did not meet the mandatory chapter 14 requirements requiring that he exhaust administrative remedies. See id. Because Scott failed to preserve error and to fully comply with the requirements of section 14.005 of the civil practice and remedies code, we conclude that the trial court did not abuse its discretion in dismissing his lawsuit without prejudice. Downer, 701 S.W.2d at 241 42; Jackson, 28 S.W.3d at 813.

We overrule Scott's first issue presented.

IV. Discovery

By his second issue, Scott asserts that the trial court abused its discretion by

denying his request to conduct discovery and submit evidence. Scott did not present the request to the trial court. Thus, he has not preserved error. See Tex. R. App. P. 33.1(a); Wal Mart Stores, Inc., 997 S.W.2d at 280.

V. Conclusion

Having overruled Scott's first and second issues, we affirm the order dismissing the lawsuit without prejudice.

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and filed this

the 6th day of October, 2005.

[1] Appellees are warden Thomas Prasifka, assistant warden Weldon Hodge, major Norris Jackson, major Daniel Fernandez, Michael Bailey, Adolfo Arroyos, Robert Gonzales, Guadalupe Cordova, Jr., Stuart Levitt, Jesse Ortiz, in their individual capacities, and other unnamed persons. The case proceeded as to the defendants actually served, namely Thomas Prasifka, Norris Jackson, Michael Bailey, Roberto Gonzalez, Pablo Garza, Daniel Fernandez, Gary Johnson, and Weldon Hodge.

[2] In a civil case, this Court will accept as true the facts stated unless another party contradicts them. See Tex. R. App. P. 38.1(f). The statement must be supported by record references. Id.

[3] Appellees requested dismissal because Scott did not list all (1) lawsuits he has filed, (2) defendants named in each of the lawsuits, and (3) operative facts in each of the lawsuits. As an example, appellees seized on Scott's identification of a lawsuit he filed on November 14, 2002, against "Warden Tim Morgan, et al" and Scott's statement, in part, that he filed suit against the defendants for "deliberate indifference to [and] conspiracy to force [him] to eat contaminated food." Appellees maintained that the insufficient description prevented the trial court from making a determination as to whether the operative facts of the November 14, 2002 lawsuit and Scott's present lawsuit were the same.

[4] Scott later stated the problem occurred in "not every prison; just several prisons."

[5] The order states the trial court (1) reviewed the lawsuit for compliance with chapter 14 of the civil practice and remedies code, and (2) dismissed the lawsuit as frivolous pursuant to chapter 14.

[6] The dismissal motion asserted grounds against both of Scott's causes of action. Because the order does not state the specific ground on which it was granted, Scott must show that each independent argument alleged in the motion to dismiss is insufficient to support the order. See Carson v. Walker, 134 S.W.3d 300, 302 (Tex. App.BAmarillo 2003, no pet.).

[7] The parties do not dispute that Scott's claim is subject to the grievance system. See Tex. Civ. Prac. & Rem. Code Ann. _14.005 (Vernon 2002).