MICHAEL SCOTT v. MICHAEL PAXTON--Appeal from 156th District Court of Bee County

NUMBER 13-05-302-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 MICHAEL SCOTT, Appellant,

v.

MICHAEL PAXTON, Appellee.

On appeal from the 156th District Court

of Bee County, Texas.

  MEMORANDUM OPINION[1]

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

Appellant, Michael Scott, an inmate in the Texas Department of Criminal Justice-Institutional Division (TDCJ), proceeding pro se and in forma pauperis, filed suit against appellee, Michael Paxton, for damages he allegedly sustained. Appellee moved to dismiss, arguing that appellant failed to fully comply with TDCJ policy and chapter 14 of the Texas Civil Practice and Remedies Code. SeeTex. Civ. Prac. & Rem. Code Ann. '' 14.001-.014 (Vernon 2002). By one issue, appellant contends that the trial court abused its discretion under chapter 14 in dismissing his claim as frivolous. Finding no abuse of discretion, we affirm.

I. Standard of Review

The proper standard of review for the dismissal of an inmate=s lawsuit in forma pauperis is abuse of discretion. Thomas v. Knight, 52 S.W.3d 292, 294 (Tex. App.BCorpus Christi 2001, pet. denied); Jackson v. Tex. Dep't of Crim. Justice Inst. Div., 28 S.W.3d 811, 813 (Tex. App.BCorpus Christi 2000, pet. denied). Abuse of discretion is determined by examining whether the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 42 (Tex. 1985); Thomas, 52 S.W.3d at 294-95. Where the trial court has not specified the grounds for dismissal in its 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); Roberts v. Padre Island Brewing Co., Inc., 28 S.W.3d 618, 620 (Tex. App.BCorpus Christi 2000, pet. denied).

II. Analysis

By his sole issue, appellant challenges the trial court=s dismissal of his suit as frivolous. The incident about which appellant complains occurred on October 25, 2001. Appellant asserts that he filed a grievance on or about November 1, 2001 and that it was not recorded or received by appellant=s grievance administrator. A copy of this grievance, if any, does not appear in the appellate record. Moreover, at the hearing on appellee=s motion to dismiss, appellee disputed the fact that appellant filed an alleged 2001 grievance, a grievance related to the incident. At the hearing, appellant also acknowledged that he did not complain about the grievance office not receiving his 2001 grievance and that he did not file a grievance again until April 2003.[2]

Early in April 2003, appellant filed a Step 1 offender grievance form complaining of the October 2001 incident.[3] The form was returned to appellant because the "[g]rievable time period ha[d] expired." His subsequent Step 2 grievance form, signed by appellant on April 8, 2003, was returned by the grievance office with the following explanation: "You may not submit a Step 2 appeal on a Step One Grievance that was returned to you for improper submission. If you feel that the step 1 was returned in error, you may contact the Unit Grievance Investigator for clarification." The 2003 grievance forms and responses are filed with the record in this Court.

On June 3, 2003, appellant filed suit against appellee in district court for civil assault and battery. He also filed a declaration of inability to pay costs and a request to proceed in forma pauperis. On November 9, 2004, the trial court dismissed the suit with prejudice, finding that the petition filed by appellant was not in compliance with the requirements set forth in chapter 14 of the Texas Civil Practice and Remedies Code. SeeTex. Civ. Prac. & Rem. Code Ann. '14.003 (Vernon 2002). After filing a motion for new trial, appellant filed his timely notice of appeal and his unsworn declaration of financial inability to pay costs.

Inmate litigation, except suits brought under the family code, in which the inmate files an affidavit or unsworn declaration of inability to pay costs is governed by special procedural rules set out in chapter 14. Id. '14.002. Under chapter 14, a court may dismiss a claim if it finds, among other things, that "the claim is frivolous . . . ." See id. ' 14.003(a)(2). In determining whether a claim is frivolous, 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. Id. ' 14.003 (b); Jackson, 28 S.W.3d at 813.

In this case, appellant filed an unsworn declaration of inability to pay court costs, thus, chapter 14 applies. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.002(2) (Vernon 2002). Without specifying the grounds for dismissal in its order, the trial court generally found that the petition filed by appellant was not in compliance with the requirements set forth in chapter 14. Therefore, we will affirm if any of the theories advanced in the motion to dismiss supports the dismissal. Walker, 35 S.W.3d at 162; Roberts, 28 S.W.3d at 620.

The following theory was advanced in appellee=s motion to dismiss:

A review of Scott=s [appellant's] Original Complaint by undersigned counsel has determined that although Scott filed a "Declaration of Grievance" and copies of his Step One and Two Grievances, he failed to meet the grievable time period under TDCJ policy and procedure. Here, [Scott] attempted to submit a grievance regarding an incident occurring in [October] of 2001. As noted by the grievance official, this was outside of the grievable time period under the administrative grievance guidelines. All inmates in TDCJ-CID receive a manual regarding TDCJ Grievance Policies. [Scott], as evidenced by his affidavit of previous filings, is no stranger to the state court judicial system. As such, he is fully aware of the TDCJ policies and Chapter 14 requirements regarding the exhaustion of administrative grievances. [Scott=s] failure to fully comply with both TDCJ policy and Chapter 14 of the Civil Practice and Remedies Code should result in the dismissal of his suit.

* * * * *

Inmate Scott has not complied with the exhaustion requirements set out in Government Code Section 501.008 and Civil Practice & Remedies Code Section 14.005(a) and 14.005(b) by failing to meet the grievable time period under TDCJ policies and procedures and Chapter 14 of the Civil Practice and Remedies Code; his lawsuit should be dismissed with prejudice.

At the hearing, the following exchange occurred:

The Court: It is TDCJ=s policy that you can=t grieve or file a grievance about an event that allegedly occurred in 2001 or B and there again, I=m trying to make sure I understand exactly what your position is. The complaint in the lawsuit addresses actions or events that he=s claiming took place in 2001. Clearly the grievance documents that exist and have been attached and are part of the record seem to be dated 2003.

What is Bwhat, if any, is the relevance of the 2001 event as it relates to the 2003 grievance procedure? He can=t wait two years to complain about something?

Defense

Counsel: No, sir, no, sir, and that=s because under TDCJ policy, which he=s well aware of, because in his prisoner orientation handbook, the policies are there, that after certain period of time the grievance procedure B we like to be able to investigate these claims when they=re fresh and they=re new so we can get the information. And waiting two years is well beyond that period of time and is a violation of TDCJ policy, which he=s well aware of.

He claims he did file grievances closer to the date in question, but he did not provide us copies with those, and we contend that in fact he never did actually file those.

* * * * *

No, Your Honor, the records don=t reflect one was ever filed.

At the hearing, appellant informed the court that he had attempted to exhaust the grievance system in 2001 but was thwarted by prison officials in the unit; he was "prevented from going any further." He did not file suit in 2001, but "decided to wait again and file another grievance later on" assuming that he had a two-year time limitation to file his civil assault and battery lawsuit.[4] Appellant "just decided to wait. Just a personal decision that [he] made." He also acknowledged that he had fifteen days to file a grievance after an incident occurred at the unit. Appellant also informed the court that he chose not to file a grievance of any type to indicate that he was grieving about not receiving a response from his first grievance. Appellant indicated that he learned, more than forty-five days later, that there was no record in the grievance office that he had ever filed a Step 1 grievance in 2001. After that he "just let the matter go" and "wait[ed until] later to submit another grievance and [to make] another attempt to try to exhaust the prison administrative grievance system again before filing suit." He "just stopped right there." Appellant continued:

[A]t the time I had filed another grievance pertaining to another incident . . . at the unit. We=re only allowed to file grievances once every seven days, okay? And back then in 2001 I had so much things B I had a lot of things going on with security. I was filing grievances every week, and one particular grievance pertained to another use of force incident. So I didn=t confine space within that time period to fit the grievance in. It would have been beyond the 15-day time period also. And I thought my other grievances more important than that grievance, because my other grievance pertain[ed] to lawsuits also.

I made a decision to pursue B to submit grievances on [the] incident I was filing a claim on. I did not think that filing a grievance . . . [for] not receiving my Step 1 grievance would have solved anything, I still would not have been able to file my lawsuit by complaining about not receiving B about the grievance office not receiving my Step B original Step 1 grievance.

Thinking it was not relevant, appellant chose to wait and file a grievance again later in April 2003.

Appellant does not dispute that under the TDCJ policy he had fifteen days from the date of the incident to file his grievance and that he did not file his 2003 grievance timely pursuant to that policy.[5] Because appellant failed to file his 2003 grievance timely as set out by TDCJ policy and because appellant failed to show a "substantial effort to obtain an administrative remedy" following the incident in 2001, his claim has no arguable basis in law. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(b)(2) (Vernon 2002); see also Shah v. Quinlin, 901 F.2d 1241, 1244 (5th Cir. 1990) (finding that dismissal is premature where pro se inmate showed a "substantial effort to obtain an administrative remedy" and alleged that irregularities in the administrative process itself prohibited him from exhausting those remedies). The court did not abuse its discretion in dismissing appellant=s suit. Jackson, 28 S.W.3d at 813. Accordingly, appellant=s sole issue contending that the trial court abused its discretion under chapter 14 in dismissing his claim as frivolous is overruled.

III. Conclusion

We affirm the trial court=s order of dismissal.

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this the 8th day of June, 2006.

[1]As this is a memorandum opinion and the parties are familiar with the facts of the case, we will

not recite them here except as necessary to advise the parties of this Court=s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

[2]The record presents discrepancies as to appellant=s alleged filing of 2001 grievance forms. At

the hearing on the motion to dismiss, appellant asserted that he filed a November 2001 Step 1 grievance and received no response from the grievance office. Because he received no response, he explained he could not file a Step 2 grievance. Appellant asserts this same position on appeal. In his April 2003 Step 1 grievance, however, without referring to the November 2001 Step 1 grievance, appellant sets out that, during the month of December 2001, he filed a Step 2 grievance pertaining to this same incident and that the grievance was never returned to him. We find no copies of 2001 grievance forms in the record. Furthermore, other explanations in the record regarding the 2001 grievance proceedings, if any, are unclear. It is clear, however, that appellant chose not to pursue the grievance office=s alleged failure to respond to the 2001 grievance process, and it is clear that he did not file a grievance again until April 2003.

[3]At the hearing, appellee argued that the copies presented to the court and to appellee's office

by appellant were not processed copies. They were not processed by appellee's office because the incident was no longer grievable. The response form referenced the "Offender Grievance Operations Manual February 2000 Appendix U," a manual that apparently set out the time period in which the grievance form should have been filed.

[4]Appellant does not raise this contention on appeal.

[5]Section 501.008(a) of the government code sets out that "[t]he department shall develop and

maintain a system for the resolution of grievances by inmates housed in facilities operated by the department or under contract with the department that qualifies for certification under 42 U.S.C. Section 1997e and the department shall obtain and maintain certification under that section." Tex. Gov=t Code Ann. ' 501.08(a) (Vernon 2004).