Zufar Fajr Yak-Yak Khufu a/k/a Norris Hicks v. A.M. String Fellow, et al--Appeal from 87th District Court of Anderson County

NO. 12-03-00362-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ZUFAR FAJR YAK-YAK KHUFU APPEAL FROM THE 87TH

a/k/a NORRIS HICKS,

APPELLANT

V. JUDICIAL DISTRICT COURT OF

A.M. STRINGFELLOW, ET AL,

APPELLEES ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Zufar Fajr Yak-Yak Khufu a/k/a Norris Hicks, an inmate in the Texas Department of Criminal Justice-Institutional Division ( TDCJ ), proceeding pro se, filed an in forma pauperis suit against TDCJ Chairman A.M. Stringfellow and TDCJ Director Janie Cockrell. Khufu appeals the trial court s order dismissing his suit pursuant to Texas Civil Practice and Remedies Code, section 14.003. Khufu raises three issues on appeal. We affirm.

Background

Khufu is an inmate. While incarcerated, Khufu filed a civil suit against Stringfellow and Cockrell (collectively Appellees). In his lawsuit, Khufu alleges that by requiring that he shave his beard, Appellees are liable for depriving Khufu of his right to freely exercise his religious beliefs pursuant to the United States Constitution. Khufu sought a declaratory judgment and injunctive relief, as well as compensatory and punitive damages. In conjunction with his original petition, Khufu filed a declaration of previous lawsuits, in which he designated thirteen previously-filed actions.

On September 26, 2003, without conducting a hearing, the trial court found that Khufu s suit was frivolous or malicious and dismissed it pursuant to Texas Civil Practice and Remedies Code, section 14.003. Khufu requested written findings of fact and conclusions of law, but the trial court did not oblige. This appeal followed.

Dismissal Pursuant to Texas Civil Practice and Remedies Code Chapter 14

In his first and second issues, Khufu argues that the trial court's dismissal was improper. // We review the trial court's dismissal of an in forma pauperis suit under an abuse of discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App. Waco 1996, no writ). A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any guiding rules or principles. Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App. Houston [1st Dist.] 1998, no pet.). We will affirm a dismissal if it was proper under any legal theory. Johnson v. Lynaugh, 796 S.W.2d 705, 706 07 (Tex. 1990); Birdo v. Ament, 814 S.W.2d 808, 810 (Tex. App. Waco 1991, writ denied). The trial courts are given broad discretion to determine whether a case should be dismissed because (1) prisoners have a strong incentive to litigate; (2) the government bears the cost of an in forma pauperis suit; (3) sanctions are not effective; and (4) the dismissal of unmeritorious claims accrues to the benefit of state officials, courts, and meritorious claimants. See Montana v. Patterson, 894 S.W.2d 812, 814 15 (Tex. App. Tyler 1994, no writ).

Chapter 14 of the Texas Civil Practice and Remedies Code controls suits brought by an inmate in which the inmate has filed an affidavit or unsworn declaration of inability to pay costs. // Tex. Civ. Prac. & Rem. Code Ann. 14.002(a) (Vernon 2002); Hickson, 926 S.W.2d at 398. Section 14.003 provides that a trial court may dismiss a claim before or after service of process if the court finds that the claim is frivolous or malicious. See Tex. Civ. Prac. & Rem. Code Ann. 14.003(a)(2) (Vernon 2002). In determining whether a claim is frivolous or malicious, a trial court may consider whether the claim is substantially similar to a previous claim filed by the inmate because the claim arises out of the same operative facts. Id. at 14.003(b)(4). To enable a trial court to determine whether the suit is substantially similar to a previous one, an inmate is required to file a separate affidavit or unsworn declaration describing all other suits the inmate has brought and stating the operative facts upon which relief was sought. Id. at 14.004(a)(2)(A). Furthermore, the declaration must state 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. Id. at 14.004(a)(2)(D).

In the case at hand, Khufu s unsworn declaration does not comply with Texas Civil Practice and Remedies Code, section 14.004. In his declaration, Khufu listed previous lawsuits he had filed, but failed to sufficiently set forth all of the information required by Section 14.004. Specifically, in numerous instances Khufu indicated that the previously-filed case was dismissed, but failed to indicate whether the dismissal was pursuant to Section 13.001, Section 14.003, or otherwise. See Tex. Civ. Prac. & Rem. Code Ann. 14.004(a)(2)(D).

When an inmate files an affidavit or declaration that fails to comply with the requirements of 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, frivolous. Bell, 962 S.W.2d at 158; Williams v. Tex. Dep t of Crim. Justice, No. 14-01-00646-CV, 2002 WL 1822424, at *2 (Tex. App. Houston [14th Dist.] August 8, 2002, pet. denied) (not designated for publication) (holding that dismissal was proper because the appellant s sworn statement did not disclose whether some of his prior suits were dismissed as frivolous or malicious). The burden to provide such information rests on the pro se litigant. See, e.g., Clark v. J.W. Estelle Unit, 23 S.W.3d 420, 422 (Tex. App. Houston [1st Dist.] 2000, pet. denied) (refusing to hold that a trial court must sift through numerous documents in order to find the information required by section 14.004). Accordingly, we hold that the trial court did not abuse its discretion when it dismissed Khufu's suit. Id. Khufu s first and second issues are overruled.

Findings of Fact and Conclusions of Law

In his third issue, Khufu argues that the trial court erred in refusing to issue written findings of fact and conclusions of law following Khufu s request therefor. When a trial court renders a judgment or dismisses a cause without hearing any evidence, findings of fact are not appropriate. See IKB Indus., Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex.1997); Timmons v. Luce, 840 S.W.2d 582, 586 (Tex. App. Tyler 1992, no writ). Similarly, findings of fact and conclusions of law are not appropriate in the present case because the trial court dismissed Khufu s suit for his failure to follow a statutory procedural requirement. We hold the trial court did not abuse its discretion in denying Khufu s request for findings of fact and conclusions of law. Khufu s third issue is overruled.

Conclusion

Having overruled Khufu s issues one, two, and three we affirm the trial court s order dismissal Khufu s suit.

DIANE DEVASTO

Justice

Opinion delivered April 29, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)