Howard Vanzandt Williams v. T.D.C.J.-I.D., et al--Appeal from 369th District Court of Anderson County

NO. 12-05-00166-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

HOWARD VANZANDT WILLIAMS, APPEAL FROM THE 369TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

TDCJ ID, ROBERT HERRERA,

NEAL WEBB, DAVID MCDOWELL,

DARRELL MEISSNER, CHRISTY BERNAS,

KATHY A. HOCKEBY, AND OTHERS ANDERSON COUNTY, TEXAS

[NOT] NAMED AT THIS TIME,

APPELLEES

MEMORANDUM OPINION

Howard VanZandt Williams, an inmate in the Texas Department of Criminal Justice Institutional Division (TDCJ), proceeding pro se, filed an in forma pauperis suit against TDCJ, Robert Herrera, Neal Webb, David McDowell, Darrell Meissner, Christy Bernas, Kathy A. Hockeby, and Others [Not] Named at this Time. Williams appeals the trial court s order dismissing his suit pursuant to Texas Civil Practice and Remedies Code, section 14.003. Williams raises four issues on appeal. We modify and, as modified, affirm.

Background

Williams is an inmate at the Beto Unit in Tennessee Colony, Texas. While incarcerated, Williams filed a civil suit against TDCJ, Herrera, Webb, McDowell, Meissner, Bernas, Hockeby, and others unknown, alleging causes of action for retaliatory conspiracy and denial of legal rights, in violation of the First, Eighth, and Fourteenth Amendments under the United States Constitution, the Texas Tort Claims Act section 101.021, title 42 of the United States Code sections 1981, 1983, 1985, 1997, and 2000, and sections 171-176 of the Texas Government Code. Along with his original petition, Williams also filed a declaration of previous lawsuits, in which he listed twenty-two previously filed lawsuits. In the declaration, Williams set forth generally the legal theories raised in each suit, but did not describe in detail the facts giving rise to each of the suits.

On April 27, 2005, without conducting a hearing, the trial court found that Williams s suit was frivolous or malicious and dismissed it with prejudice pursuant to Texas Civil Practice and Remedies Code, section 14.003. This appeal followed.

Dismissal Pursuant to Texas Civil Practice and Remedies Code Chapter 14

In four issues, Williams argues that the trial court s dismissal was improper. Specifically, Williams alleges that the trial court denied him due process, equal protection of law, and rights to liberty after satisfying his required sentence. He further contends the trial court s dismissal constitutes cruel and unusual punishment in violation of the First, Eighth, and Fourteenth Amendments.

Standard of Review

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.). 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). 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).

Applicable Law and Discussion

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.1 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. Tex. Civ. Prac. & Rem. Code Ann. 14.003(a)(2). 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. 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 previously brought and stating the operative facts upon which relief was sought in each suit. Id. 14.004(a)(2)(A). The affidavit must also disclose whether the prior suits were dismissed as frivolous or malicious and provide the dates of the final orders affirming the dismissals. Id. 14.004(a)(2)(D), 14.004(b).

In the instant case, the record contains no affidavits or unsworn declarations in compliance with section 14.004 of the Texas Civil Practice and Remedies Code. Although Williams filed a declaration listing previous lawsuits filed, he failed to sufficiently set forth in detail the operative facts upon which relief was sought in each suit. Instead, to the best of his memory, Williams stated the legal theories that he raised in each of the previous twenty-two suits listed, such as illegal disciplinary convictions used as a means to circumvent and extend sentences imposed, knowingly and systematically causing Appellant s demise through injections of Hepatitis C, retaliatory conspiracy, denial of religious practice, use of excessive force, and denial of due process and equal protection of the law. Without a more detailed description of the operative facts upon which Williams s previous lawsuits were based, the trial court was unable to consider whether Williams s current claim was substantially similar to his previous claims. See Bell v. Texas Dep t of Criminal Justice Inst l Div., 962 S.W.2d 156, 158 (Tex. App. Houston [14th Dist.] 1998, pet. denied). Williams also failed to state whether the prior suits were dismissed as frivolous or malicious and the dates of the final orders affirming the dismissals. See Tex. Civ. Prac. & Rem. Code Ann. 14.004(a)(2)(D), 14.004(b).

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. Thus, we conclude that the trial court did not abuse its discretion when it dismissed Williams s suit. Id. Further, the pro se litigant bears the burden to provide such information. See, e.g., Clark v. J.W. Estelle Unit, 23 S.W.3d 420, 422 (Tex. App. Houston [1st Dist.] 2000, pet. denied) (declined to hold that a trial court must sift through numerous documents in order to find the information required by section 14.004). Accordingly, we overrule Williams s issues one, two, three, and four.

Conclusion

We hold that the trial court did not abuse its discretion when it dismissed Williams s suit. See id. However, the trial court s dismissal of Williams s suit with prejudice was improper because his error could have been remedied through amendment or more specific pleading. See Thomas v. Skinner, 54 S.W.3d 845, 846-47 (Tex. App. Corpus Christi 2001, pet. denied). Thus, we modify the trial court s order of dismissal by deleting the words with prejudice and substituting in their place the words without prejudice. Having overruled Williams s first, second, third, and fourth issues, we affirm the trial court s dismissal order as modified.

JAMES T. WORTHEN

Chief Justice

Opinion delivered April 28, 2006.

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

(PUBLISH)

1 Chapter 14 does not apply to suits brought under the Family Code. Tex. Civ. Prac. & Rem. Code Ann. 14.002(b) (Vernon 2002).