Roy Jon v. Victor Tuatagoloa, et al--Appeal from 5th District Court of Bowie County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00103-CV

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ROY JON, Appellant

V.

VICTOR TUATAGOLOA, ET AL., Appellees

On Appeal from the 5th Judicial District Court

Bowie County, Texas

Trial Court No. 01C0311-005

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Roy Jon appeals the dismissal with prejudice of his civil suit against four employees of the Texas Department of Criminal Justice Institutional Division. We modify the judgment to provide that the dismissal is without prejudice, and affirm the judgment as so modified.

On February 26, 2001, Jon, an indigent inmate proceeding without counsel, sued Victor Tuatagola, Otis Bruce, Rodney Dixon, and Chauncey Miles, in their individual capacities, alleging assault with personal injuries and a subsequent denial of needed medical care. On June 22, 2001, a motion to dismiss was filed, which was not made a part of the record on appeal. By its order dated May 29, 2003, the trial court dismissed Jon's suit with prejudice on the bases that (1) the suit was frivolous, and (2) Jon had failed to comply with Chapter 14 of the Texas Civil Practice and Remedies Code.

On appeal, Jon contends the trial court erred in dismissing his suit (1) because it was done sua sponte without a hearing, (2) because Jon raised a fact issue under the Texas Tort Claims Act and the Eighth Amendment to the United States Constitution by alleging a beating by the prison staff, (3) because Jon raised such a fact issue by alleging denial of needed medical care after that beating, (4) because the dismissal was with prejudice, and (5) because he had requested discovery that was improperly denied. Appellees defend the dismissal by arguing that Jon failed to comply with Chapter 14 by failing to file a proper affidavit of previous lawsuits as required by Tex. Civ. Prac. & Rem. Code Ann. 14.004 (Vernon 2002) because Jon's affidavits (A) failed to provide adequate designation of "operative facts" involved in Jon's previous lawsuits and (B) failed to state that the lawsuits listed in Jon's affidavits were all of Jon's prior lawsuits.

In its discretion, a trial court may dismiss a suit filed by an indigent inmate either before or after service of process if it finds the claim is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. 14.003(a) (Vernon 2002). An inmate who files an affidavit or unsworn declaration of inability to pay costs must file a separate affidavit or unsworn declaration identifying every suit he or she has previously filed pro se, except suits filed under the Texas Family Code. Tex. Civ. Prac. & Rem. Code Ann. 14.004(a)(1). The affidavit must, among other things, state the operative facts for which relief was sought. Tex. Civ. Prac. & Rem. Code Ann. 14.004(a)(2).

A trial court may dismiss a suit under Section 14.003(a) without a hearing when an inmate fails to file an affidavit meeting the requirements of Section 14.004. Gowan v. Tex. Dep't of Crim. Justice, 99 S.W.3d 319, 321 23 (Tex. App. Texarkana 2003, no pet.); Thomas v. Knight, 52 S.W.3d 292, 293 n.2 (Tex. App. Corpus Christi 2001, pet. denied); Williams v. Brown, 33 S.W.3d 410, 411 (Tex. App. Houston [1st Dist.] 2000, no pet.).

Jon filed an affidavit listing individually a number of suits he had filed. As to many of the lawsuits listed, the operative facts are not given. Since Jon's affidavit does not provide the operative facts, his lawsuit may be dismissed in the trial court's discretion. Thompson v. Rodriguez, 99 S.W.3d 328, 330 (Tex. App. Texarkana 2003, no pet.). Also, Jon's affidavit fails to state that it lists all suits he has filed, as required another reason why his suit was subject to being dismissed. Id.; Gowan, 99 S.W.3d at 322.

The dismissal, however, should have been without prejudice. Thomas v. Skinner, 54 S.W.3d 845 (Tex. App. Corpus Christi 2001, pet. denied); Knight, 52 S.W.3d at 292. Dismissal with prejudice under Section 14.004 should be used only in rare circumstances, such as when the trial court determines that the deficiencies in the affidavit are purposeful. Cf. Williams v. Tex. Dep't of Crim. Justice-Institutional Div., No. 14-01-00640-CV, 2002 Tex. App. LEXIS 5808, at *7 (Tex. App. Houston [14th Dist.] Aug. 8, 2002, pet. denied) (not designated for publication) (opportunity to amend not taken, thus deficiencies were purposeful and dismissal with prejudice proper). In this circumstance, we should modify the judgment to make the dismissal without prejudice. See Moore v. Zeller, 108 S.W.3d 373, 374 (Tex. App. Beaumont 2003, no pet.).

Because dismissal was proper on the grounds discussed heretofore, it is not necessary for us to discuss the other allegations of error raised by Jon.

We modify the judgment of the trial court to provide that the dismissal is without prejudice, and we affirm the trial court's judgment as modified.

Josh R. Morriss, III

Chief Justice

Date Submitted: February 20, 2004

Date Decided: March 4, 2004