Christopher Chance Rogers v. The State of Texas, et al.--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-01-201-CV

CHRISTOPHER CHANCE ROGERS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # CIO-99-32460

O P I N I O N

Christopher Chance Rogers filed a lawsuit against the State of Texas and John Doe: Falkner. // Rogers is an inmate at the Alfred D. Hughes Unit in Gatesville, Texas. The State filed a motion to dismiss which the trial court granted. After the trial court severed his claims against the State from his claims against Falkner, Rogers filed a notice of appeal. On appeal, Rogers makes one general argument discussing why the dismissal was improper. We affirm.

Chapter 14 of the Texas Civil Practice and Remedies Code applies to suits brought by an inmate who has filed an affidavit or unsworn declaration of inability to pay costs. Tex. Civ. Prac. & Rem. Code Ann. 14.02(a) (Vernon Supp. 2002). We review a dismissal of a suit filed under Chapter 14 for an abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App. Waco 1996, no pet.). Section 14.005 requires inmates filing in forma pauperis to declare that they have attempted to resolve their complaint through the administrative grievance system. Tex. Civ. Prac.& Rem. Code Ann. 14.005(a) (Vernon Supp. 2002). The inmate must document the attempts by filing a copy of the written decision from the grievance system. Id. The court shall dismiss the claim if the inmate does not file an affidavit or unsworn declaration establishing that suit was filed before the 31st day after the inmate received the written decision from the grievance system. Hines v. Massey, No. 09-01-050-CV, 2002 Tex. App. Lexis 4375, *3-4 (Beaumont June 20, 2002, no pet. h.); see also Tex. Civ. Prac. & Rem. Code Ann. 14.005(b) (Vernon Supp. 2002).

In his petition, Rogers claimed his constitutional rights were violated when Falkner, a prison guard, choked him and rammed his head into a concrete wall. He sought $250,000 in damages and $10,000 in attorney s fees. // He filed the necessary affidavit/declaration of inability to pay costs. He also filed an affidavit/declaration relating to a grievance system decision and the exhaustion of administrative remedies. However, he did not state the date that the grievance was filed and the date the written decision was received by him. Rogers also did not attach a copy of the written decision from the grievance system. Thus, Rogers failed to establish the date by which he had exhausted his administrative remedies or that he had instituted suit within 31 days of receiving the written decision regarding his grievance. Thus, he failed to establish whether his suit was timely filed as required by Chapter 14. The trial court did not abuse its discretion by dismissing Rogers s lawsuit. See Tex. Civ. Prac. & Rem. Code Ann. 14.005(b) (Vernon Supp. 2002); Hines, 2002 Tex. App. Lexis 4375 at *4-5.

The trial court s judgment is affirmed.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed August 28, 2002

Do not publish

[CV06]