John W. Melton v. Sheri D. Hendrix, T.D.C.J., Food Service Division--Appeal from 87th District Court of Freestone County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00058-CV

John W. Melton,

Appellant

v.

Sheri D. Hendrix, T.D.C.J.,

Food Service Division,

Appellees

From the 87th District Court

Freestone County, Texas

Trial Court No. 07-001-B

MEMORANDUM Opinion

John Melton, an inmate in the Texas Department of Criminal Justice (TDCJ) at the Boyd Unit in Teague, appeals the dismissal of his civil lawsuit with prejudice against Sheri Hendrix, the TDCJ Food Service Manager, as untimely under Chapter 14 of the Texas Civil Practice and Remedies Code. We will affirm.

Melton filed a pro se suit in forma pauperis against Hendrix in district court for depriving the inmate population of sufficient and sanitary meals. The trial court's order of dismissal found that Melton s claim had not been filed before the 31st day after a written decision from the grievance system was received.

We review a dismissal under Chapter 14 of the Civil Practice and Remedies Code under an abuse-of-discretion standard. Allen v. Tex. Dept. Crim. Just., 80 S.W.3d 681, 682 (Tex. App. Houston [1st Dist.] 2002, pet. denied); Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App. Waco 1996, no writ). A court abuses its discretion if it acts without reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A dismissal for failure to file a description of the prior litigation is not an abuse of discretion. Bell v. Tex. Dep't of Criminal Justice-Inst. Div., 962 S.W.2d 156, 158 (Tex. App. Houston [14th Dist.] 1998, pet. denied); Hickson, 926 S.W.2d at 398. Nor is a dismissal for failure to file the affidavit of grievances and a copy of the written decision from the grievance system an abuse of discretion. See Bishop v. Lawson, 131 S.W.3d 571, 574-75 (Tex. App. Fort Worth 2004, pet. denied). Furthermore, a court must dismiss a claim if the inmate fails to file the claim before the 31st day after the date the inmate receives the written decision from the grievance system. Tex. Civ. Prac. & Rem. Code Ann. 14.005(b) (Vernon 2002).

By his sole point of error, Melton contends the trial court erred in dismissing his suit because his claim was mailed before the 31st day after his written grievance decision was received. Melton claims that he timely filed his petition on December 18, 2006. See id. 14.005(b). Melton attached to his petition an affidavit concerning his previous filings. However, the affidavit did not include a description of each suit previously brought with details stating the operative facts for which relief was sought as required by section 14.004(2)(a). With respect to the affidavit, it has been previously held:

when an inmate does not comply with the affidavit requirements of section 14.004, the trial court is entitled to assume the suit is substantially similar to one previously filed by the inmate, and therefore, frivolous.

Bell, 962 S.W.2d at 158; Hickson, 926 S.W.2d at 399 (trial court does not err when dismissing a suit under chapter 14 when the inmate has filed no affidavit, or a defective one). Because Melton failed to describe his previous filings with sufficient detail, the trial court could act within its discretion in dismissing Melton's suit. See Tex. Civ. Prac. & Rem. Code Ann. 14.004; Bell, 962 S.W.2d at 158; Hickson, 926 S.W.2d at 398.

However, such a dismissal is not a ruling on the merits of the claim. Lentworth v. Trahan, 981 S.W.2d 720, 722-23 (Tex. App. Houston [1st Dist.] 1998, no pet.). Melton s suit was dismissed with prejudice. Dismissal with prejudice constitutes adjudication on the merits and operates as if the case had been fully tried and decided. Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991). Dismissal with prejudice is improper when the pleading or filing defect can be remedied by the inmate. See Johns v. Johnson, 2005 WL 428465 at *3 (Tex. App. Waco Feb. 23, 2005, no pet. h.) (mem. op.); Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex. App. Corpus Christi 2001, pet. denied). Therefore, the proper remedy here is to modify the judgment by deleting the words with prejudice and substitute the words without prejudice. Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App. Beaumont 2001, no pet.). Thus, we reform the judgment to provide the claims made by Melton are dismissed without prejudice.

Because dismissal was proper, we will not address whether Melton s petition was timely filed, and as reformed, we affirm the judgment of the trial court.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissents with a note)*

Affirmed

Opinion delivered and filed April 9, 2008

[CV06]

*( This is an ex parte proceeding. From the filing of the petition to the majority s opinion and judgment, the only party before the trial court or this Court has been John Melton. Further, all communications have been only with John Melton with copies going to the trial court. There is no appellee before this Court. Such is the nature of Chapter 14 pro se prisoner litigation when there is a dismissal prior to service of the defendant. I do not believe, however, that those procedures authorize this Court to ignore the rules of appellate procedure and traditional methods of judicial review, or to otherwise pick and choose which rules will be used.

To reverse the judgment, the majority has to ignore the rules of appellate procedure and address two arguments that were not made by the appellant. I would not. There are at least two theories upon which the trial court could have dismissed Melton s claims. As the majority notes, Melton s only complaint is that his petition should not have been dismissed because it was timely filed after the exhaustion of his administrative remedies and that the trial court therefore erred in dismissing his claims as untimely. The majority does not address the merits of this claim.

There is another basis upon which the trial court could properly dismiss Melton s claims, but Melton has not challenged this basis on appeal. Because Melton failed to provide the information regarding other litigation in which he has been or is involved, the trial court is authorized to conclude that this Chapter 14 litigation is substantially similar to other litigation filed by Melton and is therefore frivolous. See Williams v. Tex. Dep t of Crim. Justice-Inst l Div., 176 S.W.3d 590, 594 (Tex. App. Tyler 2005, pet. denied); White v. State, 37 S.W.3d 562 (Tex. App. Beaumont, 2001, no pet.); Bell v. Tex. Dep t of Crim. Justice-Inst l Div., 962 S.W.2d 156 (Tex. App. Houston [14th Dist.] 1998, pet. denied); see also Hickson v. Moya, 926 S.W.2d 397 (Tex. App. Waco 1996, no writ). The trial court s docket sheet expressly notes this basis for dismissal though the trial court judgment is less clear about the ground relied upon for dismissal. But if the trial court were dismissing only for the failure to timely file the complaint after Melton exhausted his administrative remedies, the trial court s judgment would probably be limited to a dismissal for lack of jurisdiction. Thus, because Melton failed to challenge each ground upon which the judgment of dismissal could be based, to affirm the trial court s judgment of dismissal is the proper judgment for this court to render.

I now turn to the issue upon which the majority modifies the trial court s judgment; that the trial court erred in dismissing Melton s claims with prejudice. Melton did not complain that the trial court erred by dismissing the appeal with prejudice. Because Melton failed to present this issue for review, he has forfeited the right to complain about it. Tex. R. App. P. 33.1.

As an aside, the majority concludes, as have some other courts, that dismissal upon the presumption that this litigation is substantially similar to other litigation by having failed to provide the required affidavit describing the other litigation must be without prejudice because it could be corrected. This conclusion however is contrary to the effect that should be given to the presumption. If the presumption is to have any effect at all it must be to also presume that the prior litigation either remedied the complaint, that the other litigation is still pending, that the other litigation resulted in a determination that was not favorable to the prisoner, or that the litigation is pursued only for the harassment value. Thus, under any of these scenarios, I contend, dismissal with prejudice is proper because only then does the judgment give any effect to the presumption that the litigation is presumed to be frivolous.

We should therefore affirm the trial court s judgment on the basis that Melton did not attack each ground on which the judgment could be based and presents no complaint for review with regard to the dismissal being with prejudice. See Diles v. Henderson, 76 S.W.3d 807, 809 fn 1 (Tex. App. Corpus Christi 2002, no pet.) (addressing each issue complained about but refusing to address whether the trial court properly dismissed the appeal with prejudice where the inmate did not present that as a ground for review). Accordingly, I would affirm the trial court s judgment. Because the majority does not, I respectfully note my dissent. )