Bobby Burghart v. Billy Thomson, Lelia Cotton, Michael Linder, David McComis and GEO Group, Inc.--Appeal from County Court at Law No 1 of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00333-CV

Bobby Burghart,

Appellant

v.

Billy Thomson, Lelia Cotton,

Michael Linder, David McComis,

and GEO Group, Inc.,

Appellees

From the County Court at Law No. 1

Johnson County, Texas

Trial Court No. C200500563

MEMORANDUM Opinion

Bobby Burghart, a former Texas inmate, filed an in forma pauperis lawsuit against the operator of the prison facility where he was housed and several of its employees, seeking injunctive, declaratory and monetary relief for alleged violations of 42 U.S.C. 1981-1983, the Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution, Article I, sections 3, 9, 13, 17, and 19 of the Texas Constitution, and Texas Department of Criminal Justice rules and regulations.[1] Appellees filed a motion to dismiss the suit. The trial court dismissed the suit, without prejudice, as frivolous for failure to comply with the requirements of Chapter 14 of the Civil Practice and Remedies Code.

Burghart argues that the trial court abused its discretion by: (1) finding that his suit is frivolous; (2) failing to rule on his motion for default judgment; (3) failing to rule on his motion for summary judgment; (4) refusing to allow him to present evidence of his compliance with Chapter 14; (5) being biased and prejudiced against him; and (6) dismissing his suit. Appellees respond that Burghart s suit was properly dismissed under Chapter 14 because he failed to file an affidavit or unsworn declaration regarding his grievances or previous filings and his suit was untimely filed.

Chapter 14 requires an inmate to file an affidavit or unsworn declaration that states the date that the grievance was filed and the date the written decision was received by the inmate. Tex. Civ. Prac. & Rem. Code Ann. 14.005(a) (Vernon 2002). A court shall 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). The affidavit setting forth the date the inmate filed his grievance and the date he received a written decision serve to show the timeliness of his petition. Cunningham v. Mosley, No. 09-04-00154-CV, 2005 Tex. App. Lexis 932, at *3 (Tex. App. Beaumont Feb. 3, 2005, no pet.) (mem. op.). An inmate must also file an affidavit or unsworn declaration providing information regarding any previous filings. See Tex. Civ. Prac. & Rem. Code Ann. 14.004(a) (Vernon 2002). A trial court does not abuse its discretion by dismissing an inmate s suit for failure to comply with these two requirements. See Lamotte v. Wickersham, No. 10-04-00250-CV, 2005 Tex. App. Lexis 4855, at *7-8 (Tex. App. Waco June 22, 2005, no pet.) (mem. op.); see also Draughon v. Cockrell, 112 S.W.3d 775, 776 (Tex. App. Beaumont 2003, no pet.).

Although Burghart provided copies of his step 1 and step 2 grievances and provided the trial court with a statement in his petition that he had exhausted his administrative remedies, he failed to provide an affidavit or unsworn declaration informing the trial court of either the date that his grievance was filed or the date on which he received the written decision. Without this information, the record does not demonstrate whether Burghart s suit was timely filed. See Cunningham, 2005 Tex. App. Lexis 932, at *3 (where inmate failed to comply with section 14.005(a), timeliness of petition was not apparent from the face of the grievance decision ). Neither did Burghart provide the trial court with an affidavit or unsworn declaration of previous filings. See Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App. Waco 1996, no pet.) (no abuse of discretion by dismissing suit for failure to comply with section 14.004).

Burghart argues that he did not receive the step 2 grievance until September 8, 2005 and filed his suit on October 7, 2005, within thirty-one days of receiving the grievance response. In his response to Appellees motion to dismiss, he requested an opportunity to conduct discovery in order to prove that his suit was timely.[2] He further argued that he filed an affidavit of previous filings with his petition and was unaware that the affidavit was either not filed or missing. He asked to correct the error if the record did not contain the affidavit. On appeal, he contends that he should have been allowed to correct the errors.

However, the trial court dismissed his suit without prejudice. The trial court was not required to allow Burghart an opportunity to amend or supplement his pleadings. See Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App. Beaumont 2001, no pet.) ( A dismissal for failure to comply with the rules governing the filing of in forma pauperis suits is not a ruling on the merits; accordingly, it is error to dismiss the suit with prejudice if the inmate was not first provided with an opportunity to amend his pleadings ). Burghart could re-file his suit to correct any procedural defects.

Because Burghart failed to comply with the procedural requirements of Chapter 14, the trial court did not abuse its discretion by dismissing his suit without prejudice. See Lamotte, 2005 Tex. App. Lexis 4855, at *7-8; see also Draughon, 112 S.W.3d at 776; Hickson, 926 S.W.2d at 399. We need not address his remaining issues. See Tex. R. App. P. 47.1. The trial court s judgment is affirmed.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurring with a note)*

Affirmed

Opinion delivered and filed August 6, 2008

[CV06]

* ( Chief Justice Gray concurs. A separate opinion will not issue. He notes, however, that the without prejudice ruling is not going to be of any benefit to Burghart. His 31 days to file is long gone and it is not coming back. I do have some due process concerns about the broader application of this deadline in a proper case, but this ruling appears consistent with what the statute and case law supports. With these comments, I concur. )

[1] At some point after filing suit, Burghart was transferred to a unit in Oklahoma.

[2] To support his argument that his suit was timely filed and establish that he received the grievance response on September 8, Burghart refers to documents attached to his appellate brief. Because these documents are not part of the record, we cannot consider them. See Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App. Dallas 2005, no pet.).