Randy Glenn Clary, Rvilla Ruth Hart and Kathy Kilby Herman v. T.D.C.J.-I.D., et al--Appeal from 369th District Court of Anderson County

NO. 12-02-00319-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RANDY GLENN CLARY, APPEAL FROM THE 369TH

APPELLANT

V.

JANIE COCKRELL, DIRECTOR, TEXAS JUDICIAL DISTRICT COURT OF

DEPARTMENT OF CRIMINAL JUSTICE,

AND BOARD OF PARDONS AND PAROLES

PANEL MEMBERS, TONY GARCIA, PAUL

KIEL, AND BRENDOLYN JOHNSON,

INDIVIDUALLY IN THEIR OFFICIAL

CAPACITIES, APPELLEES ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Randy Glenn Clary, an inmate residing in the Texas Department of Criminal Justice Institutional Division ( TDCJ-ID ), appeals the dismissal of his in forma pauperis suit for money damages against Janie Cockrell, Director of TDCJ-ID, and Tony Garcia, Paul Kiel, and Brendolyn Johnson, panel members of the Texas Board of Pardons and Paroles (collectively Appellees). Clary presents four issues on appeal. We affirm.

Factual and Procedural Background

In response to the parole panel s denial of his request for parole, Clary brought suit in the district court of Anderson County against Appellees alleging causes of action for intentional injury, gross negligence, and negligence per se pursuant to the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. 101.001 101.109 (Vernon 1997 & Supp. 2004). Specifically, he avers that (1) he is being illegally restrained by Appellees, (2) the illegal restraint is the result of Appellees misuse of the Texas criminal justice system and TCDJ-ID, which is composed of tangible personal and real property, and (3) he is entitled to actual and exemplary damages as a result. //

The trial court, without conducting a hearing, dismissed the suit with prejudice because Appellant failed to comply with the requirements of Chapter 14 of the Texas Practice and Remedies Code. The trial court entered an order of dismissal finding that Clary failed to file his claim before the thirty-first day after the final action could be had through the inmate grievance system. See Tex. Civ. Prac. & Rem. Code Ann. 14.005(b) (Vernon 2002). The trial court s order of dismissal also contains a provision that Clary pay an amount from his inmate trust account as a penalty for filing the suit.

Dismissal of Suit

In issues one through four, // Appellant asserts, in part, that the trial court abused its discretion by dismissing his claims for failure to comply with Section 14.005 of the Texas Civil Practice and Remedies Code, which states:

(a) An inmate who files a claim that is subject to the grievance system established under Section 501.008, Government Code, shall file with the court:

(1) an affidavit or unsworn declaration stating the date that the grievance was filed and the date the written decision described by Section 501.008(d), Government Code, was received by the inmate; and

(2) a copy of the written decision from the grievance system.

(b) 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.

(c) If a claim is filed before the grievance system procedure is complete, the court shall stay the proceeding with respect to the claim for a period not to exceed 180 days to permit completion of the grievance system procedure.

Tex. Civ. Prac. & Rem. Code Ann. 14.005.

We review a trial court s dismissal of an inmate s claim under Chapter 14 under an abuse of discretion standard. Retzlaff v. Tex. Dep t of Criminal Justice Inst l Div., 94 S.W.3d 650, 654 (Tex. App. Houston [14th Dist.] 2002, pet. denied). To establish an abuse of discretion, Clary must show that the trial court acted without reference to any guiding rules and principles or, alternatively, that the trial court s actions were arbitrary or unreasonably based on the circumstances of the individual case. Id. The fact that, under similar circumstances, an appellate court might decide a matter differently than did the trial court does not demonstrate that an abuse of discretion has occurred. Id.

A court may dismiss an inmate claim if it finds the claim to be frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. 14.003(a)(2) (Vernon 2002). A claim is frivolous if it has no basis in law or fact. See id. 14.003(b)(2). An inmate may not file a claim in state court regarding operative facts for which the grievance system provides the exclusive administrative remedy until he receives a written decision issued by the highest authority provided in the grievance system. Tex. Gov t Code Ann. 501.008(d)(1) (Vernon 1998). The grievance system provides the exclusive administrative remedy for inmate claims arising under the Texas Tort Claims Act. See Wallace v. Tex. Dep t of Criminal Justice Inst l Div., 36 S.W.3d 607, 611 (Tex. App. Houston [1st Dist.] 2000, pet. denied).

In the instant case, the reason given by the trial court was that it was dismissing Appellant s causes of action because Appellant failed to file his claim before the thirty-first day after final action could be had through the inmate grievance system. An examination of the record in this case does not reveal that Appellant has filed any claim through the inmate grievance system. Therefore, the trial court did not abuse its discretion in dismissing Clary s lawsuit.

Monetary Damages

In issue three, Appellant contends that his claim to damages is not subject to the inmate grievance system. He asserts a claim for mental anguish and emotional distress arising from the conviction, sentence, and laws applicable on the date he was sentenced. Appellant s contention is that any claim for damages exists outside the prison system.

In Allen v. Texas Department of Criminal Justice Institutional Division, 80 S.W.3d 681 (Tex. App. Houston [1st Dist.] 2002, pet. denied), the First Court of Appeals addressed this issue. The court relied on Booth v. Churner, 532 U.S. 731, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001), a Supreme Court case holding that as long as the grievance tribunal has authority to take some responsive action, administrative exhaustion is required even when the grievance process does not permit an award of money damages. Allen, 80 S.W.3d at 684. In Booth, the Supreme Court agreed with the policy considerations advanced by respondents:

[R]equiring exhaustion in these circumstances would produce administrative results that would satisfy at least some inmates who start out asking for nothing but money, since the very fact of being heard and prompting administrative change can mollify passions even when nothing ends up in the pocket. And one may suppose that the administrative process itself would filter out some frivolous claims and foster better-prepared litigation once a dispute did move to the courtroom, even absent formal factfinding.

Booth, 532 U.S. at 737, 121 S. Ct. at 1823; see also Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001) (holding that pursuant to Booth, inmate was required to exhaust all Texas Department of Criminal Justice grievance procedures even though money damages were unavailable in grievance system). The First Court of Appeals noted that our grievance system in Texas provides procedures for an inmate to identify evidence to substantiate the inmate s claim, and for an inmate to receive all formal written responses to the inmate s grievance. Allen, 80 S.W.3d at 684 (citing Tex. Gov t Code Ann. 501.008(b) (Vernon 1998)). By filter[ing] out some frivolous claims and foster[ing] better-prepared litigation, the TDCJ grievance tribunal has authority to take some responsive action. Id. (quoting Booth, 532 U.S. at 737, 121 S. Ct. at 1823) (alterations in original). The First Court of Appeals, thus, held that an inmate is required to exhaust all administrative remedies under the grievance system, regardless of whether he sought monetary damages. Id. We adopt Allen s reasoning and also hold that even though Clary sought monetary damages, he was required to exhaust all administrative remedies under the grievance system.

Failure to Conduct Hearing

Clary also contends that the failure of the trial court to conduct an evidentiary hearing violates his due process rights guaranteed by the United States Constitution. A hearing is not necessary when the dismissal is made as a matter of law rather than fact. See Smith v. Tex. Dep t of Criminal Justice Inst l Div., 33 S.W.3d 338, 340 (Tex. App. Texarkana 2000, pet. denied); see also Sawyer v. Tex. Dep t of Criminal Justice Inst l Div., 983 S.W.2d 310, 311 (Tex. App. Houston [1st Dist.] 1998, pet. denied). A claim has no arguable basis in law where, as here, an inmate has failed to exhaust his administrative remedies. Retzlaff, 94 S.W.3d at 653. Therefore, the trial court was not required to conduct an evidentiary hearing.

Conclusion

Even though Clary sought monetary damages, he had to exhaust all administrative remedies through the grievance system. Because he did not timely file his claim, the trial court did not abuse its discretion by dismissing Clary s lawsuit. Further, the trial court was not required to hold a hearing under the facts of this case. Therefore, Clary s issues one, two, three, and four are overruled. We affirm the judgment of the trial court.

DIANE DEVASTO

Justice

Opinion delivered June 30, 2004.

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

(PUBLISH)