Oliver J. Lewis v. Susan Perryman, et al--Appeal from 349th District Court of Anderson County

NO. 12-03-00257-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

OLIVER J. LEWIS, APPEAL FROM THE 349TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

SUSAN PERRYMAN, ET AL.,

APPELLEES ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Oliver J. Lewis ( Lewis ), an inmate in the Texas Department of Criminal Justice-Institutional Division ( TDCJ ), proceeding pro se, filed an in forma pauperis suit against Susan Perryman ( Perryman ), Gracelia R. Ramos ( Ramos ), and Dorethea L. Dudley ( Dudley ). Lewis appeals the trial court s order dismissing his suit pursuant to Texas Civil Practice and Remedies Code, section 14.003. Lewis raises five issues on appeal. We lack jurisdiction over certain issues Lewis raises. As to Lewis s remaining issue, we reform and, as reformed, affirm.

Background

Lewis is an inmate. While incarcerated, Lewis filed a civil suit against Perryman, a TDCJ warden, and correctional officers Ramos and Dudley (collectively Appellees ). In his suit, Lewis alleges that Appellees wrongfully confiscated his photo album in violation of his right to due process. By his suit, Lewis sought actual damages from Appellees in the amount of fifty dollars and punitive damages in the amount of one hundred dollars. In conjunction with his original petition, Lewis also filed a declaration of previous lawsuits, in which he designated two previously-filed actions and one pending action, but did not describe in detail the facts giving rise to each of the suits. //

On July 17, 2003, without conducting a hearing, the trial court found that Lewis s suit was frivolous or malicious and dismissed it with prejudice pursuant to Texas Civil Practice and Remedies Code section 14.003. This appeal followed.

Dismissal Pursuant to Texas Civil Practice and Remedies Code Chapter 14

In his fifth issue, Lewis argues that the trial court's dismissal was improper. We review the trial court's dismissal of an in forma pauperis suit under an abuse of discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App. Waco 1996, no writ). A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any guiding rules or principles. Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App. Houston [1st Dist.] 1998, no pet.). We will affirm a dismissal if it was proper under any legal theory. Johnson v. Lynaugh, 796 S.W.2d 705, 706 07 (Tex.1990); Birdo v. Ament, 814 S.W.2d 808, 810 (Tex. App. Waco 1991, writ denied). The trial courts are given broad discretion to determine whether a case should be dismissed because (1) prisoners have a strong incentive to litigate; (2) the government bears the cost of an in forma pauperis suit; (3) sanctions are not effective; and (4) the dismissal of unmeritorious claims accrues to the benefit of state officials, courts, and meritorious claimants. See Montana v. Patterson, 894 S.W.2d 812, 814-15 (Tex. App. Tyler 1994, no writ).

Chapter 14 of the Texas Civil Practice and Remedies Code controls suits brought by an inmate in which the inmate has filed an affidavit or unsworn declaration of inability to pay costs. // Tex. Civ. Prac. & Rem.Code Ann. 14.002(a) (Vernon 2002); Hickson, 926 S.W.2d at 398. Section 14.003 provides that a trial court may dismiss a claim before or after service of process if the court finds that the claim is frivolous or malicious. See Tex. Civ. Prac. & Rem. Code Ann. 14.003(a)(2) (Vernon 2002). In determining whether a claim is frivolous or malicious, a trial court may consider whether the claim is substantially similar to a previous claim filed by the inmate because the claim arises out of the same operative facts. Id. at 14.003(b)(4). To enable a trial court to determine whether the suit is substantially similar to a previous one, an inmate is required to file a separate affidavit or unsworn declaration describing all other suits the inmate has brought and stating the operative facts upon which relief was sought. Id. at 14.004(a)(2)(A).

In the case at hand, the record contains no affidavits or unsworn declarations in compliance with Texas Civil Practice and Remedies Code, section 14.004. Lewis filed a declaration listing previous lawsuits filed, but failed to set forth in detail the operative facts upon which relief was sought in each suit. Without a detailed description of the operative facts surrounding Lewis's previous lawsuits, the trial court was unable to consider whether Lewis's current claim was substantially similar to his previous claims. See Bell v. Texas Dep't. of Criminal Justice--Inst. Div., 962 S.W.2d 156, 158 (Tex. App. Houston [14th Dist.] 1998, pet. denied).

The Beaumont Court of Appeals addressed a similar issue in White v. State, 37 S.W.3d 562 (Tex. App. Beaumont 2001, no writ). In White, the court held that White s description of the operative facts in each prior suit is, in effect, a designation of a legal theory, not a statement of the operative facts of the case. Id. at 564. The court continued, [B]ased on the listing [White] has submitted, it is impossible for the trial court to determine for example, whether the five suits labeled as due process violations are duplicative of the present case. Id. Here, Lewis failed to offer any description of operative facts underlying his prior suits, thereby wholly failing to enable the trial court to determine, in each case, if his present action is substantially similar to his previous lawsuits.

When an inmate files an affidavit or declaration that fails to comply with the requirements of section 14.004, the trial court is entitled to assume that the suit is substantially similar to one previously filed by the inmate, and therefore, frivolous. Bell, 962 S.W.2d at 158. However, when an appellate court reviews whether a trial court abused its discretion in dismissing an inmate's suit, it should consider whether the suit was dismissed with prejudice and if so, determine whether the inmate's error could be remedied through more specific pleading. See Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex. App. Corpus Christi 2001, pet. denied). In the present case, the record reflects that Lewis s failure to comply with chapter 14 could have been remedied by amendment of his pleadings. Therefore, we hold that the trial court's order dismissing Lewis s lawsuit with prejudice was improper. Id. The trial court s order will be reformed to reflect a dismissal of Lewis s lawsuit without prejudice. As a dismissal without prejudice, we hold that the trial court s order does not amount to an abuse of discretion. Id. Lewis s fifth issue is overruled.

Failure to Accept Original Petition for Filing

In his issues one, two, three, and four, Lewis contends that the District Clerk erred in twice refusing to file his original petition. The district clerk has a duty to accept and file all pleadings presented for filing. In re Bernard, 993 S.W.2d 453, 454 (Tex. App. Houston 1999, no pet.) (O Connor, J. concurring); see Tex. R. Civ. P. 24. In a long line of cases, the Texas Supreme Court has held that a document is considered filed when it is tendered to the clerk or otherwise put under the custody or control of the clerk. Id.; see Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993); Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 787 S.W.2d 371, 372 (Tex. 1990); Biffle v. Morton Rubber Indus., Inc., 785 S.W.2d 143, 144 (Tex. 1990). Thus, Lewis s original petition to the district court is deemed filed as of the date it was delivered by mail to the district clerk s office, even though the clerk refused to accept it for filing. See Mr. Penguin, 787 S.W.2d at 372; Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d 678, 680 (Tex. 1979); Bernard, 993 S.W.2d at 454. // When pleadings are tendered to the district clerk for filing, they are deemed filed; the district clerk must accept them for filing. Bernard, 993 S.W.2d at 454 (emphasis in original). Any ruling regarding the propriety of pleadings must be made by the district judge, not by the clerk. Id. Only the district judge can decide that a pleading is not in its correct form; the clerk cannot make that determination. Id. If the judge decides a pleading is not accompanied by the necessary attachments or is defective for some other reason, the judge must give the party a chance to correct the problem by amendment or supplementation. Id. These same rules apply to inmate litigation. Id. Nothing in Texas Civil Practice and Remedies Code chapter 14 permits a district clerk to refuse to accept an inmate s petition for filing because it is not accompanied by the correct supporting documentation. Id.

In the case at hand, the District Clerk s letter to Lewis indicates that she received his original petition on June 5, 2003. Therefore, Lewis s pleadings are deemed filed with the District Clerk as of this date. // However, the question remains whether we have jurisdiction to grant the relief Lewis seeks by reversing a decision of a district clerk. Irrespective of the fact that the District Clerk s act violates the Texas Rules of Civil Procedure, we conclude that we lack jurisdiction, in the instant case, to act.

The jurisdiction of this court of appeals is, except where otherwise specially provided, appellate only. Tex. Govt. Code Ann. 22.220(a) (Vernon 2004); see also Thorp Springs Christian College v. Dabney, 37 S.W.2d 193, 196 (Tex. Civ. App. Fort Worth 1931, no writ). The scope of our appellate jurisdiction is limited to review of decisions by a lower court. See United Am. Ins. Co. v. McPhail, 435 S.W.2d 624, 625 26 (Tex. Civ. App. Tyler 1968, no writ); see also Walker v. Koger, 131 S.W.2d 1074, 1074 (Tex. Civ. App. Eastland 1939, writ dism d) (The subject matter of an assignment of error is some ruling or action of the court). Here, since Lewis complains of an act by the District Clerk rather than an act of the trial court, we are without jurisdiction over the matter.

Conclusion

Lewis s issues one, two, three, and four are dismissed for want of jurisdiction. The trial court s dismissal of Lewis s suit with prejudice was improper. We reform the trial court's order of dismissal by deleting the words with prejudice and substituting in their place the words without prejudice. Having overruled Lewis s issue five, we affirm the trial court s dismissal order as reformed.

JAMES T. WORTHEN

Chief Justice

Opinion delivered October 29, 2004.

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

(PUBLISH)

// COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 29, 2004

NO. 12-03-00257- CV

OLIVER J. LEWIS,

Appellant

V.

SUSAN PERRYMAN, ET AL.,

Appellees

Appeal from the 349th Judicial District Court

of Anderson County, Texas. (Tr.Ct.No. 5189)

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this Court that the trial court's order should be Reformed and as Reformed, Affirmed in part and Dismissed for Want of Jurisdiction in part.

It is therefore ORDERED, ADJUDGED and DECREED that the trial court s order of dismissal of Oliver L. Lewis s suit with Prejudice was Improper. We reform the trial court's Order of Dismissal by Deleting the Words With Prejudice and Substituting in their Place the Words Without Prejudice and, as Reformed, Affirm. It is further ORDERED, ADJUDGED and DECREED that Appellant s issues One, Two, Three and Four Relating to the Actions of the District Clerk be Dismissed for Want of Jurisdiction and that this decision be certified to the court below for observance.

James T. Worthen, Chief Justice.

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

THE STATE OF TEXAS

M A N D A T E

TO THE 349TH JUDICIAL DISTRICT COURT OF ANDERSON COUNTY, GREETINGS:

Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 29th day of October, 2004, the cause upon appeal to revise or reverse your judgment between

OLIVER J. LEWIS, Appellant

NO. 12-03-00257-CV and Tr. Ct. Case Number 5189

Opinion by Chief Justice James T. Worthen.

SUSAN PERRYMAN, ET AL., Appellees

was determined; and therein our said Court made its order in these words:

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this Court that the trial court's order should be Reformed and as Reformed, Affirmed in part and Dismissed for Want of Jurisdiction in part.

It is therefore ORDERED, ADJUDGED and DECREED that the trial court s order of dismissal of Oliver L. Lewis s suit with Prejudice was Improper. We reform the trial court's Order of Dismissal by Deleting the Words With Prejudice and Substituting in their Place the Words Without Prejudice and, as Reformed, Affirm. It is further ORDERED, ADJUDGED and DECREED that Appellant s issues One, Two, Three and Four Relating to the Actions of the District Clerk be Dismissed for Want of Jurisdiction and that this decision be certified to the court below for observance.

WHEREAS, YOU ARE HEREBY COMMANDED to observe the foregoing order of said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed.

WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of said Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the ______ day of __________________, 200_.

CATHY S. LUSK, CLERK

By:_______________________________

Deputy Clerk