Howard Vanzandt Williams v. T.D.C.J.-I.D., et al--Appeal from 3rd District Court of Anderson County

NO. 12-03-00394-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

HOWARD VANZANDT WILLIAMS, APPEAL FROM THE THIRD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE-INSTITUTIONAL

DIVISION, ET AL ANDERSON COUNTY, TEXAS

APPELLEE

OPINION

Howard Vanzandt Williams, an inmate in the Texas Department of Criminal Justice-Institutional Division ( TDCJ ), proceeding pro se, filed an in forma pauperis suit against TDCJ, Neal Webb, John Becraft, Shely Baldwin, and others (names unknown). Williams appeals the trial court s order dismissing his suit pursuant to Texas Civil Practice and Remedies Code, section 14.003. Williams raises five issues on appeal. We modify and, as modified, affirm.

Background

Williams is an inmate at the Beto Unit in Tennessee Colony, Texas. While incarcerated, Williams filed a civil suit against TDCJ, Webb, Becraft, Baldwin, and others unknown, alleging causes of action for gross negligence and deprivation of rights, care, and safety under section 1983 of title 42 of the United States Code. See 42 U.S.C. 1983 (2002). Specifically, Williams alleged that property was illegally taken from his cell during a search and that false offense reports were filed against him out of racial hatred. Williams sought $10,000.00 from each defendant for their total disrespect for the laws of the State of Texas and those of the United States.

In conjunction with his original petition, Williams also filed a declaration of previous lawsuits, in which he designated 17 previously-filed lawsuits. // Along with each designation, Williams set forth generally the legal theories raised in each suit, but did not describe in detail the facts giving rise to each of the suits.

On November 4, 2003, without conducting a hearing, the trial court found that Williams 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 first, second, fourth, and fifth issues, Williams 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 accrue 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. 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. 14.004(a)(2)(A). The affidavit must also disclose whether the prior suits were dismissed as frivolous or malicious and provide the dates of the final orders affirming the dismissals. Id. 14.004(a)(2)(D), 14.004(b).

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. Williams filed a declaration listing previous lawsuits filed, but failed to sufficiently set forth in detail the operative facts upon which relief was sought in each suit. Rather, Williams did little more than address what legal theories he could best remember that were raised in each of the previous 17 suits he listed. Without a more detailed description of the operative facts surrounding Williams's previous lawsuits, the trial court was unable to consider whether Williams's current claim was substantially similar to his previous claims. See Bell v. Texas Dep't of Criminal Justice Inst l Div., 962 S.W.2d 156, 158 (Tex. App.- Houston [14th Dist.] 1998, pet. denied). Williams also failed to state whether the prior suits were dismissed as frivolous or malicious and failed to provide the dates of the final orders affirming the dismissals. See Tex. Civ. Prac. & Rem. Code Ann. 14.004(a)(2)(D), 14.004(b) (Vernon 2002).

The Beaumont Court of Appeals addressed this very issue in White v. State, 37 S.W.3d 562 (Tex. App. Beaumont 2001, no pet.). 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, Based 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. Here, as in White, Williams s classification of his suits as retaliatory conspiracy, denial of religious practice, filing of false disciplinary cases, falsification of official government documents, removal of legal instruments, and illegal disciplinary convictions, to name a few, do little to enable the trial court to determine, in each case, if his present action was 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. Accordingly, we hold that the trial court did not abuse its discretion when it dismissed Williams's suit. Id. Williams s first issue is overruled.

Dismissal With Prejudice

In his third issue, Williams contends that it was improper for the trial court to dismiss his action with prejudice. A dismissal with prejudice constitutes an adjudication on the merits and operates as if the case had been fully tried and decided. See Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex.1999). Thus, orders dismissing cases with prejudice have full res judicata and collateral estoppel effect, barring subsequent relitigation of the same causes of action or issues between the same parties. See Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630-31 (Tex.1992). On the other hand, a dismissal for failure to comply with the conditions in section 14.004 is not a dismissal on the merits, but rather an exercise of the trial court's discretion under chapter 14 of the Civil Practice and Remedies Code. See Thomas v. Knight, 52 S.W.3d 292, 295 (Tex. App. Corpus Christi 2001, no pet.); Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. App. Houston [14th Dist.] 2000, no pet.). Further, a dismissal with prejudice is improper if the plaintiff's failure can be remedied. See Hickman, 35 S.W.3d at 125.

The Corpus Christi Court of Appeals addressed this issue in Thomas v. Skinner, 54 S.W.3d 845 (Tex. App. Corpus Christi 2001, pet. denied). Thomas s lawsuit was dismissed pursuant to chapter 14 because Thomas failed to include an affidavit or declaration describing each suit that he had previously filed. Id. at 846. Holding that the dismissal with prejudice was improper, the court stated as follows:

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. (citation omitted). In the present case, we find that Thomas's failure to comply with chapter 14 could have been remedied through amendment. Therefore, we sustain Thomas's first issue.

Id. at 847. In the case at hand, Williams's error, like Thomas's, could have been remedied through more specific pleading. Therefore, we hold that the trial court's dismissal with prejudice was improper. Williams's third issue is sustained.

Conclusion

Having sustained Williams s third issue and having overruled his first, second, fourth and fifth issues, we modify the trial court's order of dismissal by deleting the words with prejudice and substituting in their place the words without prejudice. As modified, we affirm the trial court's dismissal order.

JAMES T. WORTHEN

Chief Justice

Opinion delivered July 20, 2005.

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

(PUBLISH)