Michael E. Geiger v. Betty Williams, et al--Appeal from 3rd District Court of Houston County

NO. 12-07-00198-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MICHAEL E. GEIGER, APPEAL FROM THE THIRD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

BETTY WILLIAMS, ET AL,

APPELLEES HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

Michael E. Geiger appeals the dismissal of his civil suit against five employees of the Texas Department of Criminal Justice and six employees of the Medical Branch of the University of Texas. In four issues, Geiger argues that the trial court did not apply the correct legal standards or principles when it dismissed his lawsuit and that his due process and equal protection rights were violated. Appellees did not file a brief. We affirm the trial court s order of dismissal.

Background

Geiger is an inmate in the Texas Department of Criminal Justice (TDCJ). On February 25, 2007, Geiger, proceeding pro se, filed this lawsuit against Appellees Williams and ten others, all of whom he alleges are employees of the State of Texas. In his petition, Geiger sought injunctive relief, as well as compensatory and punitive damages for alleged civil rights violations, torts, and negligence.

On March 22, 2007, the trial court dismissed Geiger s suit without prejudice as to all claims and gave the following reasons in its order: (1) Geiger failed to file an affidavit describing his previous litigation as required by section 14.004, Texas Civil Practice and Remedies Code, (2) Geiger failed to file the claim before the thirty first day after he received a written decision from the TDCJ administrative grievance system pursuant to section 14.005, Texas Civil Practice and Remedies Code, and (3) Geiger failed to file a copy of the trust account statement covering the relevant period of time before the filing of the lawsuit as required by section 14.006, Texas Civil Practice and Remedies Code. Geiger filed a motion for relief from judgment, on which the trial court took no action. This appeal followed.

Dismissal of Suit under Chapter 14

In issues one, three, and four, Geiger argues that the trial court erred when it dismissed his lawsuit. In issue two, Geiger argues that the trial court erred in dismissing his lawsuit without holding a hearing.

Analysis Dismissal

Chapter 14 of the Texas Civil Practice and Remedies Code applies to a lawsuit brought by an inmate who has filed an affidavit or unsworn declaration of inability to pay costs and imposes several procedural requirements for the pleadings in such lawsuits. SeeTex. Civ. Prac. & Rem. Code Ann. 14.002 14.006 (Vernon Supp. 2007). An inmate s lawsuit may be dismissed if it fails to meet the procedural requirements imposed by chapter fourteen. See Thompson v. Rodriguez, 99 S.W.3d 328, 330 (Tex. App. Texarkana 2003, no pet.). Our review of the dismissal of an inmate lawsuit is for an abuse of discretion. SeeWilliams v. Tex. Dep t of Criminal Justice Institutional Div., 176 S.W.3d 590, 593 (Tex. App. Tyler 2005, pet. denied).

One procedural requirement for an inmate wishing to file a lawsuit without paying costs is that the inmate must file a certified copy of his inmate trust account statement with his pleadings. See Tex. Civ. Prac. & Rem. Code Ann. 14.004(c), 14.006(f) (Vernon Supp. 2007). The statement must show the balance of the account at the time the lawsuit is filed and any activity in the account for the six months preceding the filing of the lawsuit. Geiger did not comply with this requirement. The account statement included with his lawsuit is dated May 2005, and the lawsuit was filed in 2007. Because Geiger did not file an inmate account statement covering the appropriate period of time, the trial court did not abuse its discretion when it dismissed the lawsuit without prejudice. See Thompson, 99 S.W.3d at 330; Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App. Beaumont 2001, no pet.); Williams v. Brown, 33 S.W.3d 410, 412 (Tex. App. Houston [1st Dist.] 2000, no pet.).1

A trial court may also 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 Supp. 2007). 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 that 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 declaration must also state the result of any suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise. Id. 14.004(a)(2)(D).

Geiger filed an affidavit about his previous litigation and listed three lawsuits he previously filed. However, he failed to provide all of the information required by Section 14.004. Geiger s affidavit does not provide the outcome of any of the lawsuits, does not provide the operative facts for any of the lawsuits, and does not list all of the people sued in each case.

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 v. Tex. Dep t of Criminal Justice, 962 S.W.2d 156, 158 (Tex. App. Houston [14th Dist.] 1998, pet. denied). This assumption is even more reasonable here because one of the lawsuits Geiger discloses is a suit he brought against one of the same parties he sued in this case, and he alludes to that lawsuit in paragraph thirty-four of his complaint. Geiger has not complied with the statute requiring him to state the operative facts or the outcome of his previous lawsuits. Accordingly, the trial court s assumption that this is a frivolous lawsuit, and dismissal on that basis, was reasonable.

Finally, the trial court also found that Geiger failed to bring this claim within thirty-one days of receiving a written decision from the prison grievance system. See Tex. Civ. Prac. & Rem. Code Ann. 14.05 (Vernon Supp. 2007). The trial court must dismiss a lawsuit that was not filed within this time period. Id. 14.05(b). Geiger signed the written grievance on December 4, 2006. A prison official signed a written decision on December 29, 2006. The thirty-first day after that date was January 30, 2007. The lawsuit was filed on February 25, 2007. In his motion for relief from the judgment, Geiger argued that he did file his lawsuit within thirty one days of receiving a written decision on his grievance and that the deadline was February 26, 2007. He did not explain his reasoning, but on appeal he asserts that he did not receive notice of the written decision until January 30, 2007 and that a stamp on the grievance form is evidence of this.

Even if this is true, Geiger has not complied with the statute. The statute requires a litigant to state the date on which he received the decision. Tex. Civ. Prac. & Rem. Code Ann. 14.05 (a)(1). Nothing Geiger filed in the trial court would have alerted the court to his present contention that he received the decision on January 30. Further, the calculation of dates he proposed in his postjudgment motion differs from his present contention about the relevant dates, and the marking on the grievance form, a simple date stamp outside the box marked OFFICE USE ONLY, is bereft of any contextual clues indicating that it is a delivery date. Therefore, the trial court reasonably concluded that the lawsuit was not timely filed and that it was required to dismiss the lawsuit.

Geiger did not provide the required materials about his trust account, his previous lawsuits, or the date he received a written decision on his administrative grievance. Each is required by statute, and we hold that the trial court did not abuse its discretion when it dismissed Geiger s suit. Geiger s first, third, and fourth issues are overruled.

 Analysis Hearing

A trial court has discretion as to whether to hold a hearing before dismissing an inmate s lawsuit for failure to comply with the statutes governing such litigation. See Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App. Houston [1st Dist.] 2002, no pet.); Williams, 33 S.W.3d at 411; see also Tex. Civ. Prac. & Rem. Code Ann 14.003(c) (Vernon Supp. 2007) (court may hold hearing to determine whether case should be dismissed). Neither a hearing nor an opportunity to respond is required prior to dismissal of an inmate s lawsuit when the pleadings are procedurally deficient. See Gowan v. Tex. Dep t of Criminal Justice, 99 S.W.3d 319, 323 (Tex. App. Texarkana 2003, no pet.); see also Moreland, 95 S.W.3d at 394 (trial court did not abuse discretion in denying inmate opportunity to supplement petition before dismissing case); Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex. App. Houston [14th Dist.] 1990, no writ) (trial court under no duty to suggest that litigant amend his pleading).

The trial court did not abuse its discretion by dismissing this lawsuit without holding a hearing because the defects described above were clear and wholly ascertainable from the record. See Thomas v. Bilby, 40 S.W.3d 166, 170 (Tex. App. Texarkana 2001, no pet.). Geiger argues that the trial court s dismissal was based on an overly technical reading of Section 14.004 and that he could have corrected any errors if the court had given him the opportunity. We agree with the trial court s application of Section 14.004. Moreover, even if Geiger could have corrected the errors, the trial court was not obligated to allow him to amend his lawsuit before it dismissed it. Because Geiger s pleadings were deficient, the trial court did not abuse its discretion by dismissing this suit without holding a hearing. We overrule Geiger s second issue.

Disposition

We affirm the judgment of the trial court.

SAM GRIFFITH

Justice

Opinion delivered December 12, 2007.

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

(PUBLISH)

1 In the statement of facts portion of his brief, Geiger asserts that the production of the trust account statement was beyond his control. He did file a statement that covered the relevant period of time with his motion for relief from judgment, but he does not appeal the ruling on that motion.