Joseph Reed v. TDCJ-ID

Opinion Issued July 10, 2003 In The Court of Appeals For The First District of Texas ____________ NO. 01-02-00734-CV ____________ JOSEPH REED, Appellant V. TEXAS DEPARTMENT OF CRIMINAL JUSTICE—INSTITUTIONAL DIVISION, ISRAEL DAVILA, and LARRY BENNETT, Appellees On Appeal from the 12th District Court Walker County, Texas Trial Court Cause No. 21568 MEMORANDUM OPINION Appellant, Joseph Reed, appeals the dismissal of his civil rights suit against appellees, Texas Department of Criminal Justice-Institutional Division (TDCJ-ID) and TDCJ-ID employees, Israel Davila and Larry Bennett. In five issues, Reed contends that the trial court abused its discretion in dismissing his suit under Chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 14.001. (Vernon Supp. 2003). We reach only Reed’s fifth issue and his motion for appointment of counsel filed in this Court. We affirm. Facts Reed is currently incarcerated in the French Robertson Unit of TDCJ-ID. Reed filed a civil rights suit in the trial court on November 13, 2000, claiming that TDCJ-ID employees used excessive force against him by slamming him into a concrete floor while he was handcuffed. The trial court granted a motion to dismiss filed by the Attorney General under Chapter 14 on behalf of TDCJ-ID. The trial court did not state the grounds upon which it granted the dismissal. Motion for Appointment of Counsel Reed filed a motion in this Court for appointment of counsel, claiming that the complexity of the case requires the assistance of counsel. We construe this as a request for us to abate the appeal for the trial court to appoint appellate counsel. Cf. Tex. R. App. P. 38.8(2), (4) (allowing appellate court to abate appeal in criminal case and remand to trial court to determine whether appellant still desires to prosecute his appeal, whether appellant is indigent, or whether, if appellant is not indigent, his retained counsel has abandoned appeal). To the extent that Reed argues that the trial court abused its discretion in failing to appoint him counsel, we deny his motion. A trial court has discretion to appoint counsel for an indigent party in a civil case. Tex. Gov’t Code Ann. § 24.016 (Vernon Supp. 2003); Coleman v. Lynaugh, 934 S.W.2d 837, 839 (Tex. App.—Houston [1st Dist.] 1996, no writ). However, Reed has not shown that the public and private interests at stake here are “so exceptional that the administration of justice may best be served” by appointing a lawyer to represent him. Gibson v. Tolbert, 102 S.W.3d 712, 713 (Tex. 2003) (holding that “inmate suits against prison personnel, rather than rare and unusual, are common” and, therefore, such suits do not constitute exceptional circumstances warranting appointed counsel). Accordingly, we deny Reed’s motion for appointment of counsel. Dismissal In his fifth issue, Reed contends that the trial court abused its discretion in dismissing his suit under section 14.005(b). See Tex. Civ. Prac. & Rem. Code Ann. § 14.005 (Vernon 2002). TDCJ-ID responds that Reed failed to file his suit within the 31-day statutory period required under section 14.005(b). See id. We review a trial court’s dismissal of an action under Chapter 14 for abuse of discretion. Wallace v. Texas Dep’t of Criminal Justice-Institutional Div., 36 S.W.3d 607, 610 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). A trial court abuses its discretion if it acts arbitrarily, capriciously, or without reference to guiding rules or principles. See Brewer v. Collins, 857 S.W.2d 819, 822 (Tex. App.—Houston [1st Dist.] 1993, no writ). When the trial court fails to specify the grounds for dismissal, a party appealing from the dismissal order must show that each of the independent arguments alleged in the motion is insufficient to support the order. Wallace, 36 S.W.3d at 610. Before initiating a lawsuit, an inmate must exhaust all administrative remedies within the penal grievance system under Chapter 14. Id. An inmate who files a claim subject to the grievance system established under section 501.008 of the Government Code must file with the trial court (1) an affidavit or unsworn declaration stating the date that the grievance was filed and the date that the written decision was received and (2) a copy of the written decision from the grievance system. Tex. Civ. Prac. & Rem. Code Ann. § 14.005 (Vernon 2002). If the inmate fails to file the claim before the 31st day after the date that the inmate receives the written decision from the grievance system, a trial court must dismiss the claim. Id. The record shows that Reed filed grievance complaints with TDCJ-ID on December 4, 1998 and January 7, 1999. Reed’s December 4 grievance was denied on December 28, 1998. His January 7 grievance, an appeal of the December 28 grievance decision, was denied on January 25, 1999. Reed filed his original petition in the trial court on November 13, 2000, over 19 months after his second grievance had been denied. Under section 14.005, Reed’s suit was untimely because he did not file the suit before the 31st day after he had received notice of the written decision on his grievance. See id. We hold that the trial court did not abuse its discretion in dismissing Reed’s claim under Chapter 14 of the Civil Practice and Remedies Code. Because the trial court properly dismissed Reed’s claim under section 14.005(b), we need not reach his remaining issues. We overrule Reed’s fifth issue. Conclusion We affirm the judgment of the trial court. Tim Taft Justice Panel consists of Justices Taft, Jennings, and Hanks.