Lucio G. Rivera v. Coastal Bend College and Lillian Garza

Rivera v. Coastal Bend College NUMBER 13-03-00180-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG LUCIO G. RIVERA, Appellant, v. COASTAL BEND COLLEGE AND LILLIAN GARZA, INDIVIDUALLY AND AS AN EMPLOYEE OF COASTAL BEND COLLEGE, Appellees. On appeal from the 343rd District Court of Bee County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Hinojosa and Castillo Memorandum Opinion by Justice Hinojosa Appellant, Lucio G. Rivera, filed a negligence lawsuit against appellees, Coastal Bend College (“Coastal Bend”) and Lillian Garza (“Garza”), individually and as an employee of Coastal Bend College. Pursuant to chapter 14 of the Texas Civil Practice and Remedies Code, the trial court dismissed appellant’s suit as frivolous. In a single issue, appellant contends the trial court abused its discretion in dismissing his suit as frivolous. We affirm. A. Factual Background and Procedural History Appellant is an inmate at the McConnell Unit of the Texas Department of Criminal Justice (“TDCJ”). During the year 2000, appellant took a data processing class taught by Garza, a TDCJ instructor and Coastal Bend employee. In October 2000, after appellant had completed the class, Garza was given an envelope containing two documents and a handwritten message from appellant, asking her to contact him after November 1, 2000, appellant’s parole release date. The note stated, “Ms. Garza, make sure to contact me! I’ll be waiting to hear from you! Take care!” and included three telephone numbers that belonged to members of appellant’s family. In accordance with the TDCJ rules of conduct, Garza gave the note to the TDCJ Security Department for clarification and review. Garza was instructed to complete the offense report required by the TDCJ Standard Offense and Pleadings Handbook. Offense Code 30.1 governs attempts to “establish an inappropriate relationship with a . . . contract employee,” and prescribes standardized pleadings for such offenses to be used in a disciplinary report. A contract instructor who fails to follow the TDCJ rules and procedures may be barred from access to the McConnell Unit, terminated from Coastal Bend, and may be subject to criminal prosecution. On October 15, 2000, appellant was called to a TDCJ disciplinary hearing as a result of his communication with Garza. Appellant was subsequently demoted, given fifteen days in solitary confinement, placed in medium (restricted movement) custody, and his anticipated parole date was revoked. On September 19, 2002, appellant filed an application to proceed in forma pauperis in a negligence suit against appellees. The parties’ briefs on the issue were submitted by February 17, 2003, and on February 18, 2003, pursuant to chapter 14 of the civil practice and remedies code, the trial court dismissed appellant’s case as frivolous. This appeal ensued. B. Standard of Review We review the dismissal of a lawsuit brought by an inmate who has filed an affidavit or declaration of inability to pay costs under an abuse of discretion standard. Jackson v. Tex. Dep’t of Criminal Justice–Institutional Div., 28 S.W.3d 811, 813 (Tex. App.–Corpus Christi 2000, pet. denied); Barnum v. Munson, 998 S.W.2d 284, 286 (Tex. App.–Dallas 1999, pet. denied); McCollum v. Mt. Ararat Baptist Church, Inc., 980 S.W.2d 535, 536 (Tex. App.–Houston [14th Dist.] 1998, no pet.); Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.–Waco 1996, no writ). Abuse of discretion is determined by examining whether the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); McCollum, 980 S.W.2d at 536-37. To establish abuse of discretion, the complainant must show that the trial court’s action was arbitrary or unreasonable in light of the circumstances in the case. Downer, 701 S.W.2d at 242; Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984). We affirm the dismissal if it was proper under any legal theory. Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990) (per curiam); Walker v. Gonzales County Sheriff’s Dep’t, 35 S.W.3d 157, 162 (Tex. App.–Corpus Christi 2000, pet. denied); Birdo v. Ament, 814 S.W.2d 808, 810 (Tex. App.–Waco 1991, writ denied). C. Analysis In a single issue, appellant contends the trial court abused its discretion in dismissing his suit as frivolous. Because appellant brought the underlying lawsuit pro se and filed a request to proceed in forma pauperis, he was required to fulfill the following procedural requirements of chapter 14 of the civil practice and remedies code: (a) An inmate who files an affidavit or unsworn declaration of inability to pay costs shall file a separate affidavit or declaration: (1) identifying each suit, other than a suit under the Family Code, previously brought by the person and in which the person was not represented by an attorney, without regard to whether the person was an inmate at the time the suit was brought; and (2) describing each suit that was previously brought by: (A) stating the operative facts for which relief was sought; (B) listing the case name, cause number, and the court in which the suit was brought; (C) identifying each party named in the suit; and (D) stating the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise. (b) If the affidavit or unsworn declaration filed under this section states that a previous suit was dismissed as frivolous or malicious, the affidavit or unsworn declaration must state the date of the final order affirming the dismissal. (c) The affidavit or unsworn declaration must be accompanied by the certified copy of the trust account statement required by Section 14.006(f). Tex. Civ. Prac. & Rem. Code Ann. § 14.004 (Vernon 2002). The purpose of chapter 14's procedural requirements is to deter “constant, often duplicative, inmate litigation.” Lilly v. Northrep, 100 S.W.3d 335, 337 (Tex. App.–San Antonio 2002, pet. denied); Obadele v. Johnson, 60 S.W.3d 345, 348 (Tex. App.–Houston [14th Dist.] 2001, no pet.). The trial courts are given broad discretion to determine whether an inmate’s suit 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 benefits state officials, courts and meritorious claimants. Aguilar v. Chastain, 923 S.W.2d 740, 743 (Tex. App.–Tyler 1996, writ denied). In determining whether a claim is frivolous or malicious, the trial court may consider whether: (1) the claim’s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b) (Vernon 2002); Lilly, 100 S.W.3d at 337. The filing requirements of chapter 14 are designed to assist the court in determining whether a lawsuit is frivolous. Obadele, 60 S.W.3d at 348. Accordingly, when, as here, an inmate fails to fulfill the requirements of chapter 14, the trial court is entitled to assume the suit is substantially similar to a prior suit and dismiss the cause of action as frivolous. Id. (citing Bell v. Texas Dep’t Criminal Justice–Institutional Div., 962 S.W.2d 156, 158 (Tex. App.–Houston [14th Dist.] 1998, pet. denied)); Walker, 35 S.W.3d at 161; see also Diles v. Henderson, 76 S.W.3d 807, 810 (Tex. App.–Corpus Christi 2002, no pet.). In the instant case, appellant failed to file the section 14.004 affidavit with his petition. He later obtained leave of court to amend his pleadings and attached the required affidavit. However, he did not attach the trust account statement required by section 14.004(c) to the affidavit. Tex. Civ. Prac. & Rem. Code Ann. § 14.004(c) (Vernon 2002). Appellant cites cases, he argues, that hold that a trial court’s dismissal of an inmate’s action solely for failure to file the affidavit required by section 14.004 is an abuse of discretion. However, the cases cited by appellant are distinguishable. They hold that the dismissal of an inmate’s cause of action with prejudice is an abuse of discretion. A dismissal with prejudice constitutes an adjudication on the merits and operates as if the case had been fully tried and decided. Crain v. Prasifka, 97 S.W.3d 867, 870 (Tex. App.—Corpus Christi 2003, pet. denied). We have held that a dismissal for failure to comply with the conditions set out 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. Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex. App.—Corpus Christi 2001, pet. denied); Thomas v. Knight, 52 S.W.3d 292, 295 (Tex. App.—Corpus Christi 2001, pet. denied). In this case, the trial court dismissed appellant’s cause of action without prejudice. A trial court does not abuse its discretion in dismissing a case without prejudice solely upon an inmate’s failure to file a section 14.004 affidavit and/or a certified copy of his trust account statement. Diles, 76 S.W.3d at 810; Walker, 35 S.W.3d at 161-62; Jackson, 28 S.W.3d at 814. Because appellant failed to fully comply with the requirements of section 14.004 of the civil practice and remedies code, we hold that the trial court did not abuse its discretion in dismissing his suit without prejudice. Appellant’s sole issue is overruled. We affirm the trial court’s order of dismissal. FEDERICO G. HINOJOSA Justice Memorandum Opinion delivered and filed this the 12th day of August, 2004.