Clyde Nubine v. Javier Herrera

NUMBER 13-01-395-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG CLYDE NUBINE, Appellant, v. JAVIER HERRERA, ET AL., Appellees. On appeal from the 343rd District Court of Bee County, Texas. M E M O R A N D U M O P I N I O N Before Chief Justice Valdez and Justices Hinojosa and Castillo Opinion by Chief Justice Valdez Appellant, Clyde Nubine, an inmate in the Texas Department of Criminal Justice Institutional Division, appeals the dismissal of his pro se case under chapter fourteen of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003 (Vernon 2002). The trial court, on its own motion, dismissed appellant’s suit because it determined appellant’s claim was “frivolous,” the chance of success of the claim was slight, and the claim had no arguable basis in law or fact. We affirm. Facts and Procedural History As this is a memorandum opinion and the parties are familiar with the facts of the case, we will not recite them here except as necessary to advise the parties of this Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4. Analysis We review the dismissal of an inmate’s claim under chapter fourteen of the civil practices and remedies code for abuse of discretion. Spurlock v. Schroedter, 88 S.W.3d 733, 735 (Tex. App.–Corpus Christi 2002, no pet.). An abuse of discretion occurs if the trial court acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Lewis v. Johnson, 97 S.W.3d 885, 887 (Tex. App.–Corpus Christi 2003, no pet.). A court may dismiss a claim as frivolous, either before or after service of process, by considering 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); Spurlock, 88 S.W.3d at 736. If the trial court does not conduct a fact hearing when it dismisses the case, the issue on appeal is whether there was no arguable basis in law for the suit. Spurlock, 88 S.W.3d at 736; Martin v. Tex. Bd. Criminal Justice, 60 S.W.3d 226, 229 (Tex. App.–Corpus Christi 2001, no pet.). Here, the record shows the trial court did not conduct a hearing before it dismissed the suit. Therefore, we look to see if appellant had any arguable basis in law for his suit. Spurlock, 88 S.W.3d at 736. An inmate may not file a claim in state court regarding operative facts for which the grievance system described in section 501.008 of the government code provides the exclusive administrative remedy until: (1) the inmate receives a written decision issued by the highest authority provided for in the grievance system; or (2) the 180th day after the grievance is filed if the inmate has not received a written decision. Tex. Gov’t Code Ann. § 501.008(d) (Vernon 1998); Lewis v. Stephens, 957 S.W.2d 879, 880 (Tex. App.–Corpus Christi 1997, no pet.) (op. on reh’g). An inmate who files a claim in state court under section 501.008 of the government code must file an affidavit stating the date a grievance was filed, the date a written decision was received, and include a copy of the written decision. Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a) (Vernon 2002). If an inmate files a claim “before the grievance system procedure is complete, the court shall stay the proceeding with respect to the claim for a period not to exceed 180 days to permit completion of the grievance system procedure.” Id. § 14.005(c). However, to claim the benefit of section 14.005(c), an inmate “must alert the trial court to the pendency of an administrative proceeding.” Stephens, 957 S.W.2d at 880. It is not error for the trial court to dismiss the suit if the inmate does not inform the trial court of the existence of any pending administrative proceedings. Id. Here, appellant’s section 14.005 affidavit admits he did not exhaust his administrative remedies because he was “stonewalled” by prison officials. The record contains a copy of his Step 1 grievance form, which was returned to appellant because it was “illegible/incomprehensible.” The record also contains a letter from an administrator of the grievance system informing appellant he cannot proceed with Step 2 of the grievance process because his Step 1 grievance form was improperly submitted. The record does not reflect that appellant properly resubmitted his Step 1 grievance. Further, the record shows appellant neither obtained a final decision from the highest authority provided for in the grievance system nor informed the trial court of any pending administrative proceedings. Accordingly, we hold the trial court did not abuse its discretion when it dismissed appellant’s claim as frivolous because appellant failed to exhaust his administrative remedies. See Stephens, 957 S.W.2d at 880; Retzlaff v. Tex. Dep’t of Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.–Houston [14th Dist.] 2002, pet. denied) (“a claim has no arguable basis in law if a prisoner fails to exhaust his administrative remedies”); see also Smith v. Tex. Dep’t of Criminal Justice, 33 S.W.3d 338, 341(Tex. App.–Texarkana 2000, pet. denied) (noting purpose of section 14.005 is to allow trial court to dismiss suit if inmate fails to provide information required by statute). Conclusion The trial court judgment is affirmed. Rogelio Valdez, Chief Justice Opinion delivered and filed this 15th day of April, 2004.