William Doyle v. Virgil Lucy, Nathaniel Smith, Lt. Wayne Brewer, and Capt. Michael Barnett

Affirmed and Memorandum Opinion filed March 30, 2004 Affirmed and Memorandum Opinion filed March 30, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00039-CV ____________ WILLIAM E. DOYLE, Appellant V. VIRGIL LUCY, NATHANIEL SMITH, LT. WAYNE BREWER, AND CAPT. MICHAEL BARNETT, Appellees On Appeal from the 278th District Court Walker County, Texas Trial Court Cause No. 21,851-C M E M O R A N D U M   O P I N I O N Appellant, William E. Doyle, challenges the trial court=s order dismissing his suit pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. We affirm. Background On October 28, 2002, Doyle, an inmate at the Ellis Unit of the Texas Department of Criminal JusticeBInstitutional Division (TDCJ-ID), filed suit under the Texas Tort Claims Act against appellees: two correctional officers, a lieutenant, and a captain from the Ellis Unit. Proceeding pro se and in forma pauperis, Doyle sought money damages, claiming these prison employees failed to protect him and his property from another inmate=s destructive conduct. The Attorney General=s office filed an amicus curiae advisory in the trial court, outlining Doyle=s failure to comply with Chapter 14 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. '14.001 et seq. (Vernon 2002). On December 17, 2002, the trial court granted the advisory and dismissed Doyle=s suit. On appeal, Doyle contends the trial court=s dismissal constitutes an abuse of discretion. Analysis As an inmate proceeding in forma pauperis, Doyle=s suit is subject to the procedural requirements of Chapter 14. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.002; Hines v. Massey, 79 S.W.3d 269, 271 (Tex. App.CBeaumont 2002, no pet.). The Legislature enacted Chapter 14 to control the flood of frivolous lawsuits filed in Texas courts by prison inmates. McCollum v. Mount Ararat Baptist Church, Inc., 980 S.W.2d 535, 537 (Tex. App.CHouston [14th Dist.] 1998, no pet.); Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.CWaco 1996, no pet.). The statute serves to deter prisoners from filing these frivolous lawsuits by (1) requiring indigent inmates to: (a) file affidavits related to their previous filings; (b) exhaust their administrative remedies; (c) file suit within thirty-one days after the decision on their grievance; and (2) requiring courts to dismiss their suits for noncompliance. Tex. Civ. Prac. & Rem. Code Ann. '' 14.003B.005, 14.010; see Sanders v. Palunsky, 36 S.W.3d 222, 226 (Tex. App.CHouston [14th Dist.] 2001, no pet.). Under Chapter 14, a trial court has broad discretion to dismiss a lawsuit as frivolous or malicious. Retzlaff v. Tex. Dep=t of Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.CHouston [14th Dist.] 2002, pet. denied). In determining whether a suit 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 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); Thomas v. Knight, 52 S.W.3d 292, 294 (Tex. App.CCorpus Christi 2001, pet. denied), cert. denied, 537 U.S. 890 (2002). A court abuses its discretion if it acts without reference to guiding rules or principles. Thomas, 52 S.W.3d at 294B95. Here, the record reflects Doyle failed to comply with the procedural requirements under sections 14.004 and 14.005 of Chapter 14. A. Section 14.004 Section 14.004 requires an inmate to file a separate affidavit or declaration describing each suit he previously has brought pro se, other than a suit under the Family Code. Tex. Civ. Prac. & Rem. Code Ann. ' 14.004(a)(1). By requiring this affidavit, the statute enables the trial court to determine whether an inmate=s claim is similar to a previous claim filed by the inmate and whether it arises from the same operative facts. Bell v. Tex. Dep=t of Criminal Justice-Inst. Div., 962 S.W.2d 156, 157 (Tex. App.CHouston [14th Dist.] 1998, pet. denied). When an inmate does not comply with the requirements of section 14.004, the trial court may assume the suit is substantially similar to one previously filed by the inmate and is therefore, frivolous. See Gowan v. Tex. Dep=t of Criminal Justice, 99 S.W.3d 319, 321B22 (Tex. App.CTexarkana 2003, no pet.); Clark v. J.W. Estelle Unit, 23 S.W.3d 420, 422 (Tex. App.CHouston [1st Dist.] 2000, pet. denied). Here, when Doyle initially filed his suit in the district court, he failed to file an affidavit of previous filings with his original petition. However, on August 27, 2002, Doyle sent a copy of his complaint and supporting documents to the Sheriff of Walker County, Victor Graham. Graham turned the complaint over to the Special Prison Prosecution Unit, which in turn, forwarded the complaint to the Internal Affairs Division of the TDCJ-ID.[1] Doyle argues that by providing the documents to Graham=s office, he complied with section 14.004. We disagree. The statute clearly requires the necessary affidavit be filed with the court. See Tex. Civ. Prac. & Rem. Code Ann. ' 14.004. Further, the record contains a letter from the clerk of the court to Doyle, dated October 11, 2002, advising him that papers Doyle filed in an earlier attempt to initiate the suit were being returned because Doyle failed to enclose a pauper=s oath with a signed affidavit. The letter also stated, AMr. Doyle, it appears that you are trying to file a civil case in the courts of Walker County B should you wish for your case to go forward in the courts of Texas, you may wish to follow the rules as outlined in Chapter 14 - Texas Civil Practice and Remedies Code. (See your law library),@ and AYOU MUST RETURN YOUR PETITION WITH ALL DOCUMENTS REQUIRED BY CHAPTER 14 TOGETHER B OTHERWISE IT WILL BE RETURNED TO YOU@ (emphasis in original). Thus, the clerk=s notice, advising Doyle to comply with Chapter 14, provided him an opportunity to remedy his filing deficiencies. We find Doyle did not comply with the rules governing his status as an inmate proceeding in forma pauperis because the court=s file did not contain an affidavit of previous filings. See Gowan, 99 S.W.3d at 321B22. Therefore, the trial court was within its discretion to dismiss this case pursuant to section 14.004. B. Section 14.005 Moreover, Doyle=s failure to comply with section 14.005 was also a proper basis for dismissal of his lawsuit. Under section 14.005, before filing suit, an inmate must exhaust the remedies available through TDCJ=s grievance system as established under section 501.008 of the Texas Government Code. See Tex. Civ. Prac. & Rem. Code ' 14.005(a); Tex. Gov=t Code Ann. ' 501.008 (Vernon 1998); Crain v. Prasifka, 97 S.W.3d 867, 868 (Tex. App.CCorpus Christi 2003, pet. denied). Section 14.005(b) requires the court to dismiss a claim if the inmate fails to file it before the thirty-first day after the date that he receives the written decision from the grievance system. Tex. Civ. Prac. & Rem. Code Ann. ' 14.005(b); Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.CHouston [1st Dist.] 2002, no pet.). In order to enable a trial court to determine if the inmate=s suit was filed within the period required by section 14.005, the inmate must file the following: (1) an affidavit or unsworn declaration stating the date the grievance was filed and the date the written decision was received by the inmate; and (2) a copy of the written decision from the grievance system. Tex. Civ. Prac. & Rem. Code Ann. ' 14.005(a). Doyle did not file the requisite affidavit or unsworn declaration with his petition, stating the date he filed his grievance, or the date he received the written decision under the grievance system. Furthermore, at the time of the dismissal, the trial court did not have a copy of said written decision. Thus, the trial court did not have anything to review in determining whether Doyle had exhausted his administrative remedies and filed suit within thirty-one days of receiving a written decision under the grievance system. Therefore, the court was within its discretion to dismiss his suit for non‑compliance. See Tex. Civ. Prac. & Rem. Code Ann. '' 14.003(a), 14.005(b); Draughon v. Cockrell, 112 S.W.3d 775, 776 (Tex. App.CBeaumont 2003, no pet.). Doyle claims he should have been afforded an opportunity to remedy his errors, citing to Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex. App.CCorpus Christi 2001, pet denied) and Hickman v. Adams, 35 S.W.3d 120, 125 (Tex. App.CHouston [14th Dist.] 2000, no pet.). However, we do not find either case applicable to the facts presented by this record. In those cases, the trial court dismissed the inmate=s claims with prejudice, whereas here the dismissal was without prejudice.[2] A dismissal without prejudice allows the claimant to file suit again on the same cause of action. McConnell v. Attorney Gen. of Tex., 878 S.W.2d 281, 283 (Tex. App.CCorpus Christi 1994, no writ). Additionally, we have previously held that because a trial court may dismiss an action as frivolous either before or after service of process, the trial court is under no duty to suggest or recommend that a complainant amend his pleading or amend defects in an affidavit. Hickman, 35 S.W.2d at 125; Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex. App.CHouston [14th Dist.] 1990, no writ). We note also that the clerk of the court advised Doyle of the need to comply with Chapter 14. After the dismissal, Doyle filed various documents with the trial court attached to a notice of appeal, including a copy of the written decision from the grievance system, issued on August 6, 2002. We cannot consider documents filed by Doyle after the trial court dismissed his suit. See Smith v. Tex. Dep=t of Criminal Justice-Inst. Div., 33 S.W.3d 338, 341 (Tex. App.CTexarkana 2000, pet. denied). But even if we could, it would not affect the outcome. These later filed documents show that Doyle=s suit was not filed until October 28, 2002, eighty-three days after the decision of the grievance system was issued. Under section 14.005, the court had no discretion except to dismiss the lawsuit. Tex. Civ. Prac. & Rem. Code Ann. ' 14.005; see Lewis v. Johnson, 97 S.W.3d 885, 888 (Tex. App.CCorpus Christi 2003, no pet.); Allen v. Tex. Dep=t of Criminal Justice-Inst. Div., 80 S.W.3d 681, 683 (Tex. App.CHouston [1st Dist.] 2002, pet. denied). . Finally, Doyle claims that he was misled by the sheriff=s and district clerk=s offices about the location of filing and therefore his suit was subject to tolling. We find no evidence in the record to support this contention. We note that section 14.005(b) is not a statute of limitations, but a procedural tool to screen inmate lawsuits. See Crain, 97 S.W.3d at 870; Hickson, 926 S.W.2d at 399. In addition, the plain language of section 14.014, which provides that the provisions of Chapter 14 cannot be modified or repealed by a rule adopted by the Texas Supreme Court, indicates that the legislature intended to apply strict timetables to suits filed by inmates proceeding in forma pauperis. Warner v. Glass, 96 S.W.3d 640, 641 (Tex. App.CTexarkana 2003, pet. filed) (holding that Rules of Civil Procedure 4 and 5 do not act to extend the thirty-one day requirement of 14.005(b)). As noted above, Doyle would not have complied with Chapter 14 even if the required inmate grievance documentation was filed with his original petition on October 28, 2002, because the petition was not filed within thirty-one days of his written decision from the grievance system. In sum, the trial court acted within its discretion in dismissing Doyle=s suit because he failed to comply with Chapter 14=s procedural requirements. See Draughon, 112 S.W.3d at 776; Gowan, 99 S.W.3d at 321B22; Allen, 80 S.W.3d at 683. Accordingly, the judgment of the trial court is affirmed. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed March 30, 2004. Panel consists of Justices Edelman, Frost, and Guzman. [1] By letter dated December 10, 2002, Graham advised Doyle of this action. [2] Failure to comply with sections 14.004 and 14.005(b) results in a dismissal without prejudice. Lewis v. Johnson, 97 S.W.3d 885, 887B88 (Tex. App.CCorpus Christi 2003, no pet.) (pertaining to violations of 14.005); Hickman, 35 S.W.3d at 124 (pertaining to violations of 14.004).