Barnes, Phillip Joseph v. the Texas Department of Criminal Justice, the Texas Department of Criminal Justice- Institutional Division

Affirmed as Modified and Memorandum Opinion filed March 30, 2004 Affirmed as Modified and Memorandum Opinion filed March 30, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-02-00801-CV ____________ PHILLIP JOE BARNES, Appellant V. THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, THE TEXAS DEPARTMENT OF CRIMINAL JUSTICEBINSTITUTIONAL DIVISION, GARY JOHNSON, JANIE COCKRELL, CARL JEFFRIES, A.M. (MAC) STRINGFELLOW, FRANK HOKE, GARY MOHR, MICHAEL A. WILSON, MICHAEL BIBBS, AND JOHN DOES 1B3, Appellees On Appeal from the 12th District Court Walker County, Texas Trial Court Cause No. 21,532 M E M O R A N D U M   O P I N I O N Phillip Joe Barnes appeals the trial court=s dismissal with prejudice of his claims under chapter 14 of the Texas Civil Practice and Remedies Code. We modify the trial court=s order to dismiss Barnes=s claims without prejudice, and as so modified, we affirm the trial court=s order. I. Factual and Procedural Background Barnes is an inmate in the Texas Department of Criminal Justice, Institutional Division. Barnes filed a pro se, in forma pauperis lawsuit asserting various claims against the appellees. The Attorney General of Texas, acting as amicus curiae, advised the trial court that Barnes had not fulfilled the requirements of section 14.005(a) of the Texas Civil Practice and Remedies Code. The trial court dismissed Barnes=s claims under chapter 14 of the Texas Civil Practice and Remedies Code. II. Issues and Analysis On appeal, Barnes asserts, among other things, that the trial court abused its discretion by dismissing his claims for failure to comply with section 14.005(a) of the Texas Civil Practice and Remedies Code and by failing to grant Barnes=s motion to appoint counsel. Barnes also asserts the trial court erred by dismissing his claims with prejudice. A. Did the trial court abuse its discretion by dismissing Barnes=s claims for failure to comply with section 14.005(a) of the Texas Civil Practice and Remedies Code? Under his first and second issues, Barnes asserts that the trial court erred by dismissing his claims for failure to comply with section 14.005(a) of the Texas Civil Practice and Remedies Code. We review a trial court=s dismissal of an inmate=s claims under chapter 14 of the Texas Civil Practice and Remedies Code under an abuse-of-discretion standard. Retzlaff v. Texas Dept. of Criminal Justice, 94 S.W.3d 650, 654 (Tex. App.CHouston [14th Dist.] 2002, pet. denied). To establish an abuse of discretion, Barnes must show that the trial court acted without reference to any guiding rules and principles or, alternatively, that the trial court=s actions were arbitrary or unreasonable based on the circumstances of his individual case. Id. The fact that, under similar circumstances, an appellate court might decide a matter differently than did the trial court, does not demonstrate that an abuse of discretion has occurred. Id. Section 14.005 of the Texas Civil Practice and Remedies Code states: (a) An inmate who files a claim that is subject to the grievance system established under Section 501.008, Government Code, shall file with the court: (1) an affidavit or unsworn declaration stating the date that the grievance was filed and the date the written decision described by Section 501.008(d), Government Code, was received by the inmate; and (2) a copy of the written decision from the grievance system. Tex. Civ. Prac. & Rem. Code ' 14.005(a). Section 501.008(d) of the Texas Government Code states: (d) An inmate may not file a claim in state court regarding operative facts for which the grievance system 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) if the inmate has not received a written decision described by Subdivision (1), the 180th day after the date the grievance is filed. Tex. Gov=t Code ' 501.008(d). On appeal, Barnes argues that he complied with section 14.005(a)[1] by filing with his petition an affidavit that satisfied section 14.005(a)(1) and by filing with his petition copies of the written decisions he had received from the grievance system and that were referenced in his affidavit. Barnes did file with his petition an unsworn declaration, in which he states the following: (1) Barnes has received four written decisions described by section 501.008(d) of the Government Code regarding grievances pertaining to the claim in this lawsuit. (2) Barnes filed grievance number 2002016217 on September 27, 2001. On November 9, 2001, Barnes submitted his Step 2 grievance, and on January 14, 2002, Barnes received the written decision issued by the highest authority provided for in the grievance system regarding this grievance. (3) Barnes filed grievance number 2002043130 on November 12, 2001. On January 1, 2002, Barnes submitted his Step 2 grievance, and on January 31, 2002, Barnes received the written decision issued by the highest authority provided for in the grievance system regarding this grievance. (4) Barnes filed grievance number 2002047485 on November 19, 2001. On January 4, 2002, Barnes submitted his Step 2 grievance, and on February 1, 2002, Barnes received the written decision issued by the highest authority provided for in the grievance system regarding this grievance. (5) Barnes filed grievance number 2002049608 on December 20, 2001. On January 3, 2002, Barnes submitted his Step 2 grievance, and on February 1, 2002, Barnes received the written decision issued by the highest authority provided for in the grievance system regarding this grievance. The grievance forms that Barnes submitted with his petition are jumbled, with the front of each Step 1 grievance form followed by the back of a Step 2 grievance form and the front of each Step 2 grievance form followed by the back of a Step 1 grievance form. Because the backs of some of the forms do not reference the grievance number, it is difficult to determine which grievance decisions (or portions thereof) Barnes filed. Barnes submitted the following sheets that appear to be written decisions issued by the highest authority provided for in the grievance system: (1) One decision is dated December 17, 2001, does not reference a grievance number, and states it was signed by Barnes on November 8, 2001. (2) One decision is dated January 17, 2002, does not reference a grievance number, and states it was signed by Barnes on December 31, 2001. (3) One decision is dated January 23, 2002, does not reference a grievance number, and states it was signed by Barnes on January 3, 2001[sic]. Barnes filed no additional grievance decisions before the trial court dismissed his suit.[2] The record shows that Barnes did not file a copy of the written decision from the grievance system issued by the highest authority provided for in the grievance system regarding grievance numbers 2002016217, 2002043130, 2002047485, and 2002049608. Therefore, Barnes did not comply with section 14.005(a)(2), and the trial court did not abuse its discretion in dismissing Barnes=s suit. See Tex. Civ. Prac. & Rem. Code ' 14.005; Tex. Gov=t Code ' 501.008(d); Bishop v. Lawson, C S.W.3d C, C, No. 2-03-076-CV, 2004 WL 392991, at *2B3 (Tex. App.CFort Worth Mar. 4, 2004, no pet. h.) (affirming dismissal for failure to file written grievance decisions as required by section 14.005(a)(2)); Kelley v. Scott, No. 14-01-00696-CV, 2003 WL 21229275, at *3 (Tex. App.CHouston [14th Dist.] May 29, 2003, no pet.) (mem. op.) (affirming dismissal for failure to comply with section 14.005(a),(b)); Smith v. Tex. Dep=t of Criminal JusticeBInst. Div., 33 S.W.3d 338, 341 (Tex. App.CTexarkana 2000, pet. denied) (affirming dismissal for failure to file written grievance decisions as required by section 14.005(a)(2)). Accordingly, we overrule Barnes=s first and second issues.[3] B. Did the trial court err in failing to appoint legal counsel for Barnes? In his seventh issue, Barnes asserts the trial court abused its discretion by failing to grant Barnes=s motion to appoint counsel. After reviewing the record, we conclude that this case does not present exceptional circumstances entitling Barnes to appointed legal counsel and that the trial court did not abuse its discretion by declining to appoint counsel for Barnes. See Gibson v. Tolbert, 102 S.W.3d 710, 712B13 (Tex. 2003) (holding trial court did not abuse discretion in failing to appoint counsel for prison inmate in civil lawsuit). Accordingly, we overrule Barnes=s seventh issue. C. Did the trial court err in dismissing Barnes=s claims with prejudice? In his third issue, Barnes asserts the trial court erred in dismissing his claims with prejudice rather than without prejudice. We agree. When a trial court dismisses for failure to comply with section 14.005(a), the dismissal should be without prejudice, rather than with prejudice. See Crain v. Prasifka, 97 S.W.3d 867, 870 (Tex. App.CCorpus Christi 2003, pet. denied) (holding dismissal under section 14.005 should be without prejudice); Hickman v. Adams, 35 S.W.3d 120, 124B25 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (holding dismissal under section 14.004 should be without prejudice). Accordingly, we sustain Barnes=s third issue. III. Conclusion The trial court did not abuse its discretion by dismissing Barnes=s claims for failure to comply with section 14.005(a)(2) or by declining to appoint legal counsel for Barnes. However, because a dismissal under section 14.005(a)(2) should be without prejudice, we modify the trial court=s order to omit the words Awith prejudice@ and to dismiss Barnes=s claims without prejudice, and as so modified, we affirm the trial court=s order. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed March 30, 2004. Panel consists of Justices Edelman, Frost, and Guzman. [1] Unless otherwise stated, all references in this opinion to a section are to the corresponding section of the Texas Civil Practice and Remedies Code. [2] Barnes filed additional grievance decisions after the trial court dismissed his suit. We cannot consider them. See Smith v. Tex. Dep=t of Criminal JusticeBInst. Div., 33 S.W.3d 338, 341 (Tex. App.CTexarkana 2000, pet. denied). Even if we could do so, these subsequent filings did not include written decisions issued by the highest authority provided for in the grievance system regarding grievance numbers 2002016217, 2002043130, 2002047485, or 2002049608. [3] Because we hold that the trial court did not err in dismissing Barnes=s claims, we need not address Barnes=s fourth, fifth, or sixth issues.