Johnny Richardson v. Texas Department of Criminal Justice and Ifedma U. Onyemachi

Affirmed and Memorandum Opinion filed June 23, 2011. In The Fourteenth Court of Appeals ___________________ NO. 14-10-01102-CV ___________________ JOHNNY RICHARDSON, Appellant V. TEXAS DEPARTMENT OF CRIMINAL JUSTICE and IFEDMA U. ONYEMACHI, Appellees On Appeal from the 412th District Court Brazoria County, Texas Trial Court Cause No. 60216 MEMORANDUM  OPINION Appellant Johnny Richardson appeals the dismissal of his suit under Chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code §§ 14.001-.014. We affirm. Richardson, an inmate confined at the Texas Department of Criminal Justice (TDCJ), filed suit pro se and in forma pauperis, seeking compensation for the loss of a pair of gloves confiscated by correctional officer Onyemachi. The trial court dismissed his suit as frivolous, and Richardson filed a timely notice of appeal. This court ordered Richardson to file an amended brief because, in his first brief, he failed to comply with requirements in the Texas Rules of Appellate Procedure that briefs include citations to the record and to authorities. See Tex. R. App. P. 38.1(g), (i). Richardson then filed an amended brief, in which he raised a single issue asserting that he is entitled to due process of law regarding the disposition of his property. He complained that prison officials did not follow prison regulations regarding the documentation and storage of an offender’s confiscated personal property, resulting in the loss of his gloves. Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate litigation. See Tex. Civ. Prac. & Rem. Code §§ 14.001—.014. We review a trial court’s Chapter 14 dismissal of an inmate’s claims under an abuse of discretion standard. Retzlaff v. Tex. Dep’t of Crim. Justice, 94 S.W.3d 650, 654 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). A trial court has broad discretion to dismiss an inmate’s suit if it finds that the claim asserted is frivolous or malicious. Martinez v. Thaler, 931 S.W.2d 45, 46 (Tex. App.—Houston [14th Dist.] 1996, writ denied). A trial court abuses this broad discretion if it acts arbitrarily, capriciously, or without reference to any guiding rules or principles. Id. Chapter 14 imposes several procedural requirements before an inmate may bring a lawsuit without paying filing fees. See Tex. Civ. Prac. & Rem. Code §§ 14.002(a), 14.004, 14.005. A failure to fulfill these procedural requirements will result in dismissal of the inmate’s suit. See Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex. App.—San Antonio, 2002 pet. denied). One such procedural requirement is that the inmate must properly exhaust his administrative remedies by completing the internal TDCJ grievance process before filing a lawsuit. Tex. Civ. Prac. & Rem. Code § 14.005; Leachman v. Dretke, 261 S.W.3d 297, 304 (Tex. App.—Fort Worth 2008, no pet.). The trial court must dismiss the suit if the inmate’s claim is subject to the grievance system and “the inmate fails to file the claim before the 31st day after the date the inmate receives the written decision from the grievance system.” Tex. Civ. Prac. & Rem.Code § 14.005(b). The Texas Government Code provides an administrative remedy to compensate inmates for property lost or damaged by prison officials. See Tex. Gov’t Code §§ 501.007—.008. Therefore, Richardson was required to exhaust his remedies through the grievance process before he could seek judicial review. See Tex. Civ. Prac. & Rem. Code § 14.005(a); Tex. Gov’t Code Ann. § 501.008(d) (providing that an inmate may not file a claim in state court until the inmate has received a written decision issued by the highest authority provided for in the grievance system, or the 180th day after the grievance is filed if no decision is received). A claim has no arguable basis in law if the inmate has failed to exhaust his administrative remedies. Retzlaff v. Tex. Dep’t of Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). Section 14.005 provides that an inmate who files suit on a claim subject to the grievance system must file an affidavit or unsworn declaration stating the date that the grievance was filed and the date the written decision was received by the inmate. Tex. Civ. Prac. & Rem.Code § 14.005(a). In addition, the inmate must provide a copy of the written grievance decision. Id. These requirements are necessary to establish that the inmate has exhausted his administrative remedies and filed his claim within the requisite time period. See Garrett v. Borden, 283 S.W.3d 852, 853 (Tex. 2009). If an inmate does not strictly comply with subsection 14.005(a), a trial court does not abuse its discretion in dismissing the claim. See Hamilton v. Williams, 298 S.W.3d 334, 340 (Tex. App.—Fort Worth 2009, pet. denied) (holding appellate court may affirm dismissal for failure to exhaust administrative remedies). In this case, Richardson did not file an affidavit stating the date that a grievance was filed and the date he received the decision. Therefore, the trial court did not abuse its discretion in dismissing Richardson’s suit on this basis. Moreover, based on the copies attached to his petition, it appears that both Richardson’s suit and his grievance were untimely, as well. Richardson alleges that his property was confiscated on February 25, 2010. He received written confirmation on March 17, 2010, that his property was not located in the property room. Richardson’s Step 1 grievance was filed May 3, 2010, and it was denied the same date, with the notation, “Grievable time period has expired.” In response to his inquiry, the investigator advised Richardson that he had 15 days after receipt of written confirmation that the property was lost to file his grievance, and he failed to do so. See Wolf v. Tex. Dep’t of Crim. Justice, 192 S.W.2d 449, 450-51 (Tex. App.—Texarkana, pet. denied) (citing the Offender Orientation Handbook requirement to file grievance within 15 days of incident). He then filed a Step 2 grievance dated May 12, 2010, but bearing a stamp dated May 28, 2010. The Step 2 grievance was returned because Richardson’s Step 1 grievance had been returned to him unprocessed. Therefore, Richardson failed to exhaust his administrative remedies. See Leachman, 261 S.W.3d at 310-11 (holding that inmate who filed a Step 1 offender grievance form, which was returned unprocessed because it was not timely, and who then filed Step 2 offender grievance form failed to exhaust his administrative remedies). Richardson also did not file this suit until October 11, 2010, over four months later. The trial court is required to dismiss a claim if the inmate fails to file suit before the 31st day after the date the inmate receives a written decision from the grievance system. See Tex. Civ. Prac. & Rem. Code § 14.005 (b). For these reasons, we hold that the trial court did not abuse its discretion in dismissing Richardson’s suit. We overrule Richardson’s sole issue and affirm the trial court’s judgment. PER CURIAM Panel consists of Chief Justice Hedges and Justices Syemore and Boyce.