Summary
In Decker v. Clements, et al, ___ S.W.3d ___, slip op. no. 06-04-118-CV (Tex.App.-Texarkana, Sept. 13, 2005, rehearing overruled, pet. ref'd), Decker sued a number of prison officials, complaining of confiscations of his legal materials and failure to accommodate his physical ailments or disabilities.
Summary of this case from Decker v. DunbarOpinion
No. 06-04-00118-CV
Submitted: February 24, 2005.
Decided: August 16, 2005. DO NOT PUBLISH.
On Appeal from the 102nd Judicial District Court, Bowie County, Texas, Trial Court No. 04C0762-102.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
In response to a motion filed by defendants, Chequita Clements, John Rupert, Dennis Martin, Nita Burgess, Zelda Glass, and Jordan Smith (Defendants) — all employees of the Texas Department of Criminal Justice — Institutional Division (the Department) — the trial court dismissed with prejudice a lawsuit filed against them by Kurby Decker, an inmate held by the Department.
Though not relevant to the current appeal, the dismissed suit apparently complains that some of Decker's legal documents were taken or kept from him and that the Department failed to accommodate his physical ailments or disabilities — which thereby amounted to discrimination, unfair treatment, and violation of the Americans with Disabilities Act — and that such wrongs were committed by government officials while engaged in their governmental capacity — thereby constituting violations of 42 U.S.C. § 1983. Though Decker's suit was dismissed September 30, 2004, Decker thereafter filed "Plaintiff's Sur-reply in Opposition to Defendants' Motion to Dismiss" October 6, 2004, and "Fifth VTRC Civil Procedure Rule 63 Supplemental Pleading" October 7, 2004. We will not consider pleadings filed after the trial court signed its order of dismissal.
In their motion to dismiss, Defendants asserted Decker's lawsuit should be dismissed because he failed to file a qualifying affidavit detailing his previous filings, to exhaust his administrative remedies, to file the proper affidavit and the forms properly documenting his exhaustion of such administrative remedies, to file his lawsuit on time, and to attach a certified copy of his trust fund account statement. The trial court dismissed the lawsuit without specifying the ground or grounds for the dismissal. On appeal, Decker essentially challenges each of the possible grounds for the dismissal and also asserts the trial court denied him due process by not holding a hearing on the motion to dismiss.
We affirm the dismissal, but modify the trial court's order to make the dismissal without prejudice. We reach that result because (1) the dismissal was proper, (2) a hearing on a motion to dismiss is discretionary, and (3) the dismissal should have been without prejudice.
(1) The Dismissal Was Proper
We review a dismissal of an in forma pauperis suit under an abuse of discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.-Waco 1996, no writ); see Martinez v. Thaler, 931 S.W.2d 45, 46 (Tex.App.-Houston [14th Dist.] 1996, writ denied). Abuse of discretion exists where a court acts without reference to applicable guiding rules and principles, acts arbitrarily, or misinterprets or misapplies those guiding rules or the law. Vacca v. Farrington, 85 S.W.3d 438, 440 (Tex.App.-Texarkana 2002, no pet.); Letson v. Barnes, 979 S.W.2d 414, 417 (Tex.App.-Amarillo 1998, pet. denied).
Trial courts are given broad discretion to determine whether a case should be dismissed, because prisoners have a strong incentive to litigate; the government bears the cost of an in forma pauperis suit; sanctions are not effective; and the dismissal of unmeritorious claims accrues to the benefit of state officials, courts, and meritorious claimants. See Montana v. Patterson, 894 S.W.2d 812, 814-15 (Tex.App.-Tyler 1994, no writ). We will affirm such a dismissal if it is proper under any legal theory. Birdo v. Debose, 819 S.W.2d 212, 215 (Tex.App.-Waco 1991, no writ). In considering the record before us, we review and evaluate pro se pleadings with liberality and patience, but otherwise apply the same standards applicable to pleadings drafted by lawyers. Foster v. Williams, 74 S.W.3d 200, 202 (Tex.App.-Texarkana 2002, pet. denied).
Defendants' motion to dismiss asserted that Decker failed to file the required sworn statement of previous litigation and to file the required certified copy of his trust fund account. However, a review of the clerk's record shows a list of previous litigation with the same file-stamp date, May 27, 2004, as Decker's first petition alleging a 1983 violation, as well as a certified copy of Decker's trust fund account. Therefore, neither of those two bases supports the dismissal of Decker's lawsuit.
The motion to dismiss argues against Decker's contention, in his statement of previous litigation, that habeas corpus actions are not required to be listed by Section 14.004. Defendants' motion claimed Decker failed to include habeas corpus and other actions in his statement of previous litigation. Defendants' motion did not reference cause numbers, although it did list the courts and styles of several cases allegedly filed by Decker. There are numerous cases listed by Defendants not contained in Decker's statement of previous litigation. The motion to dismiss states that "at least one case, Decker v. Wichita County, was dismissed as frivolous, according to the District Court Pacer." Again, no cause number is given and there does not appear, in our record, any certified copies of rulings from any of the cases Defendants allege Decker to have been party to. We can find no evidence in the clerk's record which would have contradicted Decker's statement of previous litigation. Thus, the trial court's dismissal could not withstand appellate scrutiny on that ground.
But Defendants' motion to dismiss also alleges Decker failed to properly exhaust available administrative remedies and to properly document and verify that process. Section 14.005 of the Texas Civil Practice and Remedies Code requires that an inmate file both (a) an affidavit or unsworn declaration stating the date the resolution of the inmate's grievance was received, and (b) a copy of the form denying the inmate relief. TEX. CIV. PRAC. REM. CODE ANN. § 14.005(a)(1), (2) (Vernon 2002). Decker filed copies of several "Step 2" forms, which contain his complaints and then a ruling or decision from prison officials. None of his pleadings, however, contain the verified statement required by Section 14.005(a)(1). See TEX. CIV. PRAC. REM. CODE ANN. § 14.005(a)(1).
We also note that the copies of grievances Decker attached did contain dates, but we are unable to discern if these are the dates the grievances were filed. The grievance documents have such entries as "UGI Recd Date" and "HG Recd Date" and "Date Due," but contain no explanation of those terms or their significance.
Section 14.005 is quite clear in its requirement of both an affidavit and copies of the grievance form. In a similar situation, we held "it is incumbent on the inmate to provide the required information before it comes to the trial court for review. This is especially true because Section 501.008 of the Government Code precludes an inmate from filing a claim until he has exhausted his remedies through the grievance system." Smith v. Tex. Dep't of Criminal Justice — Institutional Div., 33 S.W.3d 338, 341 (Tex.App.-Texarkana 2000, pet. denied); see TEX. GOV'T CODE ANN. § 501.008 (Vernon 2004).
Because Decker failed to comply with the statutory requirement of Section 14.005, the trial court did not abuse its discretion in dismissing the suit. We affirm the trial court's order of dismissal. (2) A Hearing on a Motion To Dismiss Is Discretionary
In other points attacking the dismissal, Decker contends that the statute of limitations was tolled and that his grievance forms were timely filed. We have concluded above that the trial court was within its discretion to dismiss this suit, and the dismissal will be upheld if it was correct under any legal theory. See Birdo, 819 S.W.2d at 215. We overrule these points.
Decker also contends the trial court erred in dismissing his suit without holding a hearing. The Texas Civil Practice and Remedies Code provides that, in determining whether to dismiss a claim as frivolous under Section 14.003, the court may hold a hearing. TEX. CIV. PRAC. REM. CODE ANN. § 14.003(c) (Vernon 2002). A trial court's decision on whether to dismiss an inmate's suit based on failure to comply with statutory requirements is discretionary. Williams v. Brown, 33 S.W.3d 410, 411 (Tex.App.-Houston [1st Dist.] 2000, no pet.).
Certainly, inmates have a constitutional right to access the courts for the purpose of presenting their complaints. Cruz v. Beto, 405 U.S. 319 (1972). But pro se litigants are held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Greenstreet v. Heiskell, 940 S.W.2d 831, 834 (Tex.App.-Amarillo 1997, no pet.). To curtail frivolous or malicious lawsuits, restricting or regulating the ability of inmates to proceed in forma pauperis does not implicate any constitutionally protected right per se. Hicks v. Brysch, 989 F.Supp. 797, 822 (Tex. 1997). Judgment on the pleadings or for failure to comply with procedural requirements, without holding an evidentiary hearing, is proper and does not violate due process. See Willis v. Capots, 902 F.2d 1570 (6th Cir. 1990).
For the reasons discussed above, we find no abuse of the trial court's discretion and overrule this point.
(3) The Dismissal Should Have Been Without Prejudice
As no hearing was held, the trial court could not have reached the merits of Decker's suit. When a claim is dismissed without a fact hearing, the trial court could not have determined that the suit had no arguable basis in fact. In re Wilson, 932 S.W.2d 263, 265 (Tex.App.-El Paso 1996, no writ); Harrison v. Tex. Dep't of Criminal Justice — Institutional Div., 915 S.W.2d 882, 887 (Tex.App.-Houston [1st Dist.] 1995, no writ). Dismissal without prejudice is the proper remedy, rather than dismissal with prejudice, where the inmate's suit failed to comply with a statutory requirement of an attached affidavit; such a failure is capable of cure by amending the pleadings. Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex.App.-Corpus Christi 2001, pet. denied) (inmate failed to comply with Section 14.004 requirements of full statement of previous litigation).
We modify the trial court's judgment to make it a dismissal without prejudice, and affirm it as modified.