Opinion
No. 10-06-00080-CV
Opinion delivered July 11, 2007.
Appeal from the 12th District Court Walker County, Texas, Trial Court No. 23322.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Robin Frazier, a Texas inmate, allegedly injured his back from a slip and fall in the prison chow hall. After filing numerous unsuccessful grievances, Frazier filed an in forma pauperis lawsuit against the Texas Department of Criminal Justice and several of its employees. The TDCJ filed an " Amicus Curiae Advisory" with the trial court requesting dismissal of the suit. The trial court dismissed Frazier's suit under Chapter 14 of the Civil Practice and Remedies Code. In one issue, Frazier challenges this dismissal. We affirm.
The TDCJ did not file an Appellee's brief in this proceeding.
STANDARD OF REVIEW
We normally review a court's dismissal of an in forma pauperis action for abuse of discretion. See Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.-Waco 1996, no pet.). When, as here, the trial court dismisses a suit without a fact hearing, we may affirm the dismissal only if the suit has no arguable basis in law. See Denson v. Tex. Dep't of Crim. Justice, 63 S.W.3d 454, 459 (Tex.App.-Tyler 1999, pet. denied); see also Johnson v. Franco, 893 S.W.2d 302, 303 (Tex.App.-Houston [1st Dist.] 1995, writ dism'd w.o.j.). We apply a de novo standard of review to this issue. See Denson, 63 S.W.3d at 459.
CHAPTER 14
In his sole issue, Frazier contends that Chapter 14 of the Civil Practice and Remedies Code is inapplicable to his lawsuit; thus, the court abused its discretion by dismissing the suit under Chapter 14.
Chapter 14 governs inmate litigation. See TEX. CIV. PRAC. REM. CODE ANN. §§ 14.001-.014. (Vernon 2002). The trial court dismissed Frazier's suit as frivolous and not in compliance with Chapter 14's procedural requirements. Frazier argues that Chapter 14 does not apply to his suit because his cause of action accrued prior to the Chapter's effective date. In reliance on the following language, the TDCJ argues that the relevant time period is the date suit is filed:
An inmate grievance filed before the effective date is governed by the law as it existed immediately before the effective date of this Act, and that law is continued in effect for that purpose.
Act of June 8, 1995, 74th Leg., R.S., ch. 378, § 10(c), 1995 Tex. Gen. Laws 2921, 2927. However, this language refers to Government Code § 501.008. See id. Chapter 14 does not apply to causes of action that accrued prior to its effective date of June 8, 1995. See Act of June 8, 1995, 74th Leg., R.S., ch. 378, § 10(a), 1995 Tex. Gen. Laws 2921, 2927. Rather, these actions are governed by Chapter 13 of the Civil Practice and Remedies Code. See id; see also TEX. CIV. PRAC. REM. CODE ANN. §§ 13.001-.004 (Vernon 2002).
"Section 501.008, Government Code, as amended by this Act, applies only to an inmate grievance filed on or after the effective date of this Act." Act of June 8, 1995, 74th Leg., R.S., ch. 378, § 10(c), 1995 Tex. Gen. Laws 2921, 2927.
Although Frazier filed this suit in 2006, his cause of action accrued in 1993, the date of his injury. See Krohn v. Marcus Cable Assocs., L.P., 201 S.W.3d 876, 879 (Tex.App.-Waco 2006, pet. denied); see also Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003). Chapter 14 does not apply to Frazier's suit. Under Chapter 13, where, as here, an inmate files an affidavit of inability to pay, the trial court may dismiss an action as frivolous. See TEX. R. CIV. P. 145; see also TEX. CIV. PRAC. REM. CODE ANN. § 13.001(a)(2) (Vernon 2002). Because we will affirm a dismissal if proper under any legal theory, we will review the court's dismissal under Chapter 13. See Birdo v. Ament, 814 S.W.2d 808, 810 (Tex.App.-Waco 1991, writ denied).
CHAPTER 1
A trial court may dismiss an in forma pauperis suit if it finds that the action is frivolous or malicious. See TEX. CIV. PRAC. REM. CODE ANN. § 13.001(a)(2). In so deciding, the court may consider whether: (1) the action's realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; or (3) it is clear that the party cannot prove a set of facts in support of the claim. TEX. CIV. PRAC. REM. CODE ANN. § 13.001(b) (Vernon 2002). Trial courts have broad discretion in dismissing frivolous in forma pauperis actions. See Johnson, 893 S.W.2d at 303; see also Denson, 63 S.W.3d at 458.
Frazier alleges that the TDCJ and its employees: (1) failed to provide him with proper work boots, which caused him to slip and fall and led to his injury; (2) aggravated his injury by using excessive force against him; and (3) failed to provide/delayed adequate medical care. He asserts causes of action based on, negligence, negligence per se, 42 U.S.C. § 1983, Texas Constitution art. I §§ 3, 3a, 13, and 19, Texas Constitution art. III § 43, and Civil Practice and Remedies Code §§ 101.003, 104.001, and 104.002.
The court dismissed Frazier's suit, in part, as frivolous because it is "substantially similar" and "arises from the same operative facts" as two prior lawsuits filed by Frazier. Chapter 14 expressly provides that a suit may be frivolous where 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)(4) (Vernon 2002). Chapter 13 contains no such express provision.
However, Chapter 13 parallels its federal counterpart 28 U.S.C. § 1915. See Johnson v. Lynaugh, 766 S.W.2d 393, 394 (Tex.App.-Tyler 1989, writ denied); see also Birdo, 814 S.W.2d at 809-10. Federal courts interpreting section 1915 have held that in forma pauperis suits may be dismissed as frivolous "when they seek to relitigate claims which allege substantially the same facts arising from a common series of events which have already been unsuccessfully litigated." Wilson v. Lynaugh, 878 F.2d 846, 850 (5th Cir. 1989); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993); Shabazz v. Franklin, 380 F. Supp. 2d 793, 802 (N.D. Tex. 2005). Texas courts applying Chapter 13 have reached this same conclusion. See Johnson v. Ozim, 804 S.W.2d 179, 181 (Tex.App.-Houston [14th Dist.] 1991, writ denied) (citing Wilson, 878 F.2d at 850); see also Johnson v. Lynaugh, 800 S.W.2d 936, 938 (Tex.App.-Houston [14th Dist.] 1990, writ denied); McFarland v. Collins, No. 01-96-00376-CV, 1997 Tex. App. Lexis 812, at *6-7 (Tex.App.-Houston [1st Dist.] Feb. 20, 1997, writ denied) (not designated for publication). We agree that an in forma pauperis plaintiff may not "relitigate claims which allege substantially the same facts arising from a common series of events which have already been unsuccessfully litigated." Wilson, 878 F.2d at 850; Johnson, 804 S.W.2d at 181.
Frazier filed an affidavit with the trial court identifying two prior lawsuits, both of which have been dismissed. The TDCJ maintains that all three of Frazier's suits involve the same parties and the same "operative facts," namely the slip and fall. In Frazier's first suit, the trial court granted partial summary judgment against Frazier on his claims under the Texas Tort Claims Act and later dismissed the suit for want of prosecution. Two related appeals indicate that Frazier's first suit involved virtually the same defendants, facts, and causes of action as those involved in the present proceeding. See Frazier v. Peterson, No. 01-96-00735-CV, 1997 Tex. App. Lexis 3347, at *1-2, 3 n. 1 (Tex.App.-Houston [1st Dist.] June 26, 1997, no pet.) (not designated for publication); see also Frazier v. Tex. Dep't of Crim. Justice, No. 01-02-00272-CV, 2003 Tex. App. Lexis 3158 (Tex.App.-Houston [1st Dist.] Apr. 10, 2003, no pet.) (not designated for publication).
It is apparent that all three of Frazier's suits "allege substantially the same facts arising from a common series of events:" the slip and fall, failure to provide work boots, delay/deprivation of medical treatment, excessive force, and negligent supervision Wilson, 878 F.2d at 850; Pittman, 980 F.2d at 994-95; Shabazz, 380 F. Supp. 2d at 802; Johnson, 804 S.W.2d at 181; see Frazier I, 1997 Tex. App. Lexis 3347, at *2, 3 n. 1; see also Frazier II, 2003 Tex. App. Lexis 3158, at *1-2. Frazier's claims based on these facts have not led to a successful conclusion in prior suits. Because he cannot relitigate those claims, his suit has no arguable basis in law. The trial court properly dismissed Frazier's suit as frivolous. See Wilson, 878 F.2d at 850; see also Pittman, 980 F.2d at 994-95; Shabazz, 380 F. Supp. 2d at 802; Johnson, 804 S.W.2d at 181. We overrule Frazier's sole issue and affirm the trial court's judgment.