Opinion
No. 09-05-350 CV
Submitted on July 14, 2006.
Opinion Delivered October 5, 2006.
On Appeal from the 60th District Court, Jefferson County, Texas, Trial Cause No. B-174327.
Affirmed as Modified.
Before GAULTNEY, KREGER and HORTON, JJ.
MEMORANDUM OPINION
Bruce Wayne Houser, an inmate at the Texas Department of Criminal Justice — Institutional Division, appeals the trial court's order dismissing with prejudice his lawsuit under Chapter 14 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. Rem. Code Ann. §§ 14.001-14.014 (Vernon 2002). He claims defendant prison officials denied him access to the courts by improperly handling his grievances. We affirm the trial court's dismissal order as modified.
We review a Chapter 14 dismissal under an abuse of discretion standard. Moore v. Zeller, 153 S.W.3d 262, 263 (Tex.App.-Beaumont 2004, pet. denied). To establish an abuse of discretion, an appellant must show the trial court acted arbitrarily or unreasonably in light of the circumstances. Jackson v. Tex. Dep't of Crim. Justice-Inst'l Div., 28 S.W.3d 811, 813 (Tex.App.-Corpus Christi 2000, pet. denied).
Houser presents twenty "issues" for our review. Many of the issues presented are not "concisely" stated as required by Tex.R.App.P. 38.1(e) and fail to contain "clear and concise" supporting arguments as required by Tex.R.App.P. 38.1(h). We understand Houser to essentially argue that the trial court erred in dismissing his suit because his claims are arguable in law and fact, and he complied with all procedural requirements. He argues the trial court erred in dismissing his case "with prejudice."
Houser points out that the district court clerk failed to include the exhibits to his original petition in the clerk's record on appeal. Upon this Court's request, the district clerk has filed a supplemental clerk's record including the exhibits. See Tex.R.App.P. 34.5(c).
Chapter 14 applies to inmate suits in which the inmate files an affidavit or unsworn declaration of inability to pay costs. Tex. Civ. Prac. Rem. Code Ann. § 14.002(a),(b). Section 14.003 allows a court to dismiss an inmate claim if it determines the claim is frivolous or malicious. Id. § 14.003(a)(2). One court has reasoned that the trial courts are given broad discretion in deciding if dismissal is appropriate because "(1) prisoners have a strong incentive to litigate; (2) the government bears the cost of an in forma pauperis suit; (3) sanctions are not effective; and (4) the dismissal of unmeritorious claims accrue to the benefit of state officials, courts, and meritorious claimants." Montana v. Patterson, 894 S.W.2d 812, 814-15 (Tex.App.-Tyler 1994, no writ). A claim has no arguable basis if an inmate fails to exhaust his administrative remedies. Pedraza v. Tibbs, 826 S.W.2d 695, 699 (Tex.App.-Houston [1st Dist.] 1992, writ dism'd w.o.j.).
The Texas Department of Criminal Justice must develop and maintain a system for grievance resolution. See Tex. Gov't Code Ann. § 501.008(a) (Vernon 2004). An inmate may not file a claim in state court regarding operative facts for which the TDCJ grievance system provides the exclusive administrative remedy (a) until the inmate receives a written decision issued by the highest authority provided for in the grievance system, or (b) until the 180th day after the date the grievance is filed, if the inmate has not received a written decision. Tex. Gov't Code Ann. § 501.008(d) (Vernon 2004). An inmate who files a lawsuit under Chapter 14 must file an affidavit or unsworn declaration stating the date the grievance was filed and the date the written decision was received; he also must file with the court a copy of that written decision. Tex. Civ. Prac. Rem. Code Ann. § 14.005(a). If the inmate fails to file suit within thirty-one days of receiving a final decision from the grievance system, the trial court shall dismiss the suit. Id. § 14.005(b). If the suit is filed prior to the completion of the grievance procedure, the trial court shall stay the proceeding for a period not to exceed 180 days to allow for completion of the grievance process. Id. § 14.005(c).
To comply with this directive, TDCJ published an "Offender Orientation Handbook," providing specific grievance procedures for offenders. TEX. DEP'T OF CRIM. JUSTICE, OFFENDER ORIENTATION HANDBOOK (Nov. 2004). See TEX. DEP'T OF CRIM. JUSTICE, ADMINISTRATIVE DIRECTIVE, AD-03.82 (3d rev. Aug. 1, 2002); see also Wolf v. Tex. Dep't of Crim. Justice-Inst'l Div., 182 S.W.3d 449, 450-51 (Tex.App.-Texarkana 2006, pet. denied). Section VI of the Handbook, entitled "Grievance Procedures for Offenders," states an offender has fifteen days from the date of the incident complained of to complete a Step 1 grievance form (I-127). OFFENDER ORIENTATION HANDBOOK, at 52. The Step 1 process may take up to forty days from the date the unit grievance office receives the form. Id. To appeal a Step 1 decision, an offender must file a Step 2 form (I-128) with the grievance investigator on the unit within fifteen days from the date of the Warden's signature on the Step 1 form. Id.
In essence, section 14.005 allows the trial court to ensure that an inmate proceeding in forma pauperis has first exhausted an applicable grievance procedure. See Smith v. Tex. Dep't of Crim. Justice-Inst'l Div., 33 S.W.3d 338, 341 (Tex.App.-Texarkana 2000, pet. denied). Though not expressly stated, the purpose of section 14.005 is to permit dismissal of a suit when it is clear the inmate has failed to provide the statutorily required information. Id. The trial court should dismiss a claim if the inmate does not exhaust the grievance procedures and fails to fulfill the procedural requirements prior to filing the lawsuit. Id.
Houser's petition alleged the defendants committed unlawful acts denying him access to the courts, failed to return his grievances, failed to investigate and collect evidence to substantiate his claims, and retaliated against him for filing grievances. Houser does not plead with specificity the facts underlying his suit or his grievances. His only specific allegation involves the defendants' handling of Grievance #2005049810. He asserts he submitted a Step 1 grievance form but never received a response. He alleges he then submitted a Step 2 grievance, stating he had not received a response to his Step 1 grievance. His Step 2 grievance was returned with the response that the Step 2 grievance could not be processed without an attached Step 1 grievance answer. Houser argues this demonstrates the defendants have illegally denied him access to the courts. Houser asserts he proceeded to the grievance process's highest authority, and the written response to this Step 2 grievance was the "written decision" required for exhaustion-of-remedies purposes under section 501.008(d).
The grievance committee's response, however, was not a substantive written decision. Instead, the response served as notice to Houser of a procedural requirement. If Houser exhausted his remedies under the grievance procedure and yet did not receive a "written decision" by the highest authority provided for in the grievance procedure, he must show he waited at least 180 days after filing his grievance before he filed suit. See Tex. Gov't Code Ann. § 501.008(d)(2). Houser has not provided such proof.
Houser seeks recovery for an unspecified amount of monetary damages under the United States and Texas Constitutions, the laws of the United States and Texas, the Texas Government Code, and the Texas Tort Claims Act. Houser filed an unsworn declaration with his petition declaring his inability to pay costs. Although he alleged dates in his petition, we do not find a separate unsworn declaration filed with his petition stating the dates his grievances were filed or the date a written decision was received. He also did not file with the court a copy of a written decision as required by Tex. Civ. Prac. Rem. Code § 14.005(a).
In his brief, Houser lists several grievance numbers, representing various grievances he maintains he filed. Houser says he has not received responses to those grievances. However, he failed to provide the trial court copies of all of the grievances or any proof of all of the submission dates for the grievances as required by Tex. Civ. Prac. Rem. Code § 14.005(a). Because the record does not establish Houser complied with Chapter 14, we do not see an abuse of discretion in dismissing the suit.
A dismissal for failure to show compliance with certain conditions required by section 14.005(a) is not a decision on the merits, but instead an exercise of the trial court's discretion under Chapter 14. See Crain v. Prasifka, 97 S.W.3d 867, 870 (Tex.App.-Corpus Christi 2003, pet. denied). We therefore modify the trial court's dismissal order to reflect the dismissal is without prejudice. The trial court's order is affirmed as modified.