Opinion
No. 10-04-00250-CV
Opinion delivered and filed June 22, 2005.
Appeal from the 411th District Court, Polk County, Texas, Trial Court # 21495.
Reformed and affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Introduction
Appellant Arnold Ray Lamotte, Jr., an inmate in the Texas Department of Criminal Justice (TDCJ) at the Polunsky Unit in Livingston, filed a pro se suit in forma pauperis against Appellee David Wickersham in state district court on May 18, 2004. Lamotte alleged that Wickersham, the Unit Major Hearing Officer, violated his constitutional and civil rights. In an order dated June 23, 2004, the trial court dismissed the suit as frivolous under Chapter 14 of the Texas Civil Practice and Remedies Code, which governs inmate litigation.
Background
Specifically, Lamotte alleged that Wickersham violated his constitutional and civil rights by reopening a disciplinary case against Lamotte in which Lamotte says that he was initially found "not guilty." After Wickersham reopened the case, Lamotte alleged that Wickersham found him "guilty" and rendered punishment consisting of: loss of 30-days' recreation; loss of 30-days' commissary; "30 day property" [ sic]; and loss of inmate class promotions for 6 months.
Lamotte alleged that Wickersham reopened the disciplinary case in retaliation for Lamotte's filing of a criminal assault charge against an Officer Blanton. Lamotte alleged that Blanton brutally assaulted him on November 22, 2003, in or just outside the dining hall after Lamotte inadvertently witnessed an Officer Miles accuse Blanton of bringing four tattoo needles into the Unit to sell to inmates. Allegedly, as payment for the tattoo needles, Blanton took commissary stamps from another inmate that were to be paid — in addition to other stamps — to a "Sgt. Tamez" to "look the other way" regarding the tattooing. Lamotte alleges that when the inmate whose stamps were taken stated that he was going to report Blanton and Tamez to the warden, Blanton began to eject all the inmates from the dining hall so that he could deal with the accusing inmate. Lamotte alleged that the accusing inmate got away, leaving Lamotte and one other inmate with Blanton. Lamotte alleged that because he had witnessed all of this, Blanton dragged him outside the dining hall and attacked him with his fists and steel-toed boots and severely injured him. Lamotte alleged that he was in "PHD for 8 days" until an FBI agent and TDJC internal affairs ordered Lamotte removed.
Because of various alleged problems with the clerk's record in this appeal, it is unclear to us whether Lamotte has a related lawsuit pending against Wickersham, Blanton, and other prison officers and guards relating to this alleged assault and other alleged retaliatory conduct, or whether Lamotte attempted to amend this lawsuit by adding parties and claims. In the lawsuit that is the basis of this appeal, based on the clerk's record, the only defendant and appellee is Wickersham.
Thereafter, Lamotte alleged that he filed a grievance and criminal charges over the assault, and in retaliation, Wickersham reopened a disciplinary case against him, found Lamotte "guilty," and assessed punishment.
Standard of Review
When an inmate plaintiff files an affidavit of inability to pay, the trial court has broad discretion to dismiss the suit as frivolous or malicious. TEX. CIV. PRAC. REM. CODE ANN. §§ 14.002(a), 14.003(a)(2), (b)(2) (Vernon 2002); Perales v. Kinney, 891 S.W.2d 731, 733 (Tex.App.-Houston [1st Dist.] 1994, no writ). Generally, the dismissal of inmate litigation under Chapter 14 is reviewed for abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.-Waco 1996, no writ).
Affidavits Relating to Previous Filings and the Grievance System
In issues one and five, Lamotte asserts that the trial court abused its discretion in dismissing his claim as frivolous because of his failure to comply with Chapter 14's filing requirements.
Section 14.004 requires an inmate proceeding in forma pauperis to file an affidavit or unsworn declaration that specifically identifies all other pro se lawsuits brought by the inmate. TEX. CIV. PRAC. REM. CODE ANN. § 14.004 (Vernon 2002). Sections 14.004(c) and 14.006(f) further require an inmate to file a certified copy of his inmate trust account statement with the affidavit or declaration relating to previous filings. Id. §§ 14.004(c), 14.006(f).
A trial court may dismiss without prejudice an inmate's claim as frivolous when the inmate fails to file such an affidavit or unsworn declaration. See Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex.App.-Corpus Christi 2001, pet. denied).
Section 14.005 mandates that an inmate who files a claim that is subject to the TDCJ grievance system file an affidavit or unsworn declaration stating the date that his grievance was filed and the date that he received the written grievance decision. TEX. CIV. PRAC. REM. CODE ANN. § 14.005(a)(1) (Vernon 2002). The section also mandates the filing of a copy of the written grievance decision. Id. § 14.005(a)(2). If an inmate does not strictly comply with section 14.005, a trial court does not abuse its discretion in dismissing the claim. Draughon v. Cockrell, 112 S.W.3d 775, 776 (Tex.App.-Beaumont 2003, no pet.).
The clerk's record in this appeal reflects that Lamotte did not file affidavits or unsworn declarations relating to his previous filings or his grievance. However, in his brief and in what we termed his motion to supplement the clerk's record, Lamotte complained that he unsuccessfully attempted to file these items, but that because of alleged misconduct by Richard McKee, the Unit's law library supervisor who is in charge of mailing Lamotte's legal mail, the items were either not mailed to the district clerk for filing or were received by the district clerk but were intentionally or unintentionally not filed by the district clerk. We granted Lamotte's motion in part and directed the district clerk to supplement the record with these items if they in fact had been filed. The district clerk reported that no such items had been filed.
We make no judgment on Lamotte's allegations, which we take seriously, but we are not able to provide him relief on the record before us. Our disposition — affirming the trial court's dismissal, but without prejudice — allows Lamotte to attempt to cure these defects, and we trust that the trial court is equipped to address any future allegation that Lamotte is being denied access to the courts.
Accordingly, the trial court did not abuse its discretion in dismissing Lamotte's claim as frivolous under Chapter 14. We overrule Lamotte's first and fifth issues.
With or Without Prejudice
Lamotte argues in issues ten, thirteen, fourteen, fifteen, and sixteen that the trial court abused its discretion by dismissing his claim with prejudice. We agree. Dismissal with prejudice constitutes adjudication on the merits and operates as if the case had been fully tried and decided. Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991). Dismissal with prejudice is improper when the pleading or filing defect can be remedied by the inmate. See Johns v. Johnson, 2005 WL 428465 at *3 (Tex.App.-Waco Feb. 23, 2005, no pet. h.) (mem. op.); Thomas, 54 S.W.3d at 846-47. The proper order is dismissal without prejudice. We sustain issues ten, thirteen, fourteen, fifteen, and sixteen.
Because of our disposition of the above issues, we need not address Lamotte's remaining issues. See TEX. R. APP. P. 47.1.
Conclusion
Because the record before us lacks the affidavits or unsworn declarations required by sections 14.004 and 14.005, the trial court did not abuse its discretion in dismissing Lamotte's claim as frivolous. We reform the judgment to provide that the cause is dismissed without prejudice. As reformed, the judgment is affirmed.