Opinion
NUMBERS 13-14-00705-CV
03-24-2016
LUIS MENDOZA, TDCJ # 783576, Appellant, v. BRAD LIVINGSTON, ET. AL., Appellee.
On appeal from the 36th District Court of Bee County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion by Justice Longoria
Appellant Luis Mendoza is an inmate housed in the Texas Department of Criminal Justice—Institutional Division (TDCJID). Mendoza brought suit in forma pauperis against numerous defendants employed by the TDCJID for violations of his due process rights under the Fourteenth Amendment. U.S. CONST. amend. XIV. The trial court dismissed all of Mendoza's claims with prejudice pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001-.014 (West, Westlaw through 2015 R.S.). Mendoza argues that the trial court erred by dismissing his case against defendants and by failing to grant Mendoza's motion for nihil dicit default judgment. We affirm.
I. BACKGROUND
On November 16, 2011, Mendoza filed suit against Brad Livingston, Ernest Gutierrez, Jr., Conrad Perales, Ony Trevino, Rick Villarreal, and Benjamin Morales (collectively, the defendants) in their official capacities. Mendoza alleges that he was deprived of property without compensation when his items were taken during an investigation concerning whether Mendoza was a gang member.
On May 6, 2011, Mendoza filed a step one grievance because his items had not been returned yet. His items were returned later that day, but Mendoza claims that several items were missing; therefore, seven days later, on May 13, 2011, Mendoza filed another step one grievance. Mendoza alleges that as retaliation for filing the grievances, the defendants placed a fake "life endangerment form" in his file to have Mendoza transferred to another prison unit.
At the new unit, Mendoza met with a prison staff member to receive the items that were missing. Mendoza was given an inventory sheet of items that were going to be returned to him. Mendoza alleges that when he asked the staff member about certain items on the list, she responded "unethical[ly]" and left the room "hissing," without giving Mendoza an opportunity to claim his missing items. Because his step one grievance was denied, Mendoza then filed a step two grievance concerning his missing items. After his second grievance was also denied, Mendoza filed suit against defendants on November 16, 2011. In his claim, Mendoza alleged negligence, violation of Mendoza's due process rights under the Eight and Fourteenth Amendments, and intentional infliction of emotional distress.
On January 3, 2012, the trial court requested that the Attorney General of Texas file an amicus curiae, along with Mendoza, on the issue regarding whether Mendoza met the statutory requirements for filing an inmate lawsuit. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.003-.005 (West, Westlaw through 2015 R.S.). On January 18, 2012, the Office of the Attorney General (OAG) filed an amicus curiae motion to dismiss the case because Mendoza did not meet the filing timelines required under the statutes and because Mendoza's claims were frivolous. See id. § 14.003. On June 12, 2012, the OAG filed a second amicus curiae motion to dismiss, this time for want of prosecution. On March 10, 2013, Mendoza filed a motion for a nihil dicit default judgment. On April 10, 2013, the OAG filed an amicus curiae request for a hearing on its motion to dismiss. On August 24, 2014, the trial court dismissed all claims brought by Mendoza against all defendants with prejudice. This appeal ensued.
II. DISCUSSION
In two issues on appeal, Mendoza argues that: (1) the trial court erred by dismissing his claims; and (2) the trial court erred by failing to grant Mendoza's motion for nihil dicit default judgment.
Mendoza listed four separate issues on appeal, but issues two and four are simply restatements of his first issue: that it was an error to dismiss his case. --------
A. Standard of Review
We review a dismissal under Chapter 14 for an abuse of discretion. Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any guiding principles or rules. Brewer v. Collins, 857 S.W.2d 819, 822 (Tex. App.—Houston [1st Dist.] 1993, no writ). Trial courts have broad discretion in dismissing a case under Chapter 14 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 accrues to the benefit of state officials, courts, and meritorious claimants." Retzlaff v. Texas Dep't. of Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.—Houston [14th Dist.] 2002, no pet.). However, when the trial court dismisses a claim without a hearing, the dismissal can be affirmed on appeal only if the claims have no arguable basis in law. See id.
"An inmate may not file a claim in state court regarding operative facts for which the grievance system provides the exclusive administrative remedy until he receives a written decision issued by the highest authority provided in the grievance system." Id. at 654; see TEX. GOV'T CODE ANN. § 501.008(d)(1) (West, Westlaw through 2015 R.S.). The grievance system provides the exclusive administrative remedy for all claims by an inmate while incarcerated except for any "remedy provided by writ of habeas corpus challenging the validity of an action occurring before the delivery of the inmate" to the prison facility. TEX. GOV'T CODE ANN. § 501.008(a). "A lawsuit based on the same allegations as made in a grievance must be dismissed if it is not filed before the 31st day" after the date on which the inmate receives a written decision in the grievance proceeding. Moreland, 95 S.W.3d at 394 (emphasis added); see TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(b).
B. Grievance System and Chapter 14 Dismissal
It is uncontested that Mendoza received a written decision for his second grievance from the highest authority in the grievance system on October 4, 2011; however, Mendoza did not file suit until November 16, 2011, which is more than thirty-one days after the day he received the written decision regarding his grievance. Mendoza claims that he complied with the statutory requirements of Chapter 14 because he mailed his claim to the trial court on October 28, 2011, which is within the thirty-one day deadline. However, the clerk rejected Mendoza's suit because it was incomplete and missing several documents, including the in forma pauperis form and the affidavit regarding whether Mendoza had filed any previous lawsuits. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004. The district clerk mailed the papers back to the wrong address. Mendoza did not officially file his suit, with all the proper necessary forms and papers, until November 16, 2011.
In essence, Mendoza is seeking to relate the filing date of his second, correctly-filed petition back to the date he filed his first petition, which did not meet the statutory prerequisites for filing under Chapter 14. See id. However, Mendoza cites no authority to support this proposition, and we find none. See Simmonds v. Harrison, 387 S.W.3d 812, 815 (Tex. App.—Eastland 2012, no pet.) (holding that an inmate could not relate the filing of a subsequent petition back to the date of an earlier petition); see also Garrett v. Nunn, 275 S.W.3d 604, 607 (Tex. App.—Amarillo 2008, no pet.) (observing that there is no exception to the timeliness requirement of section 14.005(b)). Due to his own mistake and not including all the necessary paperwork, Mendoza failed to timely file suit within thirty-one days of receiving a written decision concerning his grievance. By failing to timely file suit, his claims have no arguable basis in law, and the trial court was required to dismiss Mendoza's claims. See Simmonds, 387 S.W.3d at 815; TEX. CIV. PRAC. & REM. CODE ANN. § 14.005. We overrule Mendoza's first issue.
Because we find that Mendoza's claims were mandatorily dismissed, his second issue is moot, and we need not address it. See TEX. R. APP. P. 47.1.
III. CONCLUSION
We affirm the trial court's judgment.
Nora L. Longoria
Justice Delivered and filed the 24th day of March, 2016.