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noting without comment that in the trial court the Office of the Attorney General filed an amicus curiae brief recommending dismissal of an inmate's suit under Chapter 14 as frivolous
Summary of this case from Somerville v. Dall. Cnty. Inc.Opinion
NUMBER 13-15-00416-CV
12-21-2016
CHRISTOPHER K. SCHMOTZER, Appellant, v. RAFAEL MENCHACA CO V, ET AL., Appellees.
On appeal from the 156th District Court of Bee County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Longoria
Memorandum Opinion by Justice Garza
Appellant Christopher K. Schmotzer, pro se, appeals the trial court's order dismissing as frivolous his suit against appellee Rafael Menchaca, a correctional officer at the Texas Department of Criminal Justice ("TDCJ") McConnell Unit in Beeville, Texas. We affirm.
I. BACKGROUND
Schmotzer is an inmate at the McConnell Unit and Menchaca is the unit's Property Officer. On March 25, 2015, Schmotzer filed a petition for injunctive relief alleging that his personal property was improperly confiscated during a "shakedown" search of inmates on December 22, 2014. According to Schmotzer's petition, as part of the search, he was required to remove his personal property from his assigned storage space under the bed in his cell and to present it for inspection. The correctional officer overseeing the search told Schmotzer that he had "too much stuff" and would have to choose what he would keep and what he would send home. Schmotzer replied that "I know it looks like a lot spread out here, but it all fits in my locker." According to Schmotzer, the officer threatened to "lock [him] up" and "take all his property" if he did not choose what to keep and what to send home.
The petition lists "Rafael Menchaca, CO V, et al. Tex. Dept. of Crim. Justice" as "respondent." No appellee's brief has been filed in this matter.
In his petition, Schmotzer alleged that the actions of the officers violated his constitutional rights and several penal code statutes. He asserted that his property was "taken on the spot," that he was not provided seven days to "eliminate excesses" as required by TDCJ policy, and that it was never "verified" that his property was excessive. He claimed that Menchaca "expressed the intent to destroy Schmotzer's property" and requested an order enjoining Menchaca from destroying or tampering with the property. Schmotzer attached several exhibits, including: a list of the property he claims was confiscated, which he values at $970.69; a copy of an "Inmate Request to Official" form referring to a Step 1 Grievance filed regarding these allegations; and a copy of a Step 2 Grievance, which was apparently "returned" due to "inappropriate/excessive attachments."
The disposition of Schmotzer's "Inmate Request to Official" form, signed by Menchaca, states:
You were given a choice . . . as to what property you wanted in the sizing bin and what you were going to send home. You have a few days left to either send property home or have someone pick up during visitation. Per policy property will be discarded. Property room is not a storage.
On June 8, 2015, the Office of the Attorney General filed an amicus curiae brief recommending that the trial court dismiss the suit as frivolous for various reasons. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2) (West, Westlaw through 2015 R.S.).
Subsequently, on June 23, 2015, Schmotzer filed a motion for summary judgment stating in part as follows:
On April 17, 2015, in what can be infer[r]ed as an admittance of guilt or wrong doing, property officer Menchaca CO V, returned Schmotzer's property in its entirety, thusly rendering the necessity for Temporary Restraining Order (TRO) or injunction moot. Schmotzer would offer that the property was not sever[e]ly damaged or materially altered so as to render it useless.Nevertheless, Schmotzer requested the following relief in his summary judgment motion: (1) "[t]o have the order of garnishment voided"; (2) a declaration that he "in fact has property rights, albeit limited, when he is compliant with TDCJ published rules and policies"; (3) court costs; and (4) "litigation costs" of ten dollars.
Later, Schmotzer filed a "Motion for Leave to Amend Summary Judgment" in which he alleged that his property was again confiscated during another "shakedown" search on August 3, 2015, this time because the property was allegedly "improperly stored."
The trial court rendered judgment denying Schmotzer's petition as frivolous for failure to comply with chapter 14 of the Texas Civil Practice and Remedies Code, see id., and this appeal followed.
II. DISCUSSION
Schmotzer argues by four issues that the trial court erred in dismissing his suit. Chapter 14 of the Texas Civil Practice and Remedies Code controls suits, such as this one, brought by an inmate who has filed an affidavit or unsworn declaration of inability to pay costs. See id. § 14.002(a) (West Westlaw through 2015 R.S.). In such a case, the trial court may dismiss a claim at any time if the court finds that the claim is frivolous or malicious. Id. § 14.003(a)(2). We review such a dismissal for abuse of discretion. Jackson v. Tex. Dep't of Criminal Justice-Institutional Div., 28 S.W.3d 811, 813 (Tex. App.—Corpus Christi 2000, pet. denied). A trial court abuses its discretion if its action was arbitrary or unreasonable in light of all the circumstances in the case, or if it acted without reference to any guiding rules and principles. Lewis v. Johnson, 97 S.W.3d 885, 887 (Tex. App.—Corpus Christi 2003, no pet.).
Under chapter 14, an inmate who files a claim that is subject to the grievance system must file "an affidavit or unsworn declaration stating the date that the grievance was filed and the date the written decision . . . was received by the inmate" as well as "a copy of the written decision from the grievance system." TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(a) (West, Westlaw through 2015 R.S.). Schmotzer filed an unsworn declaration stating that he filed a grievance with respect to the events of December 22, 2014, but the declaration did not state that he received a written decision.See id.; Hatcher v. Tex. Dep't of Criminal Justice-Institutional Div., 232 S.W.3d 921, 924-25 (Tex. App.—Texarkana 2007, pet. denied) (holding that the trial court did not abuse its discretion in dismissing claim where inmate failed to file an affidavit or unsworn declaration in compliance with section 14.005(a)). The trial court therefore did not abuse its discretion in dismissing Schmotzer's suit on this basis. See Hatcher, 232 S.W.3d at 925 (noting that "the trial court has broad discretion to dismiss an inmate's lawsuit when the inmate fails to file the affidavit" required by section 14.005(a)).
The unsworn declaration stated in part: "I have filed a grievance in the matter, in due diligence, but am not likely to receive any relief. The Step 2 was re-filed Friday, March 13, 2015." There is no other mention of the grievance system in the declaration.
Chapter 14 also requires that an inmate who files an affidavit or unsworn declaration of inability to pay costs must file a separate affidavit or declaration:
(1) identifying each action, other than an action under the Family Code, previously brought by the person and in which the person was not represented by an attorney, without regard to whether the person was an inmate at the time the action was brought; and
(2) describing each action that was previously brought by:
TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a) (West, Westlaw through 2015 R.S.). The record contains no such affidavit or declaration by Schmotzer. The trial court's judgment was therefore justified on this ground as well. See Diles v. Henderson, 76 S.W.3d 807, 810 (Tex. App.—Corpus Christi 2002, no pet.) ("A trial court does not abuse its discretion by dismissing as frivolous a chapter 14 suit where the inmate does not fully comply with section 14.004."); Samuels v. Strain, 11 S.W.3d 404, 407 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (holding that, because appellant did not comply with section 14.004, "the trial court could have properly assumed this suit was 'substantially similar' to the previous suit and, therefore, frivolous").(A) stating the operative facts for which relief was sought;
(B) listing the case name, cause number, and the court in which the action was brought;
(C) identifying each party named in the action; and
(D) stating the result of the action, including whether the action or a claim that was a basis for the action was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise.
Schmotzer filed an unsworn declaration stating that he "ha[s] not brought or caused to be filed any suit or pleading regarding the issues or unresolved complaints cited within [the above styled and enumerated] cause." However, section 14.004 requires a declaration "identifying each action, other than an action under the Family Code," which the plaintiff has brought pro se—not merely those actions regarding the issues involved in the present case. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a)(1) (West, Westlaw through 2015 R.S.). --------
Finally, Schmotzer acknowledged in his June 23 summary judgment motion that the property confiscated from him on December 22, 2014, was returned to him intact. The specific claims he raised in his petition are therefore moot and have no arguable basis in law. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(b)(2) (providing that "[i]n deciding whether an inmate's claim is frivolous, the trial court may consider whether . . . the claim has no arguable basis in law or in fact"); see also Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (noting that if a controversy ceases to exist—"the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome"—the case becomes moot and the plaintiff lacks standing). Although Schmotzer later alleged in a motion to amend his summary judgment motion that his property was confiscated again on August 3, 2015, he did not seek to amend his petition to reflect this new allegation. Even if he did, he has not shown that he exhausted the grievance procedure with respect to the second alleged confiscation.
For the foregoing reasons, we conclude that the trial court did not abuse its discretion by dismissing Schmotzer's suit, and we overrule his four issues.
III. CONCLUSION
The trial court's judgment is affirmed. All pending motions are denied as moot.
DORI CONTRERAS GARZA
Justice Delivered and filed the 21st day of December, 2016.