Opinion
No. 04-05-00490-CV
Delivered and Filed: July 5, 2006.
Appeal from the 81st/218th Judicial District Court, Karnes County, Texas, Trial Court No. 04-04-00069-Cvk, Honorable Ron Carr, Judge Presiding.
Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Jerry Wanzer filed suit against Adelfa Longoria, Cody Loosemore, Bill Carr, and Henry L. Nieto ("appellees"), alleging they had violated his civil rights. Upon appellees' motion, the trial court dismissed Wanzer's case, without prejudice, as frivolous for failure to comply with the requirements of Texas Civil Practice and Remedies Code Chapter 14. On appeal, Wanzer asserts the trial court erred in granting appellees' motion to dismiss because (1) he complied with Chapter 14 and (2) at the hearing on the motion, the trial court granted him a sixty-day extension of time to address the motion to dismiss. We overrule Wanzer's issues and affirm the judgment of the trial court.
Background
While Wanzer was an inmate at the Connally Unit of the Texas Department of Criminal Justice, the correction officers conducted a routine inmate property shakedown and searched through his property. According to Wanzer, under Officer Longoria's orders, the correction officers wrongfully threw away items that belonged to him, which included religious material, Watch Tower magazines, National Geographics, other magazines, and business and legal materials. Wanzer complained about the incident to Captain Carr, and subsequently filed a grievance complaint against the appellees. Following the grievance system decision and proceeding pro se, Wanzer filed a lawsuit in forma pauperis against the appellees. The appellees moved to dismiss the lawsuit on two grounds: (1) Wanzer's petition was not timely filed under Chapter 14, and (2) his Affidavit of Previous Filings did not comply with the other requirements of Chapter 14. After conducting a hearing, the trial court granted the appellees' motion. Wanzer filed a motion to reinstate and vacate the dismissal order. Wanzer's motion was overruled by operation of law, and this appeal ensued.
Standard of Review
A trial court may dismiss a suit filed by an indigent inmate, either before or after service of process, if the court finds that the claim is frivolous or malicious. Tex. Civ. Prac. Rem. Code Ann. § 14.003(a)(2) (Vernon 2002). In determining whether the claim is frivolous or malicious, the court may consider whether (1) the claim's realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Id. § 14.003(b)(4). We review a dismissal under Civil Practice and Remedies Code Chapter 14 using an abuse of discretion standard. Smith v. Tex. Dep't of Criminal Justice-Inst. Div., 33 S.W.3d 338, 339 (Tex.App.-Texarkana 2000, pet. denied). The trial court abuses its discretion if it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We will affirm the dismissal if it was proper on any ground stated in the motion.
Statute of Limitations
If an inmate fails to file a claim within thirty-one days of receiving a final decision from the grievance system, the trial court must dismiss the suit. Tex. Prac. Rem. Code Ann. § 14.005(b) (Vernon 2002). However, because an inmate does not have direct access to either the clerk's office or a United States mailbox for first-class mail, a pro se inmate's petition that is placed in a properly addressed and stamped envelope is deemed filed at the time the prison authorities duly receive the document to be mailed. Warner v. Glass, 135 S.W.3d 681, 682 (Tex. 2004). Here, there is no dispute that Wanzer received the final decision from the grievance system on March 8, 2004, and his petition is file-stamped April 23, 2004. However, in his verified petition, Wanzer states he mailed the petition to the district clerk on April 7, 2004. In his verified motion to vacate the dismissal order, Wanzer again states he delivered his petition to prison officials on April 7, 2004. Therefore, under Warner, the trial court erred in dismissing Wanzer's suit as untimely filed.
Affidavit of Previous Suits
An inmate who files an affidavit of inability to pay costs must file a separate affidavit or declaration identifying all previous suits. See Tex. Prac. Rem. Code Ann. § 14.004(a) (Vernon 2002). The affidavit must state, for each previous suit, "the operative facts for which relief was sought." Id. § 14.004(a)(2)(A). Here Wanzer's affidavit did not state all the operative facts; therefore, the trial court was entitled to assume the underlying lawsuit was substantially similar to one previously filed by him. Accordingly, the trial court did not abuse its discretion by dismissing Wanzer's suit as frivolous. See Samuels v. Strain, 11 S.W.3d 404, 406 (Tex.App.-Houston [1st] 2000, no pet.); Hickson v. Moya, 926 S.W.2d 397, 399 (Tex.App.-Waco 1996, no writ).
Reporter's Record
Wanzer contends the reporter's record contains various inaccuracies, among which are statements he alleges he never made and the absence of almost thirty-two lines of testimony that includes the trial court granting him a sixty-day extension of time to address the appellees' motion to dismiss. Wanzer's complaint is contradicted by the record, which indicates the trial court asked appellees' counsel if he had an order. Counsel responded that he did, and the court stated, "Those are the orders of the Court in the two cases, Mr. Wanzer. Good luck to you." Two days later, the trial court signed a written order dismissing the lawsuit.
Conclusion
For the above reasons, we overrule Wanzer's issues on appeal and affirm the trial court's order of dismissal.