Opinion
No. 09-04-154 CV
Submitted on January 25, 2005.
Opinion Delivered February 3, 2005.
On Appeal from the 136th District Court, Jefferson County, Texas, Trial Court Cause No. D-170747.
Affirmed.
William E. Cunningham, Pro Se, Beaumont, TX, for Appellant.
Gregg Abbott, Attorney General of Texas, Elizabeth A. Salinas, Assistant Attorney General of Texas, Austin, TX, for Appellee.
Before McKEITHEN, C.J., GAULTNEY, and KREGER, JJ.
MEMORANDUM OPINION
William E. Cunningham filed an inmate civil action against Warden C. Mosley and David Doughty, employees of the Texas Department of Criminal Justice. In his petition, Cunningham alleged defendants intentionally, knowingly, and willingly sold him hazardous deodorant that caused a severe rash. He claims such conduct violated the Eighth Amendment's prohibition against cruel and unusual punishment. The trial court dismissed Cunningham's action for failure to comply with Chapter 14 of the Texas Civil Practices and Remedies Code. Cunningham appeals to this Court.
Cunningham uses the spelling "Moslay."
The State's motion to dismiss asserted Cunningham failed to comply with certain requirements of Chapter 14. See Tex. Civ. Prac. Rem. Code Ann. §§ 14.004, 14.005 (Vernon 2002). Section 14.005 requires that an inmate who files a claim that is subject to the grievance system (established under Section 501.008 of the Government Code) must file an affidavit or unsworn declaration stating the date the grievance was filed and the date a written decision was received; the inmate also must file a copy of the written decision. See Tex. Civ. Prac. Rem. Code Ann. § 14.005(a)(1), (2) (Vernon 2002); Tex. Gov't Code Ann. § 501.008(a) (Vernon 2004). Although Cunningham attached to his petition a copy of the grievance he filed, he did not include an affidavit or unsworn declaration stating the date he filed the grievance and the date he received the final written decision. Under section 14.005(b), "[a] court shall dismiss a claim [a suit] if the inmate fails to file the claim before the 31st day after the date the inmate receives the written decision from the grievance system." Tex. Civ. Prac. Rem. Code Ann. § 14.005(b) (Vernon 2004). The affidavit setting forth the date the inmate filed his grievance and the date he received a written decision serve to show the timeliness of his petition. Here, it is not apparent from the face of the grievance decision that Cunningham timely filed his petition. He also did not file the affidavit or unsworn declaration as required by statute. The trial court may dismiss as frivolous or malicious a suit that is subject to Chapter 14, and we review that dismissal under an abuse of discretion standard. See Tex. Civ. Prac. Rem. Code Ann. § 14.003(a)(2) (Vernon 2002); White v. State, 37 S.W.3d 562, 563 (Tex.App.-Beaumont 2001, no pet.). A trial court does not abuse its discretion by dismissing a suit when an inmate does not file the affidavit required by section 14.005(a)(1). See Draughon v. Cockrell, 112 S.W.3d 775, 776 (Tex.App.-Beaumont 2003, non pet.). The trial court did not abuse its discretion in dismissing Cunningham's suit, without prejudice, for failure to comply with Chapter 14. The dismissal is affirmed.