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holding that trial court did not abuse its discretion by not convening a hearing because inmate did not fulfill statutory requirements under section 14.005
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No. 13-05-054-CV
Memorandum Opinion Delivered and Filed February 9, 2006.
On Appeal from the 151st District Court of Harris County, Texas.
Before Justices HINOJOSA, YAÑEZ and CASTILLO.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.2, 47.4.
Appellant, Frank Leroy Riddle, an indigent inmate in the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID), appeals the dismissal of his pro se claim under chapter fourteen of the civil practice and remedies code. We modify the judgment and affirm.
"Claim" means a cause of action governed by chapter 14 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. REM. CODE ANN. 14.001, 14.003 (Vernon 2002).
I. Issues Presented
Riddle asserts in two issues that the trial court erred in (1) dismissing his prisoner's in forma pauperis suit under sections 14.004 and 14.005(b) of the Texas Civil Practice and Remedies Code, and (2) not granting his motion for a new trial. The State responds that Riddle did not comply with the requirements of sections 14.004 and 14.005 of the civil practice remedies code and the dismissal was proper.
Section 14.004 provides:
(a) An inmate who files an affidavit or unsworn declaration of inability to pay costs shall file a separate affidavit or declaration:
(1) identifying each suit, other than a suit 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 suit was brought; and
(2) describing each suit that was previously brought by:
(A) stating the operative facts for which relief was sought;
(B) listing the case name, cause number, and the court in which the suit was brought;
(C) identifying each party named in the suit; and
(D) stating the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise.
(b) If the affidavit or unsworn declaration filed under this section states that a previous suit was dismissed as frivolous or malicious, the affidavit or unsworn declaration must state the date of the final order affirming the dismissal.
(c) The affidavit or unsworn declaration must be accompanied by the certified copy of the trust account statement required by Section 14.006(f).
TEX. CIV. PRAC. REM. CODE ANN. 14.004 (Vernon 2002).
Section 14.005 provides:
(a) An inmate who files a claim that is subject to the grievance system established under Section 501.008, Government Code, shall file with the court:
(1) an affidavit or unsworn declaration stating the date that the grievance was filed and the date the written decision described by Section 501.008(d), Government Code, was received by the inmate; and (2) a copy of the written decision from the grievance system.
(b) A court shall dismiss a claim 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.
(c) If a claim is filed before the grievance system procedure is complete, the court shall stay the proceeding with respect to the claim for a period not to exceed 180 days to permit completion of the grievance system procedure.
TEX. CIV. PRAC. REM. CODE ANN. 14.005 (Vernon 2002).
Specifically, the State asserts that Riddle failed to file (1) the affidavit relating to previous filings, (2) a copy of the written decision from the grievance system, and (3) an affidavit stating the filing dates of the administrative grievance and the dates of receipt of the written decision.
II. Background
In his original petition, Riddle sued appellees, the TDCJ-ID and various departmental employees, seeking district court de novo review of a grievance decision and damages for an injury he allegedly received while working in the Eastham facility. The State filed a motion to dismiss, asserting that Riddle had failed to file the claim, along with all required supporting documents, within the thirty-one day statute of limitations, and that Riddle had failed to exhaust all remedies as required by section 14.005 of the civil practice and remedies code. TEX. CIV. PRAC. REM. CODE ANN. 14.005 (Vernon 2002). The trial court granted the motion to dismiss. Riddle subsequently filed a motion for judgment by default and a motion for a new trial. This appeal ensued.
The TDCJ-ID dismissed Riddle's grievance regarding an allegation of unsafe working conditions (makeshift cloth handles on buckets used to carry hot water) in the steward department of the Eastham facility which allegedly resulted in a burn to his leg.
III. Chapter 14 Standard and Scope of Review
We review a dismissal of an inmate's in forma pauperis suit under chapter 14 of the civil practice and remedies code for abuse of discretion. Harrison v. Tex. Dep't of Criminal Justice-Inst'l Div., 164 S.W.3d 871, 874 (Tex.App.-Corpus Christi 2005, no pet.) (citing Jackson v. Tex. Dep't of Criminal Justice-Inst'l Div., 28 S.W.3d 811, 813 (Tex.App.-Corpus Christi 2000, pet. denied)). To establish an abuse of discretion, an appellant must show the trial court's actions were arbitrary or unreasonable in light of all the circumstances. Jackson, 28 S.W.3d at 813. When we review whether a trial court abused its discretion in dismissing such a suit, we also consider whether the suit was dismissed with prejudice and, if so, we determine whether the inmate was provided the opportunity to amend his pleadings. See Hughes v. Massey, 65 S.W.3d 743, 746 (Tex.App.-Beaumont 2001, no pet.) (improper to dismiss with prejudice for rule violation in filing in forma pauperis suit).
Discussion
In his first issue, Riddle contends that (1) he has exhausted the grievance procedure, (2) he has done everything in his power to complain and is without further recourse, and (3) the trial court erred in not conducting a hearing. The State maintains that the trial court did not err in dismissing the claim because Riddle has not complied with chapter fourteen statutory requirements.
Section 501.008 of the Texas Government Code establishes a statutory requirement that inmate grievance procedures be exhausted against all named parties before a subsequent suit is initiated in court. TEX. GOV'T CODE ANN. 501.008 (Vernon 2004). Section 14.005 of the civil practice and remedies code allows the trial court to ensure that an inmate proceeding in forma pauperis has first exhausted the grievance procedure, if applicable. See Smith v. Tex. Dep't of Criminal Justice-Inst'l Div., 33 S.W.3d 338, 341 (Tex.App.-Texarkana 2000, pet. denied). Though section 14.005 does not explicitly so provide, its obvious purpose is to permit dismissal of a suit when it is clear that the inmate has failed to provide all statutorily required information. Id. Therefore, it is incumbent on the inmate to provide the required information before it comes to the trial court for review. Id. The court shall dismiss a claim if the inmate fails to exhaust the grievance procedures and fulfill all procedural requirements prior to filing the claim. Tex. Civ. Prac. Rem. Code Ann. 14.005 (Vernon 2002).
The record reveals that Riddle's claim as filed includes an extensive list of defendants who are not named in his grievance. Riddle did not exhaust the grievance procedures for those individuals named in the claim who were not named in his grievance. Thus, Riddle did not fulfill all statutory procedural requirements. TEX. GOV'T CODE ANN. 501.008; TEX. CIV. PRAC. REM. CODE ANN. 14.005(a). Accordingly, the trial court did not abuse its discretion in dismissing the lawsuit. Jackson, 28 S.W.3d at 813.
Loose documents found in the clerk's record show that Riddle had submitted the necessary affidavits and copies of the stage one and two grievances as well as the written decision from the grievance system at the time he filed the claim, but the named defendants in the claim were not all included in the grievances.
Riddle also contends that the trial court erred in not conducting a hearing on his claim. Section 14.008 of the civil practice and remedies code provides that the court may hold a hearing. Tex. Civ. Prac. Rem. Code Ann. 14.008 (Vernon 2002). A hearing is not necessary when the dismissal is made as a matter of law rather than fact. See Smith, 33 S.W.3d at 340. Here, the dismissal was proper on matter-of-law grounds because Riddle did not comply with statutory requisites. A hearing would not change the fact that Riddle filed the petition before he exhausted the administrative remedies against all named defendants. Further, the trial court allowed Riddle the opportunity to, and he did amend his pleadings. Accordingly, because Riddle did not fulfill the statutory procedural requirements, his claim had no arguable basis in law. See Retzlaff v. Texas Dep't Of Criminal Justice-Inst'l Div., 94 S.W.3d 650, 653 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). The trial court did not abuse its discretion in not convening a hearing. Smith, 33 S.W.3d at 340. We overrule Riddle's first issue.
The next question is whether the trial court erred by dismissing Riddle's lawsuit with prejudice. It is improper to dismiss a suit with prejudice unless it is properly a ruling on the merits or the dismissal is a proper sanction for some procedural violation. See Hughes, 65 S.W.3d at 746; Lentworth v. Trahan, 981 S.W.2d 720, 722-23 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (setting out procedural sanctions supporting dismissal with prejudice, none of which are applicable here). Our proper course is to modify the judgment by deleting the words "with prejudice" and by substituting the words "without prejudice." TEX. R. APP. P. 43; Hickman v. Adams, 35 S.W.3d 120, 124-25 (Tex.App.-Houston [14th Dist.] 2000, no pet.). We therefore reform the judgment to provide for dismissal without prejudice.
IV. Motion for New Trial
Riddle maintains in his second issue that the trial court erred in not granting a new trial. He asserts the motion had merit, in light of the facts and circumstances of the case. A motion for new trial must be filed within thirty days after the judgment or order complained of is signed. Tex. R. Civ. P. 329b. We review the entire record for abuse of discretion, when the trial court denies a motion for a new trial. See Dir. State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994).
The record reveals that Riddle's motion for a new trial was timely filed; however, the trial court did not rule on the motion. Accordingly, the motion was overruled by operation of law. TEX. R. CIV. P. 329b(c). We conclude that a new trial would not have changed the fact that Riddle filed a claim before he exhausted the administrative remedies against all defendants. On this record, we find no abuse of discretion. Evans, 889 S.W.2d at 268. We overrule the second issue presented.
V. Conclusion
We reform the judgment to reflect the dismissal was "without" prejudice. We otherwise overrule Riddle's issues on appeal and affirm the judgment of the trial court.