Samuel J. Burleson v. Tracy D. Pucket ( 2018 )

Opinion issued October 25, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00566-CV
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SAMUEL J. BURLESON, Appellant
V.
TRACY D. PUCKET, ET AL., Appellees
On Appeal from the 12th District Court
Walker County, Texas
Trial Court Case No. 1728210
MEMORANDUM OPINION
Samuel J. Burleson, an inmate in the Texas Department of Criminal Justice,
filed a pro se suit against TDCJ correctional officers and employees, alleging claims
of theft, fraud, malicious prosecution, conspiracy, and unlawful use of trade name,
along with a Due Process claim. The trial court dismissed the case with prejudice for
failure to comply with Chapter 14 of the Texas Civil Practice and Remedies Code.
Burleson appeals the dismissal. The Office of the Attorney General filed an amicus
curiae brief in support of the trial court’s judgment dismissing the case. We affirm.
Background
On April 4, 2017, Burleson filed a pro se suit against TDCJ Sergeants Tracy
Puckett and Jody Loitz, and TDCJ counsel Jimmie Bailey. Burleson alleges that in
a November 20, 2014, cell search, Puckett and Loitz wrongfully seized legal
paperwork, a newspaper, a radio, and a printout of his e-mail account’s address book.
He alleges Bailey then wrongfully served him with a disciplinary case for filing a
fraudulent financial statement, based on two forms that were seized. Burleson
alleges the appellees then wrongfully convicted him in the disciplinary case to
retaliate for “his ongoing legal pursuits.” He also alleges that his name is
copyrighted, and that accusatory instruments in the disciplinary case use his
purported trade name without his permission. Burleson seeks declaratory and
injunctive relief, compensatory and punitive damages, and costs. Burleson sues
appellees in their official and individual capacities. The trial court dismissed
Burleson’s suit as frivolous for failure to comply with Chapter 14 because he failed
to timely file suit pursuant to section 14.005(b). Burleson appeals the dismissal.
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Standard of Review
Chapter 14 of the Texas Civil Practice and Remedies Code governs civil suits,
other than suits brought under the Family Code, filed by inmates in which the inmate
claims indigence by filing an affidavit or unsworn declaration of the inability to pay
the court costs. See TEX. CIV. PRAC. & REM. CODE §§ 14.001-14.014. A trial court
may dismiss an inmate’s suit under Chapter 14 if it is frivolous, considering whether,
inter alia, it has no arguable basis in law or in fact. Id. at §§ 14.003(a)(2), (b)(2). A
claim has no arguable basis in law if it relies upon an “indisputably meritless legal
theory.” Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex. App.—Houston [1st Dist.]
2006, no pet.); Minix v. Gonzales, 162 S.W.3d 635, 637 (Tex. App.—Houston [14th
Dist.] 2005, no pet.).
We typically review a trial court’s dismissal of an inmate’s suit under Chapter
14 for an abuse of discretion. See Powell v. Clements, 220 S.W.3d 138, 139 (Tex.
App.—Waco 2007, pet. denied); Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex.
App.—Fort Worth 2004, pet. denied). But when, as here, an inmate’s suit is
dismissed as frivolous for having no basis in law or in fact, but no fact hearing is
held, our review focuses on whether the inmate’s lawsuit has an arguable basis in
law. See Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex. App.—Houston [1st Dist.]
2006, no pet.). Although a chapter 14 dismissal is reviewed under an abuse of
discretion, the issue as to whether a claim has an arguable basis in law is a legal
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question that we review de novo. Hamilton v. Pechacek, 319 S.W.3d 801, 809 (Tex.
App.—Fort Worth 2010, no pet.) We will affirm the dismissal if it was proper under
any legal theory. Johnson v. Lynaugh, 796 S.W.2d 705, 706–07 (Tex.1990).
In conducting our review, we take as true the factual allegations in an inmate’s
petition and review the types of relief and causes of action set out therein to
determine whether, as a matter of law, the petition stated a cause of action that would
authorize relief. See Scott, 209 S.W.3d at 266. When, as here, a trial court does not
issue findings of fact and conclusions of law, we imply all findings necessary to
support the judgment. Griffith v. Griffith, 341 S.W.3d 43, 49 (Tex. App.—San
Antonio 2011, no pet.) (citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d
789, 795 (Tex. 2002)).
Discussion
Under Chapter 14, an inmate is required to exhaust his remedies within the
prison’s grievance system before filing suit. TEX. CIV. PRAC. & REM. CODE § 14.005.
“An inmate . . . shall file with the court: (1) an affidavit or unsworn declaration
stating the date 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.” Id. § 14.005(a). As the
Texarkana Court of Appeals explained:
The purpose of Section 14.005 is to allow the trial court to ensure
that an inmate proceeding in forma pauperis has first used
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TDCJ’s grievance procedure, if it is applicable to his claim.
Though Section 14.005 does not explicitly so provide, its
obvious purpose is to allow the trial court to dismiss a suit when
it becomes clear that the inmate has failed to provide the
information the statute requires. Therefore, it is incumbent on the
inmate to provide the required information before it comes to the
trial court for review. This is especially true because Section
501.008 of the Government Code precludes an inmate from filing
a claim until he has exhausted his administrative remedies
through the grievance system.
Smith v. Tex. Dep’t of Crim. Justice—Int’l Div., 33 S.W.3d 338, 341 (Tex. App.—
Texarkana 2000, pet denied).1 If an inmate disagrees with the grievance system’s
written decision, he may file a lawsuit no later than 31 days after the date he receives
the grievance system’s final written decision. TEX. CIV. PRAC. & REM. CODE §
14.005(b). If an inmate fails to file his claim before the 31st day, the court must
dismiss the claim. Id.
Burleson’s suit was filed on April 4, 2017, more than two years after receiving
final written decisions from the prison grievance system. Burleson initiated
grievance No. 2015048271 on November 24, 2014, complaining of the cell search
and property seizure. The grievance system’s final written decision is dated January
29, 2015. Burleson initiated grievance No. 2015053855 on December 4, 2014,
complaining of the disciplinary hearing. The final written decision is dated January
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Burleson asserts that irregularities in the prison grievance system can excuse
the exhaustion requirement, but Burleson cites no particular irregularities with
respect to his grievances.
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20, 2015. Because Burleson’s suit was untimely filed more than 31 days after receipt
of the final written decisions, Burleson’s claims have no arguable basis in law and
the trial court properly dismissed the claims with prejudice. See id.; see also
Fernandez v. T.D.C.J., 341 S.W.3d 6, 13 (Tex. App.—Waco 2010, no pet.)
Burleson asserts that a subsequent grievance renders his suit timely.
Specifically, he asserts that his “[m]ost recent exhaustion is Grievance Number ~
2017129825 placing us well within the 30-day or two-year limits.” But subsequent
grievances, even if relevant and properly exhausted, do not revive a claim once the
initial deadline to file passes. See Allen v. Texas Dep’t of Crim. Justice, 80 S.W.3d
681, 683 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
In Allen, a final written decision on appellant’s grievance was issued and
appellant subsequently filed a new grievance over the same incident. Appellant then
filed suit almost 17 months after the initial written decision on his grievance. The
trial court dismissed the suit. On appeal, our court rejected appellant’s argument that
his subsequent grievance extended the deadline:
Filing this second grievance did not extend appellant’s deadline
to file his state court claim. [¶]. The statute simply states that the
trial court “shall dismiss a claim” if the inmate does not file it
before the 31st day after he receives the decision from the
grievance system. [TEX. CIV. PRAC. & REM. CODE] § 14.005(b).
Nothing in the statute indicates that appellant’s pursuit of a
federal remedy or his filing a second grievance would suffice to
extend the deadline to file a state claim.
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Allen, 80 S.W.3d at 683. We similarly conclude that subsequent grievances asserted
by Burleson fail to extend section 14.005(b)’s deadline and thus the trial court
properly dismissed the suit as untimely filed.
Finally, Burleson argues that dismissal with prejudice is inappropriate where
the inmate can remedy his failure to comply with the requirements of Chapter 14.
But his failure to file suit within the time required by section 14.005(b) is not a defect
that can be cured. There is nothing Burleson could have done on or after the trial
court’s dismissal that would have made his April 4, 2017 suit timely under section
14.005(b).
Conclusion
We affirm the order of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Lloyd.
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