William E. Cunningham v. Warden C. Mosley and David Doughty ( 2005 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-04-154 CV ____________________

WILLIAM E. CUNNINGHAM, Appellant

V.

WARDEN C. MOSLEY AND DAVID DOUGHTY, Appellees

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On Appeal from the 136th District Court Jefferson County, Texas Trial Court Cause No. D-170747

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MEMORANDUM OPINION  

William E. Cunningham filed an inmate civil action against Warden C. Mosley ⁽¹⁾ 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.

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 31^st 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, no 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. AFFIRMED.

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DAVID GAULTNEY

Justice

Submitted on January 25, 2005

Opinion Delivered February 3, 2005

Before McKeithen, C.J., Gaultney, and Kreger, JJ.

1.

Cunningham uses the spelling "Moslay."