Damon Downs v. Debra Guthrie ( 1998 )

Damon Downs v. Debra Guthrie, et al

  IN THE

TENTH COURT OF APPEALS

No. 10-97-294-CV

     DAMON DOWNS,

                                                                              Appellant

     v.

     DEBRA GUTHRIE, ET AL.,

                                                                              Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 30,919

O P I N I O N

      Appellant Downs, an inmate, appeals from an order of the trial court dismissing his pro se in forma pauperis lawsuit.

      This case was brought pro se and in forma pauperis by Appellant, an inmate at the Hughes Unit in Gatesville, seeking expungement of a disciplinary action taken against him in 1996. His suit, filed on July 12, 1997, included a declaration regarding his trust account as required by chapter 14, Texas Civil Practice & Remedies Code. Also he included a declaration as follows:

"My litigation history consists of the following: (1) No. 28,098, Downs v. Campbell, (2) No. 29,142, Downs v. Parkes, (3) Downs v. Kerr, (4) Downs v. Dowdy."

      Appellees filed a motion to dismiss Appellant's suit asserting Appellant filed an unsworn declaration he knew to be false in that he failed to list his federal litigations including (1) No. W-94-CA259, Downs v. Scott, and (2) No. CA-114, Downs v. Texas Department of Criminal Justice; and that Appellant failed to mention that in the last-named case he had been sanctioned $500 and enjoined from communicating with the Federal Court in Waco.

      Thereafter, on September 12, 1997, Appellant filed a Supplemental Declaration in which he listed 13 cases he had previously filed pro se in forma pauperis.

      On October 3, Appellee Moya filed a supplemental motion to dismiss Appellant's action in which Moya lists 3 additional lawsuits filed by Appellant pro se in forma pauperis which he failed to inform the court about in his supplemental declaration.

      The trial court, on October 8, entered an order granting Moya's motion to dismiss Appellant's suit.

      Appellant appeals contending the trial court erred in ruling that the statute which requires an affidavit of previous filings requires an inmate to list causes of action filed before the statute's effective date.

      Section 14.001, et seq., became effective June 8, 1995. Appellant argues that it only requires him to list suits filed since June 8, 1995. He further argues that the statute does not require him to list habeas corpus cases. He asserts that he no longer has paperwork from his older cases and that it is not possible to give information on them from memory. He asserts he has provided as much information as he could remember; that many older inmates have litigation dating back to the 1960's and 1970's and it would be impossible to recall cases that far back. Additionally, he says that he has been diagnosed with a bipolar disorder and takes medication which makes him sleep 12 to 15 hours a day, and that the only coping mechanism that allows him to exist normally is to block from his mind things which anger and frustrate him—and that is why he overlooked some of the cases he had filed.

      Appellant filed a pauper’s affidavit pursuant to Rule 145, Texas Rules of Civil Procedure. Chapter 14, sec. 14.003, Texas Civil Practice & Remedies Code, applies to suits brought by an inmate who has filed an affidavit of inability to pay costs. Section 14.003(a) allows a court to dismiss a suit before or after process is served if the court finds (1) the allegation of poverty is false, (2) the claim is frivolous or malicious, or (3) the inmate filed an affidavit or unsworn declaration required by chapter 14 that the inmate knew was false. In determining whether a claim is frivolous or malicious, the court may consider whether (1) the claim’s realistic chance for success is slight, (2) the claim has no arguable basis in law or fact, (3) it is clear 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.

      Section 14.004 requires the inmate to file a separate affidavit or declaration identifying each prior suit brought by the inmate, specifying the operative facts, the case name, the case number, the court in which it was brought, the names of the parties, and the result of the suit. Id. § 14.004(c).

      Our review of a dismissal under chapter 14 is controlled by the abuse of discretion standard. Abuse of discretion is determined by whether the court acted without reference to any guiding principles. Craddock v.. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939).

      Appellant’s petition was not accompanied by the affidavit or unsworn declaration required by section 14.002. Appellant’s declaration was incomplete and failed to disclose information required by the statute in the prior cases that he did list.

      Chapter 14 was designed to control the flood of frivolous lawsuits being filed by prison inmates consuming valuable judicial resources with little offsetting benefit. Hickson v. Moya, et al., 926 S.W.2d 379 (Tex. App.—Waco 1996, no writ).

      The supplemental filing required by section 14.004 is designed to assist the court in making determinations the Legislature called upon it to make; thus, it is an essential part of the process by which the court reviews inmate cases.

      Because the court can dismiss where an inmate filed a false affidavit or declaration, the same policy allows the court to dismiss a suit filed without an affidavit or declaration, or an incomplete affidavit or declaration.

      We further hold that the affidavit or declaration must include all cases filed pro se in forma pauperis by the inmate before, on or after June 8, 1995, the effective date of § 14.004, et seq; and that such statute does require the listing of habeas corpus cases.

      The trial court did not abuse its discretion in dismissing Appellant’s suit. We overrule all of Appellant’s contentions.

      The order of the trial court is affirmed.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Chief Justice Davis

      Justice Vance and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed January 21, 1998

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