Curtis Hackney v. Owen J. Murray ( 2002 )

NO. 12-02-00089-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CURTIS HACKNEY,

§ APPEAL FROM THE 369TH

APPELLANT

V.

DR. THOMAS FORD, DR. JOE CRAWFORD, § JUDICIAL DISTRICT COURT OF

DR. ANICETO DOMINGUEZ, PRISCILLA

BUCANNON, AND KEITH PRICE,

INDIVIDUALLY AND IN THEIR

OFFICIAL CAPACITIES,

APPELLEES

§ ANDERSON COUNTY, TEXAS

Curtis Hackney, an inmate incarcerated in the Texas Department of Criminal Justice- Institutional Division (TDCJ), appeals from the dismissal of his suit for improper medical treatment by Appellees Dr. Thomas Ford, Dr. Joe Crawford, Dr. Aniceto Dominguez, Priscilla Bucannon, and Keith Price, individually and in their official capacities. In his sole issue, Appellant contends the trial court abused its discretion in dismissing his suit. We modify the trial court's judgment, and affirm as modified.

While incarcerated, Appellant hurt each knee, although at different times. He had orthoscopic surgery on each knee at different times and did not receive the medical care or post-operative care he felt he needed. He filed suit against Appellees alleging deliberate indifference to his serious medical needs in violation of 42 U.S.C. § 1983 and the Eighth Amendment to the United States Constitution. In his petition, he asked for damages and injunctive relief.

Appellant filed his original petition on October 11, 1996. The parties participated in several years of discovery before Appellees filed their motion to dismiss on December 6, 2001. Their motion was based solely on the allegation that Appellant did not file documents required by Chapter Fourteen of the Texas Civil Practice and Remedies Code. Asserting that Appellant's claims are frivolous, they requested the court to dismiss Appellant's suit with prejudice pursuant to Chapter Fourteen. On December 13, 2001, Appellant filed his unsworn declaration stating he exhausted all available state administrative remedies. He included copies of two grievance forms he had filed. Both grievances had been denied. Appellant also filed an unsworn declaration stating that he had not previously filed any lawsuits pro se. In his response to the motion to dismiss, filed December 26, 2001, Appellant stated that he had requested a certified copy of his trust account at the time he filed his original petition. He presumed it had been sent because the trial court granted his request to proceed in forma pauperis. The record does not contain a certified copy of Appellant's trust account. On February 21, 2002, the trial court granted Appellees' motion and dismissed Appellant's lawsuit.

Chapter Fourteen of the Civil Practice and Remedies Code applies to inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-14.014 (Vernon 2002). A court may dismiss a suit brought pursuant to that chapter before or after process is served if the court finds that the claim is frivolous or malicious. Id. at § 14.003(a)(2). In making its determination under section 14.003, the court may also take into consideration the requirements imposed by section 14.004, which provides:

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

• describing each suit that was previously brought by:
• stating the operative facts for which relief was sought;

• listing the case name, cause number, and the court in which the suit was brought;

• identifying each party named in the suit; and

• 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.

Id. at 14.004(a). Further, the affidavit or unsworn declaration of inability to pay must be accompanied by the certified copy of the trust account statement required by section 14.006(f). Id. at § 14.004(c).

Review of a dismissal under Chapter Fourteen is controlled by the abuse of discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.-Waco 1996, no writ). The trial court abuses its discretion if it acts arbitrarily and without reference to any guiding principles. Harrison v. Texas Dep't of Crim. Justice, 915 S.W.2d 882, 887 (Tex. App.-Houston [1st Dist.] 1995, no writ). We will affirm the dismissal if it was proper under any legal theory. Birdo v. DeBose, 819 S.W.2d 212, 215 (Tex. App.-Waco 1991, no writ).

Appellant argues that Chapter Fourteen does not apply to him because he paid $160.00 of his court costs. However, he originally filed a declaration of inability to pay and did not pay $744.00 in costs assessed against him in this case. We conclude that Chapter Fourteen does apply to Appellant. See Tex. Civ. Prac. & Rem. Code Ann. § 14.002.

Early in his lawsuit, Appellant filed a document entitled "Declaration in Support of Request for Leave to Proceed In Forma Pauperis" and cited federal law. He stated that the balance of his inmate trust fund account was $0.00. He did not, however, attach a certified copy of his trust account statement as required by section 14.004(c). Therefore, the trial court did not abuse its discretion in dismissing Appellant's lawsuit. Williams v. Brown, 33 S.W.3d 410, 412 (Tex. App.-Houston [1st Dist.] 2000, no pet.). We overrule Appellant's sole issue.

The dismissal order does not state whether the dismissal is with or without prejudice. Dismissal with prejudice constitutes adjudication on the merits and operates as if the case had been fully tried and decided. Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.-Houston [1st Dist.] 1998, no pet.). Dismissal with prejudice is improper if the plaintiff's failure to comply with the conditions in Chapter Fourteen can be remedied. See Thomas v. Skinner, 54 S.W.3d 845, 847 (Tex. App.-Corpus Christi 2001, pet. denied). Here, as Appellant's failure to attach a certified copy of his trust account statement can be remedied, the proper order is dismissal without prejudice. See Williams, 33 S.W.3d at 412. Accordingly, we modify the judgment to reflect the cause is dismissed "without prejudice." As modified, the judgment is affirmed.

SAM GRIFFITH

Justice

Opinion delivered December 4, 2002.

Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.  

(DO NOT PUBLISH)