Leonardo Ruiz, Sr. v. Texas Department of Criminal Justice ( 2005 )

Opinion issued April 7, 2005

In The

Court of Appeals

For The

First District of Texas

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NO. 01-04-00232-CV

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LEONARDO RUIZ SR., Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE–INSTITUTIONAL DIVISION, Appellee

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On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 26863

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MEMORANDUM OPINION

          Appellant, Leonardo Ruiz Sr., appeals the dismissal of his suit brought against appellees, Texas Department of Criminal Justice–Institutional Division (TDCJ). In his sole issue, appellant contends that the trial court erred by dismissing his suit with prejudice for failure to state a cause of action. We affirm.

Background

          Appellant is currently incarcerated in the Clemens Unit of TDCJ. This suit arises out of an incident that occurred in March 2003, when a prison guard ordered appellant to lift a toolbox. As a result of lifting the box, appellant contended that he received an abdominal hernia. On July 30, 2003, appellant filed a step-one grievance alleging that the medical clinic was “acting with deliberate indifference toward my new injury because they are unwilling to change my [work] restriction to a lower amount.” His request was denied in a written decision on August 25, 2003. On September 2, 2003, appellant filed a step-two grievance, appealing the denial of the step-one grievance. His step-two grievance was denied on October 2, 2003.

          On December 3, 2003, appellant filed his original petition in the district court. His original petition did not state the grounds on which he claimed TDCJ was liable. Appellant attached a declaration of inability to pay costs and a notarized statement of his prison account. He also attached a declaration of exhaustion of administrative remedies, providing the dates he filed his grievances and the dates of the written decisions. Appellant attached copies of his step-one and step-two grievance forms, but did not attach copies of the written decisions to his original petition. He also attached a declaration stating that he had not filed any pro se lawsuits prior to this suit. On February 18, 2004, the trial court dismissed with prejudice appellant’s suit for failure to state a cause of action as a matter of law. This appeal followed.

Discussion

          When an inmate files a civil suit in forma pauperis he must first comply with the requirements set forth in Chapter 14 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (Vernon 2002).

          The inmate must file an affidavit or declaration identifying and describing previous suits brought by the inmate pro se. Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a)–(b) (Vernon 2002). The inmate must also prove he exhausted all administrative remedies within the penal grievance system before filing a lawsuit. Wallace v. Texas Dep’t of Criminal Justice–Institutional Div., 36 S.W.3d 607, 610 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). Section 14.005(a) requires:

(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.

Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a)(1)–(2) (Vernon 2002). Section 14.005 requires the court to 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. Id. § 14.005(b).

          With his original petition, appellant filed a declaration of his previous filings in compliance with section 14.004. Appellant also filed a declaration stating the dates he filed his step-one and step-two grievances and the dates he received the written decisions. The record shows, however, that appellant did not include a copy of the written decisions in his original petition to the trial court. Thus, appellant did not satisfy the requirements set forth in section 14.005(a)(2). See Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a)(2) (Vernon 2002).

          Furthermore, the record shows that a written decision on appellant’s step-two grievance was made on October 2, 2003. Appellant filed his original petition on December 3, 2003, two months after the date of the written decision. Therefore, appellant’s suit was untimely filed. See Tex. Civ. Prac. & Rem. Code Ann. § 14.005(b); Allen v. Texas Dep’t of Criminal Justice–Institutional Div., 80 S.W.3d 681, 683 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); Wallace, 36 S.W.3d at 611. Because appellant failed to meet the requirements of section 14.005(a)(2) and (b), his suit was barred and the trial court was required to dismiss it. See Moreland v. Johnson, 95 S.W.3d 392, 395 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

          Accordingly, we do not reach appellant’s sole issue because he failed to meet the chapter 14 requirements to initiate his suit.

Conclusion

          We affirm the judgment of the trial court.

                                                             Evelyn V. Keyes

                                                             Justice

Panel consists of Justices Taft, Keyes, and Hanks.