Howard v. Williams v. U.T.M.B. ( 2006 )

                NO. 12-05-00075-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

HOWARD VANZANDT WILLIAMS,         §          APPEAL FROM THE 369TH

APPELLANT

V.       

U.T.M.B., TDCJ-ID, DR. MONTE SMITH,

DR. KENNETH LOVE, ROBERT HERRERA,

CHRISTY M. BERNAS, VIRGINIA SUE 

BUCKANAN, R.N., Elsie KITCHEN, R.N.,            §          JUDICIAL DISTRICT COURT OF

JOY MILLER, R.N., GORDON BARMSLEY,

R.N., KELLEY MAXWELL, LVN, LINDA

MC ELVEY, LVN, MARYLIN TILLMAN,

LVN, PAULA FOUNTAIN, LVN, DONNA

STEELY, CHERYL WILLIAMS, AND

OTHERS ACTING IN CONCERT WITH

THEM, NOT NAMED AT THIS TIME,

APPELLEES §          ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

            Appellant Howard VanZandt Williams, proceeding pro se, appeals the trial court’s order dismissing his suit pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code.  We modify and, as modified, affirm.

Background

            Williams is an inmate in  the Texas Department of Criminal Justice-Institutional Division (“TDCJ”).  While incarcerated, Williams filed an in forma pauperis civil suit against U.T.M.B., TDCJ, Dr. Monte Smith, Dr. Kenneth Love, Robert Herrera, Christy M. Bernas, Virginia Sue Buckanan, R.N., Elsie Kitchen, R.N., Joy Miller, R.N., Gordon Barmsley, R.N., Kelley Maxwell, LVN, Linda McElvey, LVN, Marylin Tillman, LVN, Paula Fountain, LVN, Donna Steely, Cheryl Williams, and others acting in concert with them, not named at this time (collectively “Appellees”).  In his lawsuit, Williams alleges that Appellees, among other acts or omissions, (1) failed to provide proper supervision and control of its correctional officers and contract employees; (2) caused and subjected him to be injected and fed Hepatitis C by injecting contaminated blood and other contaminants in his daily insulin injection in violation of the Eighth and Fourteenth Amendments to the United States Constitution; (3) transferred him to his present unit at TDCJ to continue to carry out such acts; (4) refused to treat or refer him for treatment; (5) harassed and threatened him with disciplinary action if he did not inject the contaminated insulin; and (6) joined in a “retaliatory conspiracy” to falsify, change, alter, destroy, and tamper with his medical records for filing grievances.  Williams sought actual and punitive damages from Appellees.  In conjunction with his original petition, Williams filed a motion challenging the constitutionality of section 14.004 of the Texas Civil Practices and Remedies Code. In the body of the motion, Williams listed twenty lawsuits either previously filed or then pending. On February 1, 2005, without conducting a hearing, the trial court found that Williams’s suit was frivolous or malicious and dismissed it with prejudice pursuant to Chapter 14 of the Texas Civil Practices and Remedies Code. This appeal followed.

Dismissal Pursuant to Chapter 14 of

Texas Civil Practices and Remedies Code

            In three issues, Williams argues that the trial court’s dismissal was improper.¹  We review the trial court’s dismissal of an in forma pauperis suit under an abuse of discretion standard.  Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.–Waco 1996, no writ). A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any guiding rules or principles. Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.–Houston [1st Dist.] 1998, no pet.).  We will affirm a dismissal if it was proper under any legal theory.  Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990); Birdo v. Ament, 814 S.W.2d 808, 810 (Tex. App.–Waco 1991, writ denied). The trial courts are given broad discretion to determine whether a case should be dismissed because (1) prisoners have a strong incentive to litigate; (2) the government bears the cost of an in forma pauperis suit; (3) sanctions are not effective; and (4) the dismissal of unmeritorious claims accrues to the benefit of state officials, courts, and meritorious claimants. See Montana v. Patterson, 894 S.W.2d 812, 814-15 (Tex. App.–Tyler 1994, no writ).

            Chapter 14 of the Texas Civil Practices and Remedies Code controls suits brought by an inmate in which the inmate has filed an affidavit or unsworn declaration of inability to pay costs.² Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (Vernon 2002); Hickson, 926 S.W.2d at 398. Section 14.003 provides that a trial court may dismiss a claim before or after service of process if the court finds that the claim is frivolous or malicious.  Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (Vernon 2002).  In determining whether a claim is frivolous or malicious, a trial court may consider whether the claim is substantially similar to a previous claim filed by the inmate because the claim arises out of the “same operative facts.” Id. § 14.003(b)(4). To enable a trial court to determine whether the suit is substantially similar to a previous one, an inmate is required to file a separate affidavit or declaration describing all other suits the inmate has brought and stating the “operative facts” upon which relief was sought.  Id. § 14.004(a)(2)(A).  The declaration must be (1) in writing and (2) subscribed by the person making the declaration as true under penalty of perjury.  Tex. Civ. Prac. & Rem. Code Ann. § 132.002 (Vernon 2005).

            In the case at hand, Williams’s unsworn declaration does not comply with Texas Civil Practices and Remedies Code, section 132.002.  The document Williams filed was within a motion challenging the constitutionality of section 14.004 and appears under the heading “Affidavit or Declaration of Previously Filed Lawsuits.”  The document contains no statement that the facts stated therein are declared to be true under penalty of perjury.  See id. § 132.002(2).  Moreover, the document does not meet the criteria for an affidavit.  See, e.g., Tex. Gov’t Code Ann. § 312.011(1) (Vernon 2005) (“‘Affidavit’ means a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.”); Black’s Law Dictionary 58 (7th ed. 1999).  As such, Williams’s chronicle of previously filed and/or pending lawsuits does not satisfy the requisites of section 14.004 as it is not presented by way of a separate affidavit or declaration.  See Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a); Jackson v. Tex. Dep’t of Criminal Justice-Inst’l Div., 28 S.W.3d 811, 814 (Tex. App.–Corpus Christi 2000, pet. denied).

            When an inmate files an affidavit or declaration that fails to comply with the requirements of section 14.004, “the trial court is entitled to assume the suit is substantially similar to one previously filed by the inmate, and therefore, frivolous.”  Bell v. Tex. Dep’t of Criminal Justice-Inst’l Div., 962 S.W.2d 156, 158 (Tex. App.–Houston [14th Dist.] 1998, pet. denied).  The burden to provide such information rests on the pro se litigant.  See, e.g., Clark v. J.W. Estelle Unit, 23 S.W.3d 420, 422 (Tex. App.–Houston [1st Dist.] 2000, pet. denied) (refusing to hold that a trial court must sift through numerous documents in order to find the information required by section 14.004).  Accordingly, Williams’s first, second, and third issues are overruled.

Conclusion

            We hold that the trial court did not abuse its discretion when it dismissed Williams’s suit. See id. However, the trial court’s dismissal of Williams’s suit with prejudice was improper because his error could have been remedied through amendment or more specific pleading.  See Thomas v. Skinner, 54 S.W.3d 845, 846-47 (Tex. App.–Corpus Christi 2001, pet. denied).  Thus, we modify the trial court’s order of dismissal by deleting the words “with prejudice” and substituting in their place the words “without prejudice.”  Having overruled Williams’s first, second, and third issues, we affirm the trial court’s dismissal order as modified.

                                                                                                     JAMES T. WORTHEN   

                                                                                                                 Chief Justice

Opinion delivered April 28, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)

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¹ We have construed Williams’s issues liberally in the interest of justice.

² Chapter 14 does not apply to suits brought under the Family Code.  Tex. Civ. Prac. & Rem. Code Ann.  §  14.002(b) (Vernon 2002).