Rickie Lynn Graves v. Jackie Edwards and Frank Hoke ( 2006 )

Affirmed and Memorandum Opinion filed June 1, 2006

Affirmed and Memorandum Opinion filed June 1, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-01005-CV

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RICKIE LYNN GRAVES, Appellant

V.

JACKIE EDWARDS AND FRANK HOKE, Appellees

On Appeal from the 12^th District

Walker County, Texas

Trial Court Cause No. 22714

M E M O R A N D U M   O P I N I O N

Appellant Rickie Lynn Graves challenges the trial court=s order dismissing his suit pursuant to Chapter 14 of the Civil Practice and Remedies Code.  We affirm.

I.  Factual and Procedural Background

Appellant Rickie Lynn Graves is an inmate in the Texas Department of Criminal Justice (ATDCJ@) Ellis Unit, located in Huntsville, Texas.  On May 29, 2004, TDCJ officials suspended Graves=s access to the law library through July 17, 2004 as a result of Graves=s improper storage of library materials.  After filing a grievance with TDCJ, Graves filed a pro se petition in a Walker County District Court in an effort to compel appelleesCboth TDCJ officialsCto reinstate his access to the law library.  He also filed an application to proceed in forma pauperis, and an affidavit listing his previous lawsuits.

On August 19, 2004, the State of Texas Attorney General=s office filed a motion to dismiss on appellees= behalf, arguing that Graves=s affidavit failed to provide information required by section 14.004(a)(2) of the Civil Practice and Remedies Code.

On October 1, 2004, the trial court considered the arguments on submission and granted the motion to dismiss.  This appeal ensued.

II.  Issues Presented

Graves presents three issues for our review.  In his first and second issues, he alleges the trial court improperly dismissed his cause of action.  In his third issue, he argues the trial court Afailed to grant his motion to proceed in forma pauperis on appeal.@

III.  Standard of Review

A trial court=s dismissal of an inmate lawsuit brought pursuant to Chapter 14 is reviewed for an abuse of discretion.  Hickman v. Adams, 35 S.W.3d 120, 123 (Tex. App.CHouston [14th Dist.] 2000, no pet.).  The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or, alternatively, whether the trial court's actions were arbitrary or unreasonable based on the circumstances of the individual case.  Retzlaff v. Tex. Dep=t of Criminal Justice, 94 S.W.3d 650, 654 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).  The fact that, under similar circumstances, an appellate court might decide a matter differently than did the trial court does not demonstrate that an abuse of discretion has occurred.  Id.  The burden of proof rests on the appellant asserting abuse of discretion to overcome the presumption that the action of the trial court was justified.  Id.

IV. Discussion

A.      Motion to Dismiss

In his first issue, Graves asserts the trial court erred when it dismissed his claim Awithout determining if [he] had stated an arguable claim in fact with an arguable basis in law sufficient to maintain his suit.@  In his second issue, Graves argues the trial court erred in dismissing his claim pursuant to Chapter 14 because TDCJ failed to provide him with a copy of the statute. Appellees respond that the trial court has broad discretion to dismiss inmate suits filed in forma pauperis if the provisions of Chapter 14 are not followed precisely. 

Section 14.004 of the Civil Practice and Remedies Code requires an inmate seeking to proceed in forma pauperis to file a separate affidavit or declaration describing each suit the inmate has previously filed pro se, other than a suit under the Family Code.  The description must (a) state the operative facts for which relief was sought; (b) list the case name, cause number, and the court in which the suit was brought; (c) identify each party named in the suit; and (d) state the result of the suit, including whether the suit was dismissed as frivolous or malicious.  Tex. Civ. Prac. & Rem. Code ' 14.004(a)(2) (West 2005).  These requirements were enacted to allow the trial court to determine whether an inmate=s present claim is similar to a previously-filed claim.  Bell v. Tex. Dep=t of Criminal Justice, 962 S.W.2d 156, 157 (Tex. App.CHouston [14th Dist.] 1998, pet. denied).

 Although Graves=s affidavit listed five previous cases, the affidavit did not describe their operative facts.  Rather, Graves merely identified the basis of the claim, such as Asuit for negligence@ or Asuit for personal injury.@  Because Graves failed to comply with the requirements of section 14.004, the trial court was within its discretion to dismiss the case.

We conclude  the trial court=s order dismissing Graves=s action was neither arbitrary nor unreasonable and we overrule Graves=s first and second issues.

B.      Request to Proceed In Forma Pauperis on Appeal

In his third issue, Graves argues that the trial court abused its discretion in failing to grant his motion to proceed in forma pauperis on appeal.^[1]   The procedure for establishing indigency on appeal is outlined in Rule 20 of the Texas Rules of Appellate Procedure.  Rule 20.1(b) requires an appellant to file an Aaffidavit of indigence@ containing complete information about eleven separate aspects of his financial status.  Graves=s AApplication to Proceed In Forma Pauperis@ contains only a single paragraph alleging his indigence and references an attached printout of the balance of his trust account from a TDCJ computer screen. This affidavit is insufficient.  See Johnson v. Harris County, No. 14-03-00992-CV, 2004 WL 306088, at *2 (Tex. App.---Houston [14th Dist.] 2004, no pet.) (per curiam) (not designated for publication) (finding affidavit insufficient when a non-sworn document merely listed the eleven items from Rule 20.1(b) and answered them in the negative). Accordingly, we overrule Graves=s third issue.

V.  Conclusion

We hold the trial court did not abuse its discretion in dismissing Graves=s suit and affirm the trial court=s judgment.

/s/      Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed June 1, 2006.

Panel consists of Justices Fowler, Edelman, and Guzman.

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^[1]    Appellees did not respond to this issue.