Michael Phillips v. TDCJ-ID, Richard Thaler, M.E. Sams, J. Peavey, J. Calhoun, A. Castillo, and Texas Correctional Industrial ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00138-CV
MICHAEL PHILLIPS,
Appellant
v.
TDCJ-ID, RICHARD THALER, M.E. SAMS,
J. PEAVEY, J. CALHOUN, A. CASTILLO,
AND TEXAS CORRECTIONAL INDUSTRIAL,
Appellees
From the 12th District Court
Walker County, Texas
Trial Court No. 24,624
MEMORANDUM OPINION
Michael Phillips, a prison inmate, appeals the trial court’s dismissal of his civil
lawsuit for failure to comply with certain requirements for indigent inmate litigation.
See TEX. CIV. PRAC & REM. CODE ANN. Ch. 14 (West 2002 & Supp. 2011). Because the trial
court did not abuse its discretion in dismissing the suit, we affirm the trial court’s
judgment.
Phillips’ suit against the Texas Department of Criminal Justice-Institutional
Division and various other prison employees/officials was originally filed on April 9,
2009. In January of 2011, the Attorney General, representing defendants Joe Calhoun,
Al Castillo, Johnny Peavey, Martin Sams, and Richard Thaler,1 filed an amended motion
to dismiss contending, among other things, that Phillips failed to file his suit prior to the
31st day after he received his written decision from the grievance system. See id. §
14.005(b) (West 2002). The trial court dismissed Phillips’ suit for failure to comply with
the requirements of Chapter 14. On appeal, in two issues, Phillips contends that the
trial court erred in dismissing his suit.
Section 14.005(b) of the Civil Practice and Remedies Code requires a trial court to
dismiss an inmate lawsuit which is subject to the prison grievance system "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. We review a dismissal pursuant to Chapter 14
of the Civil Practice and Remedies Code under an abuse-of-discretion standard. Allen v.
Tex. Dep't Crim. Just., 80 S.W.3d 681, 682 (Tex. App.—Houston [1st Dist.] 2002, pet.
denied); Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ).
Attached to Phillips’ petition were copies of a Step One grievance form and a
Step Two grievance form. Although the Step Two form was signed by Phillips on
August 21, 2008, the response by the TDCJ official was dated November 7, 2008, and the
front of the form was stamped November 14, 2008, Phillips stated in an affidavit behind
the forms that he did not receive the Step Two grievance decision until February 28,
2009. Even assuming Phillips did not receive the decision until February 28, 2009,
1 The trial court’s order of dismissal pertains to these five defendants only. It was argued at the hearing
on the defendants’ motion to dismiss that only these defendants had been served. It is, however, clear
that the judgment is final for purposes of appeal and our jurisdiction.
Phillips v. State Page 2
Phillips filed his petition more than 31 days later. This is too late. See Williams v. Harris,
No. 10-11-00123-CV, 2011 Tex. App. LEXIS 8305 (Tex. App.—Waco Oct. 19, 2011, no pet.
h.) (mem. op.); Hutchinson v. TDCJ-ID, 2011 Tex. App. LEXIS 5433 (Tex. App.—Waco
July 13, 2011, no pet.) (mem. op.); Wolf v. Tex. Dep't of Crim. Justice, 182 S.W.3d 449 (Tex.
App.—Texarkana 2006, pet. denied). Accordingly, the trial court did not err in
dismissing Phillips’ suit.
The trial court’s judgment is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed March 7, 2012
[CV06]
Phillips v. State Page 3