michael-e-geiger-v-eric-milburn-sherilyn-trent-tammi-messimer-eddie ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00250-CV
MICHAEL E. GEIGER APPELLANT
V.
ERIC MILBURN, SHERILYN APPELLEES
TRENT, TAMMI MESSIMER, EDDIE
WILLIAMS, EMILIO BARRENTES,
DAVID GREEN, KAREN ANISTON,
JOHN RUPERT, AND MAJOR
HARRIS III
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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
In four points, Appellant Michael E. Geiger, an inmate in the Coffield Unit
of the Texas Department of Criminal Justice (TDCJ) who is proceeding pro se
1
See Tex. R. App. P. 47.4.
and in forma pauperis, appeals the trial court’s dismissal of his suit against
Appellees, who are employees of the TDCJ and work at various prison units. We
will affirm.
II. PROCEDURAL BACKGROUND
Geiger filed multiple grievances in the prison grievance system alleging
that prison employees had confiscated his “freeworld clothes” and his Fila tennis
shoes. After exhausting his remedies in the prison grievance system, Geiger
filed suit against Appellees Eric Milburn, Sherilyn Trent, Tammi Messimer, Eddie
Williams, Emilio Barrentes, David Green, Karen Aniston, John Rupert, and Major
Harris III, alleging claims for violating his right to privacy, converting his personal
property, violating his right to due process, and committing fraud against him.
Geiger requested actual and punitive damages, as well as injunctive relief.
Appellees Williams, Green, Aniston, and Harris were not served with
citation and did not answer. The remaining Appellees answered and filed a
motion to dismiss pursuant to chapter 14 of the Texas Civil Practice and
Remedies Code. The trial court, without conducting a hearing, dismissed
Geiger’s entire suit as frivolous and for failure to comply with chapter 14. This
appeal followed.
III. JURISDICTION OVER APPEAL
As an initial matter, Appellees argue in their brief that this court lacks
jurisdiction over Geiger’s appeal because he did not timely perfect his appeal.
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Appellees argue that Geiger’s notice of appeal was filed more than thirty days
after the final judgment was signed.
The time for filing a notice of appeal is jurisdictional in this court, and
absent a timely-filed notice of appeal or extension request, we must dismiss the
appeal. See Tex. R. App. P. 2, 25.1(b), 26.3; Jones v. City of Houston, 976
S.W.2d 676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.
1997). A motion for extension of time is necessarily implied when an appellant
acting in good faith files a notice of appeal beyond the time allowed by rule 26.1
but within the fifteen-day period in which appellant would be entitled to move to
extend the filing deadline under rule 26.3. See Jones, 976 S.W.2d at 677;
Verburgt, 959 S.W.2d at 617; see also Tex. R. App. P. 26.1, 26.3. However,
when a motion for extension is implied, it is still necessary for the appellant to
reasonably explain the need for an extension. See Jones, 976 S.W.2d at 677;
Verburgt, 959 S.W.2d at 617.
The trial court signed the final judgment on June 4, 2013. Because Geiger
did not file a post-judgment motion listed in rule 26.1(a), his notice of appeal was
due July 5, 2013. See Tex. R. App. P. 26.1(a). On July 22, 2013, seventeen
days after the notice of appeal was due, Geiger filed his notice of appeal and
explained within his notice of appeal that he did not receive notice of the final
judgment until June 30, 2013. Although it would appear at first glance that
Geiger’s notice of appeal and explanation for the extension of time to file his
notice of appeal were untimely filed because they were filed seventeen days after
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the notice of appeal was due, the fifteen-day period to extend the deadline under
rule 26.3 fell on a Saturday, and Geiger filed his notice of appeal and explanation
for the extension on the following Monday. See Tex. R. App. P. 4.1(a), 26.3. We
therefore hold that Geiger timely filed his notice of appeal and reasonable
explanation for the extension of time to file his notice of appeal, and thus we
have jurisdiction over his appeal.
IV. DISMISSAL OF GEIGER’S SUIT
In four points, Geiger challenges the dismissal of his suit against
Appellees.2
A. Standard of Review Under Chapter 14
An inmate action in which an affidavit of inability to pay costs is filed is
governed by chapter 14 of the Texas Civil Practice and Remedies Code. Tex.
Civ. Prac. & Rem. Code Ann. § 14.002(a) (West Supp. 2013). A chapter 14
dismissal is reviewed for an abuse of discretion. Brewer v. Simental, 268 S.W.3d
2
Geiger’s four points as set forth in his brief are as follows:
 [D]id the trial court abuse it[]s discretion and violate due process by
it[]s dis[]missal without resolving all issues of [f]act[]?
 [D]id the trial court violate access to court by denying appellant
timely notice, copy, and right to refute/object or confront the intent to
dismiss based on the motion recommendation of defe[]ndan[t]
(defendant’s[)] motion/answer to allegations against them[]?
 [D]id [the] trial court violate appellant’s right to trial by holding a trial
by judge without written consent from each party and after each
party has timely made th[ei]r request for jury trial[?]
 [D]id the trial court have discretion to dismiss where it[]s theory of
law is not supported by evidence and the court did not resolve every
issue raised in the complaint and evidence[?]
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763, 767 (Tex. App.—Waco 2008, no pet.). If, as in this case, the trial court
dismisses a claim without conducting an evidentiary hearing, we are limited to
reviewing whether the claim had an arguable basis in law. Smith v. Tex. Dep’t of
Crim. Justice-Institutional Div., 33 S.W.3d 338, 340 (Tex. App.—Texarkana 2000,
pet. denied). A claim does not have an arguable basis in law if the claim is
based on a meritless legal theory or if the inmate failed to exhaust his
administrative remedies. Hamilton v. Williams, 298 S.W.3d 334, 339 (Tex.
App.—Fort Worth 2009, pet. denied). A decision to dismiss will be affirmed if it is
proper under any legal theory. Johnson v. Lynaugh, 796 S.W.2d 705, 706–07
(Tex. 1990).
B. Procedural Requirements of Chapter 14
An inmate proceeding pro se and in forma pauperis must comply with the
procedural requirements of chapter 14. Tex. Civ. Prac. & Rem. Code Ann.
§ 14.002. Texas Civil Practice and Remedies Code section 14.005 requires an
inmate who files a claim that is subject to the grievance system to file with the
trial court (1) an affidavit or unsworn declaration stating the date that the
grievance was filed and the date the written decision was received by the inmate
and (2) a copy of the written decision from the grievance system. Id. § 14.005(a)
(West 2002). “A court shall 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).
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C. Dismissal Was Proper For Failure to Comply with Procedural
Requirements
The record reveals that Geiger attached to his petition copies of the written
grievances that he had filed in the prison grievance system. The record does
not, however, contain an affidavit or unsworn declaration from Geiger stating the
date that he received the written decision on his grievances. The record reveals
that Geiger filed his last Step 2 grievance on December 30, 2011, and that it was
decided on February 29, 2012. In the absence of any complaint or indication
from Geiger that he did not receive the decision in a timely manner, it is
reasonable for the trial court to have concluded that over thirty-one days had
elapsed between the date that Geiger had received the decision on February 29,
2012, and April 8, 2013, when he filed his petition against Appellees. Because
Geiger failed to timely file his lawsuit within the time frame outlined in section
14.005(b), the trial court was required to dismiss Geiger’s lawsuit. See id. We
hold that the trial court did not abuse its discretion by dismissing Geiger’s suit for
failing to comply with the requirements of chapter 14.005. See id. § 14.005(a),
(b); Hatcher v. TDCJ-Institutional Div., 232 S.W.3d 921, 925 (Tex. App.—
Texarkana 2007, pet. denied) (holding that trial court did not abuse its discretion
by dismissing inmate’s suit for statutory noncompliance because inmate failed to
provide an adequate affidavit under section 14.005); Wolf v. Tex. Dep’t of
Criminal Justice, Institutional Div., 182 S.W.3d 449, 451 (Tex. App.—Texarkana
2006, pet. denied) (holding that trial court did not abuse its discretion by
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dismissing inmate’s suit for failure to comply with the requirements of section
14.005).
D. Disposition of Geiger’s Points on Appeal
Because the trial court’s dismissal was proper based on matter-of-law
grounds—Geiger’s failure to comply with statutory requisites, the trial court was
not required to resolve any fact issues or to address the merits of Geiger’s
claims. We overrule the portion of Geiger’s first point arguing that the trial court
abused its discretion and violated his right to due process by dismissing his suit
without resolving all fact issues and the portion of his fourth point arguing that the
trial court abused its discretion by dismissing his suit because its “theory of law is
not supported by evidence” and because the court “did not resolve every issue
raised in the complaint.”3
Geiger also argues in his fourth point that dismissal with prejudice is
improper when an inmate’s error can be remedied. Here, the final judgment
does not state whether Geiger’s claims are dismissed with or without prejudice.
See Martin v. State, No. 01-03-01224-CV, 2005 WL 729480, at *3 (Tex. App.—
Houston [1st Dist.] Mar. 31, 2005, no pet.) (mem. op.) (stating in chapter 14 case
3
Geiger also argues in his fourth point that there was no motion to dismiss.
The record, however, reveals that a copy of Appellees’ motion to dismiss was
sent to Geiger, and he referenced the motion to dismiss in the motion for
injunction that he filed on June 10, 2013. To the extent that Geiger’s fourth point
can be read to argue that he did not receive a copy of the final judgment in a
timely manner, we have held above that he was not harmed; his notice of appeal
and explanation for the extension of time to file his notice of appeal were timely
filed.
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that if order of dismissal does not state whether the case was dismissed with or
without prejudice, it is presumed the case was dismissed without prejudice).
However, even if the trial court had dismissed Geiger’s suit with prejudice, he
could not have amended his pleadings to remedy the untimely filing of his
petition. We overrule this portion of Geiger’s fourth point.
Geiger contends in the remainder of his first and fourth points and in his
second and third points that the trial court failed to conduct a hearing on his
lawsuit prior to dismissal. Section 14.008 provides that the court may hold a
hearing. Tex. Civ. Prac. & Rem. Code Ann. § 14.008 (West 2002). A hearing is
not necessary when the dismissal is made as a matter of law rather than fact.
See Smith, 33 S.W.3d at 340. Here, the dismissal was proper on matter-of-law
grounds because Geiger did not comply with statutory requisites. A hearing
would not change the fact that Geiger filed his petition approximately one year
late. Because Geiger did not fulfill the statutory procedural requirements, his
claims had no basis in law, and thus no hearing was required. We hold that the
trial court did not abuse its discretion by not holding a hearing on Appellees’
motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann. § 14.008; Riddle v.
TDCJ-ID, No. 13-05-00054-CV, 2006 WL 328127, at *2 (Tex. App.—Corpus
Christi Feb. 9, 2006, pet. denied) (mem. op.) (holding that trial court did not
abuse its discretion by not convening a hearing because inmate did not fulfill
statutory requirements under section 14.005); see also Addicks v. Rupert, No.
12-09-00288-CV, 2011 WL 1642862, at *4 (Tex. App.—Tyler Apr. 29, 2011, no
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pet.) (mem. op.) (stating that Texas courts have held that a hearing is not
required when inmate has failed to exhaust administrative remedies or, in other
words, when inmate has failed to comply with section 14.005 of the civil practice
and remedies code).
Geiger also argues in his third point that he was denied his right to trial by
jury. The right to a jury trial is not an absolute right in civil cases but is subject to
certain procedural rules. Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d 727,
738 (Tex. App.—San Antonio 1999, no pet.). Chapter 14 imposes the
requirement to file suit before the thirty-first day after the date the inmate
receives the written decision from the grievance system, and the failure to meet
that procedural requirement allows the trial court to dismiss the case. Tex. Civ.
Prac. & Rem. Code Ann. § 14.005(a), (b). This dismissal is not based on the
merits but merely operates to dismiss the case on a procedural requirement that
is directly related to the statute’s purpose of limiting the number of frivolous
lawsuits. Geiger’s suit did not proceed to a jury trial or to a disposition on the
merits, because of his failure to fulfill a procedural requirement; we hold that
Geiger’s right to a jury trial was not violated. Cf. Schorp, 5 S.W.3d 738 (holding
that right to jury trial was not violated when litigant’s intentional failure to fulfill a
procedure requirement resulted in dismissal of her case under former statute
relating to frivolous lawsuits involving medical malpractice). Moreover, with
regard to Geiger’s complaint in his second point that the trial court violated his
constitutional right to access the courts by dismissing his lawsuit, we hold that
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chapter 14 does not violate the constitutional right of access to the courts. See
Sanders v. Palunsky, 36 S.W.3d 222, 226–27 (Tex. App.—Houston [14th Dist.]
2001, no pet.) (holding that reasonable restrictions, such as the thirty-one day
deadline in section 14.005(b), on the ability of pro se inmates to proceed in forma
pauperis do not constitute a denial of the constitutional right of access to the
courts).
We therefore overrule Geiger’s second and third points and the remainder
of his first and fourth points.
V. CONCLUSION
Having overruled all four of Geiger’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: WALKER, J.; LIVINGSTON, C.J.; and GABRIEL, J.
DELIVERED: February 6, 2014
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