carlos-a-l-vaughn-v-natrenia-l-hicks-russell-d-mittach-jay-a-north ( 2009 )

Affirmed as Modified and Memorandum Opinion filed April 16, 2009

Affirmed as Modified and Memorandum Opinion filed April 16, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00726-CV

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CARLOS A. L. VAUGHN, Appellant

V.

NATRENIA L. HICKS, RUSSELL D. MITTACH, JAY A. NORTH, DARRON A. LANE, WADE A. KING, JR., JOE N. ROSS, FREDDIE M. ENGLISH, AND GWENDOLYN J. SPURLOCK, Appellees

On Appeal from the 3rd District Court

Anderson County, Texas

Trial Court Cause No. 08-0079

M E M O R A N D U M   O P I N I O N

Appellant Carlos A. L. Vaughn appeals from the dismissal of his pro se inmate case brought in forma pauperis against appellees Natrenia L. Hicks, Russell D. Mittach, Jay A. North, Darron A. Lane, Wade A. King, Jr., Joe N. Ross, Freddie M. English, and Gwendolyn J. Spurlock.  We affirm.

In his first issue, appellant claims the trial court erred in dismissing his suit.  Appellant asserts the trial court did not have the authority to dismiss his claim for the reason given or to dismiss his claims with prejudice.  Appellant further argues that federal claims brought under 42 U.S.C. section 1983 are not subject to dismissal under Chapter 14 of the Texas Civil Practice and Remedies Code. 

In its order, the trial court found appellant=s claims Ato be frivolous or malicious.@  The record reflects that appellant=s affidavit of previous filings lists eleven (11) lawsuits.  Although the affidavit indicates the legal nature of the suits, the descriptions of the suits do not state the operative facts for which relief was sought.  See Tex. Civ. Prac. & Rem. Code Ann. ' 14.004(a)(2)(D).  Accordingly, the trial court was unable to determine whether appellant=s underlying claims are substantially similar to his previous suits and therefore frivolous. See Tex. Civ. Prac. & Rem. Code ' 14.003(b)(4).  Based on appellant=s failure to comply with section 14.004, the trial court was entitled to presume the current suit was frivolous or malicious and to dismiss the suit.  See Bell v. Texas Dept. of Criminal Justice - Institutional Div., 962 S.W.2d 156, 157 (Tex. App. B Houston [14th Dist.] 1998, pet. denied).  Accordingly, appellant=s complaint in his first issue that the trial court erred in dismissing his suit is overruled.

Appellant=s further complaint regarding the dismissal Awith prejudice@ is sustained.  A dismissal for failure to comply with the conditions in section 14.004 is not a dismissal on the merits, but rather an exercise of the trial court=s discretion under chapter 14 of the Civil Practice and Remedies Code.  See Hickman v. Adams, 35 S.W.3d 120, 124 (Tex.App.B Houston [14th Dist.] 2000, no pet.).  We modify the trial court=s judgment to delete the words Awith prejudice.@

Appellant=s last complaint of his first issue is that section 1983 claims are not subject to dismissal under chapter 14. AStates may apply their own neutral procedural rules to federal claims, unless those rules are pre‑empted by federal law.@  Thomas v. Bush, 23 S.W.3d 215, 217-18 (Tex. App. B Beaumont 2000, pet. denied) (citing Howlett v. Rose, 496 U.S. 356, 372, 110 S. Ct. 2430, 2440-41, 110 L. Ed. 2d 332, 351 (1990)).  Section 1983 claims brought in federal court by inmates litigating in forma pauperis are subject to substantially similar requirements as those imposed by chapter 14.  Id.  Accordingly, the requirements of chapter 14 do not conflict with section 1983.  See Thomas v. Wichita General Hospital, 952 S.W.2d 936, 940 (Tex. App. B Fort Worth 1997, pet. denied).  Appellant=s complaint is without merit.

Because we have determined the trial court did not abuse its discretion in dismissing appellant=s suit, we need not address appellant=s remaining issues.  See Tex. R. App. P. 47.1.

We reform the judgment to provide the cause is dismissed without prejudice.  As modified, the judgment is affirmed.

PER CURIAM

Panel consists of Justices Seymore, Brown, and Sullivan.