NO. 12-07-00157-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DALE A. CROSBY,  §          APPEAL FROM THE THIRD

APPELLANT

V.        §          JUDICIAL DISTRICT COURT OF

BERNARD DIXON, RUSSELL MITTASCH,

DEBORAH DENBY, BLAKE LAMB,

CHRISTOPHER GOYENS, VINCENT

MARSHALL, DONNA CURTIS, BRENDA           §          HOUSTON COUNTY, TEXAS

HOUGH, BETTY WILLIAMS, KRISTI

DUDLEY AND BARBARA GIPSON,

APPELLEES

MEMORANDUM OPINION

            Appellant Dale A. Crosby, proceeding pro se, appeals the trial court’s order dismissing his suit pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code.  Crosby presents three issues on appeal.  We affirm.

Background

            Crosby is an inmate in the Texas Department of Criminal Justice-Institutional Division (“TDCJ”).  While incarcerated, Crosby filed an in forma pauperis civil suit against Bernard Dixon, Russell Mittasch, Deborah Denby, Blake Lamb, Christopher Goyens, Vincent Marshall, Donna Curtis, and four University of Texas Medical Branch employees (collectively “Appellees”).  In his suit, Crosby alleges that Appellees (1) assaulted and battered him, (2) used excessive force against him in violation of the Eighth Amendment to the United States Constitution, (3) deliberately delayed and denied him treatment for his injuries sustained from the assault and battery to appease security officials and as retaliation for his complaining and using the grievance system, and (4) violated his common law right to privacy.  Crosby sought injunctive relief, and actual and punitive damages. An “Affidavit of Previous Filing” was attached to Crosby’s original petition.

            On March 15, 2007, without conducting a hearing, the trial court found that Crosby failed to provide an affidavit related to previous filings that complied with section 14.004, that he failed to file the suit before the thirty-first day after the date he received the written decision from the grievance system, and that his suit was frivolous or malicious according to section 14.003.  Thus, the trial court dismissed Crosby’s suit without prejudice pursuant to Chapter 14 of the Texas Civil Practices and Remedies Code.  This appeal followed.

Dismissal Pursuant to Chapter 14 of

the Texas Civil Practices and Remedies Code

            In three issues, Crosby argues that the trial court’s dismissal was improper.¹  In his first issue, he contends that the trial court overlooked his affidavit of previous filings that complied with section 14.004 of the Texas Civil Practices and Remedies Code.  In his second issue, he argues that he filed the suit before the thirty-first day after he received a written decision from the grievance system. Finally, in his third issue, Crosby complains that the trial court dismissed his suit without a motion from Appellees or without conducting a hearing.

Standard of Review

            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 suit 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).

Dismissal

            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.  Prison inmates who file suits in Texas state courts pro se and who seek to proceed in forma pauperis must comply with the procedural requirements set forth in Chapter 14.  See Tex. Civ. Prac. & Rem. Code Ann. § 14.001, 14.004-.006 (Vernon 2002).  A failure to fulfill those procedural requirements will result in dismissal of an inmate’s action.  See Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex. App.–San Antonio 2002, pet. denied).  Because Crosby brought the underlying suit pro se and filed a request to proceed in forma pauperis, he was required to fulfill the various procedural requirements set forth in Chapter 14.

            The trial court found that Crosby failed to bring his suit within thirty-one days of receiving a written decision from the grievance system pursuant to Section 14.005 of the Texas Civil Practices and Remedies Code.  See  Tex. Civ. Prac. & Rem. Code Ann. § 14.005(b) (Vernon 2002).  The trial court must dismiss a suit that was not filed within this time period.  Id.  According to the record, Crosby signed the Step 1 Grievance on April 24, 2006, and a prison official signed a written decision on May 19, 2006.  The record also includes a Step 2 Grievance signed by Crosby on November 22, 2006, in which Crosby noted the grievance was being filed beyond the due date. He explains here that his Step 1 Grievance was not returned to him until November 21, 2006 and that he previously had filed a Step 2 Grievance, which was not returned at that time.  Thus, he contends that he had to file another Step 2 Grievance and that his suit was filed within thirty-one days after his second Step 2 Grievance was returned.  Crosby’s suit was filed on February 6, 2007.             Even if this is true, Crosby has not complied with the statute.  Section 14.005 also requires a litigant to state the date on which he received the written grievance decision.  Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a)(1) (Vernon 2002).  Compliance with Section 14.005 is a prerequisite to judicial review of inmate claims.  See Retzlaff v. Tex. Dep’t of Criminal Justice, 94 S.W.3d 650, 652 (Tex. App.–Houston [14th Dist.] 2002, pet. denied).  In his suit, Crosby did not state the date he received the final written grievance decision.  Further, nothing Crosby filed in the trial court would have alerted it to the date the final grievance decision was returned to him.  On the Step 2 Grievance form, the box marked “OFFICE USE ONLY” is bereft of any contextual clues indicating a delivery or returned date. Therefore, the trial court reasonably concluded that Crosby’s suit was not timely filed and that it was required to dismiss his suit.  Because Crosby failed to comply with the statutory requirements of Section 14.005, the trial court did not abuse its discretion in dismissing his suit. Accordingly, we overrule Crosby’s second issue.  Because Crosby’s second issue is dispositive, we need not consider his first issue.

Hearing

            A trial court has discretion whether to hold a hearing before dismissing an inmate’s suit for failure to comply with the statutes governing such litigation.  See Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.–Houston [1st Dist.] 2002, no pet.); Williams v. Brown, 33 S.W.3d 410, 411 (Tex. App.–Houston [1st Dist.] 2000, no pet.); see also Tex. Civ. Prac. & Rem. Code Ann. § 14.003(c) (Vernon 2002) (stating that a court may hold a hearing to determine whether a suit should be dismissed).  Neither a hearing nor an opportunity to respond is required prior to dismissal of an inmate’s suit when the pleadings are procedurally deficient. See Gowan v. Tex. Dep’t of Criminal Justice, 99 S.W.3d 319, 323 (Tex. App.–Texarkana 2003, no pet.); see also Moreland, 95 S.W.3d at 394 (concluding that the court did not abuse its discretion in denying inmate a hearing or an opportunity to supplement his petition before dismissing the suit); Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex. App.–Houston [14th Dist.] 1990, no writ) (determining that a court was under no duty to suggest voluntarily that litigant amend his pleadings).

            The trial court did not abuse its discretion by dismissing Crosby’s suit without holding a hearing because the defects described above were clear and wholly ascertainable from the record. See Thomas v. Bilby, 40 S.W.3d 166, 169-70 (Tex. App.–Texarkana 2001, no pet.).  Because Crosby’s pleadings were deficient, the trial court did not abuse its discretion by dismissing his suit without holding a hearing.  Accordingly, we overrule Crosby’s third issue.

Disposition

            The judgment of the trial court is affirmed.

                                                                                                     JAMES T. WORTHEN   

                                                                                                                 Chief Justice

Opinion delivered January 9, 2008.

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

(PUBLISH)

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¹ We have liberally construed Crosby’s brief in order to give effect to his arguments.  See Tex. R. App. P.  38.9. As such, we have determined that he has raised three issues.

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