Jerome Leonard Johnson v. G. Oliver

                NO. 12-06-00187-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JEROME LEONARD JOHNSON, §          APPEAL FROM THE 349TH

APPELLANT

V.        §          JUDICIAL DISTRICT COURT OF

G. OLIVER,

ASSISTANT WARDEN, ET AL.,    §          HOUSTON COUNTY, TEXAS

APPELLEES

MEMORANDUM OPINION          

            Jerome Leonard Johnson, an inmate in the Texas Department of Criminal Justice-Institutional Division (“TDCJ”), proceeding pro se, filed an in forma pauperis suit against Assistant Warden G. Oliver, as well as C. Cooper, H.F. Reece, III, F. English, K.D. Anderson, and B. James (collectively “Appellees”).  In three issues, Johnson appeals the trial court’s order dismissing his suit pursuant to Texas Civil Practice and Remedies Code, Chapter 14.  We affirm.

Background

            Johnson is an inmate.  While incarcerated, Johnson filed a civil suit against Appellees alleging that they are liable in tort for theft of his property.  By his suit, Johnson sought recovery of damages pursuant to the Texas Theft Liability Act as well as recovery of court costs.¹  Johnson further sought injunctive relief.  In conjunction with his original petition, Johnson filed a declaration of previous lawsuits, in which he designated two previously filed actions.

            On May 9, 2006, without conducting a hearing, the trial court found that Johnson’s suit was frivolous or malicious and dismissed it.  In its order, the trial court found that Johnson “failed to file this lawsuit before the 31st day after the date [he] received [a] written decision from the grievance system as required pursuant to Section 14.005 [of the Texas Civil Practice and Remedies Code].” This appeal followed.

Dismissal Pursuant to Texas Civil Practice and Remedies Code Chapter 14

  In his first and second issues, Johnson argues that the trial court improperly dismissed his lawsuit pursuant to Texas Civil Practice and Remedies Code section 14.005.²  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.).  The trial courts are given broad discretion to determine whether a case 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). 

  In the instant case, the trial court made a finding in its order of dismissal that Johnson failed to file his lawsuit before the thirty-first day after the date he received a written decision from the grievance system as required by Texas Civil Practice and Remedies Code, section 14.005.  However, we will affirm a dismissal if it was proper under any legal theory.  See 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).

  Chapter 14 of the Texas Civil Practice 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.³ Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (Vernon 2002); Hickson, 926 S.W.2d at 398. Section 14.003 provides that a trial court may dismiss a claim before or after service of process if the court finds that the claim is frivolous or malicious.  See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (Vernon 2002).  In determining whether a claim is frivolous or malicious, a trial court may consider whether the claim is substantially similar to a previous claim filed by the inmate because the claim arises out of the “same operative facts.”  Id. § 14.003(b)(4).  To enable a trial court to determine whether the suit is substantially similar to a previous one, an inmate is required to file a separate affidavit or unsworn declaration describing all other suits the inmate has brought and stating the “operative facts” upon which relief was sought.  Id. § 14.004(a)(2)(A).  Furthermore, the declaration must state the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise.  Id. § 14.004(a)(2)(D).

  In the case at hand, Johnson’s unsworn declaration does not comply with Texas Civil Practice and Remedies Code, section 14.004.  In his declaration, Johnson listed two lawsuits he previously filed, but failed to sufficiently set forth all of the information required by Section 14.004. For instance, with regard to the second previously filed case,  Johnson indicated that the case was dismissed, but failed to indicate whether the dismissal was pursuant to Section 13.001, Section 14.003, or otherwise.  See id. § 14.004(a)(2)(D). Johnson further failed to list the names of each party named in this suit, instead categorizing them as “Eastham officials.” See id. at § 14.004(a)(2)(C).⁴

  When an inmate files an affidavit or declaration that fails to comply with the requirements of section 14.004, “the trial court is entitled to assume that the suit is substantially similar to one previously filed by the inmate, and therefore, frivolous.”  Bell, 962 S.W.2d at 158; Williams v. Tex. Dep’t of Crim. Justice, No. 14-01-00646-CV, 2002 WL 1822424, at *2 (Tex. App.–Houston [14th Dist.] Aug. 8, 2002, pet. denied) (not designated for publication) (holding that dismissal was proper because the appellant’s sworn statement did not disclose whether some of his prior suits were dismissed as frivolous or malicious).  The burden to provide such information rests on the pro se litigant.  See, e.g., Clark, 23 S.W.3d at 422 (refusing to hold that a trial court must sift through numerous documents in order to find the information required by section 14.004).  Accordingly, we hold that the trial court did not abuse its discretion when it dismissed Johnson's suit.  Id. Johnson’s first and second issues are overruled.

Notice of Dismissal Order

  In his third issue, Johnson argues that the trial court violated his constitutional right of due process in not timely forwarding to Johnson notice of its dismissal of his lawsuit.  The clerk of the trial court has the duty to give the parties or their attorneys immediate notice by first class mail when the court signs a judgment or an appealable order.  See Tex. R. Civ. P. 306a(3); Hubert v. Ill. State Assistance Comm’n, 867 S.W.2d 160, 163 (Tex. App.–Houston [14th Dist.] 1993, no writ).  The clerk must give the parties notice of both the fact that the judgment was signed and the date the judgment was signed.  Winkins v. Frank Winther Invs., Inc., 881 S.W.2d 557, 558 (Tex. App.–Houston [1st Dist.] 1994, no writ).  Because the failure to give the required notice deprives the party of its right to be heard by the court, such an omission constitutes a violation of the party’s right to due process and is not merely a violation of procedural rules of practice.  See Hubert, 867 S.W.2d at 163.

  In the case at hand, the order of dismissal was signed on May 9, 2006 and filed on May 11, 2006.  The record indicates that a copy of the judgment was sent to Johnson via certified mail dated May 8, 2006.  The record further reflects that the trial court’s certified mailing was delivered on May 31, 2006.  We conclude that the trial court clerk satisfied the requirement that notice of judgment be immediately forwarded to the parties.  Therefore, we hold that Johnson’s due process rights were not violated. Johnson’s third issue is overruled.

Disposition

  Having overruled Johnson’s first, second, and third issues, we affirm the trial court’s order dismissing Johnson’s suit.

                                                                                         JAMES T. WORTHEN   

                                                                                                     Chief Justice

Opinion delivered March 7, 2007.

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

(PUBLISH)

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¹ See Tex. Civ. Prac. & Rem. Code Ann. § 134.005(a)(1), (b) (Vernon 2005).

² We construe Johnson’s first and second issues liberally in the interest of justice. 

³ Chapter 14 does not apply to suits brought under the Family Code.  Tex. Civ. Prac. & Rem. Code Ann. § 14.002(b) (Vernon 2002).

⁴ That Johnson attached his petition from this previously filed suit as an exhibit does not fulfill the requirements of Section 14.004(a)(2).  See Clark v. J.W. Estelle Unit, 23 S.W.3d 420, 422 (Tex. App.–Houston [1st Dist.] 2000, pet. denied).