Richard Jaxon 468160 v. J.T. Morgan

Affirmed and Memorandum Opinion filed April 6, 2006

Affirmed and Memorandum Opinion filed April 6, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00785-CV

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RICHARD JAXSON, Appellant

V.

JAY T. MORGAN, ET AL., Appellee

On Appeal from the 12th District Court

Walker County, Texas

Trial Court Cause No. 22642

M E M O R A N D U M   O P I N I O N

Appellant, Richard Jaxson, filed in the trial court an application for writ of mandamus to compel the Texas Department of Criminal Justice (ATDCJ@) to provide adequate medical care, effective access to the courts, and supplies to prepare legal briefs.  Jaxson also complains that he has been denied Areligious (Native American) activities@ and freedom from censorship, harassment, and retaliation. The trial court determined that Jaxson=s action is a Aregular civil lawsuit and not a mandamus@ and ordered the Texas Attorney General to file as amicus curiae an advisory report as to whether Jaxson had satisfied all filing requirements under Chapter 14 of the Texas Civil Practice and Remedies Code necessary to maintain his lawsuit.  See Tex. Civ. Prac. & Rem. Code Ann. '' 14.001B.014 (Vernon 2002).  On July 19, 2004, the Attorney General filed an amicus curiae report advising the trial court that Jaxson had not satisfied all requirements under Chapter 14 and recommended that Jaxson=s claims be dismissed.  On July 26, 2004, the trial court dismissed Jaxson=s claims as frivolous.

On appeal, Jaxson contends the trial court abused its discretion in dismissing his claims because he filed a writ of mandamus to compel, not a tort action under Chapter 14.  To the contrary, Jaxson=s writ of mandamus to compel falls within the scope of Chapter 14. Chapter 14 Aapplies only to a suit brought by an inmate in district, county, justice of the peace, or small claims court in which an affidavit or unsworn declaration of inability to pay costs is filed by the inmate.@  Tex. Civ. Prac. & Rem. Code Ann. '14.002(a); see also Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex. App.CSan Antonio 2002, pet. denied) (explaining that inmate who files a lawsuit pro se and seeks to proceed in forma pauperis must comply with the procedural requirements of Chapter 14).  Jaxson=s writ of mandamus was filed in district court; he is an inmate; and he is seeking to proceed in forma pauperis.  Jaxson may not circumvent the requirements of Chapter 14 by labeling his lawsuit a Awrit of mandamus.@  See Carson v. Serrano, 96 S.W.3d 697, 699 (Tex. AppCTexarkana 2003, pet. denied) (rejecting inmate=s argument that Chapter 14 did not apply to his action because he filed a bill of review, observing that appellant, who was an inmate, filed an affidavit of poverty with his petition); Spellmon v. Zeller, No. 09-02-060-CV, 2002 WL 31096753, at *1 (Tex. App.CBeaumont Sept. 9, 2002, pet. denied) (not designated for publication) (rejecting inmate=s argument that Chapter 14 did not apply to his suit for injunction, noting that appellant was an inmate, filed his suit in district court, and filed an affidavit declaring his inability to pay costs). 

We review the trial court=s dismissal of an inmate=s claims under Chapter 14 for an abuse of discretion.  Retzlaff v. Texas Dep=t of Criminal Justice, 94 S.W.3d 650, 654 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).  A trial court abuses its discretion when it acts without reference to any guiding rules and principles, or its actions are arbitrary or unreasonable based on the circumstances of the particular case.  Id.  Appellant bears the burden of overcoming the presumption that the trial court=s action was justified.  Id. 

The trial court may dismiss an inmate suit before or after service of process if it determines the suit is frivolous or malicious.  Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(a)(2).  In determining whether the suit is frivolous or malicious, the trial court may consider whether (1) the claim=s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because it arises from the same operative facts.  Id. ' 14.003(b). 

Chapter 14 requires an inmate who files an affidavit or unsworn declaration of inability to pay costs to file a separate affidavit or declaration identifying all pro se lawsuits (except those filed under the Texas Family Code) the inmate had previously filed, specifying the operative facts for which relief was sought, the case name, the cause number, the court in which it was brought, the names of the parties, and the result of the suit, including whether it was dismissed as frivolous or malicious.  Id. ' 14.004(a).  The Texas Legislature enacted section 14.004 to curb the problem of constant, often duplicative, inmate litigation by requiring the inmate to notify the trial court of previous litigation and the outcome of such litigation.  Clark v. J.W. Estelle Unit, 23 S.W.3d 420, 422 (Tex. App.CHouston [1st Dist.] 2000, pet. denied); Bell v. Texas Dep=t of Criminal Justice, 962 S.W.2d 156, 158 (Tex. App.CHouston [14th Dist.] 1998, pet. denied).  The trial court can determine, based on previous filings, whether the suit is frivolous because the inmate has already filed a similar claim.  Clark, 23 S.W.3d at 422; Bell, 962 S.W.2d at 158.  Without information on appellant=s previous lawsuits, the trial court is unable to consider whether appellant=s current claim is substantially similar to a previous claim. Clark, 23 S.W.3d at 422; Bell, 962 S.W.2d at 158. 

A review of the record reflects that although Jaxson filed an affidavit of poverty and a motion for leave to proceed in forma pauperis, he did not file an affidavit or declaration identifying all pro se lawsuits he has previously filed. When an inmate does not comply with the affidavit requirement of section 14.004, the trial court is entitled to assume the suit is substantially similar to one previously filed by the inmate and, therefore, is frivolous.  Obadele v. Johnson, 60 S.W.3d 345, 348 (Tex. App.CHouston [14th Dist.] 2001, no pet.); Bell, 962 S.W.2d at 158.  Thus, because Jaxson did not meet the affidavit requirement of section 14.004, the trial court was entitled to assume this case was substantially similar to one previously filed by Jaxson and dismiss his claims. 

Chapter 14 also requires the inmate to file a certified copy of his trust account statement reflecting the balance of the account at the time the claim is filed and activity in the account during the six months preceding the date on which the claim is filed.  Tex. Civ. Prac. & Rem. Code Ann. ''14.004(c) & 14.006(f).  Jaxson did not file a certified copy of his trust account. Therefore, this was a proper basis on which to dismiss Jaxson=s claims.  See Thompson v. Rodriguez, 99 S.W.3d 328, 330 (Tex. App.CTexarkana 2003, no pet.) (finding trial court was within its discretion in dismissing inmate=s suit for failing to comply with section 14.004(c)); Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App.CBeaumont 2001, no pet.) (same); Williams v. Brown, 33 S.W.3d 410, 412 (Tex. App.CHouston [1st Dist.] 2000, no pet.) (same). 

Chapter 14 further requires the inmate to exhaust his administrative remedies in the prison grievance system as set forth in Section 501.008 of the Texas Government Code.^[1]  Tex. Civ. Prac. & Rem. Code Ann. ' 14.005(a).  Section 14.005 requires the filing of (1) an affidavit or unsworn declaration stating the date 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.  Section 14.005 allows the trial court to ensure that an inmate proceeding in forma pauperis has first used TDCJ=s grievance procedure, if it is applicable to his claim.  Smith v. Texas Dep=t of Criminal Justice, 33 S.W.3d 338, 341 (Tex. App.CTexarkana 2000, pet. denied).  The trial court is further entitled to use an inmate=s failure to file a section 14.005 affidavit or unsworn declaration in making its determination under section 14.003(a).  Draughon v. Cockrell, 112 S.W.3d 775, 776 (Tex. App.CBeaumont 2003, no pet.).  At the time he filed his writ of mandamus, Jaxson did not file an affidavit or unsworn declaration stating the date his grievance was filed and the date he received such written decision, or file a copy of the written decision; therefore, it was not error for the trial court to dismiss Jaxson=s claims. Jaxson=s issue is overruled.

Accordingly, the judgment of the trial court is affirmed. 

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed April 6, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.

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^[1]  Tex. Gov=t Code Ann. ' 501.008 (Vernon 1998).