Opinion

Moreland,Carlos v. Johnson,Gary

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Oct 31, 2002
Status
Published
Cited by
0 cases
Authority
More cited than 35.1%

The opinion

Opinion issued October 31, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00089-CV

____________

CARLOS MORELAND, Appellant

V.

GARY JOHNSON, ALAN POLUNSKY, WARDEN PRICE, ADMIN.

BAINES, JOHN DOE, LESLIE WOODS, LIEUTENANT KING, MAJOR

KING, OFFICER B. SHAW, ALVIN EASTERLING, WARDEN CASTRO,

JOHN DOE, WARDEN FOX, OFFICER HONEYCUTT, C.D. LUCAS,

OFFICER BRADY, WARDEN PRICE, OFFICER LOONEY, Appellees

On Appeal from the 12th District Court

Walker County, Texas

Trial Court Cause No. 21372

O P I N I O N

Appellant, Carlos Moreland, filed an inmate civil action for violation of his

constitutional rights, seeking money damages, a declaratory judgment, and punitive

and injunctive relief against numerous defendants employed by the Texas Department

of Criminal Justice . In his sole point of error, appellant contends the trial court erred

in dismissing his petition and abused its discretion in failing to grant him a hearing

and leave to amend his original petition. We affirm.

Procedural Background

On October 3, 2001, appellant, a prison inmate, brought a suit in forma

pauperis against numerous defendants employed by the Texas Department of

Criminal Justice . Appellant alleged that he sustained damages as a result of

violations of state law, his Fourteenth Amendment (1) right to due process, and his

Eighth Amendment (2) right to be free from cruel and unusual punishment. Appellant

alleged numerous claims, including the unlawful confiscation and destruction of his

property, retaliation, and physical harm from repeated exposure to harmful chemical

agents.

The trial court requested that the Attorney General of Texas review appellant's

pleadings, affidavits, unsworn declarations, and exhibits for compliance with Chapter

14 of the Civil Practice and Remedies Code (Code). See Tex. Civ. Prac. & Rem.

Code Ann. §§ 14.001 -.014 (Vernon Supp. 2002). The Attorney General filed an

amicus curiae brief and advised the trial court that appellant had failed to comply

with sections 14.004(a) and 14.005(b) of the Code. Appellant then requested leave

of the trial court to file a supplemental petition, but the trial court dismissed

appellant's claims with prejudice.

Standard of Review

We review a dismissal under Chapter 14 for an abuse of discretion by the trial

court. Carson v. Gomez , 841 S.W.2d 491, 494 (Tex. App.--Houston [1st Dist.] 1992,

no writ) . A trial court abuses its discretion if it acts arbitrarily, capriciously, and

without reference to any guiding principles or rules. Brewer v. Collins , 857 S.W.2d

819, 822 (Tex. App. --Houston [1st Dist.] 1993, no writ).

When the trial court dismisses a claim without a hearing, the issue on appeal

is whether the claim had no arguable basis in law. Sawyer v. Tex. Dep't of Crim.

Justice , 983 S.W.2d 310, 311 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd).

Thus, we review, de novo , the legal question of whether the trial court properly

concluded that appellant had no arguable basis in law for maintaining his suit. Id.

Grievance System Decision

An inmate who files a lawsuit based on claims presented in a previous

grievance proceeding must file an affidavit or unsworn declaration stating the date

on which the grievance was filed and the date on which a written decision on the

grievance was received. Tex. Civ. Prac. & Rem. Code Ann. § 14.005 (a) (Vernon

Supp. 2002). A lawsuit based on the same allegations as made in a grievance must

be dismissed if it is not filed before the 31st day after the date on which a written

decision in the grievance proceeding is received. Id. at § 14.005(b) (Vernon Supp.

2002).

In his original petition, appellant included a list of the dates on which he had

filed grievances and the dates on which he received decisions in those grievance

proceedings. Appellant asserted that he received his last decision from the grievance

system on June 11, 2001. However, appellant did not file his lawsuit until October

3, 2001--114 days after he received his grievance system decision--well outside the

31-day limitation period. Id. Thus, appellant failed to timely file his suit.

Appellant argues that the grievance system procedure was incomplete, and that

his "ongoing" grievances, as alleged in his proposed supplemental petition, should

be considered because they "relate back" to his original petition. He relies on section

14.005(c) of the Code, which requires a trial court to stay the proceeding with respect

to a claim, for a period not to exceed 180 days, to permit completion of the grievance

system procedure. See Tex. Civ. Prac. & Rem. Code Ann. § 14.005 (c) (Vernon

Supp. 2002). However, the record in this case reflects that appellant's proposed

"supplemental" petition alleged new and different claims, which were not alleged in

his original petition. It does not demonstrate that the grievance system procedure was

not complete for the claims made in the original petition. Thus, appellant's reliance

on section 14.005(c) is misplaced, and his argument is without merit.

Appellant further contends that the trial court abused its discretion in not

granting him a hearing and in not allowing him to supplement his original petition.

However, a trial court's decision on whether to hold a hearing on the dismissal of

inmate litigation for failure to comply with the statutes governing such litigation is

discretionary. Williams v. Brown , 33 S.W.3d 410, 411 (Tex. App.--Houston [1st

Dist.] 2000, no pet.). Moreover, allowing appellant an opportunity to supplement his

petition would not have resulted in a different outcome, because the supplemental

claims alleged did not demonstrate that the claims made in the original petition were

"ongoing." Thus, we hold that the trial court did not abuse its discretion in denying

appellant a hearing or an opportunity to supplement his petition.

We further hold that the trial court did not abuse its discretion in dismissing

appellant's suit because appellant did not comply with Code section 14.005(b).

Because appellant did not demonstrate that he filed his suit within 31 days of

receiving the written response to his grievance, the court was authorized to dismiss

appellate's suit for non-compliance. Tex. Civ. Prac. & Rem. Code Ann. § 14.003 (a)

(Vernon Supp. 2002). A suit that is not timely filed pursuant to section 14.005(b) is

barred and may be dismissed with prejudice. Id. at § 14.005(b). Thus, we hold that

the trial court did not abuse its discretion in dismissing appellant's suit.

Appellant's sole point of error is overruled.

Conclusion

We affirm the order of dismissal.

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Radack.

Publish. Tex. R. App. P. 47.

1.

U.S. Const. amend. XIV.

2.

U.S. Const. amend. VIII.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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