Timothy Paul Martin

Opinion issued April 28, 2011.

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00505-CV

Timothy

Paul Martin ,

Appellant [1]

On Appeal from the 412th

District Court

Brazoria County, Texas

Trial Court Cause No. 2004-51912

MEMORANDUM opinion

Timothy Paul Martin, an inmate, [2]

filed suit alleging various causes against David Turrubiarte (an Assistant

Warden) [3] ,

Juan Torres and Joe Potts (fellow inmates), Douglas Geist, Thomas R. Brennan,

Debbie Monroe, and Oscar Torres (prison employees), and the Brazoria County

District Attorney. Because he filed in forma pauperis , the lawsuit is

subject to Civil Practice and Remedies Code Chapter 14, which addresses inmate

litigation. [4]

The trial court dismissed Martin’s

claims against all defendants with prejudice . We affirm.

Background

Martin

filed his suit in the trial court on April 2, 2009. [5] According to his pro se appellate brief, in

July 2008, Martin was transferred to the Ramsey 1 Unit in Rosharon, Texas and

assigned to the Gang Renunciation and Disassociation (“GRAD”) program. According to Martin, participation in the

GRAD program is a privilege and benefit in that prisoners who successfully

complete the program earn release into the general prison population and

generally have a better chance of being paroled.

Among the

many factual allegations set forth in Martin’s petition are several arguments

with his cellmate and fellow GRAD member, Juan Torres, who, Martin alleges,

challenged him to a fight. According to

his petition, Martin was concerned by the prospect of violence and made a

written request to Officers Brennan and Geist for a new cell assignment. When neither officer acted on his request,

Martin filed a grievance against them for “neglecting to act on the complaint.”

Three days

later, Officer Geist called Martin and Torres from their cell for

questioning. Martin alleges that the

prisoner in the next cell, Joe Potts, then told Torres to tell Geist that

Martin had threatened Torres. Martin

told Potts “to get out of [Martin’s] business.”

Martin was then guided out into the hall where Geist was waiting.

Martin

alleges that Geist asked, “So you filed a grievance, huh? Well, what if I just

say you created a disturbance then write you a case?” Martin replied that he would send a letter to

the Brazoria County District Attorney, file a complaint, and file a

lawsuit. According to Martin’s petition,

Geist responded, “Then I’m putting you in ad[ministrative] Seg[regation] and

kicking you out of GRAD.” Martin

contends Geist then turned to the other inmate, Torres, and told him, “He wrote

a grievance . . . . [J]ust say he

threatened you.” Martin was then

handcuffed and escorted to a solitary confinement cell.

According

to Martin, Geist wrote up a disciplinary complaint against Martin for “creating

a disturbance by telling Potts to find himself some business.” After a hearing before Major of Correctional

Officers Armstrong, Martin was found guilty of this disciplinary charge. His classification was reduced; he was

removed from the GRAD program and returned to Administrative Segregation for fifteen

days, where he was “confined to a cell practically 24 hours a day, as he had

been prior to GRAD for about 8 continuous [years]”; and he was subjected to

restrictions on his access to the commissary.

Martin contends that the disciplinary case was adjudicated in violation

of Due Process “to [the] extent that, the evidence presented contradicted

itself and showed Geist’s testimony lacked trustworthiness and the evidence

constituted circumstantial evidence that Geist had issued the case to retaliate

against [Martin]” and had pre-determined Martin’s guilt.

Martin

makes numerous additional allegations, including accusing Captain O. Torres and

other officers of neglecting their “duties to prevent the disciplinary

case.” He also references an additional

“step one” grievance he subsequently filed when prisoners “yelled at him . . .

and threatened to get [him] when they could” and the “step two” grievance he

filed when his step one grievance was denied by Assistant Warden

Turrubiarte. In addition, he alleges

that the Ramsey prison unit is bug-infested and unsanitary and that it violates

due process of law and constitutes cruel and unusual punishment. He also complains about the temperature in

the prison and alleges further constitutional violations against the prison

officials. In addition, he alleges that

Potts and Torres violated their fiduciary duty to him, apparently arising from

their status as fellow inmates, and accuses them of negligence. Martin further contends that the defendants

are responsible for “Criminal Solicitation, in violation of the [Texas] Penal

Code § 39.02” and “Official Oppression in violation of the Penal Code §

39.03.” Finally, he claims “the Criminal

District Attorney for Brazoria County neglected his duty to investigate

Martin’s retaliation claims against [defendant] Monroe and so is liable under

[Civil Practice and Remedies] Code § 7.001(a) for neglecting his duties.” Martin seeks damages on his claims,

injunctive relief restoring his rights and privileges, release to the prison

population at the Cleveland unit so that he may enroll in its business program,

and transfer to another state to serve the remainder of his time.

With his

petition, Martin filed a declaration describing his numerous previous lawsuits

and several declarations of exhausted administrative remedies. His first declaration of exhausted remedies

related the grievance process he followed regarding his complaints that Geist

and Brennan failed to change his cell assignment. The declaration and accompanying grievance

records show that Martin received the final denial of this grievance on

December 23, 2008. Another declaration of

exhausted administrative remedies detailed the grievance process he followed

regarding his complaint that “prisoners at the Ramsey unit [were subjected] to

extreme heat in the summer by neglecting to install air chillers or

conditioners.” This declaration and the

accompanying written grievance decisions indicate that Martin received the

final response to his grievance on February 20, 2009. The third declaration detailed the grievance

process he followed regarding his retaliation claim. This declaration and accompanying grievance

decisions indicate that he received the final response to his retaliation

grievance on December 19, 2008. Finally,

Martin also filed a declaration and copies of the written grievance decision

regarding his complaints about prison conditions, including a roach

infestation. This declaration and

accompanying grievance decision indicate that Martin received the written

decision on January 22, 2009.

The trial

court, without conducting an evidentiary hearing and prior to service of

process, dismissed Martin’s claims for failure “to state a cause of action as a

matter of law.”

martin’s Appeal to this Court

In one

issue, Martin contends that the trial court abused its discretion when it

dismissed his petition prior to service of process and without a hearing and

that the dismissal “involved incorrect conclusions of law.”

Chapter 14

of the Texas Civil Practice and Remedies Code applies to an inmate’s in propria persona claim in a suit in

which an affidavit or unsworn declaration of inability to pay costs is filed by

the inmate. See Tex. Civ. Prac. &

Rem. Code Ann. § 14.002

(Vernon 2002). When an inmate files an unsworn

declaration of inability to pay, the trial court has broad discretion to

dismiss the suit as frivolous or malicious.

Id. § 14.003(a)(2); Thomas v. Knight , 52 S.W.3d 292, 294 (Tex.

App.—Corpus Christi 2001, pet. denied); Lentworth v. Trahan ,

981 S.W.2d 720, 722 (Tex. App.—Houston [1st Dist.] 1998, no pet.). To establish an abuse of

discretion, the inmate must show that the trial court’s action was arbitrary or

unreasonable in light of all the circumstances in the case. Thomas ,

52 S.W.3d at 294 . However, while

dismissals of inmate litigation under Chapter 14 are generally reviewed for an

abuse of discretion, the question of whether there was an arguable basis in law

for an inmate’s claims is reviewed de novo.

Scott v. Gallagher , 209 S.W.3d

262, 266 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Minix v. Gonzales ,

162 S.W.3d 635, 637 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Gill v.

Boyd Distrib. Ctr ., 64 S.W.3d 601, 603 (Tex. App.—Texarkana 2001, pet.

denied); Sawyer v. Tex. Dep’t of Criminal

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

denied).

Failure of

a prison inmate who files suit in a Texas state court pro se and who seeks to

proceed in forma pauperis to comply

with the procedural requirements of Chapter 14 will result in dismissal of the

inmate’s suit. Brewer v. Simental , 268 S.W.3d 763, 767 (Tex. App.—Waco 2008, no

pet.) (citing Tex. Civ. Prac. & Rem.

Code Ann. §§ 14.002(a), 14.004, 14.005 (Vernon 2002) and Bell v. Tex. Dep’t of Criminal Justice–Inst.

Div. , 962 S.W.2d 156, 158 (Tex. App.—Houston [14th Dist.] 1998, pet.

denied)).

Furthermore,

a court may dismiss the suit if it finds that the suit is frivolous or

malicious, i.e., the claims raised in the suit have no arguable basis in law or

fact. See Tex. Civ. Prac. &

Rem. Code Ann. § 14.003(a)(2),

(b)(2) (Vernon 2002). However, when, as

here, a trial court dismisses a claim without conducting an evidentiary

hearing, the dismissal can be affirmed only if the claim has no arguable basis

in law. Retzlaff v. Tex. Dep’t of Criminal Justice , 94 S.W.3d 650, 653

(Tex. App.—Houston [14th Dist.] 2002, pet. denied) (citing Sawyer , 983 S.W.2d at 311 ).

A claim has no arguable basis in law if a prisoner has failed to exhaust

his administrative remedies. Id. (citing Pedraza v. Tibbs , 826 S.W.2d 695 , 699–700 (Tex. App.—Houston [1st

Dist.] 1992, writ dism’d w.o.j.)).

Dismissal with prejudice is appropriate when the case has no arguable

basis in law. See Cain v. Tex. Bd. of Pardons & Paroles , 104 S.W.3d 215, 219

(Tex. App.—Austin 2003, no pet.).

Government

Code section 501.008 provides that an inmate may not file a claim in state

court regarding operative facts for which the grievance system provides the

exclusive remedy until he has exhausted his remedies through the grievance

system. Tex. Gov’t Code Ann . § 501.008(d)(1) (Vernon 2004); Smith v. Tex. Dep’t of Criminal

Justice–Inst. Div. , 33 S.W.3d 338, 341 (Tex. App.—Texarkana 2000, pet.

denied). “The two-step ‘Offender

Grievance Program’ is the sole source of administrative remedy for TDCJ

inmates.” Crain v. Prasifka , 97 S.W.3d 867 , 868 & n.3 (Tex. App.—Corpus

Christi 2003, pet. denied). An inmate

must first present his complaint in a step one grievance within fifteen days of

the incident, and he may appeal the ruling on the step one grievance by filing

a step two grievance within fifteen days of receiving the response to his step

one grievance. See id. at 868–69. An inmate

has exhausted his administrative remedies once he receives a written response

to a step two grievance. See Tex.

Gov’t Code Ann. § 501.008.

Regarding

exhaustion of administrative remedies, section 14.005 of the Civil Practice and

Remedies Code provides:

(a) An inmate who files a claim that is subject to the grievance system

established under Section 501.008, Government Code, shall file with the court:

(1) an affidavit or unsworn

declaration stating the date that the grievance was filed and the date the

written decision described by Section 501.008(d), Government Code, was received

by the inmate; and

(2) a copy of the written

decision from the grievance system.

(b) A court shall dismiss a claim if the inmate fails to file the

claim before the 31st day after the date the inmate receives the written

decision from the grievance system.

Tex. Civ. Prac. & Rem. Code Ann . § 14.005(a)–(b) (Vernon

2002).

The record demonstrates that Martin followed

the two-step grievance procedure for his complaints regarding the alleged

retaliation, Geist and Brennan’s failure to change his cell assignment, the infestation

of roaches, and extreme heat in the prison.

The record further reflects that he received the final written decisions

on his grievances on December 19, 2008, December 23, 2008, January 22, 2009,

and February 20, 2009, respectively.

Consequently, the deadlines to file his claims in the trial court were

January 19, 2009, January 23, 2009, February 22, 2009, and March 23, 2009,

respectively. Martin did not file his

suit until April 2, 2009.

Substantially

all of Martin’s claims arise out of the facts associated with his allegations

of retaliation, his complaints about prison disciplinary procedures, or his

complaints about prison conditions. [6] To the extent his petition presents specific

complaints and incidents not addressed in the grievances he provided to the

trial court, dismissal was proper because he failed to exhaust his

administrative remedies. See Brewer , 268 S.W.3d at 767 ; Retzlaff , 94 S.W.3d at 653 ; see also Leachman v. Dretke , 261 S.W.3d

297, 308 (Tex. App.—Fort Worth 2008, no pet.) (holding that TDCJ disciplinary

decisions and “[a]llegations of reprisals by TDCJ employees against inmates for

filing grievances or lawsuits, or other inmate complaints about TDCJ employee

actions” are subject to grievance procedure).

Dismissal

of his remaining claims was proper because he did not file his claim in the

trial court “before the 31st day after the date [he received] the written

decision from the grievance system.” See Tex.

Civ. Prac. & Rem. Code Ann . § 14.005(b); Brewer , 268 S.W.3d at 767 ; see

also Loyd v. Seidel , 281 S.W.3d 55, 56 (Tex. App.—El Paso 2008, no pet.)

(holding that lawsuit not timely filed at conclusion of grievance procedure is

barred); Scott v. Menchaca , 185

S.W.3d 543, 546 (Tex. App.—Corpus Christi 2006, no pet.) (affirming trial

court’s dismissal of inmate’s claims with prejudice for failure to exhaust

administrative remedies and comply with section 14.005).

Because we

affirm the trial court’s dismissal for failure to exhaust administrative

remedies and failure to comply with section 14.005(b), we do not address

Martin’s remaining complaints.

In addition, we are mindful that Martin has been declared a

vexatious litigant and is subject to a prefiling order. See Tex. Civ. Prac. & Rem. Code §

11.101 (Vernon 2002); Office of Court

Administration , List of Vexatious

Litigants Subject to Prefiling Orders under Section 11.101, Civil Practice and

Remedies Code , available at www.courts.state.tx.us/oca/VexatiousLitigants.asp

(last updated Apr. 1, 2011). The record reflects that he has brought

numerous suits on virtually identical grounds, most of which have been

expressly declared frivolous, and that he failed to receive and include in the

record permission for the filing of this suit.

To permit him to bring his claims again would frustrate both the purpose

of the vexatious litigant statute, Tex.

Civ. Prac. & Rem. Code Ann. §§ 11 .001–11.104 (Vernon 2002), and the

purpose of Civil Practice and Remedies Code section 14.004, requiring a

declaration describing the inmate’s previous suits “to curb the constant, often

duplicative, inmate litigation.” [7] See

Clark v. J.W. Estelle Unit , 23 S.W.3d 420, 422 (Tex. App.—Houston [1st

Dist.] 2000, pet. denied).

CONCLUSION

We affirm the trial court’s dismissal of this case with

prejudice.

Evelyn

V. Keyes

Justice

Panel consists of Justices

Keyes, Sharp, and Massengale.

Justice Sharp, concurring.

[1] There are no “appellees” in this case. The suit was dismissed prior to service of

citation.

[2] Texas

Department of Criminal Justice, Institutional Division (“TDCJ-ID”).

[3] TDCJ-ID’s

Ramsey 1 Unit.

[4] See

Tex. Civ. Prac. & Rem. Code Ann.

§ 14.002 (Vernon 2002).

[5] We

note that several of the documents filed by Martin have various, earlier dates

listed within the body of the documents, indicating that they may have been

written prior to April 2, 2009. However,

Martin does not argue that the April 2, 2009 file stamp is incorrect, nor does

he provide any information regarding how the documents came to be filed with

the trial court. The record does not

contain any documentation or other indication that Martin’s petition should have

been deemed filed on a different date. See, e.g. , Ramos v. Richardson , 228 S.W.3d 671, 673 (Tex. 2007) (holding that

petitioner had burden of “providing some measure of proof” regarding date of

filing of notice of appeal and holding that “filing letter” accompanying notice

of appeal that stated date notice was place in prison’s outgoing mail

constituted such proof).

[6] Martin

also attempted to state a cause of action against two fellow inmates for breach

of fiduciary duty. However, Texas law

does not support such a claim. Likewise,

there is no arguable basis in law for Martin’s allegations against various

officials for violations of the Penal Code.

See A.H. Belo Corp. v. Corcoran ,

52 S.W.3d 375, 379 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (stating

that Penal Code does not create private cause of action); see also Brown v. De La Cruz , 156 S.W.3d 560, 567 (Tex. 2004)

(“[T]oo permissive an implication of private civil actions to enforce penal

acts would sometimes supplant not just the criminal law but the criminal courts

as well.”). Finally, Martin’s

allegations against the Brazoria County District Attorney under section 7.001

of the Civil Practice and Remedies Code for neglect of the duty to investigate

are not supported by any arguable basis in law because Martin did not allege that

“a clerk, sheriff, or other officer . . . neglect[ed] or refus[ed] to perform a

duty required under the Texas Rules of Civil Procedure or under a provision of

[the Civil Practice and Remedies Code] derived from those rules. . . .” See Tex. Civ. Prac. & Rem. Code Ann. §

7.001 (Vernon Supp. 2010).

[7] We

note that the district clerk has a duty not to file a litigation presented by a

vexatious litigant subject to a prefiling order under Civil Practice and

Remedies Code section 11.101 unless the litigant first obtains an order from

the local administrative judge permitting the filing. See

Pease v. First Nat’l Bank of Giddings , No. 03-09-00551-CV, 2011 WL 182877 ,

at *1 (Tex. App—Austin Jan. 20, 2011, no pet. h.) (mem. op.) (citing Tex. Civ. Prac. & Rem. Code Ann. §

11.103(a) (Vernon 2002)). “If the clerk

mistakenly files a litigation without an order from the local administrative

judge, any party may file with the clerk and serve on the plaintiff and the

other parties to the suit a notice stating that the plaintiff is a vexatious

litigant subject to the prefiling order. . . .” Id.

(quoting Tex. Civ. Prac. & Rem. Code

Ann. § 11.103(b)). After the

notice is filed, the trial court “shall dismiss the litigation unless the

plaintiff, not later than the 10th day after the date the notice is filed,

obtains an order from the local administrative judge . . . permitting the

filing of the litigation.” Id.

There is no evidence that Martin followed these procedures.