Shirley Ann Charles v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

No. 10-04-00051-CV

Shirley Ann Charles,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # C0T-03-35093

MEMORANDUM Opinion

Shirley Ann Charles filed a lawsuit against the State of Texas under the Texas Tort Claims Act. The State failed to respond to her complaint, and she filed a motion for entry of default judgment.  Two days later, the trial court dismissed her claim for failure to state a cause of action and for failure to comply with chapter 14 of the Civil Practice and Remedies Code.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (Vernon 2002).  The trial court did not rule on the motion for entry of default judgment and denied her motion for leave to file an amended complaint and reconsideration to alter the judgment.  Charles appeals in four issues: (1) error in dismissing her claim after she filed a motion for default judgment; (2) error in dismissing her claim for failure to state a cause of action without allowing her to amend; (3) error in dismissing her claim for failure to comply with chapter 14 without designating a specific legal rule; and (4) whether her claim was dismissed without prejudice; if yes, whether she may re-file her lawsuit to cure the defects.

We will overrule issues one, two, and three, and sustain issue four.  We will reform the judgment and affirm.

BACKGROUND

Charles was denied an alleged pre-approved four-hour contact visit with a special friend of the family (Albert Leday), her daughter, and her granddaughter.  Leday drove from Lake Charles, Louisiana and stopped to pick up Charles’s daughter and granddaughter in Beaumont, Texas before arriving to visit Charles at the Mountain View Unit in Coryell County, Texas.  Charles was allowed a two-hour non-contact visit.  The four-hour contact visit was allegedly denied because the special friend of the family had stopped in Beaumont and therefore did not drive more than 300 miles to qualify for a special relationships contact visit. Charles alleges that the correctional officer who denied her the contact visit did not bring her complaint to the attention of her sergeant to informally resolve her complaint. Charles also alleges that Leday, during the visit, spoke to a sergeant regarding Charles’s complaint, but he also did not bring her complaint to the attention of the duty warden to informally resolve her complaint.  Charles suggests a solution could have been having Leday leave the visiting room so she could visit with her daughter and granddaughter.  Charles claims she exhausted both steps of the grievance system. Charles sued the State of Texas naming the following defendants: (1) Audrey L. Smith, Senior Warden of the Mountain View Unit, (2) Kay Sheeley, the Grievance Coordinator, (3) Sylvia Nance, Assistant Warden of the Mountain View Unit, (4) Sergeant Lawrence Siggers of the Mountain View Unit, and (5) Correctional Officer Linda Mayberry of the Mountain View Unit.

STANDARD OF REVIEW

We apply an abuse of discretion standard in our review of the trial court's dismissal pursuant to section 14.003 of the Texas Civil Practice and Remedies Code.  Barnum v. Munson, Munson, Pierce and Cardwell, P.C., 998 S.W.2d 284, 286 (Tex. App.—Dallas 1999, pet. denied).  A court abuses its discretion if it acts without reference to guiding rules or principles or if it acts arbitrarily or unreasonably in light of all the circumstances in the case.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  The fact that an appellate court might decide a matter differently than the trial court does not demonstrate that an abuse of discretion has occurred.  Id. at 242.

ISSUE TWO: DISMISSAL FOR FAILURE TO STATE A CAUSE OF ACTION

Charles argues that section 14.003 does not allow for dismissal for failure to state a cause of action.  She argues that she should have been given an opportunity to amend her petition before dismissal.  She also asserts that her brief should be liberally construed and that she should be held to less stringent standards as a pro-se litigant.

When an inmate brings a suit in which the inmate files an unsworn declaration of inability to pay costs, a court may dismiss a claim, either before or after service of process, if the court finds that the claim is frivolous or malicious.  Tex. Civ. Prac. & Rem. Code Ann. §§ 14.002, 14.003(a)(2); Barnum, 998 S.W.2d at 286.  An inmate has no right to an opportunity to amend prior to dismissal by the trial court. Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App.—Beaumont 2001, no pet.).  In determining whether a claim is frivolous or malicious, the 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 fact; (3) it is clear that 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 the claim arises from the same operative facts.  Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b).

A trial court may dismiss a claim as frivolous when it has no arguable basis in law or fact.  Id. § 14.003(a)(2), (b)(2).  A fact hearing is necessary only if the claim has an arguable basis in law.  Denson v. T.D.C.J.-I.D., 63 S.W.3d 454, 459 (Tex. App.—Tyler 1999, pet. denied). In this case, the trial court did not hold a fact hearing.  Thus, its basis for determining that Charles’s causes of action were frivolous could not have been because it found they had no arguable basis in fact, but because they had no arguable basis in law.  Id.  The issue as to whether there was an arguable basis in law is a legal question that we review de novo.  Id.; see also In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994). We will examine the types of relief and causes of action Charles pled in her petition to determine if they have an arguable basis in law.

Charles states on her petition that this is a “Petition to Bring Claim Under the Texas Tort Claims Act.”  She also requests $250,000 in compensatory damages under Texas Civil Practice and Remedies Code § 101.021.  Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 1997).  Charles put the “State of Texas” in the style of her case, and she claims in her petition that the parties are five state employees.  A party bringing a cause of action under the Texas Tort Claims Act must sue a governmental unit of the State.  See Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.—Houston [1st Dist.] 1998, no pet.).  Charles failed to do so. Thus, Charles has not stated a claim under the Texas Tort Claims Act.

In addition, Charles states that she attached her step one and step two grievance decisions as Exhibits B and C.  However, the grievance decisions are not in the appellate record, and Charles does not provide in her petition the dates of the grievance decisions or the date she received the written decisions.  See Tex. Civ. Prac. & Rem. Code Ann. § 14.005.  An inmate may not file a claim in state court regarding operative facts for which the grievance system provides the exclusive administrative remedy until she receives a written decision issued by the highest authority provided in the grievance system.  Tex. Gov’t Code Ann. § 501.008(d)(1) (Vernon 2004).  The grievance system provides the exclusive administrative remedy for inmate claims arising under the Texas Tort Claims Act.  See Wallace v. Tex. Dep't of Criminal Justice-Inst'l Div., 36 S.W.3d 607, 611 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).  An examination of the record in this case does not reveal that Charles has filed any claim through the inmate grievance system.

Charles also asserts “requested relief”: (1) violation of the Texas Department of Criminal Justice-Institutional Division’s Offender Visitation Plan; (2) discrimination; (3) prejudice; (4) cruel and unusual punishment giving rise to emotional distress and mental anguish; (5) denial of free association; and (6) an injunction to transfer her to the Texas City Unit and upgrade her status to allow contact visits.  Due to insufficient information in the petition, we find these have no arguable basis in law.

Therefore, the trial court did not abuse its discretion in dismissing Charles’s lawsuit because we find that none of her claims have an arguable basis in law.  We overrule issue two.

ISSUE ONE: DEFAULT JUDGMENT

Charles argues that the trial court erred in dismissing her lawsuit after she had already filed a motion for entry of default judgment.  Under the statute, the trial court could find appellant’s lawsuit frivolous and dismiss it at any time, with or without a motion.  See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2).  We overrule issue one.

ISSUE THREE: DISMISSAL AS TO CHAPTER 14 GENERALLY

Charles argues the trial court erred in dismissing her claim for failure to comply with chapter 14 without specifically stating the legal rule(s).  Chapter 14 of the Texas Civil Practice and Remedies Code grants trial courts special power to summarily dismiss prisoner suits, even in the absence of a hearing.  Compare Tex. Civ. Prac. & Rem. Code Ann. § 14.003 with Villareal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630-31 (Tex. 1999) (dismissal under Texas Rule of Civil Procedure 165a improper without giving notice of intent to dismiss stating grounds).  Thus, we hold the trial court's failure to specifically state the grounds for dismissal is not an abuse of discretion.

Assessing other rules she may have violated, Charles brings two sub-issues: (1) whether the trial court dismissed her claim for failure to meet the 31 day statute of limitations; and (2) whether the clerk erred in returning her pleadings without docketing them.  Because the trial court could have summarily dismissed her claims as frivolous, we need not address these sub-issues.

We overrule issue three.

ISSUE FOUR: WITH OR WITHOUT PREJUDICE

Charles’s dismissal order does not specifically state whether her lawsuit was dismissed with or without prejudice.  Charles argues that her lawsuit should have been dismissed without prejudice. She also argues that if her lawsuit was dismissed without prejudice, she should be allowed to re-file her lawsuit to cure the defects.

Dismissal with prejudice constitutes adjudication on the merits and operates as if the case had been fully tried and decided.  Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991). Dismissal with prejudice would act as a bar to any lawsuit, arising out of the same facts, brought by appellant against appellee.  Lentworth v. Trahan, 981 S.W.2d 720, 723 (Tex. App.—Houston [1st Dist.] 1998, no pet.).  Dismissal with prejudice is improper if appellant was not given an opportunity to amend her petition to cure the defects.  See Hughes v. Massey, 65 S.W.3d 743, 745 (Tex. App.—Beaumont 2001, no pet.).  The trial court clearly dismissed Charles’s lawsuit because it deemed the matter frivolous under section 14.003, which would require dismissal without prejudice. See Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268, 273-74 (Tex. App.—Texarkana 2003, no pet.).  Charles’s lawsuit was also subject to dismissal for failure to use administrative remedies under section 14.005, and dismissal for failure to comply with the conditions in section 14.005 is not a dismissal on the merits.  See Crain v. Prasifka, 97 S.W.3d 867, 870 (Tex. App.—Corpus Christi 2003, pet. denied).  Thus, the proper order for Charles is dismissal without prejudice.  We reform the judgment to specifically provide that the cause is dismissed without prejudice.  See Williams v. Brown, 33 S.W.3d 410, 412 (Tex. App.—Houston [1st Dist.] 2000,  no pet.). However, only after Charles exhausts her administrative remedies and receives a written decision from the highest authority in the grievance system, may she re-file her lawsuit to attempt to cure the defects.  See Tex. Civ. Prac. & Rem. Code Ann. § 14.005; Tex. Gov’t Code Ann. § 501.008(d)(1); McConnell v. Attorney Gen. of Tex., 878 S.W.2d 281, 283 (Tex. App.—Corpus Christi 1994, no writ).  But see Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b)(4), 14.004 (court’s considerations for determining whether a claim is frivolous and requirement for an “Affidavit Related to Previous Filings”).

We sustain issue four.

CONCLUSION

We reform the judgment to state:

THE ABOVE STYLED AND NUMBERED CAUSE IS HEREBY DISMISSED WITHOUT PREJUDICE AS TO THE FOLLOWING REASONS: FAILURE TO STATE CAUSE OF ACTION AND FAILURE TO COMPLY WITH SECTION 14 OF CIVIL PRACTICE AND REMEDIES CODE.

Having overruled issues one, two, and three, and sustained issue four, we affirm the judgment as reformed.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

          (Chief Justice Gray dissenting)

Affirmed as reformed

Opinion delivered and filed February 23, 2005

[CV06]