Robert C. Morris v. Sherri Milligan ( 2015 )

ACCEPTED
12-14-00332-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
8/18/2015 11:54:20 AM
CATHY LUSK
CLERK
No. 12-14-00332-CV
RECEIVED IN
In the Court of Appeals 12th TYLER,
COURT OF APPEALS
TEXAS
for the Twelfth District of Texas
8/18/2015 11:54:20 AM
CATHY S. LUSK
At Tyler, Texas Clerk
___________________________________
ROBERT C. MORRIS, 8/18/2015
Appellant,
v.
SHERRI MILLIGAN, BRYAN GORDY, & CHRISTY HOISINGTON,
Appellees.
____________________________________
On Direct Appeal from the 349th Judicial District
Court of Anderson County, Texas
Trial Court Cause No. 349-6270
____________________________________
APPELLEES’ BRIEF
____________________________________
KEN PAXTON VERONICA L. CHIDESTER*
Attorney General of Texas Assistant Attorney General
CHARLES E. ROY OFFICE OF THE ATTORNEY
First Assistant Attorney General GENERAL
P.O. Box 12548
JAMES E. DAVIS Austin, Texas 78711-2548
Deputy Attorney General Tel: (512) 463-2080
for Civil Litigation Fax: (512) 936-2109
KAREN D. MATLOCK Counsel for Appellees
Chief, Law Enforcement *Attorney-In-Charge
Defense Division
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES & COUNSEL
Appellant:
Robert C. Morris TDCJ No. 1311083
TDCJ – Smith Unit
1313 CR 19
Lamesa, Texas 79331
Plaintiff Pro Se
Appellees:
Sherri Milligan, Bryan Gordy, & Christy Hoisington
Beto Unit
1391 FM 3328
Tennessee Colony, Texas 75880
Attorney for Appellees:
Veronica L. Chidester
Assistant Attorney General
State Bar No. 24082161
Law Enforcement Defense Division
P. O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 463-2080 / (512) 936-2109 Fax
ii
TABLE OF CONTENTS
Page
Identity of Parties and Counsel…………………………………………………….ii
Table of Contents ………………………………………………………………....iii
Index of Authorities………………………………………………………………..v
Statement of the Case………………………………………………………………1
Issues Presented………………………………………………………………….....2
I. Whether the court below abused its discretion in dismissing Appellant’s
claim for failure to comply with § 14.004 of the Texas Civil Practice and
Remedies Code in light of the fact that a trial court does not abuse its
discretion if it reaches the right result, even where that result is based on
upon an incorrect legal conclusion.…………………………....................2
II. Whether the record supports dismissal of Appellant’s suit for failure to
comply with § 14.005 by not properly exhausting all administrative
remedies prior to filing suit………………………………………………2
Statement of Facts………………………………………………………………......2
Summary of the Argument………………………………………………………….3
Standard of Review………………………………………………………………....3
Argument…………………………………………………………………………....4
1. The court below did not abuse its discretion in dismissing Appellant’s
claim because even a decision based on an incorrect legal conclusion
is justified when the record supports the decision on other proper
grounds.……………………………………………………………………….4
2. Appellant Morris failed to comply with § 14.005 by not properly
exhausting all administrative remedies prior to filing suit.……………5
iii
Conclusion………………………………………………………………………….8
Notice of Electronic Filing...……………………………………………………....10
Certificate of Compliance………………………………………………………….10
Certificate of Service……………………………………………………………....10
iv
INDEX OF AUTHORITIES
Cases Page
Craddock v. Sunshine Bus Lines,
133 S.W.2d 124, 126 (1939) ............................................................................... 3
Hawthorne v. Guenther,
917 S.W.2d 924, 931 (Tex.App.-Beaumont 1996, writ denied)........................... 4
Hickson v. Moya,
926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ) .................................... 3
Jones v. Strayhorn,
159 Tex. 421, 321 S.W.2d 290 (1959). ............................................................3, 4
Leachman v. Dretke,
261 S.W.3d 297, 310-11 (Tex.App.—Ft. Worth, 2008) .....................................6, 8
Lilly v. Northrep,
100 S.W.3d 335, (Tex.App.—San Antonio, 2002) ................................................ 8
Luxenberg v. Marshall,
835 S.W.2d 136, 141–42 (Tex.App.-Dallas 1992, no writ)) ................................. 4
Riddle v. TDCJ-ID,
13-05-054-CV, 2006 WL 328127 (Tex. App.—Corpus Christi Feb. 9, 2006, pet.
denied) ................................................................................................................ 6
Sells v. Drott,
259 S.W.3d 194, 198 (Tex. App.—Tyler 2007) .................................................... 3
Wend. v. Asher,
162 F.3d 887, 891 (5th Cir. 1998) ...................................................................... 6
v
Wilson v. Dewitt,
05-04-00666-CV, 2006 WL 2257700, at *3 (Tex. App.—Dallas Aug. 8, 2006, no
pet.) .................................................................................................................... 4
Woodford v. Ngo,
548 U.S. 81, 90-91(2006) .................................................................................... 6
Rules, Codes, and Statutes
TEX. CIV. PRAC. & REM. CODE § 14.004 ....................................................... passim
TEX. CIV. PRAC. & REM. CODE § 14.005 ................................................... passim
TEX. CIV. PRAC. & REM. CODE § 14.005(b) ............................................................ 7
vi
ROBERT C. MORRIS,
Appellant,
v.
SHERRI MILLIGAN, BRYAN GORDY, & CHRISTY HOISINGTON,
Appellees.
____________________________________
On Direct Appeal from the 349th Judicial District
Court of Anderson County, Texas
Trial Court Cause No. 6270
____________________________________
APPELLEES’ BRIEF
____________________________________
TO THE HONORABLE JUSTICES OF THE TWELFTH COURT OF APPEALS,
TYLER:
Appellees Sherri Milligan, Bryan Gordy, & Christy Hoisington, through the
Office of the Attorney General, submit this brief in support of the trial court’s
judgment dismissing this case. Appellees ask this Court to affirm the lower court’s
dismissal.
STATEMENT OF THE CASE
Appellant, Robert C. Morris, proceeding pro se and in forma pauperis, filed
suit in the 349th Judicial District Court of Anderson County, Texas. C.R. at 6. During
the time of the events giving rise to his lawsuit, Appellant was an inmate housed at
the Beto Unit of the Texas Department of Criminal Justice (“TDCJ”) in Tennessee
Colony, Texas. C.R. at 6. On January 29, 2009, Appellant filed his Original Petition
1
naming Sherri Milligan, Bryan Gordy, & Christy Hoisington as Defendants. C.R. at
6-7.
Appellees answered and filed a motion to dismiss pursuant to Chapter 14. C.R.
at 30 & 69. On October 23, 2014, the Honorable Judge W. Edwin Denman granted
Appellees’ motion to dismiss and issued a final judgment dismissing the case. C.R.
at 109. On November 6, 2014, Appellant filed his Notice of Appeal. C.R. at 114.
ISSUE PRESENTED
I. Whether the court below abused its discretion in dismissing Appellant’s claim
for failure to comply with § 14.004 of the Texas Civil Practice and Remedies
Code in light of the fact that a trial court does not abuse its discretion if it
reaches the right result, even where that result is based on upon an incorrect
legal conclusion.
II. Whether the record supports dismissal of Appellant’s suit for failure to
comply with § 14.005 by not properly exhausting all administrative remedies
prior to filing suit
STATEMENT OF FACTS
Appellant alleges claims of confiscation and destruction of property.
Specifically, Plaintiff alleges his property was lost or destroyed during a lock-down
of the prison. C.R. at 7-8. Appellant seeks compensatory and nominal damages. C.R.
at 9-10. Plaintiff also seeks $600 from each Defendant in punitive damages. Id.
Appellant’s suit was dismissed for failure to comply with Chapter 14 of the
Texas Civil Practice and Remedies Code. C.R. at 109.
2
SUMMARY OF THE ARGUMENT
The record supports the trial court’s judgment in dismissing Appellant’s suit
pursuant to Chapter 14. Appellant failed to comply with § 14.005 of the Texas Civil
Practice and Remedies Code by not properly exhausting all administrative remedies
before filing suit. The court below did not abuse its discretion and the judgment
should be affirmed.
STANDARD OF REVIEW
An appellate court should review the dismissal of a suit pursuant to Chapter
14 for an abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—
Waco 1996, no writ). “Abuse of discretion is determined by whether the court acted
without reference to any guiding principles.” Id. (citing Craddock v. Sunshine Bus
Lines, 133 S.W.2d 124, 126 (1939)). “The mere fact or circumstance that a trial
judge may decide a matter within his discretionary authority in a manner different
from what an appellate judge would decide if placed in a similar circumstance does
not demonstrate that an abuse of discretion has occurred.” Jones v. Strayhorn, 159
Tex. 421, 321 S.W.2d 290 (1959).
Even though a trial court gives an incorrect legal reason for its decision, the
trial court's assignment of a wrong reason is not automatically reversible error. Sells
v. Drott, 259 S.W.3d 194, 198 (Tex. App.—Tyler 2007) review granted, judgment
rev'd on other grounds, 259 S.W.3d 156 (Tex. 2008) (citing Hawthorne v. Guenther,
3
917 S.W.2d 924, 931 (Tex.App.-Beaumont 1996, writ denied); Luxenberg v.
Marshall, 835 S.W.2d 136, 141–42 (Tex.App.-Dallas 1992, no writ)).
ARGUMENT
1. The court below did not abuse its discretion in dismissing Appellant’s
claim because even a decision based on an incorrect legal conclusion is
justified when the record supports the decision on other proper grounds.
On the record on appeal, the trial court could conclude that Appellant Morris
failed to submit a certified copy of his inmate trust account and failed to exhaust
administrative remedies before filing suit. Although the trial court dismissed
Appellant’s claim based on failure to provide an affidavit or unsworn declaration
relating to previous filings which complied with § 14.004 of the Texas Civil Practice
and Remedies Code, the record on appeal reflects other grounds which provide a
proper basis for dismissal.
Even where a trial court gives an incorrect legal reason for its decision, the
trial court’s assignment of a wrong reason is not automatically reversible error. Sells,
259 S.W.3d at 198 (citations omitted). A trial court does not abuse its discretion if it
reaches the right result, even where that result is based upon an incorrect legal
reason. Id. Thus, “review of the trial court’s order focuses on the result and not the
trial court’s reasoning . . .” Wilson v. Dewitt, 05-04-00666-CV, 2006 WL 2257700,
at *3 (Tex. App.—Dallas Aug. 8, 2006, no pet.).
4
The trial court dismissed Appellant Morris’ suit for failure to provide an
affidavit or unsworn declaration relating to previous filings which complied with §
14.004 of the Texas Civil Practice and Remedies Code. However, as Appellant
points out in his brief, Appellant did in fact attach a declaration of previous filings
to his Original Complaint. C.R. at 11.The declaration complied with the
requirements of Chapter 14 by identifying the style, cause number, parties, and
operative facts of previous suits. Id. As a result, the trial court was not correct in
reasoning that Appellant had not complied with § 14.004.
However, the record reflects Appellant’s failure to properly exhaust all
administrative remedies prior to filing suit, as required by § 14.005 of the Texas
Civil Practice and Remedies Code. The record supports a proper basis for dismissal
of Appellant Morris’ suit, even though those reasons were not expressed in the trial
court’s order.
2. Appellant Morris failed to comply with § 14.005 by not properly
exhausting all administrative remedies prior to filing suit.
Appellant Morris failed to properly exhaust his claims against Appellees
Gordy Hoisington, and Milligan by not providing notice of his claims in both his
Step 1 and Step 2 TDCJ grievances. Under Chapter Fourteen, an inmate who files
any claim subject to the administrative grievance procedure within the TDCJ, must
exhaust all administrative remedies prior to filing suit. Failure to exhaust all
5
administrative remedies requires a court to dismiss the suit. TEX. CIV. PRAC. &
REM. CODE § 14.005.
TDCJ currently provides a “two-step procedure for presenting administrative
grievances.” Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998). Prisoners begin
the administrative grievance procedure by filing a Step 1 grievance. Id. If the
prisoner is dissatisfied with the response to the Step One grievance, they may appeal
the Step One grievance by filing a Step 2 grievance. Id. For purposes of Chapter 14,
the exhaustion of administrative remedies requirement “requires the proper
exhaustion of remedies.” Leachman, 261 S.W.3d at 310-11; see also Woodford v.
Ngo, 548 U.S. 81, 90-91(2006) (“Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural rules because no adjudicative system
can function effectively without imposing some orderly structure on the course of
its proceedings.”). Proper exhaustion requires both the timely filing of grievances
and exhaustion as to all claims and all parties. Id.; see also Riddle v. TDCJ-ID, 13-
05-054-CV, 2006 WL 328127 (Tex. App.—Corpus Christi Feb. 9, 2006, pet. denied)
In his affidavit of exhaustion of remedies, Appellant Morris states that he
exhausted his administrative remedies by filing a Step 1 grievance on November 12,
2008, and a Step 2 grievance on December 1, 2008. C.R. at 12. However, Appellant
failed to file a Step 1 grievance against Appellee Gordy. Appellant failed to file a
6
Step 2 grievance against Appellee Milligan. Further, Appellant failed to file any
grievance whatsoever against Appellee Hoisington.
Appellant failed to mention Appellee Gordy or Hoisington in his Step 1
grievance. In the Step 1 grievance, Appellant complains that Appellee Milligan
wrongly confiscated and destroyed some of his property, but never mentions
Appellees Gordy or Hoisington. Since Appellant brings claims against Appellees
Gordy and Hoisington, Appellant was required to file a Step 1 grievance addressing
his complaints against them. Since Appellant failed to file a Step 1 grievance against
Appellees Gordy and Hoisington, Appellant has not exhausted his claims against
Gordy and Hoisington as required by §14.005. Thus, the record support dismissal of
claims against Appellees Gordy and Hoisington.
Appellant failed to mention Appellee Hoisington or Milligan in his Step 2
grievance also. In the Step 2 grievance, Appellant complained that Appellee Gordy
did not address all of the claims raised in Appellant’s Step 1 grievance. Appellant
then described the points that he believed Appellee Gordy failed to address with
Gordy’s Step 1 response, but failed to mention Appellee Hoisington or Milligan.
Rather than alerting the Step 2 grievance officials about Appellee Milligan’s
allegedly wrongful conduct, Appellant instead complains that Appellee Gordy’s
investigation was inadequate. Consequently, this Step 2 is insufficient to exhaust
any claims against Appellee Hoisington or Milligan.
7
To satisfy the exhaustion requirement of §14.005, an inmate must file both a
Step 1 and Step 2 grievance against each party. Leachman v. Dretke, 261 S.W.3d
297, 311 (Tex.App.—Ft. Worth, 2008). Moreover, every claim that an inmate brings
against a defendant must have been raised in both the Step 1 and Step 2 portions of
the TDCJ grievance. Id. If an inmate fails to fulfill the procedural requirements for
inmate litigation, the Court must dismiss the inmate’s suit. Lilly v. Northrep, 100
S.W.3d 335, (Tex.App.—San Antonio, 2002).
In this case, Appellant failed to file a Step 1 grievance against Appellee
Gordy, a Step 2 grievance against Appellee Milligan, and any grievance against
Appellee Hoisington. Thus, the record supports a proper basis for dismissal based
on Appellant Morris’ failure to properly exhaust as to each Appellee.
CONCLUSION
The trial court did not abuse its discretion in dismissing Appellant’s suit
pursuant to Chapter 14. The judgment should be affirmed.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
8
KAREN D. MATLOCK
Assistant Attorney General
Chief, Law Enforcement Defense Division
/s/ Veronica Chidester
VERONICA CHIDESTER
Assistant Attorney General
Attorney-in-Charge
State Bar No.24082161
P. O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 463-2080 / (512) 936-2109 Fax
Veronica.Chidester@texasattorneygeneral.gov
ATTORNEYS FOR APPELLEES
9
NOTICE OF ELECTRONIC FILING
I, VERONICA L. CHIDESTER, Assistant Attorney General of Texas, do hereby
certify that I have electronically submitted for filing, a true and correct copy of the above
and foregoing Brief in accordance with the electronic filing system for the Twelfth Court
of Appeals on this the 18th day of August, 2015.
/s/ Veronica L. Chidester
VERONICA L. CHIDESTER
Assistant Attorney General
RULE 9.4(I) CERTIFICATE OF COMPLIANCE
I certify that this computer-generated document, accounting for Rule 9(i)(1)’s
inclusions and exclusions, is 1,657 words, as calculated by Microsoft Word 2010, the
computer program used to prepare this document.
/s/ Veronica L. Chidester
VERONICA L. CHIDESTER
Assistant Attorney General
CERTIFICATE OF SERVICE
I, VERONICA L. CHIDESTER, Assistant Attorney General of Texas, certify that
a true and correct copy of the above and foregoing BRIEF OF APPELLEES has been
served by placing it in the United States Mail, postage prepaid, on August 18, 2015,
addressed to:
Robert C. Morris, TDCJ No. 1311083
TDCJ – Smith Unit
1313 Cr 19
Lamesa, Texas 79331
Plaintiff Pro Se
/s/ Veronica L. Chidester
VERONICA L. CHIDESTER
Assistant Attorney General
10