Bobby Kelly v. Oscar Mendoza ( 2012 )

NUMBER 13-11-00322-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BOBBY KELLY, Appellant,
v.
OSCAR MENDOZA, ET AL., Appellees.
On appeal from the 36th District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Vela, and Perkes
Memorandum Opinion by Justice Perkes
In this inmate litigation, by five issues,1 appellant pro se Bobby Kelly, challenges the
trial court’s “Order and Final Judgment” dismissing his lawsuit against appellees, Oscar
1
Kelly’s five issues are whether: (1) the district court properly determined there is no arguable basis
in law for the suit; (2) Kelly’s factual allegations of an unprovoked beating from prison staff raised a material
issue under the Eighth Amendment of the United States Constitution; (3) Kelly’s factual allegations of
intentional denial of medical care by medical staff raised a material issue under the Eighth Amendment of the
United States Constitution; (4) Kelly’s factual allegations of denial of reasonable safety/protection by prison
staff raised a material issue under the Eighth Amendment of the United States Constitution; and (5) Kelly’s
factual allegations of intentional destruction of authorized property by prison staff raised a material issue under
the Sixth Amendment of the United States Constitution.
Mendoza, Richard Crites, Norris Jackson, Aurelio Ambriz, Evelyn Castro, William Burgin,
Luis Pulido, James Fitts, M.D., Joe Mireles, Ella Chudej, Hilda Silvas, Jeremy Posada,
Joella Puenta, Jason Trevino, and Pamela Thompson. The trial court dismissed Kelly’s
lawsuit with prejudice pursuant to Chapter 14 of the Texas Civil Practices and Remedies
Code. See generally, TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001–.014 (West 2002 &
West Supp. 2011). We affirm the trial court’s order of dismissal.
I. FACTUAL AND PROCEDURAL BACKGROUND2
Acting pro se, Kelly, an inmate in the Texas Department of Criminal Justice,
Institutional Division, sued appellees in forma pauperis, alleging causes of action under 42
U.S.C. §1983, the Texas Constitution, and various statutes. Appellees moved to dismiss
Kelly’s lawsuit pursuant to Civil Practice and Remedies Code sections 14.004 and 14.005,
arguing that Kelly failed to file a proper affidavit of previous filings and failed to demonstrate
his exhaustion of administrative remedies. See TEX. CIV. PRAC. & REM. CODE ANN. §§
14.004–.005 (West 2002 & West Supp. 2011). The trial court concluded appellees’ motion
was meritorious and dismissed Kelly’s lawsuit with prejudice. This appeal followed.
II. ANALYSIS
By his first issue, appellant argues that the trial court erred by granting appellees’
motion to dismiss because its conclusion that there was no basis in law for the suit is
2
Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite
them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See
TEX. R. APP. P. 47.4.
2
erroneous3 and because the suit should not have been dismissed for lack of a proper
affidavit of previous lawsuits.
Appellees moved to dismiss under section 14.004 because Kelly’s affidavit of prior
lawsuits did not satisfy all of the requirements of section 14.004. See id. § 14.004. For
example, appellees argued Kelly’s affidavit omitted the operative facts of each prior suit.
See id. Appellees also moved to dismiss under section 14.005 because Kelly failed to
demonstrate his exhaustion of administrative remedies. See id. § 14.005. In their motion,
appellees argue that in connection with “some nineteen grievances,” Kelly failed to satisfy
various statutory requirements to exhaust his administrative remedies. Appellees attached
a copy of multiple grievance forms that Kelly completed after filing suit as evidence in
support of their motion.
A dismissal under section 14.004 is without prejudice if the litigant can correct the
error in the future by filing a proper affidavit relating to his previous filings. See Thomas v.
Skinner, 54 S.W.3d 845, 847 (Tex. App.—Corpus Christi 2001, pet. denied); see also
Adams v. State, No. 13-11-00173-CV, 2011 WL 4840963, at *5 (Tex. App.—Corpus Christi
Oct. 13, 2011, pet. denied) (mem. op.). A trial court may dismiss a claim with prejudice
under section 14.005 when the failure to exhaust administrative remedies cannot be
corrected. See Scott v. Menchaca, 185 S.W.3d 543, 546 (Tex. App.—Corpus Christi 2006,
no pet.).
In this case, appellant’s brief contains no citations to the record to support his request
for relief on appeal. In addition, appellant presents no argument or authority for the
proposition that the trial court erred by dismissing his claims with prejudice under section
3
The record does not show that the trial court dismissed Kelly’s suit for lack of a basis in law.
3
14.005 for the failure to exhaust administrative remedies. Thus, Kelly’s first issue presents
nothing for appellate review because appellant failed to support this issue with appropriate
argument and citations to the record and legal authority. See TEX. R. APP. P. 38.1(i)
(providing the brief must contain a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record); see also Mansfield State Bank v.
Cohn, 573 S.W.2d 181, 185 (Tex. 1978) (holding pro se litigants must comply with
procedures established by rules notwithstanding the fact they are not licensed attorneys).
Appellant’s first issue is overruled.
In light of our disposition of appellant’s first issue, it is unnecessary for us to reach
Kelly’s second through fifth issues. Appellant has failed to demonstrate that the trial court
erred by dismissing his claims with prejudice pursuant to Chapter 14 of the Civil Practice and
Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.004–.005; see also TEX. R.
APP. P. 47.1; 47.4.
III. CONCLUSION
We affirm the trial court’s judgment.
Gregory T. Perkes
Justice
Delivered and filed the
13th day of September, 2012.
4