Muqtasid Abdul Qadir v. Malcom Wise, Justin Willis, Arlene Franco, Cody Miller, and Mohamed Sarhani ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
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No. 02-18-00052-CV
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MUQTASID ABDUL QADIR, Appellant
v.
MALCOM WISE, JUSTIN WILLIS, ARLENE FRANCO,
CODY MILLER, AND MOHAMED SARHANI, Appellees
On Appeal from the 78th District Court
Wichita County, Texas
Trial Court No. 187,261-B
Before Sudderth, C.J.; Gabriel and Pittman, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant Muqtasid Abdul Qadir, an inmate in the Texas Department of
Criminal Justice, filed an in forma pauperis suit pursuant to chapter 14 of the civil
practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 14.002 (West
2017). The trial court dismissed the suit, finding that it was frivolous and that Qadir
failed to comply with chapter 14’s requirements for such suits. Qadir appeals. We
affirm.
I. BACKGROUND
In his suit, Qadir alleged that appellees Malcom Wise and Justin Willis had
unlawfully confiscated property that belonged to him, and he further alleged that the
value of that property totaled $444. Qadir asserted that Wise subsequently initiated a
disciplinary case against him for the possession of contraband. Qadir alleged that he
then filed a step-one grievance against Wise for the wrongful confiscation of his
property.
According to Qadir, appellee Cody Miller conducted the disciplinary hearing
related to the disciplinary case Wise had initiated. Qadir alleged that Miller refused to
consider evidence he had related to the ownership of the confiscated property and
that Miller threatened to increase his punishment if he insisted on reading a written
statement into the record or requested Wise’s presence at the hearing. Further, Qadir
asserted that appellee Arlene Franco had been the grading officer over the disciplinary
case. And he alleged that appellee Mohamed Sarhani handled the step-one grievance
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he had filed and denied him relief, stating that the items that had been confiscated
would not be returned to him. Qadir asserted that appellees in coordination operated
a ring of theft by extortion by which they wrongfully confiscated his personal
property. And he sought damages of $50 per day from each appellee.
In response to Qadir’s suit, appellees moved to dismiss on two independent
grounds. They asserted that Qadir failed to comply with chapter 14’s requirements
governing an inmate’s filing of an in forma pauperis suit, and they also asserted that the
suit was frivolous. See id. §§ 14.003(a), 14.004(a), 14.005(a) (West 2017).
Without holding a hearing, the trial court signed a final judgment dismissing
Qadir’s suit, finding that it was frivolous and that Qadir failed to comply with chapter
14’s requirements. Qadir appeals in a single issue, arguing the trial court erred by
dismissing his suit.
II. STANDARD OF REVIEW
Chapter 14 of the civil practice and remedies code governs all cases filed by an
inmate, except those brought under the family code, in which the inmate has filed an
affidavit or unsworn declaration of inability to pay costs. Id. We review a trial court’s
dismissal of a suit governed by chapter 14 for an abuse of discretion. Brewer v.
Simental, 268 S.W.3d 763, 767 (Tex. App.—Waco 2008, no pet.). If, as in this case, the
trial court dismisses a claim without conducting a hearing, we are limited to reviewing
whether the claim had an arguable basis in law. Smith v. Tex. Dep’t of Crim. Justice–
Institutional Div., 33 S.W.3d 338, 340 (Tex. App.—Texarkana 2000, pet. denied). A
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claim does not have an arguable basis in law if the claim is based on a meritless legal
theory or if the inmate failed to exhaust his administrative remedies. Hamilton v.
Williams, 298 S.W.3d 334, 339 (Tex. App.—Fort Worth 2009, pet. denied). We will
affirm the trial court’s dismissal if it is proper under any legal theory. See Johnson v.
Lynaugh, 796 S.W.2d 705, 706–07 (Tex. 1990).
III. APPLICABLE LAW
A pro se inmate proceeding in forma pauperis must comply with chapter 14’s
procedural requirements, and the inmate’s failure to do so will result in the dismissal
of his suit. See Brewer, 268 S.W.3d at 767.
One procedural requirement for filing a chapter 14 suit is found in section
14.004, which requires the inmate to file a separate affidavit or declaration that
(1) identifies each pro se action, other than one brought under the family code, that he
has previously brought and (2) describes those actions by providing the operative
facts; the case name; the cause number; the court in which each case was filed; the
parties’ names; and the disposition of each case. See Tex. Civ. Prac. & Rem. Code
Ann. § 14.004(a). This supplemental filing “is an essential part of the process by
which courts review inmate litigation.” Hickson v. Moya, 926 S.W.2d 397, 399 (Tex.
App.—Waco 1996, no writ). Thus, “when an inmate does not comply with the
affidavit requirements of Section 14.004, the trial court is entitled to assume the suit is
substantially similar to one previously filed by the inmate and, therefore, frivolous.”
Bell v. Tex. Dept. Crim. Justice-Institutional Div., 962 S.W.2d 156, 158 (Tex. App.—
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Houston [14th Dist.] 1998, no pet.). Accordingly, a trial court may dismiss without
prejudice an inmate’s claim as frivolous when the inmate fails to file the affidavit or
unsworn declaration that section 14.004 requires. See Bright v. Quarterman, No. 10-08-
00140-CV, 2010 WL 3036475, at *1 (Tex. App.—Waco Aug. 4, 2010, no pet.) (mem.
op.).
Another procedural requirement for filing a chapter 14 suit is found in section
14.005. Under section 14.005, before filing suit, an inmate must exhaust the remedies
available through the Texas Department of Criminal Justice’s grievance system as
established under section 501.008 of the Texas Government Code. See Tex. Civ. Prac.
& Rem. Code Ann. § 14.005(a); Tex. Gov’t Code Ann. § 501.008 (West 2012); Crain v.
Prasifka, 97 S.W.3d 867, 869–70 (Tex. App.—Corpus Christi 2003, pet. denied).
Thus, if the inmate’s claim is subject to the grievance system, section 14.005(a)
requires the inmate to file with the trial court (1) an affidavit or unsworn declaration
stating the date that the grievance was filed and the date the written decision was
received by the inmate and (2) a copy of the written decision from the grievance
system. Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a). An inmate’s failure to
comply with section 14.005(a) is grounds for dismissal of his suit. See Bright, 2010 WL
3036475, at *1.
IV. ANALYSIS
Qadir attached to his original petition an affidavit listing the previous lawsuits
in which he had been involved. He listed only four cases, averring that three were
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dismissed with prejudice and that one was dismissed for lack of jurisdiction. But
Qadir did not state the operative facts for any of the prior suits he identified. See Tex.
Civ. Prac. & Rem. Code Ann. § 14.004(a)(2)(A); Chapa v. Livingston, No. 10-09-00273-
CV, 2010 WL 3342018, at *1–2 (Tex. App.—Waco Aug. 25, 2010, no pet.) (mem. op.)
(noting that affidavit of prior filings that fails to state the operative facts for which
relief was sought does not comply with section 14.004(a)). Additionally, in their
motion to dismiss, appellees identified five other cases Qadir had previously filed that
he did not even list in his affidavit of prior filings. See Fuqua v. Huestis, No. 14-10-
00674-CV, 2011 WL 304206, at *2 (Tex. App.—Houston [14th Dist.] Jan. 27, 2011,
no pet.) (mem. op.) (holding appellant’s affidavit of prior filings failed to comply with
section 14.004(a) because it omitted the operative facts and disposition of the cases
listed and failed to include one prior federal lawsuit). Since Qadir failed to comply
with section 14.004(a)’s requirements, the trial court was entitled to assume that his
suit was substantially similar to one he previously filed and, therefore, was frivolous.
See Bell, 962 S.W.2d at 158. Accordingly, since Qadir failed to comply with section
14.004(a), the trial court did not abuse its discretion by dismissing his suit as frivolous.
See Fuqua, 2011 WL 304206, at *2 (“[A] trial court may dismiss an indigent inmate’s
suit as frivolous or malicious when an inmate fails to comply with the statutory
requirements of section 14.004.”).
The trial court also could have dismissed Qadir’s suit for failure to exhaust his
administrative remedies in compliance with section 14.005. In his amended petition,
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Qadir asserted that on January 27, 2017, he filed a step-one grievance regarding the
confiscated property at issue in this suit. He further alleged that on March 10, 2017,
appellee Sarhani responded to the step-one grievance. Qadir supported these
assertions with an affidavit. But nothing in the record shows that Qadir filed a step-
two grievance. To satisfy section 14.005’s exhaustion requirement, an inmate must
file both a step-one and a step-two grievance against each defendant. Morris v.
Milligan, No. 12-14-00332-CV, 2016 WL 5845827, at *5 (Tex. App.—Tyler Sept. 30,
2016, pet. denied) (mem. op.). By failing to properly demonstrate that he filed a step-
two grievance related to the confiscated property at issue here, Qadir failed to show
that he exhausted his administrative remedies pursuant to section 14.005. See
Leachman v. Dretke, 261 S.W.3d 297, 310–11 (Tex. App.—Fort Worth 2008, no pet.).
Accordingly, because Qadir failed to exhaust his administrative remedies under
section 14.005, the trial court did not abuse its discretion by dismissing his suit as
frivolous. See id. (holding that because appellant failed to properly exhaust his
administrative remedies under section 14.005, the trial court did not err by dismissing
appellant’s claims as frivolous).
We overrule Qadir’s sole issue.
V. CONCLUSION
Having overruled Qadir’s sole issue, we affirm the trial court’s judgment. See
Tex. R. App. P. 43.2(a).
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/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: December 20, 2018
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