anthony-deshaun-johnson-v-ronald-s-ivey-lieutenant-allred-unit-high ( 2012 )


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  •                          COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-11-00350-CV
    ANTHONY DESHAUN JOHNSON                                             APPELLANT
    V.
    RONALD S. IVEY (LIEUTENANT,                                         APPELLEES
    ALLRED UNIT HIGH SECURITY),
    LAWRENCE D. ZEISLOFT
    (SARGENT, ALLRED UNIT HIGH
    SECURITY), AND DANIEL A. LAKIN
    (CORRECTIONAL OFFICER,
    ALLRED UNIT HIGH SECURITY)
    ----------
    FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
    ----------
    MEMORANDUM OPINION1
    ----------
    I. Introduction
    Appellant Anthony Deshaun Johnson, an inmate at the James V. Allred
    Unit of the Texas Department of Criminal Justice (TDCJ), appeals the trial court’s
    dismissal of his suit with prejudice. He contends in three issues that the trial
    1
    See Tex. R. App. P. 47.4.
    court erred by (1) dismissing his suit for failure to exhaust administrative
    remedies, (2) not conducting a hearing, and (3) dismissing the suit with prejudice.
    We affirm.
    II. Factual Background
    This appeal follows Johnson’s suit against several TDCJ employees in
    which he alleges the employees have not honored his medical work restrictions.
    Johnson wrote to the Allred Unit Health Administrator on September 4, 2009,
    asking why he was not being given medical accommodations for his back and
    wrist injuries. Johnson filed a Step 1 Grievance that same day, which stated as
    follows:
    This grievance is being f[]iled as a result of having reported
    ADA complaint matters to the Allred Unit Senior Warden E. C.
    Williams[2] and having submitted a Sick Call to have my injury
    evalua[t]ed and treated, as well as be examined and issued
    appropriate medical restrictions to prevent injury to others and
    myself where the Supervising Correctional Officer seem[s] not to
    understand and adhere to compli[an]ce with the ADA in
    appropriately accom[mo]dating me according to my disability which
    was timely and properly declared upon entry.
    Because of the indifference and disregard of my disabled
    status and its interference with one or more of life’s major functions
    and otherwise hinders and impedes my ability to perform certain
    work functions wh[i]ch Security Staff use their authority to have me
    compel to perform them anyway in spite of the risk to my physical
    welfare and safety, as no restriction[s] are reflected on the work
    roster to protect me from d[a]ngerous assignments.
    And with this known I seek the relief as hereinafter sought.
    ...
    2
    Williams is not a party to this appeal.
    2
    I seek to have my rights under the ADA fully adhered to and
    respected by the Administration and Security. For fa[i]ling to
    accom[mo]date my disability has placed me at risk I do not wish to
    continue to face and be subjected to by Security wh[ic]h uses their
    authority to intimidate and threaten me which I seek to stop. I further
    need med restriction change of work assignment.
    TDCJ investigated and responded to Johnson’s Step 1 Grievance on
    September 23, 2009. The response stated:
    The investigation of this grievance is complete. You were
    seen by the medical department on 9-16-09, and restrictions of no
    lifting over 25 pounds, and no bending at the waist, were added to
    your HSM-18. However, you may still be worked within your
    restrictions at the job assignment you are currently assigned to. This
    issue is resolved. No further action is warranted.
    On October 1, 2009, Johnson filed a Step 2 Grievance, appealing the
    response to his Step 1 Grievance. He again asserted violations of his ADA rights
    but added allegations of discrimination based on disability and race without
    identifying dates of the alleged violations.     TDCJ responded to the Step 2
    Grievance on December 2, 2009, stating that the Step 1 response was
    appropriate.   TDCJ further added that Johnson’s health concerns had been
    addressed by qualified health care providers both prior to and after the Step 1
    Grievance.
    Johnson filed this lawsuit in January 2010, naming Appellees Ronald S.
    Ivey, Lawrence D. Zeisloft, and Daniel A. Lakin as defendants. Johnson alleged
    that Appellees were aware of his “injuries, a[i]lments, and disabilities,” as well as
    his medical restrictions, but compelled him to perform work assignments that he
    should not have been compelled to perform. Johnson specifically identified work
    3
    assignments that he was compelled to perform on September 20 and 29, 2009,
    and he alleged that Appellees were aware of his limitations before those dates.
    Johnson also contended that Appellees acted in a retaliatory and discriminatory
    manner towards him after he submitted the grievance. Johnson asserted causes
    of action for discrimination based on race and disability, denial of equal
    protection and his civil rights, and violations of the Americans with Disabilities
    Act.
    Ivey, Zeisloft, and Lakin filed original and amended answers and a motion
    to dismiss Johnson’s lawsuit as frivolous under civil practice and remedies code
    chapter fourteen, and Johnson filed a response.       The trial court granted the
    motion to dismiss without conducting a hearing and dismissed all claims with
    prejudice due to Johnson’s failure to exhaust all administrative remedies.
    III. Chapter Fourteen of the Texas Civil Practice and Remedies Code
    Chapter fourteen applies to this case and sets forth the procedural
    requirements an inmate must satisfy when filing suit in a district court along with
    an unsworn declaration of indigency.         Tex. Civ. Prac. & Rem. Code Ann.
    §§ 14.002, .004 (West Supp. 2011), §§ 14.005–.006 (West 2002); see also Lilly
    v. Northrep, 
    100 S.W.3d 335
    , 336 (Tex. App.—San Antonio 2002, pet. denied). If
    the inmate fails to comply with chapter fourteen’s requirements, the suit will be
    dismissed. 
    Lilly, 100 S.W.3d at 336
    (citing Bell v. Tex. Dep’t of Criminal Justice–
    Institutional Div., 
    962 S.W.2d 156
    , 158 (Tex. App.—Houston [14th Dist.] 1998,
    pet. denied). A trial court may dismiss an inmate’s claim upon finding that a
    4
    lawsuit is malicious or frivolous. Tex. Civ. Prac. & Rem. Code Ann. § 14.003
    (West 2002). In making this determination, 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 in 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.
    
    Id. § 14.003(b).
    IV. Standard of Review
    We review a dismissal under chapter fourteen for an abuse of discretion.
    Bishop v. Lawson, 
    131 S.W.3d 571
    , 574 (Tex. App.—Fort Worth 2004, pet.
    denied).   To determine whether a trial court abused its discretion, we must
    decide whether the trial court acted without reference to any guiding rules or
    principles; in other words, we must decide whether the act was arbitrary or
    unreasonable. Downer v. Aquamarine Operators, Inc., 
    701 S.W.2d 238
    , 241–42
    (Tex. 1985), cert. denied, 
    476 U.S. 1159
    (1986).
    When an inmate’s lawsuit is dismissed as frivolous for having no basis in
    law or in fact, but no fact hearing is held, our review focuses on whether the
    inmate’s lawsuit has an arguable basis in law. See Tex. Civ. Prac. & Rem. Code
    Ann. § 14.003; Leachman v. Dretke, 
    261 S.W.3d 297
    , 304 (Tex. App.—Fort
    Worth 2008, no pet.) (op. on reh’g). A claim has no arguable basis in law if the
    inmate has failed to exhaust his administrative remedies. Retzlaff v. Tex. Dep’t
    5
    of Criminal Justice, 
    94 S.W.3d 650
    , 653 (Tex. App.—Houston [14th Dist.] 2002,
    pet. denied).
    V. Analysis
    Johnson argues in three issues that the trial court abused its discretion in
    dismissing his lawsuit with prejudice without first conducting a hearing.
    A. Failure to Exhaust Administrative Remedies
    In his first issue, Johnson asserts that the trial court abused its discretion
    by dismissing his lawsuit for failure to exhaust administrative remedies.
    Chapter fourteen requires that Johnson prove his compliance with
    grievance procedures before seeking judicial review. Tex. Civ. Prac. & Rem.
    Code Ann. § 14.005; see Tex. Gov’t Code Ann. § 501.008(d) (West 2004); Smith
    v. Tex. Dep’t of Criminal Justice–Institutional Div., 
    33 S.W.3d 338
    , 341 (Tex.
    App.—Texarkana 2000, pet. denied).           Government code section 501.008(d)
    prevents an inmate from filing a claim in state court “regarding operative facts for
    which the grievance system provides the exclusive administrative remedy until”
    the inmate receives a decision from the highest authority within the grievance
    system or the 180th day after the grievance is filed if the inmate has not received
    a response from the highest authority within the grievance system. Tex. Gov’t
    Code Ann. § 501.008(d). “Allegations of reprisals by TDCJ employees against
    inmates for filing grievances or lawsuits, or other inmate complaints about TDCJ
    employee actions, are . . . subject to the grievance procedure.” 
    Leachman, 261 S.W.3d at 308
    .
    6
    An inmate fails to exhaust administrative remedies when the state court
    petition is based on different operative facts than those alleged in the grievance.
    See Wolf v. Tex. Dep’t of Criminal Justice, Institutional Div., 
    182 S.W.3d 449
    , 451
    (Tex. App.—Texarkana 2006, pet. denied) (“Wolf’s grievance does not address
    the issues he brought in his civil petition, and we cannot say he either sought or
    received a final administrative decision on those issues.”). An inmate also fails to
    exhaust administrative remedies by failing to identify in the grievance the persons
    against whom the inmate is making a claim. See 
    Leachman, 261 S.W.3d at 311
    (noting that grievance did not mention two of the appellees by name and holding
    that Leachman therefore failed to exhaust administrative remedies as to those
    appellees); Riddle v. TDCJ-ID, No. 13-05-00054-CV, 
    2006 WL 328127
    , at *2
    (Tex. App.—Corpus Christi Feb. 9, 2006, pet. denied) (mem. op.) (“Riddle did not
    exhaust the grievance procedures for those individuals named in the claim who
    were not named in his grievance.”).
    The trial court did not abuse its discretion by determining that Johnson
    failed to exhaust his administrative remedies.        First, except for his ADA
    allegation, Johnson’s Step 1 Grievance did not include factual assertions relating
    to any other cause of action in his original petition.3 See 
    Wolf, 182 S.W.3d at 3
           Attached to Johnson’s appellate brief is an additional Step 1 Grievance
    that he later filed on October 9, 2009. That grievance form, however, was not
    presented to the trial court and is not part of the appellate record. See Tex.
    R. App. P. 34.1 (providing that the appellate record consists of the clerk’s record
    and, when necessary, the reporter’s record). We are thus precluded from
    considering it. See Walp v. Williams, 
    330 S.W.3d 404
    , 407–08 (Tex. App.—Fort
    Worth 2010, no pet.).
    7
    451. Inmates are not required to identify specific causes of action and should
    instead focus on identifying the operative facts at issue, see Fernandez v.
    T.D.C.J., 
    341 S.W.3d 6
    , 12 (Tex. App.—Waco 2010, no pet.), but Johnson’s
    Step 1 Grievance does not include any factual assertions beyond a request for
    accommodation of his physical limitations.        Second, Johnson also did not
    exhaust administrative remedies concerning his ADA complaint because he did
    not identify any of the individual appellees in the Step 1 Grievance.           See
    
    Leachman, 261 S.W.3d at 311
    (holding Leachman did not exhaust administrative
    remedies as to appellees not named in his grievance); Riddle, 
    2006 WL 328127
    ,
    at *2 (same). Moreover, the operative facts alleged in Johnson’s original petition
    occurred on September 20 and 29, 2009, when Lakin and Zeisloft allegedly
    compelled him to perform work assignments that he should not have been
    compelled to perform because of his medical restrictions. Those alleged actions
    necessarily occurred after Johnson filed his Step 1 Grievance on September 4,
    2009, and could not have been part of the grievance. See generally 
    Wolf, 182 S.W.3d at 451
    (noting difference between issues alleged in grievance and
    original petition).
    Thus, the record does not establish that the trial court abused its discretion
    by determining that Johnson did not exhaust his administrative remedies for all
    causes of action alleged in his original petition.     See generally Champion v.
    State, No. 12-11-00167-CV, 
    2012 WL 344415
    , at *2 (Tex. App.—Tyler Jan. 31,
    2012, no pet.) (mem. op.) (“A trial court does not abuse its discretion if it
    8
    dismisses a lawsuit that does not include a showing that the inmate has
    exhausted his administrative remedies or a showing that the lawsuit was filed
    timely.”). We therefore overrule Johnson’s first issue.
    B. Failure to Hold Hearing
    Johnson contends in his second issue that the trial court should have
    conducted a hearing on Appellee’s motion to dismiss because a hearing on the
    facts would have allowed him to prove that he had in fact exhausted all
    administrative remedies. However, section 14.003(c) provides in relevant part
    that the trial court “may hold a hearing.” Tex. Civ. Prac. & Rem. Code Ann.
    § 14.003(c) (emphasis added). “The plain language of the statute indicates that
    the trial court’s determination to hold a hearing on a chapter 14 motion to dismiss
    is discretionary.” Hamilton v. Pechacek, 
    319 S.W.3d 801
    , 808 (Tex. App.—Fort
    Worth 2010, no pet.) (citation omitted).     Johnson argues that he could have
    presented “off the record evidence” that he exhausted his administrative
    remedies.   However, Johnson was given notice of the date that Appellee’s
    motion to dismiss would be submitted without an evidentiary hearing, and
    Johnson filed a written response to the motion. Johnson could have presented
    any additional evidence along with his response. Thus, the record does not
    support Johnson’s contention that the trial court abused its discretion by not
    conducting an evidentiary hearing on Appellee’s motion to dismiss. We therefore
    overrule Johnson’s second issue.
    9
    C. Dismissal With Prejudice Proper
    In his final issue, Johnson argues that the trial court abused its discretion
    by dismissing his lawsuit with prejudice.       When reviewing a dismissal with
    prejudice under chapter fourteen, we consider whether the inmate could correct
    the error through a more specific pleading. See Hickman v. Adams, 
    35 S.W.3d 120
    , 124 (Tex. App.—Houston [14th Dist.] 2000, no pet.).              Dismissal with
    prejudice is improper only if the plaintiff’s failure can be remedied. 
    Id. Here, Johnson’s
    error cannot be remedied. An inmate has fifteen days
    after the date of the complained-of incident to complete a Step 1 Grievance and
    forward it to the unit grievance investigator. 
    Leachman, 261 S.W.3d at 310
    ; 
    Wolf, 182 S.W.3d at 450
    –51.       The incidents at issue in Johnson’s original petition
    occurred on September 20 and 29, 2009. Johnson must have then filed a Step 1
    Grievance within fifteen days of those dates and prosecuted his grievance
    through a decision by the highest authority within the grievance system, but he
    failed to do so. See 
    Leachman, 261 S.W.3d at 310
    ; 
    Wolf, 182 S.W.3d at 450
    –51;
    see also Tex. Gov’t Code Ann. § 501.008(d); Tex. Civ. Prac. & Rem. Code Ann.
    § 14.005. Johnson cannot therefore cure his failure to exhaust the available
    administrative remedies by pleading amendment, and the trial court did not
    abuse its discretion by dismissing his lawsuit with prejudice.          We overrule
    Johnson’s third issue.
    10
    VI. Conclusion
    Having overruled each of Johnson’s three issues, we affirm the trial court’s
    order of dismissal and final judgment.
    ANNE GARDNER
    JUSTICE
    PANEL: GARDNER, WALKER, and MEIER, JJ.
    DELIVERED: June 7, 2012
    11