Ronald Murray v. Polk County Sheriff Department, Polk County Sheriff, Polk County District Attorney, Mayor of Onalaska, Onalaska City Manager, Bill Roy, Greg Finkenbinder and Bud Warren ( 2021 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00200-CV
__________________
RONALD MURRAY, Appellant
V.
POLK COUNTY SHERIFF DEPARTMENT, POLK COUNTY SHERIFF,
POLK COUNTY DISTRICT ATTORNEY, MAYOR OF ONALASKA,
ONALASKA CITY MANAGER, BILL ROY, GREG FINKENBINDER AND
BUD WARREN, Appellees
__________________________________________________________________
On Appeal from the 411th District Court
Polk County, Texas
Trial Cause No. CIV33805
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MEMORANDUM OPINION
Pro se appellant Ronald Murray appeals from the trial court’s dismissal of his
lawsuit without prejudice pursuant to Chapter 14 of the Texas Civil Practice and
Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014. We affirm
the trial court’s judgment.
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On July 9, 2020, Murray, an inmate in the Beto I Unit, filed a pro se petition
against the Polk County Sheriff’s Department, the Polk County Sheriff, the Polk
County District Attorney, the Mayor of Onalaska, the City Manager of
Livingston/Onalaska, Bill Roy, Greg Finkenbinder, and Bud Warren 1 under the
Texas Theft Liability Act and 42 U.S.C. section 1983. 2 Murray alleged that “[t]he
Defendant(s), individually and/or collectively, acquired the Plaintiff[’]s personal
business property and his home (27 foot travel trailer), without the express or implied
permission of the plaintiff and either sold, kept, or pawned said property with the
intent to permanently deprive the plaintiff of his property.” According to Murray,
the value of his travel trailer stolen by Appellees was approximately $25,000, and
the value of his personal property inside the travel trailer stolen by Appellees was
more than $45,000. His petition sought compensatory and punitive damages,
declaratory relief, and attorney’s fees.
According to the clerk’s record, several weeks after he filed his original
petition, Murray also filed documents he styled as a Motion to Proceed In Forma
1 According to the appellate record, at the time of the trial court’s dismissal of
his claims, Murray had not yet requested service of his suit on the Defendants, and
it does not appear that Murray ever served the Defendants with the suit or with a
copy of his appeal. And no appellate briefs were filed by Defendant-Appellees.
2 In his petition he does not state which specific statutes or laws he relies upon
for relief. However, in his cover letter to the district court clerk wherein he enclosed
his petition for filing he describes the petition as an “original civil suit petition
pursuant to the Texas Theft Liability Act (TTLA) and 42 U.S.C. 1983[.]” .
2
Pauperis, a Declaration in Support of Motion to Proceed In Forma Pauperis with a
statement of his inmate trust fund account, and he also filed a document he styled as
Declaration Relating to Previous Filings. In his Declaration Relating to Previous
Filings, he stated as follows:
[] I have never had a civil case that I personally filed dismissed as
frivolous, malicious or for failure to state a claim upon which relief can
be granted.
[] Approximately 25 years ago, I filed a civil rights suit, pursuant to 42
U.S.C. 1983 for 1st Amendment violations related to my religion,
against the Arizona Department of Corrections (Murray v. AZ Doe) in
which the case was settled out of court and I was allowed my religious
literature and to practice in prison.
[] Approximately 15 years ago, I filed a civil rights suit, pursuant to 42
U.S.C. 1983 for conditions of confinement against the Edwards County
Sheriff[’]s Dept. (Murray v. Edwards Co. Sheriff[’]s Dept., et. al.) The
defendants hired a multimillion dollar law firm of Shook, Hardy &
Bacon. After 4 years of litigation, the pro se plaintiff succumbed to a
loss by summary judgment. No strike was given against the pro se
litigant, as the case had merit. The case was filed in the Federal District
Court for the District of Kansas.
[] I have filed no other actions.3
The trial court judge signed an order dismissing, without prejudice, Murray’s
claims as frivolous stating that he was not in compliance with Chapter 14 because
he:
3 In his Declaration Relating to Previous Filings, Murray also stated that his
current civil action concerned the “theft of everything I own and the Texas Theft
Liability Act.” He also stated that the current suit was not subject to the grievance
system.
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[] failed to file a separate affidavit or declaration identifying each suit,
other than a suit under the Family Code, previously brought by the
plaintiff and in which the plaintiff was not represented by an attorney,
without regard to whether the plaintiff was an inmate at the time the
suit was brought, or
[] failed to fully describe each previous suit because the plaintiff:
[] failed to state the operative facts for which relief was sought;
[] failed to list the style, cause number, and court in which a previous
suit was brought;
[] failed to identify each party named in a previous suit;
[] failed to state the result of a previous suit;
[and] failed to state the date of the final order(s) affirming the dismissal
if a previous suit was dismissed as frivolous or malicious under the
Texas Civil Practices and Remedies Code, Section 13.001, or Section
14.003, or otherwise[.]
See id. §§ 14.003(b)(4), 14.004. Murray appealed. In his sole appellate issue, Murray
argues the trial court abused its discretion in dismissing his suit because he
substantially complied with the requisites of Chapter 14.
The trial court may dismiss an inmate suit before or after service of process if
it determines that the suit is frivolous or malicious. Tex. Civ. Prac. & Rem. Code
Ann. § 14.003(a)(2). In determining whether the suit is frivolous or malicious, the
trial 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 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 it arises from the same operative facts.
Id. § 14.003(b). The court may consider whether the plaintiff’s claim is substantially
similar to a previous claim filed by the inmate based on the inmate’s affidavit or
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unsworn declaration requirement set forth in section 14.004. See id. §§ 14.003(b)(4),
14.004; Gowan v. Tex. Dep’t of Criminal Justice, 99 S.W.3d 319, 321 (Tex. App.—
Texarkana 2003, no pet.) (“The purpose of Section 14.004 is to assist the trial court
in determining whether a suit is malicious or frivolous under Section 14.003(a).”).
As to each prior suit, the affidavit or declaration must specify the operative facts, the
case name, the cause number, the court in which it was brought, the names of the
parties, and the result of the suit. Tex. Civ. Prac. & Rem. Code Ann. § 14.004. The
affidavit or unsworn declaration must also be accompanied by a certified copy of the
inmate’s trust account statement. Id. § 14.004(c). These procedural prerequisites are
designed “to curb the constant, often duplicative, inmate litigation, by requiring the
inmate to notify the trial court of previous litigation and the outcome.” Clark v. J.W.
Estelle Unit, 23 S.W.3d 420, 422 (Tex. App.—Houston [1st Dist.] 2000, pet.
denied).
We review the trial court’s dismissal of an inmate’s claims under Chapter 14
for an abuse of discretion. Brewer v. Simental, 268 S.W.3d 763, 767 (Tex. App.—
Waco 2008, no pet.); Retzlaff v. Tex. Dep’t of Criminal Justice, 94 S.W.3d 650, 654
(Tex. App.—Houston [14th Dist.] 2002, pet. denied). “The test for abuse of
discretion is not whether, in the opinion of [this Court], the facts present an
appropriate case for the trial court’s action. Rather, it is a question of whether the
court acted without reference to any guiding rules and principles.” Downer v.
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Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Appellant bears
the burden of overcoming the presumption that the trial court’s action was justified.
See Retzlaff, 94 S.W.3d at 654.
Given the purpose of the statute, and considering our abuse-of-discretion
review, we cannot say that the trial court abused its discretion in determining that
Murray’s affidavit failed to comply with section 14.004. The record reflects that
while Murray filed a Declaration Relating to Previous Filings several weeks after he
filed his original petition, his declaration does not state the complete case style,
including the cause number and the court in which each of his other suits was filed,
and he does not include the names of all the defendants. We have previously stated
that an affidavit that does not identify the parties or operative facts in the prior
litigation does not substantially comply with section 14.004. See Knighten v. Brown,
No. 09-02-170-CV, 2003 Tex. App. LEXIS 402, at *6 (Tex. App.—Beaumont Jan.
16, 2003, no pet.) (mem. op.). When an inmate’s declaration on his previous filings
does not substantially comply with the 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, is frivolous. Gowan, 99 S.W.3d at 321; Obadele v. Johnson,
60 S.W.3d 345, 348 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Clark, 23
S.W.3d at 422. Accordingly, we overrule Murray’s appellate issue and affirm the
trial court’s judgment.
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AFFIRMED.
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LEANNE JOHNSON
Justice
Submitted on February 19, 2021
Opinion Delivered March 11, 2021
Before Kreger, Horton and Johnson, JJ.
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