Michael Dwyer McCullough v. Texas Department of Criminal Justice-ID, Alan N. Forner, Danny Horton, Delores Thorton, Tina Carroll, Alphonoso James, and David Lambert

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-07-072-CV

MICHAEL DWYER MCCULLOUGH APPELLANT

V.

TEXAS DEPARTMENT OF CRIMINAL APPELLEES
JUSTICE-ID, ALAN N. FORNER,
DANNY HORTON, DELORES THORTON,
TINA CARROLL, ALPHONOSO JAMES,
AND DAVID LAMBERT

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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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MEMORANDUM OPINION 1

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I. INTRODUCTION

Appellant Michael Dwyer McCullough, an inmate proceeding pro se and

in forma pauperis, challenges the trial court’s order dismissing with prejudice

his lawsuit against Appellees Alan N. Forner, Danny Horton, Delores Thorton,

1
See T EX. R. A PP. P. 47.4.
Tina Carroll, Alphonoso James, and David Lambert. McCullough raises ten

points arguing that the trial court improperly dismissed his suit with prejudice

under chapter 14 of the Texas Civil Practice and Remedies Code without

allowing him to amend his petition.2 Because we hold that McCullough’s failure

to file his lawsuit by the statutory deadline could not have been remedied by

amended pleadings, we will affirm.

II. F ACTUAL AND P ROCEDURAL B ACKGROUND

In April 2004, prison officials ordered McCullough to remove his personal

property from his prison cell so that they could place it in storage while he was

in isolation. After McCullough was released from isolation, prison officials

returned most of McCullough’s personal property to him, but McCullough claims

that his wedding band and his eyeglasses were not returned. McCullough

2
Specifically, McCullough argues that (1) the trial court erred by
dismissing his claim because he properly filed his grievances and exhausted his
administrative remedies; (2) the trial court erred by dismissing his claim before
Appellees had answered his interrogatories, which would have shown that he
had properly filed his grievances; (3) - (5) the trial court erred by dismissing his
claim with prejudice before allowing him to amend his petition; (6) the trial
court erred by dismissing his claim because he met the six-month deadline; (7)
the trial court erred by dismissing his claim because material issues of genuine
fact existed; (8) the trial court erred by dismissing his claim because he was
denied a jury trial; (9) Appellees incorrectly stated that no relief is possible
because the State can either give him back his property or compensate him
financially for the loss of his property; and (10) the trial court erred by refusing
to reinstate his claim after he presented “reliable material” to oppose the
dismissal.

2
continuously inquired of prison officials about the location of these items and

when they would be returned.

When the prison officials failed to return McCullough’s wedding band and

his eyeglasses, he pursued administrative remedies by filing grievances on June

2 and June 7, 2004, which were returned to him unprocessed because the

issue had “already [been] grieved”; 3 by a June 18, 2004 grievance that became

final on August 6, 2004; and a July 17, 2004 4 grievance, to which McCullough

claims he did not receive a response.

On January 25, 2005, McCullough filed suit against

Appellees—corrections officers—in their individual capacities, contending that

they had refused to return his wedding ring and eyeglasses. McCullough

alleged that Appellees had caused him “emotional stress, mental anguish, due

process violations, and deprivation of personal property, and personal injury.”

McCullough attached an affidavit listing dates of the grievances that he had

3
McCullough does not explain this notation. However, the record reveals
numerous “Inmate Request To Official” forms that had been completed by
McCullough, complaining about this missing personal property.
4
These dates were taken from the pleadings filed by McCullough in the
trial court. For the first time on appeal, McCullough claims that he filed the
July 17 grievance on July 19, 2004, and that he filed the Step II grievance on
August 17, 2004. This evidence was not before the trial court, so we will not
consider it on appeal.

3
filed, but he did not attach copies of the grievances. 5 McCullough also filed an

affidavit listing previous suits that he had filed and an “Application to Proceed

Informa Pauperis,” in which he requested to proceed without being required to

prepay fees or costs or to give security.

Appellees moved to dismiss McCullough’s lawsuit, arguing that he had

failed to fulfill the procedural requirements of chapter 14 of the Texas Civil

Practice and Remedies Code, which applies to lawsuits brought by inmates in

which an affidavit or unsworn declaration of inability to pay costs is filed by the

inmate. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.002(a) (Vernon 2002).

Appellees asserted that McCullough did not satisfy chapter 14’s requirements

(1) because he did not file an affidavit identifying each of his previous court

filings, specifically pointing out that he had failed to list a suit that he had filed

in federal court that was dismissed as frivolous, and (2) because he did not file

an affidavit or unsworn declaration stating the date that the specific grievance

at issue—concerning the alleged failure to return his wedding band and

eyeglasses—was filed and the date that a written decision on this grievance

was received by him and did not provide a copy of the written decision from

5
McCullough later amended his petition and attached copies of some of
the grievances that he had filed, but he never attached a copy of the July 17,
2004 grievance that is at issue here. In his appellate brief, he states that he
has now obtained a copy of that grievance, but it is still not before us.

4
the administrative grievance system. Appellees also argued that dismissal was

warranted because McCullough did not timely file his lawsuit because he failed

to file it by the thirty-first day after he had received the written decision from

the administrative grievance system. Finally, Appellees argued that

McCullough’s claims were frivolous or malicious because intentional torts are

excluded from the Texas Tort Claims Act, depriving an inmate of property is not

a constitutional violation when an adequate post deprivation remedy exists, and

a violation of a TDCJ policy does not by itself give rise to a cause of action in

a court of law.

The trial court examined and considered the pleadings and dismissed

McCullough’s case with prejudice, finding that his petition was frivolous and did

not comply with the requirements of chapter 14 of the Texas Civil Practice and

Remedies Code. This appeal followed.6

III. D ISMISSAL P URSUANT TO C HAPTER 14 OF THE T EXAS C IVIL
P RACTICE AND R EMEDIES C ODE

A. Purpose of Chapter 14

Inmate litigation (except suits brought under the family code) in which an

inmate files an affidavit or unsworn declaration of inability to pay costs is

6
McCullough has filed a pro se brief in this court. We liberally construe
his arguments and attempt to address the legal and factual arguments he
makes.

5
governed by special procedural rules set out in chapter 14 of the civil practice

and remedies code. See T EX. C IV. P RAC. & R EM. C ODE A NN. §§ 14.001-.014

(Vernon 2002); Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex. App.—Fort

Worth 2004, pet. denied); Thomas v. Knight, 52 S.W.3d 292, 294 (Tex.

App.—Corpus Christi 2001, pet. denied), cert. denied, 537 U.S. 890 (2002).

Chapter 14 applies “only to a suit brought by an inmate in district court, justice

of the peace, or small claims court in which an affidavit or unsworn declaration

of inability to pay costs is filed by the inmate.” T EX. C IV. P RAC. & R EM. C ODE

A NN. § 14.002(a); Bishop, 131 S.W.3d at 574. The legislature enacted this

statute to control the flood of frivolous lawsuits being filed in Texas courts by

prison inmates because these suits consume many valuable judicial resources

with little offsetting benefits. Bishop, 131 S.W.3d at 574; Knight, 52 S.W.3d

294. The purpose of chapter 14 is not to punish inmates for filing claims but

to aid the court in determining whether an inmate’s claim is frivolous. Thomas

v. Wichita Gen. Hosp., 952 S.W.2d 936, 941 (Tex. App.—Fort Worth 1997,

pet. denied).

B. Dismissal Under Chapter 14

A trial court may dismiss a suit filed under chapter 14 if it finds that (1)

the allegation of poverty in the affidavit or unsworn declaration is false, (2) the

claim is frivolous or malicious, (3) the inmate filed an affidavit or unsworn

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declaration required by this chapter that the inmate knew was false, or (4) the

inmate failed to comply with procedural requirements of chapter 14. T EX. C IV.

P RAC. & R EM. C ODE A NN. §§ 14.003(a), 14.005(b); Amir-Sharif v. Mason, No.

05-06-01089-CV, 2008 WL 171219, at *2 (Tex. App.—Dallas Jan. 22, 2008,

no pet. h.). A trial court has broad discretion to dismiss a lawsuit brought

under chapter 14 as frivolous or malicious. T EX. C IV. P RAC. & R EM. C ODE A NN.

§ 14.003(b); Knight, 52 S.W.3d at 294.

Additionally, “[a] court shall dismiss a claim if [(1)] the inmate fails to file

the claim before the 31st day after the date the inmate receives the written

decision from the grievance system,” T EX. C IV. P RAC . & R EM. C ODE A NN.

§ 14.005(b), or (2) if the inmate has not received such a written decision and

fails to file the claim by the 180th day after the date the grievance was filed.

See T EX . G OV ’ T C ODE A NN. § 501.008(d) (Vernon 2004). A suit that is not

timely filed pursuant to section 14.005(b) may be dismissed with prejudice.

See Moreland v. Johnson, 95 S.W.3d 392, 395 (Tex. App.– Houston [1st Dist.]

2002, no pet.).

C. Procedural Requirements

Chapter 14 requires the inmate to file an affidavit or unsworn declaration

stating the date that the prison grievance underlying the lawsuit was filed,

along with a copy of the written decision from the administrative grievance

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system. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.005(a). The inmate must

file his lawsuit within thirty-one days after the date he receives the written

decision from TDCJ’s grievance system, or if the inmate has not received such

a written decision, then by the 180th day after the date the grievance was

filed. See id. § 14.005(a)(1), (b); T EX. G OV’T C ODE A NN. § 501.008(d). Section

14.004 imposes other requirements, including the requirement that the inmate

must file an affidavit describing his previous lawsuits, and this affidavit must

be accompanied by a certified copy of the inmate’s trust account statement.7

See T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.004. Inmates are held to the same

standard as licensed counsel under this statute regarding procedural

requirements because otherwise they would be given an unfair advantage over

those represented by counsel. See Stewart v. Tex. Dep’t of Criminal

Justice–Inst. Div., No. 14-01-00848-CV, 2002 WL 31008315, at *2 (Tex.

App.—Houston [14th Dist.] Sept. 5, 2002, no pet.) (not designated for

publication).

D. Standard of Review

We review a trial court’s dismissal of an inmate’s claim under chapter 14

under an abuse of discretion standard. Bishop, 131 S.W.3d at 574. A court

7
Appellees agree that McCullough complied with the requirement to
provide a certified copy of his trust account statement.

8
abuses its discretion if it acts arbitrarily, capriciously, and without reference to

guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986); Bishop,

131 S.W.3d at 574; Martinez v. Thaler, 931 S.W.2d 45, 46 (Tex.

App.—Houston [14th Dist.] 1996, writ denied).

E. Dismissal of McCullough’s Claim Was Not an Abuse of Discretion

Because McCullough filed an application to proceed in forma pauperis, he

was required to comply with all of the procedural requirements of chapter 14.

See T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.002(a) (providing that this chapter

applies to a suit brought by an inmate in a district court in which an affidavit

or unsworn declaration of inability to pay costs is filed by the inmate).

Although section 14.005(a) requires that a copy of the written decision from

the administrative grievance system be attached to the inmate’s affidavit or

unsworn declaration, McCullough did not file a copy of the July 17, 2004

grievance at issue or the administrative grievance system’s written decision

because he said that he did not receive a response to that particular grievance.

Thus, McCullough did not comply with the procedural requirements of chapter

14.

The record before us, however, in the absence of a copy of the

administrative grievance system’s decision of the grievance at issue, shows

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that McCullough did not meet either the thirty-one-day or the 180-day deadline

for filing suit. See id. § 14.005(a)(1), (b); T EX. G OV’T C ODE A NN. § 501.008(d).

In McCullough’s pleadings he stated that his initial grievances—filed June

2 and June 7, 2004—were returned unprocessed because the issue he raised

in them had already been grieved. McCullough does not specify when those

prior grievances were returned to him. McCullough also alleges that the

grievance he filed on June 18, 2004, “became final” on August 6, 2004. But

McCullough does not specify in his pleadings when he received any written

decision from the grievance system concerning the June 18, 2004 grievance,

nor does he argue that he failed to receive the written decision in a timely

manner. Assuming that McCullough received the written decision on the June

18, 2004 grievance decision in a timely manner—i.e., at any time prior to

December 24, 2004—he filed his petition on January 25, 2005, more than

thirty-one days after he received that grievance decision. However, McCullough

does not appear to make any of these grievances the basis of his suit. Instead,

he focuses on the July 17, 2004 grievance, and he alleges that he did not

receive a written decision concerning this grievance.

Because McCullough did not receive a written decision from the highest

authority provided for in the administrative grievance system, he was required

to file suit within 180 days of July 17, 2004—the date, according to his

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pleadings, that his grievance was filed. However, 180 days from July 17,

2004, is January 13, 2005, and McCullough’s petition was not filed until

January 25, 2005. 8 Because McCullough waited more than 180 days to file

suit, he did not meet the filing deadline on this grievance either. Consequently,

the trial court did not abuse its discretion by finding that McCullough did not

timely file suit 9 and by dismissing McCullough’s suit under chapter 14 of the

Texas Civil Practice and Remedies Code. See Williams v. Mooneyham, No. 02-

06-00348-CV, 2008 WL 281525, at *3 (Tex. App.—Fort Worth Jan. 31,

2008, no pet. h.) (mem. op. on reh’g) (holding that trial court did not abuse its

discretion by dismissing suit under chapter 14 because appellant filed suit more

than 180 days after the date his grievance was filed); Horrice v. Fondren, No.

02-05-00063-CV, 2006 WL 416973, at *2 (Tex. App.—Fort Worth Feb. 23,

2006, no pet.) (mem. op.) (holding that because the record contained no

evidence that appellant’s petition was timely received by the proper authority

within thirty-one days of the date of his grievance decision, the trial court did

8
W e note that McCullough signed his petition on January 13, 2005.
There is no evidence in the record before us, and indeed McCullough does not
argue, that the mailbox rule applies here.
9
The trial court stated in its finding of fact number 5: “McCullough did
not comply with Section 14.005(b),” which sets forth the deadline for filing
suit.

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not abuse its discretion by dismissing his claims with prejudice); Lucas v.

Johnson, No. 02-02-00447-CV, 2003 WL 21983259, at *1 (Tex. App.—Fort

Worth Aug. 21, 2003, no pet.) (mem. op.) (holding that appellant’s suit was

not timely filed under section 14.005(b) and was properly dismissed by the trial

court). We therefore overrule McCullough’s first, second, fourth, sixth, eighth,

and tenth points.

IV. D ISMISSAL W ITH P REJUDICE

In his third and fifth points, McCullough complains that the trial court

erred by dismissing his suit with prejudice. Specifically, he argues that his suit

should have been dismissed without prejudice because a remedy exists to

correct the deficiencies in his pleadings.

A dismissal with prejudice constitutes an adjudication on the merits and

operates as if the case had been fully tried and decided. See Ritchey v.

Vasquez, 986 S.W.2d 611, 612 (Tex. 1999). Thus, orders dismissing cases

with prejudice have full res judicata and collateral estoppel effect, barring

subsequent relitigation of the same causes of action or issues between the

same parties. See Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837

S.W.2d 627, 630-31 (Tex. 1992). When reviewing whether the trial court

abused its discretion by dismissing with prejudice, this court should consider

whether the prisoner’s error could be remedied with more specific pleading; if

so, a dismissal with prejudice is improper. See Thomas, 52 S.W.3d at 294.

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 Here, McCullough did not act until 192 days after filing his grievance.

Thus, his suit is time barred, and he cannot remedy this late filing. See

Moreland, 95 S.W.3d at 395 (“A suit that is not timely filed pursuant to section

14.005(b) is barred and may be dismissed with prejudice.”); see also Jon v.

Tuatagola, No. 06-05-00116-CV, 2006 WL 237519, at *2 (Tex.

App.—Texarkana Feb. 2, 2006, no pet.) (mem. op.) (holding that plaintiff’s

failure to comply with chapter 14’s filing deadline presented a time bar that

could not be remedied). Accordingly, we hold that the trial court did not abuse

its discretion by dismissing McCullough’s time-barred claims with prejudice. We

overrule McCullough’s third and fifth points.10

V. C ONCLUSION

Having held that the trial court did not abuse its discretion by dismissing

McCullough’s claims with prejudice, we affirm the trial court’s dismissal order.

SUE WALKER
JUSTICE

PANEL A: CAYCE, C.J.; HOLMAN and WALKER, JJ.

DELIVERED: March 13, 2008

10
Because we have held that the trial court properly dismissed
McCullough’s suit with prejudice based on procedural defects, we need not
reach his remaining points, which all concern the actual merits of the suit. See
T EX. R. A PP. P. 47.1.

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