Donald Ray McCray v. Matthew Keith

NO. 07-02-0411-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

APRIL 11, 2003

______________________________

DONALD RAY MCCRAY, APPELLANT

V.

MATTHEW KEITH, APPELLEE

_________________________________

FROM THE 136TH DISTRICT COURT OF JEFFERSON COUNTY;

NO. D-167,023; HONORABLE MILTON G. SHUFFIELD, JUDGE

_______________________________

Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1

MEMORANDUM OPINION

In this appeal, appellant Donald Ray Keith, a penitentiary inmate proceeding pro se

and in forma pauperis brings this appeal from the trial court’s dismissal of his suit against

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John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
appellee Matthew Keith, a pharmacist connected with the corrections system. In the suit,

appellant sought both compensatory and punitive damages as a result of appellee’s

alleged change in appellant’s prescription for hemorrhoid cream. For reasons later

expressed, we affirm the judgment of the trial court.

In pursuing his appeal, although he has not filed a brief per se, appellant has filed

an instrument in which he says, “I am requesting the appellant, motion to denied appellee

brief be submitted to the Justice’s of this court for a ruling.” We interpret this as a request

for us to proceed directly with the consideration of his appeal.

In appellee’s motion to dismiss, he asserts he was entitled to dismissal of the suit

because of appellant’s failure to comply with the procedural prerequisites required under

Chapter 14 of the Texas Civil Practice and Remedies Code (the Code).2 Specifically, he

alleged appellant had failed to comply with section 14.004 of the Code, which requires all

inmates proceeding in forma pauperis to attach a list of all their previous lawsuits, and

section 14.005(b) which requires inmates proceeding in forma pauperis to file suit within

31 days after receiving a written decision from the penitentiary grievance system. In his

August 26, 2002 letter notifying the parties of his decision, the trial judge stated he was

granting the motion because appellant had failed to file his lawsuit within the 31-day period

mandated by section 14.005(b).

2
Later references to section numbers are to those Chapter 14 sections as contained
in the Texas Civil Practice and Remedies Code (Vernon 2002), unless otherwise
specifically designated.

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 Chapter 14 of the Code applies to suits brought by an inmate who has filed “an

affidavit or unsworn declaration of inability to pay costs.” Section 14.02. The procedural

requirements placed on suits filed by indigent inmates under Chapter 14 are designed to

control the flood of frivolous lawsuits filed in the courts of this state by prison inmates

consuming valuable judicial resources with little offsetting benefits. Hickson v. Moya, 926

S.W.2d 397, 399 (Tex. App.–Waco 1996, no pet.). Requiring indigent inmates to file

affidavits related to their previous filings, to exhaust their administrative remedies, to file

suit within 31 days after the decision on their grievances and to dismiss their suits if they

do not comply furthers the legitimate, even compelling, state interest in protecting scarce

judicial resources by protecting against the filing of frivolous civil lawsuits. Hicks v. Brysch,

989 F.Supp. 797, 823 (W.D. Tex. 1997). Prohibiting prisoners with a history of instituting

frivolous and malicious litigation from proceeding in forma pauperis clearly serves to deter

such abuses of our judicial system. Hickson, 926 S.W.2d at 399; Hicks, 989 F.Supp. at

823. The standard for review of a dismissal under Chapter 14 is whether in doing so the

trial court abused its discretion. Hickson, 926 S.W.2d at 398. A court abuses its discretion

if it acts 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, 106

S.Ct. 2279, 90 L.Ed.2d 721 (1986).

Chapter 14.005(b) of the Code provides that “a court shall dismiss a claim if the

inmate fails to file the claim before the 31st day after the date the inmate receives the

written decision from the grievance system.” Parenthetically, the supreme court has

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explicated that “shall” is generally construed as mandatory unless the legislature indicates

otherwise. See Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999). Although

appellant received the grievance written decision on February 25, 2002, he did not file his

lawsuit until April 15, 2002, a period in excess of 31 days from the date of its receipt. The

trial court’s action was in compliance with the statute and it did not abuse its discretion.

See Sanders v. Palunsky, 36 S.W.3d 222, 226-27 (Tex. App.–Houston [14th Dist.] 2001,

no pet.).

Accordingly, the judgment of the trial court must be, and is hereby, affirmed.

John T. Boyd
Senior Justice

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