In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-07-392 CV
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CHRISTOPHER JONES, Appellant
V.
NATHANIEL QUARTERMAN, et al., Appellees
Tyler County, Texas
Trial Cause No. 20,513
Christopher Jones, an inmate in the Correctional Institutions Division of the Texas Department of Criminal Justice, sued the State of Texas, Department Director Nathaniel Quarterman, and three Department employees assigned to the Gib Lewis Unit where Jones is housed: Chief of Classification K. Williams, Assistant Warden Curry, and Assistant Warden Roesler. Jones asserted claims under the Texas Tort Claims Act and § 1983 of Title 42 of the United States Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-.109 (Vernon 2005 & Supp. 2007); 42 U.S.C.A. § 1983 (West 2007). In addition to actual and exemplary damages, Jones requested a declaratory judgment and issuance of an "emergency preliminary injunction ordering the defendant's [sic] to immediately promulgate proper procedures to ensure the safe placement of the plaintiff." The trial court dismissed the suit prior to service.
Jones alleged that he had a life endangerment classification at his previous unit and that he was transferred to the Gib Lewis Unit for safety reasons. Jones alleged that no mention of his life endangerment status was made during his classification hearing. According to the allegations contained in Jones's petition, Curry noted the computer recommended a "G4" classification and Williams, the chief of the classification committee, commented that he did not like the way Jones looked and that Jones would be a "G5." According to Jones, Roesler responded to Jones's grievance but failed to take corrective action, and Curry responded to another grievance but failed to take corrective action to ensure safe placement. Jones alleged his classification was based upon the disciplinary classification he had at the Robertson Unit and that he should have been provided with a separate classification hearing addressing the life endangerment situation that led to his transfer. Jones alleged he was not provided the same treatment that a "homosexual, a young white male or a feminine-appearing prisoner" would have received. Because Jones feared he would be attacked, Jones could not enjoy his right to go outside for recreation because he feared another prisoner might recognize him from the Robertson Unit and attack him.
Jones alleged that systemic deficiencies in the life endangerment classification system violated the constitutional rights of inmates. Jones alleged Williams and Curry released Jones into a high security general population without a proper life endangerment classification; that Williams, Curry and Roesler failed to investigate the risk of violence and properly review files; that Williams, Curry and Roesler failed to afford Jones a life endangerment classification hearing; that Quarterman's use of a vague classification policy allowed Department employees to depart from normal classification methods; that Quarterman, Williams, Curry and Roesler failed in their statutory duty to protect Jones from risk to his mental and physical health; and that the individual defendants negligently caused Jones emotional distress. Jones did not allege that he was physically assaulted while housed at the Gib Lewis Unit. His petition requested damages for the defendants' deliberate indifference to Jones's constitutional rights and for Jones's emotional injuries.
In two issues, Jones contends (1) the trial court erred in dismissing his suit with prejudice and (2) a legal disability relieved him of the requirements of Chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (Vernon 2002). We address these issues in reverse order.
The clerk's record does not contain the trust account statement, the written copies of the grievance decisions, or the affidavit of previous filing required for litigation filed by inmates. See id. §§ 14.004(a), (c), 14.005(a), 14.006(f). Jones argues he was denied access to the law library and the denial of access created a legal disability under section 16.001 if the Civil Practice and Remedies Code. See id. § 16.001 (Vernon 2002) (excluding the time spent under a disability from the time included in a limitations period for persons younger than 18 years of age or of unsound mind when a cause of action accrues). Jones argues that the cover letter to his petition explained that he could not wait for the grievance decision because his life was in imminent danger and that the conditions of his confinement affected his ability to comply with the statutory requirements. No provision in section 16.001 excuses compliance with any of the prerequisites for suits filed by an inmate who files an unsworn declaration of inability to pay costs. We review the trial court's decision to dismiss the case on an abuse of discretion standard. Presiado v. Sheffield, 230 S.W.3d 272, 274 (Tex. App.--Beaumont 2007, no pet.).
The cover letter Jones enclosed with his original petition stated "I have exhausted state remedy but cannot afford to await their response due to the imminent immediate danger that I am in." Because Jones failed to state the date the grievance was filed and the date the written decision was received, as required by section 14.005(a)(1), the trial court could not determine whether section 14.005(b) or 14.005(c) applied. See id. § 14.005. A post-dismissal filing by Jones included an administrative notice of extension on a Step II grievance while the Department investigated the claim. The number on the grievance matches one of the grievance numbers in Jones's petition. Thus, from the post-dismissal filings it appears an abatement under section 14.005(c) might have been appropriate. Without a disclosure of the date the grievance was filed, however, the trial court could not determine whether 180 days had elapsed since Jones filed his grievance. See Tex. Gov't Code Ann. § 501.008(d) (Vernon 2004)("An inmate may not file a claim in state court regarding operative facts for which the grievance system provides the exclusive administrative remedy until: (1) the inmate receives a written decision issued by the highest authority provided for in the grievance system; or (2) if the inmate has not received a written decision described by Subdivision (1), the 180th day after the date the grievance is filed."). Section 14.005(c) permits a 180 day abatement for claims filed before the grievance procedure is complete. See Tex. Civ. Prac. & Rem. Code Ann. § 14.005(c). Jones did not file a motion to abate, however, and it does not appear that any pleadings or motions before the court at the time the suit was dismissed would have informed the trial court that the grievance process was ongoing. An abuse of discretion is not shown in this record.
The cover letter to Jones's original petition claimed Jones could not obtain a trust account statement unless he had a cause number for his suit. However, Jones did not supply the trust account statement in any of his subsequent filings after he obtained the cause number for his suit. The cover letter for the amended petition did not mention the trust account statement. An affidavit of inability to pay costs filed after the trial court dismissed the case stated that Jones could not obtain a trust account statement "without a[n] order from this court" and asked the trial court to order the records office to produce a statement showing the balance of his account A trial court may request a trust account statement from the Department. See id. § 14.006(f). We note, however, that the trial court had previously entered an order for costs and sent a copy of the order to the inmate trust account office. See id. § 14.006. The trust account office had an order from the trial court with the cause number on the order; therefore, it would not have been evident to the trial court that Jones required additional documentation to obtain a trust account statement.
Jones failed to file a declaration of previous filings with either his original or his amended petition. He did submit a declaration of previous filings in a post-dismissal filing. Because no declaration was on file when the trial court dismissed the suit, no abuse of discretion is shown from the decision to dismiss on this ground. See Hickman v. Adams, 35 S.W.3d 120, 125 (Tex. App.--Houston [14th Dist.] 2000, no pet.). Assuming the post-dismissal filing cured that particular defect, the trial court did not err in failing to reconsider its dismissal in light of Jones's failure to cure the other deficiencies.
The trial court also dismissed the case because Jones failed to state a claim with an arguable basis in law. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003. All of Jones's allegations concern the application of the inmate classification system upon his transfer to a new unit and the denial of a separate life endangerment hearing. Jones did not allege the operation or use of motor-driven equipment or tangible personal property. Accordingly, Jones failed to state a claim under the Texas Tort Claims Act. See id. § 101.021. Jones did not allege an actual physical injury. Accordingly, Jones failed to state a claim for which damages could be recovered under § 1983. See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001).
We note, however, that Jones included a cursory request for declaratory relief and requested a temporary injunction. A prisoner need not allege an actual physical injury to assert a claim for injunctive and declaratory relief. Id. Jones's entitlement to a temporary injunction would depend upon his ability to establish a probable right of recovery. See Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex.1993)(An applicant for a temporary injunction must establish a probable right to the relief sought on final trial and a probable injury in the interim.) The trial court does not err in dismissing a suit in which temporary injunctive relief is sought if the plaintiff failed to state a claim for which he could recover at trial on the merits. See Aguilar v. Chastain, 923 S.W.2d 740, 745 (Tex. App.--Tyler 1996, writ denied). The viability of Jones's request for temporary injunctive relief thus depends upon the cognizability of his claim for declaratory relief. Jones's sixteen-page amended petition simply asks the court to "issue declaratory judgment" without identifying the subject matter of the declaration. This summary statement in his pleading does not invoke the Texas Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (Vernon 1997 & Supp. 2007). Because Jones did not plead a cause of action with an arguable basis in law, the trial court did not err in dismissing the suit. (1)
Although we hold the trial court did not err in dismissing the suit, none of the grounds for dismissal concerned the merits of Jones's claims. "A dismissal for failure to comply with the rules governing the filing of in forma pauperis suits is not a ruling on the merits; accordingly, it is error to dismiss the suit with prejudice if the inmate was not first provided with an opportunity to amend his pleadings." Hughes v. Massey, 65 S.W.3d 743, 746 (Tex. App.--Beaumont 2001, no pet.). We sustain issue one and overrule issue two. We reform the judgment to provide the cause is dismissed without prejudice. As reformed, the judgment is affirmed.
AFFIRMED AS REFORMED.
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CHARLES KREGER
Justice
Submitted on October 15, 2007
Opinion Delivered May 1, 2008
Before McKeithen, C.J., Kreger and Horton, JJ.
1. We do not decide in this opinion whether Jones could petition the trial court for a
declaratory judgment regarding his right to a separate classification hearing on a life
endangerment issue. His pleading is simply too vague on this point for us to determine what
declaratory relief he was seeking.