Charles Anthony Allen v. Kirt Stiefer, Lisa Mantle, Susan Wilburn

Affirmed and Memorandum Opinion filed February 16, 2012.

In The

Fourteenth Court of Appeals
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NO. 14-11-00101-CV
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CHARLES ANTHONY ALLEN, Appellant

V.

KIRT STIEFER, LISA MANTLE, AND SUSAN WILBURN, Appellees

On Appeal from the 12th District Court
Grimes County, Texas
Trial Court Cause No. 31728

MEMORANDUM OPINION

Appellant Charles Anthony Allen appeals the dismissal of his suit under Chapter 14
of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code §§
14.001-.014. We affirm.

Allen, an inmate confined at the Texas Department of Criminal Justice (TDCJ),
filed suit pro se and in forma pauperis, complaining his due process rights were violated
when his disciplinary case received for fighting was not overturned. Allen requested a
declaratory judgment, return of his line class and custody level status, and compensatory
damages. Appellees answered Allen's petition and then moved to dismiss for failure to
comply with Chapter 14 of the Texas Civil Practice and Remedies Code. The trial court
dismissed Allen's suit without prejudice and Allen brought this appeal.

Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate
litigation. See Tex. Civ. Prac. & Rem. Code §§ 14.001—.014. We review a trial court's
Chapter 14 dismissal of an inmate's claims under an abuse of discretion standard. Retzlaff
v. Tex. Dep’t of Crim. Justice, 94 S.W.3d 650, 654 (Tex. App.—Houston [14th Dist.] 2002,
pet. denied). A trial court has broad discretion to dismiss an inmate's suit if it finds that
the claim asserted is frivolous or malicious. Martinez v. Thaler, 931 S.W.2d 45, 46 (Tex.
App.—Houston [14th Dist.] 1996, writ denied). A trial court abuses this broad discretion
if it acts arbitrarily, capriciously, or without reference to any guiding rules or principles.
Id.

Chapter 14 imposes several procedural requirements before an inmate may bring a
lawsuit without paying filing fees. See Tex. Civ. Prac. & Rem. Code §§ 14.002(a),
14.004, 14.005. A failure to fulfill these procedural requirements will result in dismissal
of the inmate's suit. See Lilly v. Northrep, 100 S.W.3d 335, 336 (Tex. App.—San
Antonio, 2002 pet. denied).

One such procedural requirement is that the inmate must properly exhaust his
administrative remedies by completing the internal TDCJ grievance process before filing a
lawsuit. Tex. Civ. Prac. & Rem. Code § 14.005; Leachman v. Dretke, 261 S.W.3d 297,
304 (Tex. App.—Fort Worth 2008, no pet.). The trial court must dismiss the suit if the
inmate's claim is subject to the grievance system and “the inmate fails to file the claim
before the 31st day after the date the inmate receives the written decision from the
grievance system.” Tex. Civ. Prac. & Rem.Code § 14.005(b). An inmate is required to
exhaust his remedies through the grievance process before seeking judicial review. See
Tex. Civ. Prac. & Rem. Code § 14.005(a); Tex. Gov’t Code Ann. § 501.008(d) (providing
that an inmate may not file a claim in state court until the inmate has received a written
decision issued by the highest authority provided for in the grievance system, or the 180th
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day after the grievance is filed if no decision is received). A claim has no arguable basis in
law if the inmate has failed to exhaust his administrative remedies. Retzlaff v. Tex. Dep’t
of Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied).

Section 14.005 provides that an inmate who files suit on a claim subject to the
grievance system must file an affidavit or unsworn declaration stating the state that the
grievance was filed and the date the written decision was received by the inmate. Tex.
Civ. Prac. & Rem.Code § 14.005(a). In addition, the inmate must provide a copy of the
written grievance decision. Id. These requirements are necessary to establish that the
inmate has exhausted his administrative remedies and filed his claim within the requisite
time period. See Garrett v. Borden, 283 S.W.3d 852, 853 (Tex. 2009). If an inmate does
not strictly comply with subsection 14.005(a), a trial court does not abuse its discretion in
dismissing the claim. See Hamilton v. Williams, 298 S.W.3d 334, 340 (Tex. App.—Fort
Worth 2009, pet. denied) (holding appellate court may affirm dismissal for failure to
exhaust administrative remedies).

In this case, the record reflects Allen filed a Step 1 grievance on August 11, 2009,
and a decision is dated September 16, 2009. Allen filed a Step 2 grievance on October 1,
2009. The decision is dated November 4, 2009. The record does not contain an affidavit
filed by Allen stating the date he received the decision on his grievance. Allen filed suit
on May 12, 2010. Because the record does not reflect suit was filed before the 31st day
after the date Allen received the written decision from the grievance system, it will not
support a finding that the trial court abused its discretion in dismissing Allen's suit. See
Tex. Civ. Prac. & Rem. Code § 14.005(b).

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 Accordingly, Allen's issues are overruled and the judgment of the trial court is
affirmed.

PER CURIAM

Panel consists of Justices Seymore, Boyce and McCally.

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