Opinion issued March 1, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00795-CV
———————————
GERALD E. GILBERT, Appellant
V.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, BOBBY PARVIS,
CARLA JOSEPH, JAMES MASSBARGER, JUSTIN WATTERSON, THE
UNIVERSITY OF TEXAS MEDICAL BRANCH, PAUL STRUNK,
GLENDA ADAMS, STEPHEN SMOCK, AND TAWANA SMITH, Appellees
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Case No. 76482-I
OPINION
Appellant Gerald E. Gilbert is an inmate in the custody of the Texas
Department of Criminal Justice (TDCJ) at the Ramsey Unit in Rosharon, Texas.
He sued TDCJ, the University of Texas Medical Branch (UTMB), and several
individual employees of both entities. His claims initially stem from injuries he
allegedly incurred in a bus accident in the Ramsey Unit parking lot in 2006. Over
the next few years, he developed various medical problems that he attributed to the
accident. In 2012, he requested a change in assignment and some special
equipment, including an oval ring cushion and a medically therapeutic mattress—
requests that his petition alleges were improperly handled or denied. He also
alleged that, in 2013, his personal coaxial cables were seized from his cell’s
television set by a prison employee.
The trial court granted the defendants’ motion to dismiss. We affirm.
ISSUES ON APPEAL
Gilbert raises the following four issues here:
1. “Whether the district court by conspiracy in combination with
improperly deprived plaintiff of his forum choice”;
2. “Whether the district court erred proceeding to final judgment after
plaintiff filed an amendment to cure failure to comply by substituted
instrument, and whether substitution should have been allowed”;
3. “Whether the district court erred by conducting an improper
Alternative Dispute Resolution, under the pretense of a ‘Hearing by
[Submission]’”;
4. “Whether the district court erred dismissing appellant’s Title 42
U.S.C.A. §1983 civil rights cause of action for right of recovery for
failure to comply with an inapplicable preempted state notice of
claim, judicial administrative procedural requirement under Chapter
14, Texas Civil Practice and Remedies Code §14.005(a)(2), (b).”
We will discuss the underlying facts and Gilbert’s claims as relevant to the
analysis of each issue.
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VENUE
Gilbert’s lawsuit was filed in Brazoria County on March 25, 2014. He
addressed his original petition to the 23rd District Court of Brazoria County. His
case was assigned, however, to the 412th District Court of Brazoria County.1 In
his first issue, Gilbert argues that assignment to the 412th was improper, and
deprived him of his right to the venue of his choosing.
Appellees respond that, while Gilbert was entitled to file in any proper
county, he “did not have a proprietary interest to select which judge would preside
over his case in the county of filing.” We agree.
Gilbert cites Union Carbide Corp. v. Loftin, 256 S.W.3d 869, 873 (Tex.
App.—Beaumont 2008, pet. dism’d) for the proposition that a “plaintiff is
generally permitted to choose venue first, and the plaintiff’s choice of venue
cannot be disturbed if the suit is initially filed in a county of proper venue.” He
then contends that the 23rd district court “was plaintiff’s choice” and, thus, should
not have been disturbed.
Gilbert’s argument, however, conflates venues and individual courts. “In
Texas, ‘venue’ refers to the county in which suit is proper within the forum state.”
In re Great Lakes Dredge & Dock Co. L.L.C., 251 S.W.3d 68, 73 (Tex. App.—
Corpus Christi 2008, orig. proceeding) (emphasis added). Thus, although Gilbert
1
According to the Brazoria County District Clerk’s website, cases are randomly
assigned.
3
couches his argument in terms of venue, his actual complaint is that he was not
allowed to choose a particular court within his chosen venue of Brazoria County.
A plaintiff does not have a right to select a particular judge or court in a multi-
court county. In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (orig. proceeding).
We overrule Gilbert’s first issue.
AMENDED PLEADINGS
In his second issue, Gilbert argues that the trial court “erred by not allowing
plaintiff to amend his pleadings.” This appears to be a reference to two filings: (1)
a June 24, 2014 Plaintiff’s Motion for Substitution of Instrument attaching an
Application to Proceed in Forma Pauperis and an inmate trust account statement,
and (2) a July 21, 2014 Motion for Leave to File Supplement to Original
Complaint attaching various documents in support of his claims (medical
documents, affidavits, etc.).
On August 19, 2014, the trial court issued a letter opinion explaining its
ruling on the outstanding motions. That letter expressed the view that Gilbert did
not need leave to supplement, but granted the motion “to the extent Court
permission is needed.” Because the record does not reflect that Gilbert was
prevented from supplementing or amending any pleadings, he has not shown any
error related to the court’s treatment of his June 24, 2014 or his July 21, 2014
motions.
4
After the trial court issued its August 18, 2014 Final Judgment, Gilbert filed
a September 3, 2014 Motion for Leave to File an Amended Complaint. No ruling
on that motion appears in the record. “Under rule of civil procedure 63, a party
may amend its pleadings after the verdict, but before the trial court has entered
judgment, unless the opposing party establishes surprise.” Hampden Corp. v.
Remark, Inc., 331 S.W.3d 489, 497 (Tex. App.—Dallas 2010, pet. denied)
(emphasis added) (citing Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938,
940 (Tex. 1990)). Gilbert cites no authority for the proposition that a plaintiff has
a right to amend a petition after a final judgment is entered. Thus, to the extent
that Gilbert’s third issue is directed at the court’s failure to grant this post-
judgment motion to amend, he has not shown error.
We overrule Gilbert’s second issue.
HEARING BY SUBMISSION
In his third issue, Gilbert argues that the “trial court erred by conducting an
improper hearing by submission to dismiss as frivolous with prejudice.”
On May 28, 2014, the defendants filed a motion to dismiss under Chapter 14
of the Texas Civil Practice and Remedies Code, which provides:
§ 14.005. Grievance System Decision; Exhaustion of
Administrative Remedies
(a) An inmate who files a claim that is subject to the grievance
system established under Section 501.008, Government Code, shall
file with the court:
5
(1) an affidavit or unsworn declaration stating the date that the
grievance was filed and the date the written decision described
by Section 501.008(d), Government Code, was received by the
inmate; and
(2) a copy of the written decision from the grievance system.
(b) 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.
(c) If a claim is filed before the grievance system procedure is
complete, the court shall stay the proceeding with respect to the claim
for a period not to exceed 180 days to permit completion of the
grievance system procedure.
TEX. CIV. PRAC. & REM. CODE § 14.005 (West 2002).
According to the defendants’ motion to dismiss, Gilbert’s lawsuit is related
to two grievances, i.e., #2013153287 (filed May 29, 2013; final decision
November 13, 2013) and #2013210052 (filed August 28, 2013; final decision
October 21, 2013). Defendants’ motion alleged that Gilbert (1) failed to “file a
copy of the written grievance decisions or an affidavit stating the dates of the
grievances and the written decisions” as mandated by section 14.005(a)(1), and (2)
failed to file “within the 31-day period after receiving written decisions from the
grievance system” as required by section 14.005(b).
Defendants’ motion additionally claimed that dismissal was appropriate
because Gilbert failed to file a complying trust account statement under section
14.006(f).
6
The inmate shall file a certified copy of the inmate’s trust account
statement with the court. The statement must reflect the balance of the
account at the time the claim is filed and activity in the account during
the six months preceding the date on which the claim is filed. The
court may request the department or jail to furnish the information
required under this subsection.
TEX. CIV. PRAC. & REM. CODE § 14.006(f) (West 2002).
On June 24, 2014, Gilbert filed a Motion of Objection to Dismiss Pursuant
to Chapter 14 of the Texas Civil Practice and Remedies Code. Gilbert provided
the required statements about his prior administrative grievances and the date of
their final decisions as required by section 14.005(a)(1). He conceded that he did
not file his lawsuit within 31 days “after the date the inmate receives the written
decision from the grievance system.” But, he contended that this requirement is
unreasonable as applied to his claims, and that his claims should instead be subject
to the two-year statute of limitations provided in section 16.003 of the Texas Civil
Practice Remedies Code.
The trial court set defendants’ motion to dismiss by submission for August
18, 2014. On August 19, 2014, the trial court issued a letter opinion explaining its
decision to grant defendants’ motion. That letter explained, in relevant part:
[T]he Joint Motion to Dismiss lists several grounds for dismissal.
These are failure to comply with Chapter 14 by not filing within 31
days after receiving a response to Step 2 grievances, failure to attach
copies of the grievances, failure to attach a trust fund statement, and
failure to attach a statement of prior litigation. Although Mr. Gilbert
did not file a motion for leave to supplement his Original complaint to
address the Trust Fund Statement and Statement of Prior Litigation,
7
the Court believes that he cured the deficiencies when he filed his
Trust Fund Statement and Statement of Prior Litigation. Mr. Gilbert
never cured the failure to attach copies of his grievances even after
this deficiency was pointed out by the Defendants. However, the issue
he could not have cured is his failure to file his suit within 31 days
after receiving his Step 2 grievances. Several cases have held that this
is not able to be cured, and therefore require dismissal. . . . .
Therefore, I have signed the Order granting the State’s Motion to
Dismiss under Chapter 14.
The court’s first final judgment, signed August 18, 2014, stated that the “all
of Plaintiff’s claims against Defendants are DISMISSED WITH PREJUDICE for
failure to comply with Chapter 14 of the Texas Civil Practice and Remedies
Code.”
On September 3, 2014, Gilbert filed a Memorandum in Support of Motion
for Reconsideration of Court’s Order of Final Judgment to Dismiss with Prejudice.
On September 5, 2014, the trial court signed a second Final Judgment expressly
vacating its August 18, 2014 final judgment. The new judgment was substantively
the same as the first judgment, except it changed “dismissed with prejudice” to
“dismissed.”
Gilbert argues that the trial court’s final judgment was erroneous because a
hearing by submission amounts to “a hybrid form of Alternative Dispute
Resolution” that deprived him of due-process rights. He cites a federal statute
permitting communication technology to be used in federal prison cases in lieu of
the inmate’s personal appearance:
8
To the extent practicable, in any action brought with respect to prison
conditions in Federal court pursuant to section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility, pretrial proceedings in which the prisoner's
participation is required or permitted shall be conducted by telephone,
video conference, or other telecommunications technology without
removing the prisoner from the facility in which the prisoner is
confined.
42 U.S.C.A. §1997e(f)(1).
Section 1997(e) is inapposite, as it applies to federal court—not state
court—proceedings, and it only governs pretrial proceedings that an inmate is
“required or permitted” to attend.
Whether the trial court holds a hearing on a Chapter 14 motion to dismiss is
left to the trial court’s discretion. TEX. CIV. PRAC. & REM. CODE § 14.003(c) (West
2002) (“In determining whether Subsection (a) applies, the court may hold a
hearing.” (emphasis added)); Hamilton v. Pechacek, 319 S.W.3d 801, 808 (Tex.
App.—Fort Worth 2010, no pet.) (“The plain language of the statute indicates that
the trial court’s determination to hold a hearing on a chapter 14 motion to dismiss
is discretionary.”).
We overrule Gilbert’s third issue.
CONSTITUTIONALITY
In his fourth issue, Gilbert argues that the trial court erred by granting the
defendants’ motion to dismiss because applying Chapter 14’s dismissal procedures
to his federal civil rights claim is “unreasonable, unconstitutional and
9
inapplicable.” Specifically, Gilbert complains about Chapter 14’s requirement that
the civil action be initiated within 31 days of the grievance decision. See TEX. CIV.
PRAC. & REM. CODE ANN. § 14.005(b). We read Gilbert’s brief to challenge the
constitutionality of the statute both facially and as applied. State v. Rosseau, 396
S.W.3d 550, 557 (Tex. Crim. App. 2013) (“[T]o prevail on a facial challenge, a
party must establish that the statute always operates unconstitutionally in all
possible circumstances.”); State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex.
Crim. App. 2011) (“A litigant raising only an ‘as applied’ challenge concedes the
general constitutionality of the statute, but asserts that the statute is
unconstitutional as applied to his particular facts and circumstances.”).
A. Felder v. Casey
In support of his argument that application of section 14.005(b)’s 31-day
deadline for filing suit is facially unconstitutional, Gilbert relies on Felder v.
Casey, 487 U.S. 131, 108 S. Ct. 2302 (1988). In Felder, the Supreme Court
considered whether a state’s notice-of-claim statute applied to a federal §1983
claim. Id. at 134, 108 S. Ct. at 2304–05. The statute in question prohibited the
filing of any action against the state or its subdivisions, agencies, or officers unless
the plaintiff had filed a written notice-of-claim within 120 days of his or her
alleged injury. Id. at 136, 108 S. Ct. at 2305. The mandated notice had to include
“an itemized statement of the relief sought.” Id. at 136–37, 108 S. Ct. at 2305–06.
10
The Supreme Court held that the Supremacy Clause of the federal
constitution pre-empted the application of the notice-of-claim statute for § 1983
claims. Id. at 151, 108 S. Ct. at 2313; see also U.S. CONST. art. VI, cl. 2 (“This
Constitution, and the laws of the United States . . . shall be the supreme law of the
land; and the judges in every state shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwithstanding”). While it
recognized that states may establish rules of procedure governing litigation in their
courts, the court admonished that rules of local practice cannot defeat federally-
created causes of action. Felder, 487 U.S. at 138, 108 S. Ct. at 2306. The court
held,
Because the notice-of-claim statute at issue here conflicts in both its
purpose and effects with the remedial objectives of § 1983, and
because its enforcement in such actions will frequently and
predictably produce different outcomes in § 1983 litigation based
solely on whether the claim is asserted in state or federal court, we
conclude that the state law is preempted when the § 1983 action is
brought in a state court.
Id. at 138, 108 S. Ct. at 2307.
The state statute conflicted with the purpose of §1983 because the
“predominant objective” of the statute was to minimize liability and expenses for
the state while §1983 claims were designed to “provides compensatory relief to
those deprived of their federal rights by state actors.” Id. at 141, 143, 108 S. Ct. at
2308–09. The state statute would produce different outcomes based solely on
11
whether the claim was brought in state or federal court because there was no
federal corollary requiring notice of claims before bringing claims in federal
courts. Id. at 141, 108 S. Ct. at 2308. Finally, the court emphasized, “Civil rights
victims often do not appreciate the constitutional nature of their injuries and thus
will fail to file a notice of injury or claim within the requisite time period, which in
Wisconsin is a mere four months.” Id. at 152, 108 S. Ct. at 2314.
B. Post-Felder developments in the law
Since Felder was decided, a new federal law—the Prison Litigation Reform
Act of 1995 (PLRA)—was enacted, making §1983 claims brought by indigent
inmates subject to certain exhaustion of remedies requirements, as well as barring
federal suits by inmates with at least three previous actions deemed frivolous.
(a) Applicability of administrative remedies
No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.
42 U.S.C.A. § 1997e(a) (West Supp. 2000); see also 28 U.S.C.A. § 1915(g) (West
Supp. 2000) (3-strikes provision).
In 2005, the Ninth Circuit considered the interaction between the PLRA’s
new administrative exhaustion requirements and an inmate’s time-barred state §
1983 claim. See Ngo v. Woodford, 403 F.3d 620 (9th Cir. 2005), rev’d by
Woodford v. Ngo, 548 U.S. 81, 126 S. Ct. 2378 (2006). Specifically, the court
12
addressed whether “the district court properly dismissed a prisoner’s complaint for
failing to exhaust all available administrative remedies as required by the Prison
Litigation Reform Act . . . even though the prisoner’s administrative appeal was
deemed time-barred and no further level of appeal remained in the state prison’s
internal appeals process.” Id. at 622.
The Ngo court recognized the PLRA as “a dramatic departure from
established Supreme Court precedent. Compare Wilwording v. Swenson, 404 U.S.
249, 251, 92 S. Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam) (declaring that
inmates “are not held to any stricter standard of exhaustion [of remedies]” than
other civil rights litigants), with id. § 1997e(a).” 403 F.3d at 623. Ultimately, the
Ngo court reversed the dismissal of the plaintiff’s suit as inconsistent with the
purposes of the PLRA:
[A]dministrative exhaustion rules have two principal purposes. See
McCarthy v. Madigan, 503 U.S. 140, 145, 112 S. Ct. 1081 (1992)
(superseded by amendment of § 1997e(a)). The first is to protect an
administrative agency’s authority by giving the agency the first
opportunity to resolve a controversy before a court intervenes in the
dispute. See id. The second is to promote judicial efficiency by either
resolving the dispute outside of the courts, or by producing a factual
record that can aid the court in processing a plaintiff’s claim. Id. at
145–46, 112 S.Ct. 1081.
....
[W]e hold that Ngo exhausted all administrative remedies available to
him as required by the PLRA when he completed all avenues of
administrative review available to him: His administrative appeal was
deemed time-barred and no further level of appeal remained in the
13
state prison’s internal appeals process. We also hold that the PLRA’s
exhaustion requirement does not bar subsequent judicial consideration
of an exhausted administrative appeal that was denied on state
procedural grounds.
Id. at 624, 630–31.
The United States Supreme Court reversed, holding that “proper exhaustion
of administrative remedies is necessary”:
The PLRA strengthened this exhaustion provision in several ways.
Exhaustion is no longer left to the discretion of the district court, but
is mandatory. See Booth v. Churner, 532 U.S. 731, 739, 121 S. Ct.
1819 (2001). Prisoners must now exhaust all “available” remedies,
not just those that meet federal standards. Indeed, as we held in Booth,
a prisoner must now exhaust administrative remedies even where the
relief sought—monetary damages—cannot be granted by the
administrative process. Id. at 734, 121 S. Ct. 1819. Finally, exhaustion
of available administrative remedies is required for any suit
challenging prison conditions, not just for suits under § 1983.
Woodford v. Ngo, 548 U.S. 81, 85 (2006).
On remand, the Ninth Circuit affirmed the district court’s dismissal of the
plaintiff’s claim. And, because the plaintiff had waited months beyond the 15-day
deadline to file his administrative appeal, the court declined to address whether the
15-day appeal window was facially constitutional, i.e., whether that requirement
gives inmates “a meaningful opportunity to exhaust.” Ngo v. Woodford, 539 F.3d
1108, 1110 (9th Cir. 2008) (citing Felder, 487 U.S. 131, 146 (1988). It also
rejected the plaintiff’s as-applied challenge, and left open the issue of whether
14
exceptional circumstances could excuse non-compliance with PLRA’s
requirements:
It is unclear whether we can read exceptions into the PLRA’s
exhaustion requirement. Compare Woodford v. Ngo, 126 S. Ct. at
2393 (Breyer, J., concurring in the judgment), with Booth v. Churner,
532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Even
if we could, no such exception applies here. Ngo hasn’t shown that
administrative procedures were unavailable, that prison officials
obstructed his attempt to exhaust or that he was prevented from
exhausting because procedures for processing grievances weren’t
followed. Ngo argues that prison officials didn’t follow procedures
and misled him. However, the acts he complains about took place
only after Ngo sent his March 20, 2001, letter to Deputy Warden
Kane. As a result, they could have no effect on Ngo’s ability to
exhaust, as he had already missed the deadline.
Id. at 1110.
Texas courts have heeded the Supreme Court’s admonishment that, under
the PLRA, “proper exhaustion” means “compliance with an agency’s deadlines
and other critical procedural rules.” Leachman v. Dretke, 261 S.W.3d 297, 309
(Tex. App.—Fort Worth 2008, no pet.) (quoting Woodford, 548 U.S. at 90–91, 126
S. Ct. at 2386). For example, the Fort Worth Court of Appeals held that dismissal
of an inmate’s suit with prejudice was proper after the plaintiff missed the 15-day
window to file a Step 1 grievance against prison officials. Id. at 311; see also id. at
310–311 (“Following the reasoning of the Supreme Court in Woodford, we adopt
the interpretation that the exhaustion of remedies requirement under section
501.008 of the government code and section 14.005 of the civil practice and
15
remedies code requires proper exhaustion of remedies, i.e., the timely filing of
grievances, before an inmate may seek judicial review.”).
The Fort Worth court left open the question of whether an “as applied”
constitutional challenge to Texas’s administrative procedures could be viable. Id.
at 311. Specifically, it noted that it need not decide that issue because the plaintiff
would not have benefited from “some kind of discovery rule applied as an
exception to proper exhaustion,” as he knew about his grievance before the 15-day
deadline. Id.
Also relying on the post-Felder enactment of the PLRA, the Beaumont
Court of Appeals has rejected a Supremacy Clause challenge to section 14.005(b)’s
31-day deadline, declining to hold that—under Felder—that deadline was
preempted by federal law. Thomas v. Bush, 23 S.W.3d 215, 217–18 (Tex. App.—
Beaumont 2000, pet. denied).
C. Gilbert’s case
The provisions about which Gilbert complains are a part of a statutory
scheme for inmates to exhaust their remedies within the inmate grievance system
before filing suits, and shorten the time they have to file suit:
§ 501.008. Inmate Grievance System
(a) The department shall develop and maintain a system for the
resolution of grievances by inmates housed in facilities operated by
the department or under contract with the department that qualifies for
certification under 42 U.S.C. Section 1997e and the department shall
16
obtain and maintain certification under that section. A remedy
provided by the grievance system is the exclusive administrative
remedy available to an inmate for a claim for relief against the
department that arises while the inmate is housed in a facility operated
by the department or under contract with the department, other than a
remedy provided by writ of habeas corpus challenging the validity of
an action occurring before the delivery of the inmate to the
department or to a facility operated under contract with the
department.
(b) The grievance system must provide procedures:
(1) for an inmate to identify evidence to substantiate the
inmate’s claim; and
(2) for an inmate to receive all formal written responses to the
inmate’s grievance.
(c) A report, investigation, or supporting document prepared by the
department in response to an inmate grievance is considered to have
been prepared in anticipation of litigation and is confidential,
privileged, and not subject to discovery by the inmate in a claim
arising out of the same operative facts as are alleged in the grievance.
(d) 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.
(e) The limitations period applicable to a claim arising out of the same
operative facts as a claim for which the grievance system provides the
exclusive remedy:
(1) is suspended on the filing of the grievance; and
(2) remains suspended until the earlier of the following dates:
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(A) the 180th day after the date the grievance is filed; or
(B) the date the inmate receives the written decision
described by Subsection (d)(1).
(f) This section does not affect any immunity from a claim for
damages that otherwise exists for the state, the department, or an
employee of the department.
TEX. GOV’T CODE ANN. § 501.008(d) (West 2012).
§ 14.005. Grievance System Decision; Exhaustion of
Administrative Remedies
(a) An inmate who files a claim that is subject to the grievance
system established under Section 501.008, Government Code, shall
file with the court:
(1) an affidavit or unsworn declaration stating the date that the
grievance was filed and the date the written decision described
by Section 501.008(d), Government Code, was received by the
inmate; and
(2) a copy of the written decision from the grievance system.
(b) 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.
(c) If a claim is filed before the grievance system procedure is
complete, the court shall stay the proceeding with respect to the claim
for a period not to exceed 180 days to permit completion of the
grievance system procedure.
TEX. CIV. PRAC. & REM. CODE ANN. § 14.005 (emphasis added).
Although the 31-day deadline for filing a lawsuit is couched within a statute
entitled “Exhaustion of Administrative Remedies,” Gilbert contends that it
operates as a statute of limitations rather than an administrative remedy because it
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truncates when a suit can be filed in court to seek a judicial remedy, rather than
governing procedures or timelines before an administrative agency to obtain an
administrative remedy. For that reason, he argues that section 14.005(b) is
analogous to the “notice of claim” requirement that the Felder court rejected as
preempted under the Supremacy Clause. Nonetheless, the 31-day deadline has
been characterized by other courts as “not a statute of limitations, but a procedural
tool to screen inmate lawsuits.” Doyle v. Lucy, No. 14-03-00039-CV, 2004 WL
612905, at *3 (Tex. App.—Houston [14th Dist.] Mar. 30, 2004, no pet.) (mem.
op.). For the reasons below, we reject Gilbert’s Supremacy Clause argument
regardless of which characterization of section 14.005(b) is correct.
1. Facial Challenge
Changes in the law since Felder was decided have undercut largely, if not
completely, the premise behind Gilbert’s argument for invalidating section
14.005(b) as pre-empted by § 1983. As previously discussed, the Felder court
expressed two primary concerns in invalidating Wisconsin’s notice-of-claim
requirement, i.e., (1) potentially different outcomes depending on whether a case
was brought in state or federal court (because there was no such federal
requirement), and (2) the possibility that inmates might not appreciate the
constitutional nature of their injuries within the notice-of-claim time period.
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Since the PLRA was enacted, these concerns from Felder do not apply to
the section 14.005(b) 31-day time limit for filing suit. The PLRA requires all state
administrative remedies be exhausted before suit can be filed in federal court,
meaning that—assuming section 14.005(b) is an administrative exhaustion
requirement—it would apply equally whether an inmate suit was filed in state or
federal court.2
The concern that an inmate might not appreciate the constitutional nature of
his or her claim is likewise not implicated by section 14.005(b)’s 31-day filing
deadline because neither a state or federal suit can be brought until the inmate
claim has been through the prison’s internal grievance system. In other words,
unlike the notice-of-claim requirement in Felder, the 31-day court filing deadline
in section 14.005(b) does not come into play until after the inmate has identified
his or her complaint and adjudicated it throughout the prison grievance procedures.
See Randle v. Wilson, 26 S.W.3d 513, 516 (Tex. App.—Amarillo 2000, no pet.)
(“This is not a circumstance wherein the inmate merely has 31 days to discover the
claim and then initiate suit upon it; he already knows of it.”).
Given the Supreme Court’s reasoning in Woodford, we reject Gilbert’s facial
constitutional challenge to section 14.005(b). Under Woodford, an inmate’s
2
And, if section 14.005(b) is instead a statute of limitations, federal courts borrow
the state statute of limitations for § 1983 actions, see Wallace v. Kato, 549 U.S.
384, 387 127 S. Ct. 1091, 1095 (2007), which would again lead to the same
application of the 31-day filing requirement.
20
misstep in timely complying with any prison internal grievance administrative
procedure forecloses a § 1983 claim in state or federal court because of the
requirement that all administrative procedures be properly and timely complied
with. Woodford, 548 U.S. at 90, 126 S. Ct. at 2386 (“Proper exhaustion demands
compliance with an agency’s deadlines and other critical procedural rules.”). We
see no reason that the Supreme Court would treat Texas’s 31-day court filing
requirement differently.
Accordingly, we hold that, on its face, the 31-day deadline in §14.005 of
the Civil Practice and Remedies Code does not violate the Supremacy Clause of
the federal constitution for §1983 claims. We overrule Gilbert’s fourth issue.
2. As-applied
We interpret Gilbert’s arguments about his inability to comply with the 31-
day deadline as an as-applied challenge to section 14.005(b). Gilbert focuses his
argument on the alleged unreasonableness of subjecting pro se inmates without
legal training and with limited time in the law library to a 31-day limitations
period. Such reasoning has been rejected by other courts, and we reject it here.
[A] state may require inmates to comply with rules that make the trial
process possible or that facilitate the functioning of our system of
justice. Hodge v. Prince, 730 F. Supp. 747, 751 (N.D. Tex. 1990),
aff’d, 923 F.2d 853 (5th Cir. 1991). A limitation period, such as the
31 day period at bar, is akin to such a rule. It exists not only to compel
litigants to action, but also provides our judicial system an opportunity
to timely and efficiently address legitimate claims and injuries, thus, it
serves a reasonable purpose. Moreover, it is not unreasonable to
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expect inmates to comply with it. For a prisoner who has already
pursued a grievance through administrative channels and has
exhausted his administrative remedies, 31 days to convert that
grievance into a lawsuit is ample time to act. This is not a
circumstance wherein the inmate merely has 31 days to discover the
claim and then initiate suit upon it; he already knows of it.
Randle v. Wilson, 26 S.W.3d 513, 516 (Tex. App.—Amarillo 2000, no pet.); see
also Wallace v. Tex. Dep’t of Criminal Justice-Institutional Div., 36 S.W.3d 607,
611 n.4 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (“The 31 day period
for filing suit in section 14.005(b) serves a reasonable purpose by allowing the
judicial system an opportunity to address legitimate claims and injuries in a timely
and efficient manner.”).
Significantly, Gilbert does not argue that he was unaware of the deadline, or
that prison or court officials interfered with his ability to comply with the deadline.
As the Ninth Circuit did in Ngo, and the Amarillo Court of Appeals did in Randle,
we leave open the question of whether—and under what circumstances—an
inmate’s individual circumstances could excuse compliance with administrative
procedures or filing deadlines. We hold only that Gilbert has not made such a
showing here.
We overrule Gilbert’s fourth issue.
CONCLUSION
We affirm the trial court’s judgment.
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Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
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