IN THE
TENTH COURT OF APPEALS
No. 10-15-00387-CV
BRYAN E. GREEN,
Appellant
v.
RACHELLE BARLOW, ET AL,
Appellee
From the 12th District Court
Walker County, Texas
Trial Court No. 1527478
MEMORANDUM OPINION
In this appeal, appellant Bryan E. Green, challenges the trial court’s dismissal of
his lawsuit against appellees, Rachelle Barlow, Robert Castleberry, and the Texas
Department of Criminal Justice (“TDCJ”). Because we conclude that Green has not
complied with the requirements of Chapter 14 of the Texas Civil Practice and Remedies
Code, we affirm. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.001-.014 (West 2002 & Supp.
2015).
I. BACKGROUND
On July 1, 2015, Green, an inmate, filed suit against Officer Barlow and Major
Castleberry, in their individual and official capacities, and the TDCJ. Specifically, Green
alleged that Officer Barlow “committed assault and battery against [him] . . . when she
used excessive, non-provoked, and unnecessary force . . . in a malicious and sadistic
manner . . . and shoved the Plaintiff . . . by initially pushing against my chest with her
chest and then shoving me with her arms in an extremely forceful manner” while he was
in the infirmary for an ankle injury. Green further asserted that Officer Barlow assaulted
him when he was shoved for interfering with Officer Barlow’s headcount. Moreover,
Green alleged that Officer Barlow exposed him to significant risk by threatening to tell
other inmates that he was incarcerated for child molestation.
Green also contended that Major Castleberry threatened him with imminent
bodily injury when Major Castleberry stated “the next time I will make sure that we leave
bigger bruises on your chest” in response to comments made by Green. And finally,
Green asserted negligence claims against TDCJ for its investigation of his grievances and
for allowing Officer Barlow and Major Castleberry to act in the manner about which he
complains.
In addition to his original petition, Green filed a declaration of inability to pay
court costs, a certified copy of his inmate account, a declaration of previous lawsuits, and
a declaration “as to grievance system decision and exhaustion of administrative
Green v. Barlow Page 2
remedies.” The Texas Attorney General’s Office responded to Green’s lawsuit by filing
an Amicus Curiae Chapter 14 Advisory advancing numerous grounds for dismissal.
Green filed an opposition to the Attorney General’s Advisory. Without a hearing, the
trial court dismissed Green’s lawsuit “as frivolous for failure to comply with Chapter
Fourteen of the Texas Civil Practice and Remedies Code.” This appeal followed.
II. ANALYSIS
An inmate proceeding in forma pauperis, as Green alleges, is subject to the
procedural requirements of Chapter 14. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.002;
see also Moore v. Zeller, 153 S.W.3d 262, 263 (Tex. App.—Beaumont 2004, pet. denied).
Under Chapter 14, the trial court has broad discretion to dismiss a lawsuit as frivolous or
malicious. Moore, 153 S.W.3d at 262 (citing Retzlaff v. Tex. Dep’t of Criminal Justice, 94
S.W.3d 650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)). As such, we review
the dismissal of suits under Chapter 14 under an abuse-of-discretion standard. Id. (citing
Hines v. Massey, 79 S.W.3d 269, 271 (Tex. App.—Beaumont 2002, no pet.)). A trial 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).
Chapter 14 requires the inmate to file an affidavit or declaration “relating to
previous filings” in which the inmate must detail all previous actions filed pro se, other
than a suit under the Family Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a); see
also McClure v. Tex. Dep’t of Criminal Justice, No. 10-12-00481-CV, 2014 Tex. App. LEXIS
Green v. Barlow Page 3
2284, at *2 (Tex. App.—Waco Feb. 27, 2014, pet. denied) (mem. op.). Moreover, the inmate
is required to file a certified copy of his “inmate trust account statement” that “reflect[s]
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.” TEX. CIV. PRAC. & REM.
CODE ANN. § 14.004(c), .006(f); see Amir-Sharif v. Mason, 243 S.W.3d 854, 857 (Tex. App.—
Dallas 2008, no pet.). These filings are “an essential part of the process by which courts
review inmate litigation.” Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.—Waco 1996,
no writ).
Here, Green filed an affidavit purportedly complying with section 14.004 that lists
only one previous filing in federal court. As listed by Green, the facts in his federal
lawsuit are the same operative facts as involved in this case. Moreover, Green’s federal
and state claims involve the same defendants and similar causes of action. Green also
alleges in his affidavit that the suit is still pending in federal court.
With regard to situations such as this, the Fourteenth Court of Appeals has noted:
The purpose of sections 14.003 and 14.004 is obvious; the Texas Legislature
recognized the problem of constant, often duplicative, inmate litigation in
this state, and sought to reduce it by requiring the inmate to notify the trial
court of previous litigation and the outcome. In this way, the trial court
could determine, based on previous filings, if the suit was frivolous because
the inmate had already filed a similar claim.
Bell v. Tex. Dep’t of Criminal Justice-Inst. Div., 962 S.W.2d 156, 158 (Tex. App.—Houston
[14th Dist.] 1998, pet. denied).
Green v. Barlow Page 4
Indeed, section 14.003(b)(4) provides that the trial court may dismiss an inmate
suit as frivolous or malicious if “the claim is substantially similar to a previous claim filed
by the inmate because the claim arises from the same operative facts. TEX. CIV. PRAC. &
REM. CODE ANN. § 14.003(b)(4). Therefore, based on Green’s affidavit, the trial court could
have dismissed his suit under section 14.003(b)(4). See id.; see also Samuels v. Strain, 11
S.W.3d 404, 406-07 (Tex. App.—Houston [1st Dist.] 2000, no pet.); Bell, 962 S.W.2d at 158.
In any event, in its Amicus Curiae Advisory filed in the trial court, the Attorney
General’s Office stated that Green’s federal lawsuit was actually disposed of prior to
Green’s filing of his original petition in this case. The Attorney General’s Office noted
that the federal court dismissed Green’s federal suit “for failure to state a claim predicated
on failure to exhaust,” which is the equivalent of dismissing an inmate suit for failing to
exhaust administrative remedies. See Houser v. Harrell, No. 09-05-350-CV, 2006 Tex. App.
LEXIS 8641, at *5 (Tex. App.—Beaumont Oct. 5, 2006, no pet.) (“In essence, section 14.005
allows the trial court to ensure that an inmate proceeding in forma pauperis has first
exhausted an applicable grievance procedure. See Smith v. Tex. Dep’t of Crim. Justice—
Inst’l Div., 33 S.W.3d 338, 341 (Tex. App.—Texarkana 2000, pet. denied) (“Though not
expressly stated, the purpose of section 14.005 is to permit dismissal of a suit when it is
clear the inmate has failed to provide the statutorily required information. Id. The trial
court should dismiss a claim if the inmate does not exhaust the grievance procedures and
fails to fulfill the procedural requirements prior to filing the lawsuit. Id.”). Thus, Green’s
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lawsuit could have also been dismissed under section 14.005 for failure to exhaust
administrative remedies. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.005; Smith, 33 S.W.3d
at 341; see also Houser, 2006 Tex. App. LEXIS 8641, at *5.
Additionally, section 14.005 requires a trial court to dismiss a claim if the inmate
fails to file the claim before the thirty-first day after the date he received the written
decision from the grievance system. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(b);
see also Moore, 153 S.W.3d at 264 (citing Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex.
App.—Houston [1st Dist.] 2002, no pet.)). To determine whether the inmate’s suit was
filed within the period required by section 14.005(b), the inmate must file (1) an affidavit
or unsworn declaration stating the date the grievance was filed and the date the written
decision was received by the inmate; and (2) a copy of the written decision from the
grievance system. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(a). In the instant case,
Green’s “verbatim, hand-written copy of the Step 2 Grievance Decision” does not meet
the requirements of section 14.005(a), as it does not include a copy of the decisions, if any,
of the grievance system. See id.; see also Moore, 153 S.W.3d at 264 (citing Bishop v. Lawson,
131 S.W.3d 571, 574 (Tex. App.—Fort Worth 2004, pet. denied)).
Furthermore, the Attorney General’s Office alleged that Green’s lawsuit should be
dismissed under section 14.003 for knowingly filing a false declaration of indigence.
Section 14.003(a)(1) provides that a “court may dismiss a claim, either before or after
service of process, if the court finds that . . . the allegation of poverty in the affidavit or
Green v. Barlow Page 6
unsworn declaration is false.” TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(1). Texas
Rule of Civil Procedure 145 defines a “party who is unable to afford costs” as a person
who either (1) presently receives governmental entitlements based on indigency; or (2)
“any other person who has no ability to pay costs.” TEX. R. CIV. P. 145(a). Texas courts
have stated that an inmate who has no money or property is considered indigent.
McClain v. Terry, 320 S.W.3d 394, 397 (Tex. App.—El Paso 2010, no pet.) (citing Allred v.
Lowry, 597 S.W.2d 353, 355 (Tex. 1980)). “An inmate who has funds in his trust account
is not indigent.” Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 14.006(b)(1)). “The statute
outlines a formula by which an inmate’s trust funds can be utilized for payment of costs.”
Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 14.006(b)(1)).
Green’s inmate account statement reflects that his average monthly balance in the
six-month period preceding his lawsuit was $33.00 and that $451.95 had been deposited
into his account in the previous six months. In April 2015, approximately two months
prior to filing his original petition, Green had an account balance of $261.31. However,
in the two months preceding his lawsuit, Green’s balance dwindled to $9.95. And on the
date of the account statement, Green’s balance was $0.00. Nevertheless, Green’s account
statement indicates that his six-month average deposits was $75.33. Furthermore, in his
opposition to the Attorney General’s advisory, Green asserts that he has “a continued
pattern of having [his] older sister deposit $100 sums into [his] account on a quarterly
basis . . . .“
Green v. Barlow Page 7
Based on the foregoing, we cannot say that Green’s account statement
demonstrates no ability to pay costs. See TEX. R. CIV. P. 145(a); Donaldson v. Dir. Tex. Dep’t
of Criminal Justice, 355 S.W.3d 722, 725 (Tex. App.—Tyler 2011, pet. denied) (holding that
an inmate plaintiff had submitted a false allegation of poverty when he had an account
balance of $233.75 at the time his petition was filed and an average monthly balance of
$63.42 in the six-month period preceding his lawsuit); see also Waddleton v. Tex. Dep’t of
Criminal Justice, No. 13-13-00512-CV, 2015 Tex. App. LEXIS 7850, at **7-8 (Tex. App.—
Corpus Christi July 30, 2015, pet. denied) (mem. op.) (concluding that the trial court did
not abuse its discretion in dismissing an inmate suit for a false allegation of poverty when
the account statement showed that the inmate had an average six-month balance of
$237.58 and a balance of $251.90 at the time of filing); Atkins v. Herrera, Nos. 10-13-00283-
CV, 10-13-00284-CV, 2014 Tex. App. LEXIS 6050, at **6-11 (Tex. App.—Waco June 5, 2014,
no pet.) (mem. op.) (concluding that an inmate had filed a false allegation of poverty
when an inmate’s account statement showed $705 in deposits in the six months prior to
filing suit, a six-month average balance of $227.60, a high balance of $362, an account
balance that dwindled to $0.00 shortly after filing suit, and an acknowledgement from
the inmate that his family had contributed $405 to his account in the last six months); Vega
v. Tex. Dep’t of Criminal Justice-Inst. Div., No. 12-10-00149-CV, 2011 Tex. App. LEXIS 5888,
at **4-7 (Tex. App.—Tyler July 29, 2011, no pet.) (mem. op.) (concluding that an inmate
filed a false allegation of poverty when his statement had an average monthly balance of
Green v. Barlow Page 8
$172.02 in the six months preceding the lawsuit, an average monthly deposit of $88.30,
and $220 in deposits made in the three months prior to filing of suit). Accordingly, we
conclude that the trial court could have dismissed Green’s lawsuit as frivolous under
section 14.003(a)(1) for filing a false declaration of indigence. See TEX. R. APP. P. 145(a);
TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(1); Donaldson, 355 S.W.3d at 725; see also
Waddleton, 2015 Tex. App. LEXIS 7850, at **7-8; Atkins, 2014 Tex. App. LEXIS 6050, at **6-
11; Vega, 2011 Tex. App. LEXIS 5888, at **4-5 (“Generally, the test for determining
entitlement to proceed in forma pauperis is whether the preponderance of the evidence
shows that the appellant would be unable to pay the costs of his suit if he wanted to and
made a good faith effort to do so.” (emphasis in original) (citing Griffin Indus. v. Thirteenth
Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996))).
Given the above, we cannot say that the trial court abused its discretion in
dismissing Green’s lawsuit as frivolous. See Moore, 153 S.W.3d at 262; Retzlaff, 94 S.W.3d
at 653; Hines, 79 S.W.3d at 271; see also Downer, 701 S.W.2d at 241-42. We therefore
overrule Green’s first three issues. And having overruled his first three issues, we need
not address his remaining seven issues. See TEX. R. APP. P. 47.1, 47.4.
III. CONCLUSION
We affirm the judgment of the trial court.
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AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 10, 2016
[CV06]
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