COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00109-CV
THOMAS FLORENCE APPELLANT
V.
MARTINAY DAVENPORT III; APPELLEES
JAMES STIVERS, GRIEVANCE
INVESTIGATOR; JAMES ANDERS,
ASSISTANT WARDEN; MARK
ROTH, STEP II GRIEVANCE
INVESTIGATOR; TDCJ-CID
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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 183,643-B
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MEMORANDUM OPINION1
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1
See Tex. R. App. P. 47.4.
Appellant Thomas Florence, an inmate, appeals the dismissal of his civil
suit for failure to comply with Chapter 14 of the Texas Civil Practice and
Remedies Code. We affirm.
BACKGROUND
As we understand Florence’s complaint, Officer Martinay Davenport filed a
false report against him for masturbating in public after she allegedly saw him
masturbating at his cell door and later falsely testified against him at a hearing.
After the hearing, the hearing officer found Florence not guilty based upon
conflicting testimony and a video that failed to show him at his cell door.
Thereafter, Florence filed a Step I grievance against Officer Davenport for
filing a false report, for giving false testimony, and for misconduct. James
Stivers, the Step I grievance investigator, whose signature on the Step 1
“Offender Grievance Form” is not legible but whose investigator identification
number (investigator # I0894) is, took no action because Florence “did not
receive a disciplinary case” and because “Officer Davenport stated that she did
not write a case.”
Florence then filed a Step II grievance against Stivers and Officer
Davenport. Florence maintained that Stivers was covering up for the prison staff
because Florence had spoken to Officer Davenport, who had told him that no
grievance investigator had spoken to her. Florence further asserted that Officer
Davenport had denied telling any grievance investigator that she had not charged
him. Mark Roth, the Step II grievance investigator, ruled as follows:
2
Your Step 1 grievance investigation and response have been
reviewed by this office and appears to be appropriate and correct.
Records indicate you were at your cell door when Officer
[Davenport] turned on the light and saw you masturbating. No new
evidence [w]as found to support your claims of misconduct by Officer
Davenport or that you were written a false case. Further action is
unwarranted at this time.
Florence responded by filing a petition, which he calls a “Civil Complaint,”
in district court. He attached the “TDCJ Disciplinary Report and Hearing Record”
to his “Civil Complaint.” Florence sued Appellees Officer Davenport, Stivers,
Roth, Assistant Warden James Anders, and TDCJ-CID.
On January 7, 2016, Appellees filed a “Motion to Dismiss Pursuant to
Chapter 14.” “Chapter 14” refers to Chapter 14 of the civil practice and remedies
code, which applies to civil suits in which an “affidavit or unsworn declaration of
inability to pay costs is filed by the inmate.”2 Florence was attempting to proceed
as an indigent. On the same date, the trial court ordered Florence’s claims
dismissed with prejudice for failure to comply with Chapter 14.
ARGUMENT
In one issue, Florence argues that the trial court abused its discretion by
adopting Appellees’ misrepresentations and granting their motion to dismiss.
Florence’s brief addresses many of the points that Appellees raised in their
motion to dismiss. Florence’s brief does not, however, address the one point
Appellees raised that interests us—whether he filed his suit “before the 31st day
2
Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (West Supp. 2016).
3
after the date” he received the ruling in his Step II grievance, as required by
section 14.005(b).3
In their motion to dismiss, Appellees asserted a series of arguments in
which they contended that Florence had not complied with Chapter 14. One of
their arguments was that Florence, after receiving the written decision on his
Step II grievance, failed to file his suit “before the 31st day after the date [he]
receive[d] the written decision.”4 Appellees maintained that Florence received
the Step II grievance result on October 5, 2015, but he did not file his suit until
November 23, 2015, which was not timely.5
Our review of the record shows that Roth made his Step II grievance
response on October 5, 2015. The Step II “Offender Grievance Form” does not
show when Florence received it. In Florence’s “Civil Complaint,” he states that
he received the October 5, 2015 ruling on October 19, 2015, and directs us to the
Step II “Offender Grievance Form,” on which there is an “October 19, 2015”
stamp. We can see the October 19, 2015 stamp, but without Florence’s
explanation, the stamped date’s significance is not clear from the form itself.
Because Florence admits receiving the Step II ruling on October 19, 2015, we
will use that date to determine whether he timely filed his “Civil Complaint.”
3
Id. § 14.005(b) (West 2002).
4
See id.
5
See id.
4
Thirty-one days from October 19, 2015, was Thursday, November 19,
2015.6 Florence filed his suit on Monday, November 23, 2015. He therefore filed
his “Civil Complaint” too late under section 14.005(b).7 In his brief, Florence
never addresses why he filed his suit late.
In his reply brief, however, Florence asserts that his civil suit was filed
timely. He directs us to Exhibits A1 and A2 attached to his brief. Attachments to
briefs are not part of the record and cannot be considered.8 However, Florence’s
Exhibits A1 and A2 roughly correspond to the clerk’s index that does appear in
the clerk’s record, which we can consider.
From reviewing the index found in the clerk’s record and the clerk’s record
itself, our understanding is that Florence mailed the paperwork for his suit in two
envelopes. The contents of one envelope were filed on November 23, 2015.
The contents of the other envelope were filed on December 7, 2015. As will be
discussed below, the documents filed on November 23, 2015, appear to have
been mailed no earlier than November 20, 2015, and we cannot determine from
the record when the documents filed on December 7, 2015, were mailed.
6
See Tex. R. Civ. P. 4.
7
See Tex. Civ. Prac. & Rem. Code Ann. § 14.005(b).
8
See Van De Loo v. Van De Loo, No. 05-00-01010-CV, 2001 WL 541457,
at *1 n.1 (Tex. App.—Dallas May 23, 2001, no pet.) (not designated for
publication).
5
Among the documents filed on November 23, 2015, are (1) the “Civil
Complaint,” dated November 11, 2015, (2) a signed declaration under section
14.004, dated November 20, 2015, (3) what appears to be a cover letter dated
November 20, 2015, and (4) a certified copy of Florence’s trust account
statement, dated November 10, 2015. Florence signed his “Civil Complaint” on
November 11, 2015, but his certificate of service shows simply where he mailed
his “Civil Complaint” and not when he mailed his “Civil Complaint.” There is no
envelope accompanying these documents. Based upon the cover letter and the
signed declaration, the earliest this set of documents could have been mailed
was November 20, 2015.
The November 20, 2015 cover letter itself provides, “My 2nd Envelope,
was returned for postage. It contained the I.F.P. [in forma pauperis] form that
compl[ies] with 45 T.R.C.P. Enclosed is T.R.C.P/ Rem. Code. 14.004
compliance [‘Affidavit Relating to Previous Filings’]. All other mandates are met
and said pleadings.” Appellant points to no evidence in the record, however, that
indicates that his petition (“Civil Complaint”) was filed before November 20, 2016.
Among the documents filed on December 7, 2015, are Attachments 6, 7, 8,
9, 10, and 11 to the “Civil Complaint” (but not the “Civil Complaint” itself, which
was filed on November 23, 2015) and a duplicate of the certified copy of
Florence’s trust account statement. There is also an envelope that the clerk, in
its index, categorized as accompanying these documents, but its postmark is not
legible.
6
Although Florence does not articulate why he believes he filed his civil suit
timely, the only possible ground for timeliness that we perceive is the Texas
Supreme Court’s rule delivered in Warner v. Glass that under the Inmate
Litigation Act, a pro se inmate’s civil petition, enclosed in a properly addressed
and stamped envelope or wrapper, is deemed filed when given to prison
authorities for mailing.9 But this rule does not help Florence. There is no
evidence in the record that he filed his claim before the 31st day after October
19, which would have been November 19, 2015. The earliest day his claim was
filed, according to the record, was November 20, 2015. Thus, the record shows
that he filed his claim too late.
Because Florence did not file his suit before the 31st day after the date he
received the ruling in his Step II grievance, as required by section 14.005(b), we
hold that the trial court did not abuse its discretion by dismissing his suit.10 We
overrule Florence’s issue.
In Florence’s August 8, 2016 document filed before Appellee’s brief, which
we treated as his supplemental brief, and again in his reply brief, he raises the
supplemental issue that the dismissal order should have been without prejudice
9
135 S.W.3d 681, 684–85 (Tex. 2004).
10
See Tex. Civ. Prac. & Rem. Code Ann. § 14.005(b).
7
instead of with prejudice. But Florence could not amend his pleadings to remedy
the untimely filing of his petition.11 We overrule his supplemental point.
CONCLUSION
The trial court’s order dismissing Florence’s claims with prejudice is
affirmed. All of Florence’s pending requests for relief are denied.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
DELIVERED: December 1, 2016
11
See Geiger v. Milburn, No. 02-13-00250-CV, 2014 WL 487190, at *3
(Tex. App.—Fort Worth Feb. 6, 2014, no pet.) (mem. op.).
8