NUMBER 13-20-00030-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ADOLFO GARCIA YBARRA JR., Appellant,
v.
WARDEN STRONG, ET AL., Appellees.
On appeal from the 278th District Court of Walker County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Tijerina Memorandum Opinion by Justice Longoria
Appellant Adolfo Garcia Ybarra Jr., an inmate housed in the Texas Department of
Criminal Justice Correctional Institutions Division (TDCJ–CID), filed a pro se in forma
pauperis suit against appellees Kelly Strong, Robert Jenkins, Christopher Lacox, Charles
Landis, Matt Gross, John Kolek, Gary Ferguson, Jan Gustafson, Eric Gilcrease, Angelina
McMillan, Ashley Wisneiske, Timothy Prieschel, and Elliot Ruiz, all employees of TDCJ– CID. Appellant sued appellees in their individual and official capacities for tortious and
unconstitutional conduct he alleges occurred while he was incarcerated at the Ellis Unit.
See 42 U.S.C.A. § 1983. Appellees filed a motion to dismiss pursuant to Chapter 14 of
the Texas Civil Practices and Remedies Code and the Texas Tort Claims Act (TTCA).
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001–.014; 101.106(e), (f). The trial court
granted the motion to dismiss with prejudice. By five issues, appellant argues that the trial
court erred because (1) he timely filed suit within thirty days; (2) he exhausted his
administrative remedies with respect to appellees; (3) he substantially complied with the
requirement of an affidavit; (4) his § 1983 claims are not subject to the TTCA; and (5) the
trial court abused its discretion by dismissing the claims with prejudice. We affirm.
I. BACKGROUND 1
On October 31, 2018, appellant filed suit and alleged that on July 23, 2018,
Gilcrease refused to let him “release [his] ‘bowels’” while he was working in the fields at
the Ellis Unit and subsequently that Gilcrease threatened to shoot him when he turned to
speak to another officer about it. Appellant filed Step 1 and Step 2 grievances concerning
this incident. See id. § 14.005. Appellant further alleged that various appellees retaliated
against him and made “terroristic threats” to his life for filing or attempting to file
grievances, falsely charged him with disciplinary infractions, illegally released his
personal information, were guilty of cruel and inhumane treatment, deprived him of legal
materials and property while in pre-hearing detention, engaged in conspiracy, and
endangered his life.
1This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. 2 On November 1, 2018, the trial court ordered the Attorney General to file an amicus
curiae advisory opinion with the court as to whether the inmate had satisfied all the
statutory requirements of Chapter 14. See id. §§ 14.001–.014. The Attorney General’s
Office served its amicus curiae advisory opinion on January 4, 2019, stating that appellant
had not complied with the exhaustion remedies in Chapter 14 and suggested that the
proceedings be stayed for a period of 180 days to allow appellant to properly complete
the grievance procedure. The trial court stayed the proceedings on January 8, 2019.
Appellant filed a handwritten “Motion for Leave to File an Amended
Pleading/Complaint” to comply with the requirements of Chapter 14 ten days later, which
was granted and served as his amended petition. In his amended petition, appellant listed
two prior in forma pauperis lawsuits, but failed to include the operative facts of the cases,
the identity of each party named in the suit, and whether the dismissal of the suit was
based on a claim that was frivolous or malicious. See id. § 14.004(a)(2). On April 8, 2019,
appellant asked the court to issue a Temporary Restraining Order (TRO) “preventing
[appellees] from retaliating” and “‘transfer[ing] [him] immediately’ no less than fifty miles
from here,” as well as seeking an Order to Show Cause for a Preliminary Injunction.
In appellees’ original answer, they plead the affirmative defense of official,
qualified, and sovereign immunity from suit. On October 23, 2019, appellees filed
“Defendants’ Objections to Plaintiff’s Request for a Temporary Restraining Order and
Preliminary Injunction, Defendants’ Amended Motion to Dismiss, and Defendants’
Amended Partial Motion to Dismiss.” Additionally, appellees asserted that appellant failed
to fully and timely exhaust his administrative remedies pursuant to Chapter 14, and so
3 appellant should be barred from filing suit. Id. §§ 14.001–.014. Following a hearing, the
trial court signed a final judgment denying appellant’s request for a TRO and preliminary
injunction and granting appellees’ motion to dismiss with prejudice. This appeal followed.
II. CHAPTER 14
By his first four issues, appellant argues that the trial court abused its discretion by
dismissing his claims with prejudice under Chapter 14 because he satisfied the
procedural requirements of the statute.
A. Standard of Review and Applicable Law
The trial court has broad discretion to dismiss a lawsuit brought under Chapter 14
as frivolous or malicious. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2); Lentworth
v. Trahan, 981 S.W.2d 720, 722 (Tex. App.—Houston [1st Dist.] 1998, no pet.). This is
because: “(1) prisoners have a strong incentive to litigate; (2) the government bears the
cost of an in forma pauperis suit; (3) sanctions are not effective; and (4) the dismissal of
unmeritorious claims accrues to the benefit of state officials, courts, and meritorious
claimants.” Retzlaff v. Tex. Dep’t of Crim. Justice, 94 S.W.3d 650, 653 (Tex. App.—
Houston [14th Dist.] 2002, pet. denied). When determining if a claim is frivolous or
malicious the trial court may consider whether:
(1) the claim’s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) 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). Accordingly, we review the dismissal of a
claim under Chapter 14 of the Civil Practice and Remedies Code for an abuse of
4 discretion. See Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ).
The trial court abuses its discretion if it ruling is arbitrary or unreasonable or if it acts
without reference to any guiding legal principles. Id.
Section 14.004 requires an inmate who files an affidavit or unsworn declaration of
inability to pay to file a separate affidavit identifying each action (other than under the
Family Code) previously brought by the person in which the person was not represented
by an attorney. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a)(1). The inmate must
also describe each action previously brought by the inmate by stating the operative facts
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NUMBER 13-20-00030-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ADOLFO GARCIA YBARRA JR., Appellant,
v.
WARDEN STRONG, ET AL., Appellees.
On appeal from the 278th District Court of Walker County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Tijerina Memorandum Opinion by Justice Longoria
Appellant Adolfo Garcia Ybarra Jr., an inmate housed in the Texas Department of
Criminal Justice Correctional Institutions Division (TDCJ–CID), filed a pro se in forma
pauperis suit against appellees Kelly Strong, Robert Jenkins, Christopher Lacox, Charles
Landis, Matt Gross, John Kolek, Gary Ferguson, Jan Gustafson, Eric Gilcrease, Angelina
McMillan, Ashley Wisneiske, Timothy Prieschel, and Elliot Ruiz, all employees of TDCJ– CID. Appellant sued appellees in their individual and official capacities for tortious and
unconstitutional conduct he alleges occurred while he was incarcerated at the Ellis Unit.
See 42 U.S.C.A. § 1983. Appellees filed a motion to dismiss pursuant to Chapter 14 of
the Texas Civil Practices and Remedies Code and the Texas Tort Claims Act (TTCA).
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001–.014; 101.106(e), (f). The trial court
granted the motion to dismiss with prejudice. By five issues, appellant argues that the trial
court erred because (1) he timely filed suit within thirty days; (2) he exhausted his
administrative remedies with respect to appellees; (3) he substantially complied with the
requirement of an affidavit; (4) his § 1983 claims are not subject to the TTCA; and (5) the
trial court abused its discretion by dismissing the claims with prejudice. We affirm.
I. BACKGROUND 1
On October 31, 2018, appellant filed suit and alleged that on July 23, 2018,
Gilcrease refused to let him “release [his] ‘bowels’” while he was working in the fields at
the Ellis Unit and subsequently that Gilcrease threatened to shoot him when he turned to
speak to another officer about it. Appellant filed Step 1 and Step 2 grievances concerning
this incident. See id. § 14.005. Appellant further alleged that various appellees retaliated
against him and made “terroristic threats” to his life for filing or attempting to file
grievances, falsely charged him with disciplinary infractions, illegally released his
personal information, were guilty of cruel and inhumane treatment, deprived him of legal
materials and property while in pre-hearing detention, engaged in conspiracy, and
endangered his life.
1This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. 2 On November 1, 2018, the trial court ordered the Attorney General to file an amicus
curiae advisory opinion with the court as to whether the inmate had satisfied all the
statutory requirements of Chapter 14. See id. §§ 14.001–.014. The Attorney General’s
Office served its amicus curiae advisory opinion on January 4, 2019, stating that appellant
had not complied with the exhaustion remedies in Chapter 14 and suggested that the
proceedings be stayed for a period of 180 days to allow appellant to properly complete
the grievance procedure. The trial court stayed the proceedings on January 8, 2019.
Appellant filed a handwritten “Motion for Leave to File an Amended
Pleading/Complaint” to comply with the requirements of Chapter 14 ten days later, which
was granted and served as his amended petition. In his amended petition, appellant listed
two prior in forma pauperis lawsuits, but failed to include the operative facts of the cases,
the identity of each party named in the suit, and whether the dismissal of the suit was
based on a claim that was frivolous or malicious. See id. § 14.004(a)(2). On April 8, 2019,
appellant asked the court to issue a Temporary Restraining Order (TRO) “preventing
[appellees] from retaliating” and “‘transfer[ing] [him] immediately’ no less than fifty miles
from here,” as well as seeking an Order to Show Cause for a Preliminary Injunction.
In appellees’ original answer, they plead the affirmative defense of official,
qualified, and sovereign immunity from suit. On October 23, 2019, appellees filed
“Defendants’ Objections to Plaintiff’s Request for a Temporary Restraining Order and
Preliminary Injunction, Defendants’ Amended Motion to Dismiss, and Defendants’
Amended Partial Motion to Dismiss.” Additionally, appellees asserted that appellant failed
to fully and timely exhaust his administrative remedies pursuant to Chapter 14, and so
3 appellant should be barred from filing suit. Id. §§ 14.001–.014. Following a hearing, the
trial court signed a final judgment denying appellant’s request for a TRO and preliminary
injunction and granting appellees’ motion to dismiss with prejudice. This appeal followed.
II. CHAPTER 14
By his first four issues, appellant argues that the trial court abused its discretion by
dismissing his claims with prejudice under Chapter 14 because he satisfied the
procedural requirements of the statute.
A. Standard of Review and Applicable Law
The trial court has broad discretion to dismiss a lawsuit brought under Chapter 14
as frivolous or malicious. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2); Lentworth
v. Trahan, 981 S.W.2d 720, 722 (Tex. App.—Houston [1st Dist.] 1998, no pet.). This is
because: “(1) prisoners have a strong incentive to litigate; (2) the government bears the
cost of an in forma pauperis suit; (3) sanctions are not effective; and (4) the dismissal of
unmeritorious claims accrues to the benefit of state officials, courts, and meritorious
claimants.” Retzlaff v. Tex. Dep’t of Crim. Justice, 94 S.W.3d 650, 653 (Tex. App.—
Houston [14th Dist.] 2002, pet. denied). When determining if a claim is frivolous or
malicious the trial court may consider whether:
(1) the claim’s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) 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). Accordingly, we review the dismissal of a
claim under Chapter 14 of the Civil Practice and Remedies Code for an abuse of
4 discretion. See Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ).
The trial court abuses its discretion if it ruling is arbitrary or unreasonable or if it acts
without reference to any guiding legal principles. Id.
Section 14.004 requires an inmate who files an affidavit or unsworn declaration of
inability to pay to file a separate affidavit identifying each action (other than under the
Family Code) previously brought by the person in which the person was not represented
by an attorney. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a)(1). The inmate must
also describe each action previously brought by the inmate by stating the operative facts
for which relief was sought, listing the case name, cause number, and the court in which
the action was brought, identifying each party named in the action, and stating the result
of the action, including whether the action or a claim that was a basis for the action was
dismissed as frivolous or malicious. Id. § 14.004 (a)(2). An inmate may avoid dismissal
by substantially complying with the statute. See Gowan v. Tex. Dep’t of Crim. Just., 99
S.W.3d 319, 322 (Tex. App.—Texarkana 2003, no pet.) (finding substantial compliance
when appellant failed to list a cause number). The purpose of the affidavit requirement is
so the trial court can determine, based on previous filings, if the suit is frivolous because
the inmate has already filed a similar claim. See Bell v. Tex. Dep’t of Crim. Just.–
Institutional Div., 962 S.W.2d 156, 158 (Tex. App.—Houston [14th Dist.] 1998, pet.
denied). Therefore, an affidavit that “identifies neither the parties nor the operative facts
cannot be said to be in substantial compliance with the requirements of [§] 14.004.”
Obadele v. Johnson, 60 S.W.3d 345, 348–49 (Tex. App.—Houston [14th Dist.] 2001, no
pet.).
5 B. Affidavit Requirement
In his third issue, which we address first, appellant argues that the trial court
abused its discretion to the extent it dismissed his suit for failing to provide an unsworn
declaration about prior litigation.
In his amended pleading, appellant listed two previous pro se lawsuits he filed. For
those suits, appellant only partially listed the parties involved and the judges who
dismissed the cases. For both, among other deficiencies, appellant failed to state the
operative facts, the names of all the parties involved in the suit, and whether it was
dismissed as frivolous or malicious. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004(a)(2).
Appellant claims he has substantially complied with § 14.004 because the trial court could
readily determine that the present lawsuit did not arise from the same operative facts as
the prior lawsuits because the facts of this case occurred after the prior lawsuits were
filed. However, when an inmate fails to comply with the affidavit requirements, the trial
court may assume that the current action is substantially similar to one previously filed by
an inmate, and thus is frivolous. Douglas v. Turner, 441 S.W.3d 337, 339 (Tex. App.—
Waco 2013, no pet.). An affidavit that “identifies neither the parties nor the operative facts
cannot be said to be in substantial compliance with the requirements of [§] 14.004.”
Obadele, 60 S.W.3d at 348–49. Because appellant failed to list the operative facts of his
two prior lawsuits, as well as the names of all the parties, we conclude that he did not
substantially comply with § 14.004, and that the trial court did not abuse its discretion in
dismissing his suit on this basis. See Douglas, 441 S.W.3d at 339 (holding that the failure
to file the affidavit with the required information or the inmate account statement can result
6 in dismissal without notice or hearing). We overrule his third issue. 2
C. Dismissal with Prejudice
In his fifth issue, appellant argues the trial court abused its discretion by dismissing
his suit with prejudice.
Generally, dismissal of a suit filed by an inmate is proper when they have failed to
comply with the rules governing filing, and the trial court should dismiss the suit without
prejudice because it is not a dismissal on the merits. See Hughes v. Massey, 65 S.W.3d
743, 746 (Tex. App.—Beaumont 2001, no pet.). However, dismissal with prejudice is
proper after appellant was given an opportunity to amend his pleadings and still failed to
comply with the statute. See Lentworth, 981 S.W.2d at 722–23; Hubler v. City of Corpus
Christi, 564 S.W.2d 816, 823 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.). Here,
the trial court granted appellant 180 days to amend his petition to conform to the rules.
Because appellant was given an opportunity to amend his pleading and still failed to
comply with the statute, the trial court properly dismissed appellant’s suit with prejudice.
See Lentworth, 981 S.W.2d at 722–23. Therefore, we overrule appellant’s fifth issue.
III. CONCLUSION
The judgment of the trial court is affirmed.
NORA L. LONGORIA Justice
Delivered and filed on the 1st day of July, 2021.
2 We need not address appellant’s first two issues and his fourth issue as we have determined that
appellant failed to comply with the affidavit requirement of Chapter 14, and thus dismissal was appropriate. See TEX. R. APP. P. 47.1. 7