Alton Jordan, TDCJ 000640541 v. Rafael Menchaca

Opinion

NUMBER 13-18-00143-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ALTON JORDAN, TDCJ # 000640541, Appellant,

v.

RAFAEL MENCHACA, ET AL., Appellees.

On appeal from the 36th District Court of Bee County, Texas.

MEMORANDUM OPINION Before Chief Justice Contreras and Justices Longoria and Perkes Memorandum Opinion by Justice Longoria

Appellant Alton Jordan is an inmate housed in the Texas Department of Criminal

Justice—Institutional Division (TDCJ—ID) at the McConnell Unit in Beeville, Texas.

Jordan brought suit pro se and in forma pauperis against multiple defendants employed

by TDCJ—ID for breach of contract, quantum meruit, promissory estoppel, replevin, detinue, bailment, and various claims under Chapter 42, sections 1983 and 1985 of the

United States Code. See 42 U.S.C.A. §§ 1983, 1985 (West, Westlaw through P.L. 116-

5). The trial court dismissed Jordan’s claims with prejudice pursuant to Chapter 14 of the

Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN.

§§ 14.001–.014 (West, Westlaw through 2017 1st C.S.). By five issues which we

combine into two, Jordan argues that (1) the trial court erred by dismissing his case with

prejudice and (2) the associate judge did not have authority to rule on the case because

Jordan filed an objection to the associate judge’s appointment to the case. We affirm.

I. BACKGROUND

Jordan filed a Step 1 grievance on October 12, 2015 concerning some of Jordan’s

possessions that were allegedly confiscated but never returned; he received a response

on December 30, 2015. He filed a Step 2 grievance on January 8, 2016. He received a

response to his Step 2 grievance on February 19, 2016. On July 7, 2017, Jordan filed

suit against appellees Ashley Bustos, Rafael Menchaca, Abimael Infante, Christopher

Pauley, Kenneth Putnam, and an unknown defendant regarding the confiscation.

On July 27, 2017, the trial court sent notice to the parties that an associate judge

was being assigned to the case. Jordan claims that he filed an objection to the

assignment of the associate judge on August 4, 2017, but no such objection appears in

the record.

On September 22, 2017, the Office of the Attorney General filed an amicus curiae

advisory asking the court to dismiss the case. See id. §§ 14.003–.005. On February 22,

2018, the trial court dismissed all of Jordan’s claims with prejudice for failure to comply

2 with Chapter 14 of the Texas Civil Practice and Remedies Code. See id. This appeal

ensued.

II. DISCUSSION

In his first issue, Jordan argues that the trial court abused its discretion by

dismissing his claims.

A. Standard of Review

We review a dismissal under Chapter 14 for an abuse of discretion. See Moreland

v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Jackson

v. Tex. Dep’t of Crim. Justice—Inst. Div., 28 S.W.3d 811, 813 (Tex. App.—Corpus Christi

2000, pet. denied). A trial court abuses its discretion if it acts arbitrarily, capriciously, and

without reference to any guiding principles or rules. Brewer v. Collins, 857 S.W.2d 819,

822 (Tex. App.—Houston [1st Dist.] 1993, no writ). However, the specific issue of whether

there is an arguable basis in law is reviewed de novo. See Moreland, 95 S.W.3d at 394.

B. Applicable Law

A trial court may dismiss an inmate’s claim, either before or after service of

process, on any number of grounds. See, e.g., TEX. CIV. PRAC. & REM. CODE ANN.

§§ 14.003–.006; see also Gross v. Carroll, 339 S.W.3d 718, 723 (Tex. App.—Houston

[1st Dist.] 2011, no pet.); Scott v. Gallagher, 209 S.W.3d 262, 265 (Tex. App.—Houston

[1st Dist.] 2006, no pet.) (“A trial court may dismiss an inmate’s lawsuit for failing to comply

with the procedural requirements of Chapter 14.”). Trial courts have broad discretion in

dismissing a case under Chapter 14 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

3 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, no pet.); see also Zavala v.

Bustos, No. 13-17-00597-CV, 2018 WL 3764568, at *1 (Tex. App.—Corpus Christi Aug.

9, 2018, no pet.) (mem. op.).

“An inmate may not file a claim in state court regarding operative facts for which

the grievance system provides the exclusive administrative remedy until he receives a

written decision issued by the highest authority provided in the grievance system.” Id. at

654; see TEX. GOV’T CODE ANN. § 501.008(d)(1) (West, Westlaw through 2017 1st C.S.).

The grievance system provides the exclusive administrative remedy for all claims by an

inmate while incarcerated except for any “remedy provided by writ of habeas corpus

challenging the validity of an action occurring before the delivery of the inmate” to the

prison facility. TEX. GOV’T CODE ANN. § 501.008(a). “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.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 14.005(b) (emphasis added); see Moreland, 95 S.W.3d at 394.

A trial court may also dismiss a claim as frivolous or malicious under Chapter 14

based on the following factors: the claim’s ultimate chance of success; whether the claim

has an arguable basis in law or fact; whether it is clear that the party cannot prove facts

in support of the claim; or whether the claim is substantially similar to a previous claim

filed by the petitioner because it arises from the same operative facts. See TEX. CIV.

PRAC. & REM. CODE ANN. § 14.003(a)(2), (b)(2); Hamilton v. Williams, 298 S.W.3d 334,

339 (Tex. App.—Fort Worth 2009, pet. denied). “A claim has no arguable basis in law if

it relies upon an indisputably meritless legal theory.” Fernandez v. T.D.C.J., 341 S.W.3d

4 6, 13 (Tex. App.—Waco 2010, no pet.) (quoting Hamilton, 298 S.W.3d at 339). Dismissal

with prejudice is improper if the dismissal is based on procedural defects that the inmate

can correct. See Fernandez, 341 S.W.3d at 13. However, if the claim has no arguable

basis in law, then dismissal with prejudice is proper. Id.

C. Chapter 14 Dismissal

In his unsworn declaration, Jordan admits that he received his Step 2 grievance

response on February 19, 2016. He brought the present suit against appellees on July 7,

2017, which is more than thirty-one days after he received a response to his Step 2

grievance. Because suit was not timely filed, Jordan’s claims have no arguable basis in

law, and it was appropriate to dismiss his claims with prejudice. See TEX. CIV. PRAC. &

REM. CODE ANN. § 14.005; Fernandez, 341 S.W.3d at 13.

Jordan contends that his suit was timely filed because sections 1983 and 1985

both have a two-year statute of limitations. See 42 U.S.C.A. §§ 1983, 1985. In other

words, Jordan is arguing that because he is filing his suit under federal law, he does not

have to comply with state procedural rules. We disagree. In Woodford, an inmate

incarcerated in the California prison system filed a suit under section 1983. See Woodford

v. Ngo, 548 U.S. 81, 87 (2006). The Supreme Court ruled that the inmate still had to

comply with state administrative exhaustion requirements. Id. at 90. In Gilbert v. Texas

Department of Criminal Justice, the court applied this ruling to Texas state laws on

administrative exhaustion requirements and held that even when an inmate is asserting a

section 1983 claim, all administrative procedures must be “properly and timely complied

with.” 490 S.W.3d 598, 609 (Tex. App.—Houston [1st Dist.] 2016, no pet.). Ultimately,

the court concluded that a 42 U.S.C. § 1983 claim must be brought within thirty-one days

5 of receiving notice of the grievance decision. See id. Therefore, Jordan still needed to

file his suit within thirty-one days of receiving a response to his Step 2 grievance. See

Fernandez, 341 S.W.3d at 13. Because he did not do so, his claims were mandatorily

dismissed. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(b); see also Rojas v.

Martinez, No. 13-17-00478-CV, 2018 WL 3583644, at *3 (Tex. App.—Corpus Christi July

26, 2018, no pet.) (mem. op.). Furthermore, dismissing with prejudice is proper when an

inmate misses a filing deadline because it is not a defect that can be corrected. Gilbert,

490 S.W.3d at 606; Leachman v. Dretke, 261 S.W.3d 297, 309 (Tex. App.—Fort Worth

2008, no pet.). We overrule Jordan’s first issue.

Because we find that Jordan’s claims were properly dismissed with prejudice, we

need not address his other sub-issues relating to the dismissal of his claims. See TEX. R.

APP. P. 47.1.

D. Objection to an Appointed Judge

In his second issue, Jordan argues that the associate judge assigned to the case

should have been mandatorily dismissed once Jordan filed an objection to the

appointment. See TEX. GOV’T CODE ANN. § 74.053 (West, Westlaw through 2017 1st C.S.)

(“If a party to a civil case files a timely objection to the assignment, the judge shall not hear

the case.”). The record reflects that Jordan was informed of the associate judge’s

assignment; however, nothing in the record indicates that Jordan objected to such

appointment. Jordan asserts that “for whatever reason,” the objection that he filed was

not included in the record. However, “[t]he burden is on the appellant to see that a

sufficient record is presented to show error requiring reversal.” Christiansen v. Prezelski,

782 S.W.2d 842, 843 (Tex. 1990).

6 Although appellate courts generally do not consider docket entries, “docket entries

may be used by appellate courts to determine what transpired in the trial court.” Haut v.

Green Cafe Mgmt., Inc., 376 S.W.3d 171, 179 (Tex. App.—Houston [14th Dist.] 2012, no

pet.); Buffalo Bag Co. v. Joachim, 704 S.W.2d 482, 484 (Tex. App.—Houston [14th Dist.]

1986, writ ref’d n.r.e.) (observing that the docket entries confirmed that the appellant had

filed a motion for new trial with the trial court). The docket confirms that a “Notice of

Assignment” of an associate judge was sent on July 27, 2017. However, the docket does

not mention any objections relating to the appointment of an associate judge. Jordan has

not demonstrated that he filed and presented his objections to the appointment of an

associate judge. See Buffalo Bag, 704 S.W.2d at 484. Therefore, Jordan has failed to

preserve this issue for appeal. See TEX. R. APP. P. 33.1; In re B.L.D., 113 S.W.3d 340,

350 (Tex. 2003) (concluding that even constitutional errors must be preserved by raising

timely objections to the trial court); Flores v. Banner, 932 S.W.2d 500, 502 (Tex. 1996)

(acknowledging that an objection to the assignment of a judge can be waived if not

properly presented and ruled upon); Sweetwater Austin Properties, L.L.C. v. SOS All.,

Inc., 299 S.W.3d 879, 891 (Tex. App.—Austin 2009, pet. denied) (same). We overrule

Jordan’s second issue.

III. CONCLUSION

We affirm the trial court’s judgment.

NORA L. LONGORIA Justice

Delivered and filed the 28th day of March, 2019.