Bryan E. Green v. Rachelle Barlow

Opinion

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

Green v. Barlow Page 5 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.

Green v. Barlow Page 9 AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed August 10, 2016 [CV06]

Green v. Barlow Page 10