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Davie Harrison, Sr. v. Willard Kiper

CourtCourt of Appeals of Texas
DecidedSeptember 25, 2008
Docket07-07-00322-CV
StatusPublished

This text of Davie Harrison, Sr. v. Willard Kiper (Davie Harrison, Sr. v. Willard Kiper) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davie Harrison, Sr. v. Willard Kiper, (Tex. Ct. App. 2008).

Opinion

NO. 07-07-0322-CV


IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL A


SEPTEMBER 25, 2008

______________________________


DAVIE HARRISON SR., APPELLANT


V.


WILLARD KIPER, ET AL., APPELLEES

_________________________________


FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;


NO. 34404; HONORABLE LEE WATERS, JUDGE

_______________________________



Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

          Appellant, Davie Harrison, Sr., appeals from an order dismissing his pro se, in forma pauperis suit under Chapter 14 of the Texas Civil Practice and Remedies Code. We affirm.

          Harrison is an inmate at the Jordan Unit of the Texas Department of Criminal Justice, Institutional Division (hereafter, “TDCJ-ID”). On July 25, 2006, Harrison filed a “Criminal Information/Complaint” against Chaplain Willard Kiper, Grievance Investigator Glen Stouder, Assistant Warden L. Ellis, Volunteer Mike Riley, and other unnamed TDCJ-ID employees for their alleged criminal abuse of official capacity under Texas Penal Code sections 39.02, 39.04, and 39.06. Subsequently, on August 15, 2006, Harrison filed an “Amended Criminal Complaint” that added a claim that the defendants were employing false and deceptive business practices to obtain property in violation of Texas Penal Code sections 32.32 and 32.42(b)(12). At the same time as the “Amended Criminal Complaint” was filed, Harrison also filed a hand-written “Amended Criminal Complaint” that alleged that “Captain Andis” made a terroristic threat against Harrison. On April 13, 2007, Harrison filed a motion to amend his previous filings to include claims against “Officer Willis,” “Officer Richardson Jr.,” “Assistant Warden Whitfield,” Karl Parks, Lawana Richardson, Jane M. Cockerham, and Tammera Powers, each in their individual and official capacities, for physical injuries, mental anguish, and emotional distress he sustained as a result of defendant’s use of restraints. Harrison also sought leave to amend his filing to add claims against Texas Tech University Health Science Center and Dr. D. Patel for medical negligence. On May 22, 2007, Harrison filed a document titled “Claims for Relief” which seeks declarations that each of Harrison’s claims filed under the present cause number were true, injunctions ordering that Harrison be provided specialized medical treatment and be transferred to a minimum security medical unit in a different region, compensatory damages of $250,000, and punitive damages of $200,000. Additionally, Harrison filed multiple motions and complaints under the present cause. The defendants jointly filed a Motion to Dismiss Harrison’s suit for failure to comply with Chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 14.002 (Vernon 2002). Without a hearing, the trial court ordered the lawsuit “dismissed due to Plaintiff’s violation of Chapter Fourteen of the Texas Civil Practice and Remedies Code.” On July 11, 2007, Harrison filed a Motion for New Trial, which claimed, inter alia, that he had discovered the existence of x-rays of his claimed injuries after the trial court had dismissed his suit. Within his motion for new trial, Harrison requested the trial court make findings of fact and conclusions of law. It appears that Harrison’s motion was overruled by operation of law. See Tex. R. Civ. P. 329b(c).

          Through ten issues, Harrison challenges the dismissal of the lawsuit for failure to comply with the requirements of Chapter 14, the trial court’s failure to consider Harrison’s newly discovered evidence, and the trial court’s failure to issue findings of fact and conclusions of law. We affirm the trial court’s order of dismissal.

Dismissal

          Inmate litigation, except for suits brought under the Family Code, in which the inmate files an affidavit or unsworn declaration of inability to pay costs is governed by special procedural rules set forth in Chapter 14. The trial court has broad discretion to dismiss a lawsuit brought under Chapter 14 as frivolous or malicious. See § 14.003(a)(2). One factor that the trial court may consider in determining if an inmate’s claim is frivolous or malicious is whether the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. § 14.003(b)(4). To allow the trial court to assess whether the inmate’s claim arises from the same operative facts as a previous claim, the inmate must file an affidavit or unsworn declaration identifying, with specificity, each pro se suit that the inmate has previously brought. See § 14.004. When an inmate fails to provide the information required by section 14.004(a)(2), the trial court is entitled to assume the current suit is substantially similar to a previous claim. Samuels v. Strain, 11 S.W.3d 404, 406 (Tex.App.–Houston [1st Dist.] 2000, no pet.); Bell v. Texas Dep’t of Crim. Justice–Institutional Div., 962 S.W.2d 156, 158 (Tex.App.–Houston [14th Dist.] 1998, pet. denied).

          We review a trial court’s dismissal of a lawsuit brought by an inmate who has filed an affidavit or declaration of inability to pay costs for abuse of discretion. Thomas v. Knight, 52 S.W.3d 292, 294 (Tex.App.–Corpus Christi 2001, pet. denied). A trial court abuses its discretion when it acts arbitrarily or unreasonably in light of all of the circumstances in the case or, stated another way, when the trial court acts without reference to any guiding rules and principles. Id.

          In the present case, the trial court dismissed Harrison’s suit due to “Plaintiff’s violation of Chapter Fourteen of the Texas Civil Practice and Remedies Code.” In their motion to dismiss, the defendants sought dismissal of Harrison’s lawsuit on the basis of his failure to comply with the affidavit or unsworn declaration of prior filings requirement of section 14.004, his failure to timely file his suit within 31 days after receiving written notice of decision from the grievance system under section 14.005(b), and because the claims Harrison asserted in his suit were frivolous or malicious. Our review of the trial court’s dismissal of Harrison’s suit will address only the sufficiency of Harrison’s affidavit of previous filings, as the insufficiency of this filing pretermits consideration of other bases for the trial court’s dismissal under Chapter 14.

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Davie Harrison, Sr. v. Willard Kiper, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davie-harrison-sr-v-willard-kiper-texapp-2008.