Michael A. Kennedy v. TDCJ-ID Director, State Classification Committee, Todd Harris, T. Jefferson, Bell, Major Larue, Capt. v. Miller, Major Dickerson, Unit Classification Committee, Unit Grievance Department, and Captain Reese

• Court: Court of Appeals of Texas
• Decided: August 30, 2018
• Docket: 09-18-00005-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ________________

NO. 09-18-00005-CV ________________

MICHAEL A. KENNEDY, Appellant

V.

TDCJ-ID DIRECTOR, STATE CLASSIFICATION COMMITTEE, TODD HARRIS, T. JEFFERSON, BELL, MAJOR LARUE, CAPT. V. MILLER, MAJOR DICKERSON, UNIT CLASSIFICATION COMMITTEE, UNIT GRIEVANCE DEPARTMENT, AND CAPTAIN REESE, Appellees __________________________________________________________________

On Appeal from the 411th District Court Polk County, Texas Trial Cause No. CIV31334 __________________________________________________________________

MEMORANDUM OPINION

Pro se appellant Michael A. Kennedy appeals from the trial court’s dismissal

of his lawsuit pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code.

See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-14.014 (West 2017). Kennedy

raises two issues for our consideration. We affirm the trial court’s judgment.

1 BACKGROUND

Kennedy, an inmate in the Polunsky unit, filed a pro se lawsuit against

appellees, seeking an injunction and temporary restraining order prohibiting

Kennedy’s placement in administrative segregation, and Kennedy also alleged that

he was denied recreation, food, and showers without due process of law. Kennedy

sought to proceed in forma pauperis. Kennedy alleged that the wardens ordered him

placed in administrative segregation without notice or hearing, appellees had failed

to address grievances he had filed, and other inmates had threatened him. Kennedy

asserted claims for emotional distress and cruel and unusual punishment, as well as

punitive damages. At the bottom of his petition, Kennedy filed what purported to be

an affidavit of previously filed lawsuits, but in that filing, Kennedy merely stated

that he had not previously filed a lawsuit in any state or federal courts against the

director of TDCJ-ID or the other appellees.

The trial judge signed an order dismissing without prejudice Kennedy’s

claims as frivolous. In its order, the trial court found that Kennedy failed to file a

separate affidavit or declaration of previous filings; failed to fully describe each

previous lawsuit; failed to list the style, cause number, and court in which previous

suits were brought; failed to list each party named in a previous suit; failed to state

the result of previous suits; failed to state the date of the final orders; and failed to

2 file a certified copy of his inmate trust account statement with his unsworn

declaration. Kennedy filed a motion for arrest of judgment, motion to reinstate, and

motion for new trial, and the trial judge signed an order denying the requested relief.

Kennedy then appealed.

ANALYSIS

In his first issue, Kennedy complains that he was denied due process by being

placed in administrative segregation without due process, and in his second issue,

Kennedy argues that the trial court erred by failing to address his request for findings

of fact. Kennedy argues that the trial court erred by dismissing his lawsuit because

he complied with the requirements of Chapter 14. To the extent that Kennedy raises

merits-based issues, such issues are not properly before this Court. See Thomas v.

Knight, 52 S.W.3d 292, 295 (Tex. App.—Corpus Christi 2001, pet. denied) (holding

that a dismissal for failure to comply with Chapter 14 is not a dismissal on the

merits).

We review the trial court’s dismissal under an abuse of discretion standard.

Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ). We will

affirm the trial court’s dismissal if it was proper under any legal theory. See Johnson

v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990). In forma pauperis suits by

inmates, such as Kennedy’s lawsuit, are governed by Chapter 14 of the Texas Civil

3 Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-

14.014. Section 14.004 requires an inmate who files an unsworn declaration of

inability to pay costs to file a separate affidavit or declaration that identifies each

action, other than one under the Family Code, previously brought by the inmate pro

se, without regard to whether the person was an inmate when the suits were brought.

Id. § 14.004(a)(1). The affidavit or declaration must describe each previously-

brought action by stating the operative facts for which relief was sought; listing the

case name, cause number, and court where the action was filed; identifying each

party named in the action; and stating the result of the action. Id. § 14.004(a)(2).

As discussed above, Kennedy’s declaration failed to identify all of his

previous filings and instead simply stated that he had not previously sued these

appellees. We conclude that the trial court did not abuse its discretion by dismissing

Kennedy’s case. See id. § 14.004(a). Accordingly, we overrule Kennedy’s issues and

affirm the trial court’s order of dismissal.

AFFIRMED.

______________________________ STEVE McKEITHEN Chief Justice

Submitted on July 3, 2018 Opinion Delivered August 30, 2018

Before McKeithen, C.J., Horton and Johnson, JJ. 4