Michael Kennedy v. Charles Steen and Detective Munniz, in Their Individual and Official Capacity

• Court: Court of Appeals of Texas
• Decided: June 18, 2009
• Docket: 14-08-00603-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 18, 2009

Affirmed and Memorandum Opinion filed June 18, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00603-CV

MICHAEL KENNEDY, Appellant

V.

CHARLES STEEN AND DETECTIVE MUNNIZ, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITY, Appellees

On Appeal from the 3rd District Court

Anderson County, Texas

Trial Court Cause No. 3-40-741

M E M O R A N D U M   O P I N I O N

Appellant Michael Kennedy raises two issues on appeal from the trial court=s dismissal of his lawsuit under Chapter 14 of Texas Civil Practice and Remedies Code.  In his first issue, he contends that the 3rd and 349th District Courts of Anderson County are parties to the lawsuit and therefore the 3rd District Court cannot dismiss his case.  In his second issue, he contends that the appellees cannot prevent Kennedy from working and completing his contracts.  We affirm.

The record of this case is somewhat convoluted and contains little factual background. In February 2008, Kennedy, an inmate confined in the Anderson County Jail, filed a pro se in forma pauperis civil rights lawsuit against appellees Charles Steen and Detective Munniz, alleging that Kennedy=s arrest and imprisonment were false and without probable cause and that appellees engaged in discrimination and acts of official oppression, false arrest, retaliation, harassment, misconduct, abuse, and slander against him. 

In April 2008, Kennedy appears to have filed a motion to add several defendants, including the 3rd and 369th District Courts of Anderson County, and appears to contend that the named defendants conspired with others, including the district attorney and assistant district attorney, to falsely indict and convict him of an offense.  In another filing, he purports to name the 3rd, 349th, and 369th District Courts of Anderson County as parties and makes similar claims against them.  Citation was issued to appellees in April, and appellees answered and asserted special exceptions and affirmative defenses.

On May 7, 2008, without conducting a hearing, the trial court signed an order dismissing Kennedy=s suit without prejudice on the grounds that his claim was Afrivolous or malicious@ under Chapter 14 of the Texas Civil Practice and Remedies Code.  This appeal followed.

In his first issue, Kennedy does not address any of the possible bases for the trial court=s dismissal under Chapter 14 as frivolous or malicious.  Instead, he contends that an unspecified Adue process right@ prevents the trial judge of the 3rd District Court from dismissing a case in which the 3rd and 349th District Courts are parties.^[1]  Kennedy=s issue is inadequately briefed because he makes only a cursory assertion, fails to cite to the record, and cites no authorities to support his contention.  See Tex. R. App. P. 38.1(h); Richard v. Dretke, No. 14-08-00714-CV, 2009 WL 909621, at *4 n.3 (Tex. App.CHouston [14th Dist.] Apr. 7, 2009, no pet. h.); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  Therefore, we overrule Kennedy=s first issue.

The trial court dismissed Kennedy=s lawsuit under section 14.003 of the Texas Civil Practice and Remedies Code, which authorizes a trial court to dismiss an inmate=s claim, either before or after service of process, if the court finds that the claim is frivolous or malicious.  See Tex. Civ. Prac. & Rem. Code Ann. ' 14.003(a)(2) (Vernon 2002).  The dismissal provisions in Chapter 14 are intended to prevent abusive or captious litigation where the in forma pauperis litigant A>lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.=@  Thompson v. Ereckson, 814 S.W.2d 805, 807 (Tex. App.CWaco 1991, no writ) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).  In determining whether a claim is frivolous or malicious, the 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).  We review a trial court=s decision to dismiss a lawsuit brought by an inmate under Chapter 14 for abuse of discretion.  Retzlaff v. Tex. Dep=t of Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.CHouston [14th Dist.] 2002, pet. denied). 

To enable the trial court to determine whether a claim arises from the same operative facts as a previous claim, the legislature enacted section 14.004.  Hickman v. Adams, 35 S.W.3d 120, 123B24 (Tex. App.CHouston [14th Dist.] 2000, no pet.); see Tex. Civ. Prac. & Rem. Code Ann. ' 14.004(a) (Vernon 2002).  Section 14.004, entitled AAffidavit Relating to Previous Filings,@ requires an inmate who files an affidavit or unsworn declaration of inability to pay costs to file a separate affidavit or declaration setting out the following information:

(1) identifying each suit, other than a suit under the Family Code, previously brought by the person and in which the person was not represented by an attorney, without regard to whether the person was an inmate at the time the suit was brought; and

(2) describing each suit that was previously brought by:

(A) stating the operative facts for which relief was sought;

(B) listing the case name, cause number, and the court in which the suit was brought;

(C) identifying each party named in the suit; and

(D) stating the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise.

Tex. Civ. Prac. & Rem. Code Ann. '14.004(a).

Here, although Kennedy filed an affidavit relating to lawsuits he filed previously, the affidavit fails to comply with section 14.004=s requirements.  Kennedy=s affidavit identified three previous lawsuits in which he alleged false arrest against individuals other than Steen and Munniz.  None of the descriptions of the three lawsuits state the operative facts for which Kennedy sought relief; instead, they provide only the bare legal theory asserted.  Given the absence of information concerning the factual bases for the claims, it is impossible to determine whether the claims Kennedy alleges in this lawsuit are duplicative of his earlier filings.  Because the trial court could not determine if Kennedy=s present suit was substantially similar to the previous suits Kennedy filed, it was entitled to assume that the present suit is substantially similar to those earlier filings and, therefore, is frivolous or malicious.  See Richard v. Dretke, 2009 WL 909621, at *2; Harrison v. Kiper, No. 07-07-0322-CV, 2008 WL 4367892, at *3 (Tex. App.CAmarillo Sept. 25, 2008, pet. denied) (mem. op.); Bell v. Tex. Dep=t of Criminal Justice-Inst. Div., 962 S.W.2d 156, 158 (Tex. App.CHouston [14th Dist.] 1998, pet. denied).

Moreover, the fact that Kennedy=s affidavit indicated that his earlier filings were asserted against different defendants is of no import, because the trial court could justifiably assume that Kennedy may have filed separate lawsuits against different defendants arising from the same operative facts.  See Harrison, 2008 WL 4367892, at *3.  Therefore, the trial court was authorized to dismiss the lawsuit as one substantially similar to a previous claim filed by the same inmate because the claim arises from the same operative facts.  Id.; Tex. Civ. Prac. & Rem. Code Ann. '14.003(b)(4).  Accordingly, the trial court did not abuse its discretion in finding Kennedy=s claim to be frivolous or malicious and in dismissing Kennedy=s lawsuit without a hearing.  See Gowan v. Tex. Dep=t of Criminal Justice, 99 S.W.3d 319, 323 (Tex. App.CTexarkana 2003, no pet.); Richard, 2009 WL 909621, at *2; Harrison, 2008 WL 4367892, at *3.  Because Kennedy=s second issue is directed to the substance of his lawsuit, we do not reach it.^[2]

We affirm the trial court=s judgment.

/s/      Jeffrey V. Brown

Justice

Panel consists of Justices Frost, Brown, and Boyce.

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^[1]  In their response, appellees surmise that the 3rd District Court and the Twelfth Court of Appeals construed Kennedy=s motion to add the courts as parties as a writ of mandamus, which the Twelfth Court of Appeals denied.  Therefore, appellees contend, the 3rd and 349th District Courts were never parties to this suit.  See In re Kennedy, No. 12-08-00205-CV, 2008 WL 2122460 (Tex. App.CTyler May 21, 2008, orig. proceeding) (mem. op).  The opinion, which appellees cite to in the record, reflects that the court of appeals construed one of Kennedy=s motions below as a request to require the district court to appoint a judge to decide his civil rights lawsuit in which he named all of the Anderson County district judges as parties.  The sole basis for the requested relief was that A[t]he lawsuit is against the 3rd and 349th District Court of Anderson County Texas judges and the court cannot hear or decide any pleading or make a decision when the lawsuit is against the district court.@  The court denied mandamus relief on procedural grounds.  See id. at *1.  We cannot agree with appellees that the court of appeals= opinion effectively precluded the addition of the courts or judges as parties.

^[2]  In their prayer, appellees request that this court award damages for a frivolous appeal pursuant to Texas Rule of Appellate Procedure 45.  But because appellees do not present any argument or authorities to support this request, we deny it.