Washington v. TDJA-ID (Tex.App.- Houston [1st Dist.] Oct. 29, 2009)(Jennings) (Appellant, who is
incarcerated and represents himself pro se, challenges, in a single issue, the trial court's order dismissing his
case for "want of prosecution" and for "lack of merit.") We affirm.
AFFIRM TC JUDGMENT: Opinion by Justice Jennings     
Before Justices Jennings, Higley and Sharp   
01-06-01188-CV     Michael G. Washington v. TDJC-ID AGCY   
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Hon. Gary Michael Block

MEMORANDUM OPINION

Appellant, Michael Washington, who is incarcerated and represents himself pro se, challenges, in a single
issue, the trial court's order dismissing his case for "want of prosecution" and for "lack of merit."

We affirm.

Factual and Procedural Background

In his petition, Washington alleged that Texas Department of Criminal Justice ("TDCJ") officials had ordered
him to place property in storage lockers above the cell beds in his cell and that this order violated his medical
restrictions. He further alleged that, in the course of reaching overhead to retrieve an item from a storage
locker, he fell and injured himself because of the lack of steps and railings and other defective conditions.
Washington generally alleged that the named defendants violated the Americans with Disabilities Act ("ADA")
(1) and the Texas Tort Claims Act. (2) He also alleged numerous irregularities in his multiple grievance
proceedings, and he specifically complained that TDCJ officials did not tape record certain grievance
proceedings. Washington sought compensatory and punitive damages "not over $100,000," attorney's fees,
and injunctive relief.

Washington also attached to his petition a document stating that, in his opinion, exhaustion of administrative
remedies was not required, and he also filed "an affidavit relating to previous filings." See Tex. Civ. Prac. &
Rem. Code Ann. § 14.004 ("Affidavit Related to Previous Filings"), § 14.005 (Vernon 2002) ("Grievance
System Decision; Exhaustion of Administrative Remedies"). In his affidavit regarding previous filings,
Washington identified five other causes of action that he had previously filed.

There is nothing in the record to reflect that any of the named defendants were ever served or otherwise made
an appearance in the case. On November 29, 2006, the trial court dismissed the case for "want of prosecution"
and for "lack of merit." Following the dismissal, Washington filed a new trial motion, objecting to the dismissal
and contending that he was entitled to a jury trial on his claims.

Dismissal

We construe Washington's appellant's brief as a complaint that the trial court abused its discretion in
dismissing his case for want of prosecution and lack of merit.

Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate litigation. See Tex. Civ. Prac. &
Rem. Code Ann. §§ 14.001-.014. (Vernon 2002). Under Chapter 14, a trial court may dismiss an inmate suit
brought in forma pauperis, either before or after service of process, by finding that it is frivolous or malicious.
Id. § 14.003(a)(2). In determining whether a claim is frivolous or malicious, a trial 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 in 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. Id. §
14.003(b)(1)-(4). We generally review a trial court's dismissal of an inmate's suit under Chapter 14 for abuse of
discretion. See Thompson v. Tex. Dep't of Crim. Justice-Institutional Div., 33 S.W.3d 412, 414 (Tex.
App.--Houston [1st Dist.] 2000, pet. denied).

An inmate seeking to proceed in forma pauperis must file a separate affidavit or declaration describing each
suit the inmate has previously filed pro se, other than a suit under the Family Code. Tex. Civ. Prac. & Rem.
Code Ann. § 14.004. The affidavit or declaration must (a) describe the operative facts for which relief was
sought; (b) list the case name, cause number, and the court in which the suit was brought; (c) identify each
party named in the suit; and (d) state the result of the suit, including whether the suit was dismissed as
frivolous or malicious. Id. § 14.004(a)(2). These requirements were enacted to allow the trial court to determine
whether an inmate's present claim is similar to a previously-filed claim. See Clark v. Unit, 23 S.W.3d 420, 422
(Tex. App.--Houston [1st Dist.] 2000, pet. denied.) (stating that "[t]he purpose of section 14.004 is to curb the
constant, often duplicative, inmate litigation, by requiring the inmate to notify the trial court of previous litigation
and the outcome ").

Here, although Washington, in his affidavit, listed five previous cases and noted that these previous filings had
been determined to be frivolous, he did not, among other things, describe the operative facts of these filings.
Washington merely identified the style of the previous filings, the dates of judgment, and the frivolous finding
rendered in each case. Because Washington failed to comply with the requirements of section 14.004, we hold
that the trial court did not abuse its discretion in dismissing Washington's case. See Clark, 23 S.W.3d at 422
(holding that because appellant did not state operative facts for which relief was sought in prior suits, trial court
was unable to consider whether current claim was substantially similar to prior claims and, thus, trial court did
not err in dismissing case). (3)

We overrule Washington's issue.

Conclusion

We affirm the order of the trial court.

Terry Jennings

Justice


Panel consists of Justices Jennings, Higley, and Sharp.

1. See 42 U.S.C. §§ 12101-12113.

2. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-.109 (Vernon 2005 & Supp. 2008).

3. In a single paragraph, Washington also contends that the trial court clerk abused its discretion in failing to serve the named
defendants with the citation by publication. In his petition, Washington identifies the named defendants as TDCJ-ID Agency, Cpt.
Kitchen, James Tucker, UCC-Butler, Michael Butcher, and Sgt. Gregory. However, Chapter 14 of the Civil Practice and Remedies
Code expressly provides that the trial court may dismiss a cause of action prior to service. See Tex. Civ. Prac. & Rem. Code Ann.
§ 14.003(a)(2) (Vernon 2002).