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
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."
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
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.
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.
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.
We affirm the order of the trial court.
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).