Send this document to a
colleague

Close
This Window

NO. 12-07-00198-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS
DISTRICT

TYLER,
TEXAS

MICHAEL E. GEIGER,
§
APPEAL FROM THE THIRD

APPELLANT

V.
§
JUDICIAL DISTRICT COURT OF

BETTY WILLIAMS, ET AL,

APPELLEES §
HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

Michael E. Geiger appeals the dismissal of his civil suit against
five employees of the Texas Department of Criminal Justice and six
employees of the Medical Branch of the University of Texas.  In four issues, Geiger argues that
the trial court did not apply the correct legal standards or principles
when it dismissed his lawsuit and that his due process and equal
protection rights were violated.
Appellees did not file a brief.  We affirm the trial court’s order
of dismissal.

Background

Geiger is an inmate in the Texas Department of Criminal Justice
(TDCJ).  On February 25, 2007,
Geiger, proceeding pro se, filed this lawsuit against Appellees Williams
and ten others, all of whom he alleges are employees of the State of
Texas.  In his petition,
Geiger sought injunctive relief, as well as compensatory and punitive
damages for alleged civil rights violations, torts, and negligence.

On March 22, 2007, the trial court dismissed Geiger’s suit without
prejudice as to all claims and gave the following reasons in its order:
(1) Geiger failed to file an affidavit describing his previous litigation
as required by section 14.004, Texas Civil Practice and Remedies Code, (2)
Geiger failed to file the claim before the thirty–first day after he
received a written decision from the TDCJ administrative grievance system
pursuant to section 14.005, Texas Civil Practice and Remedies Code, and
(3) Geiger failed to file a copy of the trust account statement covering
the relevant period of time before the filing of the lawsuit as required
by section 14.006, Texas Civil Practice and Remedies Code.  Geiger filed a motion for relief
from judgment, on which the trial court took no action.  This appeal followed.

Dismissal of
Suit under Chapter 14

In issues one, three, and four, Geiger argues that the trial court
erred when it dismissed his lawsuit.
In issue two, Geiger argues that the trial court erred in
dismissing his lawsuit without holding a hearing.

Analysis–Dismissal

Chapter 14 of the Texas Civil Practice and Remedies Code applies to
a lawsuit brought by an inmate who has filed an affidavit or unsworn
declaration of inability to pay costs and imposes several procedural
requirements for the pleadings in such lawsuits.  See Tex. Civ. Prac. & Rem. Code Ann.
§§ 14.002–14.006 (Vernon Supp. 2007).  An inmate’s lawsuit may be
dismissed if it fails to meet the procedural requirements imposed by
chapter fourteen.  See
Thompson v. Rodriguez, 99 S.W.3d 328, 330 (Tex.
App.–Texarkana 2003, no pet.).
Our review of the dismissal of an inmate lawsuit is for an abuse of
discretion.  See
Williams v. Tex. Dep’t of Criminal Justice–Institutional Div., 176
S.W.3d 590, 593 (Tex. App.–Tyler 2005, pet. denied).

One procedural requirement for an inmate wishing to file a lawsuit
without paying costs is that the inmate must file a certified copy of his
inmate trust account statement with his pleadings.  See Tex. Civ. Prac. & Rem. Code
Ann. §§ 14.004(c), 14.006(f) (Vernon Supp. 2007).  The statement must show the
balance of the account at the time the lawsuit is filed and any activity
in the account for the six months preceding the filing of the
lawsuit.  Geiger did not
comply with this requirement.
The account statement included with his lawsuit is dated May 2005,
and the lawsuit was filed in 2007.
Because Geiger did not file an inmate account statement covering
the appropriate period of time, the trial court did not abuse its
discretion when it dismissed the lawsuit without prejudice.  See Thompson,
99 S.W.3d at 330; Hughes v. Massey, 65 S.W.3d 743, 746 (Tex.
App.–Beaumont 2001, no pet.); Williams v. Brown, 33 S.W.3d
410, 412 (Tex. App.–Houston [1st Dist.] 2000, no pet.).1

A trial court may also dismiss a claim 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 Supp. 2007).  In determining whether a claim is
frivolous or malicious, a trial court may consider whether the claim is
substantially similar to a previous claim filed by the inmate that arises
out of the “same operative facts.”
Id. § 14.003(b)(4). To enable a trial court to
determine whether the suit is substantially similar to a previous one, an
inmate is required to file a separate affidavit or unsworn declaration
describing all other suits the inmate has brought and stating the
“operative facts” upon which relief was sought.  Id. § 14.004(a)(2)(A).  The declaration must also state
the result of any suit, including whether the suit was dismissed as
frivolous or malicious under Section 13.001 or Section 14.003 or
otherwise.  Id.
§ 14.004(a)(2)(D).

Geiger filed an affidavit about his previous litigation and listed
three lawsuits he previously filed.
However, he failed to provide all of the information required by
Section 14.004.  Geiger’s
affidavit does not provide the outcome of any of the lawsuits, does not
provide the operative facts for any of the lawsuits, and does not list all
of the people sued in each case.

When an inmate files an affidavit or declaration that fails to
comply with the requirements of section 14.004, “the trial court is
entitled to assume that the suit is substantially similar to one
previously filed by the inmate, and therefore, frivolous.”  Bell v. Tex. Dep’t of
Criminal Justice, 962 S.W.2d 156, 158 (Tex. App.–Houston [14th
Dist.] 1998, pet. denied).
This assumption is even more reasonable here because one of the
lawsuits Geiger discloses is a suit he brought against one of the same
parties he sued in this case, and he alludes to that lawsuit in paragraph
thirty-four of his complaint.
Geiger has not complied with the statute requiring him to state the
operative facts or the outcome of his previous lawsuits.  Accordingly, the trial court’s
assumption that this is a frivolous lawsuit, and dismissal on that basis,
was reasonable.

Finally, the trial court also found that Geiger failed to bring
this claim within thirty-one days of receiving a written decision from the
prison grievance system.
See Tex. Civ. Prac.
& Rem. Code Ann. § 14.05 (Vernon Supp. 2007).  The trial court must dismiss a
lawsuit that was not filed within this time period.  Id. § 14.05(b).  Geiger signed the written
grievance on December 4, 2006.
A prison official signed a written decision on December 29,
2006.  The thirty-first day
after that date was January 30, 2007.  The lawsuit was filed on February
25, 2007.  In his motion for
relief from the judgment, Geiger argued that he did file his lawsuit
within thirty–one days of receiving a written decision on his grievance
and that the deadline was February 26, 2007.  He did not explain his reasoning,
but on appeal he asserts that he did not receive notice of the written
decision until January 30, 2007 and that a stamp on the grievance
form is evidence of this.

Even if this is true, Geiger has not complied with the
statute.  The statute requires
a litigant to state the date on which he received the decision.   Tex. Civ. Prac. & Rem. Code Ann. §
14.05 (a)(1).  Nothing
Geiger filed in the trial court would have alerted the court to his
present contention that he received the decision on January 30.  Further, the calculation of dates
he proposed in his postjudgment motion differs from his present contention
about the relevant dates, and the marking on the grievance form, a simple
date stamp outside the box marked “OFFICE USE ONLY,” is bereft of any
contextual clues indicating that it is a delivery date.  Therefore, the trial court
reasonably concluded that the lawsuit was not timely filed and that it was
required to dismiss the lawsuit.

Geiger did not provide the required materials about his trust
account, his previous lawsuits, or the date he received a written decision
on his administrative grievance.
Each is required by statute, and we hold that the trial court did
not abuse its discretion when it dismissed Geiger’s suit.  Geiger’s first, third, and fourth
issues are overruled.

Analysis–Hearing

A trial court has discretion as to whether to hold a hearing before
dismissing an inmate’s lawsuit for failure to comply with the statutes
governing such litigation.
See Moreland v. Johnson, 95 S.W.3d 392, 394
(Tex. App.–Houston [1st Dist.] 2002, no pet.); Williams, 33
S.W.3d at 411; see also Tex. Civ. Prac. & Rem. Code
Ann § 14.003(c) (Vernon Supp. 2007) (court may hold hearing to
determine whether case should be dismissed).  Neither a hearing nor an
opportunity to respond is required prior to dismissal of an inmate’s
lawsuit when the pleadings are procedurally deficient.  See Gowan v. Tex. Dep’t of
Criminal Justice, 99 S.W.3d 319, 323 (Tex. App.–Texarkana 2003, no
pet.); see also Moreland, 95 S.W.3d at 394 (trial court did
not abuse discretion in denying inmate opportunity to supplement petition
before dismissing case); Kendrick v. Lynaugh, 804 S.W.2d
153, 156 (Tex. App.–Houston [14th Dist.] 1990, no writ) (trial court under
no duty to suggest that litigant amend his pleading).

The trial court did not abuse its discretion by dismissing this
lawsuit without holding a hearing because the defects described above were
clear and wholly ascertainable from the record.  See Thomas v.
Bilby, 40 S.W.3d 166, 170 (Tex. App.–Texarkana 2001, no
pet.).  Geiger argues that the
trial court’s dismissal was based on an overly technical reading of
Section 14.004 and that he could have corrected any errors if the court
had given him the opportunity.
We agree with the trial court’s application of Section 14.004.  Moreover, even if Geiger could
have corrected the errors, the trial court was not obligated to allow him
to amend his lawsuit before it dismissed it.  Because Geiger’s pleadings were
deficient, the trial court did not abuse its discretion by dismissing this
suit without holding a hearing.
We overrule Geiger’s second issue.

Disposition

We affirm the judgment of the trial court.

SAM GRIFFITH

Justice

Opinion delivered December
12, 2007.

Panel consisted of Worthen, C.J., Griffith, J.,
and Hoyle, J.

(PUBLISH)

1 In the statement
of facts portion of his brief, Geiger asserts that the production of the
trust account statement was beyond his control.  He did file a statement that
covered the relevant period of time with his motion for relief from
judgment, but he does not appeal the ruling on that
motion.