                                   NO. 07-10-00485-CV

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                     AUGUST 9, 2012


                            RICKY W. TURNER, APPELLANT

                                             v.

                           ARLIE B. FOX, ET AL, APPELLEES


                FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

               NO. 98,920-E; HONORABLE DOUGLAS WOODBURN, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.

                                MEMORANDUM OPINION


         Appearing pro se and in forma pauperis, Ricky W. Turner appeals the trial court’s

dismissal, under Chapter 141 of the Civil Practice and Remedies Code, of his suit

against appellees Arlie Fox, Larry Berger, Michael Noe, Jr., Jayson Hendrix, Frank

Hoke, Gary Winters and Daniel Baucom.2 We will affirm the judgment of the trial court.



         1
             Tex. Civ. Prac. & Rem. Code Ann. '' 14.001-14.014 (West 2002 & Supp.
2011).
         2
        Appellee Baucom was not served with Turner’s suit. Through appellees’ motion
to dismiss, the Texas Attorney General recommended as amicus curiae that the trial
court dismiss the claims against Baucom on its own motion. The order of dismissal
included Baucom.
                                       Background


       Turner is an inmate of the Texas Department of Criminal Justice Institutional

Division and appellees are Department employees. According to his pleading, Turner

was placed on a diet of “food loaf”3 as a restriction. He later filed a grievance, in which

he described his unsuccessful efforts to obtain a copy of an order, Post Order 07.006,

which, Turner was told, addresses the use of food loaf. The responses to his step 1

and step 2 grievances were to the effect that inmates are not provided with post orders.4


       In a paragraph of his petition entitled “basis of lawsuit,” Turner alleged he was

“being disallowed to read Post Order 07.006 which deals with food loaf and its use.

This Post Order affects every individual in Administrative Segregation, Solitary

Confinement, the Special Housing Unit, and Extended Cell Block.” He alleged these

actions violated his rights under the Eighth and Fourteenth Amendments to the United

States Constitution and Article 1, §§ 13 and 19 of the Texas Constitution.

   3
     Turner’s brief states food loaf “is a combination of each meal’s ingredients pureed
and baked in a bread or corn meal mixture. Food loaf can be fairly tolerated for three to
four days depending on the individual, and then becomes totally repulsive leaving the
offender three to four days with little or no food.” Cf. Arnett v. Snyder, 331 Ill. App. 3d
518, 769 N.E.2d 943, 951 (2001) (concerning application of “meal loaf” restriction for
inmates and including recipe).
   4
      “A Post Order is a specific designation of the duties associated with the occupation
of a specific security officer post.” Tex. Att’y Gen. OR92-131 (quoting assistant general
counsel for the Texas Department of Criminal Justice Institutional Division) available at:
https://www.oag.state.tx.us/opinions/openrecords/48morales/orl/1992/pdf/or199200131.
pdf. Post orders “govern how the correctional officers perform their duties. The post
orders are different for each position and each correctional officer is required to
familiarize himself with the post orders for the unit he is assigned to.” D’Antuono v.
United States, No. 4:07-CV-123-Y, 2010 U.S. Dist. Lexis 60102, at *3-4 (N.D. Tex. June
15, 2010) (discussing post orders at a federal facility).

                                            2
       Turner’s pleadings asked for compensatory and punitive damages and an

injunction mandating the Department to supply documents “on the rules and regulations

of the use of food loaf.”


       Appellees filed a motion to dismiss which the trial court granted. This appeal

followed.


                                         Analysis


       In its order dismissing the case as frivolous, the trial court found Turner failed to

state a cognizable cause of action and failed to comply with Chapter 14.             Turner

counters through his fourth issue on appeal that the trial court should not have

dismissed his case as frivolous because it is not subject to Chapter 14.


       Citing no authority, Turner argues a complaint based on an intentional and

malicious misuse of Department policy cannot amount to a frivolous complaint, and that

appellees used Chapter 14 to prevent discovery and suppress evidence of Post Order

07.006.


       As courts have long recognized, prison inmates have a strong incentive to

litigate; the government bears the cost of an in forma pauperis suit; sanctions are not

effective; and the dismissal of unmeritorious claims accrues to the benefit of state

officials, courts, and meritorious claimants. Retzlaff v. Tex. Dep’t of Crim. Justice, 94

S.W.3d 650, 653 (Tex.App.--Houston [14th Dist.] 2002, pet. denied); Montana v.

Patterson, 894 S.W.2d 812, 814-15 (Tex.App--Tyler 1994, no writ).             Through the

provisions of Chapter 14, the Legislature gave trial courts broad discretion to dismiss

                                             3
frivolous or malicious claims that are subject to its terms. Other than an action brought

under the Texas Family Code, Chapter 14 applies to any action brought by an inmate

who files an affidavit or unsworn declaration of inability to pay costs. Tex. Civ. Prac. &

Rem. Code Ann. § 14.002(a),(b) (West Supp. 2011); see Gross v. Carroll, 339 S.W.3d

718, 721 (Tex.App.--Houston [1st Dist.] 2011, no pet.) (discussing applicability of

chapter).


       The record contains Turner’s application to proceed in forma pauperis made on

unsworn declaration.     In the document, Turner avers specific facts supporting his

inability to pay costs because of poverty. Regardless of the substance of Turner’s

complaints against appellees, his suit is within the scope of Chapter 14. We overrule

Turner’s fourth issue.


       We turn to the finding of the trial court that Turner failed to comply with Chapter

14. We review dismissal of a claim under Chapter 14 for abuse of discretion. Bishop v.

Lawson, 131 S.W.3d 571, 574 (Tex.App.--Fort Worth 2004, pet. denied). A trial court

abuses its discretion if it acts without reference to any guiding rules or principles, or

otherwise acts in an arbitrary or unreasonable manner.          Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).


       Under Chapter 14, a court may dismiss a claim either before or after service of

process, if it finds the claim is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann.

§ 14.003(a)(2) (West 2002). In making that determination, the trial court may consider

whether the claim is substantially similar to a claim previously filed by the inmate



                                            4
because the claim arises from the same operative facts. Tex. Civ. Prac. & Rem. Code

Ann. § 14.003(a)(2) & (b)(4) (West 2002).


      Section 14.004 requires an inmate proceeding as an indigent to file an affidavit

identifying each pro se suit, other than those brought under the Family Code, the inmate

previously filed and providing specified information about each suit. Tex. Civ. Prac. &

Rem. Code Ann. § 14.004 (West Supp. 2011). These requirements are intended to

assist the trial court’s determination whether a suit is malicious or frivolous under §

14.003(a).   Gowan v. Tex. Dep’t of Crim. Justice, 99 S.W.3d 319, 321 (Tex.App.--

Texarkana 2003, no pet.). Among the information the inmate must provide for each

such suit is a description of the operative facts for which relief was sought. Tex. Civ.

Prac. & Rem. Code Ann. § 14.004(a)(2)(A) (West Supp. 2011). Failure to comply with

the requirements of § 14.004 entitles the trial court to assume the present claim is

substantially similar to one the inmate previously filed.      Gowan, 99 S.W.3d at 322;

14.003(b)(4). And as noted, substantial similarity may be considered in determining

whether the inmate’s claim is frivolous or malicious.


      In his declaration of prior filings, Turner identified ten lawsuits but did not disclose

the operative facts of any. Thus it was not possible for the trial court to determine

whether the claims Turner alleged in his present suit were substantially similar to those

alleged in his prior actions. The trial court therefore was authorized to assume Turner’s

present suit is substantially similar to a claim he previously filed. Harrison v. Kiper,

2008 Tex. App. Lexis 7225, at *6-7 (Tex.App.--Amarillo Sept. 25, 2008, pet. denied)

(mem. op.); Carson v. Walker, 134 S.W.3d 300, 303 (Tex.App.--Amarillo 2003, pet.

                                             5
denied) (citing Clark v. J. W. Estelle Unit, 23 S.W.3d 420, 422 (Tex.App.--Houston [1st

Dist.] 2000, pet. denied)). For this reason, the trial court did not abuse its discretion in

dismissing the case as frivolous. Samuels v. Strain, 11 S.W.3d 404, 406 (Tex.App.--

Houston [1st Dist.] 2000, no pet.).


         By his fifth issue, Turner complains it was error to dismiss his case without

allowing him to respond to appellees’ motion to dismiss. Appellees moved to dismiss

the case two months after Turner filed it, and the trial court signed an order of dismissal

a few days later.


         A trial court may dismiss an inmate suit even before service of process if the

claim is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (West

2002).    Chapter 14 does not contain a procedure for disposition.        Thus, without a

hearing the trial court may consider dismissal of a suit brought under Chapter 14 on its

own motion or the motion of a defendant and without granting the plaintiff a response.

See Harrison v. Iglesias, No. 13-01-0160-CV, 2002 Tex. App. Lexis 1784, at *7-8

(Tex.App.--Corpus Christi Mar. 7, 2002, no pet.) (not designated for publication) (noting

trial court could dismiss claim before service of process and was not obligated to advise

plaintiff to respond, and concluding plaintiff had no right to respond before dismissal).

Turner’s failure to properly identify his prior lawsuits was apparent on the face of the

record and authorized dismissal of his suit without the need of a response by Turner.

Cf. Thomas v. Bilby, 40 S.W.3d 166, 170 (Tex.App.--Texarkana 2001, no pet.) (issue

was wholly determinable from record thus party did not need to appear at hearing to

present his case). Concluding the trial court did not abuse its discretion by dismissing

                                             6
Turner’s case without a response to appellees’ motion to dismiss, we overrule Turner’s

fifth issue.


       Resolution of Turner’s remaining issues is unnecessary to the disposition of this

appeal.5 Tex. R. App. P. 47.1.


                                        Conclusion


       During the pendency of this appeal, Turner has filed various memoranda with the

court. Any relief requested by these filings, on which the court has not previously ruled,

is denied.


       Based on the foregoing analysis, the judgment of the trial court is affirmed.




                                                        James T. Campbell
                                                             Justice




       5
         In the trial court, as a ground for dismissal, appellees argued Turner did not file
a certified copy of his trust account statement as required by §§ 14.004(c) and
14.006(f). Tex. Civ. Prac. & Rem. Code Ann. §§ 14.004(c) (West Supp. 2011) and
14.006(f) (West 2002). By his third issue, Turner contends he filed the required
statement. The record indicates Turner filed a certified trust account statement. In their
appellate brief, appellees concede this fact and abandon their related ground for
dismissal. But this consequence does not affect the disposition of this appeal.
                                             7
