                                      NO. 07-07-0322-CV

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                           PANEL A

                                   SEPTEMBER 25, 2008
                             ______________________________

                             DAVIE HARRISON SR., APPELLANT

                                               V.

                            WILLARD KIPER, ET AL., APPELLEES
                           _________________________________

                 FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

                      NO. 34404; HONORABLE LEE WATERS, JUDGE
                           _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                  MEMORANDUM OPINION


          Appellant, Davie Harrison, Sr., appeals from an order dismissing his pro se, in forma

pauperis suit under Chapter 14 of the Texas Civil Practice and Remedies Code. We

affirm.


          Harrison is an inmate at the Jordan Unit of the Texas Department of Criminal

Justice, Institutional Division (hereafter, “TDCJ-ID”). On July 25, 2006, Harrison filed a

“Criminal Information/Complaint” against Chaplain Willard Kiper, Grievance Investigator

Glen Stouder, Assistant Warden L. Ellis, Volunteer Mike Riley, and other unnamed TDCJ-
ID employees for their alleged criminal abuse of official capacity under Texas Penal Code

sections 39.02, 39.04, and 39.06. Subsequently, on August 15, 2006, Harrison filed an

“Amended Criminal Complaint” that added a claim that the defendants were employing

false and deceptive business practices to obtain property in violation of Texas Penal Code

sections 32.32 and 32.42(b)(12). At the same time as the “Amended Criminal Complaint”

was filed, Harrison also filed a hand-written “Amended Criminal Complaint” that alleged

that “Captain Andis” made a terroristic threat against Harrison. On April 13, 2007, Harrison

filed a motion to amend his previous filings to include claims against “Officer Willis,”

“Officer Richardson Jr.,” “Assistant Warden Whitfield,” Karl Parks, Lawana Richardson,

Jane M. Cockerham, and Tammera Powers, each in their individual and official capacities,

for physical injuries, mental anguish, and emotional distress he sustained as a result of

defendant’s use of restraints. Harrison also sought leave to amend his filing to add claims

against Texas Tech University Health Science Center and Dr. D. Patel for medical

negligence. On May 22, 2007, Harrison filed a document titled “Claims for Relief” which

seeks declarations that each of Harrison’s claims filed under the present cause number

were true, injunctions ordering that Harrison be provided specialized medical treatment and

be transferred to a minimum security medical unit in a different region, compensatory

damages of $250,000, and punitive damages of $200,000. Additionally, Harrison filed

multiple motions and complaints under the present cause. The defendants jointly filed a

Motion to Dismiss Harrison’s suit for failure to comply with Chapter 14 of the Texas Civil

Practice and Remedies Code. See TEX . CIV. PRAC . & REM . CODE ANN . § 14.002 (Vernon




                                             2
2002).1 Without a hearing, the trial court ordered the lawsuit “dismissed due to Plaintiff’s

violation of Chapter Fourteen of the Texas Civil Practice and Remedies Code.” On July

11, 2007, Harrison filed a Motion for New Trial, which claimed, inter alia, that he had

discovered the existence of x-rays of his claimed injuries after the trial court had dismissed

his suit. Within his motion for new trial, Harrison requested the trial court make findings

of fact and conclusions of law. It appears that Harrison’s motion was overruled by

operation of law. See TEX . R. CIV. P. 329b(c).


       Through ten issues, Harrison challenges the dismissal of the lawsuit for failure to

comply with the requirements of Chapter 14, the trial court’s failure to consider Harrison’s

newly discovered evidence, and the trial court’s failure to issue findings of fact and

conclusions of law. We affirm the trial court’s order of dismissal.


                                         Dismissal


       Inmate litigation, except for suits brought under the Family Code, in which the

inmate files an affidavit or unsworn declaration of inability to pay costs is governed by

special procedural rules set forth in Chapter 14. The trial court has broad discretion to

dismiss a lawsuit brought under Chapter 14 as frivolous or malicious. See § 14.003(a)(2).

One factor that the trial court may consider in determining if an inmate’s claim is frivolous

or malicious is whether the claim is substantially similar to a previous claim filed by the

inmate because the claim arises from the same operative facts. § 14.003(b)(4). To allow


       1
         All references to “Chapter 14" will refer to Chapter 14 of the Texas Civil Practice
and Remedies Code. Specific sections of Chapter 14 will be referenced by “section __”
or “§ __.”

                                              3
the trial court to assess whether the inmate’s claim arises from the same operative facts

as a previous claim, the inmate must file an affidavit or unsworn declaration identifying,

with specificity, each pro se suit that the inmate has previously brought. See § 14.004.

When an inmate fails to provide the information required by section 14.004(a)(2), the trial

court is entitled to assume the current suit is substantially similar to a previous claim.

Samuels v. Strain, 11 S.W.3d 404, 406 (Tex.App.–Houston [1st Dist.] 2000, no pet.); Bell

v. Texas Dep’t of Crim. Justice–Institutional Div., 962 S.W.2d 156, 158 (Tex.App.–Houston

[14th Dist.] 1998, pet. denied).


       We review a trial court’s dismissal of a lawsuit brought by an inmate who has filed

an affidavit or declaration of inability to pay costs for abuse of discretion. Thomas v.

Knight, 52 S.W.3d 292, 294 (Tex.App.–Corpus Christi 2001, pet. denied). A trial court

abuses its discretion when it acts arbitrarily or unreasonably in light of all of the

circumstances in the case or, stated another way, when the trial court acts without

reference to any guiding rules and principles. Id.


       In the present case, the trial court dismissed Harrison’s suit due to “Plaintiff’s

violation of Chapter Fourteen of the Texas Civil Practice and Remedies Code.” In their

motion to dismiss, the defendants sought dismissal of Harrison’s lawsuit on the basis of

his failure to comply with the affidavit or unsworn declaration of prior filings requirement of

section 14.004, his failure to timely file his suit within 31 days after receiving written notice

of decision from the grievance system under section 14.005(b), and because the claims

Harrison asserted in his suit were frivolous or malicious. Our review of the trial court’s

dismissal of Harrison’s suit will address only the sufficiency of Harrison’s affidavit of

                                               4
previous filings, as the insufficiency of this filing pretermits consideration of other bases for

the trial court’s dismissal under Chapter 14.


       Harrison’s affidavit identifies that he had only filed two previous pro se suits that he

had a duty to disclose under section 14.004. Harrison’s identification of a prior suit against

Northwest Texas Healthcare Systems indicates that he sought relief for gross negligence

under the Texas Medical Liability and Insurance Improvement Act. The other prior filing

identified by Harrison indicates that, at some time in 2003 or 2004, he filed a claim against

“agents and servant[s]” of the TDCJ-ID for “assault and battery negligence by a TDCJ

correctional officer at the Bill Clements unit . . . .” Neither of these identifications state the

operative facts for which relief was sought, rather, they state only the legal theory upon

which relief was sought. Based on the information contained in his affidavit, it was

impossible for the trial court to determine whether the claims alleged in Harrison’s current

suit were duplicative of his earlier filings.2 Because the trial court was unable to determine

if Harrison’s present suit was substantially similar to previous suits filed by Harrison, the

trial court was entitled to assume the current suit is substantially similar to those prior filings

and, therefore, is frivolous or malicious. See Samuels, 11 S.W.3d at 406; Bell, 962 S.W.2d

at 158. Thus, the trial court did not abuse its discretion by dismissing Harrison’s suit. See

Thomas, 52 S.W.3d at 295.


       2
           The two previous suits identified by Harrison claimed violations of the Texas
Medical and Insurance Improvement Act and physical injuries caused by correctional
officers assaulting him. In the present suit, Harrison asserts claims for medical negligence
and for physical injuries arising from the assaultive actions of correctional officers. Without
any identification of the operative facts of the prior suits, the trial court could not have
determined whether the present suit was based on different operative facts from Harrison’s
prior filings.

                                                5
       We further conclude that the fact that Harrison’s affidavit indicated that his prior

filings were asserted against different defendants is of no import. The trial court was

justified to assume that Harrison may have filed separate lawsuits against different

defendants arising from the same operative facts. See White v. State, 37 S.W.3d 562, 565

(Tex.App.–Beaumont 2001, no pet.). Since the trial court can dismiss a claim as frivolous

or malicious if it is substantially similar to a previous claim filed by the same inmate

because the claim arises from the same operative facts, see § 14.003(b)(4), we affirm the

trial court’s judgment.


                                   Post-Judgment Filings


       We note that Harrison’s Motion for New Trial did not amend or supplement his

affidavit of previous filings and, thus, the trial court did not abuse its discretion in denying

same. As for Harrison’s request for findings of fact and conclusions of law, the record does

not reflect that Harrison filed a Notice of Past Due Findings of Fact and Conclusions of

Law, as required by Rule 297 of the Texas Rules of Civil Procedure.


                                         Conclusion


       For the foregoing reasons, we affirm the trial court’s order of dismissal.




                                                   Mackey K. Hancock
                                                        Justice




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