                        NUMBER 13-17-00483-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG
____________________________________________________________

AARON MALONE,                                                           Appellant,

                                         v.
UTMB, ET AL.,                                      Appellees.
____________________________________________________________

             On appeal from the 139th District Court
                   of Hidalgo County, Texas.
___________________________________________________________

                        MEMORANDUM OPINION

  Before Chief Justice Contreras and Justices Longoria and Perkes
              Memorandum Opinion by Justice Perkes

      Appellant Aaron Malone, an inmate proceeding pro se and in forma pauperis,

appeals the trial court’s dismissal of his suit against appellees Texas Department of

Criminal Justice (TDCJ), Russell Landry, Candace Moore, Veronica Inmon, Officer

Jacoway, C. Martinez, Officer Almendarez, Dale Dorman, Sarah Poindexter, Captain

Gonzales, Counsel Substitute Saenz, and K. Putnam (collectively referred to as TDCJ
appellees); and against appellees University of Texas Medical Branch (UTMB), Martha

Blackwell, Susanna Corbett, Georgy Samuel, Timothy Teboe, Rose Opara, and Dr. Isaac

Kwarteng (collectively referred to as UTMB appellees). See generally TEX. CIV. PRAC. &

REM. CODE ANN. §§ 14.001–.014 (West, Westlaw through 2017 1st C.S.). By two issues,

appellant argues the trial court erred in dismissing his lawsuit because: (1) he met all

procedural requirements of chapter 14 of the Texas Civil Practice and Remedies Code;

and (2) his claims were not frivolous. We affirm.

                                    I. BACKGROUND

      Appellant is an inmate in a TDCJ unit in Beeville, Texas. He brought a lawsuit

against UTMB and several of its employees alleging they violated his rights under the

Eighth Amendment to the U.S. Constitution. Appellant contends that from September 3,

2014, through mid-year 2015, the UTMB appellees “failed to provide adequate treatment

to [appellant] and was [sic] deliberately indifferent to his serious medical needs.” He

complained that UTMB appellees failed to properly treat his back injury and that UTMB

and TDCJ failed to properly train their staff physicians, nurses, and employees.

      In addition, he sued TDCJ and several of its employees, alleging violations of his

First, Fifth, and Fourteenth Amendment rights under the U.S. Constitution; harassment;

discrimination; retaliation; and violations of the Texas Penal Code. In this regard, he

accused TDCJ appellees of filing improper disciplinary reports, making unreasonable

disciplinary decisions, and making racial and discriminatory comments.

      The Office of the Texas Attorney General filed amicus curiae advisories in the trial

court recommending dismissal of the claims against all appellees pursuant to chapter 14




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of the Texas Civil Practice and Remedies Code.1 The trial court subsequently dismissed

appellant’s entire suit with prejudice as “frivolous, malicious, and for the failure to state a

claim upon which relief may be granted.” This appeal followed.2

                                       II. STANDARD OF REVIEW

        Special procedural rules govern litigation by inmates in which the inmate files an

affidavit or unsworn declaration of inability to pay. Thomas v. Knight, 52 S.W.3d 292, 294

(Tex. App.—Corpus Christi 2003, pet. denied); see TEX. CIV. PRAC. & REM. CODE ANN.

§ 14.001. Inmates must receive a decision from the highest authority in the prison

grievance system before filing a claim in state court.                        TEX. GOV’T CODE ANN.

§ 501.008(d)(1) (West, Westlaw through 2017 1st C.S.). Further, an inmate must file a

claim in state court “before the 31st day after the date the inmate receives the written

decision from the grievance system.” TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(b). “A

suit that is not timely filed pursuant to Section 14.005(b) is barred and may be dismissed

with prejudice.” Simmonds v. Harrison, 387 S.W.3d 812, 814–15 (Tex. App.—Eastland

2012, no pet.) (citing Moreland v. Johnson, 95 S.W.3d 392, 395 (Tex. App.—Houston [1st

Dist.] 2002, no pet.)); see also Readeaux v. Velasquez, No. 13-13-00217-CV, 2013 WL

4399189, at *1 (Tex. App.—Corpus Christi Aug. 5, 2013, no pet.) (mem. op.).                              As

explained by the Texarkana Court of Appeals:

        The purpose of Section 14.005 is to allow the trial court to ensure that an
        inmate proceeding in forma pauperis has first used TDCJ's grievance
        procedure, if it is applicable to his claim. Though Section 14.005 does not
        explicitly so provide, its obvious purpose is to allow the trial court to dismiss
        a suit when it becomes clear that the inmate has failed to provide the

        1 The TDCJ appellees were not served with service of citation and did not file an answer in the trial

court. The UTMB appellees filed an answer and a plea to the jurisdiction in the trial court.
        2  The Office of the Texas Attorney General has filed amicus curiae response briefs in this court on
behalf of all appellees.

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        information the statute requires. Therefore, it is incumbent on the inmate to
        provide the required information before it comes to the trial court for review.
        This is especially true because Section 501.008 of the Texas Government
        Code precludes an inmate from filing a claim until he has exhausted his
        remedies through the grievance system.

Smith v. Tex. Dep’t of Criminal Justice, 33 S.W.3d 338, 341 (Tex. App.—Texarkana 2000,

pet. denied).

        The trial court has broad discretion to dismiss a lawsuit under chapter 14 as

frivolous or malicious. Jackson v. Tex. Dep’t of Criminal Justice, 28 S.W.3D 811, 813

(Tex. App.—Corpus Christi 2000, no pet.). To establish an abuse of discretion, an

appellant must show the trial court’s actions were arbitrary or unreasonable considering

all circumstances. Harrison v. Tex. Dep’t of Criminal Justice, 164 S.W.3d 871, 874 (Tex.

App.—Corpus Christi 2005, no pet.). The standard is clarified by asking whether the trial

court acted without reference to any guiding rules or principles. Id.

                                  III. ANALYSIS AND DISCUSSION

        In his first issue, appellant contends the trial court abused its discretion by

 dismissing his lawsuit because he met all procedural requirements of chapter 14. More

 specifically, he asserts that this lawsuit was timely filed.

        Appellant attached copies of numerous Step One and Step Two grievance

 responses from the prison grievance system to his original petition. The latest of these

 Step Two responses is dated August 2, 2016. At that time, an earlier lawsuit was

 pending on other grievances appellant had filed.3                 On May 20, 2016, he filed a




       3 This Court previously considered an interlocutory appeal from that earlier lawsuit. See Zambrano

v. Malone, No. 13-17-00022-CV, 2018 WL 549198 (Tex. App.—Corpus Christi Jan. 25, 2018, no pet.)
(mem. op.).


                                                   4
 “supplemental petition” in the earlier lawsuit with additional parties and claims.4 He

 asserts that the trial court “severed” the additional parties and claims from that lawsuit,

 and that his January 12, 2017 re-filing of those parties and claims in the current lawsuit

 somehow “reverted” back to his May 20, 2016 filing in the earlier lawsuit. As such, he

 argues the claims contained in the January 12 filing were timely.

        Appellant was required to file this lawsuit before the 31st day after the date he

received notice of a final written decision from the prison grievance system. See TEX.

CIV. PRAC. & REM. CODE ANN. § 14.005(b). He failed to comply with this requirement.

According to his original petition and supporting documents, appellant received the latest

Step Two grievance response in August 2016.5 Using this date, appellant’s deadline to

file suit would have been in September 2016. See id. Appellant’s original petition was

signed on December 24, 2016, and then file-stamped by the trial court on January 12,

2017, both dates being substantially after the deadline.6 If an inmate fails to comply with

the deadlines in § 14.005(b), the trial court has “no discretion but to dismiss the lawsuit.”

Lewis v. Johnson, 97 S.W.3d 885, 888 (Tex. App.—Corpus Christi 2003, no pet.).

        In addition, the case does not relate back to the May 20, 2016 filing date in the

earlier lawsuit. First, the record does not include an order of severance from the earlier



         4 Inclusion of these new parties and claims constituted an amended petition, not a supplemental

petition. See TEX. R. CIV. P. 62.

        5  According to appellant’s unsworn declaration and amendments thereto, he received final written
decisions from the grievance system on Grievance No. 2016036172 on April 20, 2016, No. 2016059607 on
April 22, 2016, No. 2015075408 on April 28, 2019, No. 2016072217 on May 1, 2016, No. 2016100881 on
June 1, 2016, No. 2016138097 on July 15, 2016, No. 2016105292 on July 28, 2016, and No. 2016138725
on August 3, 2016.

        6 Under the prisoner mailbox rule, court filings by pro se inmates are deemed filed “at the time the

prison authorities duly receive the document to be mailed.” Warner v. Glass, 135 S.W.3d 681, 684 (Tex.
2004) (per curiam). Therefore, the earliest possible date appellant could have filed his original petition was
December 24, 2016—the day he signed it.

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lawsuit or any other evidence to show that a severance occurred. Second, appellant’s

own description of the procedural history is inconsistent with a severance:

                Upon further discussing [sic] with the Court, the Court stated that it
       did not respond to the suit and determined that the Defendants would not
       be joined to the Defendants who were already set for trial in the cause. The
       Court instructed Malone to re-file the suit under a different Cause No. The
       Court then instructed its clerk to send Malone’s suit back to him for him to
       re-file it under a different Cause No.

             Malone received the lawsuit sent by the Court in the month of
       October 2016. After researching additional claims, Malone filed the suit in
       cause Number [sic] 17-1020-CV-A on January 17th[,] 2017.

       It appears the trial court denied appellant’s attempt to join the appellees because

it would have caused an unreasonable delay in the trial of that case. See TEX. R. CIV. P.

37. Additionally, the earlier lawsuit involved an unrelated series of occurrences, see

Malone, 2018 WL 549198 at *1, and thus it was inappropriate for appellant to attempt to

join the nineteen appellees named in this case. See TEX. R. CIV. P. 40(a). We note that

“[l]itigants who represent themselves must comply with the applicable procedural rules,

or else they would be given an unfair advantage over litigants represented by counsel.”

Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978).

       Having denied the joinder in the first instance, there were no parties and claims for

the trial court to sever. See TEX. R. CIV. P. 41. If there had been an actual severance,

the trial court would not have “instructed [appellee] to re-file the suit.” See McRoberts v.

Ryals, 863 S.W.2d 450, 452–53 (Tex. 1993) (explaining a severance is effective when

the severance order is signed) (citing Hall v. City of Austin, 450 S.W.2d 836, 838 (Tex.

1970)). Therefore, appellant filed his claims against appellees for the first time in an




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entirely new and distinct lawsuit on January 12, 2017. As such, appellant’s suit against

the appellees was untimely.7

        We hold that the trial court did not abuse its discretion.                  Having found that

appellant’s filing was untimely, we need not address appellant’s other issue on appeal.

Further, because the chapter 14 defect in appellant’s lawsuit cannot be remedied, we

conclude the trial court did not abuse its discretion in dismissing appellant’s complaint

with prejudice. See Mason v. Wood, 282 S.W.3d 189, 193 (Tex. App.—Beaumont 2009,

no pet.) (citing Hines v. Massey, 79 S.W.3d 269, 272 (Tex. App.—Beaumont 2002, no

pet.); see also Simmonds, 387 S.W.3d at 814–15; Moreland, 95 S.W.3d at 395.

                                           IV. CONCLUSION

        We affirm the judgment of the trial court.

                                                                          GREGORY T. PERKES
                                                                          Justice

Delivered and filed the
2nd day of May, 2019.




        7 Appellant’s original petition alleges that his Step Two grievance against appellee Almendarez was
pending at the time he filed suit, unlike the other appellees. In his objection to the Attorney General’s
advisory to dismiss, appellant alleged he received the final written decision from the grievance system as
to Almendarez on April 20, 2017, but he failed to attach a copy as required by chapter 14. See TEX. CIV.
PRAC. & REM. CODE ANN. § 14.005(a)(2). Appellant’s brief fails to distinguish this claim from his relation-
back argument; therefore, any additional arguments he may have raised as to the timeliness of this claim
were waived. See TEX. R. APP. P. 38.1(i).

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