                                  NO. 07-06-0428-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                OCTOBER 31, 2007
                         ______________________________

                       MICHAEL LOU GARRETT, APPELLANT

                                           V.

                          JOE NUNN, ET AL, APPELLEES
                       _________________________________

             FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

               NO. 94,426-B; HONORABLE JOHN B. BOARD, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION


      Appellant, Michael Lou Garrett, appeals from an order dismissing, with prejudice,

his pro se, in forma pauperis suit under Chapter 14 of the Texas Civil Practice and

Remedies Code. Garrett is an inmate at the Allred Unit of the Texas Department of

Criminal Justice, Institutional Division. Garrett filed a lawsuit against Joe S. Nunn and

numerous other defendants working in or associated with the Clements unit for their

alleged violations of Garrett’s civil rights while Garrett was incarcerated in that unit.

Without a hearing, the trial court granted the defendants’ Motion to Dismiss Pursuant to
Chapter Fourteen of the Texas Civil Practice and Remedies Code and dismissed Garrett’s

lawsuit “with prejudice as frivolous.” Through four issues, Garrett contends that the trial

court abused its discretion in dismissing his suit for failure to comply with the requirements

of Chapter 14 of the Texas Civil Practice and Remedies Code (Garrett’s second and third

issues), dismissing Garrett’s suit with prejudice (Garrett’s fourth issue), and failing to rule

on two pending motions before dismissing the suit (Garrett’s first issue). We modify the

trial court’s dismissal order and affirm, as modified.


                                          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 of the Texas Civil Practice and Remedies

Code. See TEX . CIV. PRAC . & REM . CODE ANN . § 14.002 (Vernon 2002).1 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 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.


       1
        Further reference to provisions of the Texas Civil Practice and Remedies Code will
be by reference to “Chapter 14,” “section __,” or “§ __.”

                                              2
       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.


       Because the trial court dismissed Garrett’s suit without holding a hearing, we

conclude that the dismissal was not based on the merits of the case. Rather, we conclude

that the dismissal was granted on the basis of the trial court’s finding that Garrett failed to

comply with the requisites of Chapter 14. In their motion to dismiss, the defendants sought

dismissal of Garrett’s lawsuit on the basis of his failure to comply with the affidavit or

unsworn declaration of prior filings requirement of section 14.004 and for 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). We will address the timeliness of Garrett’s

lawsuit, the sufficiency of Garrett’s statement of previous filings, and then the trial court’s

dismissal of this action “with prejudice.”


       Garrett’s lawsuit focuses on issues raised in two separate grievance filings. The

final resolution of these grievance filings were signed on January 26 and 27, 2006. Garrett

filed his petition/complaint on April 28, 2006. Clearly, this is far in excess of the 31 day

deadline established by section 14.005. However, section 14.005(a)(1) requires that an

inmate subject to Chapter 14 file an affidavit or unsworn declaration stating the date upon

which the inmate received the written decision from the grievance system upon which the

                                              3
lawsuit is based. Garrett filed an “Affidavit of Grievance System Decision” in which he

states that he received the written decision as to each of the applicable grievances upon

which his suit is based on March 27, 2006. While Garrett contends that he received the

grievance responses 32 days before his suit was filed with the clerk, the Texas Supreme

Court has held that an inmate’s claim is deemed filed at the time the prison authorities duly

receive the documents to be mailed. Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004).

Garrett filed a declaration that he placed his petition/complaint into the prison mail system

on April 24, 2006.      As the defendants offered no evidence to challenge Garrett’s

allegations, we must accept the dates provided by Garrett. Thus, his petition/complaint

was timely filed on the 28th day after his receipt of the written resolution of the grievance

system. To the extent that Garrett’s suit was dismissed for being untimely filed, we

overrule the trial court’s order.


       However, timely filing a suit is not the only hurdle a pro se inmate must overcome

under Chapter 14. In addition, the inmate must file an affidavit or unsworn declaration that

identifies each suit, other than suits under the Family Code, previously brought by the

inmate pro se and this affidavit or declaration must, inter alia, state the operative facts for

which relief was sought. See § 14.004. In the present case, Garrett filed an Affidavit

Relating to Previous Filings in which he identifies three prior state court filings and 10 prior

federal court filings. In his identification of each of these previous filings, Garrett identifies

the causes of action that he alleged by these suits rather than identifying the operative

facts involved in the suits. As such, neither the trial court nor this court can determine




                                                4
whether the present suit was substantially similar to one previously filed by appellant.2

Because we are unable to determine if the present suit is substantially similar to previous

suits filed by Garrett, we must assume the suit is substantially similar and is, therefore,

frivolous. See Clark v. J.W. Estelle Unit, 23 S.W.3d 420, 422 (Tex.App.–Houston [1st Dist.]

2000, pet. denied). Thus, the trial court did not abuse its discretion by dismissing Garrett’s

suit as frivolous. See Thomas, 52 S.W.3d at 295.


       While we conclude that the trial court did not abuse its discretion in dismissing

Garrett’s suit, Garrett further challenges the trial court’s dismissal of the suit with prejudice.

A dismissal with prejudice constitutes an adjudication on the merits and operates as if the

case had been fully tried and decided. Id. As a result, such a dismissal has full res

judicata and collateral estoppel effect which precludes subsequent litigation of the same

causes of action between the parties. Id. A dismissal for failure to comply with the


       2
          Specifically, looking solely to the cases previously filed by Garrett in state court,
Nunn, Hendrick, and Ward were all named defendants in Garrett’s March 4, 2004 suit in
which he claimed the defendants filed false and retaliatory discipline against him, denied
him his due process rights, denied him access to the courts, and committed acts of
harassment and retaliation against him for his filing of grievances.
        Garrett’s December 12, 2005 suit named Nunn, Sells, Hendrick, Early, Grimes,
Zeller, Liles, Ward, and Baker as defendants and alleged that the defendants filed false
and retaliatory discipline against him, denied him his due process rights, denied him
access to the courts, and committed acts of harassment and retaliation against him for his
filing of grievances.
        Finally, Garrett’s February 14, 2006 suit named Nunn, Sells, Early, Grimes, Ward,
and Baker as defendants who allegedly filed false and retaliatory discipline against him,
denied him his due process rights, denied him access to the courts, and committed acts
of harassment and retaliation against him for his filing of grievances.
        Each of these defendants are named defendants in Garrett’s present suit and each
of the identified causes of action alleged in Garrett’s previous filings are urged in his
present suit. Thus, because Garrett provided no identification of the operative facts in
these previous filings, we are unable to determine whether they are substantially similar
to Garrett’s current suit.

                                                5
conditions set out in section 14.004 is not a dismissal on the merits. Id. In the present

case, Garrett’s failure to sufficiently identify the operative facts of his prior pro se suits

could be remedied by him through more specific pleading and, therefore, the trial court’s

dismissal with prejudice was improper. Id. at 296.


       As such, we modify the order of dismissal by deleting the words “with prejudice” and

substituting the words “without prejudice.” As modified, the trial court’s dismissal order is

affirmed.


                                 Failure to Rule on Motions


       Garrett also contends that the trial court erred in failing to rule on Garrett’s motions

for temporary restraining order and injunction and for stay of the proceedings before

dismissing the suit. However, because we have found that the trial court’s dismissal of

Garrett’s complaint was not an abuse of discretion, its failure to consider Garrett’s motions

was also not an abuse of discretion. See Feist v. Williams, No. 07-00-0096-CV, 2001

Tex.App. LEXIS 5536, at *8-*9 (Tex.App.–Amarillo August 16, 2001, no pet.) (unpublished

opinion).


                                         Conclusion


       We modify the trial court’s order of dismissal to substitute the words “without

prejudice” for the words “with prejudice” and, as modified, affirm the order of dismissal.




                                                   Mackey K. Hancock
                                                        Justice

                                              6
