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