                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                                ________________

                               NO. 09-18-00204-CV
                                ________________

                    TIMOTHY EDWARD HOLZ, Appellant

                                         V.

      UNITED STATES OF AMERICA CORPORATION, Appellee
__________________________________________________________________

                On Appeal from the 60th District Court
                       Jefferson County, Texas
                      Trial Cause No. B-201,556
__________________________________________________________________

                          MEMORANDUM OPINION

      Pro se appellant Timothy Edward Holz appeals from the trial court’s dismissal

of his lawsuit pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code.

See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-14.014 (West 2017). Specifically,

Holz argues that the trial judge erred by dismissing the suit with prejudice before an

answer was filed. We affirm the trial court’s order as modified.




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                                 BACKGROUND

      Holz filed suit against the “United States of America Corporation, c/o J.F.

Caraway.” 1 In his “individual capacity complaint,” Holz asserted that after returning

from the hospital, he was placed in a special housing unit at a federal prison in

Jefferson County, Texas, as Hurricane Harvey approached. Holz asserted that for the

next twenty-one days, he suffered “inhumane” conditions of confinement, including

lack of air conditioning, electricity, water, laundry, as well as denial of pain

medication. According to Holz, the alleged failure to protect the inmates from the

approaching storm constituted a violation of the Eighth Amendment. See U.S. Const.

amend. VIII. Holz specifically asserted claims for the following: (1) attempted

murder “which is a specific civil wrong[;]” (2) abandonment; (3) cruel and unusual

punishment via denial of pain medication; (4) inhumane confinement conditions due

to “being unable to eat the small amount of food in our possession due to the stench

of a toilet full of feces[;]” (5) a due process violation for “deliberate ‘attempted

murder[;]’” (6) violation of the Eighth Amendment by failing to protect inmates

from a “known imminent risk of deadly force[;]” (7) violation of the Eighth




      1
       In his petition, Holz states that J.F. Caraway is the Regional Director of the
Federal Bureau of Prisons.
                                          2
Amendment due to denial of pain medication; and (8) violation of the Fifth

Amendment for “deliberate indifference” by denying prescribed pain medications.

      Holz sought $25,000,000,000 in compensatory damages for each claim and

$25,000,000,000 in punitive damages for each claim. Holz attached to his petition

(1) his inmate register number from the website of the Federal Bureau of Prisons;

(2) a “sworn affidavit” 2 in which he describes the severity of Hurricane Harvey and

compared it to the storm that struck Galveston at the beginning of the twentieth

century; (3) a civil case information sheet; (4) a request for service of process; (5) a

statement of inability to afford court costs or an appeal bond; (6) a citation without

a return; (7) a citation by mailing, also without a return; (8) a second citation by

mailing with a return of service, which indicated that “USA Corporation” had been

served by certified mail on April 9, 2018; and (9) a delivery confirmation from the

United States Postal Service. On April 30, 2018, the trial court signed an order

dismissing Holz’s case with prejudice. Holz appealed.

                                     ANALYSIS

      In his sole appellate issue, Holz contends that the trial judge erred by

dismissing the suit with prejudice before an answer was filed. We review the trial



      2
       Holz’s “affidavit” was not notarized, and it appears to be an unsworn
declaration.
                                           3
court’s dismissal under an abuse of discretion standard. Hickson v. Moya, 926

S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ). We will affirm the trial court’s

dismissal if it was proper under any legal theory. See Johnson v. Lynaugh, 796

S.W.2d 705, 706-07 (Tex. 1990). In forma pauperis suits by inmates, such as Holz’s

lawsuit, are governed by Chapter 14 of the Texas Civil Practice and Remedies Code.

See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-14.014. Section 14.004 requires

an inmate who files an unsworn declaration of inability to pay costs to file a separate

affidavit or declaration that identifies each action, other than one under the Family

Code, previously brought by the inmate pro se, without regard to whether the person

was an inmate when the suits were brought. Id. § 14.004(a)(1). The affidavit or

declaration must describe each previously-brought action by stating the operative

facts for which relief was sought; listing the case name, cause number, and court

where the action was filed; identifying each party named in the action; and stating

the result of the action. Id. § 14.004(a)(2).

      Holz did not provide a separate affidavit or declaration that identified each

action he previously filed pro se, as required by section 14.004(a)(1). See id. §

14.004(a)(1). Because Holz’s filing failed to comply with the requirements of

Chapter 14, we conclude that the trial court did not abuse its discretion by dismissing

Holz’s case. See id. § 14.004(a). We therefore overrule Holz’s issue. Although we

                                            4
hold that the trial court did not err by dismissing Holz’s suit, the dismissal did not

concern the merits of Holz’s claims. “A dismissal for failure to comply with the rules

governing the filing of in forma pauperis suits is not a ruling on the merits;

accordingly, it is error to dismiss the suit with prejudice if the inmate was not first

provided with an opportunity to amend his pleadings.” Hughes v. Massey, 65 S.W.3d

743, 746 (Tex. App.—Beaumont 2001, no pet.). We modify the judgment to provide

that the cause is dismissed without prejudice. See id. We affirm the trial court’s order

of dismissal as modified. See Tex. R. App. P. 43.2(b).

      AFFIRMED AS MODIFIED.



                                               ______________________________
                                                      STEVE McKEITHEN
                                                         Chief Justice

Submitted on October 23, 2018
Opinion Delivered November 29, 2018

Before McKeithen, C.J., Kreger and Horton, JJ.




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