Opinion issued March 1, 2016




                                  In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                           NO. 01-14-00795-CV
                         ———————————
                    GERALD E. GILBERT, Appellant
                                    V.
  TEXAS DEPARTMENT OF CRIMINAL JUSTICE, BOBBY PARVIS,
CARLA JOSEPH, JAMES MASSBARGER, JUSTIN WATTERSON, THE
   UNIVERSITY OF TEXAS MEDICAL BRANCH, PAUL STRUNK,
GLENDA ADAMS, STEPHEN SMOCK, AND TAWANA SMITH, Appellees


                  On Appeal from the 412th District Court
                         Brazoria County, Texas
                      Trial Court Case No. 76482-I


                               OPINION

     Appellant Gerald E. Gilbert is an inmate in the custody of the Texas

Department of Criminal Justice (TDCJ) at the Ramsey Unit in Rosharon, Texas.

He sued TDCJ, the University of Texas Medical Branch (UTMB), and several
individual employees of both entities. His claims initially stem from injuries he

allegedly incurred in a bus accident in the Ramsey Unit parking lot in 2006. Over

the next few years, he developed various medical problems that he attributed to the

accident.   In 2012, he requested a change in assignment and some special

equipment, including an oval ring cushion and a medically therapeutic mattress—

requests that his petition alleges were improperly handled or denied. He also

alleged that, in 2013, his personal coaxial cables were seized from his cell’s

television set by a prison employee.

      The trial court granted the defendants’ motion to dismiss. We affirm.

                              ISSUES ON APPEAL

      Gilbert raises the following four issues here:

      1.     “Whether the district court by conspiracy in combination with
             improperly deprived plaintiff of his forum choice”;
      2.     “Whether the district court erred proceeding to final judgment after
             plaintiff filed an amendment to cure failure to comply by substituted
             instrument, and whether substitution should have been allowed”;
      3.     “Whether the district court erred by conducting an improper
             Alternative Dispute Resolution, under the pretense of a ‘Hearing by
             [Submission]’”;
      4.     “Whether the district court erred dismissing appellant’s Title 42
             U.S.C.A. §1983 civil rights cause of action for right of recovery for
             failure to comply with an inapplicable preempted state notice of
             claim, judicial administrative procedural requirement under Chapter
             14, Texas Civil Practice and Remedies Code §14.005(a)(2), (b).”

      We will discuss the underlying facts and Gilbert’s claims as relevant to the

analysis of each issue.

                                          2
                                      VENUE

      Gilbert’s lawsuit was filed in Brazoria County on March 25, 2014. He

addressed his original petition to the 23rd District Court of Brazoria County. His

case was assigned, however, to the 412th District Court of Brazoria County.1 In

his first issue, Gilbert argues that assignment to the 412th was improper, and

deprived him of his right to the venue of his choosing.

      Appellees respond that, while Gilbert was entitled to file in any proper

county, he “did not have a proprietary interest to select which judge would preside

over his case in the county of filing.” We agree.

      Gilbert cites Union Carbide Corp. v. Loftin, 256 S.W.3d 869, 873 (Tex.

App.—Beaumont 2008, pet. dism’d) for the proposition that a “plaintiff is

generally permitted to choose venue first, and the plaintiff’s choice of venue

cannot be disturbed if the suit is initially filed in a county of proper venue.” He

then contends that the 23rd district court “was plaintiff’s choice” and, thus, should

not have been disturbed.

      Gilbert’s argument, however, conflates venues and individual courts. “In

Texas, ‘venue’ refers to the county in which suit is proper within the forum state.”

In re Great Lakes Dredge & Dock Co. L.L.C., 251 S.W.3d 68, 73 (Tex. App.—

Corpus Christi 2008, orig. proceeding) (emphasis added). Thus, although Gilbert

1
      According to the Brazoria County District Clerk’s website, cases are randomly
      assigned.
                                         3
couches his argument in terms of venue, his actual complaint is that he was not

allowed to choose a particular court within his chosen venue of Brazoria County.

A plaintiff does not have a right to select a particular judge or court in a multi-

court county. In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (orig. proceeding).

      We overrule Gilbert’s first issue.

                            AMENDED PLEADINGS

      In his second issue, Gilbert argues that the trial court “erred by not allowing

plaintiff to amend his pleadings.” This appears to be a reference to two filings: (1)

a June 24, 2014 Plaintiff’s Motion for Substitution of Instrument attaching an

Application to Proceed in Forma Pauperis and an inmate trust account statement,

and (2) a July 21, 2014 Motion for Leave to File Supplement to Original

Complaint attaching various documents in support of his claims (medical

documents, affidavits, etc.).

      On August 19, 2014, the trial court issued a letter opinion explaining its

ruling on the outstanding motions. That letter expressed the view that Gilbert did

not need leave to supplement, but granted the motion “to the extent Court

permission is needed.”     Because the record does not reflect that Gilbert was

prevented from supplementing or amending any pleadings, he has not shown any

error related to the court’s treatment of his June 24, 2014 or his July 21, 2014

motions.


                                           4
      After the trial court issued its August 18, 2014 Final Judgment, Gilbert filed

a September 3, 2014 Motion for Leave to File an Amended Complaint. No ruling

on that motion appears in the record. “Under rule of civil procedure 63, a party

may amend its pleadings after the verdict, but before the trial court has entered

judgment, unless the opposing party establishes surprise.” Hampden Corp. v.

Remark, Inc., 331 S.W.3d 489, 497 (Tex. App.—Dallas 2010, pet. denied)

(emphasis added) (citing Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938,

940 (Tex. 1990)). Gilbert cites no authority for the proposition that a plaintiff has

a right to amend a petition after a final judgment is entered. Thus, to the extent

that Gilbert’s third issue is directed at the court’s failure to grant this post-

judgment motion to amend, he has not shown error.

      We overrule Gilbert’s second issue.

                          HEARING BY SUBMISSION

      In his third issue, Gilbert argues that the “trial court erred by conducting an

improper hearing by submission to dismiss as frivolous with prejudice.”

      On May 28, 2014, the defendants filed a motion to dismiss under Chapter 14

of the Texas Civil Practice and Remedies Code, which provides:

      § 14.005. Grievance System               Decision;    Exhaustion      of
      Administrative Remedies
       (a) An inmate who files a claim that is subject to the grievance
      system established under Section 501.008, Government Code, shall
      file with the court:

                                         5
             (1) an affidavit or unsworn declaration stating the date that the
             grievance was filed and the date the written decision described
             by Section 501.008(d), Government Code, was received by the
             inmate; and

             (2) a copy of the written decision from the grievance system.
      (b) A court shall dismiss a claim if the inmate fails to file the claim
      before the 31st day after the date the inmate receives the written
      decision from the grievance system.

      (c) If a claim is filed before the grievance system procedure is
      complete, the court shall stay the proceeding with respect to the claim
      for a period not to exceed 180 days to permit completion of the
      grievance system procedure.

TEX. CIV. PRAC. & REM. CODE § 14.005 (West 2002).

      According to the defendants’ motion to dismiss, Gilbert’s lawsuit is related

to two grievances, i.e., #2013153287 (filed May 29, 2013; final decision

November 13, 2013) and #2013210052 (filed August 28, 2013; final decision

October 21, 2013). Defendants’ motion alleged that Gilbert (1) failed to “file a

copy of the written grievance decisions or an affidavit stating the dates of the

grievances and the written decisions” as mandated by section 14.005(a)(1), and (2)

failed to file “within the 31-day period after receiving written decisions from the

grievance system” as required by section 14.005(b).

      Defendants’ motion additionally claimed that dismissal was appropriate

because Gilbert failed to file a complying trust account statement under section

14.006(f).



                                         6
      The inmate shall file a certified copy of the inmate’s trust account
      statement with the court. The statement must reflect the balance of the
      account at the time the claim is filed and activity in the account during
      the six months preceding the date on which the claim is filed. The
      court may request the department or jail to furnish the information
      required under this subsection.

TEX. CIV. PRAC. & REM. CODE § 14.006(f) (West 2002).

      On June 24, 2014, Gilbert filed a Motion of Objection to Dismiss Pursuant

to Chapter 14 of the Texas Civil Practice and Remedies Code. Gilbert provided

the required statements about his prior administrative grievances and the date of

their final decisions as required by section 14.005(a)(1). He conceded that he did

not file his lawsuit within 31 days “after the date the inmate receives the written

decision from the grievance system.” But, he contended that this requirement is

unreasonable as applied to his claims, and that his claims should instead be subject

to the two-year statute of limitations provided in section 16.003 of the Texas Civil

Practice Remedies Code.

      The trial court set defendants’ motion to dismiss by submission for August

18, 2014. On August 19, 2014, the trial court issued a letter opinion explaining its

decision to grant defendants’ motion. That letter explained, in relevant part:

      [T]he Joint Motion to Dismiss lists several grounds for dismissal.
      These are failure to comply with Chapter 14 by not filing within 31
      days after receiving a response to Step 2 grievances, failure to attach
      copies of the grievances, failure to attach a trust fund statement, and
      failure to attach a statement of prior litigation. Although Mr. Gilbert
      did not file a motion for leave to supplement his Original complaint to
      address the Trust Fund Statement and Statement of Prior Litigation,

                                          7
      the Court believes that he cured the deficiencies when he filed his
      Trust Fund Statement and Statement of Prior Litigation. Mr. Gilbert
      never cured the failure to attach copies of his grievances even after
      this deficiency was pointed out by the Defendants. However, the issue
      he could not have cured is his failure to file his suit within 31 days
      after receiving his Step 2 grievances. Several cases have held that this
      is not able to be cured, and therefore require dismissal. . . . .
      Therefore, I have signed the Order granting the State’s Motion to
      Dismiss under Chapter 14.

      The court’s first final judgment, signed August 18, 2014, stated that the “all

of Plaintiff’s claims against Defendants are DISMISSED WITH PREJUDICE for

failure to comply with Chapter 14 of the Texas Civil Practice and Remedies

Code.”

      On September 3, 2014, Gilbert filed a Memorandum in Support of Motion

for Reconsideration of Court’s Order of Final Judgment to Dismiss with Prejudice.

On September 5, 2014, the trial court signed a second Final Judgment expressly

vacating its August 18, 2014 final judgment. The new judgment was substantively

the same as the first judgment, except it changed “dismissed with prejudice” to

“dismissed.”

      Gilbert argues that the trial court’s final judgment was erroneous because a

hearing by submission amounts to “a hybrid form of Alternative Dispute

Resolution” that deprived him of due-process rights. He cites a federal statute

permitting communication technology to be used in federal prison cases in lieu of

the inmate’s personal appearance:

                                         8
      To the extent practicable, in any action brought with respect to prison
      conditions in Federal court pursuant to section 1983 of this title, or
      any other Federal law, by a prisoner confined in any jail, prison, or
      other correctional facility, pretrial proceedings in which the prisoner's
      participation is required or permitted shall be conducted by telephone,
      video conference, or other telecommunications technology without
      removing the prisoner from the facility in which the prisoner is
      confined.

42 U.S.C.A. §1997e(f)(1).

      Section 1997(e) is inapposite, as it applies to federal court—not state

court—proceedings, and it only governs pretrial proceedings that an inmate is

“required or permitted” to attend.

      Whether the trial court holds a hearing on a Chapter 14 motion to dismiss is

left to the trial court’s discretion. TEX. CIV. PRAC. & REM. CODE § 14.003(c) (West

2002) (“In determining whether Subsection (a) applies, the court may hold a

hearing.” (emphasis added)); Hamilton v. Pechacek, 319 S.W.3d 801, 808 (Tex.

App.—Fort Worth 2010, no pet.) (“The plain language of the statute indicates that

the trial court’s determination to hold a hearing on a chapter 14 motion to dismiss

is discretionary.”).

      We overrule Gilbert’s third issue.

                            CONSTITUTIONALITY

      In his fourth issue, Gilbert argues that the trial court erred by granting the

defendants’ motion to dismiss because applying Chapter 14’s dismissal procedures

to his federal civil rights claim is “unreasonable, unconstitutional and

                                           9
inapplicable.” Specifically, Gilbert complains about Chapter 14’s requirement that

the civil action be initiated within 31 days of the grievance decision. See TEX. CIV.

PRAC. & REM. CODE ANN. § 14.005(b). We read Gilbert’s brief to challenge the

constitutionality of the statute both facially and as applied. State v. Rosseau, 396

S.W.3d 550, 557 (Tex. Crim. App. 2013) (“[T]o prevail on a facial challenge, a

party must establish that the statute always operates unconstitutionally in all

possible circumstances.”); State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex.

Crim. App. 2011) (“A litigant raising only an ‘as applied’ challenge concedes the

general constitutionality of the statute, but asserts that the statute is

unconstitutional as applied to his particular facts and circumstances.”).

A.    Felder v. Casey

      In support of his argument that application of section 14.005(b)’s 31-day

deadline for filing suit is facially unconstitutional, Gilbert relies on Felder v.

Casey, 487 U.S. 131, 108 S. Ct. 2302 (1988). In Felder, the Supreme Court

considered whether a state’s notice-of-claim statute applied to a federal §1983

claim. Id. at 134, 108 S. Ct. at 2304–05. The statute in question prohibited the

filing of any action against the state or its subdivisions, agencies, or officers unless

the plaintiff had filed a written notice-of-claim within 120 days of his or her

alleged injury. Id. at 136, 108 S. Ct. at 2305. The mandated notice had to include

“an itemized statement of the relief sought.” Id. at 136–37, 108 S. Ct. at 2305–06.


                                          10
        The Supreme Court held that the Supremacy Clause of the federal

constitution pre-empted the application of the notice-of-claim statute for § 1983

claims. Id. at 151, 108 S. Ct. at 2313; see also U.S. CONST. art. VI, cl. 2 (“This

Constitution, and the laws of the United States . . . shall be the supreme law of the

land; and the judges in every state shall be bound thereby, anything in the

Constitution or laws of any State to the contrary notwithstanding”). While it

recognized that states may establish rules of procedure governing litigation in their

courts, the court admonished that rules of local practice cannot defeat federally-

created causes of action. Felder, 487 U.S. at 138, 108 S. Ct. at 2306. The court

held,

        Because the notice-of-claim statute at issue here conflicts in both its
        purpose and effects with the remedial objectives of § 1983, and
        because its enforcement in such actions will frequently and
        predictably produce different outcomes in § 1983 litigation based
        solely on whether the claim is asserted in state or federal court, we
        conclude that the state law is preempted when the § 1983 action is
        brought in a state court.

Id. at 138, 108 S. Ct. at 2307.

        The state statute conflicted with the purpose of §1983 because the

“predominant objective” of the statute was to minimize liability and expenses for

the state while §1983 claims were designed to “provides compensatory relief to

those deprived of their federal rights by state actors.” Id. at 141, 143, 108 S. Ct. at

2308–09. The state statute would produce different outcomes based solely on


                                          11
whether the claim was brought in state or federal court because there was no

federal corollary requiring notice of claims before bringing claims in federal

courts. Id. at 141, 108 S. Ct. at 2308. Finally, the court emphasized, “Civil rights

victims often do not appreciate the constitutional nature of their injuries and thus

will fail to file a notice of injury or claim within the requisite time period, which in

Wisconsin is a mere four months.” Id. at 152, 108 S. Ct. at 2314.

B.    Post-Felder developments in the law

      Since Felder was decided, a new federal law—the Prison Litigation Reform

Act of 1995 (PLRA)—was enacted, making §1983 claims brought by indigent

inmates subject to certain exhaustion of remedies requirements, as well as barring

federal suits by inmates with at least three previous actions deemed frivolous.

      (a) Applicability of administrative remedies

      No action shall be brought with respect to prison conditions under
      section 1983 of this title, or any other Federal law, by a prisoner
      confined in any jail, prison, or other correctional facility until such
      administrative remedies as are available are exhausted.

42 U.S.C.A. § 1997e(a) (West Supp. 2000); see also 28 U.S.C.A. § 1915(g) (West

Supp. 2000) (3-strikes provision).

      In 2005, the Ninth Circuit considered the interaction between the PLRA’s

new administrative exhaustion requirements and an inmate’s time-barred state §

1983 claim.    See Ngo v. Woodford, 403 F.3d 620 (9th Cir. 2005), rev’d by

Woodford v. Ngo, 548 U.S. 81, 126 S. Ct. 2378 (2006). Specifically, the court

                                          12
addressed whether “the district court properly dismissed a prisoner’s complaint for

failing to exhaust all available administrative remedies as required by the Prison

Litigation Reform Act . . . even though the prisoner’s administrative appeal was

deemed time-barred and no further level of appeal remained in the state prison’s

internal appeals process.” Id. at 622.

      The Ngo court recognized the PLRA as “a dramatic departure from

established Supreme Court precedent. Compare Wilwording v. Swenson, 404 U.S.

249, 251, 92 S. Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam) (declaring that

inmates “are not held to any stricter standard of exhaustion [of remedies]” than

other civil rights litigants), with id. § 1997e(a).” 403 F.3d at 623. Ultimately, the

Ngo court reversed the dismissal of the plaintiff’s suit as inconsistent with the

purposes of the PLRA:

      [A]dministrative exhaustion rules have two principal purposes. See
      McCarthy v. Madigan, 503 U.S. 140, 145, 112 S. Ct. 1081 (1992)
      (superseded by amendment of § 1997e(a)). The first is to protect an
      administrative agency’s authority by giving the agency the first
      opportunity to resolve a controversy before a court intervenes in the
      dispute. See id. The second is to promote judicial efficiency by either
      resolving the dispute outside of the courts, or by producing a factual
      record that can aid the court in processing a plaintiff’s claim. Id. at
      145–46, 112 S.Ct. 1081.

      ....

      [W]e hold that Ngo exhausted all administrative remedies available to
      him as required by the PLRA when he completed all avenues of
      administrative review available to him: His administrative appeal was
      deemed time-barred and no further level of appeal remained in the

                                         13
      state prison’s internal appeals process. We also hold that the PLRA’s
      exhaustion requirement does not bar subsequent judicial consideration
      of an exhausted administrative appeal that was denied on state
      procedural grounds.

Id. at 624, 630–31.

      The United States Supreme Court reversed, holding that “proper exhaustion

of administrative remedies is necessary”:

      The PLRA strengthened this exhaustion provision in several ways.
      Exhaustion is no longer left to the discretion of the district court, but
      is mandatory. See Booth v. Churner, 532 U.S. 731, 739, 121 S. Ct.
      1819 (2001). Prisoners must now exhaust all “available” remedies,
      not just those that meet federal standards. Indeed, as we held in Booth,
      a prisoner must now exhaust administrative remedies even where the
      relief sought—monetary damages—cannot be granted by the
      administrative process. Id. at 734, 121 S. Ct. 1819. Finally, exhaustion
      of available administrative remedies is required for any suit
      challenging prison conditions, not just for suits under § 1983.

Woodford v. Ngo, 548 U.S. 81, 85 (2006).

       On remand, the Ninth Circuit affirmed the district court’s dismissal of the

plaintiff’s claim. And, because the plaintiff had waited months beyond the 15-day

deadline to file his administrative appeal, the court declined to address whether the

15-day appeal window was facially constitutional, i.e., whether that requirement

gives inmates “a meaningful opportunity to exhaust.” Ngo v. Woodford, 539 F.3d

1108, 1110 (9th Cir. 2008) (citing Felder, 487 U.S. 131, 146 (1988). It also

rejected the plaintiff’s as-applied challenge, and left open the issue of whether




                                         14
exceptional     circumstances   could    excuse    non-compliance     with    PLRA’s

requirements:

      It is unclear whether we can read exceptions into the PLRA’s
      exhaustion requirement. Compare Woodford v. Ngo, 126 S. Ct. at
      2393 (Breyer, J., concurring in the judgment), with Booth v. Churner,
      532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Even
      if we could, no such exception applies here. Ngo hasn’t shown that
      administrative procedures were unavailable, that prison officials
      obstructed his attempt to exhaust or that he was prevented from
      exhausting because procedures for processing grievances weren’t
      followed. Ngo argues that prison officials didn’t follow procedures
      and misled him. However, the acts he complains about took place
      only after Ngo sent his March 20, 2001, letter to Deputy Warden
      Kane. As a result, they could have no effect on Ngo’s ability to
      exhaust, as he had already missed the deadline.

Id. at 1110.

      Texas courts have heeded the Supreme Court’s admonishment that, under

the PLRA, “proper exhaustion” means “compliance with an agency’s deadlines

and other critical procedural rules.” Leachman v. Dretke, 261 S.W.3d 297, 309

(Tex. App.—Fort Worth 2008, no pet.) (quoting Woodford, 548 U.S. at 90–91, 126

S. Ct. at 2386). For example, the Fort Worth Court of Appeals held that dismissal

of an inmate’s suit with prejudice was proper after the plaintiff missed the 15-day

window to file a Step 1 grievance against prison officials. Id. at 311; see also id. at

310–311 (“Following the reasoning of the Supreme Court in Woodford, we adopt

the interpretation that the exhaustion of remedies requirement under section

501.008 of the government code and section 14.005 of the civil practice and


                                          15
remedies code requires proper exhaustion of remedies, i.e., the timely filing of

grievances, before an inmate may seek judicial review.”).

      The Fort Worth court left open the question of whether an “as applied”

constitutional challenge to Texas’s administrative procedures could be viable. Id.

at 311. Specifically, it noted that it need not decide that issue because the plaintiff

would not have benefited from “some kind of discovery rule applied as an

exception to proper exhaustion,” as he knew about his grievance before the 15-day

deadline. Id.

      Also relying on the post-Felder enactment of the PLRA, the Beaumont

Court of Appeals has rejected a Supremacy Clause challenge to section 14.005(b)’s

31-day deadline, declining to hold that—under Felder—that deadline was

preempted by federal law. Thomas v. Bush, 23 S.W.3d 215, 217–18 (Tex. App.—

Beaumont 2000, pet. denied).

C.    Gilbert’s case

      The provisions about which Gilbert complains are a part of a statutory

scheme for inmates to exhaust their remedies within the inmate grievance system

before filing suits, and shorten the time they have to file suit:

      § 501.008. Inmate Grievance System
       (a) The department shall develop and maintain a system for the
      resolution of grievances by inmates housed in facilities operated by
      the department or under contract with the department that qualifies for
      certification under 42 U.S.C. Section 1997e and the department shall

                                           16
obtain and maintain certification under that section. A remedy
provided by the grievance system is the exclusive administrative
remedy available to an inmate for a claim for relief against the
department that arises while the inmate is housed in a facility operated
by the department or under contract with the department, other than a
remedy provided by writ of habeas corpus challenging the validity of
an action occurring before the delivery of the inmate to the
department or to a facility operated under contract with the
department.

(b) The grievance system must provide procedures:

      (1) for an inmate to identify evidence to substantiate the
      inmate’s claim; and

      (2) for an inmate to receive all formal written responses to the
      inmate’s grievance.
(c) A report, investigation, or supporting document prepared by the
department in response to an inmate grievance is considered to have
been prepared in anticipation of litigation and is confidential,
privileged, and not subject to discovery by the inmate in a claim
arising out of the same operative facts as are alleged in the grievance.

(d) An inmate may not file a claim in state court regarding operative
facts for which the grievance system provides the exclusive
administrative remedy until:

      (1) the inmate receives a written decision issued by the highest
      authority provided for in the grievance system; or

      (2) if the inmate has not received a written decision described
      by Subdivision (1), the 180th day after the date the grievance is
      filed.

(e) The limitations period applicable to a claim arising out of the same
operative facts as a claim for which the grievance system provides the
exclusive remedy:

      (1) is suspended on the filing of the grievance; and
      (2) remains suspended until the earlier of the following dates:

                                  17
                   (A) the 180th day after the date the grievance is filed; or

                   (B) the date the inmate receives the written decision
                   described by Subsection (d)(1).

      (f) This section does not affect any immunity from a claim for
      damages that otherwise exists for the state, the department, or an
      employee of the department.

TEX. GOV’T CODE ANN. § 501.008(d) (West 2012).

      § 14.005. Grievance System               Decision;     Exhaustion      of
      Administrative Remedies
       (a) An inmate who files a claim that is subject to the grievance
      system established under Section 501.008, Government Code, shall
      file with the court:
            (1) an affidavit or unsworn declaration stating the date that the
            grievance was filed and the date the written decision described
            by Section 501.008(d), Government Code, was received by the
            inmate; and

            (2) a copy of the written decision from the grievance system.

      (b) A court shall dismiss a claim if the inmate fails to file the claim
      before the 31st day after the date the inmate receives the written
      decision from the grievance system.
      (c) If a claim is filed before the grievance system procedure is
      complete, the court shall stay the proceeding with respect to the claim
      for a period not to exceed 180 days to permit completion of the
      grievance system procedure.
TEX. CIV. PRAC. & REM. CODE ANN. § 14.005 (emphasis added).

      Although the 31-day deadline for filing a lawsuit is couched within a statute

entitled “Exhaustion of Administrative Remedies,” Gilbert contends that it

operates as a statute of limitations rather than an administrative remedy because it


                                         18
truncates when a suit can be filed in court to seek a judicial remedy, rather than

governing procedures or timelines before an administrative agency to obtain an

administrative remedy.     For that reason, he argues that section 14.005(b) is

analogous to the “notice of claim” requirement that the Felder court rejected as

preempted under the Supremacy Clause. Nonetheless, the 31-day deadline has

been characterized by other courts as “not a statute of limitations, but a procedural

tool to screen inmate lawsuits.” Doyle v. Lucy, No. 14-03-00039-CV, 2004 WL

612905, at *3 (Tex. App.—Houston [14th Dist.] Mar. 30, 2004, no pet.) (mem.

op.). For the reasons below, we reject Gilbert’s Supremacy Clause argument

regardless of which characterization of section 14.005(b) is correct.

      1.     Facial Challenge

      Changes in the law since Felder was decided have undercut largely, if not

completely, the premise behind Gilbert’s argument for invalidating section

14.005(b) as pre-empted by § 1983. As previously discussed, the Felder court

expressed two primary concerns in invalidating Wisconsin’s notice-of-claim

requirement, i.e., (1) potentially different outcomes depending on whether a case

was brought in state or federal court (because there was no such federal

requirement), and (2) the possibility that inmates might not appreciate the

constitutional nature of their injuries within the notice-of-claim time period.




                                          19
        Since the PLRA was enacted, these concerns from Felder do not apply to

the section 14.005(b) 31-day time limit for filing suit. The PLRA requires all state

administrative remedies be exhausted before suit can be filed in federal court,

meaning that—assuming section 14.005(b) is an administrative exhaustion

requirement—it would apply equally whether an inmate suit was filed in state or

federal court.2

      The concern that an inmate might not appreciate the constitutional nature of

his or her claim is likewise not implicated by section 14.005(b)’s 31-day filing

deadline because neither a state or federal suit can be brought until the inmate

claim has been through the prison’s internal grievance system. In other words,

unlike the notice-of-claim requirement in Felder, the 31-day court filing deadline

in section 14.005(b) does not come into play until after the inmate has identified

his or her complaint and adjudicated it throughout the prison grievance procedures.

See Randle v. Wilson, 26 S.W.3d 513, 516 (Tex. App.—Amarillo 2000, no pet.)

(“This is not a circumstance wherein the inmate merely has 31 days to discover the

claim and then initiate suit upon it; he already knows of it.”).

      Given the Supreme Court’s reasoning in Woodford, we reject Gilbert’s facial

constitutional challenge to section 14.005(b).        Under Woodford, an inmate’s

2
      And, if section 14.005(b) is instead a statute of limitations, federal courts borrow
      the state statute of limitations for § 1983 actions, see Wallace v. Kato, 549 U.S.
      384, 387 127 S. Ct. 1091, 1095 (2007), which would again lead to the same
      application of the 31-day filing requirement.
                                           20
misstep in timely complying with any prison internal grievance administrative

procedure forecloses a § 1983 claim in state or federal court because of the

requirement that all administrative procedures be properly and timely complied

with. Woodford, 548 U.S. at 90, 126 S. Ct. at 2386 (“Proper exhaustion demands

compliance with an agency’s deadlines and other critical procedural rules.”). We

see no reason that the Supreme Court would treat Texas’s 31-day court filing

requirement differently.

       Accordingly, we hold that, on its face, the 31-day deadline in §14.005 of

the Civil Practice and Remedies Code does not violate the Supremacy Clause of

the federal constitution for §1983 claims. We overrule Gilbert’s fourth issue.

      2.    As-applied

      We interpret Gilbert’s arguments about his inability to comply with the 31-

day deadline as an as-applied challenge to section 14.005(b). Gilbert focuses his

argument on the alleged unreasonableness of subjecting pro se inmates without

legal training and with limited time in the law library to a 31-day limitations

period. Such reasoning has been rejected by other courts, and we reject it here.

      [A] state may require inmates to comply with rules that make the trial
      process possible or that facilitate the functioning of our system of
      justice. Hodge v. Prince, 730 F. Supp. 747, 751 (N.D. Tex. 1990),
      aff’d, 923 F.2d 853 (5th Cir. 1991). A limitation period, such as the
      31 day period at bar, is akin to such a rule. It exists not only to compel
      litigants to action, but also provides our judicial system an opportunity
      to timely and efficiently address legitimate claims and injuries, thus, it
      serves a reasonable purpose. Moreover, it is not unreasonable to

                                         21
      expect inmates to comply with it. For a prisoner who has already
      pursued a grievance through administrative channels and has
      exhausted his administrative remedies, 31 days to convert that
      grievance into a lawsuit is ample time to act. This is not a
      circumstance wherein the inmate merely has 31 days to discover the
      claim and then initiate suit upon it; he already knows of it.

Randle v. Wilson, 26 S.W.3d 513, 516 (Tex. App.—Amarillo 2000, no pet.); see

also Wallace v. Tex. Dep’t of Criminal Justice-Institutional Div., 36 S.W.3d 607,

611 n.4 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (“The 31 day period

for filing suit in section 14.005(b) serves a reasonable purpose by allowing the

judicial system an opportunity to address legitimate claims and injuries in a timely

and efficient manner.”).

      Significantly, Gilbert does not argue that he was unaware of the deadline, or

that prison or court officials interfered with his ability to comply with the deadline.

As the Ninth Circuit did in Ngo, and the Amarillo Court of Appeals did in Randle,

we leave open the question of whether—and under what circumstances—an

inmate’s individual circumstances could excuse compliance with administrative

procedures or filing deadlines. We hold only that Gilbert has not made such a

showing here.

      We overrule Gilbert’s fourth issue.

                                  CONCLUSION

      We affirm the trial court’s judgment.



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                                            Sherry Radack
                                            Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.




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