                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00016-CV
        ______________________________


         CARLOS A. ARMENTA, Appellant

                          V.

              TDCJ, ET AL., Appellees




   On Appeal from the 202nd Judicial District Court
                Bowie County, Texas
           Trial Court No. 08C1870-202




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                   MEMORANDUM OPINION

       After Carlos A. Armenta, an inmate, filed suit in district court against several defendants

(all employees of the Texas Department of Criminal Justice (TDCJ)), the suit was dismissed

without a hearing. In his appeal of that order of dismissal, Armenta asserts four points of error,

each alleging various abuses of discretion by the trial court. Armenta’s suit alleged that the

various defendants had deprived Armenta of property, that the TDCJ failed to adequately feed

him, and that the defendants had caused injury to his person when he was sprayed with chemical

agents while Armenta had been engaged in a fight with another prisoner.

       We affirm the judgment of the trial court in part, and reverse and remand to the trial court

in part for further proceedings.

Sections 14.001 –14.014 of the Texas Civil Practice and Remedies Code

       A TDCJ inmate who files a suit while claiming indigency must comply with the procedures

set out in Chapter 14 of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM.

CODE ANN. §§ 14.001–.014 (Vernon 2002). An inmate may only file a claim in state court

regarding operative facts for which the TDCJ grievance system provides the exclusive

administrative remedy after the inmate has received written decision issued by the highest

authority provided for in the grievance system (or the 180th day after the date the grievance is

filed, if the inmate has not received a written decision within that time period). TEX. GOV’T CODE

ANN. § 501.008(d) (Vernon 2004). An inmate who files a claim that is also subject to the



                                                2
grievance system must file an affidavit or unsworn statement which identifies the date a grievance

was filed and the date a written decision was received, together with a copy of the written decision,

if any. TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(a). If a lawsuit is filed later than thirty-one

days after the inmate’s receipt of a final decision rendered as a result of the grievance system

process, the trial court must dismiss the suit. TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(b);

Smith v. Tex. Dep’t of Criminal Justice–Institutional Div., 33 S.W.3d 338, 340 (Tex.

App.––Texarkana 2000, pet. denied).

       The procedures for availing oneself of the grievance system are set out in the Offender

Orientation Handbook1 published by the TDCJ.

       The administrative grievance process established by TDCJ begins with an informal
       attempt to resolve the problem. If the informal attempt is unsuccessful, two steps
       follow. The inmate has fifteen days from the grievable event to forward a step one
       grievance form to the unit grievance investigator. If unsatisfied with the step one
       decision, the inmate may appeal by submitting a step two form to the unit grievance
       investigator within fifteen days of the step one response.

Hamilton v. Williams, 298 S.W.3d 334, 342–43 (Tex. App.––Fort Worth 2009, pet. filed) (citing

Offender Orientation Handbook 52). Under the administrative process, Armenta was required to

initiate the grievance process within fifteen days of the occurrence of each of the events of which

he complained. Finding dissatisfaction with the TDCJ’s resolution of any of his grievances under

the administrative process, he was required to then file suit within thirty-one days of receiving

written notice of the grievance’s resolution. TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(b).

1
   Tex. Dep’t of Criminal Justice, Offender Orientation Handbook            52   (rev.   Nov.   2004),
http://www.tdcj.state.tx.us/publications/cid/OffendOrientHbkNov04.pdf.

                                                 3
       Chapter 14 of the Texas Civil Practice and Remedies Code applies to litigation brought by

an inmate who seeks to proceed as a pauper, either through an affidavit or an unsworn declaration

of his inability to pay costs. TEX. CIV. PRAC. & REM. CODE ANN. § 14.002(a). In such a case, the

trial court may dismiss a claim at any time if the court finds that the claim is frivolous or malicious.

TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2). In deciding whether an inmate’s claim is

frivolous, the trial court may consider the inmate’s realistic chance of ultimate success, whether

the claim has an arguable basis in law or fact, whether the facts the inmate must prove in order to

support his claim are capable of proof by the inmate, and whether the claim is substantially similar

to and arises from the same facts as another claim already brought by the inmate. TEX. CIV. PRAC.

& REM. CODE ANN. § 14.003(b). A hearing on a motion to dismiss an inmate’s claims as

frivolous is not mandatory and the decision to conduct such a hearing is left to the trial court’s

discretion. Thomas v. Wichita Gen. Hosp., 952 S.W.2d 936, 938 (Tex. App.––Fort Worth 1997,

pet. denied). Should the court decide not to hold a fact hearing, dismissal of the suit is proper only

if the claim has no arguable basis in law; we review such a determination de novo. Retzlaff v. Tex.

Dep’t of Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.––Houston [14th Dist.] 2002, pet.

denied).

       We review the trial court’s dismissal of Armenta’s suit under an abuse of discretion

standard. Hickman v. Adams, 35 S.W.3d 120, 123 (Tex. App.––Houston [14th Dist.] 2000, no

pet.); Samuels v. Strain, 11 S.W.3d 404, 406 (Tex. App.––Houston [1st Dist.] 2000, no pet.). A



                                                   4
trial court abuses its discretion only if it acts without reference to any guiding rules or principles.

Hickman, 35 S.W.3d at 123.

Armenta’s Petition

       Armenta’s petition in the trial court was based on alleged causes of action stemming from

(1) the claim by Armenta that the TDCJ had taken some of Armenta’s private property from him,

(2) Armenta’s claim that the quantity and quality of the food served by the TDCJ was inadequate,

and (3) a claim by Armenta that he had sustained an injury when the TDCJ employees sprayed him

with some form of ―chemical agents‖ when he was engaged in a fight with another inmate. As

will be discussed below, the trial court was compelled to dismiss Armenta’s claims that were based

on his complaints about the alleged loss of property and the food. However, it appears that one

claim (i.e., the claim that the TDCJ’s use of chemical agents sprayed on Armenta had caused him

injury) may have been brought in a timely manner.

Exhaustion of Administrative Remedies

       Armenta’s suit was filed December 26, 2008, with the district clerk. The certificate of

service attached to the petition states that he placed the petition in the prison mail room

December 18, 2008. A pro se inmate’s petition, placed in a properly addressed and stamped

envelope or wrapper, is deemed to have been filed at the moment prison authorities receive the

document for filing. Warner v. Glass, 135 S.W.3d 681, 682 (Tex. 2004).




                                                  5
       The suit’s allegations were based on complaints in five sets of grievances Armenta filed.

In all but one of these grievances, Armenta received written notice of the TDCJ’s decision well in

excess of thirty-one days prior to filing his petition. Here are the grievances, identified by their

internal identification numbers, the general nature of the complaint, and the date upon which the

TDCJ tendered written notice of its decision:

Grievance Number                 Subject of Grievance                    Date of TDCJ Response

2007028724               inadequate portions and amount of food     No step 2; Step 1 returned
                                                                    Nov. 27, 2006
2007217478               inadequate portions and amount of food     Nov. 9, 2007
2008163118               inadequate portions and amount of food     Aug. 7, 2008
2009007488               confiscation of personal property          Nov. 12, 2008
2009018843               use of chemical agents                     Dec. 4, 2008


       Except for the last grievance mentioned above (i.e., number 2009018843), all of Armenta’s

grievances were finalized in the administrative process by the TDCJ’s response more than

thirty-one days before suit was filed. The clear language of Section 14.005(b) required the trial

court to dismiss that portion of Armenta’s suit which did not comply with the thirty-one-day

deadline. TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(b); Garrett v. Nunn, 275 S.W.3d 604,

607 (Tex. App.––Amarillo 2008, no pet.).         The trial court did not abuse its discretion in

dismissing Armenta’s suit to the extent it was based on the first four grievances. Garrett, 275

S.W.3d at 607.

Was Grievance Concerning Use of Chemical Agents Timely Filed?



                                                 6
       Grievance number 2009018843 was based on conduct that occurred on April 21, 2008. In

his petition and his grievance form, Armenta maintained that he engaged in a fight with another

inmate on April 21, 2008. His grievance petition alleges that the TDCJ guards or employees

sprayed Armenta with chemical agents during that altercation and that he suffered ill physical

effects from the chemicals that were administered him at that time. In his original petition filed in

his suit, Armenta said he was taken to the infirmary on seven occasions between late April and

June 24, 2008, and on the latter date, the prison doctor ―concluded of the chest and respiratory

problem [were] caused by the chemical agents used.‖ On June 26, Armenta was administered an

electrocardiogram (EKG) test. In the text of his administrative grievance, Armenta claims that he

received no response to his alleged June 24 grievance filing and that his September 21, 2008, filing

was not a new grievance but, rather, a refiling of the grievance he had originally filed June 24.

The form reflects that this was received by TDCJ October 1. An answer to Armenta’s Step 2 form

for this grievance was dated December 4, 2008. TDCJ claims this grievance was untimely,

maintaining that it was required to have been filed within fifteen days of April 21, 2008.

However, Armenta’s pleadings and grievance form indicate he did not suspect or discover an

alleged causal relationship between the April 21 spraying of chemical agents and his subsequent

symptoms until June 24. In his response to TDCJ’s motion to dismiss, Armenta said,

       after Plaintiff got sprayed [with] chemical agents he did not know what physical
       damages the chemical agents had caused until the examinations were taken: blood
       test, urine test, X-rays and EKG, and then diagnosed with high blood pressure and



                                                 7
       respiratory problems. He could not have complaint [sic] about any physical/
       personal injury/damages of his organs within 15 days follow[ing] the use of force.

Armenta then reasserted his claim that he filed a grievance on June 24, but did not receive a

response. Accepting as true the factual allegations in Armenta’s petition,2 Armenta made at least

a prima facie showing that he had complied with the requirements of the Offender Handbook and

the Texas Civil Practice and Remedies and Government Codes. See generally TEX. CIV. PRAC. &

REM. CODE ANN. § 14.005(b); TEX. GOV’T CODE ANN. § 501.008 (Vernon 2004).

       The TDCJ answers Armenta’s claim that he filed a grievance on June 24 by responding that

there is no proof of this alleged June 24 grievance filing in Armenta’s inmate file. Despite this

position, Armenta’s inmate file is not part of the record presented to this Court and does not,

therefore, rise above the position of allegation. Due to the fact that the trial court held no hearing

and did not make findings of fact, Armenta’s prima facie proffer remained unrebutted.

       The TDCJ takes the position that the trial court did not err in dismissing Armenta’s suit as

frivolous. The TDCJ points to Armenta’s medical record, which reflects that a chest X-ray dated

June 26, 2008, bears the notation ―normal.‖ The TDCJ also states, ―prior to being sprayed with a

chemical agent on April 21, 2008, it is evident from Appellant’s medical record that he suffered

from hypertension.‖ Armenta’s medical record includes notes from January, November, and

December 2007, where his blood pressure was noted as 169/88, 143/85, and 139/87, respectively.

We do not find this makes it ―evident‖ that Armenta did not suffer from hypertension after his

2
 Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985); Harrison v. Tex. Dep’t of Criminal
Justice–Institutional Div., 915 S.W.2d 882, 888 (Tex. App.––Houston [1st Dist.] 1995, no writ).

                                                  8
exposure to the chemical agents of a level equal to or greater than the hypertension he suffered

prior to his exposure to the chemical agents. Even if Armenta did have pre-existing hypertension,

these medical notes do not disprove his allegations in his petition.

       The trial court’s dismissal order only cites ―Chapter 14 of the Texas Civil Practice [and]

Remedies Code‖ as the basis or authority for dismissing Armenta’s claims with prejudice and does

not state that the court found no basis in law or fact for the suit. No hearing was held before the

trial court dismissed Armenta’s suit. When no fact hearing is held by the trial court, we may

affirm the dismissal on any of the grounds presented in the motion to dismiss. See Retzlaff v. Tex.

Dep’t of Criminal Justice, 94 S.W.3d 650 (Tex. App.––Houston [14th Dist.] 2002, pet. denied).

When a trial court does not hold a hearing on a motion to dismiss, it may not dismiss a cause of

action on the ground that it has no arguable basis in fact. Gordon v. Scott, 6 S.W.3d 365 (Tex.

App.—Beaumont 1999, pet. denied); see Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex.

App.—Houston [1st Dist.] 1998, no pet.). In that situation, the issue is necessarily whether the

trial court properly determined there was no arguable basis in law for the suit. Gordon, 6 S.W.3d

at 369; Lentworth, 981 S.W.2d at 722. To determine whether the trial court properly decided that

there was no arguable basis in law for the suit, we examine the types of relief and causes of action

sought by the petition to determine whether, as a matter of law, the petition stated a cause of action

that would authorize relief. Gordon, 6 S.W.3d at 369; Lentworth, 981 S.W.2d at 722. In

reviewing the dismissal, we must take as being true the allegations in the original petition.



                                                  9
Gordon, 6 S.W.3d at 369; Lentworth, 981 S.W.2d at 722; see Harrison, 915 S.W.2d at 888.

Further, ―we review and evaluate pro se pleadings with liberality and patience,‖ but otherwise

apply the same standards applicable to pleadings drafted by lawyers. Foster v. Williams, 74

S.W.3d 200, 202 n.1 (Tex. App.––Texarkana 2002, pet. denied).3

        In Armenta’s case, the trial court did not state its reason for dismissing the suit; as such,

there was no finding contained in the dismissal that there was no basis in fact or in law for the

lawsuit. Upon our review of the record, we conclude that Armenta’s allegations established a

minimal prima facie showing that he had sufficiently exhausted his remedies under the TDCJ

grievance procedure and, therefore, his lawsuit was timely filed. Armenta alleges that he failed to

discover any causal connection between the April 21 use of chemical agents and the respiratory

symptoms he later experienced until his doctor’s visit on June 24; he further alleges that he

promptly filed a grievance to which he received no response. The trial court erred in dismissing

this portion of Armenta’s suit without first conducting a hearing to ascertain the facts around

Armenta’s purported filing of a grievance on June 24.

Motions for Discovery

        Armenta’s second point of error claims that the trial court erred in not having ruled on

various motions filed by him, including motions for physical examination, to compel discovery, to


3
 The Federal Rules of Civil Procedure employ the term ―less stringent standard‖ under similar circumstances. FED.
R. CIV. P. 12. This phraseology has also been employed by some Texas courts. Gordon v. Scott, 6 S.W.3d 365 (Tex.
App.––Beaumont 1999, pet. denied); see Minix v. Gonzales, 162 S.W.3d 635, 637 (Tex. App.––Houston [14th Dist.]
2005, no pet.); Thomas v. Collins, 860 S.W.2d 500, 503 (Tex. App.—Houston [1st Dist.] 1993, writ denied).

                                                       10
compel a nonparty to produce documents, to make admissions, and to respond to interrogatories.

Armenta also claims that the trial court committed error in not appointing counsel to represent him.

        As to any purported request for the appointment of counsel, although Armenta maintains in

his brief that he filed a motion for appointed counsel December 7, 2009, we do not find such a

request anywhere in the court record. To preserve a complaint for our review, a party must have

presented to the trial court a timely request, objection, or motion that states the specific grounds for

the desired ruling. See TEX. R. APP. P. 33.1(a); State Dep’t of Highways & Pub. Transp. v. Payne,

838 S.W.2d 235, 241 (Tex. 1992). Should a party fail to do this, error is not preserved and the

complaint is waived. See Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991). Even if Armenta

had requested appointment of counsel, an indigent inmate does not have an absolute right to

appointed counsel in a civil case merely because the inmate’s suit is against an employee of the

prison in which the inmate is incarcerated. Gibson v. Tolbert, 102 S.W.3d 710, 711 (Tex. 2003).

The decision to appoint counsel for such an inmate is a matter for the trial court’s discretion. Id.

at 712–13. We do not find that the court abused its discretion.

        As for Armenta’s various attempts to engage in discovery, where a motion to dismiss citing

Section 14.003 has been filed, a trial court is commanded to suspend discovery in the case. TEX.

CIV. PRAC. & REM. CODE ANN. § 14.003(d). Armenta filed his various requests for discovery

between December 22, 2009 and January 5, 2010. The TDCJ filed its motion to dismiss on




                                                  11
January 25, 2010. There was no abuse of discretion in not ordering discovery to be discontinued

in light of TDCJ’s motion to dismiss. See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(d).

Third Point of Error

         Armenta claims in his third point of error that the trial court abused its discretion in not

granting a default judgment in his favor, in not granting him leave to amend his complaint, and in

having granted the TDCJ’s request to seal Armenta’s medical record.4

         The TDCJ filed a motion in the trial court to seal Armenta’s medical records, pointing out

the records contained ―[p]ersonal identifying medical information.‖                          This is an entirely

reasonable request by the prison unit, which could possibly be exposed to liability if personal

medical information on any person in the prison’s charge were to be released to the public. See

generally 45 C.F.R. §§ 164.500–.534 (2010). This action of sealing the medical records would

tend to benefit (not hinder) Armenta. We fail to comprehend how the act of sealing Armenta’s

medical records would impede Armenta’s access to his own records.

         Next, Armenta claims that the trial court erred in denying Armenta’s request to amend his

complaint. Armenta filed a motion to amend his complaint May 21, 2009; the motion dismissed

two defendants. He filed another motion to amend on August 14, 2009, alleging negligence on

4
 This point of error, like Armenta’s second, is arguably multifarious; but in the interest of justice, we address his
complaints as best we can. See Bell v. Tex. Dep’t of Criminal Justice–Institutional Div., 962 S.W.2d 156, 157 n.1
(Tex. App.—Houston [14th Dist.] 1998, pet. denied) (a point of error addressing more than one specific ground of
error is multifarious); City of San Antonio v. Rodriguez, 856 S.W.2d 552, 555 n.2 (Tex. App.—San Antonio 1993, writ
denied). If a court concludes that a point of error is multifarious, it may refuse to review it, or it may consider the
point of error if it can determine with reasonable certainty the error about which the complaint is made. Bell, 962
S.W.2d at 157 n.1.

                                                         12
the part of another TDCJ correctional officer. On December 17, 2009, Armenta filed another

motion to amend his complaint; this motion included substantial argument and citations to

authority in support of Armenta’s cause of action relating to his having been sprayed with

chemical agents. The record does not reflect that there was any indication that the trial court

denied any of Armenta’s motions. Armenta has no unfavorable ruling to appeal. See generally

TEX. R. APP. P. 33.1(a).

       Armenta complains that the trial court erred in not granting him a default judgment.

Armenta did not request the entry of a default judgment until February 4, 2010, after the TDCJ had

filed its motion to dismiss. As an appearance had been made and there was a pending motion to

dismiss, we cannot say the trial court abused its discretion in not issuing a default judgment. See

Resurgence Fin., LLC v. Taylor, 295 S.W.3d 429, 432 (Tex. App.––Dallas 2009, pet. filed) (denial

of motion for default judgment reviewed for abuse of discretion).

Fourth Point of Error

       In his fourth point of error, Armenta complains that the trial court should have granted his

request for a temporary restraining order and injunction. Armenta had requested the trial court to

issue orders precluding the TDCJ from tampering with Armenta’s mail and to compel the TDCJ to

provide sufficient amounts of food. There was nothing in the record indicating the TDCJ had

unlawfully tampered with Armenta’s mail or was poised to do so. In its responses to Armenta’s

grievances, the TDCJ stated that the food portions given to inmates complied with the applicable



                                                13
Unit Food Service Department requirements. Also, as with his complaint about his motions to

amend his complaint, there is nothing to indicate the trial court denied Armenta’s motion.

Further, there is nothing in the record in the way of evidence showing Armenta to be entitled to

injunctive relief.5

        As to the complaints concerning the sufficiency and quality of food provided Armenta and

pertaining to the alleged deprivation of Armenta’s rights to personal property, we affirm the

judgment of the trial court.

        As relates to the question of injury to Armenta from the use of chemical agents, the

allegations as contained in Armenta’s court petition and the motion to dismiss filed by the TDCJ

can lead to more than a single result. From the record before it, the trial court could not determine

as a matter of law that Armenta did not comply with the required administrative remedies. Thus,

this Court is confronted with conflicting allegations about whether (1) Armenta knew or should

have known of his alleged injuries on April 21, 2008 (the date the chemical agents were sprayed on

him), or whether he discovered his alleged injuries on June 24, 2008 (the date he alleges that the

physician told him that the chemical agents occasioned injuries to him), or (2) whether Armenta

did actually file a grievance on June 26, 2008, with regard to his alleged injuries occasioned by the

chemical agents on June 24, 2008. From such a factual determination, the trial court should be

5
 Injunctive relief may only be granted on a showing of (1) the existence of a wrongful act; (2) the existence of
imminent harm; (3) the existence of irreparable injury; and (4) the absence of an adequate remedy at law. Beathard
Joint Venture v. W. Houston Airport Corp., 72 S.W.3d 426, 432 (Tex. App.––Texarkana 2002, no pet.); Jim
Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass’n, 25 S.W.3d 845, 849 (Tex. App.––Houston [14th Dist.] 2000,
pet. denied).

                                                       14
able to determine whether Armenta has complied with the required administrative remedies and

whether his cause of action is permitted to proceed, or whether it should be dismissed pursuant to

any applicable portion of Chapter 14 of the Texas Civil Practice and Remedies Code.

       We affirm in part, and reverse and remand this matter to the trial court for further

proceedings consistent with this opinion.



                                             Bailey C. Moseley
                                             Justice

Date Submitted:       July 2, 2010
Date Decided:         August 12, 2010




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