## NUMBER 13 - 2 0 - 000 3 0 - C V COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

– EDINBURG

ADOLFO GARCIA YBARRA JR. , Appellant,

v. WARDEN STRONG, ET AL. , Appellee s . On appeal from the 2 78 th District Court of Walker C ounty, Texas.



## MEMORANDUM OPINION
Before Justices Longoria , Hinojosa, and Tijerina Memorandum Opinion by Justice Longoria
A ppellant Adolfo Garcia Ybarra Jr. , an inmate housed in the Texas Department of Criminal Justice Correctional Institutions Division (TDCJ

– CID ), filed a pro se in forma pauperis suit against appellees Kelly Strong, Robert Jenkins, Christopher Lacox, Charles Landis, Matt Gro ss, John Kolek, Gary Ferguson, Jan Gustafson, Eric Gilcrease, Angelina McMillan, Ashley Wisneiske, Timothy Prieschel, and Elliot Ruiz, all employees of TDCJ

–2 CID. Appellant sued appellees in their individual and official capacities for tortious and unconsti tutional conduct he alleges occurred while he was incarcerated at the Ellis Unit. See 42 U.S.C.A

. § 1983. Appellees filed a motion to dismiss pursuant to Chapter 14 of the Texas Civil Practices and Remedies Code and the Texas Tort Claims Act (TTCA)

. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § § 14.001

– .014 ; 101.106(e), (f). The trial court granted the motion to dismiss with prejudice. By five issues, appellant argues that the trial court erred because (1) he timely filed suit within thirty days; (2) he exhausted his administrative remedies with respect to appellees; (3) he substantially complied with the requirement of an affidavit; (4) his § 1983 claims are not subject to the TTCA ; and (5) the trial court abused its discretion by dismissing the claims with preju dice. We affirm. I. B ACKGROUND 1 On October 31, 2018, appellant filed suit and alleged that on July 23, 2018, Gilcrease refused to let him “release [his] ‘bowels’” while he was working in the fields at the Ellis Unit and subsequently that Gilcrease threatened to shoot him when he turned to speak to another officer about it. Appellant filed Step 1 and Step 2 g rievance s concerning this incident

. See id. § 14 .00 5

. Appellant further alleged that various appellees retaliated against him and made “terroristic threats” to his life for filing or attempting to file grievances, falsely charged him with disciplinary infractions, illegally released his personal informa tion, were guilty of cruel and inhumane treatment, deprived him of legal materials and property while in pre

- hearing detention, engaged in conspiracy, and endangered his life.

1 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a docket

- equalization order issued by the Supreme Court of Texas. See T EX

. G OV ’ T C ODE A NN

. § 73.001.3 On November 1, 2018, the trial court ordered the Attorney General to file an am icus curiae advisory opinion with the c ourt as to whether the inmate had satisfied all the statutory requirements of Chapter 14. See id

. § § 14.001

– .014. The Attorney General ’s Office served its a micus c uriae advisory opinion on January 4, 2019, stating that a ppellant had not complied with the exhaustion remedies in Chapter 14 and suggested that the proceedings be stayed for a period of 180 days to allow appellant to properly complete the grievance proced ure

. T he trial court stayed the proceedings on January 8, 2019. Appellant filed a handwritten “ Motion for Leave to File an Amended Pleading /Complaint” to comply with the requirements of Chapter 14 ten days later, which was granted and served as his amen ded petition. In his amended petition, appellant list ed two prior in f orma pauperis lawsuits, but failed to include the operative facts of the cases, the identity of each party named in the suit, and whether the dismissal of the suit was based on a claim t hat was frivolous or malicious. See id. § 14.004(a)(2). On April 8, 2019, appellant asked the court to issue a Temporary Restraining Order (TRO) “preventing [appellees] from retaliating” and “‘transfer[ing] [him] immediately’ no less than fifty miles from here,” as well as seeking an Order to Show Cause for a Preliminary Injunction. In appellees’ original answer, they plead the affirmative defense of official, qualified, and sovereign immunity from suit. On October 23, 2019, appellees filed “Defendants’ Objections to Plaintiff’s Request for a Temporary Restraining Order and Preliminar y Injunction, Defendants’ Amended Motion to Dismiss, and Defendants’ Amended Partial Motion to Dismiss.” Additionally, appellees asserted that appellant failed to fully and timely exhaust his administrative remedies pursuant to Chapter 14, and so4 appellant should be barred from filing suit. Id

. § § 14. 001

– .014

. Following a hearing , the trial court signed a final judgment den ying appellant’s request for a TRO and preliminary injunction and grant ing appellees ’ motion to dismiss with prejudice . This appeal foll owed. II. C HAPTER 14 By his first four issues, appellant argues that the trial court abused its discretion by dismissing his claims with prejudice under Chapter 14 because he satisfied the procedural requirements of the statute. A. Standard of Review and Applicable Law The trial court has broad discretion to dismiss a lawsuit brought under Chapter 14 as frivolous or malicious. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 14.003(a)(2) ; Lentworth v. Trahan , 981 S.W.2d 720, 722 (Tex. App.

— Houston [1st Dist.] 1998, no pet.) . This is because: “(1) prisoners have a strong incentive to litigate; (2) the government bears the cost of an in forma pauperis suit; (3) sanctions are not effective; and (4) the dismissal of unmeritorious claims accrues to the benefit of st ate officials, courts, and meritorious claimants.” Retzlaff v. Tex. Dep’t of Crim. Justice , 94 S.W.3d 650, 653 (Tex. App.

— Houston [14th Dist.] 2002, pet. denied). When determining if a claim is frivolous or malicious the trial court may consider whether: (1) the claim’s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or fact; (3) it is clear that the party cannot prove fa cts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 14.003(b). Accordingly, we review the dismissal of a claim under Chapter 14 of the Civil Practice and Remedies Code for an abuse of5 discretion. See Hickson v. Moya , 926 S.W.2d 397, 398 (Tex. App.

— Waco 1996, no writ). The trial court abuses its discretion if it ruling is arbitrary or unreasonable or if it ac ts without reference to any guiding legal principles. Id. Section 14.004 requires an inmate who files an affidavit or unsworn declaration of inability to pay to file a separate affidavit identifying each action (other than under the Family Code) previousl y brought by the person in which the person was not represented by an attorney

. See T E X

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 14.004(a)(1). The inmate must also describe each action previously brought by the inmate by stating the operative facts for which relief was sought, listing the case name, cause number, and the court in which the action was brought, identifying each part y named in the action, and stating the result of the action, including whether the action or a claim that was a basis for the action was dismissed as frivolous or malicious. Id . § 14.004 (a)(2). An inmate may avoid dismissal by substantially complying with the statute. See Gowan v. Tex. Dep’t of Crim

. Just

. , 99 S.W.3d 319, 322 (Tex. App.

— Texarkana 2003, no pet.) (finding substantial compliance when appellant failed to list a cause number). The purpose of the affidavit requirement is so the trial court can determine, based on previous filings, if the suit is frivolous because the inmate has already filed a similar claim. See Bell v. Tex. Dep ’ t of Crim

. Just

. – Institutional Div ., 962 S.W.2d 156, 1 58 (Tex. App.

— Houston [14th Dist.] 1998, pet. denied ). Therefore, an affidavit that “identifies neither the parties nor the operative facts cannot be said to be in substantial compliance with the requirements of [§] 14.004.” Obadele v. Johnson , 60 S.W.3d 3 45, 348

– 4 9 (Tex. App.

— Houston [14th Dist.] 2001, no pet.)

.6 B. Affidavit Requirement In his third issue, which we address first, appellant argues that the trial court abused its discretion to the extent it dismissed his suit for failing to provide an uns worn declaration about prior litigation. In his amended pleading, appellant list ed two previous pro se lawsuits he filed

. For those suits, appellant only partially listed the parties involved and the judges who dismissed the cases. For both, among other deficiencies, appellant fail ed to state the operative facts, the names of all the parties involved in the suit, and whether it was dismissed as frivolous or malicious. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 14.004( a)(2). Appellant claims he has substantially complied with § 14.004 because the trial court could readily determine that the present lawsuit did not arise from the sa me operative facts as the prior lawsuits because the facts of this case occurred after the prior lawsuits were filed. However, when an inmate fails to comply with the affidavit requirements, the trial court may assume that the current action is substantial ly similar to one previously filed by an inmate , and thus is frivolous. Douglas v. Turner , 441 S.W.3d 337, 339 (Tex. App.

— Waco 2013, no pet.)

. A n affidavit that “identifies neither the parties nor the operative facts cannot be said to be in substantial compliance with the requirements of [§] 14.004.” Obadele, 60 S.W.3d at 348

– 49 . Because appellant failed to list the operative facts of his two prior lawsuits, as well as the names of all the parties, we conclude that he did not substantially co mply with § 14.004, and that the trial court did not abuse its discretion in dismissing his suit on this basis. See Douglas , 441 S.W.3d at 339 (holding that t he failure to file the affidavit with the required information or the inmate account statement can result7 in dismissal without notice or hearing ). We overrule his third issue. 2 C. Dismissal with Prejudice In his fifth issue, appellant argues the trial court abused its discretion by dismissing his suit with prejudice. Generally, dismissal of a suit filed by an inmate is proper when they have failed to comply with the rules governing filing, and the trial court should dismiss the suit without prejudice because it is not a dismissal on the merits. See Hughes v. Massey , 65 S.W.3d 743, 746 (Tex. App.

— Beaumont 2001, no pet.) . However, dismissal with prejudice is proper after appellant was given an opportunity to amend his pleadings and still failed to comply with the statute

. See Lentworth, 981 S.W.2d at 722

– 23; Hubler v. Cit y of Corpus Christi , 564 S.W.2d 816, 823 (Tex. Civ. App.

— Corpus Christi 1978, writ ref’d n.r.e.). Here, the trial court granted appellant 180 days to amend his petition to conform to the rules. Because appellant was given an opportunity to amend his pleading and still failed to comply with the statute , the trial court properly dismissed appellant’s suit with prejudice. See Lentworth , 981 S.W.2d at 722

– 23 . Therefore, we overrule appellant’s fifth issue. III. C ONCLUSION The judgment of the trial court is affirmed.

NORA L. LONGORIA Justice Delivered and filed on the 1st day of Ju ly , 202 1

.

2 We need not address appellant’s first two issues and his fourth issue as we have determined that appellant failed to comply with the affidavit requirement of Chapter 14, and thus dismissal was appropriate. See T EX

. R. A PP . P. 47.1.