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Gilbert v. Texas Department of Criminal Justice

Court of Appeals of Texas, Ninth District, Beaumont

August 31, 2017

RONALD DEAN GILBERT, Appellant
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL DIVISION, Appellee

          Submitted on June 20, 2017

         On Appeal from the 411th District Court Polk County, Texas Trial Cause No. CIV29976

          Before Kreger, Horton, and Johnson, JJ.

          MEMORANDUM OPINION

          LEANNE JOHNSON, JUSTICE.

         Ronald Dean Gilbert, Appellant, appeals from the dismissal of his civil suit. On May 23, 2016, Gilbert, an inmate in the Texas Department of Criminal Justice -Correctional Institutional Division ("TDCJ"'), filed a pro se petition against TDCJ, the University of Texas Medical Branch ("UTMB"), seven TDCJ employees, and four UTMB employees (collectively, "Defendants"). Gilbert alleged in his petition that he is incarcerated at the Allan B. Polunsky Unit of the TDCJ. Gilbert alleged that his medical care at the Polunsky Unit is controlled by UTMB. Gilbert alleged that the Defendants violated Gilbert's rights under the Eighth and Fourteenth Amendments to the United States Constitution and under the Texas Tort Claims Act (TTCA). Gilbert contends that Defendants violated his federal constitutional rights when his bottom bunk and walking cane restrictions were removed. According to the petition, Gilbert requires a bottom bunk because he uses a sleep apnea machine. In his petition, Gilbert also alleged that the Defendants wrongfully deducted a $100 health services fee from his inmate trust account. According to the petition, Gilbert had already submitted several I-60 grievances and thereby exhausted his administrative remedies. Gilbert's petition sought injunctive relief and damages.

         On May 24, 2016, the trial court signed and entered an order requiring the Attorney General to review the pleadings, affidavits, unsworn declarations, and exhibits for compliance with Chapter 14 of the Civil Practice and Remedies Code and to file an amicus brief addressing whether Gilbert had satisfied all statutory requirements. On June 16, 2016, Gilbert filed a motion to compel. Attached to the motion was a document styled as a "Declaration of Inability to Pay Cost" signed by Gilbert.

         On July 22, 2016, the Office of the Attorney General (AG) filed "The Attorney General's Amicus Curiae Advisory to Dismiss Pursuant to Chapter Fourteen[.]" Among the attachments to the AG's advisory was a copy of the order in Gilbert v. Quarterman, No. 3:06-CV-1981-N ECF, 2008 WL 2378152 (N.D. Tex. June 6, 2008), a federal lawsuit in which Ronald Dean Gilbert, as petitioner, brought a claim against the director of TDCJ. The AG characterized Gilbert v. Quarterman as evidence of a previous pro se filing by Gilbert that Chapter 14 requires Gilbert to disclose with Gilbert's current petition. In its advisory, the AG argued that (1) Gilbert's petition is time-barred; (2) Gilbert failed to exhaust his administrative remedies for most claims; (3) Gilbert failed to submit multiple documents required by Chapter 14; and (4) Gilbert's claims are frivolous and lack any arguable basis in law. The AG's advisory recommended dismissal for failure to comply with the requirements of Chapter 14.

         On July 27, 2016, the trial court signed and issued an order dismissing Gilbert's claims against the defendants as frivolous and for failure to comply with Chapter 14. Gilbert filed his Notice of Appeal on August 29, 2016.

         Issues on Appeal

         On appeal, Gilbert argues that the trial court erred in dismissing his lawsuit. He makes several arguments, which we have consolidated and reordered into three issues. First, Gilbert argues that he did not fail to exhaust his administrative remedies and that copies of his Step 1 grievances submitted with his petition are "some type of evidence to the court on how he tried to resolve or exhaust his administrative remedies regarding the $100 health services fee and bottom bunk assignment." Gilbert acknowledges the two-step TDCJ grievance system but he argues that he never received a response from one of his Step 1 grievances. Second, Gilbert argues that dismissal without holding a hearing was improper because, under Chapter 14, a trial court may not dismiss a claim without a hearing on the grounds that it lacked an "arguable basis in fact." Finally, Gilbert argues that a pro se petitioner is held to a "less stringent" standard and dismissal is only proper if it appears beyond doubt that the petitioner can prove no set of facts in support of his claim that would entitle him to relief.

         Standard of Review

         We review a trial court's dismissal of an inmate's suit for abuse of discretion. See Amir-Sharif v. Mason, 243 S.W.3d 854, 856 (Tex. App.-Dallas 2008, no pet.) (citing Hickman v. Adams, 35 S.W.3d 120, 123 (Tex. App.-Houston [14th Dist.] 2000, no pet.)); Retzlaff v. Tex. Dep't of Criminal Justice, 94 S.W.3d 650, 654 (Tex. App.-Houston [14th Dist.] 2002, pet. denied). Because the order in this case does not specify the sections of Chapter 14 upon which the trial court relied in granting the dismissal, we will affirm the order if any of the grounds presented to the trial court were meritorious. See Garza v. Garcia, 137 S.W.3d 36, 37 (Tex. 2004); Turner v. TDCJ-ID Allen B. Polunsky Unit, No. 09-12-00517-CV, 2013 WL 3355768, at *1 (Tex. App.-Beaumont 2013, pet. denied) (mem. op.) ("We will affirm the trial court's dismissal if it was proper under any legal theory."). An appellant bears the burden of overcoming the presumption that the trial court's action was justified. See Retzlaff, 94 S.W.3d at 654.

         We construe an appellant's pro se brief liberally. See Giddens v. Brooks, 92 S.W.3d 878, 880 (Tex. App.-Beaumont 2002, pet. denied) ("pro se pleadings and briefs are to be liberally construed[]"); see also Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989) (a reviewing court construes points of error liberally to obtain a just, fair, and equitable adjudication of the parties' rights). Nevertheless, a pro se litigant is held to the same standards as licensed attorneys ...


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