Court of Appeals of Texas, Ninth District, Beaumont
Submitted on June 20, 2017
Appeal from the 411th District Court Polk County, Texas Trial
Cause No. CIV29976
Kreger, Horton, and Johnson, JJ.
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.
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.
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.
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.
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.
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.
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