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Smithback v. Butcher

Court of Appeals of Texas, Ninth District, Beaumont

November 9, 2017

ROBERT NORMAN SMITHBACK, Appellant
v.
MICHAEL BUTCHER, ET AL, Appellees

          Submitted on November 2, 2017

         On Appeal from the 411th District Court Polk County, Texas Trial Cause No. CIV29146

          Before McKeithen, C.J., Kreger and Horton, JJ.

          MEMORANDUM OPINION

          CHARLES KREGER Justice

         Robert Norman Smithback appeals from the dismissal of his civil suit for his failure to comply with Chapter 14 of the Civil Practice and Remedies Code. See generally Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (West 2017). We affirm the trial court's judgment.

         Smithback, an inmate housed in a secure facility administered by the Correctional Institutions Division of the Texas Department of Criminal Justice, filed the suit pro se and in forma pauperis on July 1, 2014. Smithback alleged that he was deprived of his civil rights when in retaliation for attempting to initiate a federal criminal prosecution against State and Federal officials, he was assaulted by a cellmate in August 2011, and no criminal charges were initiated. Smithback also alleged that unnamed Department officials were interfering with Smithback's mail because he had received no response to requests for representation that he mailed to three different lawyers between December 2011 and May 2014. Smithback sued Michael Butcher, individually and in his official capacity as warden of the Polunsky Unit, and Captain John Bolton, individually and in his official capacity as an employee of the Texas Department of Criminal Justice. He further alleged that other unknown prison officials and private individuals were also responsible for violating his civil rights. Smithback attached a copy of his inmate account statement to his petition, but he did not attach a declaration of previous filings.

         Bolton filed a motion to dismiss. Bolton argued that Smithback failed to timely file a claim after receiving a written decision from the grievance system in 2011. See id. § 14.005(b). Bolton also argued that Smithback failed to include an affidavit relating to his previous filings. Id. § 14.004. Finally, Bolton maintained that Smithback failed to plead facts showing that his constitutional rights were violated by the defendants or that the defendants engaged in conduct outside the reasonable exercise of prison discipline. See id. § 14.003(a), (b). The trial court dismissed the suit for failure to comply with Chapter 14 of the Civil Practice and Remedies Code.

         In his appeal brief, Smithback contends the trial court erred by dismissing the case under Chapter 14. Smithback argues that Chapter 14 does not apply to him because he is not legally confined by the Texas Department of Criminal Justice, as he is still attempting to overturn his 2002 conviction. Section 14.001(3) defines "Inmate" as "a person housed in a secure correctional facility." Id. § 14.001(3). In his brief, Smithback asserts that he has been incarcerated since 2002, and his trial court pleadings demonstrate that he has been incarcerated in the Texas prison system and housed in the Polunsky Unit and the Stiles Unit. Therefore, he is an "inmate" as defined by section 14.001(3), making Chapter 14 applicable. Id.

         Section 14.004 of the Civil Practice and Remedies Code requires an inmate who filed a declaration of inability to pay costs to file a separate affidavit or declaration:

(1) identifying each action, other than an action under the Family Code, previously brought by the person and in which the person was not represented by an attorney, without regard to whether the person was an inmate at the time the action was brought; and
(2) describing each action that was previously brought by:
(A) stating the operative facts for which relief was sought;
(B) listing the case name, cause number, and the court in which the ...

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