Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 36th District Court of Bee County, Texas.
Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Justice Longoria
L. LONGORIA JUSTICE
Michael McCann is an inmate housed in the McConnell Unit of
the Texas Department of Criminal Justice-Institutional
Division (TDCJ-ID). McCann brought suit pro se and in
forma pauperis against appellees Candace Moore, Joe
Gonzales Jr., Veronica Inmun, Adriana Cano, J. Salles, Corey
Furr, Bradley M. Skrobarackek, Christopher Pauley, Darren
Mayer, M. Mata, FNU Sanchez, FNU Pernales, and FNU Garcia, all
of whom are employees of TDCJ-ID. The trial court dismissed
McCann's claims pursuant to Chapter 14 of the Texas Civil
Practice and Remedies Code. See Tex. Civ. Prac.
& Rem. Code Ann. §§ 14.001-.014. McCann
contends that the trial court erred in dismissing his claims.
October 10, 2016, McCann filed a complaint against appellees
arguing that on or about May 30, 2016, he received an offense
report from Skrobarackek alleging that McCann threatened an
officer. As a result of the offense, McCann stated he was
subjected to "cruel and unusual" punishment
including nine days of solitary confinement, and forty-nine
days of phone and recreation restrictions. McCann's
petition alleged that his punishment ended on July 27, 2016.
McCann filed his step one grievance with the TDCJ-ID on
August 1, 2016, and received a response denying his requested
relief on August 30, 2016. McCann subsequently filed his step
two grievance on September 2, 2016, which was disposed of on
October 7, 2016.
January 17, 2017, the Office of the Attorney General of Texas
(OAG) filed an "Amicus Curiae Advisory
Recommending Dismissal Pursuant to Chapter 14." The
advisory alleged multiple ways that McCann had failed to
comply with Chapter 14, including that: (1) his declaration
of previously filed lawsuits was incomplete, see id.
§ 14.004(a)(2); (2) he made a false allegation of
poverty, see id. § 14.003(a)(1); (3) he failed
to exhaust his administrative remedies, see id.
§ 14.005; and (4) he failed to state a non-frivolous
claim, see id. § 14.003(a)(2). McCann amended
his petition in response to the OAG's advisory,
containing the same allegations and alleging additional
causes of action. The trial court dismissed the cause finding
that McCann's original and amended petitions were not in
compliance with Chapter 14. This appeal followed.
issues, McCann contends that the trial court erred in
dismissing his suit because (1) he exhausted his
administrative remedies and (2) his claims "are
cognizable and all have a basis in law."
Applicable Law and Standard of Review
reviewing a dismissal order under Chapter 14 of the civil
practice and remedies code, the standard of review on appeal
is for abuse of discretion. Hickson v. Moya, 926
S.W.2d 397, 398 (Tex. App.-Waco 1996, no writ). The trial
court abuses its discretion if it acts without reference to
any guiding legal principles. Id.
trial court has broad discretion to dismiss a lawsuit brought
under Chapter 14 as frivolous or malicious. Tex. Civ. Prac.
& Rem. Code Ann. § 14.003(a)(2); Jackson v.
Tex. Dep't of Crim. Justice-Institutional Div.,
28 S.W.3d 811, 813 (Tex. App.-Corpus Christi-Edinburg 2000,
pet. denied); Lentworth v. Trahan, 981 S.W.2d 720,
722 (Tex. App.-Houston [1st Dist.] 1998, no pet). Chapter 14
provides in relevant part:
In determining whether 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 facts in support of the claim; or (4)
the claim is substantially similar to a previous ...