Victor L. Brown v. Sgt. Robert Bluhm, Et. Al.--Appeal from 81st Judicial District Court of Karnes County

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State: Texas

Court: Texas Northern District Court

Docket No: 04-09-00031-CV

Case Date: 07/22/2009

Plaintiff: Victor L. Brown

Defendant: Sgt. Robert Bluhm, Et. Al.--Appeal from 81st Judicial District Court of Karnes County

Preview:MEMORANDUM OPINION
No. 04-09-00031-CV Victor L. BROWN, Appellant v. Sgt. Robert BLUHM, et al., Appellees From the 81st Judicial District Court, Karnes County, Texas Trial Court No. 07-03-00046-CVK Honorable Ron Carr, Judge Presiding Opinion by: Sitting: Rebecca Simmons, Justice Rebecca Simmons, Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice

Delivered and Filed: July 22, 2009 AFFIRMED AS MODIFIED Appellant Victor L. Brown appeals the dismissal of his suit against the Institutional Division of the Texas Department of Criminal Justice and other defendants. Because Brown's suit failed to comply with the statutory requirements for inmate litigation, we affirm the judgment of the trial court as modified. See TEX. R. APP. P. 43.2(b).

04-09-00031-CV

BACKGROUND Brown is an inmate in the Institutional Division of the Texas Department of Criminal Justice (TDCJ-ID). Based on events including, and stemming from, an alleged assault on

November 6, 2006, Brown filed a Step 1 Offender Grievance Form. 1 Dissatisfied with the Step 1 response from TDCJ-ID, Brown filed a Step 2 Offender Grievance Form. Kelli Ward signed the Step 2 response on February 7, 2007; the Step 2 form's "Extension Date" is shown as March 14, 2007. On March 29, 2007, Brown filed suit against TDCJ-ID, Lieutenant Robert Bluhm, and several other TDCJ-ID personnel (collectively TDCJ). In his pro se original

petition, Brown filed an application to proceed in forma pauperis. In response, TDCJ filed a motion to dismiss Brown's suit for, inter alia, failure to provide an affidavit or declaration describing his previous suits. In its order dated October 24, 2008, the trial court, without holding a hearing, found Brown's petition to be frivolous and "dismissed with prejudice" all of Brown's claims against TDCJ. Brown appeals (1) the dismissal of his suit with prejudice, and (2) the dismissal of his suit without an opportunity to remedy any defects in his pleadings. STANDARD OF REVIEW We review a dismissal of an inmate's suit for failure to comply with the requirements of chapter 14 of the Texas Civil Practice and Remedies Code for an abuse of discretion. Retzlaff v. Tex. Dep't of Criminal Justice, 94 S.W.3d 650, 654 (Tex. App.--Houston [14th Dist.] 2002, pet. denied) (citing Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no writ)).

1

An inmate uses a Step 1 Offender Grievance Form to state a grievance against, and request a remedy from, an Institutional Division Unit. If the inmate is dissatisfied with the Step 1 response from the Unit, the inmate may submit a Step 2 form to the Unit Grievance Investigator. The Step 2 grievance response is the written decision from the highest authority in the grievance system. See Crain v. Prasifka, 97 S.W.3d 867, 870 (Tex. App.--Corpus Christi 2003, pet. denied). See generally TEX. GOV'T CODE ANN.

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