Evans v. Tiffin
| Decision Date | 19 August 2010 |
| Docket Number | NUMBER 13-09-00455-CV |
| Parties | MICHAEL ANTHONY EVANS, Appellant, v. WAYNE TIFFIN, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 24th District Court of DeWitt County, Texas.
Before Justices Rodriguez, Benavides, and Vela Memorandum Opinion by Justice Benavides
Michael Anthony Evans, appellant, proceeding pro se and in forma pauperis, appeals the trial court's dismissal of his cause of action as frivolous. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.002, 14.003(a)(2) (Vernon 2002). By a single issue, Evans claims the trial court abused its discretion in dismissing his case. We affirm.
On December 2, 2008, while he was incarcerated at the Stevenson Unit of the Texas Department of Criminal Justice ("TDCJ"), Evans filed a step one grievance against Wayne Tiffin, a law library officer, alleging that Tiffin disclosed his personal information to the other inmates and made offensive jokes about race, sex, and sexual orientation ("privacy grievance").1 An investigation resulted in insufficient evidence, and the grievance officer determined that no further action on the part of TDCJ was warranted. Evans then filed a step two grievance; the ensuing investigation revealed no misconduct on Tiffin's behalf, and no further action was taken by TDCJ.
On December 3, 2008, Evans filed an additional step one grievance against Tiffin after Tiffin wrote a disciplinary charge against Evans for failing to follow an order to stand in a particular area of the prison yard ("retaliation grievance").2 In this step one grievance, Evans asserted that he could not have violated an order because Tiffin did not actually issue an order. Evans argued that Tiffin used the word "if," which indicated to Evans that he had an option to either comply or not comply and that this did not amount to an order. The disciplinary charge was reversed and dismissed. Evans subsequently filed a step two grievance, which, in addition to complaints about the disciplinary action, alleged for the first time that Tiffin intentionally filed the false charge out of retaliation. Evans requested that Tiffin be disciplined, but Evans's request was denied as inappropriate, and the grievance was dismissed.
Evans sued Tiffin under 42 U.S.C. section 1983 and "pursuant to state[] commonlaw and/or statutes that are not in conflict with the Constitution and laws of Texas." See 42 U.S.C. § 1983. Evans alleged that: (1) Tiffin violated his rights under the first and fourteenth amendments; (2) his rights, privileges and immunities of federal citizenship were violated; and (3) Tiffin was acting under color of state law.3 U.S. Const. amend I, XIV. The trial court dismissed the case as frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2). This appeal ensued.
We follow an abuse of discretion standard of review to review "the dismissal of a lawsuit brought by an inmate who has filed an affidavit or declaration of inability to pay costs." Thomas v. Knight, 52 S.W.3d 292, 294 (Tex. App.-Corpus Christi 2001, pet. denied) .
Before we address Evans's argument, we must determine, as Tiffin asserts, whether Evans failed to exhaust his administrative remedies regarding his retaliation grievance.
"[A] claim has no arguable basis in law if the inmate has failed to exhaust his administrative remedies." Leachman v. Dretke, 261 S.W.3d 297, 304 (Tex. App.-Fort Worth 2008, no pet.) (op. on reh'g) ( that, when trial court dismisses claim as frivolous for having no basis in law without holding a hearing, the appellate court must determine whether the inmate's lawsuit had an arguable basis in law). "Section 501.008 of the [g]overnment [c]ode precludes an inmate from filing a claim until he has exhausted his remedies through the grievance system." Smith v. Tex. Dep't of Criminal Justice-lnst. Div., 33 S.W.3d 338, 341 (Tex. App.-Texarkana 2000, pet. denied); see Tex. Gov't Code Ann. § 501.008 (Vernon 2004); see also Tex. Civ. Prac. & Rem. Code Ann. § 14.005 (Vernon 2002). "The two-step 'Offender Grievance Program' is the sole source of administrative remedy for TDCJ inmates." Crain v. Prasifka, 97 S.W.3d 867, 868 & n.3 (Tex. App.-Corpus Christi 2003, pet. denied). Under the grievance program, the inmate must present his complaint in a step one grievance within fifteen days of the incident of which he is complaining, and he may appeal the ruling on his step one grievance by filing a step two grievance within fifteen days from the response to his step one grievance. See id.; see also Wolf v. Tex. Dep't of Criminal Justice-lnst. Div., 182 S.W.3d 449, 450-51 (Tex. App.-Texarkana 2006, pet. denied) ().4 An inmate has exhausted the remedies of the grievance system once he receives a written response to a step two grievance. See Tex. Gov't Code Ann. § 501.008.
"If an inmate fails to exhaust his administrative remedies, we may affirm a dismissaleven if the ground was not presented in a motion to dismiss." Retzlaff v. Tex. Dep't of Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.-Houston [14th Dist.] 2002, pet. denied). An inmate must file both a step one and a step two grievance covering the same issue before he has exhausted the grievance procedure. See Wilson v. Tex. Dep't of Criminal Justice-lnst. Div., 268 S.W.3d 756, 759 n.1 (Tex. App.-Waco 2008, no pet.) ; see also Randle v. Woods, 299 Fed. App'x 466, 467 (5th Cir. 2008) (per curiam) ("Offenders are not allowed to present new issues in step two.").
In his reply brief, Evans argues that he exhausted his retaliation grievance. He directs this court to two additional step one grievances, which are not part of the trial court record and which indicate that they were returned because they were redundant in light of his retaliation grievance.5 Because these documents are not part of the appellate record, we cannot consider them. See James v. State, 997 S.W.2d 898, 901 n.5 (Tex. App.-Beaumont 1999, no pet.) ("An appellate court must determine a case on the record as filed and cannot consider documents attached as exhibits or appendices to briefs or motions.") ). Evans also asserts that the "grievance codes" associated with his retaliation grievance indicate that his retaliation grievance included a retaliation claim. He contends that the "codes were issued by the grievance investigator" and that the codes are included in "TDCJ's Grievance Operation Manual."
Evans directs this Court to a copy of the disciplinary case, which he included in the appendix to his reply brief. The "Grievance Operation Manual," the copy of the disciplinary case, and an explanation of the "grievance codes" are not part of the record; therefore, we cannot consider them. ld. Nowhere in step one of Evans's retaliation grievance does he argue that Tiffin filed the disciplinary case in retaliation against Evans. We conclude that there is no evidence in the record indicating that Evans asserted retaliation in step one of his retaliation grievance; thus, Evans did not exhaust his retaliation grievance, and the trial court did not abuse its discretion when it dismissed his retaliation claim. See Leachman, 261 S.W.3d at 311.
Evans's privacy grievance included allegations that: (1) Tiffin impermissibly disclosed Evans's "financial documents... and his legal request to official forms... to other offenders that were inside the law library"; and (2) Tiffin verbally abused and verbally insulted Evans. Specifically, Evans complained in his petition as follows:
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