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Click here for the full text of this decision FACTS:Michael Scott was an inmate at the Texas Department of Corrections William P. Clements Unit. Appellee Russell J. Gallagher was a corrections officer at the unit. Scott filed this suit against Gallagher and an unspecified number of “John Doe” defendants alleging that Gallagher and the John Doe defendants committed civil assault and battery by intentionally using chemical agents against a prisoner housed near Scott for the sole purpose of causing the chemical agents to physically affect Scott. Scott filed this suit in the Fort Bend County District Court by filing an unsworn declaration asserting that he was incarcerated and had no funds to pay the filing fees for the suit. At the time he filed his original petition, Scott also filed the following documents required under the Texas Civil Practice & Remedies Code: 1. a copy of the offender grievance form complaining to the prison authorities about the facts asserted in this lawsuit and 2. an unsworn declaration detailing over 30 previous suits filed by Scott. Gallagher filed a motion to dismiss under Chapter 14 of the Civil Practice & Remedies Code. Gallagher’s motion to dismiss asserts that Scott’s suit must be dismissed because 1. He failed to file an affidavit or unsworn declaration related to previous filings under Texas Civil Practice & Remedies Code ��14.004(a)(1), 14.004(a)(2) and 14.004(b); and 2. The suit was frivolous because Gallagher, as a correctional officer in a prison, could properly use force to maintain security in the prison. Scott responded to Gallagher’s motion to dismiss by filing an amended affidavit of previous suits that more specifically detailed each of the prior lawsuits. Scott also replied to the motion to dismiss by asserting that his suit was not frivolous because he alleged that Gallagher’s malicious use of chemical agents waived Gallagher’s right to claim the privilege to use force. The trial court granted Gallagher’s motion and dismissed the suit. The order dismissing the suit states that the court found that Scott’s petition was “frivolous and not in compliance with the requirements set forth in Texas Civil Practice and Remedies Code, Chapter 14.” Scott filed a motion for new trial and motion to vacate the trial court’s order of dismissal, which the trial court denied. HOLDING:Affirmed. Scott claimed the trial court in Fort Bend County lacked jurisdiction because of Texas Civil Practice & Remedies Code �15.019(a), a mandatory venue provision for inmate litigation that would have placed venue in Potter County; thus the trial court’s dismissal order was void. The court, however, found that state’s potential venue objection was waived, and because the provision may be waived, it was not the mandatory venue provision was not a jurisdictional matter. Accordingly, the court held that the trial court did not lack jurisdiction and its order of dismissal was not void. As for the court’s dismissal of the suit as frivolous, the court found that Scott pleaded a cause of action that states only that Gallagher used force against him by using chemical fumes that physically injured him. Under Texas Penal Code �9.53, Gallagher, as a correctional officer, is justified in using force against Scott, a person in custody of the correctional facility, when and to the degree that Gallagher reasonably believes the force is necessary to maintain the security of the correctional facility. Scott, the court stated, did not plead any facts that assert that the force used by Gallagher was excessive, unreasonable or unnecessary to maintain security. Therefore, the court concluded that Scott’s suit was frivolous as a matter of law because the facts asserted fall within the use of force that is privileged under Texas Penal Code �9.53. The court further held that the trial court did not abuse its discretion in dismissing this suit as frivolous. OPINION:Alcala, J.; Radack, C.J., and Alcala and Bland, J.J.

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