Keith Thomas v. Nick Curry, et al--Appeal from County Court at Law of Bowie County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00087-CV

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KEITH THOMAS, Appellant

V.

NICK CURRY, ET AL., Appellees

On Appeal from the County Court at Law

Bowie County, Texas

Trial Court No. 02-C0-912-CCL

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Keith Thomas appeals the trial court's dismissal of his application for writ of injunction and "writ of production." We affirm.

I. Background

Seeking a writ of ancillary injunction and a "writ of production," Thomas sued four correctional officers employed at the Barry Telford Unit in New Boston, Texas, and Janie Cockrell, the director of the Texas Department of Criminal Justice Institutional Division (collectively "the defendants"). Thomas alleged the defendants wrongfully withheld papers related to another lawsuit. // Thomas was asking the trial court in this case to order the defendants to give him copies of a number of documents. The trial court in this case dismissed Thomas' application for writ of injunction and production as frivolous. See Tex. Civ. Prac. & Rem. Code Ann. 14.003 (Vernon 2002). In his sole point of error, Thomas contends the trial court erred by dismissing his lawsuit as frivolous.

II. Analysis

We review the dismissal of an inmate's lawsuit under Chapter 14 of the Texas Civil Practice and Remedies Code for abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App. Waco 1996, no writ). Chapter 14 of the Texas Civil Practice and Remedies Code governs inmate litigation. Section 14.003 governs dismissal of frivolous prisoner litigation. That section provides:

(a) A court may dismiss a claim, either before or after service of process, if the court finds that:

(1)the allegation of poverty in the affidavit or unsworn declaration is false;

(2)the claim is frivolous or malicious; or

(3)the inmate filed an affidavit or unsworn declaration required by this chapter that the inmate knew was false.

(b) In determining whether a claim is frivolous or malicious, the 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 in 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 claim filed by the inmate because the claim arises from the same operative facts.

Tex. Civ. Prac. & Rem. Code Ann. 14.003.

In this case, the trial court found Thomas' application for writ of injunction and "writ of production" to be frivolous. Therefore, to determine whether the trial court abused its discretion, we must examine the merits of Thomas' application for the writ to determine whether his lawsuit meets the statutory definition for frivolousness as outlined by Section 14.003.

First, Thomas sought the production of various documents relating to inmate grievances. "A governmental body is not required to accept or comply with a request for information from: . . . an individual who is imprisoned or confined in a correctional facility." Tex. Gov't Code Ann. 552.028 (Vernon Supp. 2004). It is within a warden's discretion whether to furnish an inmate with requested information. Hickman v. Moya, 976 S.W.2d 360, 361 (Tex. App. Waco 1996, no writ). Since it was discretionary for prison officials to disclose or withhold information pursuant to Thomas' request, Thomas' claim had no arguable basis in law or fact. The trial court correctly determined Thomas' application for writ of production was frivolous.

Second, Thomas sought a writ of injunction. However, Thomas' original petition does not suggest the course of conduct from which the trial court should enjoin the defendants. Nor has Thomas made an attempt in his brief to this Court either to show the trial court abused its discretion by dismissing Thomas' application for writ of injunction or to demonstrate his application for an injunction was nonfrivolous. We, therefore, find the trial court properly found the application for writ of injunction to be frivolous as it failed to state a cause of action.

Finding the trial court did not abuse its discretion by dismissing Thomas' lawsuit as frivolous, we overrule Thomas' point of error and affirm the trial court's judgment.

Jack Carter

Justice

Date Submitted: November 17, 2003

Date Decided: November 18, 2003