Damon Downs v. Deborah Parker, et al.--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-95-028-CV

DAMON DOWNS,

Appellant

v.

DEBORAH PARKER, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 29,142

O P I N I O N

Appellant Down appeals from the order of the trial court dismissing his pro se informa pauperis action as frivolous and malicious.

Appellant, an inmate of the Texas Department of Criminal Justice, Institutional Division, at the Hughes Unit in Gatesville, brought this action pro se against Deborah Parker, a disciplinary captain at the Hughes Unit, and Lillian Valentine, a psychologist at the Hughes Unit.

Appellant alleged that he attempted to commit suicide on December 8, 1994, and again on December 20, by overdosing on medication and by tying a rope around his neck to bring unconsciousness; that by reason of this he was charged with disciplinary violations and assessed various punishments including cell restriction, commissary restriction, and reduction to a time earning status, where he cannot earn any good time regardless of his behavior.

Appellant alleged defendant Parker was the disciplinary hearing officer who heard the disciplinary violations, found Appellant guilty and assessed the punishment; and that defendant Valentine, the Unit psychologist, certified that plaintiff's mental health status had nothing to do with the disciplinary charges, and cleared Appellant to be punishment for conduct.

Appellant further alleged that TDCJ-ID Disciplinary Rule 5C provides: "Inmates engaging in self-mutilation should be subject to disciplinary action only after and if an evaluation by a physician or psychiatrist determines that the self mutilation is not an expression of deep-severe psychic distress."

Appellant alleged that defendant Valentine is not a physician or a psychiatrist, and had no authority to make any determination whatsoever in regard to his suicide attempts, as she was only a psychologist.

Appellant sought a declaratory judgment finding that his right to due process had been violated, and for equitable relief ordering the expungement of the disciplinary cases from his TDCJ-ID inmate record.

The trial court dismissed Appellant's action as frivolous and malicious prior to service on the defendants, finding that his claims have no arguable basis in law or fact.

Appellant's appeal contends the trial court abused its discretion in dismissing this case for no arguable basis in law or fact. Rule 5C of the Disciplinary Rules and Procedures for Inmates, Institutional Division of the Texas Department of Criminal Justice, provides that before inmates can be disciplined for self mutilation, it must be determined by a medical doctor/psychiatrist that their act is not an expression of deep-severe psychic distress.

Appellant has asserted that the examination accorded to him was by a non-medical doctor psychologist, and that same is not in compliance with Rule 5C.

We sustain Appellant's point and reverse and remand this case to the District Court of Coryell County, where the defendants will be served with process, given an opportunity to file answers, and the case tried on its merits.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Reversed and remanded

Opinion delivered and filed October 11, 1995

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