Larry D. Henson, et al. v. Howard Bennett, et al.--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-96-189-CV

LARRY D. HENSON

Appellant

v.

HOWARD BENNETT, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 30,177

O P I N I O N

This is a civil suit brought by Appellant Larry D. Henson, an inmate in the Alfred D. Hughes Unit of the Texas Department of Criminal Justice, Institutional Division, against Appellees Howard Bennett and Jonnie Smith for damages growing out of alleged medical malpractice on the part of Appellees.

At all times pertinent to this case, Howard Bennett was a medical doctor and Jonnie Smith was a nurse, each employed or retained by the Texas Department of Criminal Justice, Institutional Division.

Appellant filed in the trial court an affidavit of inability to pay costs under Rule 145, Texas Rules of Civil Procedure. Appellant's petition may be summarized as follows:

He alleges that on October 8, 1986, shortly after he became an inmate, he was examined by a prison ophthalmologist who diagnosed his eyes with a "distant vision of OD 20/50 OS 20/50" and "near vision of OD 20/30 0S 20/30." Based upon this examination Appellant received eye glasses. During the ten years since receiving these eye glasses, Appellant contends that his eyesight has gotten worse so that he needs updated eye glasses to strengthen his poorer vision.

He further alleges that after having made several complaints to the Hughes Unit authorities, he was seen by a nurse on June 24, 1995, who documents his complaint by saying, "Needing eyes examined. Inmate is eligible for new glasses." He says he was required to take two visual acuity tests before he could be referred to an ophthalmologist. He received his first such test on August 16, 1995, and the second on August 30, 1995. After the first test the examining nurse notes: "TDC glasses in 1986 - strains eyes for far vision [FAR-OD-20/50-1 and OS-20/70-0] and near vision [NEAR-0D-20/20-1 and OS-20/20-0]."

The second visual acuity test was conducted by Appellee (Nurse) Smith, who noted that Appellant had had glasses since 1986 and that his near vision was OD 20/25 and OS 20/25 and that his far vision was OD 20/50 and 0S 20/70, and with glasses it was OD 20/20 with OS 20/20.

Appellant complains that he did not take the visual acuity test with glasses and therefore "the Defendant Smith deliberately and intentionally documented false information about the ability of Plaintiff's eyesight. Defendant Smith should have referred Plaintiff's medical chart to a PA after completion of the second visual acuity test but the Defendant deliberately did not."

Appellant further alleges that on March 18, 1996, Appellee Bennett "deliberately and intentionally documented into Appellant's medical chart that on 8-30-95 (Appellant had) vision with glasses 20/20 which is normal, so no referral (to an ophthalmologist) was done." Appellant further alleges that Appellee Bennett's actions and omissions were deliberately and maliciously to deny Appellant the right and opportunity to have his eyes reexamined by an ophthalmologist, when Appellant's medical history warrants that right which Appellant is justly entitled to."

Appellant sued for compensatory damages in the amount of $5,000 against each Appellee, plus $10,000 punitive damages against each Appellee, and for reasonable attorneys fees and costs.

Before service of process the trial court entered an order dismissing Appellant's case, wherein the court found that the cause of action was "frivolous and malicious because the claim stated therein has no arguable basis in law or in fact." Additionally, the court found that Appellant failed to state a cause of action, and that he failed to comply with the Medical Liabilities and Insurance Improvement Act.

Appellant comes to this court on two points of error, contending that the trial court abused its discretion (1) in dismissing Appellant's petition for failure to state a cause of action, and (2) in finding that Appellant failed to comply with the Medical Liabilities and Insurance Improvement Act.

This case is governed by the provisions of Chapter Fourteen of the Texas Civil Practice & Remedies Code Annotated. Until recently, in forma pauperis inmate litigation was frequently dismissed under the provisions of Chapter Thirteen of the Texas Civil Practice and Remedies Code Annotated... See Birdo v. Schwartzer, 883 S.W.2d 386 (Tex. App. Waco 1994, no writ); Smith v. Stevens, 822 S.W.2d 152 (Tex. App. Houston [1st Dist.] 1991, writ denied.

Effective June 8, 1995, the Legislature enacted Chapter Fourteen of the Texas Civil Practice & Remedies Code Annotated styled "Inmate Litigation," consisting of Sections 14.001-.014. Chapter Thirteen was also amended so that it no longer applies to inmate litigation covered by Chapter Fourteen. Id. Section 13.004 (Vernon Supp. 1996).

Chapter Fourteen applies to suits brought by an inmate who has filed "an affidavit or unsworn declaration of inability to pay costs." Id. Section 14.002. Section 14.003 allows a court to dismiss a suit before or after process is served if the court finds that the claim is frivolous or malicious. 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.

The trial court has broad discretion to determine whether a suit filed pursuant to Rule 145, Texas Rules of Civil Procedure, should be dismissed as frivolous or malicious. Johnson v. Lynaugh, 766 S.W.2d 393, 394 (Tex. App. Tyler 1989), writ denied per curiam, 796 S.W.2d 705 (Tex. 1990).

Johnson states that 13.001 parallels 28 U.S.C. 1915(d), the Federal statute empowering Federal courts to dismiss frivolous or malicious in forma pauperis actions, and explains that Congress recognized that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits. An abuse of discretion occurs when a trial court acts arbitrarily, capriciously, and without reference to any guiding rules or principles. Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex 1984); Pedraza v. Tibbs, 826 S.W.2d 695, 698-99 (Tex. App. Houston [1st Dist.] 1992, writ dsm'd w.o.j.). An appellate court should not substitute its judgment for that of the trial court. Warner v. Miller, 579 S.W.2d 455, 456-57 (Tex. 1979).

In the case at bar, based upon the facts hereinabove recited from the record before us, we cannot say the trial court abused its discretion in dismissing Appellant's suit based upon the finding that Appellant failed to state a cause of action. We therefore overrule Appellant's first point of error.

Since our disposition of Appellant's first point of error is decisive of the case, we do not reach Appellant's second point of error.

Judgment of the trial court is affirmed.

JOHN A. JAMES, JR.

Justice (Retired)

Before Chief Justice Davis,

Justice Vance and

Justice James (Retired)

Affirmed

Opinion delivered and filed January 29, 1997

Do not publish