Keljer King v. Dr. K. Love, M.D., et al.--Appeal from 87th District Court of Freestone County

IN THE

TENTH COURT OF APPEALS

No. 10-95-185-CV

KELJER KING,

Appellant

v.

DR. K. LOVE, M.D., ET AL.,

Appellees

From the 87th District Court

Freestone County, Texas

Trial Court # 95-129-B

O P I N I O N

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

Appellant, an inmate of the Texas Department of Criminal Justice, Institutional Division, at the Boyd Unit in Teague, brought this action pro se against Appellees, Dr. K. Love, M.D., M. Wright, P.A., Warden Jay T. Morgan, Nurse Brooks, LVN, Nurse J. Neihmas, LVN, Nurse Jones, RN, (all employees of the TDCJ-ID), alleging that they denied him medical care, took his cane, said he was a "fake," and that their actions are in retaliation against Appellant for his bringing a lawsuit against Warden Morgan and others in the U.S. District Court in Lufkin.

Appellant further sought a protective order against Warden Morgan and Correctional Officers Sgt. Paul Kilgore and M. Vanzandt to order them to cease retaliating against him. Appellant sought damages of $345,000.

The trial court dismissed Appellant's suit pursuant to Texas Civil Practices & Remedies Code, 13.001. Appellant appeals, asserting the trial court abused its discretion in dismissing his action.

Texas Civil Practices & Remedies Code, 13.001, authorizes a trial court to dismiss actions filed under Rule 145, Texas Rules of Civil Procedure (affidavit of inability to pay costs), upon a finding that the action is frivolous or malicious. The trial court has broad discretion to determine whether such a suit should be dismissed. Johnson v. Lynaugh, 766 S.W.2d 393 (Tex. App. Tyler 1989), aff'd 796 S.W.2d 705 (Tex. 1990); Kendrick v. Lynaugh, 801 S.W.2d 153, 155 (Tex. App. Houston [14th Dist.] 1990).

The trial court did not abuse its discretion in dismissing Appellant's action. Appellant's contentions are overruled.

The judgment of the trial court is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed October 4, 1995

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