Joseph Strickland v. Warden T. Morgan, et al.--Appeal from 87th District Court of Freestone County

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Strickland v. Morgan et al /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-95-222-CV

 

JOSEPH STRICKLAND,

Appellant

v.

 

WARDEN T. MORGAN, ET AL.,

Appellees

 

From the 87th District Court

Freestone County, Texas

Trial Court # 95-172-B

 

O P I N I O N

 

Joseph Strickland, an inmate of the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID) at the Boyd Unit in Teague, Texas, appeals from an order of the trial court dismissing his pro se informa pauperis (civil) suit. See Tex. Civ. Prac. & Rem. Code Ann. 13.001 (Vernon Supp. 1995).

Strickland brought suit against Warden T. Morgan of the Boyd Unit and Dr. Love, the latter alleged to be the treating physician at the Boyd Unit responsible for inmate treatment.

More specifically, Strickland alleged that Dr. Love denied him medical treatment by failure or refusal to diagnose and treat him for a foot condition and, as a result, he (Strickland) is forced to live in pain and work in a job for which he is unfit.

Strickland further alleged that the warden and the doctor are liable for damages "for their intentionally knowing with malice, discrimination, immoral behavior, (and) actual prejudice, to inflict unnecessary suffering on plaintiff by denying him medical treatment. As a result, plaintiff is forced to live with unnecessary pain and is forced to work in a job (in which) he is medically unfit." He sues each defendant for $50,000 actual damages, $50,000 punitive damages and, as we understand his pleadings, for an additional $50,000 against each defendant for "mental (and) emotional stress for suffering from retaliation against filing" this lawsuit, plus court costs.

Plaintiff-Appellant filed his original petition on June 2, 1995. The transcript does not show any service of process on either defendant. Then on June 22, 1995, the trial court dismissed the cause with prejudice under Section 13.001 (Vernon Supp. 1988-89), and taxed the court costs against plaintiff.

Appellant's brief asserts the trial court abused its discretion when it dismissed his suit as frivolous because the court "did not state a reason for issuing its order of dismissal; . . . ."

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. In determining whether the action is frivolous or malicious, the court may consider whether the action's realistic chance of success is slight, or if the claim has no arguable basis in law or in fact. Birdo v. Ament, 814 S.W.2d 808 (Tex. App. Waco 1991, writ denied). The trial court has broad discretion to determine whether such a suit should be dismissed as frivolous or malicious. Johnson v. Lynaugh, 766 S.W.2d 393 (Tex. App. Tyler 1989), affirmed, 796 S.W.2d 705 (Tex. 1990); Thomas v. Texas Department of Criminal Justice, Institutional Division, 848 S.W.2d 797, 798 (Tex. App. Houston [14th Dist.] 1993, writ denied). We review a dismissal under Section 13.001 by determining whether the trial court abused its discretion. Johnson v. Peterson, 799 S.W.2d 345, 347 S.W.2d (Tex. App. Houston [14th Dist.] 1990, no writ).

In the case at bar, the trial court did not abuse its discretion by dismissing with prejudice the suit brought by Appellant.

We accordingly affirm the trial court's judgment.

JOHN A. JAMES, JR.

Justice (Retired)

 

Before Chief Justice Thomas,

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed January 10, 1996

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