Russell Don Sneed ( 2006 )

Opinion issued February 2, 2006

Opinion issued February 2, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00527-CV

RUSSELL SNEED, Appellant

V.

THE UNIVERSITY OF TEXAS MEDICAL BRANCH MANAGED CARE-GALVESTON, LARRY LIPSCOMB, M.D., WILLIAM SHELBY, P.A., LORI LYNN CINDRICK, M.D., SALLY ABSTON, M.D., MICHELLE I. SLOGOFF, M.D., TODD ANDREW SPENCER, M.D., DENNIS C. GORE, M.D., AND ARAVIND B. SANKAR, M.D., Appellees

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 01CV0469

MEMORANDUM OPINION

          Appellant, Russell Sneed, brought a pro se medical malpractice action against the University of Texas Medical Branch Managed Care-Galveston and eight doctors arising out of their alleged negligence in treating and surgically repairing an incisional hernia from which he suffers. He appeals the trial court’s dismissal of his suit for want of prosecution.  We affirm.

Background

          Sneed, who is presently incarcerated, alleges that he suffered personal injury, physical pain, disfigurement, and mental anguish as a result of appellees’ negligence in performing multiple surgeries on his incisional hernia.  Sneed brought suit on May 29, 2001 under the Texas Tort Claims Act and the Texas Medical Liability and Insurance Improvement Act.

          At the time Sneed filed his lawsuit, he also filed a motion to proceed in forma pauperis, declaration of inability to pay costs, affidavit in lieu of security for costs, motion for docket and hearing, motion for appointment of counsel, and motion for bench warrant or in the alternative motion for hearing by conference call.  The trial court granted Sneed’s motion to proceed in forma pauperis but denied the other motions.  In August 2001, Sneed filled out a form requesting that the clerk of the court issue service of his petition on all nine defendants.  The clerk, however, was “unable to determine or read” Sneed’s request and advised him by letter that he should fill out nine separate request forms, which were included with the clerk’s letter.

          In October 2001, Sneed filed a request to stay proceedings, in which he notified the court via affidavit that because he had no access to a copy machine in prison, he had asked his sister to make nine photocopies of the petition.  Prison officials, however, refused to deliver his sister’s package containing the photocopies and instead advised him that he was required to notify the mailroom in advance if he was expecting a package from his family containing legal documents. Because he anticipated a delay in obtaining the photocopies of his petition, Sneed asked the trial court to grant a continuance.  The trial court denied the motion on October 15, 2001.

          The record is void of any attempts by Sneed to effect service of process following the trial court’s denial of his request for continuance.  On March 10, 2002, Sneed sent a letter to the clerk of the court asking for an update on the status of his case.  In correspondence dated March 15, 2002, the clerk advised Sneed that his case was still pending and enclosed a computer printout of the trial court’s rulings. In November 2002, Sneed sent a letter to the court regarding his change of address.  From November 2002 until March 2005, Sneed filed no documents with the court.

          On February 9, 2005, the trial court sent Sneed a “drop docket notice,” which provides as follows:

Please be advised that the above case is currently set on the 405^th District Court Dismissal Docket on March 17, 2005 at 9:00 A.M.  Any motions to retain this cause must be filed with the Clerk of this Court.

This cause will be dismissed for want of prosecution in accordance with rule 3.22 of the [Local Rules of the District Courts for Galveston County, Texas] unless, in accordance with Rule 165a T.R.C.P., you appear and show cause why the case should be retained.

On March 15, 2005, Sneed filed a motion to retain, request to compel discovery, second request for appointment of counsel, and second request for appointment of expert witness.  Although the trial court denied the motions to compel discovery, appoint counsel, and appoint an expert witness, it set the motion to retain for hearing by submission on April 21, 2005.  The court ordered Sneed to file written affidavits and any other information relevant to the motion to retain by April 11, 2005.  Sneed did not file anything to support his motion to retain or in any way respond to the court’s order that he provide additional information. Accordingly, the court denied Sneed’s motion to retain on April 22, 2005.  Three days later, the court dismissed the case for want of prosecution.

Analysis

Dismissal for Want of Prosecution

          Sneed contends the trial court abused its discretion in dismissing his case for want of prosecution based on his failure to appear. Sneed points out that, as an incarcerated prisoner, it was impossible for him to appear at the dismissal hearing. He asserts that due process required the trial court to investigate reasonable alternatives, such as allowing him to appear by bench warrant, telephone, or videoconference.

          A trial court’s authority to dismiss for want of prosecution stems from two sources: (1) Rule 165a of the Texas Rules of Civil Procedure, and (2) the court’s inherent power.  Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).  A trial court may dismiss under Rule 165a on “failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice,” or when a case is “not disposed of within time standards promulgated by the Supreme Court.”  Tex. R. Civ. P. 165a(1)–(2).  In addition, the common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his case with due diligence.  Villarreal, 994 S.W.2d at 630.  A party must be given notice and an opportunity to be heard before a court may dismiss a case for want of prosecution.  Id.  A court may not dismiss for want of prosecution on a ground other than those for which it gave notice of its intent to dismiss.  See id. at 632–33.  We review a trial court’s order of dismissal for an abuse of discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997).

          Contrary to Sneed’s contention, the trial court did not dismiss the case based upon his failure to appear at the dismissal hearing.[1]  This is evident from the order of dismissal, in which the trial judge crossed out the form language “no party appearing to contest Dismissal of this cause.” Rather, in accordance with the dismissal notice, the trial court apparently dismissed the case because it was “not disposed of within time standards promulgated by the Supreme Court.” Tex. R. Civ. P. 165a(2).  The current time standard promulgated by the Texas Supreme Court for civil jury cases is eighteen months from the appearance date.  Tex. R. Jud. Admin. 6(b)(1), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F app. (Vernon 2005).  The Galveston County Local Rule referenced in the trial court’s dismissal notice similarly provides that all cases on the docket for more than twenty-four months that have not been set for trial or other hearing shall be placed on the “Drop Docket” at the discretion of the court. Galveston County (Tex.) Dist. Ct. Loc. R. 3.22(A).

Sneed initiated this case in May 2001.  From November 2002 until March 2005, Sneed had no contact with the court. Thus, Sneed allowed a period of twenty-eight months to elapse without communicating with the court.  This violates the time standards promulgated by both the Texas Supreme Court and the local courts of Galveston County.  Based on the inactivity in the case from November 2002 until March 2005, along with Sneed’s failure to file affidavits or other information in support of his motion to retain when given the opportunity to do so, the trial court reasonably could have found that Sneed failed to prosecute his case with due diligence.  See Wright v. Tex. Dep’t of Criminal Justice-Institutional Div., 137 S.W.3d 693, 696 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (holding that trial court did not commit abuse of discretion in dismissing case for want of prosecution where incarcerated plaintiff failed to communicate with court for nineteen-month period).  Accordingly, we hold that the trial court did not abuse its discretion in dismissing Sneed’s case for want of prosecution.

Appointment of Counsel

          Sneed also contends the trial court erred in dismissing his case for want of prosecution because he was unable to effectively prosecute his case without assistance from appointed counsel.  Sneed acknowledges that there is no constitutional right to appointment of counsel in civil proceedings, but urges that because his medical malpractice case requires expert testimony and reports, appointment of counsel is necessary.

The Texas Supreme Court recently addressed the issue of appointed counsel in medical malpractice cases brought by indigent inmates in Gibson v. Tolbert, 102 S.W.3d 710 (Tex. 2003).  The court recognized that although the Legislature has statutorily provided for appointed counsel in certain types of cases,[2] the Legislature has not expressly required appointed counsel for indigent plaintiffs in medical malpractice actions—even though the Legislature “has imposed unique procedural hurdles for a plaintiff to clear [in medical malpractice cases], such as requiring the plaintiff to provide an expert report.”  Id. at 712.  The court also recognized that even when appointed counsel is not statutorily required, a trial court nonetheless has the inherent power to appoint counsel in civil cases under “exceptional circumstances,” which exist when “the public and private interests at stake are such that the administration of justice may best be served by appointing a lawyer to represent an indigent civil litigant.”  Id. (quoting Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996)).  The court then considered whether an indigent inmate’s medical malpractice suit against a prison doctor presents the type of “exceptional circumstances” warranting appointment of counsel and concluded it does not:

[W]hat is “exceptional” is by definition rare and unusual—something not easily identified by a general rule.  Only by evaluating the unique circumstances of a given civil case could a court ever determine that it has no reasonable alternative but to appoint counsel.  In short, it is easier to determine what is not exceptional than to pronounce a general proposition on what would be exceptional.

          This case is an obvious example.  Inmate suits against prison personnel, rather than rare and unusual, are common.  In fact, the Legislature enacted laws in an effort to curb this particular area of litigation excess.  The mere fact that an indigent inmate brings a cause of action against an employee of the prison in which the inmate is incarcerated does not constitute exceptional circumstances such that it warrants appointed counsel.  Furthermore, plaintiffs in medical malpractice cases are routinely represented by counsel on contingent fee contracts.  As long as his claims against Gibson were meritorious, Tolbert’s indigency should not have prevented him from employing able counsel.

Id. at 713 (internal footnote omitted).

Like Tolbert, Sneed has not demonstrated how his case presents “exceptional circumstances” warranting appointment of counsel.  The obstacles that confronted Tolbert are similar to those confronting Sneed. Both are indigent, lack legal skill and training, and desire expert testimony to support their claims.  See Wigfall v. Tex. Dep’t of Criminal Justice, 137 S.W.3d 268, 275 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (following Tolbert and concluding that indigent inmate’s medical malpractice suit did not warrant appointed counsel).  Moreover, we note that in his motion to retain and in his brief, Sneed states that his “efforts to obtain counsel outside prison walls perhaps on a contingency basis went unprevailing.”  Yet, as the Texas Supreme Court reasoned in Tolbert, a plaintiff should not have difficulty obtaining counsel on a contingency fee basis as long as his claims are meritorious.  Tolbert, 102 S.W.3d at 713; see also Wigfall, 137 S.W.3d at 275.  We therefore hold that the trial court did not abuse its discretion in refusing to appoint counsel for Sneed.

Conclusion

          We affirm the trial court’s order of dismissal.

                                                          Jane Bland

                                                          Justice

Panel consists of Justices Taft, Higley, and Bland.

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[1] Although litigants cannot be denied access to the courts simply because they are inmates, they do not have an absolute right to appear personally at every court proceeding. In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003).  Instead, an inmate’s right of access must be weighed against the protection of the correctional system’s integrity.  Id. If a trial court denies an inmate’s request to appear personally at a hearing, the court should allow the inmate to proceed by affidavit, deposition, telephone, or other effective means.  Boulden v. Boulden, 133 S.W.3d 884, 887 (Tex. App.—Dallas 2004, no pet.); Aguilar v. Alvarado, 39 S.W.3d 244, 248 (Tex. App.—Waco 1999, pet. denied).  Here, the trial court decided against allowing Sneed to appear personally at the dismissal hearing, but afforded Sneed an adequate opportunity to file written affidavits and any other relevant information in support of his motion to retain. Sneed, however, failed to avail himself of this opportunity.

[2] These include juvenile delinquency proceedings, parental termination suits, and cases in which an application for court-ordered mental health services has been made.  See Tex. Fam. Code Ann. §§ 51.10, 107.013 (Vernon Supp. 2005); Tex. Health & Safety Code Ann. § 574.003 (Vernon 2003).