Eddie Anthony Patterson v. T v. Channel 25 Broadcast Station and Its Reporter on March 29, 2010 1909 S New Road, Waco, Texas 76711

ACCEPTED
06-15-00046-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/17/2015 2:50:54 PM
DEBBIE AUTREY
CLERK
No. 06-15-00046-CV FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
In the Court of Appeals 12/17/2015 2:50:54 PM
For the Sixth Judicial District DEBBIE AUTREY
Clerk
Sitting at Texarkana, Texas
EDDIE ANTHONY PATTERSON,
Appellant
v.
TV CHANNEL 25 BROADCAST STATION AND
ITS REPORTER ON MARCH 29, 2010,
Appellee
Appealed from 170th Judicial District Court
McLennan County, Texas
Appellee’s Brief
Neal E. Pirkle
State Bar No. 00794464
pirkle@namanhowell.com
Robert R. Little
State Bar No. 24050940
little@namanhowell.com
Naman, Howell, Smith & Lee, PLLC
400 Austin Avenue, 8th Floor
Waco, Texas 76701
254-755-4100
254-754-6331 (fax)
Attorneys for Appellee
{03681434.DOC / 2}
No. 06-15-00046-CV
In the Court of Appeals
For the Sixth Judicial District
Sitting at Texarkana, Texas
EDDIE ANTHONY PATTERSON,
Appellant
v.
TV CHANNEL 25 BROADCAST STATION AND
ITS REPORTER ON MARCH 29, 2010,
Appellee
Certificate of Parties and Attorneys
Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Centex
Television Limited Partnership, Appellee, supplies the following list of parties to
the orders appealed from, and the names and addresses of counsel:
Parties
Eddie Anthony Patterson. . ................................................................
Appellant
Centex Television Limited Partnership. ................................
Appellee
{03681434.DOC / 2} i
Attorneys
Neal E. Pirkle ................................................................Trial and Appellate
Robert R. Little Counsel for
Naman, Howell, Smith & Lee Appellee/Defendant
P.O. Box 1470
Waco, Texas 76703
(254) 755-4100
(254) 754-6331 (facsimile)
Pro Se
Eddie Anthony Patterson ................................................................
Inmate T.D.C.J. #01635370
C.T. Terrell Unit
1300 FM 655
Rosharon, Texas 77583
/s/ Neal E. Pirkle
Neal E. Pirkle
{03681434.DOC / 2} ii
No. 06-15-00046-CV
In the Court of Appeals
For the Sixth Judicial District
Sitting at Texarkana, Texas
EDDIE ANTHONY PATTERSON,
Appellant
v.
TV CHANNEL 25 BROADCAST STATION AND
ITS REPORTER ON MARCH 29, 2010,
Appellee
Statement Regarding Oral Argument
Appellee does not believe oral argument is necessary for this matter.
However, in the event that the Court believes that oral argument will assist in the
decision of this matter, Appellee wishes to participate. Appellee stands ready to
participate in oral argument if the Court should determine it is beneficial.
{03681434.DOC / 2} iii
Table of Contents
Certificate of Parties and Attorneys ..................................................................................... i
Statement Regarding Oral Argument ................................................................................. iii
Table of Contents ................................................................................................................ iv
Index of Authorities............................................................................................................. vi
Statement of the Case .......................................................................................................... 2
Statement of the Issues ........................................................................................................ 4
Issue No. 1: ............................................................................................................... 4
The Trial Court did not abuse its discretion when it denied Appellant’s
Motion for Appointment of Counsel. ....................................................................... 4
Issue No. 2: ............................................................................................................... 4
The Trial Court did not err in granting Centex Television’s Motion to
Dismiss. .................................................................................................................... 4
A. Pursuant to Chapter 16 of the Texas Civil Practice & Remedies
Code, Appellant’s claims were barred by the statute of limitations......................... 4
B. Appellant’s claims for defamation were properly dismissed
because the Appellant cannot make a prima facie cause of action for
such claim. ................................................................................................................ 4
C. Appellant’s claims for constitutional violations were properly
dismissed because Centex Television is not a state actor and because
Plaintiff nonsuited these claims by his own admissions. ......................................... 4
Statement of the Facts.......................................................................................................... 4
Summary of the Argument .................................................................................................. 6
The Standard of Review .................................................................................................... 12
Argument of the Issues ...................................................................................................... 13
Issue No. 1: The Trial Court Did Not Abuse Its Discretion When It
Denied Appellant’s Motion for Appointment of Counsel. ..................................... 13
{03681434.DOC / 2} iv
Issue No. 2: The Trial Court Did Not Err In Granting Centex
Television’s Motion to Dismiss. ............................................................................ 17
A. Pursuant to Chapter 16 of the Texas Civil Practice & Remedies
Code, Appellant’s claims were barred by the statute of limitations. ..................... 17
B. Appellant’s claims for defamation were properly dismissed
because the Appellant cannot make a prima facie cause of action for
such claim. .............................................................................................................. 21
C. Appellant’s claims for constitutional violations were properly
dismissed because Centex Television is not a state actor and because
Plaintiff nonsuited these claims by his own admissions. ........................................ 23
Conclusion & Prayer ......................................................................................................... 24
{03681434.DOC / 2} v
Index of Authorities
Cases
Allen v. Port Drum Co., 777 S.W.2d 776 (Tex. App.—Beaumont 1989, writ
denied) ........................................................................................................................... 23
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (U.S. 1999) .................................... 13, 27
Assoc. Press v. Cook, 17 S.W.3d 447 (Tex. App.--Houston [1st Dist.] 2000, no
pet.) .......................................................................................................................... 11, 25
Bell Publishing Co. v. Garnett Engineering Co., 141 Tex. 51 (1943) ........................ 12, 25
Coleman v. Lynaugh, 934 S.W.2d 837 (Tex. App.-Houston [1st Dist.] 1996, no
writ) ................................................................................................................................ 14
Crites v. Mullins, 697 S.W.2d 715 (Tex. App. -- Corpus Christi 1985, writ ref'd
n.r.e.) ........................................................................................................................ 12, 25
Dolcefino v. Randolph, 19 S.W.3d 906 (Tex. App.--Houston[14th Dist.] 2000,
pet. denied)..................................................................................................................... 26
Fort Worth Press Co. v. Davis, 96 S.W.2d 416 (Tex. Civ. App. -- Fort Worth
1936, writ ref'd).............................................................................................................. 12
Gibson v. Tolbert, 102 S.W.3d 710 (Tex. 2003) ........................................... 7, 8, 16, 17, 19
Hall v. Treon, 39 S.W.3d 722 (Tex. App.-Beaumont 2001, no pet.) ................................ 13
Hines v. Massey, 79 S.W.3d 269 (Tex. App.-Beaumont 2002, no pet.) ........................... 13
Kelley v. Rinkle, 532 S.W.2d 947 (Tex. 1976) .............................................................. 9, 20
Lassiter v. Department of Soc. Servs., 452 U.S. 18, 101 S. Ct. 2153, 2159, 68
L. Ed. 2d 640, 649 (1981) .............................................................................................. 16
McIlvain v. Jacobs, 794 S.W.2d 14 (Tex. 1990) ......................................................... 25, 26
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) .................................. 11, 25
Shivers v. State, 873 S.W.2d 704 n.3 (Tex. App.-El Paso 1994, no pet.) ......................... 18
Travelers Indemnity Co. v. Mayfield, 923 S.W.2d 590 (Tex. 1996) ....................... 7, 16, 19
{03681434.DOC / 2} vi
Walker v. Schion , 420 S.W.3d 454 (Tex. App.-Houston [14th Dist.] 2014, no
pet.) .......................................................................................................................... 14, 15
Wilson v. Garcia, 471 U.S. 261 (1985) ....................................................................... 10, 21
Statutes
Tex. Civ. Prac. & Rem. Code § 16.003(a) .................................................................. 10, 20
Tex. Civ. Prac. & Rem. Code §132.001 (2014) .......................................................... 17, 18
Tex. Civ. Prac. & Rem. Code, Section 27.002 ............................................................ 2, 5, 9
Tex. Civ. Prac. & Rem. Code §27.005 ................................................................................ 9
Tex. Gov’t Code Ann. Section 24.016 (2014)............................................................ passim
Texas Rule of Civil Procedure 91a ............................................................................. passim
{03681434.DOC / 2} vii
No. 06-15-00046-CV
In the Court of Appeals
For the Sixth Judicial District
Sitting at Texarkana, Texas
EDDIE ANTHONY PATTERSON,
Appellant
v.
TV CHANNEL 25 BROADCAST STATION AND
ITS REPORTER ON MARCH 29, 2010,
Appellee
Appellee’s Brief
To the Honorable Court of Appeals:
Comes now Centex Television Limited Partnership (incorrectly named by
Plaintiff/Appellant as “TV Channel 25 Broadcast Station and Its Reporter on
March 29, 2010” in the original pleading filed by the Appellant in the Trial Court),
as Appellee, and files this Brief. In this Brief, every effort will be made to refer to
the parties by name.
{03681434.DOC / 2} 1
Statement of the Case
This case involves the broadcast of a news story on March 29, 2010 by
Centex Television Limited Partnership (hereinafter sometimes referred to as
“Centex Television”) regarding the conviction of Eddie Anthony Patterson for
aggravated kidnapping. Eddie Anthony Patterson originally brought this case by
filing his “Brief Statement of this Cause of Action/Claim for Damages/Relief”
(hereinafter “Brief Statement”) on March 13, 2015 in the 170th Judicial District
Court of McLennan County, Texas against “TV Channel 25 Broadcast Station and
Its Reporter on March 29, 2010.” On or about March 27, 2015, “TV Channel 25
Broadcast Station” was served with Eddie Anthony Patterson’s Brief Statement.
On April 10, 2015, Centex Television Limited Partnership, which was incorrectly
named by Eddie Anthony Patterson as “TV Channel 25 Broadcast Station and Its
Reporter on March 29, 2015,” filed its Original Answer. On April 10, 2015,
Centex Television Limited Partnership also filed its Motion to Dismiss pursuant to
Texas Rule of Civil Procedure 91a and/or Section 27.002 of the Civil Practice &
Remedies Code.
Eddie Anthony Patterson asserted claims against Centex Television for: (1)
slander, libel and/or defamation; and (2) violations of alleged constitutional rights.
Centex Television sought dismissal of all of Mr. Patterson’s causes of action
because (1) the statute of limitations had run for any potential claim, (2) Centex
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Television could not have committed constitutional violations against Mr.
Patterson because Centex Television is not a state actor, and (3) Mr. Patterson
could not make a prima facie case of defamation because the broadcast was true, or
at a minimum, substantially true, and because there was not wrongful conduct by
Centex Television.
While the Motion to Dismiss was pending, Eddie Anthony Patterson filed
his “Motion for Recruitment of IOLTA Punded or Pro Bono Counsel” (which the
Trial Court interpreted to be and was referred to as “Plaintiff’s Motion for
Recruitment of IOLTA Funded or Pro Bono Counsel.” In this Motion, Appellant
Eddie Anthony Patterson requested an order appointing counsel to represent him in
this civil matter. On June 19, 2015, the Trial Court denied Eddie Anthony
Patterson’s Motion for Appointment of Counsel and granted the Motion to Dismiss
of Centex Television. It is from that order that Appellant appeals.
{03681434.DOC / 2} 3
Statement of the Issues
Issue No. 1:
The Trial Court did not abuse its discretion when it denied Appellant’s
Motion for Appointment of Counsel.
Issue No. 2:
The Trial Court did not err in granting Centex Television’s Motion to
Dismiss.
A. Pursuant to Chapter 16 of the Texas Civil Practice & Remedies
Code, Appellant’s claims were barred by the statute of
limitations.
B. Appellant’s claims for defamation were properly dismissed
because the Appellant cannot make a prima facie cause of action
for such claim.
C. Appellant’s claims for constitutional violations were properly
dismissed because Centex Television is not a state actor and
because Plaintiff nonsuited these claims by his own admissions.
Statement of the Facts
This is a defamation case that stems from the June 24, 2009, sexual assault
of a female by the Appellant, Eddie Anthony Patterson. (C.R. 27). On March 29,
2010, Eddie Anthony Patterson pled guilty to aggravated kidnapping from this
event. (C.R. 26-31). On that same day, Centex Television broadcast a story
concerning his conviction for aggravated kidnapping, which he had previously
confessed of and pled guilty to. (C.R. 22-31). This was part of a plea arrangement
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between the State of Texas and the Defendant Eddie Anthony Patterson. (C.R. 26-
31).
As part of the plea arrangement, Eddie Anthony Patterson confessed to and
admitted to “intentionally or knowingly . . . inflict[ing] bodily injury on” his
victim. (C.R. 27). He also confessed to terroriz[ing] his victim, and “intentionally
or knowingly abduct[ing]” his victim. (C.R. 27). Appellant Patterson then pled
guilty to Aggravated Kidnapping. (C.R. 30). On the same day as his conviction,
Centex Television reported the details of Eddie Anthony Patterson’s conviction
and the events had occurred earlier that day in the criminal court. (C.R. 22-25).
Eddie Anthony Patterson brought this suit against “TV Channel 25
Broadcast Station and Its Reporter on March 29, 2010” on March 13, 2015 in a
pleading he entitled “Brief Statement of this Cause of Action/Claim for
Damages/Relief.” (C.R. 5-6) Centex Television, as the proper entity, filed its
Original Answer on April 10, 2015. (C.R. 11-12). Simultaneously with the filing
of its Original Answer, Centex Television filed its Motion to Dismiss pursuant to
Rule 91a and/or Section 27.002 of the Civil Practice & Remedies Code. (C.R. 13-
31). On or about April 30, 2015, Appellant then filed his Motion for Recruitment
of Counsel. (C.R. 33). On June 19, 2015, the Trial Court denied Appellant’s
request for counsel and granted the Motion to Dismiss. (C.R. 40). Subsequently,
Appellant filed his Notice of Appeal. (C.R. 41).
{03681434.DOC / 2} 5
In the Trial Court, the Appellant never mentioned a previous lawsuit. (C.R.
1-61). However, in his brief, Appellant Eddie Anthony Patterson tries to toll the
statute of limitations by referencing that “this LAWSUIT was a SUPPLIMENTAL
PLEADING to an Original Lawsuit that was Filed in a timely fashion in the Wrong
Jurisdiction.” (Appellant’s Brief pg. 4). Based upon Appellant’s allegations in his
brief, counsel for Centex Television found a matter brought by Eddie Anthony
Patterson against Beth Toben, TV Channel 25 Broadcast Station, the Court
Reporter Employed by McLennan County of Texas, and the McLennan County
Records Department. (Appendix B, 1-23). This lawsuit in Federal Court was filed
on February 27, 2012 by Eddie Anthony Patterson. (Appendix B, 1-9). Appellant
then filed a Motion to Dismiss in Lieu of Objection on July 14, 2014. (Appendix
B, 16). The federal lawsuit brought by Eddie Anthony Patterson was then
dismissed by Order of the Honorable Walter S. Smith, Jr. on July 16, 2014.
(Appendix B, 18). This Order dismissing the lawsuit does not indicate that it is a
dismissal because of lack of jurisdiction. (Appendix B, 18).
Summary of the Argument
The Trial Court properly refused to appoint counsel to Eddie Anthony
Patterson. Except in a few statutorily created circumstances, trial courts have
discretion to appoint counsel for indigent litigants in civil cases. Tex. Gov’t Code
Ann. Section 24.016 (2014). Travelers Indemnity Co. v. Mayfield, 923 S.W.2d
{03681434.DOC / 2} 6
590, 593 (Tex. 1996); Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003)(listing
the statutorily created circumstances for required appointment of counsel). Only in
exceptional circumstances could a trial court appoint counsel to an indigent civil
litigant, and only after the litigant files an affidavit that he is too poor to employ
counsel. Gibson, 102 S.W.3d at 713. In evaluating what might constitute
exceptional circumstances, courts are to consider the unique circumstances of the
case and determine whether the trial court had no reasonable alternative but to
appoint counsel. Id.
In this matter, the Trial Court properly refused to appoint counsel for two
reasons. First, the Appellant never filed a document that would qualify as an
affidavit that he was too poor to employ counsel. This is a prerequisite for the
appointment of counsel. Second, this case is not the type of exceptional
circumstances that would justify appointment of counsel. This is a simple
defamation case. There is nothing about this case that makes the public or private
interests at stake such that the administration of justice is best served by appointing
a lawyer to represent the civil litigant. Travelers, 923 S.W.2d at 594; Gibson, 102
S.W.3d at, 712. There is nothing complex about this case. It is a defamation case
brought based upon a broadcast concerning a felony conviction. If this is the type
of case that requires the appointment of counsel, every case brought by a pro se
litigant that concerns a tort would require a trial court to appoint counsel. Both of
{03681434.DOC / 2} 7
these reasons standing alone demonstrate that the Trial Court did not abuse its
discretion in refusing to appoint counsel.
The Trial Court properly dismissed Eddie Anthony Patterson’s claims.
Centex Television filed its Motion to Dismiss in the Trial Court under the authority
of Texas Rules of Civil Procedure 91a and under Chapter 27 of the Texas Civil
Practice and Remedies Code. Under Rule 91a, the Trial Court shall dismiss a
cause of action that has no basis in law or fact. Tex. R. Civ. P. 91a.1. Centex
Television also files this Motion to Dismiss pursuant to the Citizens Participation
Act. This Act became law in 2011, and was intended to “encourage and
safeguard” the constitutional right to free speech, along with other basic First
Amendment rights. Tex. Civ. Prac. & Rem. Code §27.002. Accordingly, the
Citizens Protection Act provides that actions like this one, which relate to or arise
out of a party’s exercise of their right of free speech, shall be dismissed unless the
plaintiff can establish a prima facie case on each essential element of the claim in
question. Tex. Civ. Prac. & Rem. Code §27.005.
Dismissal by the Trial Court was proper. All of Appellant Patterson’s
causes of action are barred by the applicable statute of limitations. Second, the
cause of action really being brought by Eddie Anthony Patterson is for defamation
and he can not establish a prima facie case for the necessary elements. Finally,
Eddie Anthony Patterson’s claims for any constitutional violations against Centex
{03681434.DOC / 2} 8
Television were properly dismissed because Centex Television is not a
governmental actor and Appellant Patterson admitted that the claims for
constitutional violations are not longer part of this suit. (Appellant’s Brief pg. 4).
Therefore, the Trial Court properly dismissed Plaintiff’s claims.
The claims brought herein are barred by the statute of limitations. The event
that Eddie Anthony Patterson complains of occurred on March 29, 2010. (C.R. 5-
6). The statute of limitations for libel, slander, and defamation is one year. Kelley
v. Rinkle, 532 S.W.2d 947, 949 (Tex. 1976). Under Texas law, a claim for torts,
like negligence or intentional infliction of emotional distress, must be brought
within the two-year statute of limitations. Tex. Civ. Prac. & Rem. Code §
16.003(a). Additionally, the United States Supreme Court has held that the
limitations for Constitutional violations are best characterized as personally injury
claims, which have a two year statute in Texas. Wilson v. Garcia, 471 U.S. 261,
278 (1985). All of the conceivable tort claims that Plaintiff could be alleging
either have a one year or a two year statute of limitations. Appeallant filed this
lawsuit over 4 years and 11 months after the events of the occurrence in question.
Therefore, it is clear that all of Plaintiff’s claims, whether libel, slander,
defamation or constitutional violations are barred by the applicable statute of
limitations.
{03681434.DOC / 2} 9
For the first time in this appeal, Eddie Anthony Patterson tries to toll the
statute of limitations by referencing that “this LAWSUIT was a SUPPLIMENTAL
PLEADING to an Original Lawsuit that was Filed in a timely fashion in the Wrong
Jurisdiction.” (Appellant’s Brief pg. 4). This argument fails for several reasons as
set forth in more detail below. First, there was nothing in the record for the Trial
Court to consider regarding a previous lawsuit. Second, the previous federal
lawsuit does not meet the statutory requirements to toll a statue of limitations.
Third, even if this Court is to consider the previous lawsuit, this matter is still
untimely. Therefore, dismissal of the Appellant’s claims was proper based upon
the statute of limitations.
The Trial Court properly dismissed the claims of Eddie Anthony Patterson
because he could not establish a prima facie claim of defamation. In order to
establish a prima facie cause of action for defamation, a plaintiff must prove that
the defendant (1) published a false statement about the plaintiff, (2) that statement
was defamatory, and (3) that the defendant made the statement while acting with
either actual malice, if the plaintiff was a public official or public figure, or
negligence, if the plaintiff was a private individual, regarding the truth of the
statement. Assoc. Press v. Cook, 17 S.W.3d 447, 452 (Tex. App.--Houston [1st
Dist.] 2000, no pet.). A “private-figure plaintiff must bear the burden of showing
that the speech at issue is false before recovering damages for defamation from a
{03681434.DOC / 2} 10
media defendant.” Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 787
(1986). Under Texas law, a media defendant need only prove that what they
published or broadcast was “substantially true” in order to defeat a claim for
defamation or slander. Crites v. Mullins, 697 S.W.2d 715, 717 (Tex. App. --
Corpus Christi 1985, writ ref'd n.r.e.); Fort Worth Press Co. v. Davis, 96 S.W.2d
416, 419 (Tex. Civ. App. -- Fort Worth 1936, writ ref'd); see also Bell Publishing
Co. v. Garnett Engineering Co., 141 Tex. 51, 60 (1943).
In the Trial Court, Eddie Anthony Patterson failed to make a prima facie
case of defamation because he failed to establish (1) Centex Television published a
false statement about him, and (2) that Centex Television acted with either actual
malice or negligence. An absence of either one of these three elements and
Appellants case must fail. Two of the elements are missing. Therefore, the Trial
Court properly dismissed the claims of Eddie Anthony Patterson.
Eddie Anthony Patterson’s constitutional claims were also properly
dismissed by the Trial Court. To be liable for a constitutional violation, the
Defendant must be a state actor. To state a claim for relief, the Plaintiff must
establish that he was deprived of a right secured by the Constitution of the United
States, and that the alleged deprivation was committed under color of state law.
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (U.S. 1999). The state-
action requirement excludes from its reach “merely private conduct, no matter how
{03681434.DOC / 2} 11
discriminatory or wrongful.” Id. Here, Centex Television is a privately owned
business. It is not an arm of the government. As such, Centex Television cannot
be liable to the Plaintiff for any constitutional violations. Therefore, the Trial
Court properly dismissed Eddie Anthony Patterson’s claims for constitutional
violations. Further, Appellant admits that the claims for constitutional violations
are not longer part of this suit. (Appellant’s Brief pg. 4).
The Standard of Review
In reviewing the Trial Court's ruling on Appellant Eddie Anthony
Patterson’s request for counsel, the appellate court uses the abuse of discretion
standard. Hines v. Massey, 79 S.W.3d 269, 272 (Tex. App.-Beaumont 2002, no
pet.); see also Hall v. Treon, 39 S.W.3d 722, 724 (Tex. App.-Beaumont 2001, no
pet.); Coleman v. Lynaugh, 934 S.W.2d 837, 839 (Tex. App.-Houston [1st Dist.]
1996, no writ). Only if the trial court abused its discretion in failing to appoint
counsel, can the appellate court reverse. Id.
With regard to a motion to dismiss under Rule 91a and Chapter 27 of the
Texas Civil Practice and Remedies Code, both are reviewed under the de novo
standard. Walker v. Schion , 420 S.W.3d 454, 457 (Tex. App.-Houston [14th Dist.]
2014, no pet.); Wooley v. Schaffer, 447 S.W.3d 71, 74-75 (Tex. App.-Houston
[14th Dist.] 2014, pet. denied). However, what is reviewed under a Motion to
Dismiss under the Citizens Participation Act and Rule 91a differ. Under the
{03681434.DOC / 2} 12
Citizens Participation Act, the appellate court determines “de novo whether the
record contains a minimum quantum of clear and specific evidence that, unaided
by inferences, would establish each essential element of the claim in question if no
contrary evidence is offered.” Walker, 420 S.W.3d at 457. Further, the trial court
when considering a Motion to Dismiss under the Citizens Participation Act “shall
consider the pleadings and supporting and opposing affidavits stating the facts on
which the liability or defense is based.” Id.; Tex. R. Civ. Prac. & Rem. Code Ann.
§27.006(a). However, under a Rule 91a Motion to Dismiss, the court looks at the
pleadings and pleader’s intent. Wooley, 447 S.W.3d at 75. Rule 91a requires the
Court to determine whether a “reasonable person could believe the facts pleaded”
to determine whether a pleading has a basis in fact. Id.; Tex. R. Civ. P. 91a.1.
Argument of the Issues
Issue No. 1: The Trial Court Did Not Abuse Its Discretion When It Denied
Appellant’s Motion for Appointment of Counsel.
The Trial Court properly refused to appoint counsel to Eddie Anthony
Patterson. Generally, a civil litigant has no state or federal constitutional right to
the appointment of counsel. See Lassiter v. Department of Soc. Servs., 452 U.S.
18, 26-27, 101 S. Ct. 2153, 2159, 68 L. Ed. 2d 640, 649 (1981); Travelers Indem.
Co. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1996) (orig. proceeding). Except in a
few statutorily created circumstances, trial courts have discretion to appoint
{03681434.DOC / 2} 13
counsel for indigent litigants in civil cases. Tex. Gov’t Code Ann. § 24.016
(2014); Travelers Indemnity Co., 923 S.W.2d at 593; Gibson v. Tolbert, 102
S.W.3d 710, 712 (Tex. 2003)(listing the statutorily created circumstances for
required appointment of counsel).
The Texas Supreme Court has never held that a civil litigant must be
represented by counsel in order for a court to carry on its essential, constitutional
function. Travelers Indemnity Co., 923 S.W.2d at 594. Only in exceptional
circumstances, a trial court could appoint counsel to an indigent civil litigant, and
only after the litigant files an affidavit that he is too poor to employ counsel.
Gibson, 102 S.W.3d at 713. In evaluating what might constitute exceptional
circumstances, courts are to consider the unique circumstances of the case and
determine whether the trial court had no reasonable alternative but to appoint
counsel. Id. The Texas Supreme Court has stated it is “easier to determine what is
not exceptional than to pronounce a general proposition on what would be
exceptional.” Id.
In this matter, the Trial Court properly refused to appoint counsel for the
Appellant because he never filed a document that would qualify as an affidavit that
he was too poor to employ counsel. The filing of such affidavit, or a proper
substitute, is clearly a prerequisite for the appointment of counsel under Section
24.016 of the Texas Government Code. Tex. Gov. Code § 24.016 (2014).
{03681434.DOC / 2} 14
In an attempt to comply with Section 24.016, Appellant Eddie Anthony
Patterson filed Plaintiff’s Declaration of Inability to Pay Costs. (C.R. 8). Instead
of providing an affidavit, Appellant provided a document to the Trial Court
pursuant to Section 132.001 of the Texas Civil Practice and Remedies Code. This
section allows an inmate to provide an unsworn declaration in lieu of an affidavit if
the declaration is, among other things, (1) in writing, (2) “subscribed” by the
person making the declaration, and (3) made under the penalty of perjury. Tex.
Civ. Prac. & Rem. Code §132.001 (2014). Subscribed means to “sign at the end of
the document.” Shivers v. State, 873 S.W.2d 704, 708-09 n.3 (Tex. App.-El Paso
1994, no pet.).
The Appellant, Eddie Anthony Patterson, did not sign his declaration. (C.R.
8). Therefore, he did not comply with the requirements of Section 132.001 of the
Texas Civil Practice and Remedies Code. Without having provided an affidavit, or
a suitable substitute under Section 132.001, Eddie Anthony Patterson failed to
comply with the requirements of Section 24.016 of the Texas Government Code,
and the Trial Court did not abuse its discretion by denying the Appellants request
for counsel.
The Trial Court did not abuse it discretion by not appointing counsel for the
Appellant for an additional reason: this case is not the type of exceptional
circumstance that warrants the appointment of counsel. The present case is a
{03681434.DOC / 2} 15
simple defamation case. There is nothing about this case that makes the public or
private interests at stake such that the administration of justice is best served by
appointing a lawyer to represent the civil litigant. Travelers, 923 S.W.2d at 594;
Gibson, 102 S.W.3d at, 712. There is nothing complex about this case. It is a
defamation case brought based upon a broadcast concerning a felony conviction.
(C.R. 26-31). If this is the type of case that requires the appointment of counsel,
every case brought by a pro se litigant that concerns a tort would require a trial
court to appoint counsel.
As previously stated by the Texas Supreme Court, it is “easier to determine
what is not exceptional than to pronounce a general proposition on what would be
exceptional.” Gibson, 102 S.W.3d at 713. It is clear that this is not the type of
matter that is exceptional. Further, there are no appellate court opinions finding a
case is exceptional under the Section 24.016. Given the nature of this case, if some
of the more unusual cases have been held to not be exceptional, this matter can not
be exceptional. Therefore, the Trial Court did not abuse its discretion in not
appointing counsel to the Appellant.
Either of the two above reasons, standing alone, demonstrate that the Trial
Court did not abuse its discretion in refusing to appoint counsel. Therefore, this
Court should affirm the Trial Court’s denial of the Motion to Appoint Counsel.
{03681434.DOC / 2} 16
Issue No. 2: The Trial Court Did Not Err In Granting Centex Television’s
Motion to Dismiss.
A. Pursuant to Chapter 16 of the Texas Civil Practice & Remedies Code,
Appellant’s claims were barred by the statute of limitations.
The claims brought by Eddie Anthony Patterson are barred by the statute of
limitations. The broadcast about which Eddie Anthony Patterson complains, and
which forms the basis for all of Eddie Anthony Patterson’s claims in the present
case, aired on March 29, 2010 broadcast. (C.R. 5-6). Therefore, all of Eddie
Anthony Patterson’s claims accrued on March 29, 2010. However, the present
case was not filed until March 13, 2015, almost five years from the date in
question. Therefore, the claims are barred by the statute of limitations.
The statute of limitations for libel, slander, and defamation is one year.
Kelley v. Rinkle, 532 S.W.2d 947, 949 (Tex. 1976). Under Texas law, a claim for
negligence or personal injury must be brought within the two-year statute of
limitations. Tex. Civ. Prac. & Rem. Code § 16.003(a). Further, the statute of
limitations for intentional infliction of emotional distress is two years. Id.
Additionally, the United States Supreme Court has held that the limitations for
Constitutional violations are best characterized as personally injury claims, which
have a two year statute in Texas. Wilson v. Garcia, 471 U.S. 261, 278 (1985).
The gist of Eddie Anthony Patterson’s complaint is defamation. Therefore,
his lawsuit is barred by the one year limitations for defamation. Even giving Mr.
{03681434.DOC / 2} 17
Patterson all benefits concerning the limitations period, his lawsuit is barred by
limitation. All conceivable tort claims that Plaintiff could be alleging either have a
one year or a two year statute of limitations, at most. Appellant filed this lawsuit
over 4 years and 11 months after the events of the occurrence in question.
Therefore, it is clear that all of Plaintiff’s claims; whether libel, slander,
defamation or constitutional violations, are barred by the applicable statute of
limitations.
For the first time in this appeal, Eddie Anthony Patterson tries to toll the
statute of limitations by referencing that “this LAWSUIT was a SUPPLIMENTAL
PLEADING to an Original Lawsuit that was Filed in a timely fashion in the Wrong
Jurisdiction.” (Appellant’s Brief pg. 4). This argument fails for several reasons.
First, there was nothing in the record for the Trial Court to consider regarding a
previous lawsuit. Second, the previous lawsuit does not meet the statutory
requirements to toll a statue of limitations. Third, even if this Court is to consider
the previous lawsuit, this matter is still untimely. Therefore, dismissal of the
Appellant’s claims was proper based upon the statute of limitations.
The statute of limitations is not tolled because Eddie Anthony Patterson did
not provide the trial court with a record of his previous lawsuit. (C.R. 1-61).
Therefore, there was nothing for the Trial Court to consider that would have
allowed the statute of limitations to be tolled under § 16.064 of the Texas Civil
{03681434.DOC / 2} 18
Practice & Remedies Code. Therefore, the dismissal by the Trial Court was proper
and the judgment should be affirmed.
Even through there is nothing in the record to support these facts, Appellant
Eddie Anthony Patterson brought suit against Beth Toben, TV Channel 25
Broadcast Station, the Court Reporter Employed by McLennan County of Texas,
and the McLennan County Records Department. (Appendix B, 1-23). This
lawsuit was filed in Federal Court on February 27, 2012 by Eddie Anthony
Patterson. (Appendix B, 1-9). Plaintiff then filed a Motion to Dismiss in Lieu of
Objection on July 14, 2014. (Appendix B, 16). The federal lawsuit brought by
Eddie Anthony Patterson was then dismissed by Order of the Honorable Walter S.
Smith, Jr. on July 16, 2014. (Appendix B, 18). This Order dismissing the lawsuit
does not indicate that it is a dismissal because of lack of jurisdiction. (Appendix B,
18). A dismissal in federal court must indicate that the dismissal is for lack of
jurisdiction for section 16.064 to apply. Allen v. Port Drum Co., 777 S.W.2d 776,
778 (Tex. App.—Beaumont 1989, writ denied). The federal court order did not
indicate that the lack of jurisdiction was the reason for dismissal. (Appendix B,
18). Section 16.064 does not apply. Therefore, the tolling statute does not apply
and Eddie Anthony Patterson’s claims are barred by the statute of limitations.
Finally, even if this Court were to assume that § 16.064 applies and tolls the
statute of limitations during the pendency of the federal matter, Eddie Anthony
{03681434.DOC / 2} 19
Patterson’s claims are barred by the statute of limitations. The broadcast that
Appellant complains of occurred on March 29, 2010. (C.R. 5-7, 22-25). The
federal lawsuit was not filed by Eddie Anthony Patterson until February 27, 2012.
(Appendix B, 1-9). The time between the incident in question and the filing of the
federal lawsuit was 1 year, 10 months and 28 days. Thus, the claims asserted by
Eddie Anthony Patterson, which amount to nothing more than an allegation of
defamation, are barred by the 1 year statute of limitations.
However, if we continue the analysis, the federal lawsuit was dismissed on
July 16, 2012. (Appendix B, 18). If the 60 days are then added following the
dismissal (pursuant to Section 16.064), we have the date of September 14, 2012.
The lawsuit in question was not filed until March 13, 2015. (C.R. 5). The time
between the 60th day after dismissal of the federal lawsuit and the filing of this
lawsuit adds an additional 1 year, 5 months and 20 days to the timeline. This
means if this Court were to assume that the tolling statute applies, which it does
not, then 3 years, 4 months and 17 days passed in which there was no tolling of
limitations before the Appellant filed suit. Therefore, giving Eddie Anthony
Patterson all the benefits of the doubt under the statute of limitations, all
conceivable claims that he could have asserted were barred.
There is no conceivable factual basis in the record or otherwise that would
allow Eddie Anthony Patterson’s claims to exist because they were barred by the
{03681434.DOC / 2} 20
statute of limitations. Therefore, the Trial Court properly dismissed Eddie
Anthony Patterson’s claims. Therefore, this Court should affirm the trial court’s
dismissal of this suit.
B. Appellant’s claims for defamation were properly dismissed because the
Appellant cannot make a prima facie cause of action for such claim.
The Trial Court properly dismissed the claims of Eddie Anthony Patterson
because he could not establish a prima facie claim of defamation. In order to
establish a prima facie cause of action for defamation, a plaintiff must prove that
the defendant (1) published a false statement about the plaintiff, (2) that statement
was defamatory, and (3) that the defendant made the statement while acting with
either actual malice, if the plaintiff was a public official or public figure, or
negligence, if the plaintiff was a private individual, regarding the truth of the
statement. Assoc. Press v. Cook, 17 S.W.3d 447, 452 (Tex. App.--Houston [1st
Dist.] 2000, no pet.). In Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767
(1986), the United States Supreme Court held that a “private-figure plaintiff must
bear the burden of showing that the speech at issue is false before recovering
damages for defamation from a media defendant.” Philadelphia Newspapers, Inc.
v. Hepps, 475 U.S. 767 (1986).
Under Texas law, a media defendant need only prove that what they
published or broadcast was “substantially true” in order to defeat a claim for
{03681434.DOC / 2} 21
defamation or slander. Crites v. Mullins, 697 S.W.2d 715, 717 (Tex. App. --
Corpus Christi 1985, writ ref'd n.r.e.); Fort Worth Press Co. v. Davis, 96 S.W.2d
416, 419 (Tex. Civ. App. -- Fort Worth 1936, writ ref'd); see also Bell Publishing
Co. v. Garnett Engineering Co., 141 Tex. 51, 60 (1943). A statement is
substantially true, and thus not actionable, if its "gist" or "sting" is not substantially
worse than the literal truth. McIlvain v. Jacobs, 794 S.W.2d 14, 16 (Tex. 1990);
Dolcefino v. Randolph, 19 S.W.3d 906, 921 (Tex. App.--Houston[14th Dist.] 2000,
pet. denied). The Court need only determine whether, in the mind of the average
person who read the statement, the alleged defamatory statement was more
damaging to the plaintiff's reputation than a truthful statement would have been.
McIlvain, 794 S.W.2d at 16; Dolcefino, 19 S.W.3d at 921. Thus, if the gist of the
statement is no more damaging than an absolutely truthful statement would have
been then the statement is considered substantially true and non-actionable.
In the Trial Court, Eddie Anthony Patterson failed to make a prima facie
case of defamation because he failed to establish that Centex Television published
a false statement about him. A review of everything in the record shows that the
broadcast was true, or at a minimum, substantially true. (C.R. 26-30). Eddie
Anthony Patterson did not establish that the broadcast was false. Therefore, the
Trial Court properly dismissed Eddie Anthony Patterson’s claims and the
Judgment should be affirmed.
{03681434.DOC / 2} 22
There was also no showing in the Trial Court that Centex Television acted
with either actual malice or negligence. A necessary element for a claim of
defamation is wrongful conduct. There was no showing in the Trial Court that
Centex Television acted with malice or negligence. Without a showing or an
essential element of Appellant’s claim for defamation, the claim must be
dismissed.
With an absence of either one of these two elements, Appellants case must
fail. With missing elements to his claim, the Trial Court properly dismissed the
claims of Eddie Anthony Patterson.
C. Appellant’s claims for constitutional violations were properly dismissed
because Centex Television is not a state actor and because Plaintiff
nonsuited these claims by his own admissions.
Eddie Anthony Patterson’s constitutional claims were also properly
dismissed by the Trial Court. To be liable for a constitutional violation, the
Defendant must be a state actor. To state a claim for relief, the Plaintiff must
establish that he was deprived of a right secured by the Constitution of the United
States, and that the alleged deprivation was committed under color of state law.
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (U.S. 1999). The state-
action requirement excludes from its reach “merely private conduct, no matter how
discriminatory or wrongful.” Id. Here, Centex Television is a privately owned
business. (C.R.21). It is not an arm of the government. (C.R. 21). As such,
{03681434.DOC / 2} 23
Centex Television cannot be liable to the Plaintiff for any constitutional violations.
Therefore, the Trial Court properly dismissed Eddie Anthony Patterson’s
Plaintiff’s claims for constitutional violations.
Appellants claims for constitutional violations were also properly dismissed
because they were abandoned by Eddie Anthony Patterson. Appellant admits that
the claims for constitutional violations are not longer part of this suit. (Appellant’s
Brief pg. 4). Therefore, the Trial Court Properly dismissed these constitutional
claims and the Judgment should be affirmed. Either of these two reasons are
sufficient to affirm the Trial Court’s dismissal of the constitutional claims by Eddie
Anthony Patterson.
Conclusion & Prayer
The Trial Court properly denied Appellants request for counsel. Further,
there are number of reason the dismissal should be affirmed. First, the statute of
limitations had run on any conceivable claim the Appellant could have filed.
Second, essential elements for a defamation claim are missing. Finally, there was
not state action for a constitutional claim. Therefore, this case should be affirmed.
For the foregoing reasons, the Court should affirm the decision of the Trial
Court.
{03681434.DOC / 2} 24
Respectfully submitted,
NAMAN, HOWELL, SMITH & LEE, PLLC
400 Austin Avenue, 8th Floor
P. O. Box 1470
Waco, Texas 76703-1470
(254) 755-4100
FAX (254) 754-6331
BY: /s/ Neal E. Pirkle
Neal E. Pirkle
State Bar No. 00794464
Robert Little
State Bar No. 24050940
ATTORNEYS FOR APPELLEE
CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that he has determined the word count in
the foregoing document to be 4,874 and further certifies that all words in the body
of the brief are 14 pt. type and all words in footnotes are 12 pt. type.
/s/ Neal E. Pirkle
Neal E. Pirkle
{03681434.DOC / 2} 25
Certificate of Service
I hereby certify that a true and correct copy of the foregoing was sent to the
person(s) named below, at the address shown by placing the same in a properly
addressed envelope, postage pre-paid, and mailing the document by first class mail
(and by other means stated below) on December 17th 2015.
Mr. Eddie Anthony Patterson
Inmate T.D.C.J. #01635370
C.T. Terrell Unit
1300 FM 655
Rosharon, Texas 77583
/s/ Neal E. Pirkle
Neal E. Pirkle
{03681434.DOC / 2} 26
No. 06-15-00046-CV
In the Court of Appeals
For the Sixth Judicial District
Sitting at Texarkana, Texas
EDDIE ANTHONY PATTERSON,
Appellant
v.
TV CHANNEL 25 BROADCAST STATION AND
ITS REPORTER ON MARCH 29, 2010,
Appellee
Appealed from 170th Judicial District Court
McLennan County, Texas
Appendix
Order on Plaintiff’s Motion for Recruitment of IOLTA Funded or A
Pro Bono Counsel and On Defendant’s Motion to Dismiss
Eddie Anthony Patterson v. Beth Toben, et. al, Cause No. W-12-CV-045, B
In the United States District Court for the Western District of Texas,
Waco Division
Indictment of Eddie Anthony Patterson C
{03681434.DOC / 2} 27
NO. 2015-905-4
EDDIE ANTHONY PATTERSON I
CONFINED AT THE C.T. TERRELL UNIT I
INMANTE T.D.C.J. #01635370; I
I
v. I
I
T.V. CHANNEL 25 BROADCAST STATION I
AND ITS REPORTER ON MARCH 29, I
2010: 1909 S. NEW ROAD, WACO, TX I
76711 I 170m JUDICIAL DISTRICT
On of June, 2015, the Court considered Plaintiff's Motion for
Recruitment of lolta Punded or Pro Bono Counsel (which the Court interprets to be and is
referred to in this Order as "Plaintiff's Motion for Recruitment of Io1ta Funded or Pro Bono
Counsel") and Defendant's Motion to Dismiss and after considering said Motions and the filings
in this Court, the Court rules as follows:
The Court hereby determines that Plaintiff's Motion for Recruitment of 101ta Funded or
Pro Bon Counsel is not meritorious; and therefore, Plaintiff's Motion for Recruitment of lolta
Funded or Pro Bono Counsel is DENIED.
The Court hereby determines that Defendant's Motion to Dismiss is meritorious; and
therefore, Defendant's Motion to Dismiss is GRANTED.
All relief not expressly granted is hereby denied.
This is a final appealable judgment.
SIGNEDthis K day of June, 2015. (
1REH``
(0334916S.DOCX/)
Appendix A
Case 6:12-cv-00045-WSS Document 1 Filed 02/27/12 Page 1 of 9
. . . FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE \N.E5n;BN DISTRICT OF TEXAS
FEB 2 7 ZOlZ
WAsGo DIVISION
Form To Be Used By A Prisoner in Filing a Complaint
Under the Civil Rights Act, 42 U.S.c. § 1983
E.t>D:r.E ANTHoNY PAITERSo)J ~D'1ts~,\Ie.lx.113Z-o
Place of Confinement
CASE NO: W12 CA04 5
(Clerk will assign the number)
v.
'e>ETH ""toBEN, a.~4 or neC' ott;uoJ
Defendant's name and address
"T.". c..btl.N.Ne..L!t5 \>(oo..d.c.(l.';,t 510.1io"';
Defendant's name and address
Defendant's name and address
(DO NOT USE "ET AL.")
INSTRUCTIONS - READ CAREFULLY
NOTICE:
Your complaint is subject to dismissal unless it conforms to these instructions and this form.
I. To start an action you must file an original and one copy of your complaint with the court. You should keep a
copy of the complaint for your own records.
2. Your complaint must be iegibly handwritten in ink. or typewritten. You, the plaintiff, must sign and declare
under penalty of peIjury that the facts are correct. If you need additional space, DO NOT USE THE
REVERSE SIDE OR BACK SIDE OF ANY PAGE. ATTACH AN ADDITIONAL BLANK PAGE AND
WRlTEON IT.
3. You must file a separate complaint for each claim you have unless the various claims are all related to the
same incident or issue or are all against the same defendant, Rule 18, Federal Rules of Civil Procedure. Make
a short and plain statement of your claim, Rule 8, Federal Rules of Civil Procedure.
4. When these forms are completed, mail the original and one copy to the Clerk of the United States Court for
the appropriate District of Texas in the Division where one or more named defendants are located, or where
the incident giving rise to your claim for relief occurred. The list labeled as "VENUE LIST" is posted in your
unit law library. It is a list of Texas prison units indicating the appropriate District Court, the Division and an
address of the Divisional Clerks.
ATC 1983 (Rev. 04/06) Page I of 5
It
Appendix B - 000001
, ..
Case 6:12-cv-00045-WSS Document 1 Filed 02/2t9-i~F~[Jt~ ~"h;bi~ A
.Ca..e lO, '\N
(\ t\.\ t,\~ CApa.c,ty. l~ 0<1 ~. ~ew Roo.d. ' '-l<'A.ce. \x. rft, 111
1
..,WP£-o ,-no "lie. O~
_\)e±e,NdCvJt M3 - - - .-----------------------
--M.c..L.~N N A\\.\ (.oU.NI'( fe({)r~s d..,e~Q.('tMeNt 04\\<1. Of -theA, otflcio..l ('e<.oraer
~H MClCc-h ;...'l , ~ 10. d-.t6 Nt, 5±h~j,N~o..CJ:)~\u-",'f.L:.!..._J.u."LlJ"'-().L.1_ _ _ _ __
-,-QefWo.wtil4
Appendix B - 000002
Case 6:12-cv-00045-WSS Document 1 Filed 02/27/12 Page 3 of 9
FILING FJj:E AND IN FORMA PAUPERIS
I. In order for your complaint to be filed, it must be accompanied by the filing fee of $350.00.
2. If you do not have the necessary funds to pay the filing fee in full at this time, you may request permission to
proceed in forma pauperis. In this event you must complete the application to proceed in forma pauperis
(IFP), setting forth the information to establish your inability to prepay the fees and costs or give security
therefore. You must also include a six (6) month history of your Inmate Trust Account. You can acquire the
application to proceed IFP and appropriate Inmate Account Certificate from the law library at your prison
unit.
3. 28 U.S.c. 1915, as amended by the Prison Litigation Reform Act of 1995 (PLRA), provides, " ... ifa prisoner
brings a civil action or files and appeal in forma pauperis, the prisoner shall be required to pay the full
amount of a filing fee." Thus, the Court is required to assess and, when funds exist, collect, the entire filing
fee or an initial partial filing fee and monthly installments until the entire amount of the filing fee has been
paid by the prisoner. If you submit the application to proceed in forma pauperis, the Court will apply 28
U.S.c. 1915 and, if appropriate, assess and collect the entire filing fee or an initial partial filing fee, then
monthly 'installments from your Inmate Account, until the entire $350 filing fee has been paid.
4 .. If you intend to seek in forma pauperis status, then do not send your complaint without an Application to
Proceed IFP, and the Certificate of Inmate Trust Account. Complete all the essential paperwork before
submitting it to the Court.
CHANGE OF ADDRESS
It is your responsibility to inform the Court of any change of address and its effective date. Such notice
should be marked "NOTICE TO THE COURT OF CHANGE OF ADDRESS" and shall not include any
motions(s) for any other relief. Failure to file a NOTICE TO THE COURT OF CHANGE OF ADDRESS may
result in the dismissal of your complaint pursuant to Rule 41 (b), Federal Rules of Civil Procedures.
I. PREVIOUS LAWSUITS:
A. Have you filed any other lawsuits in the state or federal court relating to
imprisonment? YES V NO
B. If your'answer to "A" is yes, describe each lawsuit in the space below. (If there is more than one lawsuit,
describe the additional lawsuits on another piece of paper, giving the same information.)
I. Approximate date of filing lawsuit: NIA
2. Parties to previous lawsuit: I' ~, / A
Plaintiff(s): _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _---I_,..:!.soL_.L_..(.._~_
Defendant(s): --------------t``I-H[A~-
3. Court (If federal, name the district; if state, name the county) _ ....N-"-L-fL"-'--_______
4. Docket Number: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ +-N. . . . ./uA'-'-_
5. Name of judge to whom case was assigned: _ _ _ _ _ _ _--'"N-"'-J/"-L-A->--______
6. Disposition: (Was the case dismissed, appealed, still pending?)
tiA
7. Approximate date of disposition: _ _ _ _ _ _ _ _ _ _ _ _.....N-30-/L·-'-A...!-
ATC 1983 (Rev. 04/06) Page 2 of5
Appendix B - 000003
Case 6:12-cv-00045-WSS Document 1 Filed 02/27/12 Page 4 of 9
II. PLACE"'OF PRESENT CONFINEMENT: 1,O.(..tr. (U) MfM.347B, Uw.tf5vr]lt, 7'1,71320
III. EXHAUSTION OF GRIEVANCE PROCEDURES:
Have you exhausted both steps of the grievance procedure in this institution? YES NI A NO
Attach a copy of the Step 2 grievance with the response supplied by the prison system.
IV. PARTIES TO THE SUIT:
A. Name of address of plaintiff: EDOIE t\ti~\J-ow. 'f Pf\\1tR~ON ~ O\``5~\ 0
·T.D~C.:r.(~) l(P4 fM3'tJS, HlL!\li$v'lle J~' 1132..0
B. Full name of each defendant, his official position, his place of employment, and his full mailing address.
Defendant #1: 2>~J\4 -roBEtJ A\1onu:y
I he S\o.te. 0\ \i;>c..s
W NO. Aoo«3-J.9So
Md,e.NNQN G,tLJ\l+y \)is1rid iA\--\o\bl.e.y cfti<_e.. g (q 1\\. lo-fh. st. Rfv\.~o IAI~Cl', TK.767o I
Briefly describe the act(s) or omission(s) of this defendant, which you claimed harmed you.
lk>ON \n.\.oCMMM.tUi\c4..ho\~
Defendant #3: G,u..r-t reporter ON M'1.~HOy.l~f\1j {ols.e \t-l1o~\Oh\,_,lo.-hd``c:ed '"\0 =the
.Me.cU~),``\~,c. (,L~rd.:~_},_g-~;(t.`` __s'``i~.,_~, ``o~ 0:\ re(.OMMed.o.,"\\ort ot
~e ).lo. __ Joe ~ ~,H~t_~Ll``h~_1(t~ &~U.('T ()\ Mc.le.NNO..t./ Uu..('.l-q, '"ij
0'" M()..(=c.~ ~\ d.-o\O, Wh;Ch \0'1 doi.N.3 So cL\d\tJ+,-tt
M'( ("~\'\'~Oi" ~4___ffi~ __'Q``~ss '0,( "'-.\\lOV\llNg a..Nd.. or \t\\\w~\O\-lo..\\~ d.``l\le
I
Me of M~ CoNs1\kha\tOi M:\-iot'l -to h\s/ber eMp\o'{e.\, 't4~
j~e..u pu11luJIV bfoClJ.co..steJ. -\'n~ '0'( wJ1¥-ot \``~IS..i.nrl 'cl~Ch b", d.O\~
~o d-Ad. CaJ-l.t;?-e \-)().,('M -To ~e, ?lcUV\l-htt, M~ ("'e~v..\-dt\~, 4re.. of fe,(OM.M~1l~
be.-{ore ('de.a.s`` O-Mtl <,C' fe.(.Orcll~}Q_1?u.b\;0.~rJs,Io'lJ!o-\ ~lN``dJcl
~('\ \Ie M.e.)?l ~",~R of M'( c.oN.Sht~\10NcJ C4.\Clor ~-\nkt~') ('\3~"s \~ 1~e.,f'o..~
iN. b\s ther \Nd.\\(·,dua..l o...od. 0("' c-fficiol. ~C:lr'l.(\.I.(\d.e.(" ~\()r ot si~t~ \4.W)
Appendix B - 000005
Case 6:12-cv-0004S-WSS Document 1 Filed 02/27/12 Page 6 of 9
V. STATEMENT OF CLAIM:
State here in a short and plain statement the facts of your case, that is, what happened, where did it happen,
when did it happen, and who was involved. Describe how each defendant is involved. You need not give any
legal argument or cite any cases of statutes. If you intent to allege a number of related claims, number and set
forth each claim in a separate paragraph. Attach extra pages if necessary, but remember that the complaint
must be stated briefly and concisely. IF YOU VIOLATE THIS RULE, THE COURT MAY STRIKE YOUR
COMPLAINT.
defeooo.l'·d~.i ~t.1s w·\u.. shOv.l ~hf,\CBdbTobe.tJ) U aSter 5\%",)1& e cA.\\ett,~\)O!is -to be fC\Med 10 -the
"T·v" MecMQ., o..t-1~s r~Oe.\JeJ. -\0 b~ \de"·lseA. v-i '",0111 <.hedd N~ \\-~ \~U.{/ber
\``..,~J..U(Ll Md..Or ctbd<1\.\ Yl~o..c.a't, 1.. cUSo be1i~\le "The \.", S\-J-\Otl Sholt!cl
b~ U~\t.. ~.,.. "oT <.-~eJt..·\I\)8 \ N,.(ar``K,,, fe.ue,,~ -\-rOM. \\is \e.\?O~\ec bt~ofe ?u.b\;ca.lLy
I
See.. D e+eI\lJ.u:l-¥~L_..L``Cl~_'_~\~'~_H:I\)._. ~JIf!:-r~j.N.kr``-b:D.b\ . j\~6.~e,(t );)l·-b,p~¥·­
Cpt.u·+_(e~orT~.c,,:t{) J.>-e. .:tf'v.,£. o..«~ <..otr``\l ~..l<.:.e No.LooCZ-tl94--GI
be,t,r-e.. r-eJeo.:>;"'r O-Nd 0(' re~.r.d.ltia-_~Y~}.\c.._K`` __Q.cl_.. M~t,... J.-l.
J...o \0. iN th€lr \ndi \( ;dM~__~_!l£.. _9..£{-ig_~_``d:t````:~ ?\``\-\«~.? _
_\h:\\tN-eSS spoke 'N'rth \N.-¥~__a.-\_1`` M~NN(ul U)\ANt~ ~eLords 'De.~1-
M-e«t) (M-.l (!)~£.ciJJ.LCo~tt_~.l~t¥-tf.-u... AN, HONY HrrrER.50N
(Date) (printed Name)
&J;..``
(SIgnature fPlamtlff)
PLAINTIFF'S DECLARATIONS
1. I declare under penalty of perjury all facts presented in this complaint and attachment thereto are true and
correct.
2. I understand if I am released or transferred, it is my responsibility to keep the Court infonned of my
current mailing address and failure to do so may result in the dismissal of this lawsuit.
3. I understand that I must exhaust all available administrative remedies prior to filing this lawsuit.
4. I understand I am prohibited from bringing an in forma pauperis lawsuit if I have brought three or more
civil actions in a Court of the United States while incarcerated or detained in any facility, which lawsuits·
are dismissed on the ground they were frivolous, malicious, or failed to state a claim upon which relief
may be granted, unless I am under imminent danger or serious physical injury.
5. I understand even if I am allowed to proceed without prepayment of costs, I am responsible for the entire
$350 filing fee and costs assess by the Court, which shall be deducted in accordance with the law from the
inmate account by my custodian until the filing fee is paid.
Signed this 4. c2. ...ci day of_---=-hl_·---=-.;('-w_(L('_4"f_ _, 20 \ ~
(Day) (Month) (Year)
EDDIE ANTHoN" Vf\Trt:R.~M
(Printed Name)
````
(Signature o~ Plaintiff)
WARNING: The Plaintiff is hereby advised any false or deliberately misleading information provided in
response to the following questions will result in the imposition of sanctions. The sanctions the Court may
impose include, but are not limbed to monetary sanctions and/or the dismissal of this action with prejudice.
Page 5 of5
-
ATe 1983 (Rev. 04/06)
Appendix B - 000008
:~ '··l;~;::~·.v·````:1r:'"``;f
Appendix B - 000009
;-
i Y
I __ 9'>
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Case 6:12-cv-00``.-X"!SS Docume~ 23 Filed 10/31/13 Page 5 of 6
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Case 6:12-cv-00045-WSS Document 23 Filed 10/31/13 Page 6 of 6
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Case 6:12-cv-00045-WSS Document 26 Filed 07/14114 Page 1 of 2
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Case 6:12-cv-00045-WSS Document 26 Filed 07114/1Ll Page 2 of 2
co.
-
Appendix B - 000015
Case 6:12-cv-00045-WSS Document 27 Filed 07116/14 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
EDDIE ANTHONY PATTERSON, §
Plaintiff, §
§
v. § CIVIL ACTION NO. W-12-CV-045
§
BETH TOBEN, et al., §
Defendants. §
ORDER
This case was referred to the United States Magistrate Judge for the Western
District of Texas, Waco Division, for findings and recommendations, pursuantt028 U.S.C.
§ 636(b). The Court received the Magistrate Judge's report, which was filed on June 19,
2014. In lieu of objections, Plaintiff has filed a motion to dismiss this case without
prejudice. Having reviewed the Plaintiffs motion and the file in this case, the Court is
persuaded the motion is meritorious and should be granted. Accordingly, it is
ORDERED that Plaintiffs Motion to Dismiss is GRANTED and Plaintiffs complaint
is DISMISSED without prejudice. It is further
ORDERED that any motions not previously ruled upon by this Court or the
Magistrate Judge are DENIED.
SIGNED this I/;.. . day of July, 2014.
WALTER S. SMITH, JR. I
United States District Judge
Appendix B - 000016
CMIECF LIVE - U.S. District Court:txwd Page 1 of5
CLOSED
U.S. District Court [LIVE]
Western District of Texas (Waco)
CIVIL DOCKET FOR CASE #: 6:12-cv-00045-WSS
Patterson v. Toben et al Date Filed: 02/27/2012
Assigned to: Judge Walter S. Smith Date Terminated: 0711612014
Cause: 42:1983 Prisoner Civil Rights Jury Demand: None
Nature of Suit: 550 Prisoner: Civil
Rights
Jurisdiction: Federal Question
Plaintiff
Eddie Anthony Patterson represented by Eddie Anthony Patterson
#1635370
1300 FM 655
4Boot-009
Rosharon, TX 77583
PROSE
V.
Defendant
Beth Toben
In her Individual and or Official
Capacity
Defendant
Reporter for T.V Channel 25
In his/her Individual and or Official
Capacity
Defendant
Court Reporter Employed by
McLennan County of Texas
In his/her Individual and or Official
Capacity
Defendant
McLennan County Records
Department and their Recorder
In their Indiidual and or Official
Capacity
IDate Filed # IDocket Text
Appendix B - 000017
https:llecf.txwd.uscourts.gov/cgi-binIDktRpt.pl?97178838622415-L_I_0-1 11/24/2015
CMIECF LIVE - U.S. District Court:txwd Page 2 of5
02/27/2012 1 COMPLAINT, filed by Eddie Anthony Patterson.(tb,) (Entered: 02/28/2012)
02/27/2012 2 MOTION to Proceed in forma pauperis by Eddie Anthony Patterson. (tb,)
(Entered: 02/28/2012)
02/27/2012 3 MOTION for Appointment of Counsel by Eddie Anthony Patterson. (tb,)
(Entered: 02/28/2012)
02/27/2012 ~ MOTION for an Order of Notice and Service by Eddie Anthony Patterson.
(tb, ) (Entered: 02/28/2012)
02/27/2012 5 MOTION for Production of Documents by Eddie Anthony Patterson. (tb, )
(Entered: 02/28/2012)
02/28/2012 .6 Letter to Eddie Anthony Patterson advising of case number, filing instructions
and other general information. (tb, ) (Entered: 02/28/2012)
03/0112012 1 ORDER DENYING J Motion to Appoint Counsel; DENYING 1. Motion for
An Order of Notice and Service; DENYING .i Motion to Produce. Signed by
Judge Walter S. Smith. (ad, ) (Entered: 03/0112012)
03/01/2012 ~ ORDER Directing Monthly Payments be made from Prison Account of Eddie
Anthony Patterson, TDCJ #1635370. ORDER REFERRING CASE to
Magistrate Judge Jeffrey C. Manske. ORDERED that plaintiff shall pay an
initial partial filing fe of$2.41 within 30 days of the entry date of this Order.
Signed by Judge Walter S. Smith. (ad,) (Entered: 03/0112012)
03/02/2012 Copy of 1 Order and .8. Order Directing Prisoner Payments mailed to Eddie
Anthony Patterson. (ad, ) (Entered: 03/02/2012)
04/10/2012 .2 Filing fee received in the amount of$2.41, receipt number 600008793. (ad,)
(Entered: 0411112012)
0411212012 10 NOTICE of Default by Eddie Anthony Patterson. (ad,) (Entered: 04/13/2012)
04/25/2012 11 MOTION for Service of Process by United States Marshal Service by Eddie
Anthony Patterson. Motions referred to Judge Jeffrey C. Manske. (ad, )
(Entered: 04/26/2012)
06/20/2012 11. SECOND Request for Service of Process by Eddie Anthony Patterson. Motions
referred to Judge Jeffrey C. Manske. (mc5, ) (Entered: 06/2112012)
07112/2012 .u Petition for Writ of Mandamus, filed by Eddie Anthony Patterson.(tb, )
(Entered: 07113/2012)
09/27/2012 Text Order DENYING 11 Motion entered by Judge Jeffrey C. Manske. Plaintiff
requests that the Court order service upon the defendants. However, because the
Plaintiff is proceeding in forma pauperis, 28 U.S.C. 1915 requires the Court to
first review the merits of his claims. Such review is ongoing, and service is
inappropriate at this time. The Court will revisit this issue as warranted by
procedural developments in this action. Ghg) (Entered: 09/27/2012)
09/27/2012 Text Order DENYING 11. Motion entered by Judge Jeffrey C. Manske. Plaintiff
requests that the Court order service upon the defendants. However, because the
Plaintiff is proceeding in forma pauperis, 28 U.S.C. 1915 requires the Court to
Appendix B - 000018
https:llecf.txwd.uscourts.gov/cgi-binIDktRpt.pl?97178838622415-L_l_0-1 11124/2015
CMIECF LIVE - U.S. District Court:txwd Page 3 of5
first review the merits of his claims. Such review is ongoing, and service is
inappropriate at this time. The Court will revisit this issue as warranted by
procedural developments in this action.(jhg) (Entered: 09/27/2012)
03/28/2013 14 MOTION for Service of Process by Eddie Anthony Patterson. Motions referred
to Judge Jeffrey C. Manske. (tb) (Entered: 03/28/2013)
07/29/2013 15 NOTICE of Change of Address by Eddie Anthony Patterson (tb) (Entered:
07/30/2013)
09103/2013 l§ MOTION for Service of Process by Eddie Anthony Patterson. Motions referred
to Judge Jeffrey C. Manske. (tb) (Entered: 09104/2013)
09109/2013 17 REPORT AND RECOMMENDATIONS re 1 Complaint filed by Eddie
Anthony Patterson. Signed by Judge Jeffrey C. Manske. (tb) (Entered:
09/10/2013)
09109/2013 CASE NO LONGER REFERRED to Magistrate Judge Jeffrey C. Manske. (tb)
(Entered: 09/10/2013)
0911112013 .lli Certified mail acknowledgment receipt for magistrate report and
recommendations re 11 Report and Recommendations as to Eddie Anthony
Patterson. (tb) (Entered: 09/1112013)
09/20/2013 19 MOTION to Alter or Amend Judgment by Eddie Anthony Patterson. (tb)
(Entered: 09/20/2013)
09/24/2013 20 ORDER REJECTING REPORT AND RECOMMENDATIONS for 11 Report
and Recommendations. ODERED that the Magistrate Judge's findings and
recommendation are NOT ADOPTED. ORDERED that the case is hereby re-
assigned to United States Magistrate Judge Jeffrey C. Manske for further
proceedings, including disposition of non-dispositive motions and findings and
recommendations regarding dispositive motions. Signed by Judge Walter S.
Smith. (mc5) (Entered: 09/24/2013)
09/24/2013 CASE REFERRED to Magistrate Judge Jeffrey C. Manske. (mc5) (Entered:
09/24/2013)
1010712013 .f.l MOTION to Produce Documents by Eddie Anthony Patterson. Motions
referred to Judge Jeffrey C. Manske. (tb) (Entered: 10108/2013)
10108/2013 Text Order DENYING 21 Motion to Produce entered by Judge Jeffrey C.
Manske. Came for consideration Plaintiffs Motion to Compel Discovery. In his
Motion, Plaintiff has served a discovery request upon the Court and seeks
production of a variety of documents and video footage. After careful review of
the Motion, the Court finds that the manner in which Plaintiffs discovery
request is made is not contemplated under the rules of civil procedure. As such,
Plaintiffs Motion is not properly before the Court, and it is hereby denied. Cab)
(Entered: 10108/2013)
10108/2013 Text Order GRANTING 1.2 Motion to Amend Judgment entered by Judge
Jeffrey C. Manske. Came for consideration Plaintiffs Motion to Alter or
Amend Judgment, which the Court construes as a Motion to Amend Complaint.
To the extent the Plaintiff is seeking leave to amend his Complaint, that motion
Appendix B - 000019
https:llecf.txwd.uscourts.gov/cgi-binlDktRpt.pl?9717883 8622415-L_l_0-1 11/24/2015
CMIECF LIVE - U.S. District Court:txwd Page 4 of5
is granted. To the extent Plaintiff is requesting reconsideration of his Motion to
Appoint Counsel, his request is denied.{ab) (Entered: 10/08/2013)
10108/2013 Text Order DENYING 1.1 Motion entered by Judge Jeffrey C. Manske. Plaintiff
requests that the Court order service upon the defendants. The Court granted
Plaintiffs Motion to Amend Complaint, but Plaintiff has not yet filed an
amended complaint. As such, service on the defendants is premature at this
time, and Plaintiffs Motion for Service of Process is denied.{ab) (Entered:
10108/2013)
10108/2013 Text Order DENYING l2. Motion entered by Judge Jeffrey C. Manske. Plaintiff
requests that the Court order service upon the Defendants. The Court granted
Plaintiffs Motion to Amend Complaint, but Plaintiff has not yet filed an
amended complaint. As such, service on the Defendants is premature at this
time, and Plaintiffs Motion for Service of Process is denied.{ab) (Entered:
10108/2013)
10108/2013 22 ORDER re l.2. MOTION to Amend Judgment filed by Eddie Anthony
Patterson. Construing this Motion as a Motion to Amend Complaint, this Court
granted the Plaintiffs Motion in a text order Oct. 8,2013. It is ORDERED that
Plaintiff has until Nov. 8,2013 to file his Amended Complaint. Signed by
Judge Jeffrey C. Manske. (tb) (Entered: 10/09/2013)
10/3112013 23 AMENDED COMPLAINT against All Defendants amending 1 Complaint.,
filed by Eddie Anthony Patterson.{tb) (Entered: 10/3112013)
06119/2014 24 REPORT AND RECOMMENDATIONS reI Complaint filed by Eddie
Anthony Patterson, CASE NO LONGER REFERRED to Magistrate Judge
Jeffrey C. Manske. Signed by Judge Jeffrey C. Manske. (mc5) (Entered:
06/23/2014)
07/02/2014 25 Certified mail acknowledgment receipt for magistrate report and
recommendations re 24 Report and Recommendations, Case No Longer
Referred to Magistrate Judge as to Eddie Anthony Patterson. (tb) (Entered:
07/02/2014)
07/14/2014 26 MOTION to Dismiss by Eddie Anthony Patterson. (mc5) (Entered: 07/14/2014)
0711612014 27 ORDER GRANTING 26 Motion to Dismiss. ORDERED that Plaintiffs Motion
to Dismiss is GRANTED and Plaintiffs complaint is DISMISSED without
prejudice. ORDERED that any motions not previously ruled upon by this Court
or the Magistrate Judge are DENIEd. Signed by Judge Walter S. Smith. (mc5)
(Entered: 07116/2014)
I PACER Service Center
I Transaction Recei~t
I 11/24/20]5 ]4:14:45
IPACER
,Logm:
Ina0001 :2604925:0 IClient Code: 1114643-44
1Description: IIDocket Report IIsearCh 116: 12-cv-00045-
Appendix B - 000020
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CMIECF LIVE - U. S. District Court:txwd Page 5 of5
I I IICriteria: I\wss
~===~
!Billable Pages:!L.../3_ _ _ _--l!L-!C_os_t:_ _---J! !O._30
..... _ _ _---J1
Appendix B - 000021
https:llecf.txwd.uscourts.gov/cgi-binlDktRpt.pl?9717883 8622415-L_1_0-1 11/24/2015
THE STATE OF TEXAS
VS.
EDDIE ANTHONY PATTERSON
PRIMARY OFFENSE
AGGRAVATED KIDNAPPING
§20.04, Texas Penal Code
I st Degree Felony
Bond $
em #: 41401
Booking # 746689
In The 19th District Court
McLennan County, Texas
§
§ 2009- 11 R4 -cJ- §
§
John Segrest, District Attorney
Beth Toben, Assistant
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:
THE GRAND JURY, for the County of McLennan, State of Texas, duly selected, empaneled, sworn,
charged, and organized as such at the September Term, A.D., 2009, of the 19th Judicial District Court for
said County, upon their oaths present in and to said Court at said term that EDDIE ANTHONY
PATTERSON, hereinafter styled Defendant, heretofore on or about the 24th day of June, A.D. 2009, and
before the presentment of this indictment, in the County and State aforesaid, did then and there intentionally
or knowingly, with the intent to inflict bodily injury on Valerie Hill Ray or violate or abuse sexually Valerie
Hill Ray or terrorizeValerie Hill Ray, intentionally or knowingly abduct Valerie Hill Ray by restricting the
movements of said Valerie Hill Ray without her consent so as to interfere substantially with her liberty, by
moving h~r from one place to another or confining her, with the intent to prevent her liberation, by secreting
or holding her in a place where she was not likely to be found .
. . . . AGAINST THE PEACE AND DIGNITY OF THE STATE.
"'.
(\~\\'il~i~\n\j``\``'``\I,mI'``~ ./
Indictment - Page I
'--- .
Appendix C
r
The State of Texas
County of Mclennan
I, Jon R. Gimble. Clerk of the District Court of McLennan County
Texas do hereby certify that the foregoing is a true and correct
copy of the Oligin(:ll as the same appears on file in the Dis1ri~
Court, McLennan Cou~. Texas wltnes``lhand and seat of
office t~ / [ tL day of-<-~-==-,,,,,,,,,,-_
A.D., - - b
a2b~
J1n~If'\.',~
Mc,n
By
ble ,as
Deputy
Appendix C