Dan Bruce Reeves v. K.C. Love

Reeves-DB v. Love et al

IN THE

TENTH COURT OF APPEALS

No. 10-96-149-CV

     DAN BRUCE REEVES,

                                                                                              Appellant

     v.

     K.C. LOVE, ET AL.,

                                                                                              Appellees

From the 87th District Court

Freestone County, Texas

Trial Court # 96-152-B

O P I N I O N

      Appellant Reeves appeals from an order of the trial court dismissing his pro se informa pauperis action as frivolous.

      Appellant, a prison inmate, filed suit on May 30, 1996, pro se informa pauperis, against Dr. K.C. Love, medical doctor; Melvin Wright, nurse practitioner; and Felicia Willis, hospital administrator/director of nursing, all employees of the Texas Department of Criminal Justice, Institutional Division, at Teague, Texas.

      Appellant alleged he was relocated to the Teague TDCJ-ID facility on February 13, 1996; that he arrived at the facility with medications prescribed by a physician for hypertension and severe headaches; that he had taken the prescribed medications for over 14 years and had entered TDCJ-ID in 1993 with prescriptions for same. Appellant alleged Appellee Wright discontinued his medication; that he requested to see Appellee Dr. Love several times; that Appellee Wright said he could not see Dr. Love and should take whatever medications were given him; that he spoke with Appellee Willis about his medications and his inability to see the medical doctor; and that he tried numerous times to see the medical doctor but to no avail.

      Specifically, concerning his medications, Appellant alleges that he was on Procardia and Esteric Aspirin when he came to the Teague facility which controlled his hypertension, but that these were refused him and he was put on HCTZ which did not control his hypertension; and without the medical doctor's examination. Appellant alleged he tried to get informal resolution through the Department's grievous procedure but was denied relief.

      Appellant alleged Appellees knowingly and intentionally prevented him from receiving accepted standards of medical care, and sought a restraining order to prevent Appellees from denying him medications that were ordered in January 1996, until he could be examined by a medical doctor. He also sought damages.

      Appellant filed a declaration of inability to pay court costs and a declaration that he had not previously brought any pro se suits which were dismissed as frivolous. He further declared that he was unable to obtain a certified copy of his prison trust account, although he had twice requested same, and asked that this requirement be waived. The trial court dismissed with prejudice Appellant's action on June 11, 1996, as frivolous.

      Appellant appeals contending the trial court erred and abused its discretion in that it erroneously dismissed his claims as frivolous and with prejudice when there were clearly arguable basis in law for his claims.

      Chapter 14 of the Civil Practice & Remedies Code applies to an inmate who has brought a suit with an affidavit or unsworn declaration of inability to pay costs. Section 14.003 allows a court to dismiss a suit before or after process is served if the court finds (1) the allegation of poverty is false, (2) the claim is frivolous or malicious, or (3) the inmate filed an affidavit or unsworn declaration that the inmate knew was false. In determining whether a claim is frivolous or malicious, the court may consider whether (1) the claim's realistic chance of success is slight, (2) the claim has no arguable basis in law or fact, (3) it is clear the party cannot prove facts in support of his claim, or (4) the claim is substantially similar to previous claims filed by the inmate.

      Section 14.004 requires the inmate to file a separate declaration identifying each prior suit brought by the inmate; and to file a certified copy of his trust account statement from the Department. Section 14.005 applies to complained-of acts subject to the required grievance procedure set up by the Department.

      The standard for review of a dismissal under Chapter 14 is whether a court abused its discretion. Hickson v. Moya, et al., 926 S.W.2d 397 (Tex. App.—Waco 1996, no writ).

      Appellant has alleged Appellees changed his treatment for hypertension that he had been on for many years, that was effective, to a treatment that was not effective; that he was denied the opportunity to see the medical doctor; that his complaints were dismissed without service of process on Appellees and a hearing to determine whether there was arguable basis in law or fact for his claims.

      We think appellant made sufficient allegations to preclude dismissal of his action as frivolous with prejudice. Onette v. Reed, 832 S.W.2d 450 (Tex. App.—Houston [1st Dist.], no writ).

      We reverse and remand this cause with instructions that Appellees be served with process, be given opportunity to answer, and that Appellant be given a hearing on his allegations.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Justice Cummings,

      Justice Vance and

      Chief Justice McDonald (Retired)

Reversed and remanded

Opinion delivered and filed February 12, 1997

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