Elliott S. Winfield v. Terry D. Kilpatrick

Order filed September 16, 2010

                                                                       In The

  Eleventh Court of Appeals

                                                                   __________

                                                         No. 11-10-00035-CV

                                                    __________

                                ELLIOTT S. WINFIELD, Appellant

                                                             V.

                         TERRY D. KILPATRICK ET AL, Appellees

                                   On Appeal from the 259th District Court

                                                             Jones County, Texas

                                                     Trial Court Cause No. 021925

                                                                     O R D E R

            Elliott S. Winfield sued Terry D. Kilpatrick, Kevin P. Pinney, Michael B. Baysinger, Tammi J. Sarhani, Richard A. Avants, Brandy M. Hooper, Bonnie I. Young, Richard Leal, Gilbert Campuzano, Susan Wilburn, Linda Richey, Jack Douglas, John Moriarty, Robert Eason, and Nathaniel Quarterman for damages he allegedly incurred while an inmate at the French Robertson Unit of the Texas Department of Criminal Justice – Institutional Division.  We abate the appeal.

The clerk’s record reflects that all of the defendants filed answers and that all of the defendants but Richey and Douglas filed a motion to dismiss.  The trial court granted the motion and dismissed all of the defendants but Richey and Douglas. The clerk’s record does not contain a dismissal as to the claims against Richey and Douglas or any other documentation that would establish that the allegations against Richey and Douglas have been resolved or severed from this suit.

Therefore, it appears that the claims against Richey and Douglas are still pending and that the December 16, 2009 order is not a final, appealable order at this time.  The appeal is abated in order that the trial court may address the claims against Richey and Douglas by ruling on the merits or severing the claims against Richey and Douglas from the remaining defendants.  The clerk of the trial court is directed to prepare and forward to this court a supplemental clerk’s record containing the orders entered by the trial court.  The supplemental clerk’s record is due to be filed in this court on or before October 21, 2010.  We note that this appeal is removed from this court’s October 7, 2010 docket.

When the supplemental clerk’s record is filed in this court, the appeal will be reinstated.  Appellant’s various pro se motions and appellees’ motion to supplement the record will then be submitted to the court.

The appeal is abated.

                                                                                    PER CURIAM

September 16, 2010

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.