Stoker Management, Inc. d/b/a JaniKing of Austin v. John Sharp, Comptroller of Public Accounts of the State of Texas; and Dan Morales, Attorney General of the State of Texas--Appeal from 353rd Distric

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State: Texas

Court: Texas Northern District Court

Docket No: 03-97-00330-CV

Case Date: 12/11/1997

Plaintiff: Leon Collins, Jr.

Defendant: Elizabeth Huckaby, Willie Hillas, Cheryl Berganas, Earl E. Fox, John Gibert, Leslie Woods & Gary Co

Preview:Leon Collins, Jr. v. Elizabeth Huckaby, Willie Hillas,
Cheryl Berganas, Earl E. Fox, John Gibert, Leslie
Woods & Gary Cook--Appeal from 78th District Court
of Wichita County
Leon Collins, Jr. v. Elizabeth Huckaby, Willie Hillas, Cheryl Berganas, Earl E. Fox, John Gilbert, Leslie Woods &
Garyu Cook /**/
IN THE
TENTH COURT OF APPEALS
No. 10-99-170-CV
LEON COLLINS, JR.,
Appellant
v.
ELIZABETH HUCKABY,
WILLIE HILLAS, CHERYL
BERGANAS, EARL E. FOX,
JOHN GILBERT, LESLIE
WOODS & GARY COOK,
Appellees
From the 78th District Court
Wichita County, Texas
Trial Court # 150,395-B
O P I N I O N
Appellant Leon Collins, Jr., an inmate, appeals from an order of the trial court dismissing his pro se in forma pauperis
lawsuit.
file:///C|/Users/Peter/Desktop/opinions/PDFs1/2967.html[8/20/2013 7:13:01 PM]

On October 26, 1998, Appellant filed suit pro se in forma pauperis against appellees Elizabeth Huckaby, Willie Hillas,
Lorie Wells, Cheryl Berganas, Earl E. Fox, Gary Cook, Leslie Woods and John Gilbert. Appellees are correctional
officers or officials at the James V. Allred Unit of the Texas Department of Criminal Justice Institutional Division in
Wichita County except Gilbert who is located in Huntsville. Appellees were sued in both their individual and official
capacities. Appellant alleged that appellees inflicted emotional distress on him by writing or approving false
disciplinary charges against him, and sought $100,000 compensatory damages plus punitive damages against each
appellee. Appellant's complaints have been through the prison grievance system with no relief being afforded.
Appellant filed suit in the district court but failed to file an affidavit as to prior cases he had brought, as required by
section 14.004 of the Texas Civil Practice and Remedies Code.
The trial court dismissed Appellant's suit on May 25, 1999, pursuant to chapter 14 of the Texas Civil Practice and
Remedies Code, expressly finding that Appellant had not complied with section 14.004(a)(1) by listing prior pro se in
forma pauperis lawsuits filed by him with identifying data.
Thereafter, on June 2, 1999, Appellant filed a motion for new trial attaching his affidavit listing 13 prior pro se in
forma pauperis lawsuits filed by him. Also, on June 2, 1999, Appellant filed a notice of appeal.
Appellant filed his brief on August 5, 1999, asserting: (1) the trial court abused its discretion when it dismissed his
lawsuit as frivolous; and (2) the trial committed reversible error by dismissing his lawsuit without a hearing.
Specifically, Appellant contends that the court dismissed his case for deficiencies which were technical, and that he
corrected the deficiencies when he filed his motion for new trial attaching his affidavit of prior-filed lawsuits.
At the time Appellant's suit was dismissed he had not filed the affidavit of prior lawsuits as required by section
14.004. The trial court did not abuse its discretion in dismissing appellant s lawsuit. Hickson v. Moya, et al, 926
S.W.2d 397 (Tex. App. Waco 1996, no writ). Thus the order of dismissal was proper when it was entered. Appellant
cannot boot strap deficiencies in his petition or his non-compliance with chapter 14 in a motion for new trial.
Appellant's contentions on appeal are overruled. The judgment is affirmed.
FRANK G. McDONALD
Chief Justice (Retired)
Before: Chief Justice Davis,
Justice Vance and
Chief Justice McDonald (Retired)
Affirmed
Opinion delivered and filed January 12, 2000
Do not publish
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