Thomas Ritchie McBride v. Lewis Saunders, et al--Appeal from 52nd District Court of Coryell County

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Laws-info.com » Cases » Texas » 10th District Court of Appeals » 1991 » Thomas Ritchie McBride v. Lewis Saunders, et al--Appeal from 52nd District Court of Coryell County

State: Texas

Court: Texas Northern District Court

Docket No: 10-90-00206-CV

Case Date: 04/25/1991

Plaintiff: Thomas Ritchie McBride

Defendant: Lewis Saunders, et al--Appeal from 52nd District Court of Coryell County

Preview:Thomas Ritchie McBride v. Lewis Saunders, et al--
Appeal from 52nd District Court of Coryell County
McBride v. Saunders /**/
NO. 10-90-206-CV
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO
*
THOMAS RITCHIE McBRIDE,
Appellant
v.
LEWIS SAUNDERS, ET AL,
Appellees
*
From 52nd Judicial District Court
Coryell County, Texas
Trial Court # 25,2349
*
file:///C|/Users/Peter/Desktop/opinions/PDFs1/283.html[8/20/2013 7:06:16 PM]

O P I N I O N
*
Appellant, a prison inmate, filed a pro se petition against Lewis Saunders, Jeffrey Townsend and Raul Mata,
corrections officers, alleging assault and battery, official oppression, duress, deprivation of his rights and privileges as
a prisoner, and trespass. The petition was accompanied by an affidavit of inability to pay costs. Before the defendants
were served with process, the court dismissed the case with a finding that "the action's realistic chance of success is
slight." Appellant challenges the dismissal in two points on appeal. The order of dismissal will be affirmed.
When an affidavit of inability to pay costs is filed, the court may dismiss the suit before service of process if the
"action's realistic chance of ultimate success is slight." Tex. Civ. Prac. & Rem. Code Ann. 13.001(b)(1) (Vernon Supp.
1991). A dismissal will not be disturbed on appeal unless there was an abuse of discretion. Johnson v. Lynaugh, 766
S.W.2d 393, 394-95 (Tex. App.--Tyler 1989), pet. denied, 796 S.W.2d 705 (Tex. 1990).
Appellant admits in his pleading that he refused to obey an order from a correction officer to return to his cell; that he
left the cell area and refused to halt when ordered by a correction officer; that two correction officers had to use force
to apprehend and subdue him; that he participated in a disciplinary hearing where he was represented by counsel and
had the opportunity to call witnesses on his behalf; and that he was punished by 15 days in solitary confinement and
180 days of lost "good time." The defendants in Appellant's suit are the two correction officers who subdued him and
the hearing officer.
Appellant argues in point one that the court abused its discretion when it dismissed the case. After reviewing the
allegations in the petition, we cannot say that the court abused its discretion when it held that Appellant's realistic
chance of success was slight and dismissed the appeal. Accordingly, point one is overruled.
Appellant's second point is that the court erred when it failed to enter findings of fact and conclusions of law in support
of the judgment. He relies on Rules 296 and 297 of the Rules of Civil Procedure, which provide that when a case is
tried before the court any party may request findings of fact and conclusions of law, and that the court shall enter its
findings and conclusions within twenty days of a timely request. See Tex. R. Civ. P. 296, 297. Rules 296 and 297 are
inapplicable because the case was never tried. Point two is overruled and the order of dismissal is affirmed.
BOB L. THOMAS
Chief Justice
Before Chief Justice Thomas and
Justice Vance
(Justice Cummings not participating)
Affirmed
Opinion delivered and filed April 25, 1991
Do not publish
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