Hicks v. Brysch, CIV. SA-96-CA-1005.

Decision Date29 September 1997
Docket NumberNo. CIV. SA-96-CA-1005.,CIV. SA-96-CA-1005.
PartiesNorris Wayne HICKS, TDCJ No. 505593, Plaintiff, v. Patricia BRYSCH, District Clerk, Karnes County, Texas, Defendant.
CourtU.S. District Court — Western District of Texas
MEMORANDUM OPINION AND ORDER

PRADO, District Judge.

Plaintiff Norris Wayne Hicks filed this lawsuit originally seeking a writ of mandamus to compel the defendant, a state district clerk, to file a state civil lawsuit plaintiff had previously submitted to the defendant for filing in the state courts. Plaintiff subsequently supplemented his pleadings to include requests for injunctive relief and unspecified monetary damages. The defendant timely answered and has filed a motion for summary judgment in which she avers that the plaintiff's submissions to her did not satisfy the applicable statutory procedural prerequisites to the filing of lawsuits by prisoners in the Texas courts. For the reasons set forth at length hereinafter, defendant's motion for summary judgment will be granted and plaintiff's claims herein dismissed with prejudice as frivolous and malicious.

I. Statement of the Case
A. Factual Background

On July 1, 1996, while an inmate at the Texas Department of Criminal Justice's ["TDCJ's"] John B. Connally Unit in Kenedy, Texas, plaintiff mailed an original and nine copies of a proposed state civil lawsuit to the defendant.1 On July 10, 1996, plaintiff received that same package back along with a notice indicating that plaintiff's submission did not comply with Sections 14.001 et seq. of the Texas Civil Practice and Remedies Code.2 On July 15, 1996, plaintiff re-submitted his proposed state civil lawsuit along with a letter requesting the defendant to advise plaintiff as to the specific defects, if any, remaining in plaintiff's submission.3 Plaintiff received no response to that re-submission and, on August 27, 1996, plaintiff sent yet another initial pleading in a proposed state civil lawsuit to the defendant along with five other pleadings but plaintiff never received any acknowledgment of defendant's receipt of same.4 On September 4, 1996, plaintiff sent another letter to the defendant asking the defendant to file plaintiff's proposed state civil lawsuit.5 On both October 24 and December 10, 1996, plaintiff sent letters to defendant inquiring about the status of his submissions to the defendant's office.6

B. Procedural History

Plaintiff originally submitted this federal lawsuit to this Court along with an incomplete application for leave to proceed In Forma Pauperis on September 23, 1996.7 The Magistrate Judge issued an Order on September 25, 1996 directing plaintiff to comply with the financial responsibility provisions of the Prison Litigation Reform Act of 1996 ["PLRA"],8 effective April 26, 1996,9 which require a prisoner requesting leave to proceed In Forma Pauperis to furnish federal courts with detailed financial information sufficient to allow the federal courts to calculate the average monthly balance and average monthly deposits in the prisoner's inmate trust account for the past six months.10 When plaintiff failed to comply with that directive, on November 21, 1996, this Court dismissed plaintiff's claims without prejudice for want of prosecution.11

On November 25, 1996, plaintiff filed a motion to reconsider the dismissal of his claims to which he attached some. but not all, of the financial information required by the PLRA.12 In an Order issued December 3, 1996, this Court vacated the judgment dismissing plaintiff's claims and directed plaintiff to pay the initial partial filing fee mandated by the PLRA.13 To date, plaintiff has failed to pay the IPFF mandated by the PLRA and the Magistrate Judge and this Court have denied all of the plaintiff's motions requesting waiver of the payment of the IPFF.14 Nonetheless, in an Order issued May 20, 1997, the Magistrate Judge directed service upon the defendant despite plaintiff's failure to pay the IPFF.15

Meanwhile, in an Order issued April 16, 1997, the Magistrate Judge explained to the plaintiff that this Court lacked the authority to issue a writ of mandamus against the defendant and directed the plaintiff to answer a detailed questionnaire designed to elicit from the plaintiff the specific facts underlying his claims herein.16 On April 29, 1997, plaintiff filed a supplemental pleading in which he asserted that his claims for relief herein were based upon Title 42 U.S.C. Section 1983.17 On April 29, 1997 plaintiff also filed his answers to the Court's questionnaire and asserted therein for the first time claims for injunctive relief and unspecified monetary damages.18

On June 19, 1997, defendant filed a timely answer in which she alleged that the plaintiff's submissions to the Karnes County District Clerk's office all failed to satisfy the requirements of Chapter 14 of the Texas Civil Practice and Remedies Code, more specifically that the plaintiff had failed to comply with either the financial information requirement of Section 14.006(f) or with the requirement of Section 14.004 that he file a detailed affidavit regarding his litigation history.19

On June 25, 1997, plaintiff filed a motion for default judgment in which he challenged the sufficiency of the defendant's answer.20 In a separate motion filed that same date, plaintiff demanded that this Court direct the defendant to file a detailed answer and to respond individually and separately to each and every factual allegation contained in plaintiff's original pleading and questionnaire answers.21

In an Order issued June 30, 1997, the Magistrate Judge advised the parties that the defendant's original answer would be treated for all purposes as a motion for summary judgment, explained the nature of summary judgment procedure and proof for the benefit of the pro se plaintiff, and set deadlines for the filing of proper summary judgment evidence supporting and opposing same.22 On July 10, 1997, plaintiff filed objections to, and an appeal from, the Magistrate Judge's Order of June 30, 1997 and demanded therein that the referral of this cause to the Magistrate Judge be withdrawn.23

On July 24, 1997, defendant filed a separate motion for summary judgment to which she attached an affidavit asserting that the plaintiff's submissions to the Karnes County District Court had all failed to comply with Section 14.004 of the Texas Civil Practice and Remedies Code.24 Thereafter, plaintiff filed no less than five separate motions requesting a continuance on the deadline for his filing of proper summary judgment evidence opposing defendant's motion, an Order from this Court authorizing discovery from various non-parties, and an evidentiary hearing for the purpose of permitting him to develop the factual bases underlying his claims herein.25 The Magistrate Judge denied the first two of those motions in an Order issued August 20, 1997, in which she explained to plaintiff that he had failed to establish a right to such a continuance or to the discovery in question.26 On September 3, 1997, plaintiff filed objections to the Magistrate Judge's Order denying plaintiff's discovery requests.27

On August 18, 1997, plaintiff filed his response to defendant's motion for summary judgment and alleged therein that his efforts to file state civil lawsuits in Bee County, Texas had been denied for the same reasons that his efforts to file such lawsuits in Karnes County had been rejected.28 Significantly, at no time in this lawsuit has plaintiff alleged any specific facts or furnished this Court with any proper summary judgment evidence establishing that he ever complied with Section 14.004 of the Texas Civil Practice and Remedies Code when he submitted his proposed state civil lawsuits to the defendant herein.

Meanwhile, in an Order issued July 25, 1997, the Magistrate Judge rescinded this Court's prior Order granting plaintiff leave to proceed In Forma Pauperis and directed plaintiff to pay the full filing fee in this cause.29 Plaintiff filed objections to that Order on August 4, 1997.30 However, in an Order issued September 8, 1997, this Court affirmed the Magistrate Judge's ruling rescinding the prior grant of plaintiff's In Forma Pauperis request and directed plaintiff to pay the full filing fee in this cause by September 26, 1997.31 To date, plaintiff has failed to pay the filing fee in this cause.

II. Analysis and Authorities
A. Plaintiff's Request for Withdrawal of the Referral

In view of the plaintiff's highly inappropriate and personal attack upon the Magistrate Judge contained in plaintiff's pleading filed July 10, 1997,32 to avoid any potential appearance of impropriety this Court will withdraw the referral of this cause to the Magistrate Judge. However, plaintiff is advised that this Court has reviewed the entire case file and finds no error committed by the Magistrate Judge during her supervision of the pretrial phase of this cause.

B. Summary Judgment Procedure and Proof

A brief explanation regarding summary judgment motions is in order.33 The Fifth Circuit has held that a District Court may grant a summary judgment sua sponte, provided that the adverse party is afforded proper notice and an opportunity to submit documents opposing summary judgment.34 The Magistrate Judge's Order and Advisory of June 30, 1997 was designed to afford plaintiff exactly such notice and opportunity.

Motions for summary judgment are authorized by Rule 56 of the Federal Rules of Civil Procedure. These motions permit the Court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any facts which are material and the moving party is entitled to judgment as a matter of law.35

Rule 56(e) of the Federal Rules of Civil Procedure provides in part:

When a motion for summary judgment is made and supported as provided in this rule, an...

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