Justices affirm Judge Floyd's ruling, waive off inmate's 'frivolous' suit against AG

David Yates Jul. 2, 2008, 1:50pm

Inmate Anthony Leon Summers' brief legal pursuit against Texas' attorney general ended June 26, as Beaumont justices affirmed a trial court's ruling that his suit -- alleging murder conspiracy -- is frivolous.

Summers sued the state of Texas, AG Greg Abbott and more than a dozen Texas Department of Criminal Justice employees in a lawsuit filed last year in Jefferson County.

Summers, an inmate housed in Beaumont's Mark Stiles Unit of the TDCJ Correctional Institutions Division, alleged one of his fellow inmates was murdered by department employees.

Last week, justices on Texas Ninth District Court of Appeals issued a memorandum opinion affirming 172nd District Judge Donald Floyd's ruling that Summers' suit is frivolous. "We affirm the trial court's judgment."

After the judge ruled that he take nothing, Summers filed an appeal in October 2007, but failed to file a formal brief.

According to the opinion, the primary thrust of Summers' petition alleges that an inmate named Bowie was murdered in April 2007 and that department employees were somehow either responsible for his death or negligent in the ensuing investigation.

Summers also alleged that he himself had been falsely disciplined – writing in his suit that "I have been assaulted and all legal 'by fire hore (sic)' two times out of retaliation of this inmate and his diseasy's (sic)."

Summers continues by saying he was denied medical care and lastly, that Abbott told a friend of Summers that the friend could not help Summers.

"In his petition, Summers suggested he was unable to obtain access to documents for his affidavit of previous filings, but he failed to state why he could not recall and identify the parties, operative facts, and results of those suits without first being provided with access to publicly filed documents," the opinion states.

"In determining whether a claim is frivolous, the trial court may consider whether 'the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts.'"

If "an inmate does not comply with the affidavit requirements of Section 14.004, the trial court is entitled to assume the suit is substantially similar to one previously filed by the inmate, and therefore, frivolous (Hall v. Treon)," the opinion states.

Summers failed to identify the parties to those suits, the subject matter or operative facts of the suits, or the ultimate disposition of each case, the opinion states.

"The dismissal in this case does not appear to be a ministerial error, as the trial court expressly stated that Summers shall take nothing by his lawsuit. In the absence of an assignment of error, we decline to address the issue. The judgment is affirmed."

Appeals Case No. 09-07-00490-CV
Trial case No. E179-708

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