Inmate goes 0-for-2 in suit against TDCJ

David Yates Apr. 27, 2010, 5:50am

Four years ago, a former judge dismissed prisoner Cedric Nickerson's lawsuit against the Texas Department of Criminal Justice with prejudice.

As the Southeast Texas Record reported in November 2007, Nickerson appealed former Jefferson County District Court Judge James Mehaffey's ruling and lost. However, the Ninth District Court of Appeals of Texas modified the judgment to reflect a dismissal without prejudice – allowing Nickerson to re-file his claims if he so desired.

On Aug. 18, 2008, he did just that, filing a suit in which he alleged 34 TDCJ employees were bullying him and other inmates.

This time around, Jefferson County District Court Judge Milton Shuffield dismissed Nickerson's claims, signing an order on Jan. 19, in which he called the inmate's claims "frivolous."

Once again, Nickerson appealed, and on April 22 the Ninth Court justices dismissed the appeal for lack of jurisdiction.

"On March 18, 2010, we notified the parties that the notice of appeal did not appear to have been timely filed," states the court's memorandum opinion. "The appellant did not reply to our correspondence. The trial court signed the final order on January 19, 2010. Notice of appeal was due to be filed on February 18, 2010.

"Appellant filed notice of appeal on February 24, 2010, more than 30 days from the date of judgment. Appellant has not provided any plausible statement of circumstances to indicate that his failure to timely file notice of appeal was not deliberate or intentional, but was the result of inadvertence, mischance, or mistake. Accordingly, we dismiss the appeal for lack of jurisdiction."

TDCJ was represented in part by attorney Anthony G. Brocato Jr.

Nickerson represented himself.

Trial Case No. D182-242
Appeal No. 09-10-00091-CV

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