Cecilia Clinkscale v. Leiroi Mickele Daniels

• Court: Court of Appeals of Texas
• Decided: December 31, 2014
• Docket: 01-14-00968-CV
• Status: Published

Opinion

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CECILIA CLINKSCALE, § IN THE FIRST DIST Appellant, § § VS. § COURT OF APPEALS § LEIROI MICKELE'DANIELS, § Appellee. § HOUSTON, TEXAS

APPF.T T.ANT'S NOTICE OF APPEAL ON THE DENIAL OF PAUPER'S OATH

Comes Now, Cecilia Clinkscale, Appellant, inthe above styled civil action and files this Appellant's Notice OfAppeal On The Denial OfPaper's Oath, and she seeks to show this Court the following: I.

The trial courtin this civil action jis 113* District (Civil) Court, Harris County, Texas, Cause No. 2012-58724, Clinkscale v. Daniels (2012). ' • .- II.

Monday, December 15, 2014, the trial-court signed the JudgmentAnd OrderSustaining Contest To Pauper's Oath. See Exhibits 1 and 2.

III.

Appellant desires to appeal this adverse Order.

IV

Appellant's appeal is in the First Court ofAppeals, Houston, Texas, Case No^ 01-14-00968-CV.

v .

Appellant, Cecilia Clinkscale, is the party filing this Notice OfAppeal

Respectfully submitted, Appellant, In Propria Persona ,

Post Office Box 42718, Philadelphia, Pennsylvania 19101

Telephone: (215) 828-4516 FacsimUe: (877)669-1745 Email: cclinkscale@grnail.com CERTIFICATE OF SERVICE

Pursuantto Tex. R. App. P. 9.5(a)-(e), I, Cecilia Clinkscale^ Appellant, do hereby certify that on this 23rd day of December 2014, a true and correct copy of the attached and foregoing Appellant's Notice OfAppeal On The Denial OfPauper's Oath was served upon the recipients listed below inthe following manner(s):

Mr. Christopher A. Prine, Esquire, Clerk of the Court, Court of Appeals, First District ofTexas, 301 Fannin Street, Room 208, Houston, Texas 77002-2066

Service: e-file.txcourts.gov and United States Postal Service, first-class mail.

Mr. Leiroi Mickele' Daniels, Esquire, t '. ,• ..., L Mickele'Daniels & Associates, • Arena Tower I, Suite 580, 7322 Southwest Freeway, Houston, Texas 77074

Service: e-file.txcourts.gov and United States Postal Service first-class mail.

CECILIA C "'I LE

ellant, ropria Persona

Dated: __J^4^^—- Post Office Box 42718, Philadelphia, Pennsylvania 19101

Telephone: (215)828-4516 Facsimile: (877)669-1745 Email: cclinkscale@gmail.com EXHIBIT!

CAUSE NO. 2012-58724

CECILIA CLINKSCALE § IN THE DISTRICT COURT OF § fA V. § HARRIS COUNTY, TEXAS

LEIROI MICKELE* DANIELS §§ . 113TH JUDICIAL DISTRICT PD(\X\ Cor\9 JUDGMENT AND ORDER SUSTAINING CONTEST TO PAUPER'S OATH

BE IT REMEMBERED that on this day came on to be heard the Contest to the Affidavit of Inability To

Give Cost Bond of Affiant, in the above numbered and entitled cause. The Court, after considering the

evidence and the argument ofcounsel, finds that Affiant CECILIA CLINKSCALE is able to pay all filing fees, or to give security therefore, that the affidavit was not filed in good faith and that such contest should be and is hereby sustained. Affiant was notified by certified mail return receipt requested and regular mail. IT IS THEREFORE, ORDERED, ADJUDGED and DECREED, that the Contest to the Affidavit ofAffiant CECILIA CLINKSCALE to proceed in this matter without payment ofthe costs ofappeal orany part thereof, or to give security therefore is SUSTAINED. IT IS FURTHER ORDERED that the District Clerk shall not proceed or process any further actions or

settings on this case unless and until the Affiant CECILIA CLINKSCALE pays and/or deposits in full all costs of this appeal.

SIGNED this /£_ day of ^ZZ/SJerJ*^.jZ&lf o

SP (X

- JUDGE PRESIDING ve

£ Harrison Gregg, Jr. ^ Senior Assistant County Attorney S SB: 08429500 £ 3 % TS a £ 3 a i iu U I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and of recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this December 19. 2014

Certified Document Number: 63580561 Total Pages: 1

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com EXHIBIT 2 CAUSE NO. 2012 - 58724

CECILIA CLINKSCALE, § IN THE DISTRICT COURT OF Plaintiff, § § VS. § HARRIS COUNTY, TEXAS § LEIROI MICKELE' DANIELS, § Defendant. 113th JUDICIAL DISTRICT

MOTION TO PROCEED IN FORMA PAUPERIS

I, Cecilia Clinkscale, Plaintiff, respectfully moves this Honorable Court for leave to proceed in this matter either without payment ofall case and jury related fees, costs, and-or security orwith reasonable firnmrwl assistance. Pursuant Tex. R. App. P. 20.1,1 have attached hereto anAFFIDAVIT IN SUPPORT OF MOTION TO PROCEED IN FORMA PAUPERIS. Tex. R App. P. 20.1.

Respectfully submitted,

Plamfiff/Appellant, In Propria Persona

Dated: Mi a°t«-l Post Office Box 42718, Philadelphia, Pennsylvania 19101

Telephone: (215) 828-4516 Facsimile: (877) 669-1745 Email: cclinkscde@gmail.com CAUSE NO. 2012-58724

CECILIA CLINKSCALE, § IN THE DISTRICT COURT OF Plaintiff, § § VS. § HARRIS COUNTY, TEXAS § LEIROI MICKELE' DANIELS, § Defendant. § 113th JUDICIAL DISTRICT

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED IN FORMA PAUPERIS

TO THE HONORABLE JUDGE OF THIS COURT:

I, Cecilia Clinkscale, Plaintiff, being first duly sworn, deposes andstates that I amthepro se litigant inthe above-captioned ease. I am submitting this here AFFIDAVIT insupport ofthe attached MOTION TO PROCEED IN FORMA PAUPERIS. In doing so, I askto proceedin this said civil action without being required to prepay case and related fees, costSj and-or to give security; with this, I state that because ofmy poverty I am unable topay court costs. I verify that the forthcoming statements madein thisAFFIDAVIT are true and correctto the best of my current information, knowledge, and belief. 28 U.S.C. § 1746.

Further, I believe that I am entided to redress, andthus in compliance with Tex. R. App. P. 20.1,1 aver.

1. The nature and amount of mycurrent employment income, government entided income, and other income:

I am currendy employed as anadjunct instructor, and I have been employed in this capacity since Monday, January 6, 2013. See Exhibit 1. The State ofPennsylvania awards me a food allowance ofone- hundred eighty-nine dollars zero cents ($189.00) each month through its Supplemental Nutrition Assistance Program (SNAP). See Exhibit 2.

2. The income of my spouse and whether thatincome is available:

I am not married; therefore, I do not have spousalincome as a potential monetaryreserve.

3. Realand personalpropertythat I own:

I do not own any real property; I do own a 2009 Toyota Corolla motor vehicle.

4. Cash that I have on hold and amounts on deposit that I can withdraw:

Typically, I do not keep cash with me. I do have a savings account ($500.00) and a checking ($25.00) account through Wells Fargo Bank. 5. My other assets:

I do not haveanyassets and-ormaterial possessions of value aside from my motor vehicle.

6. The number andrelationship (tome) of dependents thatI have:

I do not have any dependents.

7. The nature and amount of my debts:

I currently have one Federal Direct (graduate student) Loan ($160,000.00) andone consolidated American Education Services (undergraduate student) loan ($26,000.00). I currently oweBank of America Visa $3,300.00, Chase Visa $1,095.00, and Discover Cards $3,000.00 (I use this credit card to pay for fuel, to paymy monthly cellular telephone bill, and to pay for automobile insurance).

8. The nature and amount of my monthly expenses:

My monthly expenses are as follows: (a) Rent: $200.00 (I currendy reside my parent, and rentis adjusted to income.); (b) Utilities; $75.00; (c) Cellular Phone: $65.00; (d) Virtual Fax: $10.00; (e) Laundry: $40.00 (laundry and detergent); and (f) Automobile Insurance: $198.72.

I also have annual expenses for life insurance ($175.00) and United States Postal Services in Pennsylvania ($144.00) and in Texas ($48.00).

At present, I have monthly job search expenses (printing, travel, stationary, ink, packaging, labels, and postage)($25.00-50.00).

If I need to relocate back to Houston, Texas to prosecute this case, then I must consider relocation expenses which include, but arenot limited to, fuel costs ($250.00-225.00), storage costs, and costs for monthly housing accommodations.

9. My ability to obtain a loan for court costs:

Due to mylimited income, I am currently unable to secure a bankloan; it is myunderstanding that for me to ensure a bank loan, I must have a means to repayboth the loan and anyinterests incurred thereof.

10. Whether an attorneyis providing me with free legal services, without a contingent fee:

I am not receiving free legal services from an attorney, with or withouta contingentfee; hence, I do not have anInterest on Lawyers Trust Accounts ("IOLTA") certificate. TRCP 145(c).

11. Whether an attorneyhas eitheragreed to pay or to advance court costs:

I am not receiving, and I have not received either any free legal services or any free assistance from an attorney; hence, to date, no attorney has either agreed to payor has agreed to advance court costs on my behalf. Moreover, along with thisAFFIDAVIT IN SUPPORT OF MOTION TO PROCEED IN FORMA PAUPERS, I have submitted "Exhibits 1-2" as "strict proof to verifymy current financial status.

Plaintiff/Appellant, In Propria Persona,

Dated: 1^ 30|4

Telephone: (215)828-4516 Facsimile: (877) 669-1745 Email: cclinkscale@gmail.com Signed under the penalty ofperjury on Tuesday. December 2. 2014. 28 U.S.C.§ 1746; Tex Gov. Code Ann. § 602.003; 18 Pa. Cons. Stat. § 4902.

Signature

rJiflCl.uksCftk Printed Name

On this o^A-d day of DJt^^V ^^ 2014,1 administered the above oath or affirmation from the person named above. I am a Notary Public, and I am authorized to administer an oath or affirmation pursuant to 28 U.S.C. § 1746. If I have a seal ofoffice that I am required by law to affix to documents when administering an oath or affirmation, then I have included anoriginal impression of myofficial seal below.

CAJ2 Signature of NotaryPublic

COMMONWEALTH OF PENNSYLVANIA Notary Public, NOTARIAL SEAL In the County of Montgomery, SARA ANNE SOUCIE. Notary Public State of Pennsylvania Lower Merion Twp., Montgomery County MyCommlssionExplresApril16,2018

My commission expires : AfA. \C?tP£Ifr Notary Seal VERIFICATION

STATE OF PENNSYLVANIA § § COUNTY OF MONTGOMERY §

BERFORE ME, the undersigned Notary Public, on this day personally appeared Cecilia Clinkscale, who, being by me duly sworn on oath, did depose and say die following: OATH

"My name is CECILIA CLINKSCALE. I am the Appellant in the above entitled case. I have read the foregoing Affidavit In Support OfMotion To ProceedIn Foma Pauperis, and each statement offact therein is true and correct. I have personal knowledge ofeach such fact stated therein." FURTHER, AFFIANT SAYETH NOT.

•)hJk (H^/^r^

SUBSCRIBED TO AND SWORN BEFORE ME on the t^Wt day ofDecember 2014, to certify which witness my hand and official seal.

\£(CXg [Seal] NOTARY PUBLIC IN AND FOR THE COMMONWEALTH OF PENNSYLVANIA STATE OF PENNSYLVANIA NOTARIAL SEAL SARAANNE SOUCIE, Notary Public Lower Merlon Twp„ Montgomery County My Commission Expires April 16,2018 vS&wx Souci t Print Name:

My Commission Expires: /T)CM \ \ (o, ^UO January 11, 2CrT4 Personal & Confidential EXHIBIT 1 Cecilia Clinkscale

Dear Cecilia:

ITT Educational Services, Inc. and its subsidiaries (collectively "iTT/ESI") is pleased to confirm its offer ofat-will employment to you as an Adjunct Faculty, with an effective start date of13 January 2014. This position isclassified as a temporary at-will employment status position. This offer is contingent upon your execution ofTTT/ESI's Employee Confidentiality and Intellectual Property Agreement and successful completion ofa background check and completion ofITT/ESI's new hire paperwork. The terms ofthis offer areas follows: . Compensation: Course Rate of$1850 for each course section assigned during an academic quarter. The Course Rate is prorated ifyou start orstop teaching any time after thestart oftheacademic quarter. Your first pay datewill be 31 Janaury 2014 and you will be paid bi-weekly thereafter, lesssuch amounts required to bewithheld by law. The Course Rate includes payfor successfully teaching all courses scheduled forthe academic term through the completion-of the term, which includes any of your time devoted to course preparation, course Instruction, student advising, test and grade administration and other administrative dutiesas assigned. • Group Benefits: You will be eligible to participate in the Company's 401(k) plan on the first day of the month after 3 months of employment, subjectto-the terms and conditions ofthe plan. Your employment is conditioned upon your: (a) execution ofthe ITT Educational Services, Inc. Employee Confidentiality and Intellectual Property Agreement and (b) completion of the Employment Eligibility Verification Form I-9 and presentation of documentation establishing your identity and employment eligibility. By signing this offer tetter, you hereby represent arid warrant to ITT/ESI that you are not subject to any employment, non-competition or other similar agreement or restriction that would prevent or interfere with ITT/ESI's employment of you on the termsset forth herein. Onceemployed, you will be expected tofamiliarize yourself with and be subject to ITT/ESI's policies, procedures, and practices, mostof which are set forth in ITT/ESI's Employee Handbooklocated on the ITT/ESI Employee Portal. As an employee you may be provided with a laptop computer, PDA, mobile phone and other company-owned equipment ("Equipment") to allow you to perform your job duties. You may owe amounts from us in the form of advances or overpayments for work-related expenses orwages. In the event your employment relationship with ITT/ESI endsfor any reason, and the Equipment and amounts are not returned to ITT/ESI on or before yourfinal date of employment with ITT/ESI, your signature authorizes ITT/ESI to deduct from your final paycheck (i) the replacement cost ofthe Equipment not returned and (ii) any other amounts you owe the Company including, without limitation, those amounts owed as the result ofdiscretionary advances or wage overpayrhents, to the extent permitted byfederal, state and local law.

This offer letter does not constitute an expressed or implied contract ofemployment betweenyou and ITT/ESI and in no way' guarantees employment for a fixed duration. You will be employed by ITT/ESJ on an afewill basis, which rnearis that you are employed for an indefinite period of time and that you or ITT/ESI may terminate your employment at any time. Any alteration of the at-will employment arrangement described in this memo, including an agreement with you for employment for a specified period of time, or any other agreement contrary to the employment arrangementset forth in this memo is invalid, and has no legal force or effectwhatsoever unless any such agreement is signed by you and a duly authorized officer of ITT/ESI. ITT/ESI cannot guarantee that you will teach particular course sections or that you will actually teach in any academic term. ITT/ESI reserves the right to modify or cancel one or all of the course sections assigned to you at any time. Ifa course section cancellation or employment termination occurs, ITT/ESI will pay a proratedCourse Rate for classes taught during the academic term priorto the date of cancellation or termination. No compensation will be owed or paid to you upon or after the termination of your employment or cancellation of course sections Unless ftWas earned priorto the date of termination or cancellation, except as provided by law.

Cecilia, ITT/ESI js excited about the prospect of your employment with ITT/ESI. Should you have any questions, or desire further infonpationTpleaseJdo not hesitate to contactme.

t this offer of employment

Signed: Date: U aj)!^ Adjunct Instr jitor Offer Letter 07/11 Notice ID:

EXHIBIT 2 Pennsylvania DEPARTMENT OF PUBLIC WELFARE Mail Date: 09/04/2014 OFFICE OF INCOME MAINTENANCE Record ID: " Telephone: 1-215-560-6100 Cecilia Clinkscale Notice ID: COMPASS: The fast and easy way to apply for benefits « www.corhpass.state.pa.us

Pennsylvania receives information from other stateand federal agencies toverify the information you give them. If you misrepresent, hide, orwithhold facts which may affect your eligibility for benefits, you may be required to repay your benefits, and you may be prosecuted and disqualified from receiving certain future benefits.

Dear Ms. Clinkscale, We received your request for the following benefits. If you have a question, please call the number listed above. 4S3E3£sa«Ea!S^JA^V;r«*i2SaKaar.:

Whichbenefit? This is Msummary of your benefits. You..can-find/more(li^rmation:lnsida:t^Jetteri.- We are increasing your SNAPfrom $23.00 to $189.00 SNAP beginning September 15, 2014 because yourincome'has changed.

Ifyou do not agree with this decision, fill out the enclosed Fair. Hearing form, then mail it or give it to yourcaseworker by November 29, 2014.

flFyoiThavela^^ please call our helpline at 1-800-692-7462. TDD Services are available at 1-800-451-5886.

If you do notagree with our decision, you have the right to a Fair Hearing. To learn more about Fair Hearings, read Your Right to Appeal and to a Fair Hearing.

JDo you need legal help? You can get free legal help by visiting: PHILADELPHIA LEGAL ASSISTANCE at 42 S. 15TH ST. STE 500, PHILADELPHIA, PA 19102or by jcalling (215) 981-3800. Record ID: Mail Date: 09/04/2014 Page 1 of 8 pai62 Notice ID:

Your SNAP Benefits

Who qualifies? When? . ;HQtyr»Meh7j CECILIA Sep15,2014 $189^00 '

CECILIA: Inside this letter you can learn more about the income and deductionswe used to decide if you qualify.

This is the law we used to make this decision: 7 CFR § 273.9

You will keep getting $189.00 monthly in SNAP until you have a change in your case. We will review j your case in November 2014 to see ifyou still qualify. •

Your Household Income and Expenses

Here is a list of the monthly income and expenses that we have for your household.

CECILIA $1,336.05 $1,336.05 Employment: ITT

Total income $1,336.05 $1,336.05

Sixjpenses^ '' •V"; .'•?:"?::.•/-* tstiiffi•'•f^0^'$ii UJ^ao has^pense,s? s_.; 09/2014 ,. J0/20H ,.._„„-_ - CECILIA $30.00 $30.00 Transportation Costs

Total expenses $30.00 $30.00

Record ID: Mail Date: 09/04/2014 Page 2 of 8 pai«