Joseph M. Burnett v. Texas Department of Criminal Justice, Douglas Dretke, Pamela Baggett, Johnny Thomas, Marcus Munson, James Soileau, Akbar Shabazz, Keith Clendennon, Jimmy McLaughlin, F.N.U. Lopez, and Kristy Jeter

• Court: Court of Appeals of Texas
• Decided: May 4, 2006
• Docket: 14-04-01088-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 4, 2006

Affirmed and Memorandum Opinion filed May 4, 2006.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-01088-CV

JOSEPH M. BURNETT, Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, DOUGLAS DRETKE, PAMELA BAGGETT, JOHNNY THOMAS, MARCUS MUNSON,

JAMES SOILEAU, AKBAR SHABAZZ, KEITH CLENDENNON,

JIMMY McLAUGHLIN, F.N.U. LOPEZ, and KRISTY JETER, Appellees

On Appeal from 12th District Court

Walker County, Texas

Trial Court Cause No. 22726

M E M O R A N D U M   O P I N I O N

Joseph M. Burnett, an inmate suing in forma pauperis, appeals the dismissal of his lawsuit asserting tort and constitutional claims on various grounds.  We affirm.

On July 6, 2004, Burnett filed this lawsuit against the Texas Department of Criminal Justice and various others alleging:  (1) damages under the Texas Tort Claims Act based on the negligent use of tangible personal or real property; (2) violations of his constitutional right to the free exercise of religion; (3) section 1983 violations; and (4) violations of the Eighth Amendment=s prohibition of cruel and unusual punishment because of Ahazardous asbestos conditions.@  The Office of the Attorney General filed an Amicus Curiae motion to dismiss with the trial court.  The trial court subsequently dismissed Burnett=s lawsuit (the Adismissal@), finding that his petition was frivolous and failed to comply with the requirements of Chapter 14 of the Civil Practice and Remedies Code (AChapter 14@).

We review the trial court=s dismissal of an inmate=s claims under Chapter 14 for an abuse of discretion.  Retzlaff v. Tex. Dep=t of Criminal Justice, 94 S.W.3d 650, 654 (Tex. App.BHouston [14th Dist .] 2002, pet. denied).  A trial court abuses its discretion when it acts without reference to any guiding rules and principles, or its actions are arbitrary or unreasonable based on the circumstances of the particular case. Id. An appellant bears the burden of overcoming the presumption that the trial court=s action was justified. Id.

Burnett=s first issue challenges the dismissal for failure to comply with the requirements of Chapter 14 on the ground that Burnett could not find any rules or guidelines to support the trial court=s dismissal of his claim.  However, because Burnett=s brief does not demonstrate that his petition complied with those requirements, it fails to establish that the trial court abused its discretion in dismissing his case on that basis.  Accordingly, his first issue is overruled.

Burnett=s second issue asserts that the trial court erred in dismissing his claims as frivolous.  However, because his brief fails to provide any explanation as to why his claims are not frivolous or legal authority to support that conclusion, it affords no basis to conclude that his claims were not frivolous.  Therefore, his second issue is overruled.

Burnett=s third, fourth, and fifth issues simply state various propositions of law without identifying, or associating them with, any alleged errors made by the trial court.^[1]  Because these issues thus present nothing for our review, they are overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed May 4, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

---

^[1]           For example, Burnett=s fifth issue states:

Deliberate indifference means that prison officials know of and disregard a substantial risk of serious harm of prisoners health. . . .  AAsbestos,@ is extremely AHazardous,@ . . . .  Exposure to asbestos dust particles can result in Mesothelioma, Asbestosis, and Lung Cancer.  The E.P.A. concluded that asbestos is a potential carcinogen at all levels of exposure.

(citations omitted).