IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 5, 2003
______________________________
KIMELA BECKER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NO. 44,244-B; HONORABLE JOHN BOARD, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINIONOn April 2, 2003, a copy of a Notice of Appeal in cause No. 44,244-B in the 181st District Court of Potter County, Texas (the trial court), was filed with the clerk of this court (the appellate clerk). The document filed gives notice that Kimela Becker, appellant, desires to appeal from a conviction in such court and cause number. On April 14, 2003, a docketing statement was filed with the appellate clerk.
On April 8, 2003 and April 30, 2003, the District Clerk of Potter County (the trial court clerk) advised that the clerk's record had not been paid for, the clerk had not received an affidavit of indigency from appellant, and appellant's attorney had not made arrangements to pay for the record. The clerk's record has not been filed. The appellate clerk's record reflects no other action by any party to the appeal to prosecute the appeal.
Accordingly, this appeal is abated and the cause is remanded to the trial court. Tex. R. App. P. 37.3(a)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, then whether appellant is indigent; (3) if appellant desires to prosecute this appeal, whether appellant is entitled to have the clerk's record furnished without charge; and (4) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeal if appellant does not desire to prosecute this appeal, or, if appellant desires to prosecute this appeal, to assure that the clerk's record will be promptly filed and that the appeal will be diligently pursued.
The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in a clerk's record on remand; (3) cause the hearing proceedings to be transcribed and included in a reporter's record; and (4) have a record of the proceedings made to the extent any of the proceedings are not included in the clerk's record or the reporter's record. In the absence of a request for extension of time from the trial court, the clerk's record on remand, reporter's record of the hearing and proceedings pursuant to this order, and any additional proceeding records, including any orders, findings, conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than June 5, 2003.
Per Curiam
Do not publish.
the decision whether the trial court abused its discretion, the fact that the appellate court might have decided a matter within the trial court's discretion in a different manner does not demonstrate that an abuse of discretion occurred. Id. at 399. In considering whether the trial court erred in its conclusion that appellant had no arguable basis in law or only a slight realistic chance of ultimate success, we must consider whether appellant's claims are cognizable under Texas law. Jackson v. Texas Dep't of Criminal Justice, 28 S.W.3d 811, 813 (Tex. App.-Corpus Christi 2000, pet. denied). In making our decision, we are bound to take as true the allegations in appellant's petition. Id.
DiscussionIn bringing this suit, appellant specifically claimed that appellees violated his First, Eighth, and Fourteenth Amendment rights under the federal constitution by "forcibly" medicating him. In his petition, appellant argued that the medications appellees prescribed caused adverse side effects and that their continued provision of those medications despite his protests constituted "deliberate indifferen[ce] to plaintiff['s] health and safety in violation of the 8th and 14th amendment[s] to the United States Constitution." The essence then, of appellant's argument concerning his medical treatment is a disagreement with appellees about the diagnosis of his paranoid schizophrenia and their treatment of that condition. However, a prisoner's mere disagreement with his medical treatment or diagnosis does not give rise to a §1983 cause of action. Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997) (disagreement with medical treatment does not state a claim for Eighth Amendment indifference to medical needs). Moreover, the mere fact that medical treatment was unsuccessful does not give rise to a §1983 cause of action, nor is negligence or neglect sufficient to show medical indifference. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). That being so, appellant had no reasonable chance for success and the trial court did not err in dismissing his claim as frivolous.
Appellant's trial complaint was only that appellees violated his Eighth and Fourteenth Amendment rights by being deliberately indifferent to his health and safety in making the medical diagnosis and prescribing a treatment for that diagnosed condition. However, on this appeal, he attempts to raise entirely new arguments by asserting that by actually medicating him without his consent, appellees violated his First, Eighth, and Fourteenth Amendment rights. He makes no claim that the medication had not been prescribed by a psychiatrist nor does he contend that that prescription had not been approved by a reviewing psychiatrist. His contention is, rather, that the application of any medication without his consent violated his constitutional rights.
However, in Washington v. Harper, 494 U.S. 210,110 S.Ct. 1028, 108 L. Ed. 2d 178 (1990), the Court had occasion to consider a similar contention. In that case, a mentally ill state prisoner contended that a prison policy that authorized treatment with antipsychotic drugs without a prior judicial hearing and determination that the prisoner was incompetent violated the prisoner's constitutional right to due process. In determining that no such violation had occurred, the Court noted that the penal system had instituted a policy that involuntary medication was permissible in instances in which (1) the State has first obtained a medical finding that the prisoner has a mental disorder that is likely to cause harm if not treated, 2) the medication has been prescribed by a psychiatrist, and 3) that prescription has been approved by a reviewing psychiatrist. Id. 494 U.S. at 222,110 S.Ct. at 1037. The Court held that the State's interest in prison safety and security as well as the inmate's constitutional rights were sufficiently protected in such instances. Id. 494 U.S. at 223, 110 S. Ct. at 1037. In this case, a similar procedure was followed by the State, and we find no violation of appellant's constitutional rights by appellees' treatment of appellant after the diagnosis of schizophrenia.
In sum, the trial court did not reversibly err in dismissing appellant's suit. Accordingly, the judgment of the trial court is affirmed.
John T. Boyd
Senior Justice
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2006).