Bennie Finister v. Charles Lumpkins

Heading for a dismissal

IN THE

TENTH COURT OF APPEALS

No. 10-97-282-CV

     BENNIE FINISTER,

                                                                                              Appellant

     v.

     CHARLES LUMPKINS,

                                                                                              Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 29,558

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      Appellant Bennie Finister filed suit against Appellee Charles Lumpkins alleging that Lumpkins violated his civil rights. See 42 U.S.C.A. § 1983 (West Supp. 1997). Lumpkins is a correctional officer at the TDCJ-ID unit in which Finister was incarcerated at the time he filed the suit. The trial court granted Lumpkins’s motion for summary judgment on September 12, 1997, and Finister brought this appeal.

      Finister filed his notice of appeal on October 3, and the clerk’s record was filed in this court on October 15. Although his brief was due on November 14, no appellant's brief has been filed. See Tex. R. App. P. 38.6(a). Appellate Rule 38.8(a)(1) provides in pertinent part that if an appellant does not timely file a brief, the appellate court may:

dismiss the appeal for want of prosecution, unless the appellant reasonably explains the failure and the appellee is not significantly injured by the appellant’s failure to timely file a brief.

Id. 38.8(a)(1).

      On November 19 we notified Finister that we would dismiss his appeal for want of prosecution unless he responded showing grounds for continuing his appeal. See id. 38.8(a)(1), 44.33. He responded, claiming that he did not have access to a copy of the appellate rules, and thus, did not know when his brief was due. Four days later, Finister filed a motion for extension of time to file his brief seeking additional time for the same reasons. We granted Finister’s request and gave him until January 15, 1998, to file his brief, again warning him that the appeal would be dismissed for want of prosecution if he did not file his brief at that time.

      On January 14, Finister filed a second motion for extension of time to file his brief. In this motion, Finister sought ten additional days in which to file his brief alleging that he had been denied access to an ink pen for approximately twenty days. We granted the motion and gave him until January 25 to file his brief, warning him that no further extensions would be considered by the Court.

      Finister filed a motion for injunctive relief on January 27, alleging that prison officials continued to deny him writing materials and complaining that his research was inhibited by a policy instituted by TDCJ-ID which allegedly limits inmates to three books from the law library per day, three days per week. We denied this motion. Seven days later, Finister filed a third motion for extension of time to file his brief. In this motion, Finister claims that because he has been denied an ink pen for more than a month and because of the library policy described above, his ability to prepare a brief has been severely restricted.

      Although Finister claims that he has not had sufficient writing materials to prepare his brief, we note that since our November 19 notice, he has filed thirty-two pages of pleadings and correspondence with this Court which are written in ink. We also note that he has prepared at least ten pages of inmate grievance forms with TDCJ which are also written in ink.

      Almost ninety days have passed since Finister’s brief was originally due. We have granted him two extensions and have warned him three times that his appeal is subject to dismissal for want of prosecution. The reasons stated in Finister’s most recent motion do not constitute reasonable grounds for failing to file a brief. Therefore, we deny Finister’s third motion for extension and dismiss his appeal for want of prosecution. See id. 10.5(b)(1)(C), 38.8(a)(1), 42.3.

                                                                               PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Chief Justice McDonald (retired)

Dismissed for want of prosecution

Opinion delivered and filed February 11, 1998

Do not publish

>, no pet.); City of Fort Worth v. Gay, 977 S.W.2d 814 (Tex. App.—Fort Worth 1998, no pet.).

 

PER CURIAM

 

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

          (Chief Justice Gray concurring)

Affirmed

Opinion delivered and filed November 10, 2004

[CV06]