IN THE
TENTH COURT OF APPEALS
No. 10-11-00227-CV
KEVIN REVELS,
Appellant
v.
JOSEPHINE SESSION,
Appellee
From the 52nd District Court
Coryell County, Texas
Trial Court No. 40414
MEMORANDUM OPINION
Kevin Lynn Revels filed an “Application for an Original Lawsuit Under Tort
Claim Act” against Josephine Session, M.D., Tommy Norwood, Candace A. Tucker,
Kimberly McKay, David E. Potter, Amber Dorsey, Adrian Austin, and Mary Randall,
M.D. The Office of the Attorney General filed an amicus curiae motion to dismiss
pursuant to Chapter 14 of the Civil Practice and Remedies Code. The trial court granted
the motion, and Revels appeals. We affirm.
Background Facts
Revels is an inmate currently incarcerated at the Allred Unit. Revels states that
prior to his transfer to the Allred Unit, he received a “hyper calorie snack.” Revels
contends that while incarcerated at the Allred Unit, he has been denied the “hyper
calorie snack” and has lost over half of his body weight. Revels maintains that he is
“borderline underweight” and that the named defendants showed a “deliberate
indifference to his very serious medical problems.”
Standard of Review
We review a dismissal under Chapter 14 for an abuse of discretion. Hamilton v.
Pechacek, 319 S.W.3d 801, 809 (Tex. App.─Fort Worth 2010, no pet.). When an inmate's
lawsuit is dismissed as frivolous for having no basis in law or in fact but no fact hearing
is held, our review focuses on whether the inmate's lawsuit has an arguable basis in
law. Id. While a Chapter 14 dismissal is reviewed under an abuse of discretion, the
issue as to whether a claim has an arguable basis in law is a legal question that we
review de novo. Id. We will affirm the dismissal if it was proper under any legal
theory. Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990); Hamilton v. Pechacek, 319
S.W.3d at 809.
Dismissal of Claim
Section 14.003 of the Texas Civil Practice and Remedies Code is applicable to the
dismissal of inmate’s claims. Section 14.003 states:
(a) A court may dismiss a claim, either before or after service of
process, if the court finds that:
Revels v. Session Page 2
(1) the allegation of poverty in the affidavit or unsworn declaration
is false;
(2) the claim is frivolous or malicious; or
(3) the inmate filed an affidavit or unsworn declaration required by
this chapter that the inmate knew was false.
(b) In determining whether a claim is frivolous or malicious, the
court may consider whether:
(1) the claim's realistic chance of ultimate success is slight;
(2) the claim has no arguable basis in law or in fact;
(3) it is clear that the party cannot prove facts in support of the
claim; or
(4) the claim is substantially similar to a previous claim filed by the
inmate because the claim arises from the same operative facts.
(c) In determining whether Subsection (a) applies, the court may
hold a hearing. The hearing may be held before or after service of process,
and it may be held on motion of the court, a party, or the clerk of the
court.
TEX. CIV. PRAC. & REM. CODE ANN. § 14.003 (West 2002).
A claim has no arguable basis in law if it relies upon an indisputably meritless
legal theory. Hamilton v. Williams, 298 S.W.3d 334, 339 (Tex. App.─Fort Worth 2009, pet.
denied). Revels claim is based upon the legal theory of deliberate indifference to his
serious medical needs. Deliberate indifference involves more than a disagreement
about how best to treat a medical condition. Lagaite v. Uy, 347 S.W.3d 890, 892 (Tex.
App.─Amarillo 2011, no pet.). Rather, the caretakers must refuse to treat him, ignore
his medical condition, intentionally mistreat him or otherwise engage in conduct
evincing a wanton disregard for his serious medical needs. Id.
Revels claims that he is “borderline underweight” and needs a high calorie
snack. Revels further claims to have lost over half of his body weight; however, the
Revels v. Session Page 3
evidence he presented shows he has lost approximately 20 pounds. The response to his
grievance states “you were seen on 11/11/2010 by the provider and it was determined
that you were not underweight … You were seen on 11/30/2010 by the physician who
noted your Body Mass Index was 22 which is normal for your height and weight.” The
trial court did not abuse its discretion in finding that Revels’ claim was frivolous.
Moreover, Revels filed an affidavit of inability to pay costs. Therefore, he was
required to comply with TEX. CIV. PRAC. & REM. CODE ANN. § 14.004 (West Supp. 2011)
and file an affidavit identifying all previous suits. Revels did not comply with the
requirements of Section 14.004. The trial court was unable to determine whether
appellant's current claim was substantially similar to his previous claims and the trial
court was entitled to assume that the suit was substantially similar to one previously
filed by the inmate, and therefore, frivolous. Garrett v. Williams, 250 S.W.3d 154, 160
(Tex. App.─Fort Worth 2008, no pet.). We overrule Revels’ argument on appeal that the
trial court erred in dismissing his claim as frivolous.
Conclusion
We affirm the trial court’s judgment dismissing Revels’ claims as frivolous.
AL SCOGGINS
Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed March 14, 2012
[CV06]
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