                                    COURT      OF    APPEALS

                                     FOURTH         DISTRICT

                           CADENA-REEVES            JUSTICE       CENTER

                             300    DOLOROSA,            SUITE    3200

                           SAN   ANTONIO,TEXAS             78205-       3037


MARCUS EVERETTE HARPER,                         §
     Plaintiff/Appellant-                       c    COURT OF APPEALS NO:04-15-00489-CV


TEXAS DEPARTMENT OF                             { TRIAL COURT CASE N<>:97,305-C
CRIMINAL JUSTICE,et al                          *
                  Defendants                    §

                             MOTION      FOR    INTERLOCUTORY

                                   APPEAL       TO       PROCEED

                                   DOCKETING         STATEMENT


      To    the    Honorable     Judge    of    this       Court:

   Comes     now    MARCUS   E.HARPER      hereafter             preferred     tor*

Appellant hereby move to proceed under TEX.R.APP.pS52
(SAN ANTONIO)        LOC.R.5.2.,      Docketing Statement.

                                 STATEMENT          OF   THE     CASE

     On    25,    day of   April   2008    at       2:00    Am    the Appellant       (while   incar

cerated on the Clements Unit-T.D.C.J.) was injured due to negligence, cross ne

gligence, and or negligent use of tangible property defendant's at the extended
cell block/ high security kitchen facilty.A plastic trash can (with a defective
wheel) was filled with boiling water, and then it subsequently collapsed. Dumping
its entire (45) gallons-(450LBS) contents on to APPELLANT scalding him. Appellant
was immediately severely burnd with second and third degree burns blistering and
scuffing the skin and muscle most predominantly on the lift leg and foot.

    Appellant was superficially treated at the scene by preson medical staff yet
he had to be transported by ambulance to the Nouthwest Hospital in amarillo, Texas
were upon the (free would) doctors determined tnai. his pain and burns injuries
were so severe that he was transported to the Unversity medical center Trauma

Burn Unit-Texas Tech ^ubbuck Texas. Doctor M.D. Sharmiia looked at my burns gave
Appellant medical care then sent him back that morning to the Clements Unit infir
mary with a standard of medical care that the defendant was suppose to follow.The
defendants inadequate failed to comply with medical care plan and my leg became
infected 1 was in so much pain 1 could not sleep for chree days begged them to
please help me.,so Appelint was sent back to the Burn Center and I seen Doctor
M.D. Sharmiia asked why I haven't came back for follow up. Isaid," the doctor
Revell told me that I didn't need to go back for a follow-up because he is in
charge. Then officer gave the doctor M.D. Sharmiia the records from Bill Clements
as to the treatment they did on Appellant amd M.D. Shsrmia said," I see why he

didn't send you back because he didn't follow instruction.

                           IDENTIFING EACH PARTY IN SUIT


                                     PLAINTIFF

1. Marcus Everette Harper filed I.F.P.      PRO SE

                                    DEFENDANTS


1.   Brad   Livingston-the      executive   directer   of   T.D.C.J.   HE   is   respon

sible for the operations of every Texas Prison;

2. Nathaniel Quartermain - the deputy director of T.D.C.T.- also responsible for

     the operations of texas prison units;

3. Tony D1    Cunlia - laundory and food services T.D.C.J. - ID.   is responsible for

     food service operations on plaintiff's Unit;

4.   Ronald L briggs- Clements Unit food services Captain is responsible supervisor

     of food services on Appellant's Unit;

5. Warden Rodeen- Clements Unit senier Warden on the Appellant's Unit at the time

     of his injury;

6.   Paulw Sloen - Clements Unit assistint Warden on the high security section where

     Appellant was hurt;

7. J.Grimes- Unit assistant Warden on the Appellant Unit of assignment;

8. Stanley Belter - Kitchen supervisor on the extended cell block E.C.B. high

     security Unit where Plaintiff injurt/accurred;

9. Christopher E. Broyes - kitchen security officer CO.5 responsible for safety

     of inmates under this charge shift at (E.C.B) area where appellant;

10. Kendall T.Richerson major of officers/ operations at (E.C.B) area where
       appellant was injured;

11. Dr. Revelle M.D. - was the senior medical authority on the appellant's

Unit of assignment at the time of his injury- he was directly responsible for
the proper diagnoses/ treatment and medical supervision and care of the appellant;
12. Julito Puy M.D- was /is the physician in charge of the plaintiff's

       medical care;

13. Herman Nusz- directer of nursing- also fully responsible for appellant pro
       per medical care;

14. Texas Tech Heath Sciences Cinter- (TTHSC) defendant entity per V.T.C.A. §101.
102.

       On 30th day of October,2014 at pretrial judgment Honorable Judge Ana E. Estevez

dismissed this portion of the suit medical negligence, malpractice and gross ne

gligence. That Plaintiff take nothing by suit against Texas Tech and the employees

of Texas Tech in error claiming that TX.CIV.PROC. and Remedies code 74.351 expert

report requirment was not met by appellant.

                                         2.
                                                      JORIDICTION


      The       tial    court          gave appellant             permission         to    appeal          order       see.(

Vol    1    P.13,18-21).

      On    11-2-2014            appellant           wrote    letter         to    7th    District          Appeals

Court       requesting             permission          to    Appeal.

      On    11-14-2014             appellant          filed       Notice      of    appeal          motion       for    inter

locutory          appeal

      On    3-13-2015             7th    District          court      questioned          its       juridiction             over

appeal          and    requested          that       party    identify            applicable          law       that    gives

the    court          jurisdiction             over    the    appeal         within       twenty       days.

      On    3-27-2015             Appellant          filed    for      interlocutoryappeal                      under       T.C.

PR.C.       §51.014,             and addendum motion 4-5-2015 a                           showing          that      the court
has    juridiction;                and

      On    6-10-2015             7th    Courts       of    Appeals         responded          to    the    plaintiff          and

defendants             motion          notifying       both       partys      that       the    court       has       jurisdic

tion       over       the    interlocutory             appeal,         also

      the       7th    Court       of    Appeal       informed         to    appellant          that       all       four    mem

bers       of    the    court          were    employed       as      adjunct       professors             by    the    Texas

Tech       school       of       law    during       the    2014-2015         academic          year       so    appellant

filed motion                to    recuse       from    hearing         the    appeal       6-5-2015.

      On    8-52015          4th       Court    of    Appeals         sent    out    a    letter       stating          that

Appellant             harper       had    to    file       docketing         statement          by    the       8-172015,

but    appellant             received          the    Court       order      on    the    same       date       ot   was     due

and    on       8-172015,          appellant          filed       a   30    day    extension.

                                                              I

Appellant             filed       his    orgenal       complaint            under    the       Texas       Tort      Claims

act V.T.C.A.101.000,               on Decmder 31,           2008 in the District Court of Pottors County

cause number 97,305-C against Brad Livingston,                               T.D.C.J.     andTexas Tech Health

Science's Center et al,                  defendant's the District Clerk Caroline Woodburn receive

and filed on February 11,2009. Also all defendants were notified by Appellant



                                                             II


      On 24 day of April 2008 Plaintiff was injured on the Clements Unit of Texas

Dept of Criminal Justice institutional Divsion. This prison being within the

confines of Potter County Texas. That gave the 251st District Trial court in

Potter County/Texas jurisdiction.


      Under V.T.C.A.§ 101.000 Governmental liablity - thata "Governmental Unit in

                                                             3
this state is liable for


    (1) Personal injury—• Proximotely caused 'oy the wrongful act(s) or omissions

         or negligence of an employee acting within his scope or employment

    (2) ...Personal injury so cause by a condition or use of tangible personal

         or real property if the Government would (were it a   private person) be

liable to the Claimant according to Texas Law per 101.021.

   Each defendant acted under color of state law and each is sued in their offi

cial and or personal/ individurl capacites pursuant to Texas State Law- and

constitutional authority.

                                      Ill


See O1 Connor's TRCT 2012 ch.6,p.4O9 Discovery Rule for Court

   1.1.Rule TRCP 176,190-205,215.

   1.2. purpose of discovery is to allow the parties to obtain full knowledge
         of the issues and facts of the law suit before trial West v. Solito

         563 s.w.2d.240,243 (Texl978) the objective of the Texas discovery rule

         rule is to prevent trial ambush Gutierrez v« Dallas 729 s.w.2d. 691,

         692 (Tex 19870.

2.2. Documents & tangible things the phrase includes papers, book, accounts,drowing

graphs, charts,photographs electronic or video tape recordings, data,and compila

tions TRCP 192.3 (b)

    A party is required to produce only those documents or tangible things in

its possession,costody or controle TRCP 192.3 (B) Id 856 s.w.2d. at 728-29; See

also IN Re U-Haul Int'l 87 s.w.3d.656-57 (Tex.App-San Antonio 2002 orig procee

ding).

    Under TRCP 191 parties and their attornys are expected to cooperate in dis

covery and to make any agreement that are reasonable necessary to efficently

dispose of the case TRCP 191.2

   A party has 30 days after the date of service of the reguest for documents

to respond, depending on the type of service TRCP 196.2 (a) see Schein v. AMERI

CAN Rest. GBP., 852 s.w.2d.496,497 D.2(Tex 1993). However, a defendant that is

served with a request before the defendants answer is due has 50 days to respond

                                       4
TRCP 196.2 (a).

    Failure to comply with procedures/     If a party does not comply with the pro

cedures for resisting discovery the party waive its objections to discovery and

its claims of privilege and the trial court should comply production TRCP 193.2


(e);eg BOBSON V. MOORE 734 S.W.    2d 340,341    (TEX.1987)   Defendants waived law

enforement privilege because he filed late objections to interrogatories VILLC—

REAL v.DOMINGVEZ 745 s.w.    2d.570.572   (Tex.App.Corpus christi 1988)

    Sanction if a party obuses discovery,       the court may find that the party waived

its discovery privileges and objections. OCCIDENTAL CHEM. CORP v.BANALES 907 s.w

2d 488,490 (Tex.1995); eg, in Re Lovernia Nursing Facility.Inc 12 s.w.3d 566,571

(Tex.App.San Antonio 1999 orig proceeding)       (Court found that defendants concealed

records)


    Section 74.351 does not stay over,     less costly form of discovery additionally,

once a claim is filed under Chapter 74 reuires Health Care defendant's to comply

with the discovery procedures set out in the legislation Tex.Civ.Proc.fi Rem.Code

Ann 74.352 See In Re Memorial Herman Hosp. System 209 s.w.3d 835, 841 (App.14

Dist 2006).


                                          IV


    The defendants stated,"that appellant had to hire his own expert witness that

he could not use the doctor physicain who provided treatment at Burn Center who

was licensed to practice medicine at the time plaintiff claim was arosed. see (

vol 1 p.9 15-25).


    TRCP 192.3 (c) An expert is,"a person with knowledge of relevent facts" only

if that knowlegde was obtained first-hand,or if it was not obstaned in prepara

tion for trial or in anticipation of litigation.

    O'Connor's TRCT ch6. p.483 §3.1,2 Discovery about nonretained expert. There

are four discovery procedures that can be used to secure information about or

from a nonretained testifying expert:

    (1) a reguest for disclosure
    (2) an oral deposition
    (3) a deposition on written question, and
    (4) a subpoena TRCP 176,194.2 (f) (l)-(3), 205.1
      Appellant did not see the discovery on the appeal cover sheet. So plaintiff

only can direct the Appeals court to the spot where the discovery should be. see

A.C.S. 117-119. pg278-281 Appellant states there's evidence in the discovery that

showes this cause of action has merits for instance:

1) the standard of care by the Burn Medical Center, see(discovery Harper 352-354)

2) the defendants failed to follow the standard of care, see discovery harper

223-227,and 284- 308) also

3) the doctor sharmila stated,"that the defendants failed to follow orders" that's

why plaintiff is back to the Burn medical center,         treatment to contain infection:

date of amission on: 5/1/2008

Date of discharge; 5/10/2008

Resinent physician; Jaenna Wishnew,       M.D.

Attending physician;     Sharmila Dissanaike M.D.

Dictating clinicain: Jaenna Wishnew M.D

Reason for admission:

      Hospital course:   this is a 34 year old male who received scald burn on his

left lower extremity. He presented to the ER and they provided wound care in

structions which the prison unit did not follow so he retuned to the Er with

an infected left lower extrmity.       he was put in accuzyme wound care for several

days to se how the wound respond,      on hospital day four his wound was able to be

taken to the Er for excision on 5/7/2008 he was able to be taken to the Er for

excision and grafting performed,       and verified by dissnake M.D.Sharmila 10 may

2008 18:59 and 15 may2008 7:27.        see (Harper 070)

                                   DEFENDANTS DEADLINE

                                   RESPOND TO DISCOVERY

        SERVED BY U.S.MAIL                                       5 DAYS+ 30 DAYS = 35 DAYS

1. APPEALS COVER SHEET

12. ORIGINAL COMPLAINT,      2-11-2009 pg.15 AT pg6 DISCOVERY;

13.    DISCOVERY 2-11-2009 pG.52

15.    DISCOVERY LETTER 3-29-2009 pg.56

24 DISCOVERY MOTION TO COMPEL 11-06-2009 PG.        68

28.    MOTION FOR REQUESTING TO DEVELOPE DISCOVERY PLAN 3-3-2010 pg.73

30 COMPEL DISCOVERY 10-11-2010 PG.76

33.    -34.   COMPEL DISCOVERY 11-8-2010 PG.78

40 MOTION FOR DISCOVERY CONFERANCE 3-10-11 PG.91

41.mOTI0N FOR PRE-TRIAL CONFERENCE 1-4-1011 PG.92

44.REGUESTING MEETING TO DISCUSS THE NATURE AND BASIS OF THE CLAIM 3-15-1011 PG.95

                                            6
     APPELLANT RECEIVED NO ANSWER FROM DEFENDANATS ABOUT DISCOVERY REQUEST.

  TCPR 74.351 after filing an compaint plaintiff has 120 days to serve expert

repert.

   TCPR 74.352 defendants have 45 days to comply with discovery (b)(d).
   Or the defendants above the rule of discovery TCPR 74.352 (b)(d) where
they don't have to comply and with-hold evidence until time runs out for appel
lant to serve expert report, but appellant has to try to comply with the expert

report with no discovery.

    this is just like a chess game appellant made the frist move by requesting
discovery on time., but the defendant failed to make their move by complying with
discovery request. So appellant could comply with the serving of expert report.

                                     CONCLUSION

   Do to the defendants not allowing appellant to have his discovery motion

granted. ,   .

   Appellant did his on back grownd research/but he wanted to know what the

defendants had for or against him before he filed expert report.I needed all

evidence in this cause to estadlish these facts stated in this motion.

                                        PRAYER


   For all the above reasons stated in appellant motion prays that the Honorable

Appeals Court Judge to reverse this judgement.


                              CERTIFICATE OF SERVICE

   Appellant, do hereby certify that a true and correct copy of this document

was served upon the defendants though the attorne General Christin Code Vasquez

P.O.box 12548 MC 003,   Austin,   TX 78711. and Fourth Court of Appeal District

Cadena-Reeves Justice center,     300 Dolorosa,suite 3200,   San Antonio/TEXAS 78205-

3037.

   I,Marcus Everette Harper #692332,     being presently incarcerrated in Bill

Clements Unit does hereby declare that all of the foregoing is true and correct

to the best of knowledge and recolection under penalty of perjury (28 U.S.C.§

1749) on 23 day of August 2015 sworn executed.

                                                       Marcus E.Harper #692332
                                                       Bill Clements Unit
                                                       9601 Spur 591
                                                       Amarillo,   Tx 79107
