                                     NO. 07-03-0335-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL E

                                       APRIL 20, 2004

                           ______________________________


                             CALVIN RAY CASH, APPELLANT

                                               V.

              KELLY SUTTON, ADMINISTRATOR, NURSE ABERNATHY,
                        NURSE KAYS, LVN, APPELLEES


                         _________________________________

             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                    NO. 91,204-E; HONORABLE ABE LOPEZ, JUDGE

                           _______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J.1


                                 MEMORANDUM OPINION


       Appellant Calvin Ray Cash, an inmate proceeding pro se and in forma pauperis,

challenges the trial court’s order dismissing his claim for alleged violations of his civil rights


       1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
against appellees Kelly Sutton, Nurse Abernathy, and Nurse Kays, employees of the Neal

Unit of the Texas Department of Criminal Justice. We affirm.


       Cash filed a complaint against the Neal Unit employees contending they violated his

civil rights by withholding medical treatment for hepatitis C and other diseases. The trial

court dismissed his claim as frivolous and also added that the “realistic chance of ultimate

success is slight pursuant to Section 14.003(b)(1).” See Tex. Civ. Prac. & Rem. Code Ann.

§ 14.003 (Vernon 2002).2


       Although Cash does not raise a point of error or an issue challenging the trial court’s

discretion in entering the dismissal order, he inadequately argues the State is obligated to

provide medical care to inmates and that failure to do so constitutes cruel and unusual

punishment.


       Dismissal of a claim under chapter 14 of the Code is reviewed under an abuse of

discretion standard. McCollum v. Mt. Ararat Baptist Church, 980 S.W.2d 535, 536

(Tex.App.–Houston [14th Dist.] 1998, no pet.); see also Hickson v. Moya, 926 S.W.2d 397,

398 (Tex.App.–Waco 1996, no writ). Abuse of discretion is determined by whether the

court acted without reference to any guiding rules or principles. Downer v. Aquamarine

Operators, Inc. 701 S.W.2d 238, 241-42 (Tex. 1985). The mere fact that a trial judge may




       2
       The Court discourages trial courts from dismissing suits due to a determination that
an inmate has a slight realistic chance of success. Johnson v. Lynaugh, 796 S.W.2d 705,
706 (Tex. 1990).

                                              2
decide a matter within his discretionary authority in a different manner than an appellate

judge does not demonstrate that an abuse of discretion has occurred. Id.


       We recognize that a governmental entity has an “obligation to provide medical care

for those whom it is punishing by incarceration.” West v. Atkins, 487 U.S. 42, 56 108 S.Ct.

2250, 101 L.Ed.2d 40 (1988), citing Estelle v. Gamble, 429 U.S. 97, S.Ct. 285, 50 L.Ed.2d

251 (1976). However, a review of the record supports the trial court’s decision to conclude

that Cash’s claim was frivolous. The record contains numerous complaints from Cash by

which he claimed he was denied necessary medication. After being investigated, the

complaints were answered either by inter-office communications, grievance responses, or

letters indicating that when Cash did not receive his medication it was due to his repeated

refusal to follow officers’ instructions. One letter notes that medication is dispensed at the

“pill window” at the same time as inmates proceed to meals to better monitor traffic in the

unit. Cash was advised to follow the rules within the unit as security dictates. See Lilly v.

Northrep, 100 S.W.3d 335, 337 (Tex.App.–San Antonio 2002, pet. denied) (holding the trial

court did not abuse its discretion in dismissing an inmate’s claim as frivolous because the

record showed his grievances were addressed and he did receive medical attention and

medication). We conclude the trial court did not abuse its discretion in dismissing Cash’s

civil rights action and overrule his contention.


       Accordingly, the judgment of the trial court is affirmed.


                                           Don H. Reavis
                                             Justice

                                              3
