                                  NO. 07-04-0564-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL E

                                  JANUARY 30, 2007

                         ______________________________


                          JAMES LEE SWEED, APPELLANT

                                           v.

                         DR. MANNING, ET AL., APPELLEES


                       _________________________________

             FROM THE 99th DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2003-522,601; HON. MACKEY K. HANCOCK, PRESIDING

                        _______________________________

Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1

                              MEMORANDUM OPINION

      In this appeal, appellant James Lee Sweed, an inmate of the Texas penal system,

appearing pro se, challenges the dismissal of his suit against appellees Stephen M.

Manning, M.D., Shijahov Vahora, M.D., and Dana A. Butler, M.D., all psychiatrists. In his

suit, appellant asserted that appellees violated his federal constitutional rights by

prescribing psychiatric medications to control what they had diagnosed as his paranoid

      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).
schizophrenia. The trial court dismissed the suit as frivolous. We affirm the judgment of

the trial court.

         The appeal presents the question whether the trial court abused its discretion in

dismissing appellant’s suit under Chapter Fourteen of the Texas Civil Practice and

Remedies Code which permits the dismissal of frivolous inmate lawsuits.

                                           Statute

         Effective June 8, 1995, the legislature enacted Chapter 14 of the Civil Practice and

Remedies Code entitled “Inmate Litigation.” Tex. Civ. Prac. & Rem. Code Ann. §§14.001-

014 (Vernon 2002). The statute was enacted to control the flood of frivolous lawsuits being

filed in the courts of this state by prison inmates, consuming valuable judicial resources

with little offsetting benefits. Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.–Waco

1996, no writ). With the exception of actions brought under the Family Code, Chapter 14

applies to suits brought by an inmate, such as appellant, who has filed “an affidavit or

unsworn declaration of inability to pay costs.” Id. at 398. Section 14.003 of the statute

provides that the trial court may dismiss a claim if the court thinks the claim is frivolous or

malicious, and that it may do so with or without a hearing. Spurlock v. Schroedter, 88

S.W.3d 733, 736 (Tex. App.–Corpus Christi 2002, no pet.). Under the statute, a trial court

may find a claim frivolous if its realistic chance of ultimate success is slight, it has no

arguable basis in law or fact, or it is clear the party cannot prove facts in support of the

claim.     Tex. Civ. Prac. & Rem. Code Ann. §14.003(b)(1)-(3) (Vernon 2002).

Parenthetically, even though appellant is proceeding pro se, he is held to the same

standard as licensed attorneys and must comply with the applicable laws and rules of



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procedure. Carson v. Walker, 134 S.W.3d 300, 302 (Tex. App.–Amarillo 2003, pet.

denied).

                                     Standard of Review

       A trial court’s decision to dismiss an inmate’s suit under Chapter 14 is reviewed

under an abuse of discretion standard. Wallace v. Texas Dep’t of Criminal Justice-

Institutional Division, 36 S.W.3d 607, 610 (Tex. App.–Houston [1st Dist.] 2000, pet. denied).

A trial court abuses its discretion when it acts without reference to any guiding principles

or, stated another way, it acts arbitrarily or unreasonably. Hickson v. Moya, 926 S.W.2d

at 398. In making 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.

                                          Discussion

       In 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



                                               3
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



                                             4
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




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