Allen "F" Calton v. Steve Schiller, 06-15-00062-CV

Allen "F" Calton v. Steve Schiller

06-15-00062-CV

| Tex. App. | Nov 24, 2015

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Case Information

Oral Argument Not Requealed

Aprellant's Grief

Identity of Parties and Counsel

The following is a complete list of all Parties, as well as the names and addresses of all counsel.

Appellees Steve Schiller, Sharon Keller T'rial Attorney for T'rial Attorney for Appellees Tarrin Luingston, Louis stums David A Harris Assistant Attorney General 300 W. 1st hist. Austin, TX 78701 Christopher Ponder Tarrantounty Assistant District Attorney 401 W. Gellkrapst. Fortworth, TX. 76196 Appellate Attorney Demetri Anastasiadis Texas Attorney General 300 W. is th st. Austin, TX. 78701

Table of Contents

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Ed entity of parties and counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Table of Contents

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Appellants Fourth pointofError The District Court erred by denying Caitons Civil Injunctue Refeff Reques on his 3 1982 claims due to the extraordinary and exceptional circumstances of the instant case and the complete failure of the system i.e. Cation has no other adequate renedy at law. Although it is undisputed Cation's Constitutional Reights were violated - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Index of Authorities

cases pages America Petrofina Inc v Allen 887 su2d 829 (Tex 1994). . . p. 47 Amoco Prob. Co. v village of Gambell 480Us. 531 (1983). . . p 36 Armstrong v Randle 881 su2d 53 (Tex App.Tearkara 1994 unit derd) = p 34 Ballantyne v Chapman Gulbers Inc 144su3d 417 (Tex 2004). . . p. 24,25 Ex parte Banks 764 su2d 539 (Tex Grim App 1989). . . . . . p. 39 Gannercraft clothing Co. v Reregoliation Board 4444 F2d 34 (OCC.II 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Index of Authorities

COSES

Page cutup of Lancaster v Chambers 8831022650 (1994) ..... p. 24 clork v Stadler. 154 F3d 1860 (5th Ctr 1998) ..... p. 12,13,14 cloud v McKinney 2285032326 (Tes.Ap. Austin 2007) ..... p. 24 clutchette v prounter 497 F2d 809 (94Ctr 1974) ..... p. 16,17 conley v Gibion 385 U.S. 41 (1957) ..... p. 10,23 Cook vTOUS trans. Hon. Dept. 37 F3d 1660 (5th Cir 1994) ..... p. 16 cooper v Pate 378 U.S. 546 (1964) ..... p. 21 cortez Ithos Inc. v Sum Holding L.P. 949 FAd 42 (2d Cir 1991) ..... p. 1 County of Cannon v Brown 805032549 (Tes.2002) ..... p. 50 Dallas County v Halsey 875032552 (Tes. 2002) ..... p. 25,27 deor field med Ctr. v City of doorfield Beach God F2d 328 (5th Cir out 61911) ..... p. 39 Dani zic v Progressive County mtd. Jns. Co 545032867 (Tes.Ap. Austin 2000, pot den) ..... p. 49 Downer v Agga marine Operators JnC 701 F2d 238 (Tes. 1995) ..... p. 29 Droper v Washington 372 U.S. 437 (1963) ..... p. $41, 42$ e Bay Inc. v mec Exchange LL 547 U.S 88 (2006) ..... p. 36 Edwards v Galisok 1175 Ctr 1584 (1997) ..... p. $11, 13, 17, 18, 21, 22$ E1kod v Burns 427 U.S. 347 (1976) ..... p. 39 Ex Parte Evans 9425022645 (Tes. Cm App. 1998) ..... p. 20 Evilts v Luey 105 s.ct 840 (1985) ..... p. $41, 42$ Index of Authorities Page $V$

Index of Authorities

cases pages Falle v Upjohn Co. 999522999 (9 m Cu 1992) Foreslar v white 494 u.S. 219 (1988) Garcus - moroguin v Meeus County bail Bons 8d Isw3d 3 3w C TEX App Corpus chritti no pet'h ) . . . . -p.36 Couvell v adriguez 225 sw3d 759 CTEX AppEi4-Tn, 04422007) . . . p.31 Georgeatch v Strauss 772 F2d 1078 (3dCir 1985) . . . . . . p.16 Greslein v Pugh 420U.S. 103 (1975) . . . . . . . . . p.17 Gibson v Tolbert 102 sw3d 710 (Tex 2003). . . . . . . . . 29,30,34,34 Go. Dably.com LLC v Toup.s 2014 WL 1399776, at * 2 CTEX App Geament April 10, 2014) no pet, h.). p. 1 Coswoni v metropaliton sav and Loan Ass' n 755 w2d 487 (Tex 1988). p46 Guereque v Thompson 952 sw2d 458 CTEX App. El pato 1997) . . . . . . . . . 47 Haines v Kerner 404 U.S.419 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Index of Authorities

cases pages Holdber v Bradenberger 2145032650 (Tes.Appr.Austin 2000). - p.37,38 Holland Am Dis. Co v Succesion of eay 777 F2d 992 (sth.Cir 1935). - p. 39 Honey v County of Victoria 8325022701 (Tes.Appr.Corpuschristi 1992). p. 34 Houston v Lack 487 U.S. 266 (1980) . . . p. 45 Hudson v whitley 979 F2d 1058 (sth.Cir 1995). . . . . p. 43 Ex parte Hughes 1295022270 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Index of Authorities

Cases pages In re Logan 2003 Tex. App Lexis 4499 mathis v hood 937 F2d 790 (2nd Cir 1991) $\cdot$ $\cdot$ $\cdot$ $\cdot$ P.39,48 mayer v City of chicag0 404 us. 189 (1971) $\cdot$ $\cdot$ $\cdot$ $\cdot$ P.41 middaugh v state 693 sw2d 713 (Tex.Crm.App. 1985) $\cdot$ P. 38 mireles v Waco 502 u.s. 9 (1991) $\cdot$ $\cdot$ $\cdot$ $\cdot$ P. 28 monk v secretary of the Navy 793 F2d 364 (O.C.1996) $\cdot$ P. 17 morris v Dearborne 181 F3d 657,1sth Cir 1993) $\cdot$ $\cdot$ $\cdot$ P. 37 m uthornad vclose 540 U.S. 749 (2004) $\cdot$ $\cdot$ $\cdot$ $\cdot$ P.20,21 Nelson vKrusen 679 sw2d 918 (Tex. 1984) $\cdot$ $\cdot$ $\cdot$ P. 41 wnTC Corp v Canaroe 99 sw3d 805 (Tex.App. geaurment 2003). P. 40 Nueces County v Ferguson 975 w3d 205 (Tex.App. compusdrish 2022 mapol). P. 23,24 ofletv solern 823 F2d 1256 (8 thcir 1997) $\cdot$ $\cdot$ $\cdot$ $\cdot$ P. 21 orellon vkyle 65 F3d 29 (sthcir 1995) $\cdot$ $\cdot$ $\cdot$ P. 15,17 o'shea vLittleton 414 us. 488 (1974) $\cdot$ $\cdot$ $\cdot$ P. 40,48 Ex.parke owernby 749 sw2d 880 (Tex.Crm.App. 1988) $\cdot$ P. 39 pierte v united states 525 F2d 933 (sth.cir 1976) $\cdot$ P. 11 Pickell v Brooks 846 sw2d 421 (Tex. App. Austin 1992 unit bap). P25,28 preiser v Rodriguez 411 U.S. 475 (1973) $\cdot$ $\cdot$ $\cdot$ $\cdot$ P. 15,1718,19 Index of Authorities page VIII

*10

Index of Authorities

Cases pages Public Utility Comm. 4 Cofer 7545422121 (Tes.1988) - - p. 34 Pullam v a 11en 466 U.S. 522 (1984) . . . . . p. 49 Qualls v Shaw 525 F2b 318 (5th Cir 1976) . . . . . p. 14,15 Reiner t 11 aras 585 F. Supp 789 (N. O.Towa 1980) . . . . p. 42 Rheuork v Shaw 547 F2d 1257 (Smar 1977) . . . . . p. 14,31 Rheuork v Shaw 628 F2d 297 (SmeCir 1980) . . . . . p. 39,48 Routier v state 1125032 S54 (Tes. CrimApp 2003) . . . . p. 39 Exparte Sadbarry 864 sw2d 541 (Tes.Crim App 1993) . . . p. 38 Scott v Galagher 2095432 262 (Tes.App HoustonEitt oist 200, no pol) p.9,22, 23 Seio v members of Louisiana state 8 d . of pardons 821 F2d 1112 (5thCir 1987) p.12,13 Sgortacus Yarth League v 8 d . of Trubers 502 F.Supp. 789 (N. O.Til 1980). . p. 42 state v Lain 349 sw2d 579 (Tes 1960) . . . . . . p. 25 state v Texas pet food, Inc 591 sw2d 800 (Tes. 1979) c . . . p. 35 State Bar of Texas v kilpabuck 8745422656 (Tes 1993) . . . p. 47 State dept.11w4s and Pub.Transp. v Gonzaiez 82,5432522 (Tes 2002) . p. 49 Stare-Bey v Barnes 120 F3d 718 (7th Cir 1997) . . . . . . p. 47 Stumps v sparkman 435 U.S. 339 (1978) . . . . . p. 38 Index of Authorities page IX

*11

Index of Authorities

Cases pages Swann v charlotte - meeklenberg 8d, of Educ 402 u.s. (c1870) - p 44 Taylor v Books A million Inc 296 F3d 376 (sth Cir2002) - - p. 48 Taylor v United States Prdo office 409 F3d 426 (aC 2005). . p. II teague v Lane 489 u.s. 298 (1999) - - - - p. 20 terrellewel Estate of Terrell v sisk Illsw3d 274 (Tes.App Texarkans 2003) - - . p25,88,29 Texas Aand M v Kareghe 255 sw3d 835 (Tes 2007) - - p. 24,50 Texas Health Case Infor Counv sekan Health Plan Inc 94 sw3d 841 (Tes. App Austin 2002) - - - . . p40 Texas parks and wildlife dep't v E.E. Lowery reality, Ltd 155 sw3d 456,458 (Tes. App.waco pet filed) - - p. 24 Ex Parte Ttwar 901 sw3d 474 (Tes. (om App. 1995) . . . . . p. 39 Ex Parte Ttamer 181 sw3d 558 (Tes. (om App. 2005) . . . .p. 41 Traveler's I don Co V mayfield 923 sw2d 590 (Tes 1996) -p.39,32,53 Turner v Rogers 1315 ct 2507 (2011) - - - p. 30 Twilligeor v Carrell 148 sw3d 502 (Tes.App Houston (civolit 2004) p28 wathing v metcalfe 963 sw2d 56, 57 (Tes.1993) p . . . p. 36 warner v Glass 155 sw3d 691 (Tes 2004) - - - p. 45

Index of Authorities page X

*12

Index of Authorities

cases unled states ex rel willard, Humm Health Plan of Tet.rinc. 334832375 (5th Ctr 2003) " " " - p 1 willian v Dotion 125 s.c. 1242 (2005) " "p18,19,20,21,22 willians v Compressors Eng's Corp. 70 704 sw224469 (Tet App. Houston (14th Dut 1959unt seid n.ce) : p. 37 woff $v$ me Donnell 418 us. 539 (1974) " " " " p1819,20,21 Ex. Parle Young 209 us. 123 (1909) " " " " p. 40

U.S. Constitutional Anandments

U.S. Const Anand VI U.S. Const Anand XIV p. 14 18,34,42,48

Federal Code's , Rules and Statutes Fed R. Com. R Rule 326 K ) (1) " " " p. 20 18 u.s.c. 83626 (a) " " " p. 42 28 u.s.c. 8244 " " " " p. 10 28 u.s.c. 8244 (b)(2)(e) " " " p. 38 28 u.s.c. 8244 (b)(3)(c) " " " p. 38

Index of Authorities page $X i$

*13

Index of Authorities

cases

$42 u .5 . . $ 1983 \dots \dots$

$42 u .5 . . $ 1997$ e (e) Texas Codes, Rules, and Statutes Tex. Gov't Code $$ 24.016$

Tex.Civ.Proc. Ren Code $$ 101.021$

Tex. Cade crim ProC Art 42.01 (1)

Tex. R.Civ.P Rule 63

Tex.R.App. P Rule 34.6 (e)(3)

Index of Authorities page Xii

*14 Paints About Appellants Brief, Record References and the Number of Clerks Record

There are three different Clerks Record making Up the Recordon Appell, with each containing one volume. The initial Clerks Record Filed on 9-30-15 will be referred to below as "CR". The First Supplemental Clerks Record Filed on 9-2-15 will be referred to below as "1st Supp. C.R." The second Supplemental Clerks Record Filed on 9-6-15 will be referred to below as "2nd Supp.CR."

Out of an abundance of Comtion not Knowing with certainty whether The Eighth or The Ninth Anended Complaint is the Live Reading. Both will be referred to whenever citations herein are made to the complaint and any exhibit attached thereto. Because in this Court's De Novo Review may consider facts set forth in exhibits attached as part of the complaint as well as those in the complaint itself. See Cortec Indus Inc v Sumthaking L.P. 949 FJd 42.47 (2d cir 1990) (noting that a complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference). Further the Court in its de Novo review can take judicial notice of public Record documents. See Langdale viviflanil 8135-422 157, 159-90 CTEL. App. Handon (14th 01571991, no pet) (Taking judicial Notice of a judgment of disbument because "the judgment is a matter of public record" and as such, it is capable of accurate and ready determination by resort to a source whose accuracy cannot be reasonably questioned). Matters of yubicial notice are properly considered at the pleading stage. Cf milled States ex rel willord v Humana Health Plan of Tex. Inc. 326 F3d 375, 379 (5th Cir 2003) (stating that a court may look to "matters of which yubicial may be taken when considering a motion to Dismiss under Fed.R.Civ.P. 12(b)(c)) See also Go Oaddy.com LLC v Toups .... 543d ---; 2014 WL 1389776, at *2 CTEL App Becomont Apr. 10, 2014, no pet.h) (while not identical, Tex. R.Civ. P. 91 A is analogous to Rule 12 (b)(c) (c). therefore we find case law interpreting Rule 12 (b)(c) (c) (c). Finally the Eighth and Ninth Anended Complaints are indistinguishable with Appellant's Opening Brief page 10650

*15

the exception of the fact that the Ninth Anended Complaint has the 'Barker' factors and elements necessary to state a claim of the excessive retardation and delay of An effective appeal. see cR.vol. 1 P. 510-512. Which allegations establish there exists a continuing, present above effect. Warranting that action receive the injunctive belief sought herein.

Statement of the Case

This appeal resulted from a suit seeking damages under state common law claims and injunctive relief under 42 U.S.C. 81983 . on s.21-14 the District Court granted the defendant Judges sharon Keller, Térie Lvingston and Louis Stwns motion to Dismis for Lack of subject matter Jurisdiction.seecR. vol. 1 p. 40 . on 12-1-14 The District Court denied Appellants motion for Appointment of counsel. see cR.vol. 1 p.16s. on 6-1-15 the District Court granted steve schillers motion to Dismis pursuant to Chapter 14 of the Civ. Proc. Ren. Code. see cR.vol. 1 p. 450 . on 6-2515 Cation filed his motion for Leave To Amend and supplement His Pleading with the Ninth Anended Complaint and supplement to the Ninth Anended Complaint. See 2nd supp.CR.vol. 1 p.11-17. on 7-9-15 Cation filed his objection to the trial Courts failure To Rule on Cattens motion for Leave To Amend and Supplement his Pleading with the Ninth Anended Complaint. sge cR.vol. 1 p. 675-674

Issues Presented

Issue No!

whether the trial Judge erred in granting defendant steve schillers motion to Dismis Appellants claims under $$ 1983$

Issue No. 2

whether the trial Judge erred in granting defendant steve

Appellants opening erief Page 2 of 50

*16 Schiless motion To Dismiss Appellants State Common Law claims Issue No. 3 whether the trial judge erred in deving Catton's motion for Appointment of counsel.

Issue No. 4 whether Catton is entitle to civil Relief on his claims under 8012 due to the extraordinary and exceptional circumstances of the instant case and the complete failure of the system.

Issue No. 5 whether the trial countabused its discretion in failing to grant Catton Leave to Anand his Complaint with the Ninth Ananded Complaint and for failing to reconsider its judgment in light of the Ninth Ananded Complaint.

Issue No. 6 whether the trial judge erred in granting Defendant Judges motion To Dismiss For Lack of Subject matter Jurisdiction.

Statement of Facts Prose Appellant, Allen"F" Catton (hereafter Catton or Appellant), represented himself in the trial court in this civil action as well as during the underlying criminal trial. Catton was convicted of attempted murder in Cause No. 6445168 in the 215th Judicial Court and sentenced to Life Imprisonment on s-20-04. The trial court entered its certification of the right to appeal on s-20-04. Catton filed his notice of Appeal on s-20-04 and his motion For Free Reporters Record and Affidawit of Inability To Pay for Counsel and Reporters Record. Said motion was granted by the consulting court on s-20-04. See CR. vohl Eighth

Appellants opening Brief Page 306 SD

*17 Amended Complaint (hereafter "5th") at p. 272-275 and Ninth Arrested Complaint (hereafter "9th") at p. 537-540. On or about 44-05 Catton received a copy of the brief Appellate Counsel Entry Aiford (hereafter Aiford) was going to be filing on Cattonis behalf. After reading said brief Catton noticed no references or citations were made to the pretrial hearings. Catton timely notified mr. Aiford of this fact. And requested those transcripts be supplemented to the record on Appeal. See C.R.vol.1 "8th" at p. 276 and "9th" at p. 541 . Mr. Aiford then consulted with Court Reporter Steve Schiller (hereafter Schiller) about the matter. At which time Schiller erroneously stated that the records Catton were inquiring about via mr. Aiford were concerning hearings on different cases and not the attempted murder case. See C.R. Vol. 1 "8th" at p. 281 and "9th" at p. 545. Cattonis Direct Appeal As of Right was subsequently resolved on an insufficient and incomplete record on 11-17-05 by the second District of Texas Court of Appeals. Appeal No. 02-04-228 C.R. Catton filed a writ of Habers Corpus on 3-16-06 and alleged in G sound * II that "Records lost or destroyed were necessary for Appeal". However Relief was denied on this claim because The Trial Court relied on the misrepresentation Schiller made to the defense as the truth of the matter in Trial court wnt No. C-213-007619-084 SI68A , WA-65-590-07. See C.R.vol.1 "8th" p. 355-357 and "9th" at p. 620-622 After writing several letters to Aiford, Schiller and the trial Convicting court in an attempt to procure the relevant records to no avail. See C.R.vol. 1 "8th" at p. 235 and "9th" at p. 498. Catton always hesitant to impugn the reputation of a government official was left no choice but to file a complaint with the Court Reporters Certification Board (hereafter CRCB) against schliter. Due to Schiller's failure to prepare the relevant pretrial hearing records, Id "8th" at p. 235-236 and "9th" at p. 498-499. which Schiller responded to cattonis Complaint on 3-29-12 and admitted he failed to transcribe relevant pretrial records requested by Catton. Id "8th" at p. 281, - 282 and "9th" at p. 545-546. The C.R.C.B.

Appellants Opening Brief page 4 of 30

*18 issued its final order on 12-7-12 finding schiller violated Rule X (a)(4): Incompetence. Due to schillers failure to prepare transcripts for pretrial hearings that were properly requested by calton and his failure to make reasonable inquiries about the extent of the record. See C.R. Uol. "8th" at p. 285-297 and "9th" at p. 549-551. After receiving schillers response dated 3-29-12 to Calton's complaint that was made with the C.R.C.6. which calton received on 4-13-12. Catton began filing units of Hobeas Corpus seeking both an out-of-Time-Apeal and/or A New Trial due to his direct appeal was resolved on an incomplete and insufficient record. See W.R.-65-590-14 through W.R.-65-59017. However the court of Criminal Appeals Refuses to take any action on these units. See C.R.Uol. "8th" at p. 3602 and "9th" at p. 627 . Catton then sought leave from the Fifth Circuit U.S. Court of Appeals to file a successive writ due to the newly discovered evidence obtained by calton on 4-13-12 Confirming that his appeal was resolved on an incomplete and in sufficient record and the omitted records were necessary for an effective, fair and meaningful appeal. The Fifth Circuit denied Calton leave to file a Federal petition on 12-11-13.11 U.S.C.A. No.13-11083 See C.E. Vol. $p {.8}^{th}$ "at p. 360-361 and "9th" at p. 625-626. which establishes that calton has no remedy at law under Hobeas Corpus in state or Federal Court. Although it is undisputed schillers' incompetent reporting practice in the preparation of records for appeal has deprived Calton of a meaningful appeal. Catton then filed his complaint under 31983 in the district Court seeking Insuctive Relief on 2-20-14. In particular calton seeks a complete and sufficient record on appeal and an out-of-time-appeal to effectively utilize said record to raise both his Right TO speedy Trial and Brady Violation claims. I'd "8th" at p. 215-222 and "9th" at p. 478-485. Catton filed his motion for

Appealant's Opening Arief page 5 of 50

*19 The Appointment of Counsel on 10-21-14. see C.R.vol.I p.140-151. In support of said motion Catton filed an affidavit. See Id at p. 121-139. Catton also filed an affidavit of indigenuy on 10-21-14 putting the court on notice that he was too poor to afford to hire counsel and also forwarded a certified copy of his inmate trust fund account statement confirming a balance of $$ 0.00$ in his account. See 1 st supp C.R.vol.I p. 4-6 and 2 nd supp C.R.vol.I p. 5. Catton is mentally ill and has been diagnosed with major depression with psychotic features and is prescribed a substantial amount of psychotropic medications. See C.R.vol.I p.125. Said medications prevents Catton from effectively litigating his claims and protecting his rights. Id at p.123-124. which requires Catton when he can afford to boso to seek assistance from fellow prisoners to prepare and file pleadings. Id at p.124-125. However Catton can out of money and could not pay fellow prisoners the commissary food items they charge to provide their services and had to sell his food trays for legal assistance. Id at 124-125. and went hungry due to mixing multiple meals daily. Id at 124-125. The other alternative Catton hadwas to mix several doses of his medications in an attempt to prosecute his lawsuit. Idat 125-126. which poses a substantial risk to Catton's safety andwell being. Because when Catton misses two many boxes of his major depression medication causes him to experience the desire to cut his wrists, have fatalistic thoughts and wanting to die. Id at p.126-127 and 132-139. On 5-29-15 pursuant To The Prison mailbox rule Catton filed this Ninth Anended Complaint. See C.R.vol.I p. 556 and p.666. This was two days before the trial court issued its order granting Schiller's motion TO Dismiss. Id at p. 450. However for reasonsunbeknownst to Catton his Ninth Anended complaint was not file marked

Apgellant's Opening Brief page loof 50

*20 Until 6-15-15. I'd at 667. On 6-15-15, Calton finally received the Trial Court's orders dated 5-29-15 and 6-1-15 that denied caltons motion for a preliminary IYyunction and granted schiller's motion to Dismiss. See Calton's motion TO Anend with facts contained therein sworn to under the penalty of perjury. See Jnd 5 uppCR.vol.1 p.11-17. Specifically see p.12. Also see said orders. CR.vol.1 p. 498 and 150 respectively. At which time Calton prepared and mailed his motion to Anend on 6-15-15. After being put on notice that leave to amend was reeded due to filing his ninth Amended Complaint within seven days of the 6-1-15 hearing date. I'd at p.17. Contemporaneously filed with said motion for leave to Anend Calton filed his letter to the 153 rd court coordinator. Requesting a hearing date of 6-29-15 on said motion. As well as his notice of Hearing by submission for said motion and the order granting said motion. I'd at 18-20. Calton also provided the court coordinator a copy of said motion and the order in compliance with Tarrant County Local Rule 106 (b). A requisite to obtaining the requested hearing date. I'd at p.20. Additionally, Calton put the trial court court on direct notice of the filing of said motion and the requested 6-29-15 hearing date. I'd at p.20. Calton also demanded that the trial court rule on said motion for leave to Anend. See CR.vol.1 p.628-631. Finally, Calton filed and personally forwarded the trial court a copy of his objection to the trial Court's failure to make on his motion For Leave to Anend his Complaint with the Ninth Amended Complaint. See CR.vol.1 p.673-674.

Summary of The Argument

Point of Error One: The Trial court erred in dismissing Calton's claims

Appellants opening grief page 7 of 50

*21 under 31983 against schiller. specifically Caltoris claims and the relief sought did not seek to challenge the fact or duration of his confinement. Nor did Caltor seek relief that would implicate the Validity of his conviction.

Point of Error Two." The Trial court erred in dismissing Caltor's state common Law claims against schiller. specifically caltors ued schiller in his individual capacity. while carrying out his ministerial acts and thus schiller was not entitle to official or sovereign immwity.

Point of Error Three." The trial court erred by Fating to Appinit counsel for calton who is mentally ill. who had to miss multiple meals a day and go hungry and/or miss doses of his medications and risk his health and safety in an attempt to prosecute his lawsuit. And whose liberty was at-stroke.

Point of Error Four." The trial court erred by dismissing Caltoris 31983 claims and denying him clivil Injunctive relief. Although exceptional and extraordinary circumstances existed and due to there being a complete failure of the system i.e. Caltor has no other adequate renedy at law. Although it is indisputed caltors constitutional mights were violated.

Point of Error Five." The trial court erred by not reconsidering Caltoris claims under 31983 in light of the Ninth Aneded complaint that was timely filed pursuant to the prison mail box rule and due to the fact Caltor sought leave to file his ninth Aneded complaint. And due to there was no showing of surprise or prejudice shown by schiller or even an attempt to doss for that matter by schiller.

Appellants opening grief page 8 of 50

*22

Argument and Authority

Appellants First Point of Error

The Trial Court erred in granting steve schullers motion to Dismiss Appellant's Claims under 31983

Standard of Review

When, as in the instant case, an inmate lawsuit is dismissed as frivolous for having no basis in law or fact but no fact hearing is held, this Court's review focuses on whether the inmate lawsuit has an arguable basis in law. See scott vGallagher 2095032 262,266 (Tex. App. HoustonList dist] 2006, no pet). The issue as to whether a claim has an arguable basis in law is a legal question that is reviewed de novo. see In re Humphreys 8505022 402, 404 (Tex. op. on. Rehig) (explaining questions of law are de novo). The scope of review is limited to those arguments raised in the motion to Dismiss. See Brown $v$ Aetna Cas. and Sur. Co. 135 Tex 583,1455022171,174 (1940). In conducting a review of the complaint, this court must take true the factual allegations in an inmate's petition and review the types of relief and causes of action set out therein to determine whether as a matter of law, the petition stated a cause of action that would authorize relief. See scott 2095032 at 266 . A claim has no arguable basis in law if it relies upon an indisputable meritless legal theory $Σ$ d at $266 - 67$ .

Finally this court is to hold Cattor's pleadings to less stringent standards than formal pleadings drafted by lawyers. See Haines v Kerner 404 U.S. 419,420 (1972), and a claim should not be dismissed unless it appears beyond doubt that a plaintiff

Appellants opening brief page 9 of 50

*23 can prove no set of facts in support of his claims which would entitle him to relief. See conley v Gibson 385 U.S. 41,45-46 (1987)

Argument

The instant case lies at the intersection of two fertile sources of Federal Court litigation. The Civil Rights Act 42 U.S.C. § 1983 and Federal Habeas corpus statute 28 U.S.C. § 2254. Both of these provide access to Federal Form for claims of unconstitutional treatment at the hands of state officials, but they differ in their scope and operation. In "Preiser" the supreme court considered the overlap between those two provisions, and held that Habeas Corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though a claim may come within liberal terms of 81983. See Preiser v Rodriguez 411 U.S. 475, 488-490 (1973). The instant case is not covered by the holding of Preiser, for calton seeks not immediate or speedier release but merely seeks prospective injunctive relief i.e. an equitable order from the trial court that orders calton be provided a complete and sufficient record on appeal and an out-of-time-appeal to utilize said record to press his Brady violation and right to speedy Trial Violation claims. Calton has no other remedy at law and habeas corpus cannot provide calton an out-of-time-appeal. In "Preiser" the supreme court delineated what constitutes a habeas corpus action as opposed to a 42 U.S.C. 81983 claim.

The Prisoner's label cannot control. The essence of habeas corpus is an attack by a person in custody upon the legality of that custody. If a prisoner is not challenging the validity of his or her conviction or the length of confinement or detention or the loss of good time credits, the writ of Habeas Corpus is not the proper remedy. It is the substance of the relief sought that counts. See Preiser, supra. Where a

Appellant's Opening Brief page 10 of 50

*24 prisoner seeks a wait of Habers Corpus and fails to attack the validity of his or her sentence or the length of his or her custody, the district court lacks the power of subject matter jurisdiction to issue the wait. Cf. Taylor v United States Prob. office 409 F3d 426 (D.C. 2005). The sole function of the wait of Habers Corpus is to grant relief from unlawful imprisonment or custody, and cannot be used for any other purpose. See pierre $V$ United States 525 F2d 933 (54th Cir 1976)

The crux of schillers Contention in his motion to dismiss was that cotton claims had no basis in law or fact; and that his claims under $1983 c o u l d n o t b e s u s t a i n e d b e c a u s e i t n e c e s s a r i l y i m p l i c a t e d t h e v a l i d i t y o f h i s f i n a l c o n v i c t i o n, p e r H e c k v H u m p h r e y 512 U . S .477 (1994) . S e e C h . v o l . 1 p . 168 - 169 . S c h i l l e r s r e l i a n c e o n " H e c k " i s m i s p l a c e d b e c a u s e t h e r e l i e f c o t t o n s e e k s i n h i s E i g h t h a n d N i n t h A m e n d e d c o m p l a i n t s d o e s n o t c a l l i n t o q u e s t i o n o r i m p l i c a t e t h e v a l i d i t y o f h i s c o n v i c t i o n o r s e n t e n c e . S e e C h . v o l . 1 " 7 t h " a t p . 268 - 270 a n d 9 t h " a t p . 533 - 535 . A l s o s e e " H e c k ", s u p r a . S c h i l l e r s^{'} r e l i a n c e o n " C l a r k e " f a i l s n o b e t t e r c o n t e n d i n g t h a t a s u i t s e e k i n g i n j u n c t i v e r e l i e f a r e n o t c o g n i z a b l e u n d e r$ 1983 if the nature of the relief would implicate the validity of a criminal conviction. See Ch.vol. 1 p. 192. However the instant case is readily dislinguish able from "Clark". Because "Clark" was challenging a conviction that stemmed from urdation of the "no threats of legal redress" portion of rule 3 -adetermination that again would be binding on a state court in a subsequent action-the state court could only conclude that Clarke had been convicted of violating an unconstitutional rule. See clarke vstadler 154 F3d 186,190 (54th Cir 1998) (exbanc). The Court went on to note that if Clarke's conviction in the disciplinary was based on an unconstitutional rule. It would be the sort of "obvious defect" that, when established results in nullification of the conviction. IId at 190 (Citing Edwards $V$

Aquellant's Opening Brief page 11 of 50

*25 Balisak 117 s.Ct 1584,1588 (1977). And as a result of this the "clorke" court could not grant him relief because then the state Court would have no choice but to strike clarkels punishment and reinstate his good-time, resistance by the state would be an exercise of futility "see serio v menbers of Louisiana state Board of gardens 821 F22 1112, 1119 (5thCir 1987).

Clarkels request that the "no threats of legal redress" portion of Rules 3 be declared facially unconstitutional was so intertwined with his request for restoration of lost good-time credits and damages, that resolution of the issues necessary to determine whether he "no threats of legal redress" portion of Rules 3 violates the First Amendment would, in effect, if favorable, would automatically entitle clorke to reinstatement of his lost good-time credits. See clorke 154 F3dat 190. The court went on to hold as such this determination would'hecessarily imply" the invalidity of his punishment. Ibat 190. The Court held that because clorke has not had his "conviction" in the disciplinary proceeding reversed, expunged or otherwise declared invalid his claim that the "no threats of legal redress" portion of Rules 3 is facially unconstitutional is not yet cognizable in a $$ 1983$ action. I 3 at 191. A "conviction", for purposes of "Heck", includes a ruling in a prison disciplinary proceeding that results in a change to the prisoner's sentence, including the loss of good-time credits. See Edwards 117 s.Ct 1587 ; Stone-Bey v Barnes 120 F3d 718,721 (7thCir 1997)(" the conviction in the prison disstihary sense is the finding of guilt on the disstihary charge, and if success of flaintiffs section 81983 claim necessarily would imply the invalidity of that finding then Heck bars the claim until such time as its requirement are satisfied").

Here lies the distinction in the authority relied on by Schiller in his motion To Dismiss filed on 1-36-15. See ce vol. 1 p. 166-171 and his "reply" to Catton's "asspense" filed on 2-3-15. see C.R. vol. 1 p. 191-193. All of the authority relied on by Schiller involve cases

Appellant's Opening Brief page 12 of 50

*26 where the Plaintiffs sought money damages under 8, 1983, without first having their convictions reversed, expunged or otherwise declared invalid see c e. vol. 1 p. 169. In the alternative The Plaintiffs sought relief that would automatically entitle then to speedier or immediate release. Id at C. v.vi. 1 p. 192. Although the complete and sufficient record Calton seeks and the subsequent out-of-time- appeal to utilize said record. Which would afford Calton the belated opportunity to press both his Brady Violation and Right to speedy Trial Violation claims on appeal. Which may enhance caltois eligibility for earlier release. The relief calton seeks in his lawsuit does not create caltois entitlement to earlier release.

And it is the duty of this Court in its de wavo of the instant Case to consider the distinction between relief that seeks to "ienhance eligibility" for earlier release and that would "create entitlement" to earlier release. As noted in "serio" when considering a challenge to the procedures employed in determining prisoners eligibility for parde, the court explained that "even in some broad-based attacks, resolution of the factual allegations and legal issues necessarily to decide the $$ 1983$ claim may, in effect automatically entitle one or more claimant to immediate or speedier release. And such claims must be pursued through habeas Corpus sees erio E21 F2d at 1119. The Fifth Circuit made it clear for the lower Courts in their determination of whether resolution of a claim would automatically entitle a claimant to immediate release, the "serio" Court explained that Courts must consider the distinction between claims that would merely enhance eligibility for earlier release and those that would create entitlement to earlier release. Id at 1119. Schiller's reliance on "Clarke" is distinguishable from the instant case because "Clarke" was so intertwined with the request for restoration of lost good-time credits and that resolution of the issues

Appellon's Opening Brief page 13 of 50

*27 necessary to determine whether the "no threats of legal redress" portion of Rule 3 violates the First Amendment would in effect, if favorable, automatically entitle "Clarke" to reinstatement of good-time credits. See Clarke 154 F3d at 190. A reinstatement of Clarkes good-time credits would shorter clarke's sentence and would "Create entitle" to his earlier release. Thus distinguishing clarke from the instant case. For authority directly on point is "Rheuork V Shaw" which indistinguishable from the instant case concerned the controversy that is more intertwined with the administration of the state Appellate Courts. See 547 F221257,1259 (5th Cir 1977). Right on point with "Rheuork" is the fact that Calton does not ask for any relief from his sentence in this action, nordoes Calton ask the trial court to order him released from confinement or modify, in any aspect, the conditions of confinement. I d at 1259. The only possible effect this action might have on Calton's confinement will be that, if he can obtain the transcripts to appeal and the requested out-of-time-appeal and should said appeal be successful, Calton would escape confinement on the state sentence. However, Calton would not escape confinement so by order of the Trial Court, but instead as a result of a decision obtained from the second District of Texas Court of Appeals. I d at 1259. As the Court hold in such a circumstance a claim is cognizable under 51935. And calton's 51983 claims were rightfully filed, served and should be resolved on the merits. I d at 1259.

Sults against governmental employees such as Schiller are not particularly uncommon in the Fifth Circuit and have been considered civil Rights actions. An analogous case to the subjudice is Qualls v Shaw 525 F22 318 (5th Cir 1970). In Qualls, a state prisoners, preparatory to filing a motion for collateral relief, requested of the court Clerk the cost of sending him copies of records of another

Appellank's opening brief page 14 of 50

*28 Similar lawsuit and of the grand jury lists for 1970,1971 and 1972. The request was not acknowledged. The prisoner alleged that the records he sought were regularly made available to others. He sued for monetary relief and required an order directing the clerk to provide the information requested. The district Court dismissed the complaint as in the nature of habeas corpus. In reversing, the fifth Circuit said,,

The district Court erred in its analysis of appellant's complaint. See Preiser 411 u.S. 475,93 s.Ct at D. which provides that a state innate may not utilize the civil Rights Act to challenge his conviction, thus by passing habeas corpus procedures and the requirements of exhaustion of state remedies. The fifth Circuit went on to state. In this case, appellant is not challenging his conviction and he is not seeking his release from custody. He is claiming that he has been denied access to records. which are made available to others and has been subjected to discriminatory treatment, were he to prevail in this action the Court's opinion would not impinge in any manner on the validity of his criminal conviction, and therefore habeas corpus is not an appropriate remedy and the district Court's reliance on Preiser is misplaced. See Qualls 535 F2d at 219.

The fifth Circuit consistently holds that if "a favorable determination would not automatically entitle the prisoner to accelerated release. The proper vehicle is a $$ 1985$ suit. See Orellanu Kyle (05 F2d 29,31 (5th Cir 1995), Carson v. Johnson 112 F2d 818,821 (5th Cir 1997) (court stating Carson has alleged that such reassignment from administrative segregation would make him eligible for parale, he has not alleged that such reassignment would automatically shorten his sentence or lead to immediate release. The parale decision would still be within the discretion of the parale board). In the instant case whether Catton will be granted any relief on his sentence or conviction will be in the discretion of the Appellate Court. Because Catton's success

Appellant's Opening Brief page 15 of 50

*29 in this lawsuit on his 14th Amendment claims against schiller would merely enhance eligibility for accelerated release and thus "have an indirect effect on the determination of whether Calton can obtain any relief from an Appellate Court that may shorten his sentence or overturn his conviction. Are cognizable under $$ 1983$ . See cook. v TOCs Trans. Plan. Dept. 37 F3d 1060108 (5th Cir 1994) (Because a success ful suit would merely enhance eligibility for accelerated release and thus "has indirect effects on the determination of whether a claimant eventually receive parde" The Fifth Circuit held that the prisoner had brought a $$ 1983$ claim)

As the above multiple fifth Circuit opinions sustain. As well as "Heck" and the Below opinions from the third, seventh, Ninth and D.C. Circuit Federal Appellate Courts make clear Calbis contention that his 14th Anandment claims are cognizable under $$ 1983$ is meritorious. See Heck III sect at 2372 (If the suit "will not demonstrate the invalidity of any outstanding criminal judgment against the Plaintiff, the action should be allowed to proceed); Georgewich v Strauss 772 F2d 1078, 1087 (3d Cir 1935) (Enbanc) (Nota prisoners's success in the litigation might increase the chance for early release does not in itself, transform the action into habeas corpus); Lumbert v Finley 735 F2d 239, 242 (7th Cir 1984) (court noting that Lumbert neither directly challenged the fact of his confinement nor sought a determination that he is entitled to immediate or speedier release). The court went on to note that to argue that provisions of the transcript might have resulted in a successful appeal of Lumbert's murder conviction, a nustrial, and possible agnittal and thereby would have indirectly affected the fact of his confinement; is to speculate in a Palsgraftan fashion that provides to tenous a basis for the determination whether an action properly characterized as an exclusive habeas corpus action. $\pm$ d at 242 . Also see clutchette v Prouvier 497 F2d

Appellant's Opening Brief page 16 of 50

*30 809,813-14 (9th Cir 1974) (the Preiser displacement rule is not applicable where the effect of prison disciplinary procedures on the duration of plaintiffs sentence is "nebulous", speculative and incidental) as modified SIOF2d 613 (9th cir 1975) rev'd on different grounds sub. nom. Baxter v Patnigiano 425 uS. 308 (1976); monku secretary of the navy 793 F2d 3644,367-68 (D.C. 1986) (writing that preiser rule is applied less strictly in cases that do not involve the validity of the criminal judgment). Also see Gerstein v Pugh wous. 103, 107 n. 6 (1975) (challenge to lack of probable cause hearings in these court could be pursued under 51983 because the plaintiff did not seek release)

As noted in "Edwards" supra, the supreme court made clear that ordinarily, a prayer for prospective injunctive relief will not "necessarily imply" the invalidity of previous loss of good-time credits and so may properly be brought under 51983. This is inguishable from the plaintiff in "Edwards" the injunctive relief callon seeks that may have an "indirect impact" on the validity of his conviction. See orelI an 65 F 3d at 31. Caltoris claims in his $$ 1983$ suit calls into question the unconstitutional Appellate procedure utilized during his first Appeal As a matter of eight and the excessive delay and substantial retardation of being afforded a meaningful appeal. See CR vold "87h" at p. 253-256 and "97h" at p. 518-521. And the relief callon seeks will in no way imply the invalidity of the judgment i.e. sentence or conviction on caltoris attempted murder case conviction. See I d "87h" at p. 268-269 and "97h" at p. 533-534.

Throughout the legal journey from "preiser" to "Edwards" the supreme court has focused on the need to ensure that state prisoners use only habeas corpus (orsimilar state remedies) when they seek to invalidate either directly through an injunction compelling speedier release or

Appellants Opening Brief page 17 of 50

*31 indirectly through a judicial determination that necessarily implies the unlawfulness of the states' custody. Thus, "Preise" found an implied exception to $31983^{' 5}$ coverage where the claim seeks not where it simply "refutes to" "core" habeas relief, i.e. where a state prisoner requests present or future release. See willinion v odson 125 s.c. 1242,1254 (2005): The supreme Court in wolff v mc donnell 418 U.S. 539 (1974) makes clear that $31983^{\circ}$ remains available for procedural challenges where success in the action would not necessarily spell immediate or speedier release for the prisoner. "Heck", supra specifies that a prisoner cannot use $31983^{\circ}$ to obtain damages where success would necessarily imply the unlawfulness of a not previously invalidated conviction or sentence. And "Edward", supra, like "wolff", supra, demonstrates that habeas remedies do not displace $31983^{\circ}$ actions where success in the Civil Rights suit would not necessarily vitiate the legality of not previously invalidated state confinement. These cases taken and read together, indicate that a state prisoner's 31983 action is barred absent a prior invalidation - no matter the relief sought (damages or equitable relief) no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceeding)-if success in that action would necessarily denonstrate the invalidity of confinement or its duration. See willinson 125 s.C. 191,1248.

Applying these principles to the instant case, this Court should reasonably conclude in its de novo review that Catton's 14th Amendment claims are cognizable under 31983 and that they do not fall within the implicit habeas exception. Catton does not seek relief that will render invalid the state procedures used in birect Appeal proceedings ordecidingbirect Appeal proceedings or direct appeal proceeding review procedures. It at 1248 (citing wolff, supra, 91 s54-s55) Wordoes Catton seek an injunction ordering his immediate or speedier release

Appeitant's opening Brief page 18 of 50

*32 into the community. It at 1248 (citing preser 411 U.S. at 500, wolff, supra at 554 ). And as in wolff, supra, a favorable judgement would not "necessarily imply the invalidity of Cattoria conviction or sentence. It at 1248 (citing Heck, supra at 457 ). success for cotton in his claims under 81983 does not mean immediate release from confinement or a shorter stay in prison. It bears repeating that at most cotton will finally be prouked the pretrial records he timely requested at the time in question and the belated Appeal to utilize said records to raise both the Brady violation and Right to speedy Trial violation claims on appeal. And in the resolution of this new Appeal the Appellate Court in its discretion may or may not reverse the convicting Court's judgment. See Id at 1248. (Court noting success for Dotson does not mean immediate release from confinement or a shorter stay in prison, it means at most new eligibility review, which at most will speed considerations of a new parale application. Success for Johnson means at most a new parole hearing at which Ohio Parale authorities may, in their discretion, decline to shorten his prison term.) Because Cattoria claims and relief requested would not necessarily spell speebier release, his claims do not lical the Core habeas. It at 1248 (citing presner 411 usat 439 )

As the multiple Supreme Court of the United States confirm Schiller's contention is without merit that Cattoria claims are not cognizable under 81983. And this court cannot reasonably find in its de novo review that An Appellate procedure is part of Cattoria sentence or indeed an aspect of the sentence that Cattoria's 81983 claims, will if successful, will invalidate. As the Supreme Court has previously found such an argument unpersuasive in an analogous context. See willinson 125 sct at 1249. In Context, "Heck", supra uses

*33 the word "sentence" to refer not to prison procedures, but to substantive determinations as to the length of confinement. I'd at 1249 (sitting muhammad v Close 540 U.S. 749,751 n. (2004) (The incarceration that matters under Heck is the incarceration ordered by the original judgment of conviction). A criminal judgment generally includes both the conviction and sentence. See e.g. Fed.R. Crim. P. 32 (K)(1) (a criminal judgment must set forth the idea, the jury verdict or the court's findings, the adjudication, and the sentence); Prague vLane 489 U.S. 28434 n. 2 (1989) (As we have often stated, 9 criminal judgment necessarily includes the sentence imposed upon medefendant). The TEX.C. Crim. Proc. defines "judgment", in part, as" the written declaration of the court signed by the trial judge and entered in a record showing a conviction or a quattal of the defendant. See Art. 42.9(1). The court of criminal Appeals has construed the term "conviction" to mean "a judgment of guilty and the assessment of punishment". See Ex.parke Evans 9425 u. 26 (1989) (47 CTEx.Crim App 1998 reh'g den). Thus, a challenge to a conviction is limited to claims regarding "the final consummation of the prosecution", "the judgment or sentence that the accused is guilty as charged" or "judgment of guilty in the assessment of punishment. I'd at 4410-47.

In the instant case Catton's challenge of the unconstitutionality of The Apellate Roadure utilized during his direct appeal and the substantial retardation of a meaningful appeal. It is no way a challenge to his conviction. Because Catton does not call into question the validity of the prosecution or the judgment of guilt. Cf. I'dat 4410-47. Catton's contention is that his claims under 51915 are more aligned with the shantiff's in Wolff v. McDannell, supra. In "Heck", supra, the court expressly distinguished Wolff, noting that woff challenged the procedure by which the inmate was denied good time credits. "Wolff"inbistinguishable from the instant case, involved a claim of the unstibitiniality of the procedure, not for reaching the wrong result i.e. the denial of

Apellon's opening brief page 20 of 50

*34 good-time credits. See heck 114 s.c. 992370 . Nor is there any indication in wolff, or any reason to believe, that the unconstitutionality of the procedures vitiated the denial of good time credits. Thus the claims alleged in "wolff" indistinguishable from callos's claims do not call into question the lawfulness of his continuing confinement and thus is not barred by 'Heck' Id at 2370. Further the "Heck" Court, explicitly stated that wolff claims did not "call into question the lawfulness of the plaintiffs' continuing confinement" and recognized challenges to the constitutionality of the procedures, rather than reaching the wrong result are cognizable. Id at 2370 .Likewise such claims do not require exhaustion. See offset $u$ solen 825 Fad 125101258 (24hCir 1987) (distinct Court should stay 31983 action pending exhaustion of habeas corpus ronedies, if favorable result would establish "an irrefutable claim for early or immediate release under habeas"). "Heck" uses the word "senience" interchangeably with such other terms as "contending confinement" and "imprisonment". See heck 512 U.Sat 483 ", see also "Edwards", supra at 520 U.S. at 645,648 (referring to invalidity of the judgement" or "punishment imposed").So understood "Heck" is consistent with other cases permitting prisoners to bring 31983 challenges to prison administrative decisions. See e.g. wolff 418 us at 554-55", mubammad 540 us at 754 ", see also Id at 754 (re- secting "the mistaken views that Heck applies catergorically to all suits challenging prison disciplinary proceeding") Indeed the supreme Court has repeatedly permitted prisoners to bring 31983 actions challenging the conditions of their confinement-conditions that, were chio right in the "willinon" opinion might be considered part of the sentence. See willinon 125 s.c. 4 at 1249 (c.thing couper v pate 378 us. 5410 (1944) ;, willwording v5wemon 404 us. 249,251 (1971). And this interpretation of "Heck" is consistent with "Edwards", where the court held the prisoners's suit Heck-barred not because it sought nullification of the disciplinary procedures but rather nullification of the the disciplinary procedures would lead necessarily to restoration of

Appellard's opening 8 rief Page 21 of 50

*35

good-time credits and hence would shorten the prisoners's sentence. See willikinson 125 s.Ct at 1249 (citing Edwards s200s. at 641c). In the instant case nullification of caltors unconstitutional Appellate procedure held in 2005 that utilized an inadequate and insufficient record. will not disturb Caltor's conviction or shorten caltors sentence. Nor will Catton be entitled to speedier release from custody. After doting the invunckive relief requested i.e. the relevant pretrial records and an out-of-time-appeal to utilize said record. And therefore as the above authority confirms the trial court erred when it dismissedCaltors 31983 claim against schiller. See e.c.v.d.l p. 450.

Appellant's Second Point of Error The Trial court erred in granting Steve schiller's motion to Dismiss Appellant's state Common Law claims

Standard of Review

When, as in the instant case, an inmate lawsuit is dismissed as Erivolous for having no basis in law or fact but no fact heoring is held, this Court's review focusses on whether the inmate lawssit has an arguable basis in law. See scott 209 sw3d at 266 . The issue as to whether a claim has an arguable basis in law is a legal question that is reviewed de novo. see En re Humphreys 880sw2d at 404 (explaining que stions of law are de now). The scope of review is limited to those arguments raised in the motion to Dismiss. See Brown 145 sw2d at 174. In conducting a review of the complaint, this court must take true the factual allegations in an inmate's petition and review the types of relief and causes of action set out therein to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief. See scott 209 sw3d at 266 . A claim has no arguable basis in law if it relies upon an indisputable meithess legal theory. Id at

Appellant's Opening Brief Page 22 of 50

*36

206-67. Finally this court is to hold Calforis pleadings to less Stringent standards than formal pleadings drafted by lawyers. See Haines 404 US at 420 , and a claim should not be dismissed unless it appears beyond doubt that a Plaintiff can prove no set of facts in support of his claims which would entitle his to relief. Seeconley 385 U.S. at 4546.

Argument

In his motion To Dismiss schiller contends that governmental entities and their employees acting in their official capacity are immune from suits for damages, unless there is an explicit waiver of that immunity. And that the only waiver of immunity for a negligence cause of action is the Texas Tort claim Act. And that to sufficiently pleada cause of action within the Tex. tort claims Act there must be anal. legation of bodily injury suffered through the use of a motor -deiiven vehicle or through the condition or use of real or personal property. citing Tex. Cw. proc. and Gen. Code 3101.021. Schiller went on to contend that caltor had made no allegation that fits within the limited waiver of the Tex tort claims Act. And as a result thereof there was not any erguable bais law in law or fact to suggest any waiver of Schiller's official immunity for the state Law claims pleaded by caltors see CR.vol. 1 P. 149 and 170.

However, Calforis contention is that schiller was sued in his indui dual capacity under state Common Law. Therefore caltor is seeking to se cover damages from schiller, and not Torrent County, on his common law stoke Law claims as ple d indi tinguishoblebly in the Eighth and Ninth Anended Complaints. See C R. vol. 1 "8th" at p. 256-265 and "9th" at p. 521 530. A plaintiff may sue a governmental employee in his official capacity, in an individual capacity or in both capacities. See Nueces County, 0 rerguson 97 sw3d 205, 213 CTEX. App. Corpus christi 2002, no pet) claims against governmental employees in their official capacities are separate and distinet from claims against governmental employees in their individual capacities. I d at 213-214. "I is fundanetal that a suit against a state

Appellant's Opening Brief page 23 of 50

*37 official is merely another way of pleading an action against the entity of which the official agent is employed, see Texas A and M. Univ. v Kaseglu 2335032855, 844 (Tex 2007). In a suit against a person in his offual capacity, the real party in interest is the employing governmental entity. Id at 844 . Asuit against a person in his individual capacity, however, seeks to impose personal liability on the individual being sued for personal actions under color of state law. See Ferguson 97 sww3d at 214

The Capacity in which the individual is sued affects the defenses to liability that may be raised. See Jackson v. Stinnit 881 sww2d 498,500 (Tex.App. 81 Pass 1994, no writ). If an individual is sued in his official capacity, the employee may raise any defense that would be available to his employer including the defense of sovereign immunity. See Tex. Parks and wildlife deft v.E.E. Lowery Realt, 41d 155 sww3d 456,458 (Tex.App. wac0, pth. filed). Individuals like Schiller who are sued in his individual capacity, however, may not rely on the defense of sovereign immunity but may raise the defense of official immunity. See Ferguson 97sw3d at 215 . A governmental employee is entitled to official immunity if he is (1) performing discretionary duties that are (2) within the scope of his authority and (3) performed in good faith. See City of Lancaster v. Chambers P83502d 650,653 (1994). In determining whether Schiller is immune herein, there first must be a determination made by this Court whether he was performing discretionary duties when the alleged acts and/or inactions occurred in the preparation of the accord on Appeal for Cattor's Direct Appeal. See cloud v. mckinney 2285032326,335 (Tex. App. Austin 2007). Discretionary actions are entitled to protection under offual immunity, but ministerial actions are not. See acalontyn e v Chapman Builders, Inc 144503d 417,425 (Tex 2004). An action is ministerial if it is one that is defined with such precision that no discretion or judgment is left for the actor. Id at 425 . In other words, if the offcial has to commit the action without any choice in complying, the

Appellant Opening Brief Page 24 of 50

*38 act is ministerial" I d at 425. However, if the action requires personal deliberation, decision, and judgment, then the action is d iscretionary-Id at 425.

Schiller as the official Court Reporter of the 213th Judicial District Court at the time in question. Was paid a regular salary for services as a Court Reporter. See Dallas County v Halsey 87 sw3d 552,553 (Tex 2002). As a part of his official duties he recorded the relevant pretrial meanings as well as the trial on the merits of the case "State of Texas v Allen" f" (catson cause No. 0845162 beginning on 1-8-04. and concluding on 5-20-04. Schiller also prepared i.e. transcribed those previously recorded records. To be utilized in perfecting the Appeal for Cattor's Attempted murder conviction. Per catton's request For A Free Reporter's Record and The convicting Court's order granting the same. CR. Vol. I "87h" at p.274-275 and "97h" at p.539-540. For preparing the record schiller was paid a separate fee of approximately $£ 3, 000.00$ (con the general funds of Tarrant County. See Halsey 87 sws d at 55.3

In this courts review of the pleadings, it must ascertain the true nature of caltoria claims and not exalt form over substance. See Pickellv Brooks 84Le Sw2d 421, 424 ns (Tex App. Austin 1972 unit.den) (citing state vLain 249 sw2d 579,592 (Tex1901). Although Cattor makes clear that schiller was sued only in his official capacity under $$ 1983$ to permit catton to obtain injunctive relief under federal law and catton sued schiller in his individual capacity to recover an award of damages from schiller. see CR. Vol.I " 87 h" at p. 197 and " 97 h" at p. 460 . Irrespective of that fact, the course of the proceedings" typically will indicate the nature of of the liability sought to be imposed. See Eranon v Holt 449us. 449 (1985); Terrell ex rel estate of Terrell vSisk Hisw3d 274, 281 ns (Tex App. Texarkana 2003). In both the Eighth and Ninth A needed Complaints which are ind istinguishable as far as the allegations alleged in support of the state Law claims. The crux of Catton's state Law claims against Schiller all involve acts and/or omissions that occurred outside of the courtroom and well after the trial in question ended on 5-20-04. For example schiller did

Appellant opening Brief Page 25 of 50

*39 not prepare and file the incomplete reporter's record in the court of Appeals until 11-3-04 and 11-9-04 respectively. See C.R.vol.1 "8th" at 224 and "9th" at p.487. Schiller's material misrepresentation was not made to the defense until his conversation with Appellate counsel Barry Alford on or about 4-1-05. See C.R.vol.1 "8th" at p. 202203 and "9th" at p. 465-466. Also see I3 at "8th" at p. 276 and 281 and "9th" at p. 541 and 545. In deciding whether the facts as alleged in the Eighth and Ninth Anended Complaints fall outside the scope of official immunity. This Court must recognize that the basis for the alleged liability is schiller's failure to prepare and file a complete and sufficient record appeal on 11-3-04 and 11-9-04. As well as the fact that schiller made a material misrepresentation to calton on or about 4-1-05.

These allegations as alleged in both the Eighth and Ninth Anended Complaints confirms that Calton has asserted claims against schiller in his individual capacity for each and every state Law Claim pled. see C.R.vol.1, "8th" at p. 194271 and "9th" at p. 457-536. Throughout his pleadings Calton repetively utilizes the word "preparation" and the statement "failed to prepare, furnish and file a sufficient and complete record on Appeal. See The Eighth and Ninth Anended Complaints generally. C.R.vol.1. "8th" at p.194-271 and "9th" at p.457-536. In fact Calton since filing his complaint with the C.R.C.B. in 2012. Two years before filing this lawsuit has always complained about schiller's omission in failing to prepare and furnish Calton a complete and sufficient record on appeal. In particular Calton complaints are based upon schillers' omission of all but one date of Calton's pretrial hearing dates. See Calton's Affidavit. see C.R.vol.1 "8th" at 278-280 and "9th" at p.542-544. As confirmed by the C.R.C.B. Final order, which found schiller in Violation of C.R.C.B. Rule X (a)(4) For his Incompetence in failing to prepare transcripts for pretrial hearings that were properly requested by calton and for failing to make reasonable inquiries about

Appellant opening grief Page 26 of 50

*40 the extent of the record. See cR. vol. "8th" at p.235-237 and "9th" at p.549-551. As this irrefutable evidence confirms the crux of caltan's complaints have always undisputedly pertained to schiller's "Preparation". of the record. Calton has always stressed "Prepare" and placed emphasis on "Preparation"

Schiller's duty to prepare and provide Calton a Complete reporter's record at Calton's request was outside of schiller's official duties to the Court. See Halsey 87 svid at 556 (citing Hatch v Davis 1021 svid 445,4410 CTEL.CV. App. Corpus Christi 1931, wort ref'd n.ce.) (holding that a court. Reporter can recover attorney's fees for a suit involving preparation of a record because the claim was for personal service). In light of the fact that schiller was court ordered to prepare and furnish Calton a sufficient record on Appeal at state expense sustains the fact that schiller was not performing a discretionary duty. See cR. vol. "8th" at p. 275 and "9th" at p. 540 . Also see Halsey 87 svid at 557 (holding preparation of the record does not necessitate the use of discretion, but is more in the nature of ministrial or administrative task). In preparing the record the Court Reporter does not exercise discretion. Id at 557 ; mchallen v Herdersen 4926221298,1299 (8th Ctr 1974) (court.Reporter's duties are ministerial in nature and not discretionary in nature)

In the instant case schiller prepared and furnished Calton a Reporter's record per caltan's request and the court order compelling the same. See cR.vol. "8th"at p. 274-275 and "9th" at p. 559-540. Schiller was paid separately for this service, and completed the preparation per terms of Calton's Request and the Convicting Court's order. A transaction that was separate from his official reporting responsibilities. See Halsey 87 svid at 557 (court holding that Halsey prepared the Boutier's record at the Court's Request. She was paid separately for this service and completed the preparation per terms of her contract with a party, a transaction that was separate from her. of ficial. reporting responsibilities). In a similar context in support of. Calton's contention that schiller was sued herein in his individual capacity. Are supreme Court opinionis

*41 Mireles v waco 502us.9 (1991) and Forester v white 484 u.S. 219 (1987) where the supreme court stated whether an act is judicial (or nonjudicial) can readily be determined by the nature of the act i.e. whether it is a function normally performed by a judge in the court room. See mireles 502 us at 12 / as contrasted from other administrative, legislative, or executive acts that simply happen to be done by judges. See Forester 484 u.S. at 227. Schiller's official duties are those performed by him in the court room. For e.g. Schiller's official capacity duties are attending all court sessions, record the proceedings, accept and mark exhibits offered in evidence during a proceeding and then file all exhibits with the trial court clerk after the proceeding ends. Soe generally T.R.A.P.13.1 and Govt Code 352.046 .

Schiller's official capacity acts are those performed by schiller during court room proceedings. C.E. Trilligear v Correll 1485 us 32502 ,505 CTEL App Houston E14 o1st] 2004) (court noting whether it is a function normally performed by judges in a court room is dispositive to whether the act is judicial or non judicial). Conversely the preparation of the record is an administrative act that just happens to be done by a court reporter but is done in a personal capacity and in all probability is done outside of the Court room. Cf Forester 484 us. at 227. Every allegation contained in both the Eighth and Ninth Anended Complaints, See C.R. Vol. I "87h" at p. 194271 and "97h" at p.457-536. Relates to actions taken by schiller outside of the courtroom and not while schiller was performing his official duties. Permitting this Court to reasonably conclude that the true nature of Calton's claims as alleged are claims under state Law against Schiller in his individual capacity. See Pickell 8465 us 22424 .5 (holding that we must determine true nature of plaintiffs claims). The lastest case is readily distinguished from "Torrell vSisk" because the allegations alleged by Calton are for wrongdoing or negligence by schiller in actions and/or omissions schiller took in his personal persona while performing personal services and thus were taken outside of his official capacity. See Torrell vSisk 115 us 32 at 281-82 (holding that Judge was sued in his official capacity only because all allegations in petition "were of claimed wrongdoing or negligence by the judge in ac-

Appellant's Opening Brief page 28 of 50

*42

tions he was able to take only because of his position as a public servant" and did not ellege any actions taken outside his official capacity). Justains the fact the district court erred by dismissing Cal. tans state Common Law Clams against Schiller on 10-15.See C.R. v.4.1 p.450. Because Schiller was not entitled to sovereign or official immun. nity sued in his individual capacity while performing ministerial acts.

Appellant's Third Point of Error

The trial Court erred by failing To Appoint Counsel for the mentally ill Appellant. To ensure the proceedings remained adversarial and whose liberty is at stake.

Standard of Review

An Appellate Court will review the trial Court's refusal to appoint Counsel in a civil case for abuse of discretion. See Gibson vTolbert 102 S 432 710, 712 (Tes 2003). The trial Court abuses its discretion when it reaches a decision "so arbitrary and unreasonable as to amount to clear and presudicial error of law". See Tshman v Fourth court of Appeals 7003422 4110, 917 (Tes 1985). An determining whether there is an abuse of discretion by a trial court. An Appellate Court will decide whether the trial court acted without reference to any guiding rules and principles such that its act was arbitrary and unreasonable. See Dawner v Aquamarine operators Inc. 7015422 238, 241-42 (Tes 1985). A trial court abuses its discretion when it acts arbitrarily, capriciously or without reference to guiding rules or principles. See Brewer v Collins 8571422 819, 822 (Tes App Houston E14p Dist] 1993, nowrit)

Argument

A district judge may appoint Counsel to attend to the cause of a party who makes an affidavit that he is too poor to employ counsel to attend to the Cause. See Tes Court code 324.016 . Altossee Cal. tans Affidavit of Indig. ecre. 1 st. Supp. C.R. v.ol.1 p.416 and Enmate Trust Fund Account statement. And Supp. C. R. Vol. 1 p. 5 . The sixth Amendment to the u.S. Const. grants

Appellant's Opening Brief page 29 of 50

*43

an indigent criminal defendant the right to counsel; that right does not apply to civil cases. See Turner v Rogers 131 S.Ct 3507, 2515-20 (2011). Instead, with only rare exeptions, a party is not entitled to Court Appointed counsel in a civil case. See Gibson 1025 wad at 712. A trial Court has discretion to appoint counsel to a civil litigant in some "exceptional cases" where "the public and private interests at stake are such that the administration of justice may best be served by appointing a lawyer to represent an indigent civil litigant. See Trowliss 100 m . Co. V mayfield 9235 w 2 d 590,594 (Tex.1996). In such a case, there is a presumption that an indigent litigant has a right to appointed counsel, but only when, if he loses, he may be deprived of his physical liberty. See Lawiter v opit of Social Servs. 452 U.S. 19, 25-27 (1911) In the instant case this Court should take judicial notice of the fact that although Catton is currently incarcerated. His liberty is still at stake. Because without the newly granted appeal, that's needed to Afford Catton the opportunity to challenge his loss of liberty. By raising the two mentorious claims on appeal that Catton was precluded from raising during the initial appeal due to the omission of the pretrial hearing records memorializing those claims. See C.R. vold "8th" at p.215-222 and "9th" at p. 478-485.

Cattoris liberty is at stake because his newly granted appeal will be indisputedly meitorious and will result in a new trial. Due to the loss and/or destruction of some of the relevant records. See T.R.A.P. 3940 (6). Also see C.R.violl "8th" p.200-209, p.226, p.228 and "9th" at p.469.472, p. 489, p.532. Thus when the trial court issues its equitable order that Catton be afforded an out-of-tire- appeal. Catton will object to the record and move for an abatement and the appellate court will renand the case back to the convicting court to settle the dispute see T.R.AP. 34.10 (6)(3). And once the relevant records are confirmed to be lost and irretrievable by the convicting court a new trial is a foregoneconclusion. See Johnson vstate 1515 wad 193, 1940 (Trev. Crm App 2004). The indisputed evidence confirms there are records lost that are necessary for the appeal resolution. See Schiller's letter dated 7-20-12. C.R.V. 1

Appelloris Opening Brief page 30 of 50

*44 "87h" at p. 285 and "97h" at p. 552 , Calton concedes that his ultimate goal is to obtain a new trial and all probability may just be entitled to the same. Due to the low and/or destruction of some of the records, see c&;.vol. " 87 h " at p. 224 and p. 288 and " 97 h " at p. 459 and p. 552. This is not dispositive because calton in his $$ 1983$ complaint did not seek a new trial. If Calton is afforded a new trial it will be by order of the Appellate Court and not by the equitable order sought from the court below. See Rheuark 547 F 22 at 1259 ( Court noting Rheuark does not ask for any relief from his sentence in this action, nor does he ask this Court order him released from confinement or modify, in any aspect, the conditions of confinement) The Court went on to state the only possible effect this action might have on Rheuark's confinement. will be that, if he can obtain the transcripts to appeal, and should his appeal be successful, he would escape confinement, on the state sentence. However, he would not do so by order of this Court, but as a decision obtained from the Appellate Court of the state of Texas I3at 1259. Also see Leal-García V Qua.terman 573 F 32 241, 224 (5th Ctr 3009) (Court noting Although the ultimate goal of Leal's is to obtain court review of his connection, he is actually attacking the state's failure to comply with the Avera decision as implemented by the Quth Declaration. And we will not require courts to determine petitioner's ulterior motives)

The indisputed evidence confirms there was a speedy Trial hearing on 2-12-04 and said hearing menorializes the convicting court's denial of Calton's motion To dissolve For want of speedy Trial. See except page 9 of the convicting Court's memorandum, findings of fact, conclusion of Law and order issued on 1-9-07 in reference to w.rilt No. C-213-007618 -0043168-A, where Judge Robert Gill repeatedly refers to the 2-12-04 hearing. See c&;.vol. " 87 h " at p. 299 and "97h" at p. 564 . The "Appeal Resolution" encompasses both affir mance and reversal of the trial court's judgment. See Gawrelli, Additive: 225 s 032758 , 763 (Test App. (14th 015) 2007) As a result of these facts and

Appellants opening brief page 31 of 50

*45 " authority in support thereof sustains there is a presumption that the appointment of counsel was warranted under the theory that caltors lib- erty was indeed at stake.

Additionally the appointment of Counsel was warranted due to the "unique circumstances" of the instant case that were beyond exceptional. In evaluating what might constitute exceptional circumstances, a court is to consider the "unique circumstances" of the case and determine whether the trial court had "no reasonable alternative but to appoint counsel" exceptional circumstances is by definition rare and unusual. See Gibson 102 3023d at 711 . Beyond what the Texas Supreme states in Travelers Idennity Co. 923 s 02d at 592 . The Court has never addressed what "exceptional circumstances" warranting appointed counsel might be. As the court noted in Gibson'sTollert 102303d at 713. That may simply be because what is exceptional is by definition rare and unusual is something not identified by the general rule. Only by evaluating the unique circumstances of a given civil case could a court ever determine that it has no reasonable alternative but to appoint counsel. Id at 713 . The Court went on to note in short, it is easier to determine what is not exceptional than pronounce a general proposition on what would be exception. On the undisputed facts of the instant case the exceptional and unique circumstances warranted the appointment of counsel. specifically calton is mentally ill with a diagnosis of major depression with psychotic features which precluded calton from effectively litigating and prosecuting his claims. Thus this civil action was not a duversarial at all relevant times, due to the fact that when Calton takes his psychotropic medications as prescribed renders Calton in a very sedated and confused shade. At which time Calton cannot concentrate, maintain a train of thought, think rationally or research legal issues, while under the influence of his prescribed psychotropic medications and physical ailments medications regimen. See e.g. vold p. 128-124 paragraphs 9-11. At times Calton had to pay fellow prisoners his food trays to respond to defendant pleadings and prepare pleadings filed here. in. And as a result there of had to miss two of three meals per day for months. Because Calton had no commissary items to pay and had Appellant's Opening grief page 32 of 50

*46 to barter his food trays for legal assistance. See C.R. UNI 1 p. 124 -126 paragraphs 12-15. It an attempt to prosecute this lawsuit. Calton either had to miss multiple meals a day as a result of selling his food to fellow prisoners for their legal help or Catton had to miss several doses of his prescribed medications. which put Catton at a very high risk of suicidal or self injury behavior. See C.R.Voll. P.123-127 paragraphs 9-17. Catton's debilitating state while under the influence of the laundry list of prescribed medications including: Bupropion, Oidrenhydramine, Haloperidol, Nortriptyline, Lisinopril, meclizine, propranolol and Ranitidine. See C.R.Voll. P.130-131. presented Catton from maintaining this Civil Action at a constitutional comporting and as an equitable adversary affair. The indisputed evidence in the record noted above makes clear that Catton's mental and physical disabilities placed him at an unreasonable disadvantage and predicament. And thus the instant case did not maintain the adversarial in nature requirement to all $Δ$ it to be equitably resolved for all parties involved and for the administration of justice generally.

The Texas Supreme Court recognized and made clear that the existence of extraordinary circumstances required to authorize the appointment of counsel is a fact based question that is best answered in connection with each specific case. The information contained in the Afdavit in support of his motion For the Appointment of Counsel, Car sense as a basis for this Court to determine that the instant case is an exceptional case where the administration of justice would have been better served by appointing a lawyer to represent Catton. See C. Voll. P. 121-140 generally. Also see mayfield 923 Sw2d at 594. The undisputed evidence and authority establishes as a matter of law appointment of counsel was mandatory. Distinguishing the instant case from the following. See In re Logan 2003 TEX App. Lexis 4499 (Court noting from the information here; we cannot conclude as a matter of law that such extraordinary circumstances are shown would require us to order the Court to Appoint Counsel. Our decision on this limited record does not, of course, preclude the County Court from doing so it determines it to be appropriate). The trial court erred and violated its duty to ensure that the instant case would remain truly adversarial

Appellants Opening Brief page 33 of 50

*47 in nature between the mentally ill appellent and de leadents sued herein. See Public Htility Comm'n v Cofer 754 s 222 121,124 (Tex 1928). In discussing the scope of the Court's inherent authority to appant counsel for civil litigants. The court stated that, "under exceptional circumstances, the public and private interests at stake may be such that the administration of justice may be best served by appointing a lawyer to represent an indigent civil litigant. See Gibson 102 s 222 at 712 . In light of "Gibson" it is readily apparent that a trial Court's inherent power to appaint counsel is necessarily contingent on a party's indigent status and on the existence of exceptional circumstances. Both factors readily exist as contimed by the unbioputeb evidence. See Affdowit C.R. vol. I p121-127 paragraphs 2-17, see Affdowit of Indigene 1st.Supp.CR.vol. p.4-6, and certified copy of Inmatec Trust Fund Account statement forwarded to the Court on 10-17-14 along with the rest of the Appointment of Counsel pleadings filed on 10-21-14. 2nd Supp.CR.vol. 1 p5. The exceptional circumstances of the instant case including Caiton's mental instability that prevented him from consistently and effectively prosecuting his claims at all times and his incarceration warranted the appointment of counsel. Cf. Htosey v County of Victoria 722 s 222 701,705 (Tex. App. corpus chnisti 1992) (stating circumstances, such as imprisonment, may make it impossible for a litigant to represent himself. when that is so, counsel is required, at the peril of losing the opportunity, to litigate the grievance), Armstrong v Randle 701 s 222 s3,57 (Tex.App. Sourkora 1994, wnt. ber'd) (a trial court atowes its discretion only if the inmate has been effectively barred from presenting his case).

If this court affims the trial Court's judgment in the other point of errors raised herein. Justains the fact that Caiton was effectively barred out of court and litigating the grievance. Due to the incontrovertible facts establish that steve Schiller's incompetent reporting practices and material misrepresentation to the defense. See C.R.vol. 18 Th" at p. 235-237 and "9 th" at p.549-551. Was the direct cause of Caltons direct Appeal to be foiled and the ceasin Caiton his yet to be Afforded his Contributional Right to a meaningful Appeal. In violation of both clauses of the Fourteenth A ndment. Sustaining the fact the trial Court's

Appellants Opening Brief Page 34 of 50

*48 Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea Ea E

*49 Their face when applied to the un'bissuled facts of the instant case, see C R. vot.1 "87h" at p.360-362 and "97h" at p1625-627. Since being put on no- tice that Schiller made a material misrepresentation concerning the relerency of re- cords timely requested by Catton. See C R. vot.1 "87h" at p.281-282 and "97h" at p.545-546. which resulted in Catton's Dreck Appeal to be unconstitutionally resolved. Due to the omitted records were necessary for appeal, Catton alleged in both his Eighth and Ninth Amended Complaints under 31933 that will rectify the unconstitutional appellate procedure and the ongoing delay and substantial retardation of a meaningful appeal. The Complaints each make clear that without civil relief a miscarriage of Justice will lie as no other remedy at least exists in state or Federal Court under Habers Corpus. See C R. vot.1 "87h" at p.249-250, 360-362 and "97h" at p.513-514, p1625-627. At common law, for a permanent injunction to issue the plaintiff must prevail on the merits of his claim and establish that equitable relief is appropriate in all other respects. See Amos Prob. Co. v village of Gontrell 490 U.S. SSI, 546 n.12 (1937)(Re- cognizing that standard of Preliminary injunction is essentially the same for permanent injunction with exception that the plaintiff must show actual success on the merits rather than a mere likelihood of success)

Tobee entitled to an injunction, a plaintiff must show (1) that a wrongful act occurred ie that the plaintiff has a cause of action against the defendant'; (2) that the plaintiff will likely succeed on the merits of his cause of action; and (3) that the plaintiff will suffer harm. See walling v metcalfe 865 s 428 s 6957 C70k 1993). The "probable harm" element has three components. The plaintiff must show that the harm is imminent, the the injury would be irreparable, and that the Plaintiff has no other adequate legal remedy. See Garaj- Marqutg v Nueces coun- ty bail gond 88.15438366, 175 C 7 8 . App corpus christi, 1999, not pet. h. The decision to grant or deny injunction relief is within the district Court's discretion, which should be exercised consistent with traditional principles of equity. See eBay Inc. v mec Exchange LC 547 U.S. 333,394 (2000). A party is entitled to a permanent injunction only if (1) the party has suffered irreparable injury'; (2) that renedies at law, such as monetary damages, are inadequate to compensate that in- jury'; (3) that considering the balance of hardship between the parties, 9 remedy in equity is wastorted'; and (4) the public interestwould not be dis- served by a permanent injunction" Id at 391 . Appellants opening grief page 36 of 50

*50 As a preliminary matter it is undisputed that a wrongful act occurred Schiller has admitted to providing Calton an incomplete record and his licensing Board found him guilty and incompetent for the same. See CQ.vol.1 "5th" at p. 281-282, 285-287 and "9th" at p.545-546 and p.549-551. Thus it is indisputed that Schiller set in motion the chain of events that he knew or reasonably should have known would harm calton. Thus establish the requisite causal connection that schillers incompetence and misrepresentation resulted in Caltons direct appeal to be resolved on an incomplete and insufficient record and the omitted records were necessary for appeal. Because they mensualized evidence and claims Calton was precluded from raising on appeal. See CQ. vol.1"5th" at p.204-205 p.215-222 and "989" at p.467-468, p.478-485 and has also resulted in the substantial delay and retardation in Calton obtaining a meaningful appeal. See Morris v Deaeborne 181 F3d 657,472 (5th Cir 1999)

An injunction is a pure application of equitable relief, one seeking injunctive relief must plead and proue that he has no adequate remedy at law and irreparable injury is threatened. See williams v Comprelors Engs Corp. 704302d 4129,472 (Tex App Houston E14thDid] 1989 unit refld n.ce). For purposes of injunctive relief, an adequate remedy at law exists when the situation sought to be enjoined is incapable of being remedied by legal measurable damages. See Hay v Americds Favorite chicken Co. 921302d 328,730094 App. Lepus thrish 1991, wint dismissed w.o.S). To get an injunction, you must generally show that you don't have an "adequate remedy at law" which means that an award of damages or other relief will not protect you. See Lewis v Boune 534 F2d IIIS, IIIS (534 Cir 1970). Although Calton is suing for damages under state law under the same set of facts is not dispoitive. The mere fact that economic damages may be available does not always mean that a remedy at law is "adequate". For example the Supreme Court has found that a remedy at law is inadequate if legal redress may be obtained only by pursuing a multiplicity of actions. See Lee v Bickell 292us 415,421 (1934) (we are not in doubt, the multiplicity of actions necessary for redress of law is sufficient to uphold the remedy by injunction). Also see Holdee v Bradenberger 214303d650,459 (TexApp Austin 2006) (Holding money damages not always an adequate remedy at law. The injunction was an addition to and was not a duplicate of, any award of monetary damages and designed to grant the appellers complete relief. This Granting injunctive relief in addition to monetary danages award is not

*51 an abuse of discretion in this circumstance). In the instant case the injunctive relief under $319 %$ will be merely an addition to rather than a duplicate of any monetary danages awarded on the State Law claims. under 31985 Canton cannot obtain money danages from any of the defendants sued herein. The defendant judges are immune from damage suits. See stumps v sparkman 435 U.S. 339 (1978) and Canton cannot recover danages from schiller under 51985 because 42 U.S.C. 1997 e(e) precludes prisoners from bringing 31985 claims for money danages without a prior showing of physical injury. Texas Law does not allow a damage remedy for unstitutional torts. See city of Beamish v bawlifian 896 sww2d 145, 149 (Tes 1995). Caltoris inability to obtain relief under habeas corpus in state or federal Court also supports his contention that he is entitle to civil relief. Cf. Harris vstate 81% sww2d 251, 233 CTEx App San Antonio 1991 no pet)(Nating ability to obtain post-conviction habeas corpus relief is factor to consider in granting abstemant under gule 2 (b); Bawler vstate 822 sww2d 334, 335 CTex App San Antonio, petrefid)(same).

Although Canton did not learn of the fact that his direct appeal was decided on an incomplete and insufficient record until 4-15-13. See cQ.Vall "8th" at p. 305 and "9th" at p. 468 . His receipt of schiller's response dated 3-39-12 to caltors complaint constables newly disaverted evidence. See Id "8th" at p. 281-282 and "9th"at p. 545-546. It does not meet the standard of 23 U.S.C. 52944 (b)(2)(8) and (b)(3)(c) and Canton could not obtain leave from the fifth circuit to file a suecessive federal wnit of any kind. see cQ. Vol. I "7th" at p. 360-361 and "9th" at p. 625-626. And it is apparent that the abuse of writ order entered against Canton has left the court of criminal Appeals with the impression that Canton has waived and/or abandoned any contention he may have in regard to his attenpled murder conviction. see Id at "8th" at p. 362 and "9th" at p. 627 . Also see midaugh vstate 683 sww2d 713, 714 (Tes .Crim . App 1985)(Holding just as one may abuse the writ of Habeas Corpus midaugh has waived and abandoned any contention he might have in regard to the instant conviction) or in the alternative the court may be relying on its precedent that holds the writ cannot be invaded for more statutory irregularities in the proceedings below. See Ex parte Sadderry 864 sww2d 541, 542 (Tes crim App 1992). Further

Appellant's opening grief page 88 of 50

*52 The great world should not be used to litigate matters that should have been raised on direct appeal. See Esparle Park's 7693 m 22539 , S 40 TPA Crim App1989).Cattoria clath for schillers incompetence arants to a violation of T.R.A.P. 34 (o (E). which must be raised on appeal. See e.g. Routier v State 1125 N 56554,570-71 (TPEC Crim App 2003); Sineret vstate 3075 m 32325 , 333,334 (TPEX App san Antonio 2009). However when Appellate Counsel Bary Alford consulted with schiller. schiller misled Alford and caltan which precluded the issue from being raised on appeal in the instant case. See cA vid.1 "9th"at p.276, 279, 281" and "9th" at p. 341, 343, 345, T.R.AP. 34 (E) is a state statute and the court has recognized that a violation of a state statute in general is not a cognizable claim on habeas. See Ex Parle owenty 7495020820,881 (TPEC Crim App 1988) (violation of Artiids 32. 102, the speedy Trial Act, is nonyurisdictional delect), Ex Parle Tovar 9013 m 22484,480 (TPEX Crim App 1980) (vidiation of Art. 26.13 not cognizable unless it affected defendant s decision to plead guilty)

To satisfy the second element of the injunction standard caltan must demonstrate that if he is denied an injunction, irreparable harm will result see Holland Am Ins. Co V succession of Roy 777 F 28992,997 (SMCir 1985). In general harm is irreparable where there is no adequate renedy at low such as monetary damages. See Deerfield med Ctr. v city of Deer field Beach Gerfad 329, 338 (SMCir Unit (1981).Cattoria inability to rabe the Grady Violation and Right TD speedy Trial Violation claim on appeal that are menorialized in the pretrial records that were omitted from the record on appeal. Has resulted in the excessive delay and substantial reformation of appeal approaching twelve years and counting. since caltan timely filed his notice of Appedion 5-26-04. See C r vid.1 " 5 th" at p. 373 and "9 th" at p. 538. As a matter of law, the conteming deprivation of constitutional rights constitute irreparable harm see Elrod v aurns 427 u.S. 347, 373 (1976). In Rheuork v Shaw 628522297,302 (SMCir 1980), a civil Rights action, the Fifth Circuit recognized that a state could violate due process if it substantially delayed the appellate process it provided for convicted criminal defendants. Also see mathis utiood 957 F 22790,794 (2ndCir1991)(with respect to whether a given delay constitutes, a due process violation, we noted that the andrical framework set forth in porter vwingo 407 u.S. 514 is

Apellor's opening grief po 8 e 39 of 50

*53

generally applicable, use ended appellate delays of 6-10 years excessive) Further in the ninth funded caltion has pled and proven the continuing, presentadverse effects i.e. the ongoing delay and substantial retardation of a meaningful appeal. See CR.vii.I "97h" at 9.510-512. The general purpose of injunctive relief is to halt wrongful acts that are threatened or in the course of accomplishment, rather than to grant relief against past actionable wrongs or to prevent the commission of wrongs not imminently threatened). See Texas Health care Info. Coun. V Seton Health Plan. Inc 945 w3d 541, 555 CTE4 App. Austin 2002. Although it is undisputed that a wrongful act has accrued in the past. due to the fact that because Schiller filed an inadequate record. Caltion was not afforded a meaningful appealand said appeal was unconstitutionally resolved. See CR.vi.1.1 "87h" at 9.281-282, 285-287 and "97h"at p. 545-546,549-551. Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief if unaccompanied by any continuing, present adverse effects. see olshen vcillleton 414 U.S. 483 495-90 (1974). In the instant case the harm is not merely imminent, it is actual and ongoing. See NMTC Corp vCoanctoe 995 w3d 805, 869 CTE4 App (remont 2003)(court noting the harm is more than imminent it was actual and ongoing).

For over a century the supreme Court has allowed suits against state officials for prospective injunctive relief to end a continuing violation of federal law under the doctrine of Ex Parle Young 209 U.S. 123 (1908) Caltion will continue to suffer harm until he is provided a complete and sufficient record and new appeal to utilize said records to raise to visible constitution dimension claims. In not all cases, where the pertioner fails to show irreparable injury will he still be denied a permanent injunction. see Lewis v Baume 524 F2d 1115 (1123 (5th Cir 1970), where as the essential finding that must be made to issue a preliminary injunction is irreparable injury, he essential prerequisite to permanent injunction is the unavailability of an adequate remedy at law. Id at 1124 . Often times the concepts of "Irresparable Injury" and No Adequate Remedy at Law" are ind ustinguishable. The court in Bannercraft clotting Co. v ennegotiation Board 460 F2d 545 (cc.cir 1972), rec'd 415 U.S. 1 (1974) acknowledged the frequent indistinguishability but

*54 Went on to say that the irreparable injury rubic is intended to describe the quality or severity of the harm necessary to trigger equitable intervention. In contrast, the inadequate remedy looks to the possibilities of alternative modes of relief, however severe the initial injury. Id at 3560.9.

Cation will undisputedy prevail on the merits on his $$ 1983$ claims. Because Cation had a statutory and constitutional right to a complete and sufficient record at state expense as an indigent appellant. See Griffin v. Ellinols 351 U.S. 12 (1950), Ex parte Trainer 1813 W3d 3581559 (Tes. crim 499 2005) Also see Caitinis motion for a free Record and Count's order granting the same. Seece vol. "87n" at p. 274-275 and "97n" at p. 539-540. The Texas Constitution grants a right to appeal to all civil and criminal litigants. See Melton v. Krusen 6785w2d 9181921 (Tes. 1984). Due process requires that, once the state, once the state has created the right of appeal, it must, "offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeal. See Eutts v.lucky 105 s.Ct 830,841 (1985). The constitutional touchstone is that the appellate procedure must furnish the components necessary for meaningful review. A state wound deny a defendant such a "fair opportunity "if it reduced the appeal to a meaningless situel" by denying him the means to effectively press his appellate arguments. See Draper v. Washington 372 U.S.487,496 (1963) (Indigent's Right to a sufficient Transcript). Therefore in all cases the duty of the state is to provide indigents as adequate and effective an appellate review as that given appellants with funds. Idat 4960 . In terms of a trial record, this means that the state must afford the indigent a "a record of sufficient completeness" to permit considerations of his claims. Id at 4990 As the Supreme court held in mayer v.lity of Chicago 401 U.S. 189, 198 (1971) Cation cannot bedenieda "record of sufficient completeness" to permit him proper consideration of his right to speedy Trial Visitation and Brady Visitation claims. Idat 198. In Draper v. Washington the Supreme Court made clear that caitinis Right to speedy Trial Visitation claim is the type of claim that requires provision of verbatim transcript. See Draper 372U.S. at 497.

Appellants opening Brief page 41 of 50

*55 The threat of harm to calton outusights any harm that might re- sult to schiller by a permanent injunction. Calton's direct appeal did not com- port with the demands of the 14th Anandment. Because schiller filed an incomplete and insufficient record. In deciding whether to grant an in- junction, courts ask whether the suffering of the moving party if relief is denied will outweigh the suffering of the non-monent party if relief is grated. The Relief that calton seeks is essentially an order compelling schiller to provide calton a complete and sufficient record and a new appeal to utilize said record be afforded to calton. Thus relief calton seeks is merely a preexisting duty under the U.S. constitution. See Eviths v Lucey, supra', Griffin v Illinois, supra', or aper v washington, supra. The proposed relief is narrowly tailored to remedy the ongoing violation of calton's constitutional rights and to prevent the occurrence of irreparable in the future. see 18 U.S.C. § 3620 (a), It will not cause schiller any real harm.

As a general matter, the "public interest is always well-served by protecting the constitutional rights of all its members" See Reinert v Hoas 585 F.Supp 477,481 (s.o. Iowa 1959), Spartacus Youth League v Board of T'ru- stees 502 F.Supp 789,904 (N.O. III 1920) (finding that "the ultimate public interest lies in the protection of the constitutional rights which plaintiff assist") The public interest is not served by calton being denied his constitutional pight to a complete and sufficient Transcript and his right to a meanhful appeal. The 14th Anandment guarantees a criminal defendant pursuing a first appeal as of right certain "minimum safeguards necessary to make that appeal adequate and effective. See Griffin 351 U.S. at 20. The Suprane Court has stated that it is a criminal defendant's access to the record that makes any appellate reviewer meaning ful. See Gardner v California 353 U.S 367,362 (1969). The undisputed facts confirm Calton's § 1983 claims are civilly actionable. Due to the exceptional and extraordinary circumstances showing the complete failure of the sustom. Calton has been barred out of Court in an attempt to rectify schiller's malfeasconce. Irrespective of the fact that the matters involved herein may be considered failed collateral attacks on cal- ton's direct Appeal and conviction. However there has never been a review on the merits on this issue. With the exception of being unreasonable resolved by Judge Robert Gill rehring on schiller's mis-

Appellants opening Brief page 42 of 50

*56 $y$ representation as the truth of the matter. See CQ.vol.1 "8th" at p.355357 and "9th" at p.620-622. On 3-29-12 schiller recarts those false facts relied on by Judge Gill. See $\pm$ " 8 th" at p.281-282 and " 9 th" at p. 445-446. Thus the instant case is distinguished from Kennedy v.5taples 3363432745,752 -54 Ure. App. Torarkana 2010 (court stating these matters are involved with Kennedy's failed collateral attacks on his conviction and are not civilly actionable, absent extraordinary circumstances showing a complete failure of the system.

Because Catton unlike "Kennedy" is not merely discontent because his direct appeal affirmed the trial court's judgment on an incomplete record prepared by an incompetent court reporter. Catton is discontent and the evidence establishes that he was dored a meaningful appeal to no fault of his own $I C d$ at 754 (stating Kennedy is discontent he has not been found innocent. He has alleged nothing that would justify civil relief). The fault is to be solely attributed to Schiller the court reporter whose material misrepresentation to Catton prevented Catton from raising two viable constitutional dimensional claims. See CQ.Vol.1 "8th" at p. 215-222 and "9th" at p. 479-485. Because the records memorializing said claims were omitted from the record on appeal. Although the records were timely requested and diligently sagnt by Catton. See CQ. vol.1" 8th" at p. 204-205, 281-282, 285-287 and "9th"at p. 467-468, 545546, 449-551. The instant case involves Government -slake officials' material misrepresentation to the defense, which failed Catton's appeal. Thus this court can reasonably conclude that extraordinary circumstances exist as well as the complete failure of the system has been shown by Catton. Sustaining Catton is entitle to civil relief. with on equitable order to be issued, retaining that Catton be provided a complete and sufficient record. That will afford Catton the opportunity to press his study violation and might TO speedy Trial Violation claims and on out-of-time. Appeal to raise these claims on appeal now. That Catton willbed to raise at the time in question but the factual basis to do so was unavailable until 3-29-12. When Schiller admitted he made a mistake. See CQ. vol.1 "8th" at p. 281282 and "9th" at p. 545 - 546 . Cf. Hudson vultility 979622 1058, 1045 (5th Cir1995) (stating crucial factors external to the defense "the reasonable univaitability of the factual basis of the claim" As well as "Government Interference" (6ystates Non-Feascaried) prevented from discovery of the claim

Appe1lants opening grief page 43 of 50

*57 Y- he now raises). Every tribunal calton has sought relief, whether under the "Omission of the Records theory" where calton sought an out-of-time. Appeal in both stoke and federal court or under "the test and/or destruction of the Records theory" where calton sought a new trial in both stoke and federal Court under habeas. Corpus has denied relief on procedural grands or refuses to take any action on the petitions, see Ex parte Allen F"Caltor W.R. 651590-14 through W.R. 057590-17 in the Court of Criminal Appeals. Also see calton v stephens civil actions No. 413-CU-378,413-CU-592, 4.13-CU-885 and 4.14-CU-139 in the U.S.O.C. Fortworth division. Also see C.R.viI.I "3th" at p.360-362 and "9th" at 625-627.

In the Court below there was a plea to Jurisdiction filed by the Attorney General Id at p.9-15. Contending calton's action was a collateral attack on a prior judgment. Id at p.II. And both Judge Donald Cooley before recusing himself Id at 55-59 and Judge Susan McCoy determined their courts lacked jurisdiction. Id at p. 40 and 450 respectively. Ahiosee Id at p. 453 where Judge mcloy noted on the backet sheet that the courts lack of jurisdiction is why she granted schillers motion to 0 limits on 6-1-15. Id at 450. Calton has no other adequate remedy at law confirming the complete failure of the system in light of the anticipated facts of the instant case mandating civil relief. TO rectify the failing of calton's Appeal as a result of a government official's incomplenke. Principles of equity governs forms of injunctive relief and the absence of an adequate renedy of law is essential. See C.H. Leavell and Company V Leavell Company 5703 w2d 404 (TE L.CU.App EI pass 1975, nowrit) A request for injunctive relief invokes a court's equity jurisdiction. See Ex parte Hughes 129 sw2d 270, 273 (1939). Once a constitutional violation has been found, courts have broad powers to fashion a renedy. Cf. Swann v Charlotte - mecklenberg Qd of Educ 402 U.S.I, 1546 (1970). In the instant case calton has met the burden of proof that shows equity demands civil relief be granted to him as a matter of law and as a matter of fact. Further calton has met the standard to obtain civil relicf as explained by "Chicf Justice moris". See generally Kennedy $V$ staples, supra.

Appellants Fifth Point of Error Appellants opening arief page 44 of 50

*58

The trial court ecced by not reopaying the case to consider caltors claims in light of the Ninth Amended Complaint that was timely filed pursuant to the prison malbox Rule and due to Catton sought leave to amend and there was no showing of surprise or prejudice

Standard of Review

The standard of Review of a trial Court's pretrial order or in the instant case a lack thereof is abuse of discretion. See Johnson 700,1422 at 917.

Argument

The trial court abused its discretion by refusing to reconsider its judgment in light of Catton's Ninth Amended Complaint that was filed on 5-29-15 pursuant to the prison mailbox rule. The suptone court created a special rule for prisoners who file papers by mail. See Houston v. Lack 487 us 266 , 274-74(1980). A prose prisoner's papers are deemed filed when they are turned over to prison officials. See Warner v Glass 135503 &; 681, 984 (TE 2004) and I'd at 686 and cases cited. It is undisputed that Catton turned his Ninth Amended Complaint over to prison officials on 5-29-15. See C.R. vol. 1 "9th" at p. 5360 and I'd at 6666667. As this proof makes clear Catton turned the Ninth Amended Complaint over to prison officials on 5-29-15. See I'd at p. 536 . This s wort declaration stating the filing state of 5-29-15 shifted the burden to sclifler to prove the complaint untimely filing. See Caldwell v. Amend 30 F 3 d 1199,1203 (9th Ctr 1994). Further if the trial court had a question concerning the timeliness of the filing of said complaint. Then the Court should have conducted an evidentiary hearing to permit the court to make a factual finding to the contrary upon a sufficient evidentiary showing by the opposing party. See Faile v. uppohn Ca 988 Fad 985, 989 (9th Ctr 1992). since the trial court did not it must have accepted Catton's allegation of the 5-29-15 filing date as true. I'd at 989. Thus the 5-29-15 filing date was two days before the trial court issued its order dismissing Catton's claims against Schiller. See cR. vol. 1 p. 450. For reasons unbekannt to Catton the Ninth Complaint was not filed marked until 14-15-15. See C.R. vol. 1 p. 457 . Thus in all probability said complaint was not considered by the court on 14-1-15 or at all for that matter. The issue is preserved for appellate review in light of Catton's objection to the Court filed and forwarded to the Court on 7-9-15. See C.R. vol. 1 p67674. The motion was brought to the court's attention by Catton's demand

Appellant's opening grief page 45 of 50

*59 letter forwarded to the court demanding the court to rule on said motion see 2nd. supp.CR. vd. p.19.20. The issue was brought to the court's attention, the court refused to rule and caiton objected to the court's refusal and preserved the issue for appeal. See T&;AP 331; Bryant v Jeter 2411/432447, 44950 (Tek.App Dallas 2011 no. pet)

Assuming arguments that motion to dismiss hearing held on 61-15 was a trial, would make it necessary for caiton to see $& a m p;$ leave to mend his complaint on 5-29-15, which is why caiton prepared this motion for Leave to mend his pleading and forwarded the same to the court on 6-15-15. See 2nd supp.CR. vd.I p.11-18. Cf Goswami v metropolitan SAG and Loon Ass' n 751 Sw2d 457,490 (Tex 1988) (court characterising Summary Judgment hearing as Trial for purposes of Tex.R.Civ.P. 62). Caiton sought leave of Court to file his Ninth Ananded complaint as soon as he became aware of the fact leave was needed, which was on 6-15-15 which is the date cation received the 6-1-15 order dismissing his claims against schiller. See 2nd supp. CR. Ud p.12. This court should take suddial no tive that the facts contained in the motion To Anand are sworn to under the penalty of perjury. Id at 17. Thus caiton's 6-15-15 receipt date of the 6-1-15 order is factual and undisputed. Distinguishing the instant case from "Guerreque" is caiton can claim and this court should sustain that the trial court abused its discretion to refuse any consideration of the Ninth Ananded complaint. See Guerreque v Thompson 953 Sw2d 459,403 (Tex.App. 81 Paso 1997) (court shating had Appellant sought leave of court to file the Ananded petition within seven days of summary Judgment hearing, Appellants could well have claimed the court aboused its discretion by refusing to consider the ananded petition because appelees failed to show surprise or other prejudice). The court went on to shake because Appellants never requested leave of court to file the amended petition, they failed to meet the threshold requirement of Tex.R.Civ. P. 62; and the trial court was within its discretion to refuse any consideration of the ananded pleading. Id at 403.

Tex.R.Civ.P. wile 62 states in pertinent part: Parties may anend their pleadings, respond to pleadings on 8le of other parties and file such other pleas as they may desire by filing

Appellants Opaing grief page 40 of 50

*60 such pleadings with the clerk at such time as not to operate as a surprise to the opposite party', provided, than any pleadings, respaies or pleas offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 1669 shall be filed only after leave of the judge is obtained, while leave Shaff be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party: see Text.civ.P. 65 Texas Courts have construed the requirements of Rule 103 in favor of the right to amend. See Guercque 955 w2d at 403 . once a party requests leave of court to file an amended pleading within seven days of trial, the court has no dixeration to refuse the amended pleading unless the opposing party demonstrates that unfair surprise would result, or unless the an ended pleading contains a new cause of action or before, which can be considered prejudicial on its face. See Chapin and Chapin v Texas said and Gravel Co. Inc 244 Sw2d ( 664,665 Ctex 1992). Even where a new cause of action or before renders the amended pleading facially prejudicial to the opposing party, case law suggests that the opposing party must object to the amended pleading on the basis that a substantive change has been made. See Hardin v Harbin 2975 w2d 347, 349-50 Ctex 1989)

Schiller did not move to strike, move an objection nor show surprise. The trial court did not issue an order striking the ninth Amended Complaint. The burden of showing surprise or prejudice is on the party resisting amendment. I d at 349. Thus Schiller has waived and/or failed to meet his burden. Cf America petrofin, Inc v aller 2275 w2d 229, 231 Cex 1994 ( holding defendants failed tomet burden to plead to prove limitaten because they presented no summary Judgment proof that they were grejudiced by plantiffs renaming, omision and renaming of a plaintiff in the petition) A pleading asserting a new cause of action does not make it prejudicial as a matter of law to the opposing party. See State Car of Texas v Kilpatrick 874 sw2d ( 656,658 Ctex 1994). The pleading must be evaluated in the context of the record of the entire case Id at 452-59. The trial courts error is compounded due to the amendment invested callous claim that his flight to a speedy appeal was violated. The ninth Amended Complaint contained the Barker v wings 407 u.S. 514 (1974) factors necessary

Appellants Opening Grief page 47 of 50

*61 to sustain this legal theory. See said complaint c&; vol. 1 p.510-512 paragraphs 138-142. Notwithstanding the liberality courts view prose pleadings, unrepresented plaintiff's are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See Taylor v Books A million, Inc 296 F3d 374, 378 (5m Cir 2002); Also see Rheuark v shows 62852d 297, 302 (5m Cir 1990) (ove pracess can be denied by any substantial retardation of the appellate process including an excelsive dofow in furnishing the transcripts of testimony necessary for the completion of an appellate record). The court went on to hold that the earbar factors are preferred since the reasons for consteung appellate delays and agass to motives under pinning the sixth Amendmert Right to Aspeedy trial $\times 2$ at 304.

Further because it was mandatory for Caltoris pleadings to reflect that his action was for prospective injunctive relief and not merely complaints of past conduct to entitle caltor to injunctive relief. Caltor sued schiller under 51933 for three distinfed claims ie. (1) for failing to preparpond file a complete record, (2) Caltoris appeal being cesolved on that incomplete record and (3) for the substantial delay of a meaningful Apead. See ce vol. "2 m" at p.194, 254-256 and "9m" at p.457, 519-521. Past exposure to illegal conduct does not in itself show a present case or contro. versy regarding injunctive relief if unaccompanied by any continuing, present adverse effects. See O'shea 414 U.S at 495-96. The ongoing substantial reterdation of a meaningful apred contirues and is approaching twelve years since caltor submitted his timely notice of Appeal on 5-20-04, See c&; vol. " 8 m "at p. 273 and "9m" at p. 537 . And this Caltor's Rights under the forteenth Amendment are continuing to be violated for want of a meaningful Appeal. See mabhis 957 F2d at 794 (we have ruled Appellate delays of 6-10 years excessive). The factual allegations in the ninth An erded complaint sustain there is the continuing present adverse effects necessary to warrant injunctive relief. See c&; vol. " 9 m "at p.510-512 paragraphs 138-142. The instant case is readily distinguishable from "Osmizio" and this court can reasonably determine and conclude that leave should have been grated and the court should have reconsidered its judgment in light of the ninth An erded complaint. Because caltor sought leave to mend the same.

Aepellant's opening brief page 48 of 50

*62 See DomicidV progressive county mat. Ins Co. 545432 267,370 CTEL App. Austin 2000, peEden) (determining that where the trial Court did not consider amended pleading and leave to file was not requested, amended pleading was not timely filed and appellate court would not conclude that leave should have been granted). Finally although caltorsought both leave to amend and supplement his pleadings with the Ninth Amended Complaint and supplement to the Ninth Amended Complaint. See 2nd supp.CR. voll p.11-17. And calton may not have been artifie to supplement his pleadings with the supplement to the Ninth Amended Complaint. See 2nd supp.CR. voll. p.7-8. Irrespective of that fact calton was undisputedly allowed to Amend his complaint. Thus the trial Court could have continued the practice of tailoring calton's prepared orders to its liking and could have crossed out the wood supplement in said order. See Id 2nd sup.CR. voll. p.18. Also see eg. orders at CR.vol.1. p.163,164,165, 448,449 and 632. The trial erred by denying leave to amend and for failing to reconsider its subg ment in light of the timely filed Ninth Amended Complaint.

Appellant's Sixth Paint of Error The Trial Court erred in granting the defendant Judges motion to dismiss for lack of subject matter jurisdiction.

Standard of Review An Appellate Court's review of a trial court's ruling on a pleato the jurisdiction is de novo. see state dept of Hwy and PuSITroup v Gonzale 2 225432222,327 (TEL 2002)

Argument Tubicial immunity is not a bar to prospective injunctive relief against a judicial of fur acting in a judicial capacity see palliamV Allen 4064.S. 522,542-44 (1934).calton merely sought injunctive

Appellant's Opening Brief page 49 of 50

*63

relief from the judges. See C.R. vol.1 "Eth" 195-196 and "9th" at p. 458-459. A plaintiff may stand on his pleadings in the face of a plea to jurisdiction unless and until a court determines that the plea is meritorious. See County of Cameron v Brown 803.032 S49,559 (TEx 2002). In light of the court order determining that the judges plea was meritorious. See C.R. vol.1 p. 40 Canton is entitled to a reward to Amend his pleading. See Texas Aandm Univ S45. v kosee glue 2335032855,935 (TEx 2007).

PRAVER

whierefore, premises considered calton respectfully prays and moves this court to overrule the trial court orders dismissing caltoris claims against defendants sued herein and order the cause be reversed and renamed and the trial be ordered to appoint counsel. calton further moves the court for a renand to afford calton an opportunity to Amend his pleading. Calton further moves this court to order the trial court to issue a preliminary insurction and issue an equitable order that exjoins defendants and those that act in privily with then to provide calton a complete and sufficient record record and out-of-tone appeal to utilize said record. Finally calton moves for any and all other relief he may just be entitle to generally, by law and equity, whether general or special he may be entitle to under his pleadings and the evidence in support there of.

$respectfully submitted, \ allen "E" Calton$

certificate of service

I. Allen"E"Caltor* 112380 incerested at Stiles unit, in Jefferson County, TX. hereby certify under penalty of perjuitythe foregoing was turned over to prison officials by depositing by same in the prison mailbox in a postage prepaid envelope addressed to the sixth District Court of Appeals 100 worth state line Avenue # 20 Y практи, TX. 75501 certified mail label # 70151520000 41739300 and first class mail to Appellees Attorney Oure in Anatsiadis Erecuted on 11-18-15 allen"E" Calton Appellantiogoing grief page 50 of 50