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Hollis v. MHMR of Tarrant County

Court of Appeals of Texas, Second District, Fort Worth

August 29, 2019

Drue Allen Hollis, Appellant
MHMR of Tarrant County, Appellee

          On Appeal from the 352nd District Court Tarrant County, Texas Trial Court No. 352-305306-19


          PER CURIAM

         Drue Allen Hollis, appearing pro se, appeals from a declaration that he is a vexatious litigant. In his sole issue, Hollis contends that the trial court provided insufficient time for discovery with regard to his no-evidence summary judgment motion. But the trial court did not grant a summary judgment, and it is therefore of no consequence whether the trial court allowed an adequate time for discovery. Instead, it granted a motion to declare Hollis a vexatious litigant, and the record shows that Hollis was provided with notice and ample time to respond before the trial court did so. We therefore affirm.

         In January 2019, Hollis initially sued appellee MHMR of Tarrant County for wrongfully withholding his medical records. Over the next four months, Hollis filed seven more supplemental and amended petitions, each with its own distinctive claims and allegations, in which he elaborated on his predicament. He explained he had been unlawfully and involuntarily committed to inpatient psychiatric facilities multiple times between 2008 and 2016. According to Hollis, MHMR had made false representations and improper disclosure of his mental health records in an effort to obtain commitment orders, and upon his commitment, MHMR had illegally administered psychoactive medication to him. By the time of his live petition, Hollis had added ten defendants, which were apparently governmental entities and health care providers that were involved in his commitments and treatment.[1] He alleged that collectively, these defendants had violated several provisions of Texas statutes and the Constitutions of Texas and the United States.[2] Hollis sought damages of over $1, 000, 000, including statutory, compensatory, and punitive damages, as well as injunctive relief.

         On March 8, 2019, MHMR filed a "Combined Motion to Dismiss, Plea to the Jurisdiction, and to Declare Plaintiff a Vexatious Litigant." MHMR stated that Hollis's suit was just the most recent of nine that Hollis had filed since 2015, all for alleged conduct arising from his temporary commitments. This was the fourth lawsuit that Hollis had filed against MHMR alone related to the same underlying events. MHMR contended that all of Hollis's previous lawsuits against MHMR had been dismissed; attached to MHMR's motion were various orders of dismissal reflecting either that the trial court granted MHMR's plea to the jurisdiction or that Hollis voluntarily dismissed his claims against MHMR, citing his own belief that the trial court lacked jurisdiction.

         MHMR further explained that the trial court had recently declared Hollis to be a vexatious litigant in another factually related lawsuit. In that proceeding, Hollis sued many of the same ten governmental entities and health care providers, and those defendants moved to dismiss his claims under chapter 11 of the Texas Civil Practice and Remedies Code. MHMR attached the resulting order, which declared Hollis a vexatious litigant under chapter 11, required him to post a $7, 000 security or else have his claims dismissed with prejudice, and prohibited him from filing any new pro se litigation without first obtaining the local administrative judge's permission. MHMR prayed for similar relief. In a previous appeal, we affirmed that order in part, and we dismissed Hollis's appeal for want of jurisdiction in all other respects. Hollis v. Acclaim Physician Grp., Inc., No. 02-19-00062-CV, 2019 WL 3334617, at *1 (Tex. App.-Fort Worth July 25, 2019, no pet. h.) (mem. op.) (per curiam).

         MHMR's motion was set for hearing on April 25, 2019. MHMR filed a certificate of service indicating that Hollis was electronically served with a notice of that hearing on April 2, 2019.

         On April 8, 2019, Hollis purported to file a notice of removal. According to Hollis, he anticipated that a federal court would better protect his constitutional rights and address his frustrations at the denial of his motions for disqualification and recusal.[3]

         On April 25, 2019, Hollis filed a no-evidence motion for summary judgment, arguing that there was no evidence of one or more essential elements of a defense on which MHMR would have the burden of proof. Hollis never specified what defense he was targeting. Rather, as the particulars of the motion made clear, his argument was that MHMR had no evidence to refute his own causes of action, which is not an accepted approach for a no-evidence motion for summary judgment.[4] See Tex. R. Civ. P. 166a(i).

         Also on April 25, 2019, the trial court held a hearing on MHMR's motion. After hearing argument, the trial court granted the motion, declared Hollis a vexatious litigant, required him to furnish security of $19, 391.17 or else face dismissal of the suit with prejudice, and barred him from filing any further pro se litigation without written permission from a local administrative judge.

         After the trial court rendered its order, Hollis filed a motion for continuance on May 6, 2019, asking the court to retroactively grant a continuance of the hearing that had already occurred on April 25, 2019. Hollis asserted that he was not provided with adequate notice or an opportunity to respond to MHMR's motion. He offered no proof that he was not served with notice, though. Simultaneously, he explained that his failure to appear at the hearing was attributable to MHMR's wrongful conduct, in that MHMR had "misrepresented" his "character and morale" and left him with "a sense of fear." When his motion for retroactive continuance was unsuccessful, Hollis filed this appeal.[5]

         As an initial matter, we consider our power to proceed. Hollis purported to file a notice of removal to federal court on April 8, 2019. A properly filed notice of removal will prohibit the state court from taking further action; "a state court has no power to proceed with a case which has been properly removed to federal court." Resolution Tr. Corp. v. Murray, 935 F.2d 89, 92-93 (5th Cir. 1991) (emphasis added); see In re Sw. Bell Tel. Co., LP, 235 S.W.3d 619, 624 (Tex. 2007) (orig. proceeding) (citing 28 U.S.C.A. § 1446(d)).

         However, Hollis's attempted removal was not proper. First, Hollis was the plaintiff. The right to remove a state court case to federal court is generally limited to defendants only, F.D.I.C. v. Loyd, 955 F.2d 316, 326 n.10 (5th Cir. 1992) (citing Am. Int'l Underwriters (Phil.), Inc. v. Cont'l Ins. Co., 843 F.2d 1253, 1260 (9th Cir. 1988)), because section 1446 speaks only of allowing a "defendant or defendants" to effect a removal. See 28 U.S.C.A. § 1446(a). Hollis, as the plaintiff, had no right to remove his own suit.

         Second, Hollis's purported notice did not bear the file stamp of a federal district court clerk, and a PACER search reveals that Hollis has not filed any papers in federal court. A defendant can remove a case from a state court to federal district court by filing a notice of removal "in the district court of the United States for the district and division within which such action is pending." Spencer v. Dallas Cent. Appraisal Dist., No. 05-15-01526-CV, 2016 WL 1298582, at *1 (Tex. App.-Dallas Apr. 4, 2016, no pet.) (mem. op.) (quoting 28 U.S.C.A. § 1446(a)). After filing a notice of removal with the federal district court, the party "shall file a copy of the notice with the clerk of such state court, which shall effect the removal." Id. (quoting 28 U.S.C.A § 1446(d)). Thus, in Spencer, where the appellant "failed to file with this Court a copy of a notice of removal bearing the file mark of the clerk of the federal district court," the court held the record did not show a removal to federal court. Id.; see Restrepo v. All. Riggers & Constructors, Ltd., 538 S.W.3d 724, 748 (Tex. App.-El Paso 2017, no pet.) (concluding that because a notice of removal was not properly filed in federal court until after a vexatious-litigant order was rendered, the order was appropriate). Here, we reach the ...

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