Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 352nd District Court Tarrant County, Texas
Trial Court No. 352-305306-19
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.
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. He alleged that collectively, these
defendants had violated several provisions of Texas statutes
and the Constitutions of Texas and the United
States. Hollis sought damages of over $1, 000,
000, including statutory, compensatory, and punitive damages,
as well as injunctive relief.
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
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).
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
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.
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. See Tex.
R. Civ. P. 166a(i).
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
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.
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)).
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.
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 ...