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Denson v. T.D.C.J.-I.D.


Inmate Tommie J. Denson ("Denson") filed a pro se in forma pauperis civil suit for an injury to his hand. He filed suit against the Texas Department of Criminal Justice-Institutional Division (T.D.C.J.-I.D.), and its employees (Tito Orig, Mary Gotcher, Lannette Linthicum, Artis Mosley, Kenneth Kuykendall, Virginia Buchanan, and Gary Johnson), as well as University of Texas Medical Branch (U.T.M.B.), and its employees (E. J. Pederson and John Eaton) (sometimes collectively referred to as "Appellees") pursuant to Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001 et seq., commonly known as the Texas Tort Claims Act ("TTCA"). He also filed claims and requested damages pursuant to 42 U.S.C.A. § 1983 (1994) ("section 1983") for violation of the Eighth Amendment to the United States Constitution, for retaliation, and for conspiracy. Further, he filed suit pursuant to the Medical Liability and Insurance Improvement Act ("MLIIA") for medical malpractice. Additionally, Denson requested injunctive relief, and alleged intentional infliction of emotional distress, state law conspiracy and retaliation, and violations of the Texas Health and Safety Code and the Texas Government Code.

Denson also filed suit against David Smith, Elmo Cavin, Dr. Jason Calhoun and Dr. Ben Raimer. Drs. Calhoun and Raimer were granted summary judgments and were severed. In eleven issues, Denson complains that the trial court erred when it denied his motions for summary judgment, granted summary judgments in favor of all defendants, and granted their motion to dismiss. We affirm in part and reverse and remand in part.


Denson fell in the prison shower and broke his hand on September 2, 1999. The next day, he was sent to the doctor assigned to the Coffield Unit of T.D.C.J.- I.D. Dr. Orig, the treating physician, x-rayed Denson's hand and concluded that he had suffered a fracture of the head of the fourth metacarpal of the left hand. Dr. Orig ordered a splint and an ace bandage, and an appointment was made with a specialist at U.T.M.B. for September 17, 1999. The U.T.M.B. specialist noted a two-week-old break, and recommended range of motion exercises. Denson's hand healed with noted deformity and weakness, for which he repeatedly requested surgery. When he was refused the treatment, he filed suit against the above-named defendants.

All defendants, except Smith and Cavin, filed a motion to dismiss under the MLIIA, which the trial court granted. All defendants, except Smith and Cavin, filed motions for summary judgment, which the trial court granted. Denson also filed motions for summary judgment, which the trial court denied. Although not all claims and parties were litigated, the trial court entered a final order for all defendants. This appeal followed.

Final or Interlocutory Judgment

As a general rule, an appeal may be taken only from a final judgment. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). To be final, a judgment must dispose of all issues and parties in the case. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 485 (Tex. 1995). No appeal will lie from a partial summary judgment unless there is an order of severance. Schlipf v. Exxon, 644 S.W.2d 453, 454 (Tex. 1982). If a judgment is interlocutory rather than final, the appeal is premature and the case must be dismissed for want of jurisdiction. Simmons v. Williams, 976 S.W.2d 361, 363 (Tex. App.-Houston [14th Dist.] 1998, no pet.).

Before addressing the merits of Denson's appeal, we will first determine, sua sponte, whether we have jurisdiction to consider this appeal. See Texas Workers' Compensation Comm'n v. Garcia, 893 S.W.2d 504, 517 n.15 (Tex. 1995). In the cas

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