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No. 06-03-00017-CV 7/3/2003. Torts Click here for the full text of this decision FACTS:Patrick Lee Mullins, an inmate in the Texas Department of Criminal Justice — Institutional Division, appeals the dismissal of his pro se and in forma pauperis suit against the Estelle High Security Unit and Texas Department of Criminal Justice — Healthcare Services Division, the appellees. Mullins alleged that the appellees’ denial of access to medical supplies resulted in personal injury caused by negligent use of personal property under the Texas Tort Claims Act. The trial court deemed the suit frivolous and dismissed it with prejudice under Chapter 14 of the Texas Civil Practice and Remedies Code. Mullins alleged in his petition that the appellees maliciously and negligently cancelled his medical supplies for a period of approximately five months while he was incarcerated in the Estelle High Security Unit of the Texas Department of Criminal Justice. Mullins alleged that during this time he was denied catheters, lubricants, povidone, tape, external condom catheters, a leg bag, bed-bag, vinyl connector, a tubing connector, adult incontinence pads, skin shields, biohazard and waste contamination bags, an egg-crate mattress, and a T.E.O. hose for his swollen feet. Mullins alleged this action resulted in his complete loss of bladder control, and contraction of a urinary tract infection and hepatitis. Further, he alleged that he “lived and slept in a foul-smelling urine” environment and that, to relieve his bladder pressure, he was forced to use a pen casing that he inserted into his urethra, resulting in a one-and-one-half inch tear in his penis. Mullins alleged he developed blackened sores circumferencing the length of his penis. The trial court deemed the suit frivolous and dismissed it with prejudice. HOLDING:The judgment is modified to dismiss the cause without prejudice and the court affirms the judgment as modified. Mullins alleges that denial of medical supplies resulted in his injuries. In order for nonuse of property to be “use” of property under the Texas Tort Claims Act, some property must be used which lacks an integral safety component, and the use of the said “some property” must proximately cause the injury. Mullins does not allege that he was provided with medical supplies that lacked an integral safety component but, rather, that he was provided with no medical supplies at all. While these medical supplies may have prevented his injuries, they did not proximately cause them. As in Miller, the injuries were alleged to have been caused by his medical condition, which was not adequately treated. Therefore, the allegations in Mullins’ petition do not give rise to a circumstance where the court would have subject matter jurisdiction due to a waiver of sovereign immunity under the Texas Tort Claims Act. The court notes the trial court dismissed Mullins’ claim with prejudice. Dismissal with prejudice constitutes an adjudication on the merits and operates as if the case had been fully tried and decided. Mossler v. Shields, 818 S.W.2d 752 (Tex. 1991). A dismissal with prejudice will have full res judicata and collateral estoppel effects. Generally, the proper remedy, when a court lacks subject matter jurisdiction, is to dismiss the case without prejudice. If it appears that frivolous allegations “could be remedied through more specific pleadings, a court of appeals should consider whether the district court abused its discretion by dismissing the complaint with prejudice.” Denton v. Hernandez, 504 U.S. 25 (1992). The court is not prepared to say Mullins has no other possible cause of action against the appellees arising out of the same facts. The proper judgment is dismissal without prejudice. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, JJ.

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