11th Court of Appeals

                                                                  Eastland, Texas

                                                             Memorandum Opinion

Ricky W. Turner

Appellant

Vs.                   No. 11-04-00060-CV B Appeal from Taylor County

James Duke, Jr. et al

Appellees

This is an appeal from the trial court=s order dismissing the suit for failure to comply with the requirements of TEX. CIV. PRAC. & REM. CODE ANN. ' 14.001 et seq.  (Vernon 2002).  We affirm.

While incarcerated in the French Robertson Unit of the Texas Department of Criminal Justice - Institutional Division, Ricky W. Turner originally sought a declaratory judgment, injunctive relief, and monetary damages in the amount of $500,000.  Turner alleged that his request that his cell mate Willie James Battle lower the volume of his radio resulted in Battle=s death threats to Turner and to Battle=s assault on Turner.  Turner also alleged that James Duke, Jr as Warden of the French Robertson Unit, Austin Etheridge as Lieutenant of prison guards at the French Robertson Unit, and Jesus Chavez as Corrections Officer III at the French Robertson Unit acted with the deliberate indifference at his request for their intervention in his situation with Battle and that they falsely charged him with fighting.  Turner further alleged that defendant Chavez Aknowingly, and willfully with intentional, malicious, sadistic, deliberate indifference@ violated TEX. CONST. art. I, '' 11 & 16 and U.S. CONST. amends. VIII & XIV.^[1]

In his brief, Turner contends that appellees= deliberate indifference to his health and welfare resulted in Battle=s assault upon him and thereby violated his Eighth Amendment rights.  He also contends that appellees sought a dismissal upon grounds that he did not allege in his petition.

The record reflects that the trial court dismissed Turner=s claims for failure to comply with the requirements of Section 14.004.  The record before this court supports the trial court=s conclusions.  Turner=s reassertion of his claims on the merits does not cure the defects in his pleadings in the trial court and does not conform his pleadings to the requirements of Section 14.004.  Likewise, the dismissal for failure to comply with the requirements in Section 14.004 is a proper ground for dismissal.  Turner=s contentions on appeal are overruled.

The order of the trial court is affirmed.

PER CURIAM

July 8, 2004

Not designated for publication.  See TEX.R.APP.P. 47.2(a).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.