Opinion

Opinion issued April 19, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-01084-CV

THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE

AND GLENDA PIERSON, Appellants

V.

LINDA THOMAS AS PERSONAL REPRESENTATIVE FOR THE

ESTATE OF DAMON HOLLIMON, DECEASED, AND

ASHLEY DOMINIQUE HOLLIMON, Appellees

On Appeal from the 278th District Court

Walker County, Texas

Trial Court Cause No. 20,377-C

O P I N I O N

Appellants, The Texas Department of Criminal Justice (TDCJ) and Glenda

Pierson (Pierson), bring this interlocutory appeal of the orders of the trial court

denying TDCJ's plea to the jurisdiction and Pierson's motion for summary judgment. (1)

TDCJ's plea asserted sovereign immunity from suit, and Pierson's motion for

summary judgment asserted qualified immunity. We reverse and render.

BACKGROUND

The deceased, Damon Hollimon, was incarcerated in TDCJ's Estelle Unit in

Huntsville, Texas and was in a sex-offender treatment program. He had been

diagnosed as paranoid-schizophrenic, but had been in remission and was not taking

any medication. However, because his condition was deteriorating and he was

becoming increasingly tense, agitated, defensive, and violent, the decision was made

to transfer Hollimon to a psychiatric unit. A "move team" of five officers was sent

to Hollimon's cell. Pierson, a University of Texas Medical Branch (UTMB) nurse,

was called in to advise whether there was any reason that pepper spray should not be

used to subdue Holliman and to provide medical assistance as needed during the

move. Pierson and the members of the move team were wearing gas masks. After

reviewing Holliman's medical chart, Pierson found no reason why chemical restraint

should not be used. Pierson, in her notes, recorded the time of various events in this

forced move.

The move team first asked Holliman to leave his cell at 3:21 p.m., and

Holliman refused. At 3:22, a member of the team discharged a canister of pepper

spray in Holliman's direction. Holliman coughed, but refused to move. The officer

waited two minutes, then discharged a second canister of pepper spray, with the same

result. After another two minutes, the officer discharged a third canister, but

Hollimon still refused to move. At 3:28 p.m., the officers entered the cell to force

Hollimon out, and Hollimon, who was described as having a "well developed, well

nourished, muscular" body, resisted. The ensuing struggle resulted in a "major use

of force" by the team, with Hollimon face-down on the floor and an officer pressing

his knee down on the back of Hollimon's neck as other officers secured Hollimon's

hands and feet. At 3:31 p.m., the hand and leg restraints were in place, and Hollimon

was on his side in the cell. A second 3:31 entry, the last entry by Pierson, noted that

Hollimon was brought out of the cell and summarized the actions that resulted in

Hollimon's arrival at the medical department. (2)

As the officers picked Hollimon up and moved him out of the cell, Pierson saw

that his neck was limp and his head was "wobbly" and thought that his neck had been

broken. She checked his vital signs and found that he had no carotid pulse, no heart

rate, was not breathing, and had fixed and dilated pupils. Pierson testified that she

did not remove her gas mask to perform cardiopulmonary resuscitation because she

would then have been exposed to the pepper spray and would have needed medical

attention herself and thus would not have been of any assistance to Hollimon. After

checking Hollimon's vital signs, Pierson told the officers to take Hollimon to the

medical department "now."

The move team carried Hollimon toward the prison medical department, which,

according to trial testimony, was a one-and-one-half to two-and-one-half minute walk

from the cell. They had to go down a flight of stairs and pass through a "wing picket

gate," which was locked. However, the guard was not on duty, and they had to find

another guard to unlock the gate. Medical personnel were waiting on the other side

of the gate with a stretcher and took Hollimon across the hall to the medical

department. Hollimon arrived at the medical department at 3:38 p.m., seven minutes

after he was removed from the cell. Cardiopulmonary resuscitation was attempted,

but Hollimon did not respond and was pronounced dead. An autopsy disclosed that

Hollimon died from asphyxiation, and Pierson and members of the move team wrote

reports of the incident. TDCJ investigated the incident, and the Walker County

District Attorney conducted a criminal investigation, but no charges were filed.

On June 12, 1998, four months after Hollimon's death, an attorney wrote to the

warden of the Estelle Unit as follows:

I write this letter on behalf of the surviving daughter, and the

personal representative of the Estate of Damon L. Hollimon. Ashley D.

Hollimon, a minor, is the sole surviving child of Damon L. Hollimon.

Linda Thomas, Ashley's mother, is the personal representative of the

Estate of Damon L. Hollimon. Please see attached Affidavit of Personal

Representative, Affidavit of Heirship, and Death Certificate of Damon

L. Hollimon.

As evidenced by the Death Certificate, Mr. Hollimon died of

asphyxiation on February 18, 1998, while an inmate at the Estelle Unit

of the Texas Department of Corrections.

At this time, I request copies of medical records, investigative

reports, and video tapes relating in any way to the death and the

circumstances surrounding the death of Mr. Hollimon. If there is a

charge for these documents, please advise.

On February 12, 1999, appellees (3) sued TDCJ, its executive director, the warden

of the Estelle Unit, and unnamed prison guards, asserting causes of action under the

Texas Tort Claims Act, (4) wrongful death and survival statutes, (5) and section 1983 (6) for

violations of civil rights. In an amended petition, appellees added UTMB, Pierson

individually and in her capacity as nurse for UTMB, and nine employees of TDCJ.

UTMB filed a plea to the jurisdiction, asserting sovereign immunity from suit for the

wrongful death claim and arguing that appellees' claims against UTMB did not fall

under the Texas Tort Claims Act. The trial court granted UTMB's plea and dismissed

the claims against UTMB. Pierson filed a similar plea to the jurisdiction, which the

court granted, and the claims against her in her official capacity were dismissed.

Appellees filed a second amended petition in which they asserted only a section 1983

claim against Pierson individually and a claim under the Texas Tort Claims Act

against TDCJ. TDCJ filed a plea to the jurisdiction asserting sovereign immunity and

a motion for summary judgment asserting lack of notice. The trial court denied these

motions. Pierson filed a motion to dismiss and motion for summary judgment, which

the court also denied. This appeal followed.

DISCUSSION

TDCJ's Appeal: Notice

In September 2005, TDCJ filed a supplemental brief, asserting for the first time

lack of notice as a jurisdictional bar to the suit. See Tex. Ass'n of Bus. v. Tex. Air

Control Bd. , 852 S.W.2d 440, 445 (Tex. 1993) ("Subject matter jurisdiction is an

issue that may be raised for the first time on appeal; it may not be waived by the

parties."). Therefore, we first consider TDCJ's notice issue. TDCJ asserts, "The

absence of notice under Texas Civil Practice and Remedies Code § 101.101 divests

the trial court of subject-matter jurisdiction. Section 101.101 provides as follows:

(a) A governmental unit is entitled to receive notice of a claim

against it under this chapter not later than six months after the day that

the incident giving rise to the claim occurred. The notice must

reasonably describe:

(1) the damage or injury claimed;

(2) the time and place of the incident; and

(3) the incident.

. . . .

(c) The notice requirements provided or ratified and approved by

Subsections (a) and (b) do not apply if the governmental unit has actual

notice that death has occurred, that the claimant has received some

injury, or that the claimant's property has been damaged.

Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (Vernon 2005). Texas courts of

appeals have been divided in determining what constitutes "actual notice" for the

purpose of this statute and in how they treat the lack of notice. The supreme court

settled the issue of what constitutes actual notice in Texas Department of Criminal

Justice v. Simons . 140 S.W.3d 338 (Tex. 2004). In that case, the court held "that

actual notice under section 101.101(c) requires that a governmental unit have

knowledge of the information it is entitled to be given under section 101.101(a) and

a subjective awareness that its fault produced or contributed to the claimed injury ."

Id . at 348 (emphasis added). The court explained that the purpose of the statute is "to

enable governmental units to gather information necessary to guard against

unfounded claims, settle claims, and prepare for trial." Id. at 347 (quoting Cathey v.

Booth , 900 S.W.2d 339, 341 (Tex. 1995)). However, investigation of an incident

alone is not enough to show that a governmental unit has actual knowledge of an

injury. Id. "If a governmental unit is not subjectively aware of its fault, it does not

have the same incentive to gather information that the statute is designed to provide,

even when it would not be unreasonable to believe that the governmental unit was at

fault." Id. at 347-48 . The court recognized that, although "actual notice is a fact

question when the evidence is disputed," it is, in many instances, a question of law.

Id. at 348 . The court also stated that subjective awareness may sometimes be proved

by circumstantial evidence, but the subjective awareness must be actual subjective

awareness of its fault. Id. (emphasis added).

On the same day that it decided Simons , the supreme court decided University

of Texas Southwestern Medical Center v. Loutzenhiser . 140 S.W.3d 351 (Tex. 2004).

In Loutzenhiser , another section 101.101 notice case, the court held "that the plaintiff

did not give notice within the six-month period as required, that lack of notice is a

complete defense to suit but does not deprive the court of subject matter jurisdiction,

and that the defendant did not waive its complaint of no notice by delaying to raise

it." Id. at 354 . Thus, under Loutzenhiser , lack of notice would have been asserted as

a defense in a motion for summary judgment or some other pleading. It would not

have been asserted in a plea to the jurisdiction. However, after the court decided

Loutzenhiser , the legislature amended the Government Code to clarify the

legislature's intent with regard to the relationship between statutory prerequisites to

a suit and sovereign immunity. The legislature added to section 311.034 of the

Government Code the following language: "Statutory prerequisites to a suit,

including the provision of notice, are jurisdictional requirements in all suits against

a governmental entity." Tex. Gov't Code Ann. § 311.034 (Vernon Supp. 2006).

This amendment took effect on September 1, 2005.

TDCJ contends that it did not have notice as required under section 101.101,

and that, therefore, the trial court did not have jurisdiction over appellees' complaint.

Appellees respond that TDCJ had both statutory notice and actual notice of their

claim. Appellees argue that the letter sent by their counsel to the warden of the

Estelle unit was the formal notice of their claim as required by section 101.101(a).

Counsel's letter to the warden is not a notice of a claim by appellees against

TDCJ. Although it refers to Hollimon's death (the damage or injury) and gives the

date of the death at the Estelle Unit (the time and place), it does not describe the

incident. Thus, the letter does not meet the requirements of section 101.101(a), but

is merely a request for additional information regarding Hollimon's death.

Appellees contend that a letter from TDCJ's general counsel acknowledging

receipt of appellees' letter and advising that the matter was being investigated and

that the "releasability of information" would depend on the results of the

investigation is a "clear and unequi[vocal] admission . . . that TDCJ may have fault"

in the death of Hollimon. Appellees find additional evidence of TDCJ's subjective

awareness of fault in a second letter from TDCJ stating that the information they were

seeking was contained in "an on-going criminal investigation" and that TDCJ was

unable to release any information at that time.

The fact that TDCJ investigated the circumstances of Holliman's death or that

the Walker County District Attorney also investigated the death is not evidence that

TDCJ had subjective awareness that it was at fault in that death. See Simons , 140

S.W.3d at 347-48 ("It is not enough that a governmental unit . . . did investigate . . .

or that it should have known from the investigation it conducted that it might have

been at fault. If a governmental unit is not subjectively aware of its fault, it does not

have the same incentive to gather information that the statute is designed to provide

. . . .").

Appellees' contention that the occurrence of an event provides actual notice if

fault is obvious and an investigation is triggered is without merit. Appellees support

this contention by quoting Angleton Danbury Hospital District v. Chavana , a pre- Simons case. 120 S.W.3d 424 (Tex. App.--Houston [14th Dist.] no pet.). Appellee's

contention is in direct conflict with Simons , which states that "actual notice that an

injury has occurred is not enough to satisfy section 101.101(c) [actual notice]."

Appellees' argument that the reprimand of a guard who was not at his station

at the wing picket gate is evidence that TDCJ had subjective awareness of its fault is

without support in the record. There is no evidence of whether, how, or why any

TDCJ employee was reprimanded in connection with Hollimon's death. Likewise,

there is no evidence that TDCJ had subjective awareness that it was at fault in

Hollimon's injury or death.

Accordingly, we sustain TDCJ's issue regarding notice. Because the notice

requirement is jurisdictional, we need not reach TDCJ's issue regarding sovereign

immunity.

Pierson's Appeal

In two issues, Pierson contends that her motion for summary judgment should

have been granted because (1) she did not violate Hollimon's rights under the Eighth

Amendment and (2) she is entitled to qualified immunity. Because these issues are

closely related, we consider them together.

Section 1983 creates a private right of action for violations of an individual's

federally guaranteed rights by those acting under color of state law. See Richardson

v. McKnight , 521 U.S. 399, 403 , 117 S. Ct. 2100, 2103 (1997). The doctrine of

qualified immunity shields an official performing discretionary functions from

liability for civil damages under section 1983, provided the official's conduct does

not violate clearly established constitutional or statutory rights of which a reasonable

person would have been aware. Harlow v. Fitzgerald , 457 U.S. 800, 818 , 102 S. Ct.

2727, 2738 (1982); Thomas v. Collins , 860 S.W.2d 500, 503 (Tex. App.--Houston

[1st Dist.] 1993, writ denied). A legal right is "clearly established" when the

"contours of the right [are] sufficiently clear that a reasonable official would

understand that what he is doing violates that right." Anderson v. Creighton , 483

U.S. 635, 640 , 107 S. Ct. 3034, 3039 (1987).

When a governmental official asserts the affirmative defense of qualified

immunity by pleading good faith and demonstrating that his actions were within his

discretionary authority, the burden shifts to the plaintiff to show that the defendant's

conduct violated clearly established statutory or constitutional rights of which a

reasonable person would have been aware. Thomas , 860 S.W.2d at 503 ; see also

Whatley v. Philo , 817 F.2d 19, 20 (5th Cir. 1987). The plaintiff must show that (1)

the official's conduct violated a federally guaranteed right, (2) the right was clearly

established, and (3) the official's conduct was objectively unreasonable in light of the

clearly established right. Thomas , 860 S.W.2d at 503 . Objective reasonableness is

a question of law for the court. Hare v. City of Corinth , 135 F.3d 320 , 328 (5th Cir.

1998); see also Poteet v. Sullivan , No. 2-05-338-CV, 2007 WL 289871 (Tex.

App.--Fort Worth Feb. 1, 2007, pet. filed) (recognizing that objective reasonableness

is matter of law).

An official is not liable for the failure to provide medical care to an inmate

unless that failure was due to deliberate indifference to his medical needs. Estelle v.

Gamble , 429 U.S. 97, 104 , 97 S. Ct. 285, 291 (1976). The test for determining

deliberate indifference is subjective, not objective. Farmer v. Brennan , 511 U.S. 825,

837 , 114 S. Ct. 1970, 1979 (1994). "[T]he official must both be aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists, and

he must also draw the inference." Id. To establish that an official acted with

deliberate indifference, a plaintiff must prove that the official acted with subjective

recklessness by consciously disregarding a substantial risk of serious harm. Scott v.

Britton , 16 S.W.3d 173, 181 (Tex. App.--Houston [1st Dist.] 2000, no pet.) (citing

Farmer , 511 U.S. at 838-39 , S. Ct. at 1979-80)). An official's failure to perceive and

to alleviate a risk is not an infliction of punishment. Id. Moreover, negligent medical

treatment is not a violation of section 1983. Estelle , 429 U.S. at 106 , 97 S. Ct. at 292 .

In their second amended original petition, appellees asserted a claim against

Pierson individually under section 1983, alleging that her actions violated Hollimon's

Eighth Amendment rights. Appellees alleged that Pierson's failure to attempt

cardiopulmonary resuscitation (CPR) on Hollimon cell-side or at the wing picket gate

showed her conscious indifference to Hollimon's condition.

In her motion for summary judgment, Pierson asserted, among other things,

that she was protected from appellees' claims by the doctrine of qualified immunity.

She attached her own affidavit in which she asserted that her actions were taken in

good faith. Her affidavit and that of Kleanthe Caruso, Director of Nursing,

Medical/Surgical Services and TDCJ Hospital Nursing for UTMB, who had almost

20 years of experience in correctional nursing, established that Pierson's actions were

within her discretionary authority. Caruso's affidavit also stated that she had

reviewed the medical records of Hollimon, and that, based upon her training and

experience, it was her opinion that Pierson's actions were appropriate, that there was

no medical reason why pepper spray could not be used to subdue Hollimon, that

Pierson could not have performed CPR cell-side because of the pepper spray in the

air, that Pierson should not have attempted CPR in the absence of any personal

protective equipment, that it was appropriate for Pierson to have Hollimon transferred

to the medical unit for CPR, and that Pierson could not have anticipated the delay in

getting Hollimon to the medical unit.

In response, appellees argued that Pierson's failure to attempt CPR was

"wholly unreasonable" and reiterated the facts of the case. Appellees attached as

summary judgment proof Caruso's affidavit; deposition excerpts of Pierson, Marc

Rodriquez, a prison guard, and Dr. Sparks Veasey, the pathologist who performed the

autopsy on Hollimon; and Pierson's affidavit. These attachments generally confirmed

the facts as already stated.

In their brief, appellees state that from the cell to the medical department was

"about a two minute trip" and that the group moving Hollimon waited

"approximate[ly] five minutes . . . for the gate to be unlocked." The record does not

support these statements. When asked how long it would take to go from the cell to

the medical department if one "just walked it," M. Rodriguez, one of the guards,

answered, "Between a minute and a half, two minutes, two and a half minutes."

However, the guards were not "just" walking the distance; they were carrying

Hollimon, a well-developed, well-nourished, muscular man. Moreover, they did not

begin their walk at 3:31 p.m. They brought Hollimon out of the cell and put him on

the floor. Pierson then checked his carotid pulse, his pupils, his breathing, and his

heartbeat, and, finding no response, directed the guards to take him to medical,

"now." After the wing picket gate was opened, Hollimon was lifted onto a stretcher

and taken to the medical department. There is no evidence in the record to establish

how long the group waited for the gate to be unlocked, but it was clearly less than

five minutes.

When asked how long they waited for the gate to be unlocked, Pierson

answered, "I don't know how long it was. It didn't seem like very long." When

asked why she did not give Hollimon CPR at the bottom of the stairs (at the gate), she

responded, "I felt like it was probably better to get him on over to medical, right

across the hall, with help." She testified that a person becomes brain dead after six

minutes without oxygen. When asked if it took six minutes to get Hollimon from the

cell to the medical department, she said, "I was not aware of the time element. All I

can say is I remember it - - it just didn't seem like it was long at all. It's just like it

happened so fast."

Pierson's actions in checking Hollimon's vital signs and her reasons for not

giving him CPR do not show subjective deliberate indifference to Hollimon's

condition. Because appellees have not established that Pierson acted with deliberate

indifference, Pierson cannot be liable for the failure to provide medical care to

Hollimon. See Estelle , 429 U.S. at 104 , 97 S. Ct. at 291 . Moreover, considering her

actions in the context of the deliberate-indifference standard, we hold that her

decision not to give Hollimon CPR was not objectively unreasonable.

Because appellees have not proved that Pierson was deliberately indifferent to

Hollimon's condition, they have not met their burden of rebutting Pierson's qualified-immunity defense. Accordingly, we sustain Pierson's issues.

CONCLUSION

We reverse the trial court's order denying TDCJ's plea to the jurisdiction and

render judgment dismissing appellees' claims against TDCJ for want of jurisdiction.

We reverse the trial court's order denying Pierson's motion for summary

judgment and render judgment that appellees take nothing by their suit against

Pierson.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Keyes, and Hanks.

Justice Keyes, dissenting.

1. Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(5), (8) (Vernon Supp. 2006).

2. That final entry consisted of the following:

1531 Offender is brought out of the cell by SORT, and noted head wobbly.

Unable to palpate carotid pulse. . . . Pupils dilated 4-5mm. Unable to

ausculate heart beat. Security informed carry to medical department now.

Medical assistance upon arrival to door out of A wing. Placed on stretcher and

to med dept. -- SPierson RN

3. During the pendency of this lawsuit, Ashley Dominique Hollimon reached her

majority and joined the suit in her individual capacity.

4. Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-109.109 (Vernon 1997 &

Supp. 2006).

5. Tex. Civ. Prac. & Rem. Code Ann. §§ 71.001-71.052 (Vernon 1997 & Supp.

2006).

6. 42 U.S.C. § 1983 (2000).