Curtis R. Francis, TDCJ-ID 564414 v. TDCJ-CID

COURT

OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-06-352-CV

CURTIS R. FRANCIS, APPELLANT

TDCJ-ID

#564414

V.

TDCJ-CID,

ET AL. APPELLEE

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FROM THE 30TH

DISTRICT COURT OF WICHITA COUNTY

------------

MEMORANDUM OPINION [1]

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This is the second appeal in this case. Appellant Curtis R. Francis, an inmate

confined in the Allred Unit of the Texas Department of Criminal Justice C Correctional

Institutions Division ( A TDCJ @ ) at the

time the underlying events occurred, appeals from the trial court = s grant

of summary judgment in favor of Appellees TDCJ; Danny Horton, the warden at the

Allred Unit; and Deborah Ford, formerly the law librarian at the Allred

Unit. In three issues, Francis argues

that Appellees were not entitled to summary judgment on their respective

affirmative defenses of immunity, that TDCJ did not establish its summary

judgment burden on the issue of whether it was a proper party to this suit, and

that the trial court erred by granting Horton = s

summary judgment motion on Francis = s claims

of vicarious liability and respondeat superior. Because

we hold that Francis did not challenge on appeal the summary judgment regarding

his claims against TDCJ under United States Code Title 42, section 1983 [2]

( A section

1983 A ) and

under the Texas Constitution, we affirm the summary judgment for TDCJ. As to the summary judgment for Ford and

Horton, however, we reverse in part and affirm in part. Because we hold that the summary judgment

motions did not address Francis = s claims

against Ford and Horton under the Texas Constitution, we reverse the judgment

in part and remand those claims to the trial court. Because we hold the trial court did not err

by granting summary judgment for Ford and Horton on Francis = s

section 1983 claims against them, we affirm the trial court = s

judgment on those claims.

Facts and Procedural History

In 2004, Francis sued TDCJ and three individual

defendants (the A 2004 action @ ). The defendants in that suit filed pleas to

the jurisdiction. TDCJ = s plea

was granted on June 30, 2004. Before the

trial court ruled on the remaining defendants = pleas,

Francis filed three grievances, one relating to the conditions of his

confinement and two relating to access to books from the law library. Francis then sued Appellees alleging

constitutional violations, violations of the Texas Tort Claims Act, and

negligence. On November 9, 2004, the

trial court granted the remaining defendants = pleas

to the jurisdiction.

On October 27, 2004, Francis filed this suit

against TDCJ, Horton, and Ford. Francis = s

petition included a claim of lack of access to courts based on restricted

access to law books and retaliation against him by prison staff for requesting

law books. In the section of his

petition raising his access-to-courts claim, he does not specifically allege

that his claims arise under the Texas Constitution or under section 1983. But he does state that he has a

constitutional right of access to courts, and the petition states generally that

he brought his suit under Article 1 section 19 of the Texas Constitution. Appellees do not dispute that the language of

his petition raises a section 1983 claim. [3]

Appellees filed motions to dismiss under chapter

fourteen of the Texas Civil Practices and Remedies Code, which the trial court

granted. On appeal, this court affirmed

the dismissal as to Francis = s claims

based on two of the grievances decisions but reversed and remanded as to the

September 27, 2004, grievance decision. [4] That grievance decision addressed his A access-to-court @

complaints C that he was denied access to the

law library and that he was harassed and retaliated against for requesting

access.

On remand, Appellees each moved for summary

judgment against Francis = s section 1983 claims on

multiple grounds. The motions did not

address Francis = s claims against them under the

Texas Constitution. The trial court

granted the motions without specifying the grounds on which he based the

judgment and dismissed all of Francis = s claims

with prejudice. Francis timely perfected

his appeal.

Standard of Review

In a summary judgment case, the issue on appeal

is whether the movant met the summary judgment burden by establishing that no

genuine issue of material fact exists and that the movant is entitled to

judgment as a matter of law. [5] When reviewing a summary judgment, we take as

true all evidence favorable to the nonmovant, and we indulge every reasonable

inference and resolve any doubts in the nonmovant = s favor. [6]

Summary judgment cannot be granted except on the

grounds expressly presented in the motion. [7] In determining whether grounds are expressly

presented, reliance may not be placed on briefs or summary judgment evidence. [8] The movant is not required to negate all

possible issues of law and fact that could have been raised by the

nonmovant but were not. [9]

Analysis

Texas Tort Claims Act Claim Against TDCJ

We first consider Francis = s second

issue, in which he argues that the trial court erred by granting summary

judgment for TDCJ on the issue of whether it is a proper defendant in this

suit. The gist of his argument is that

he asserted a claim against TDCJ under the Texas Tort Claims Act ( A TTCA @ ), that

TDCJ is a proper party under that claim, and that TDCJ did not address this

claim in its motion for summary judgment.

While Francis did assert a TTCA claim against TDCJ in his petition, that

claim related to his grievance about conditions of his confinement. That claim was dismissed by the trial court and

was not included in the claims remanded by this court; thus, the TTCA claim was

not before the trial court below, and TDCJ had no need to seek summary judgment

on that claim. As to any section 1983

claim brought against TDCJ, in his brief, Francis states that he A did not

sue [TDCJ] under 42 USC ' 1983. @ Therefore, because Francis does not argue on

appeal that summary judgment was improperly granted to TDCJ on his section 1983

claim, we do not consider that argument. [10] We overrule Francis = s second

issue.

Section 1983 Claim Against Horton Under Doctrines of Respondeat

Superior and Vicarious Liability

We next consider Francis = s

section 1983 claim against Horton in light of his third issue, in which he argues

that the trial court erred by granting the summary judgment for Horton because

Francis alleged a cause of action under the doctrines of respondeat superior

and vicarious liability. Horton asserted

two grounds for summary judgment. In his

first ground, he argued that Francis failed to demonstrate an actionable claim

under section 1983. Francis = s

petition stated that Horton was being sued in his A personal @

capacity, which we take to mean his individual, as opposed to official,

capacity. A supervisory official such as

Horton A may be

held liable [under section 1983] if there exists either (1) his personal involvement

in the constitutional deprivation, or (2) a sufficient causal connection

between the supervisor's wrongful conduct and the constitutional violation. @ [11] A supervisory official may be liable A even

without overt personal participation in the offensive act @ if the

official A implement[s] a policy so

deficient that the policy itself is a repudiation of constitutional rights and

is the moving force of the constitutional violation. @ [12]

In his motion for summary judgment, Horton argued

that Francis = s petition provided no facts

demonstrating that he was personally involved in any alleged constitutional

deprivation and that Francis did not assert that Horton implemented unconstitutional

policies that causally resulted in Francis = s

injuries. Francis = s

petition contained only one reference to Horton in his access-to-courts

claim: A Plaintiff

complained to [Horton] that he had a case pending in the 78th Judicial District

Court and Ms. Ford = s action was impeding on his

efforts to litigate in the case. @ We agree that this single statement does not

allege that Horton was personally involved in any constitutional deprivation or

that Horton implemented unconstitutional policies that resulted in Francis = s

injuries. The petition does not state

what conduct of Horton = s Francis complains of, let

alone allege that Horton had personal involvement in a constitutional

deprivation or that there is a sufficient causal connection between any conduct

of Horton = s and a constitutional

deprivation.

Francis does not argue on appeal that his

petition did allege a cause of action against Horton. Rather, he attempts for the first time to

assert facts supporting a cause of action against Horton. He alleges that Horton can be held

vicariously liable because Horton = s

inaction in supervising and training Ford amounted to deliberate

indifference. He also asserts that this

inaction demonstrates a causal connection between Horton = s

failure to supervise and violations of Francis = s

constitutional rights. Francis cannot

make these arguments for the first time on appeal. [13]

Francis also argues on appeal that he brought a

common law negligence claim and that Horton is liable under the doctrine of

respondeat superior for the intentional acts of Ford. While Francis did assert a negligence claim

in his petition, that claim related to his grievance about conditions of his

confinement. That claim was dismissed by the trial court and was not included

in the claims remanded by this court for proceedings in the trial court. Thus, the negligence claim (and the theory of

respondeat superior) was not before the trial court when Horton filed his

summary judgment motion, and Horton had no need to seek summary judgment on

that claim. We overrule Francis = s third

issue and affirm the summary judgment as to Horton on Francis = s

section 1983 claim.

Access-to-Court Claims and Assertions of Immunity by TDCJ, Ford, and

Horton

In his first issue, Francis argues that the trial

court erred by granting summary judgment for TDCJ on its affirmative defense of

sovereign immunity and for Ford and Horton on their respective affirmative

defenses of qualified immunity. As to

TDCJ, Francis does not claim that TDCJ does not have immunity for section 1983

claims. He asserts merely that he sued

TDCJ under the TTCA. Francis did not

assert a TTCA claim against TDCJ with respect to his access-to-courts

claim. We thus overrule his first issue with

respect to TDCJ. Francis did not argue

in his brief on appeal that the trial court erred by granting summary judgment

for TDCJ on his claim arising under the Texas Constitution, so we will not

consider whether the summary judgment on this claim was error. [14]

With respect to Ford and Horton, Francis makes

two arguments in his first issue. First,

he argues that Ford and Horton were not entitled to qualified immunity on his

section 1983 claims. We consider first

whether the trial court erred by granting summary judgment for Ford on Francis = s

section 1983 claims. Ford asserted two

grounds in her motion for summary judgment.

First, she asserted the affirmative defense of qualified immunity. Second, she claimed that she negated as a

matter of law an element of Francis = s claim

by producing summary judgment evidence demonstrating that Francis was not

prevented from prosecuting his 2004 action.

Because Francis did not file a response to the

summary judgment motion, he is limited on appeal to arguing that Ford = s

summary judgment evidence was legally insufficient. [15] He makes no such argument with respect to

Ford = s second

ground for summary judgment. Because he

makes no complaint about the summary judgment on this ground, we can affirm

summary judgment on this ground alone. [16] Out of an abundance of caution, however, we

consider whether Ford negated an element of Francis = s cause

of action as a matter of law. [17]

To prevail on an access-to-courts claim under the

federal constitution, a plaintiff must show actual injury. [18] Ford argued that Francis had not provided

competent evidence to demonstrate that he had been denied access to legal

books; and even if he could present such evidence, Ford = s own

summary judgment evidence demonstrated that in the 2004 action, Francis filed a

motion for summary judgment and timely responses to the motions to dismiss, all

containing multiple citations to case law and statutes. Thus, Ford argues, Francis was not prevented

from presenting his arguments. She

further argued that Francis could not demonstrate that his allegations are

causally linked to actual injury because his actual damages were below the

jurisdictional limit of the court and access to additional legal information

would not have allowed Francis to cure this fatal flaw.

Her summary judgment evidence consisted of the

following: TDCJ = s plea

to the jurisdiction claiming sovereign immunity and the court = s lack

of subject-matter jurisdiction based on the amount in controversy; Francis = s

response, which cites case law and statutes; the remaining defendants = plea to

the jurisdiction asserting lack of subject-matter jurisdiction based on the

amount in controversy; and Francis = s

response, asserting different objections than he had asserted in response to

TDCJ = s motion

and also citing case law. This evidence

shows that Francis was not prevented from presenting his case on appeal. From the authority cited in his responses, he

clearly was not denied access to courts. [19] He presented no evidence, in response to Ford = s

summary judgment evidence, to show that had he been given access to different

books, his case would not have been dismissed, or that he could have overcome

the amount-in-controversy requirement.

We hold that Ford established as a matter of law that Francis was not

prevented from making a response and that he could not demonstrate his

allegations are causally linked to actual injury. Because Francis brought no evidence below to

raise a genuine issue of material fact on this ground, the trial court = s grant

of summary judgment for Ford was proper on Francis = s

section 1983 claim. We affirm the

summary judgment for Ford on Francis = s

section 1983 claim on this ground. We

therefore do not need to reach the issue of whether summary judgment was proper

on Ford = s claim

of qualified immunity. [20] Because we have already affirmed the summary

judgment for Horton on Francis = s

section 1983 claims, we likewise do not need to consider whether Horton was

entitled to qualified immunity. [21]

Francis also now asserts for the first time that

denial of library access resulted in his filing his petition in the wrong court

in the first place. We note that no such

complaint was included in the grievance that resulted in the September 27th

grievance decision, nor was it included in his petition, and thus it was not

before the trial court below and is not before this court on appeal. We overrule Francis = s first

issue with respect to his section 1983 claims against Ford and Horton.

In Francis = s second

argument under this issue with respect to Ford and Horton, he maintains that he

also made common law negligence and state constitutional claims that were not

addressed by the summary judgment motion.

While Francis did assert negligence claims in his petition, he did not

allege negligence with respect to his access-to-courts cause of action. The negligence claims had already been

dismissed and were not before the trial court on remand. We overrule his first issue with respect to

his negligence claims.

Francis is correct, however, that he asserted a

state constitutional claim in his petition and that Ford and Horton did not

address this claim. In his petition, he

states that his rights were violated under Texas Constitution, Article 1,

section 19 ( A section 19 A ). The petition later alleges that Appellees A violated

his rights of access [to] court, to law books and to legal visits @ and

that they A harassed, retaliated, and

discourage[d] him from pursuing those rights. @ An inmate in Texas has a right of access to courts

not only under the federal constitution but also under section 19. [22]

Francis = s

petition does not make clear whether, with respect to his access-to-court claim

under the Texas Constitution, he is suing for monetary damages or injunctive

relief, but his brief expressly states that his suit is for damages. Thus, to the extent (if any) that his

petition brought access-to-court claims seeking equitable relief, he does not

appeal the grant of summary judgment as to those claims. Although this court and others have held that

there is no right of action for damages arising under the section 19, [23]

Ford and Horton did not move for summary judgment on that ground. Although under chapter fourteen of the Civil

Practice and Remedies Code, a trial court may dismiss a claim on its own

motion if the court finds that the claim has no arguable basis in law or in

fact, [24]

nothing in the record indicates that the court dismissed this claim under

chapter fourteen. Rather, the trial

court = s orders

state that Francis = s claims were dismissed after

consideration of Appellees = motions

for summary judgment. But the trial

court should not have dismissed this state constitutional claim seeking damages

in the summary judgment because Ford and Horton did not address it in their

motions. We reverse the summary judgment

on this state constitutional claim as to Ford and Horton and remand the claim

to the trial court. We sustain Francis = s first

issue against Ford and Horton only with respect to his claim arising under

section 19. We affirm the summary

judgment for TDCJ.

To the extent that Francis = s

access-to-court claim includes a claim regarding the denial of legal visits

from another inmate, that claim was not addressed in the September 27th

grievance decision and was not before the trial court below. We therefore do not include such a claim on remand.

Conclusion

We reverse and remand in part and affirm in

part. Having sustained Francis = s first

issue as to his claims against Ford and Horton arising under the Texas

Constitution, Article 1, section 19, we reverse the trial court = s

summary judgment for those Appellees in part and remand those claims for

trial. We affirm the trial court = s

summary judgment on all remaining claims.

PER CURIAM

PANEL F: DAUPHINOT, LIVINGSTON, and HOLMAN, JJ.

DELIVERED: August 31, 2007

[1] See Tex.

R. App. P.

47.4.

[2] 42 U.S.C. ' 1983 (2000).

[3] See Decker v. Dunbar , 200 S.W.3d 807, 810

(Tex. App. C Texarkana 2006, pet.

denied) ( A Section 1983 provides a

remedy when any person acting under color of state law deprives another of

rights, privileges, or immunities protected by the United States Constitution

or laws[,] @ and A [an inmate] does have a

right, as articulated by the courts, to adequate access to legal materials @ ); see also Woods v.

Smith , 60 F.3d 1161, 1164 (5th Cir. 1995), cert. denied , Palermo

v. Woods , 516 U.S. 1084 (1996). ( A [A] prison official may

not retaliate against or harass an inmate for exercising the right of access to

the courts. @ ).

[4] Francis v. TDCJ‑CID , 188 S.W.3d 799, 805

(Tex. App. C Fort Worth 2006, no

pet.).

[5] Tex.

R. Civ. P.

166a(c); Sw. Elec. Power Co. v. Grant , 73 S.W.3d 211, 215 (Tex.

2002); City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 678

(Tex. 1979).

[6] IHS Cedars Treatment Ctr.

of Desoto ,

Tex. , Inc. v. Mason , 143 S.W.3d 794 , 798 (Tex. 2004).

[7] Johnson v. Brewer &

Pritchard ,

P.C. , 73 S.W.3d 193, 204 (Tex. 2002); Sci. Spectrum , Inc.

v. Martinez , 941 S.W.2d 910, 912 (Tex. 1997).

[8] McConnell v. Southside

Indep. Sch. Dist. , 858 S.W.2d 337, 341 (Tex. 1993).

[9] INA of Tex. v. Bryant , 686 S.W.2d 614, 615

(Tex. 1985); Clear Creek Basin Auth. , 589 S.W.2d at 678-79 .

[10] See Pat Baker Co. Inc. v.

Wilson ,

971 S.W.2d 447, 450 (Tex. 1998) (noting that an appellate court cannot reverse

on A unassigned error, @ i.e., a ground not

presented in the appellate briefs).

[11] Thompkins v. Belt , 828 F.2d 298 , 303‑04

(5th Cir. 1987).

[12] Id. at 304 (internal

quotations omitted).

[13] See Clear Creek Basin

Auth. ,

589 S.W.2d at 678-79 .

[14] See Pat Baker Co. , 971 S.W.2d at 450 .

[15] See Clear Creek Basin

Auth. ,

589 S.W.2d at 678 .

[16] See Umar v. Scott , 991 S.W.2d 512, 515

(Tex. App. C Fort Worth 1999, no

pet.).

[17] See Clear Creek Basin

Auth. ,

589 S.W.2d at 678 (holding that summary judgments must stand on their own

merits and cannot be affirmed merely because the nonmovant does not file a

response).

[18] Lewis v. Casey , 518 U.S. 343 , 351‑52,

116 S. Ct. 2174 , 2180‑81 (1996).

[19] See Mann v. Smith , 796 F.2d 79, 84 (5th

Cir. 1986) (holding that although plaintiff inmate was denied access to the law

library, he was not denied access to courts and stating that the plaintiff

inmate A himself proved in an

irrefutable manner that he was able to file a legally sufficient

complaint: by doing so @ ).

[20] See Tex.

R. App. P.

47.1.

[21] See id.

[22] See Thomas v. Brown , 927 S.W.2d 122, 125

(Tex. App. C Houston [14th Dist.]

1996, writ denied); Dillon v. Ousley , 890 S.W.2d 500, 501-02 (Tex. App. C Corpus Christi 1994, no

writ).

[23] See Univ. of Tex. Sys. v.

Courtney , 946 S.W.2d 464, 468-69 (Tex. App. C Fort Worth 1997, writ

denied); see also Tex. A & M Univ. Sys. v. Luxemburg , 93

S.W.3d 410, 425 (Tex. App. C Houston [14th Dist.] 2002, pet. denied).

[24] Tex.

Civ. Prac. & Rem. Code Ann. ' 14.003 (Vernon 2002).