Van Lee Brewer v. Jason Simental

NO. 07-10-00155-CV

IN THE COURT OF APPEALS

FOR THE

SEVENTH DISTRICT OF TEXAS

AT

AMARILLO

PANEL B

OCTOBER

15, 2010

VAN LEE BREWER, APPELLANT

v.

JASON SIMENTAL, ET AL, APPELLEES

FROM THE 278TH DISTRICT COURT OF WALKER

COUNTY;

NO. 23,325; HONORABLE KENNETH H. KEELING, JUDGE

Before QUINN,

C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant, Van Lee Brewer (Brewer),

appeals the granting of a summary judgment in favor of Jason Simental , Gordon Townsend, David Duke, Janet C. Taylor,

Lindsey Lewis, Robert Losack , John D. Seigle , and Carl Davis (collectively, “defendants”), and

the denial of a no-evidence summary judgment filed by Brewer against the

defendants. [1] We affirm.

Factual and Procedural Background

Brewer, an inmate within the Texas

Department of Criminal Justice - Institutional Division assigned, during all

applicable times, to the Wynne Unit in Huntsville, Texas, filed an action

pursuant to 42 U.S.C. § 1983 , [2]

alleging a violation of his civil rights.

Specifically, Brewer alleges that he had been the target of retaliatory

action by the defendants due to his attempting to exercise his rights of access

to the courts. Brewer’s lawsuit was

filed in forma pauperis . The defendants filed a motion to dismiss the

lawsuit pursuant to Chapter 14 of the Civil Practice and Remedies Code. See Tex.

Civ. Prac . & Code Ann. ch . 14 (Vernon 2002). [3] Ultimately, the trial court dismissed

Brewer’s cause of action because it found Brewer failed to comply with section

14.005 and Government Code section 501.008.

See Tex. Gov’t Code Ann. § 501.008 (Vernon 2004). Further, the trial court found the action to

be frivolous and malicious. See § 14.003(a )( 2).

On appeal, the Waco Court of Appeals

reversed the trial court’s decision and found that Brewer had, in fact, met the

administrative requirements of both Chapter 14 and section 501.008 of the

Government Code. Further, the appellate

court found that Brewer asserts two distinct claims by his action: 1) retaliation

for his exercise of his constitutional right of access to the courts, and 2)

conspiracy to retaliate for attempting to exercise his constitutional right of access

to the courts. See Brewer v. Simental , 268 S.W.3d 763, 770-71 ( Tex.App .—Waco

2008, no pet.). After analyzing the

conspiracy to retaliate claim, the Waco Court found that the trial court was

correct in dismissing that claim. See

id . at 774. However, as to the

claim that Brewer had been retaliated against because he attempted to exercise

his constitutional right of access to the courts, the Waco Court concluded that

Brewer had alleged enough facts from which retaliation might plausibly be

inferred. See id . at

773. The Waco Court remanded the case to

the trial court for further consideration in light of its opinion.

Subsequent to the remand, the

defendants filed a traditional motion for summary judgment. See Tex.

R. Civ. P. 166a(c). [4] They alleged three grounds to support the

granting of a summary judgment. First,

the defendants alleged that Brewer was not deprived of a constitutional right

and could not show a retaliatory adverse act.

Therefore, posited the defendants, Brewer’s 1983 action was not

cognizable by the court. Second, the

defendants alleged that they had not violated any of Brewer’s constitutional

rights and, therefore, the defendants were entitled to qualified immunity. Finally, the defendants alleged that Brewer

had been afforded minimal due process procedures at his disciplinary

hearing. Thus, his due process rights

were not violated in a manner contrary to 1983.

Brewer responded to the motion for summary judgment, [5]

and filed a cross-motion for summary judgment that appears to be a traditional

motion for summary judgment. [6] Before submitting his traditional motion for

summary judgment, Brewer filed a no-evidence motion for summary judgment,

pursuant to rule 166(a)( i ), contending that there was

no evidence to support one or more of the essential elements of the defendants’

affirmative defenses of sovereign immunity, official immunity, statute of

limitations, assumption of risk, estoppels, illegality, or contributory and

comparative negligence. Of importance

for this opinion is Brewer’s declaration in his no-evidence motion for summary

judgment that the defendants’ affirmative defense of qualified immunity would

be addressed within his traditional motion for summary judgment. Thus, the qualified immunity affirmative defense

was not a part of the no-evidence motion for summary judgment.

The trial court granted a final

summary judgment stating that Brewer had not raised a material question of fact

that his constitutional rights were violated by any of the defendants. Accordingly, the trial court found the

defendants were entitled to qualified immunity.

The trial court, therefore, dismissed all of Brewer’s claims with

prejudice. This appeal followed.

Brewer brings four issues before the

Court. First, Brewer contends that the

trial court erred in granting the defendants qualified immunity because the

trial court misapplied the law regarding Brewer’s failure to raise a material

issue of fact regarding violation of his constitutional rights. Second, Brewer contends that the trial court

erred in denying his cross-motion for summary judgment because the defendants

did not respond. Third, Brewer contends

that the trial court erred in denying his no-evidence motion for summary

judgment when the defendants failed to produce the required summary judgment

evidence. Finally, Brewer contends that

we should reconsider his conspiracy to retaliate cause of action.

Traditional Motions for Summary Judgment

Standard of Review

Appellate courts review the granting of a motion for

summary judgment de novo . See

Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661

(Tex. 2005). When, as here, both parties

file a motion for summary judgment with the trial court, and one is granted and

one is denied, the reviewing court determines all questions presented and

renders the judgment that should have been rendered by the trial court. HCBeck ,

Ltd., v. Rice , 284 S.W.3d 349, 352 (Tex. 2007). The movant in a traditional motion for summary judgment, filed

pursuant to rule 166a(c), has the burden of showing that no genuine issue of

material fact exists and that it is entitled to a summary judgment as a matter

of law. See Am.

Tobacco Co. v. Grinnell , 951 S.W.2d 420, 425 (Tex. 1997). The trial court must indulge every reasonable

inference in favor of the non- movant and resolve all

doubts in his favor. Id .

Qualified Immunity

The

trial court granted the defendants’ traditional motion for summary judgment on

the ground that Brewer had not raised a material question of fact that his

constitutional rights were violated by the defendants and, therefore, the

defendants were entitled to qualified immunity.

On appeal, Brewer asserts that his summary judgment proof demonstrates

the existence of a material fact issue about whether the conduct of the

defendants was in retaliation for Brewer’s attempt to exercise his

constitutional right of access to the courts.

It

is axiomatic that “[p] ublic officials acting within

the scope of their official duties are shielded from civil liability by the

qualified immunity doctrine.” Kipps

v. Caillier , 197 F.3d 765, 768 (5 th

Cir. 1999). Those governmental

officials are entitled to qualified immunity “insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Id .

(quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 , 102 S.Ct . 2727, 73 L.Ed.2d 396 (1982)). To demonstrate that defendants are not

entitled to claim qualified immunity, a plaintiff must satisfy a three-part

test set forth in Morris v. Dearborne , 181

F.3d 657, 665 (5 th Cir. 1999).

A court must determine, first, whether plaintiff alleges a deprivation

of a constitutional or statutory [7]

right; second, whether that right was clearly established at the time of the

alleged violation; and, finally, whether the record shows that a violation

occurred, or at least gives rise to a genuine issue of material fact as to

whether the defendant actually engaged in the conduct that violated the clearly

established right. Id .

at 665-66.

That

Brewer enjoys a constitutional right of access to the courts is beyond

doubt. See Bounds v. Smith ,

430 U.S. 817, 821 , 97 S.Ct . 1491, 52

L.Ed.2d 72 , (1977) . Further,

there is no question that Brewer may not be retaliated against because he

attempts to exercise his right of access to the courts by use of the law

library. See McDonald v.

Steward , 132 F.3d 225, 231 (5 th Cir.

1998).

However, the defendants contend that

Brewer must demonstrate that his access to the courts was, in fact, hindered by

their actions. To support this

proposition, the defendants refer this Court to the McDonald case cited

above. The gist of the argument by the

defendants is that, unless Brewer demonstrates something more than de minimis

retaliatory actions by the defendants, there is no constitutional

violation. This line of reasoning

concludes that if there is no constitutional violation, then there is no

cognizable 1983 action.

Brewer counters this argument by

alleging that this matter has previously been decided by the Waco Court in the

earlier Brewer decision. Therefore, we,

as a reviewing court, are bound by that decision. We will address both sets of contentions as

set out above.

In order to establish a cause of

action for retaliation, Brewer must establish: 1) a specific constitutional

right, 2) the defendants’ intent to retaliate against Brewer for his exercise

of that right, 3) a retaliatory adverse act, and 4) causation. See id . The issue boils down to whether or not there

are material fact issues as to the third element, a retaliatory adverse

act. In Lewis v. Casey , 518 U.S.

343, 351 , 116 S.Ct . 2174, 135 L.Ed.2d 606 (1996),

Justice Scalia, writing for the Court, in an access to the courts case

involving the State of Arizona said, “. . . the inmate therefore must go one

step further and demonstrate that the alleged shortcomings in the library or

legal assistance program hindered his efforts to pursue a legal claim.” The Supreme Court was addressing the issue of

whether actual injury was required to show a violation of the constitutional

requirement of access to the courts. See

id . The Court concluded that

actual injury was required by the prior case of Bounds v. Smith , 430

U.S.817, 821-25, 97 S.Ct . 1491, 52 L.Ed.2d 72 (1977). See Lewis , 518 U.S. at

351 . In explaining the holding in Lewis ,

Justice Scalia remarked, “[a] lthough Bounds

itself made no mention of an actual-injury requirement, it can hardly be

thought to have eliminated that constitutional prerequisite.” Lewis , 518 U.S. at 351 . The 5 th Circuit refers to this

requirement in its discussion of de minimis retaliatory actions, and has held that such an

act would not support a constitutional violation in the retaliation arena. See Morris v. Powell , 449 F.3d

682, 685-86 (5 th Cir. 2006, cert. denied) (retaliation for

exercising First Amendment right to use prison grievance procedure). The question then becomes did the defendants

have summary judgment proof that reduced Brewer’s claim of retaliation to de minimis status. Our reading of the record is that the only

summary judgment evidence on the point did, in fact, show that Brewer’s claim

was of the de minimis

variety.

Specifically, the defendants produced

the records of the law library as part of the summary judgment evidence. These records affirmatively show that, during

the month of September 2005, Brewer was afforded a total of 49.5 hours in the

law library. The records further reflect

that, during October 2005, Brewer was able to visit the law library for a total

of 40.5 hours. It must be remembered

that, according to Brewer’s allegations, the retaliatory acts occurred in

September and October 2005. The summary

judgment evidence also clearly demonstrates that the only active piece of

litigation that Brewer was able to claim to be working on was a petition for

review in Cause No. 05-0679, styled Van Lee Brewer v. Texas Dept. of Pub. Safety . Brewer has admitted that the petition for

review was due on October 14, 2005, and the records of the Texas Supreme Court,

produced as part of the summary judgment evidence, reflect that the petition

was filed on October 17, 2005. Nothing

in the summary judgment proof offered by Brewer indicates that there were any

further requirements for filing with the Texas Supreme Court. Further, nothing in the record establishes

nor does Brewer contend that the Texas Supreme Court refused to consider Brewer’s

petition as untimely filed.

In a factual scenario similar to the

one presented in the present case, the 5 th Circuit held, in Jones

v. Greninger , 188 F.3d 322, 326 (5 th

Cir. 1999), that restricting an inmate’s law library access to five hours per

week did not violate the inmate’s right of access to the courts. The Texas Supreme Court held, in a case

involving allegations of retaliation for exercising a First Amendment right to

complain about treatment by prison officials, that acts of de minimis retaliation do not satisfy the

retaliatory adverse act requirement of a retaliation claim. See Institutional Div. of the Tex.

Dep’t Crim. Justice v. Powell , 2010 Tex. LEXIS 480, at *6 ; 53 Tex. Sup. J.

953 (July 2, 2010).

Brewer counters this argument by

arguing that this issue was determined by the Waco Court’s decision in the

first Brewer case. See Brewer ,

268 S.W.3d at 770 -71 .

However, Brewer’s reliance on the previous decision by the Waco Court is

misplaced for two reasons. First, the

Waco case was decided under the provisions of Chapter 14 and the court’s

attention was directed at the pleadings of Brewer to see if he alleged a cause

of action that could withstand a challenge that it was frivolous. Therefore, the Waco Court was required to

accept the factual allegations of Brewer as true. Id . at 770. Second, Brewer has fixated his argument on

that portion of the opinion that states, “[t]he inmate must ‘allege a

chronology of event from which retaliation may plausibly be inferred.’” Id . at 771 (quoting Woods v Smith ,

60 F.3d 1161, 1166 (5 th Cir. 1995)).

However, this quoted portion of the opinion dealt with the second

element of a retaliation claim, “the defendant’s intent to retaliate.” Id .

All that the opinion says regarding the retaliatory adverse act is a

short recitation of facts as alleged by Brewer’s pleadings with a conclusory statement that, “Brewer’s petition adequately

pleads retaliatory adverse acts.” Id . at 773.

While the first Brewer opinion may be instructive in several aspects, it

is not the law of the case as to the issue of summary judgment, for that was

not the issue with which it dealt. Accordingly,

we do not find the opinion conclusive on the issues presented to this

Court. See Briscoe v. Goodmark Corp. , 102 S.W.3d 714, 716 (Tex. 2003)

(questions of law decided on appeal to the court of last resort will control

throughout the case).

Based upon our review of the summary

judgment evidence and application of the law regarding de minimis retaliation, we find that the

trial court was correct when it granted the summary judgment in favor of the

defendants. There was no violation of

Brewer’s constitutional rights. See

Lewis , 518 U.S. at 351 .

Therefore, the defendants were entitled to claim qualified

immunity. See Kipps ,

197 F.3d at 768 .

In reviewing Brewer’s traditional

motion for summary judgment, we first recognize that Brewer is representing

himself pro se and is not schooled in

the law. However, his main thesis for

our overruling the denial of his motion is centered around

his perception of the requirements of Federal Rule of Civil Procedure 56. See Fed.

R. Civ. P. 56. To the extent

Brewer is asking us to apply the Federal Rules of Procedure, we decline to do

so. Summary judgment practice in Texas

Courts is governed by rule 166(a) and not the Federal Rules. Further, because the defendants have shown

that they were entitled to qualified immunity, Brewer’s traditional motion for

summary judgment based upon the defendants’ alleged failure to respond must

fail. Accordingly, we overrule Brewer’s

second issue.

Having overruled Brewer’s first and

second issues, we must now turn our attention to his no-evidence motion for

summary judgment, and his request that we reconsider the Waco Court’s ruling

that his conspiracy claim lacked any arguable basis in the law. We will address the no-evidence motion first.

Brewer’s

No-Evidence Motion for Summary Judgment

Brewer’s next issue contends that the

trial court abused its discretion by not granting his no-evidence motion for

summary judgment. The summary judgment

in question addressed the affirmative defenses that the defendants pled, except

for qualified immunity. Since the trial

court did not grant a summary judgment based upon any of the affirmative

defenses Brewer referenced in the motion, the failure to grant a summary

judgment could not have been error. The

above consideration aside, when we review the entire record, as we must, there

is more than a scintilla of evidence to support the defendants’ affirmative

defenses. At the end of the day, we need

not reach this issue for it does not alter the disposition of the case.

Conspiracy to Retaliate Cause of

Action

In his final issue, Brewer asserts

that this Court has the authority to reconsider our sister court’s ruling that

Brewer’s conspiracy to retaliate claim had no arguable basis in law and was,

therefore, frivolous. Brewer , 268 S.W.3d at 774 .

While Brewer may be correct in his statement that we have the discretion

to revisit the conclusion of the Waco Court, [8]

we see no reason to do so. Brewer has

yet to provide the Court with any authority demonstrating that the Waco Court

was in error. Further, Brewer did not

seek review of the prior holding by the Texas Supreme Court. Accordingly, we decline the invitation to

revisit the issue and overrule his fourth issue.

Conclusion

Having overruled all of Brewer’s

issues that required a ruling, we affirm the judgment of the trial court.

Mackey

K. Hancock

Justice

[1] Pursuant to the Texas Supreme Court’s docket

equalization efforts, this case was transferred to

this Court from the 10 th District Court of Appeals. See Tex.

Gov’t Code

Ann. § 73.001 (V ernon 2005). That being so, we must decide this case “in

accordance with the precedent of the transferor court under the principles of stare

decisis ” if our decision otherwise would have been

inconsistent with the precedent of the transferor court. Tex.

R. App. P. 41.3; Phillips v. Phillips , 296 S.W.3d 656, 672 ( Tex.App .–El Paso 2009, pet. denied)

.

[2] Further reference to 42 U.S.C. § 1983 will be by

reference to “1983.”

[3] Further reference to the Texas Civil Practice &

Remedies Code will be by reference to “section” or “§ ___,” or “Chapter ____.”

[4] Further reference to the Texas Rules of Civil Procedure

will be by reference to “rule ___.”

[5] Brewer’s response was actually filed prior to the

defendants filling their motion for summary judgment. However, no one has objected to the response

on the grounds that it was not timely made and we will consider the response in

our opinion.

[6] The motion actually references Federal Rule of Civil

Procedure 56(c). However, the trial

court and the defendants treated Brewer’s motion as a no-evidence motion for

summary judgment and we will do likewise.

[7] While Morris does not expressly provide for

claims based upon violations of statutory rights, the facts of Morris

were addressing claimed violations of only constitutional rights. Id .

However, from Harlow , we are instructed that a claim for

violation of statutory rights is cognizable in a 1983 action. See Harlow , 457 U.S. at 818 .

[8] But see Tex.

R. App. P. 41.3; P hillips , 296 S.W.3d at 672 (under the

principle of stare decisis ,

a transferee court must apply the precedent of the transferor court).