The opinion
ACCEPTED
06-14-00065-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/22/2015 2:59:25 PM
DEBBIE AUTREY
CLERK
No. 06-14-00065-CV.
FILED IN
IN THE COURT OF APPEALS 6th COURT OF APPEALS
TEXARKANA, TEXAS
FOR THE SIXTH JUDICIAL DISTRICT OF TEXAS
1/27/2015 8:25:00 AM
TEXARKANA, TEXAS
DEBBIE AUTREY
Clerk
JULIO PEREZ, JR.,
Appellant,
v.
BRAD LIVINGSTON, SANTANA COOK, SHERRI DAVIS,
AND JAMES WESTON
DEFENDANTS / Appellees.
On Appeal from the 5TH JUDICIAL DISTRICT COURT
BOWIE COUNTY, TEXAS, HONORABLE JUDGE RALPH BURGESS
Trial Court Cause No. 13C1819005
APPELLEES’ BRIEF
KEN PAXTON JERRY S. BERGMAN
Attorney General of Texas Assistant Attorney General
State Bar No. 24081694
CHARLES E. ROY P.O. Box 12548
First Assistant Attorney Austin, Texas 78711
General [Tel.] (512) 463-2080
[Fax] (512) 495-9139
JAMES E. DAVIS
Deputy Attorney General
for Civil Litigation Attorneys for Appellees
KAREN MATLOCK *No Oral Argument Requested
Chief-Law Enforcement Defense
Division
i
IDENTITIES OF PARTIES AND COUNSEL
Appellant
JULIO PEREZ, JR., TDCJ No.852734
TDCJ-TELFORD UNIT
3899 STATE HIGHWAY 98
NEW BOSTON, TX 75570
Appellant Pro Se
Defendants / Appellees
BRAD LIVINGSTON
P.O. BOX 99
Huntsville, TX 77342
SANTANA COOK
TDCJ-TELFORD Unit
3899 STATE HIGHWAY 98
NEW BOSTON, TX 75570
SHERRI DAVIS
TDCJ-TELFORD Unit
3899 STATE HIGHWAY 98
NEW BOSTON, TX 75570
JAMES WESTON
TDCJ-TELFORD Unit
3899 STATE HIGHWAY 98
NEW BOSTON, TX 75570
Attorney for Appellees’ Livingston, Cook, Davis and Weston
Jerry S. Bergman-Assistant Attorney General
Law Enforcement Defense Division
P.O. Box 12548
Wm. P. Clements, 7th Floor
Austin, Texas 78711-2548
Phone: 512-463-2080
Fax: 495-9139
Jerry.Bergman@texasattorneygeneral.gov
ii
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL ......................................................................................................... ii
TABLE OF CONTENTS.................................................................................................................................... iii
INDEX OF AUTHORITIES ............................................................................................................................... iv
STATEMENT OF THE CASE ............................................................................................................................. 1
ISSUES PRESENTED........................................................................................................................................ 3
The sole issue to be decided is whether the trial court abused
its discretion in dismissing Appellant’s suit as frivolous and
for failure to comply with Chapter 14 of the Texas Civil
Practice & Remedies Code. .................................... 3
STATEMENT OF FACTS .................................................................................................................................. 3
SUMMARY OF THE ARGUMENT .................................................................................................................... 3
ARGUMENT ................................................................................................................................................... 4
1) The trial court did not abuse its discretion in dismissing
Appellant’s suit for failure to comply with Chapter 14. ...... 4
(a) Standard of review .................................................................................................................... 4
(b) The trial court did not abuse its discretion because Appellant failed to file his claim before
the 31st day after the date on which the inmate received a written response from the grievance
system. .................................................................................................................................................. 5
(c) The trial court did not abuse its discretion in dismissing Appellant’s suit pursuant to section
14.003, because Appellant made a false allegation of poverty. ........................................................... 7
(d) The trial court did not abuse its discretion because Appellant’s claims had no arguable basis
in law and were properly dismissed pursuant to section 14.003. ...................................................... 10
i) The trial court did not abuse its discretion dismissing
Appellant’s suit because his tort claim was barred by Franka........ 12
ii) The trial court did not abuse its discretion because
Appellant’s tort claim of gross negligence had no arguable basis
in law. ........................................................................................................................................ 13
iii) The trial court did not abuse its discretion because
Appellant’s failure to protect claim had no arguable basis in
law. 15
CONCLUSION AND PRAYER ......................................................................................................................... 18
NOTICE OF ELECTRONIC FILING .................................................................................................................. 19
CERTIFICATE OF COMPLIANCE .................................................................................................................... 20
CERTIFICATE OF SERVICE............................................................................................................................. 21
iii
INDEX OF AUTHORITIES
CASES
Adams v. Perez,
331 F3d 508 (5th Cir. 2003). ................................ 22
Burnett v. Sharp,
328 S.W.3d 594(Tex. App.—Houston [14th Dist.] 2010, no pet.). 17
Carr v. Brasher,
776 S.W.2d 567(Tex. 1989)). ................................. 11
Charchere v. Salinas,
No. 13-97-036-CV, 1998 WL 35276221 at *1. ................... 23
Craddock v. Sunshine Bus Lines,
133 S.W.2d 124 (Tex. 1939). ............................. 10, 13
Domino v. Texas Dep=t of Criminal Justice,
239 F3d 752 (5th Cir. 2001); ................................ 23
Donaldson v. Tex. Dep’t of Criminal Justice-Corr. Insts. Div.,
355 S.W.3d 722 (Tex. App.—Tyler 2011, pet. denied ........... 15
Evans v. Tex. Dep’t of Crim. Justice-Inst’l Div.,
No. 01-07-00847, 2008 WL 2548986 at *4. ..................... 21
Farmer v. Brennan,
511 U.S. 825 (1994). ................................ 22, 23, 24
Hickson v. Moya,
926 S.W.2d 397 (Tex. App.—Waco 1996, no writ). .............. 10
La.-Pac. Corp. v. Andrade,
19 S.W.3d 245 (Tex.1999); ................................... 20
Leachman v. Dretke,
261 S.W.3d 911 (Tex. App.—Amarillo 2009, no pet.). ......... 21
Lee Lewis Constr., Inc. v. Harrison,
70 S.W.3d 778 (Tex.2001) ................................ 19, 20
Lewis v. Johnson,
97 S.W.3d 885 (Tex. App.—Corpus Christi 2003, no pet.) ...... 13
Lopez v. Serna,
414 S.W.3d 890 (Tex. App.—San Antonio 2013, no pet). ........ 19
McClain v. Terry,
320 S.W.3d 394 (Tex. App.—El Paso 2010, no pet.); ....... 14, 15
Mendoza v. Livingston,
No. 09-12-00594-CV, 2014 WL 670119 at 3-4 (mem. op). ........ 15
Mobil Oil Corp. v. Ellender,
968 S.W.2d 917 (Tex.1998). .................................. 19
Moncada v. Brown,
202 S.W.3d 794 (Tex. App. –San Antonio 2006, no pet.); ...... 21
iv
Neals v. Norwood,
59 F.3d 530 (5th Cir.1995); ............................. 22, 23
Reeves v. Collins,
27 F.3d 174 (5th Cir. 1994). ................................ 23
Smithson v. Cessna Aircraft Co.,
665 S.W.2d 439 (Tex. 1984); ............................. 10, 12
Terry v. Garcia,
800 S.W.2d 854, (Tex. App.-San Antonio 1990, writ denied). .. 20
Thompson v. Upshur County, TX,
245 F.3d 447 (5th Cir. 2001). ............................... 23
Vega v. Tex. Dep’t of Criminal Justice-Corr. Insts. Div.,
No. 12-10-00149-CV, 2011 WL 3273256 at 3 .................... 14
Walker v. Gonzales County Sheriff's Dep't.,
35 S.W.3d 157 (Tex. App.—Corpus Christi 2000, pet. denied 11, 16
Wolfe v. C.S.P.H., Inc.,
24 S.W.3d 641 (Tex. App.—Dallas 2000, no pet.) .......... 15, 18
STATUTES
Chapter 14 of the Texas Civil Practice & Remedies Code...... 8, 9
TEX. CIV. PRAC. & REM. CODE § 14.002. ............................ 10
TEX. CIV. PRAC. & REM. CODE § 14.003(a)(1). ...................... 13
TEX. CIV. PRAC. & REM. CODE § 14.003(a)(2 .................... 21, 24
TEX. CIV. PRAC. & REM. CODE § 14.003(a). ......................... 16
TEX. CIV. PRAC. & REM. CODE § 14.005(a) .......................... 13
TEX. CIV. PRAC. & REM. CODE § 14.005(b). ......................... 11
Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11)................. 20
TEX. CIV. PRAC. & REM. CODE, sections 14.001 ..................... 10
TEX. R. APP. P. 38.1(h) .................................... 15, 17
TEX. R. CIV. P. 145 (a) ........................................ 14
v
No. 06-14-00065-CV.
IN THE COURT OF APPEALS
FOR THE SIXTH JUDICIAL DISTRICT OF TEXAS
TEXARKANA, TEXAS
JULIO PEREZ, JR.,
Appellant,
v.
BRAD LIVINGSTON, SANTANA COOK, SHERRI DAVIS,
AND JAMES WESTON
DEFENDANTS / Appellees.
APPELLEES’ BRIEF
TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:
Appellees’ Brad Livingston, Santana Cook, Sherri Davis
and James Weston submit this brief in support of the trial
court’s judgment dismissing this case. Appellees’
respectfully offer the following:
STATEMENT OF THE CASE
Julio Perez, Jr., Appellant pro se in the above- styled
cause, is an inmate currently housed in the Telford Unit of
the Texas Department of Criminal Justice (“TDCJ”) in New
Boston, Texas.
1
On November 26, 2013, Appellant filed his Original
Petition, naming Brad Livingston (TDCJ), Santana Cook, Sherri
Davis, and James Weston, as Defendants in this matter in their
individual and official capacities. C.R. at 9. Appellant
alleged that Appellees were grossly negligent when they
failed to protect him from another inmate, in violation of
his Eighth Amendment rights. C.R. at 6-7. Appellant sought
compensatory damages. C.R. at 9.
On May 12, 2014, Appellees filed their original answer
and jury demand. C.R. at 28. Contemporaneously, Appellees
filed a motion to dismiss, identifying the defects in
Appellant’s pleadings and urging the court to dismiss the
suit pursuant to Chapter 14 of the Texas Civil Practice &
Remedies Code. C.R. at 33.
On July 2, 2014, the trial court signed the final
judgment, dismissing Appellant’s suit as frivolous and for
failure to comply with Chapter 14 of the Texas Civil Practice
& Remedies Code. C.R. at 74. Appellant filed his notice of
appeal with the trial court on July 23, 2014. C.R. at 76.
2
ISSUES PRESENTED
The sole issue to be decided is whether the trial court
abused its discretion in dismissing Appellant’s suit as
frivolous and for failure to comply with Chapter 14 of the
Texas Civil Practice & Remedies Code.
STATEMENT OF FACTS
Appellant alleges that on June 21, 2013, another inmate
damaged his personal letters and “dashed” him with a
concoction of feces and urine. C.R. at 6. Appellant further
alleges that Appellees’ Cook, Davis and Weston were grossly
negligent because they failed to protect him from another
inmate, in violation of his Eighth Amendment rights. C.R. at
6-7.
On June 24, 2013, Appellant filed his Step 1 grievance
number 2013167969. C.R. at 14-15. On August 1, 2013,
Appellant filed his Step 2 grievance number 2013167969. C.R.
at 16-17. On November 25, 2013, Appellant’s mail was
postmarked for delivery. C.R. at 72. On November 26, 2013,
Appellant’s original petition was filed. C.R. at 4.
SUMMARY OF THE ARGUMENT
The record supports the trial court’s judgment in
dismissing Appellant’s suit pursuant to Chapter 14 of the
3
Texas Civil Practice & Remedies Code. The trial court did not
abuse its discretion and the dismissal should be affirmed.
ARGUMENT
1) The trial court did not abuse its discretion in
dismissing Appellant’s suit for failure to comply with
Chapter 14.
Appellant is an inmate who preceded pro se and filed a
declaration of inability to pay costs. C.R. at 23. Chapter
14, therefore, governed the suit in the trial court. TEX. CIV.
PRAC. & REM. CODE § 14.002.
(a) Standard of review
Appellant’s suit was properly dismissed for failure to
comply with the mandatory requirements of Chapter 14. TEX.
CIV. PRAC. & REM. CODE, sections 14.001, et. seq. In Appellant’s
brief he argues that he timely filed his original petition.
An appellate court should review the dismissal of a suit
pursuant to Chapter 14 for an abuse of discretion. Hickson v.
Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ). An
abuse of discretion is found where a court acts without
reference to guiding principles. Smithson v. Cessna Aircraft
Co., 665 S.W.2d 439, 443 (Tex. 1984); Craddock v. Sunshine
Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939). Because the trial
court did not specify the grounds for dismissal, C.R. at 73-
4
74, the appellate court should affirm the decision if any
theory is meritorious. Walker v. Gonzales County Sheriff's
Dep't., 35 S.W.3d 157, 162 (Tex. App.—Corpus Christi 2000,
pet. denied)(citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.
1989)).
(b) The trial court did not abuse its discretion because
Appellant failed to file his claim before the 31st
day after the date on which the inmate received a
written response from the grievance system.
Section 14.005(b) states that “[a] Court shall dismiss a
claim if the inmate fails to file the claim before the 31st
day after the date the inmate receives the written decision
from the grievance system.” TEX. CIV. PRAC. & REM. CODE
§ 14.005(b). Appellant filed
On June 24, 2013, Appellant filed his Step 1 grievance
number 2013167969. C.R. at 14-15. On August 1, 2013,
Appellant filed his Step 2 grievance number 2013167969. C.R.
at 16-17. On November 25, 2013, Appellant placed his original
petition in the mail. C.R. at 72. On November 26, 2013,
Appellant’s original petition was filed. C.R. at 4.
An inmate’s 31-day deadline begins on the date he
receives the Step Two response back from the grievance
investigator. TEX. CIV. PRAC. & REM. CODE § 14.005(b). In its
5
decision to dismiss Appellant’s suit, the trial court
examined Appellant’s claims under the guiding principles of
Chapter 14 by determining the date Appellant received his
step 2 response, the required filing date under section
14.005(b), the date that Appellant mailed his petition and
the date that Appellant’s petition was filed. C.R. at 72.
The trial court explained that Appellant could have
received his step 2 response either on October 9, 2013, based
on the last date of the step 2 grievance, C.R. at 17, or
Appellant could have received his step 2 response on October
23, 2013, based on Appellant’s unsworn declaration. C.R. at
11. Next, the trial court stated that Appellant’s petition
was filed on November 26, 2013; however, the trial court would
consider November 25, 2013, the date Appellant placed his
petition in the mail, as the date upon which time began to
run. C.R. at 72. Thus, the time period the trial court looked
at was from October 23, 2013 to November 25, 2013. As such,
the trial court determined that Appellant still did not meet
the requirement set forth in § 14.005(b). Id.
In making its decision the trial court followed the
guiding principles of Chapter 14. Smithson v. Cessna Aircraft
Co., 665 S.W.2d 439, 443 (Tex. 1984); Craddock v. Sunshine
6
Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939). The provision of
section 14.005(b) is mandatory and requires a trial court to
dismiss an inmate’s claim for failure to comply with the
deadline. TEX. CIV. PRAC. & REM. CODE § 14.005(a); see also Lewis
v. Johnson, 97 S.W.3d 885, 887–88 (Tex. App.—Corpus Christi
2003, no pet.) (recognizing the mandatory language in section
14.005(b)).
Because Appellant failed to file his claim before the
31st day after the date he received the written decision to
his Step Two grievance, the trial court did not abuse its
discretion in dismissing Appellant’s suit as untimely.
(c) The trial court did not abuse its discretion in
dismissing Appellant’s suit pursuant to section
14.003, because Appellant made a false allegation
of poverty.
In Appellees’ motion to dismiss, they argued that
Section 14.003 states that a “court may dismiss a claim,
either before or after service of process, if the court finds
that . . . the allegation of poverty in the affidavit or
unsworn declaration is false.” TEX. CIV. PRAC. & REM. CODE §
14.003(a) (1).
Texas Rule of Civil Procedure 145 defines a “party who
is unable to afford costs” as a person who either (1)
7
presently receives governmental entitlement based on
indigency, or (2) “any other person who has no ability to pay
costs.” TEX. R. CIV. P. 145 (a). The courts have held: “An
inmate who has funds in his trust account is not indigent.”
McClain v. Terry, 320 S.W.3d 394, 397 (Tex. App.—El Paso 2010,
no pet.); Vega v. Tex. Dep’t of Criminal Justice-Corr. Insts.
Div., No. 12-10-00149-CV, 2011 WL 3273256 at 3. “Generally,
the test for determining entitlement to proceed in forma
pauperis is whether the preponderance of the evidence shows
that the [plaintiff] would be unable to pay the costs of his
suit if he wanted to and made a good faith effort to do so.
Vega, 2011 WL 3273256 at 3. In other words, the in forma
pauperis regime in Texas looks to an inmate’s subjective good
faith effort to pay his court costs, and the court does not
abuse its discretion in dismissing a suit where it finds the
allegation of poverty to be false. Id.
In his brief, Appellant did not offer any argument that
his allegation of poverty was not false. See generally
Appellant’s Brief. Appellant has therefore waived this issue.
The failure to adequately brief an issue, either by failing
to specifically argue and analyze one's position or to provide
authorities and record citations, waives any error on appeal.
8
See TEX. R. APP. P. 38.1(h) (brief must contain clear and
concise argument for contentions with appropriate citations
to authorities and record); Wolfe v. C.S.P.H., Inc., 24 S.W.3d
641, 646-47 (Tex. App.—Dallas 2000, no pet.)(appellant waives
issues if he fails to support contentions with appropriate
authority).
In any event, Appellant’s unsworn declaration of poverty
was false. Appellant filed an unsworn declaration stating he
is unable to pay the filing fees or any costs incurred
thereafter, and filed a certified copy of his inmate trust
account. C.R. at 23. Appellant’s trust account statement
shows that he previously had a high balance of $62.00 from
July-October 2013, $92.00 in June 2013, and $42.00 in May
2013. C.R. at 24. There is authority finding if an inmate
has funds in his inmate trust account, he is not indigent for
Chapter Fourteen purposes, and his allegation of poverty is
false. See McClain v. Terry, 320 S.W.3d 394 (Tex. App.—El
Paso 2010, no pet.); Donaldson v. Tex. Dep’t of Criminal
Justice-Corr. Insts. Div., 355 S.W.3d 722 (Tex. App.—Tyler
2011, pet. denied); Mendoza v. Livingston, No. 09-12-00594-
CV, 2014 WL 670119 at 3-4 (mem. op).
9
Appellant’s balance for his trust account over the
preceding six (6) months shows that he had a source of income
and is not indigent. McClain, 320 S.W.3d at 397. Had
Appellant “wanted” to make a good faith effort to pay the
cost of his suit, he could have done so.
Because the trial court did not specify the grounds for
dismissal, C.R. at 73-74, this Court should affirm the
decision because Appellant’s declaration of poverty was
false. Walker v. Gonzales County Sheriff's Dep't., 35 S.W.3d
157, 162 (Tex. App.—Corpus Christi 2000, pet. denied)(citing
Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989)). Therefore,
the trial court did not abuse its discretion in dismissing
Appellant’s suit pursuant to section 14.003.
(d) The trial court did not abuse its discretion because
Appellant’s claims had no arguable basis in law and
were properly dismissed pursuant to section 14.003.
In Appellees’ motion to dismiss, they argued that Section
14.003 permits a court to dismiss a claim, either before or
after service of process, if the court finds the claim
frivolous or malicious. TEX. CIV. PRAC. & REM. CODE § 14.003(a).
In so finding, the court may rely upon the following statutory
factors: the claim’s ultimate chance of success; whether the
claim has an arguable basis in law; whether it is clear that
10
the party cannot prove facts in support of the claim; or
whether the claim is substantially similar to a previous claim
filed by the petitioner because it arises from the same
operative facts. “A claim has no arguable basis in law if it
is [based on] an indisputably meritless legal theory.”
Burnett v. Sharp, 328 S.W.3d 594, 604 (Tex. App.—Houston [14th
Dist.] 2010, no pet.). Finally, a court does not abuse its
discretion by dismissing an inmate’s suit based upon a finding
that an inmate failed to state a cause of action for which
relief can be granted. Because the trial court followed these
statutory guidelines in dismissing Appellant’s claims, there
was no abuse of discretion.
In his brief, Appellant did not offer any argument that
his claims were not frivolous or that they were not based on
an indisputably meritless legal theory. See generally
Appellant’s Brief. Appellant has therefore waived this issue.
The failure to adequately brief an issue, either by failing
to specifically argue and analyze one's position or to provide
authorities and record citations, waives any error on appeal.
See TEX. R. APP. P. 38.1(h) (brief must contain clear and
concise argument for contentions with appropriate citations
to authorities and record); Wolfe, 24 S.W.3d at 646-47. Even
11
if he had briefed the issue, the trial court did not abuse
its discretion in concluding that his claims were frivolous
as discussed below.
i) The trial court did not abuse its discretion
dismissing Appellant’s suit because his tort
claim was barred by Franka.
The Texas Supreme Court’s interpretation of the Texas
Tort Claims Act (“TTCA”) forecloses any state tort claim
brought by Plaintiff in this case. Tex. Civ. Prac. & Rem.
Code at § 101.001 et seq; Franka v. Velasquez, 332 S.W.3d 367
(Tex. 2011). In Franka, the Texas Supreme Court explained
that section 101.106(f) was intended to “foreclose suit
against a government employee in his individual capacity.”
Franka, 332 S.W.3d at 381. The Court reasoned that denying
an avenue of recovery for plaintiffs is exactly what the
Legislature intended because in waiving governmental immunity
for the governmental unit, “the Legislature correspondingly
sought to discourage or prevent recovery against an
employee.” Id. at 384. Under the Franka rule, all tort claims,
including intentional torts, “could have been brought”
against the governmental unit, regardless of whether the
governmental unit's immunity from suit is expressly waived by
the TTCA for those claims. Id. at 385.
12
Tort claims are subject to the TTCA, as interpreted by
Franka. See Lopez v. Serna, 414 S.W.3d 890, 893-94 (Tex. App.—
San Antonio 2013, no pet). Therefore, Appellant’s claim of
gross negligence was subject to the TTCA, immunity barred
suit against TDCJ defendants, and the trial court did not
abuse its discretion in dismissing Appellant’s suit pursuant
to section 14.003.
ii) The trial court did not abuse its discretion
because Appellant’s tort claim of gross
negligence had no arguable basis in law.
Appellant alleged that Appellees’ Cook, Davis and Weston
were grossly negligent when they failed to protect him when
another inmate destroyed his personal letters and “dashed”
him with a concoction of feces and urine. As Appellees’
stated in the court below, to successfully allege gross
negligence a litigant’s claim must consist of two elements:
“extreme risk” and “actual awareness.” Lee Lewis Constr.,
Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex.2001); Mobil Oil
Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998). To support
a finding of gross negligence, a party must show that, (1)
viewed objectively from the actor's standpoint, the act or
omission complained of must involve an extreme degree of risk,
considering the probability and magnitude of the potential
13
harm to others; and (2) the actor must have actual, subjective
awareness of the risk involved, but nevertheless proceed in
conscious indifference to the rights, safety, or welfare of
others. Lee Lewis Constr., Inc., 70 S.W.3d at 785 (emphasis
added); Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11) (West
2008). “[I]n other words, the plaintiff must show that the
defendant knew about the peril, but his acts or omissions
demonstrate that he did not care.” La.-Pac. Corp. v. Andrade,
19 S.W.3d 245, 246–47 (Tex.1999); accord Terry v. Garcia, 800
S.W.2d 854, 856 (Tex. App.-San Antonio 1990, writ denied).
Appellant did not plead facts on which a court could
infer that there was an “extreme risk” of harm, and that
Appellees Cook, Davis and Weston had an “actual awareness” of
that harm. Appellant claimed that another inmate damaged
some of his property during a “dashing”, alleging that
Defendants Clark, Davis and Weston, witnessed the incident
and were grossly negligent in protecting him. C.R. 6-7.
However, pursuant to the Unit Grievance Investigator response
to Step 1 Grievance 2013167969, security staff were
questioned regarding the alleged “dashing” incident, and all
officers stated that “they did not witness offender Moreno
dash anything” and Plaintiff provided no evidence to
14
substantiate his claim. C.R. at 15. Appellant was unable to
prove that Appellees’ Cook, Davis and Weston had “subjective
awareness” of an “actual risk”, viewed objectively from the
officer’s standpoints at the time of the incident. Moncada v.
Brown, 202 S.W.3d 794, 802-03 (Tex. App. –San Antonio 2006,
no pet.); Evans v. Tex. Dep’t of Crim. Justice-Inst’l Div.,
No. 01-07-00847, 2008 WL 2548986 at *4. Outside of
Appellant’s speculative allegations he could not state that
there was an “extreme risk” and that Appellees Cook, Davis
and Weston knew anything about it.
On this basis, the trial court did not abuse its
discretion in dismissing Appellant’s gross negligence claim
because it had no arguable basis in law. TEX. CIV. PRAC. & REM.
CODE § 14.003(a)(2); see also Leachman v. Dretke, 261 S.W.3d
911, 913 (Tex. App.—Amarillo 2009, no pet.).
iii) The trial court did not abuse its discretion
because Appellant’s failure to protect claim
had no arguable basis in law.
Appellant alleged that Appellees’ Cook, Davis and Weston
failed to protect him when another inmate destroyed his
personal letters and “dashed” him with a concoction of feces
and urine. As Appellees’ stated in the court below, to
successfully allege failure to protect a litigant’s claim
15
must show that he was “incarcerated under conditions posing
a substantial risk of serious harm and that prison officials
were deliberately indifferent to his need for protection.”
Neals v. Norwood, 59 F.3d 530, 533 (5th Cir.1995); Adams v.
Perez, 331 F3d 508, 512 (5th Cir. 2003). Prison officials
are not liable for failure to protect if (1) Athey were unaware
of even an obvious risk to inmate health or safety,@ (2) Athey
did not know of the underlying facts indicating a sufficiently
substantial danger,@ (3) Athey knew of the underlying facts
but believed (albeit unsoundly) that the risk to which the
facts gave rise was insubstantial or nonexistent,@ or (4)
Athey knew of a substantial risk to inmate health or safety .
. . [and] responded reasonably to the danger, even if the
harm was not ultimately averted.@ Farmer v. Brennan, 511 U.S.
825, 844-45 (1994).
To prove the deliberate indifference element of failure
to protect requires a showing of “subjective recklessness” as
used in criminal law; under this standard, the prison
“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.” Farmer, 511 U.S. at 835-
38; see also Reeves v. Collins, 27 F.3d 174, 175 (5th Cir.
16
1994). Deliberate indifference is an extremely high standard
to meet; it Acannot be inferred merely from a negligent or
even grossly negligent response to a substantial risk of
serious harm.” Domino v. Texas Dep=t of Criminal Justice, 239
F3d 752, 756 (5th Cir. 2001); Thompson v. Upshur County, TX,
245 F.3d 447, 459 (5th Cir. 2001).
Appellant did not plead facts on which a court could
infer that Appellant was “incarcerated under conditions
posing a substantial risk of serious harm and that prison
officials were deliberately indifferent to his need for
protection.” Neals, 59 F.3d at 533; Adams, 331 F3d at 512.
Prison officials are not expected to prevent all inmate-on-
inmate violence. Adames, 331 F.3d at 512. Prison officials
are not liable for failure to protect if Athey were unaware
of even an obvious risk to inmate health or safety,@ Farmer
511 U.S. at 844-45. Furthermore, where the attack is “sudden
and unexpected”, as is the case here, there is no evidence to
support a finding of failure to protect. Charchere v. Salinas,
No. 13-97-036-CV, 1998 WL 35276221 at *1.
Appellant asserted that the alleged “dashing” incident
was witnessed by Defendants Cook, Davis and Weston; however,
pursuant to the UGI response, they stated that they “did not
17
witness offender Moreno dash anything”. C.R. at 15. In other
words, they were unaware of an obvious risk to inmate health
or safety. Farmer, 511 U.S. at 844-45. Appellant could not
support his speculative allegations with any evidence that
proves Appellees Cook, Davis and Weston had any knowledge
that Appellant was going to be “dashed”, or that he had been
“dashed”; therefore, they could not possibly have inferred
that he was at substantial risk of harm.
Accordingly, the trial court did not abuse its
discretion in dismissing Appellant’s failure to protect claim
because it had no arguable basis in law. TEX. CIV. PRAC. & REM.
CODE § 14.003(a)(2)
CONCLUSION AND PRAYER
The trial court acted with reference to guiding law and
principles as discussed above. The trial court’s dismissal
pursuant to Chapter 14 of the Texas Civil Practice & Remedies
Code was not an abuse of discretion. Appellees pray that this
Honorable Court affirm the final judgment issued in the court
below.
Respectfully Submitted,
KEN PAXTON
Attorney General of Texas
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CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for
Civil Litigation
KAREN D. MATLOCK
Chief, Law Enforcement Defense
Division
/s/ JERRY S. BERGMAN
JERRY S. BERGMAN
Assistant Attorney General
State Bar No.24081694
Law Enforcement Defense Division
P. O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 463-2080 / Fax No. (512)
495-9139
Attorneys for Appellees
NOTICE OF ELECTRONIC FILING
I, JERRY S. BERGMAN, Assistant Attorney General of Texas,
certify that I have electronically submitted for filing a
copy of the foregoing in accordance with the electronic filing
system for the Sixth Court of Appeals on January 22, 2015.
/s/ JERRY S. BERGMAN
JERRY S. BERGMAN
Assistant Attorney General
19
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of
Tex. R. App. P. 9.4(e) because it has been prepared in a
conventional typeface no smaller than 14-point for text and
12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if
applicable, because it contains 4,729 words, excluding any
parts exempted by Tex. R. App. P. 9.4(i)(1).
/s/ JERRY S. BERGMAN
JERRY S. BERGMAN
Assistant Attorney General
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CERTIFICATE OF SERVICE
I hereby certify that on January 22, 2015, a true and
correct copy of the foregoing document was served via the
Court’s ECF system to all counsel of record by placing it in
the United States Mail, postage prepaid, addressed to:
Julio Perez, TDCJ No. 852734
TDCJ – Barry S. Telford Unit
3899 State Highway 98
New Boston, TX 75570
Plaintiff Pro Se
/s/ JERRY S. BERGMAN
JERRY S. BERGMAN
Assistant Attorney General
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