Harrison v. Texas Dept. of Criminal Justice-Institutional Div.

• Decision Date: 07 December 1995
• Docket Number: No. 01-95-00549-CV,JUSTICE--INSTITUTIONAL,01-95-00549-CV
• Citation: 915 S.W.2d 882
• Parties: Alvin Lee HARRISON, Appellant, v. TEXAS DEPARTMENT OF CRIMINALDIVISION, Cary Smith, Bill Himpstead, and M. Brewer, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 882

915 S.W.2d 882

Alvin Lee HARRISON, Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE--INSTITUTIONAL DIVISION, Cary Smith, Bill Himpstead, and M Brewer, Appellees.

No. 01-95-00549-CV.

Court of Appeals of Texas Houston (1st Dist.).

Dec. 7, 1995.

Alvin L. Harrison, Gatesville, for Appellant.

Dan Morales, Jorge Vega, Drew T. Durham, Ann Kraatz, Jeff Millstone, Austin, for Appellees.

HEDGES, COHEN and TAFT, JJ., also participating.

OPINION

COHEN, Justice.

Harrison appeals the dismissal of his in forma pauperis action alleging claims under the Tort Claims Act, the Texas Constitution, and 42 U.S.C. § 1983. We affirm in part and reverse and remand in part.

Appellant is a prison inmate. Appellees Smith, Himpstead, and Brewer are prison guards. Appellant sued for injuries he allegedly sustained while being transported on a prison bus from Huntsville to Gatesville.

Appellant alleged that at 5:30 a.m. on January 21, 1994, he and four other prisoners were placed on a prison bus for transport from Huntsville to Gatesville. Smith and Himpstead operated the bus. All inmates were placed in restraints consisting of leg irons attached to both ankles. A chain attached to the leg irons is brought between the legs and around the waist of the prisoner. Handcuffs placed on the prisoner are secured in a "black box" type device that is then locked in front of the prisoner through a metal device at the waist with a small padlock. While en route to Gatesville, Smith threatened to turn off the heater if the prisoners continued to talk. One inmate, not appellant, responded with a colorful expletive. Appellant alleges Smith then turned the heat off and opened a window and the door for several miles. Appellant was wearing a short-sleeved shirt and no coat. Smith and Himpstead were wearing heavy coats and gloves. The prisoners continued to talk to one another. Eventually, Smith turned the bus around and returned to Huntsville.

Upon returning to Huntsville, the prisoners were removed. Smith, Himpstead, and Brewer had appellant kneel so that the chain connecting the leg irons to the handcuffs could be shortened. As a result, appellant was forced to remain in a bent over position with his wrists and ankles locked together. Appellant alleges that after he and the other prisoners were "hogtied," "Diagnostic Officers assaulted each one of us with kneeing the bodies, striking with fist and literally throwing us on the bus on our heads." Appellant also alleges he "was kneed in the body and hit in the face by an unknown officer which knocked [appellant] down, causing [appellant's] knee to bleed. The same officer threw [appellant] onto the bus and kneed [him] in the rear end, throwing [appellant] onto his head." Allegedly, Smith and Himpstead stood by laughing at the events.

Next, appellant alleges the prisoners were placed on the bus while still in the "hogtied" position, making it impossible to use the toilet on the bus. When appellant requested to use the toilet, Smith told him "piss on yourself" and began driving slowly in order to bring about that result. Appellant claims that instead of doing so, two prisoners got onto their knees and began to urinate on the floor of the bus. Allegedly, Smith then repeatedly stomped on the brakes causing the two prisoners to tumble into the seats and onto the floor due to their inability to use their hands to brace themselves.

The heat was turned off and cold air was permitted to enter the bus during this time. As a result, appellant was "extremely cold." Appellant also experienced back pain from being "hogtied." Moreover, due to his inability to use the toilet on the bus, his unwillingness to urinate on himself, and his unwillingness to risk injury by urinating on the floor, appellant experienced "extreme anxiety."

Appellant alleges that upon arriving in Gatesville at approximately 11:00 a.m., Smith and Himpstead dragged all the prisoners through the urine on the floor of the bus. The prisoners were then forced to walk in the "hogtied" position for approximately 60 to 75 feet while Smith and Himpstead jeered.

Appellant received medical treatment for the bleeding knee he received during the assault at the diagnostic unit. Upon removal of his handcuffs, appellant noticed cuts and a swollen wrist, in addition to numbness in one hand and several fingers.

Appellant filed a grievance regarding the practice of "hogtying" prisoners, but he alleges "T.D.C.J. sanctioned the actions of the defendants."

Appellant's Legal Allegations

Appellant sued for damages, pursuant to TEX.CIV.PRAC. & REM.CODE ANN. § 101.021(2) (Vernon 1986), article I, sections 13 and 19 of the Texas Constitution, the eighth and fourteenth amendments to the United States Constitution, and 42 U.S.C. § 1983. Specifically, appellant sought damages from Smith, Himpstead, and Brewer for:

1. negligent use of the security restraints on appellant;

2. mental anguish, pain, and suffering resulting from the misuse of the security restraints;

3. the infliction of cruel and unusual punishment on appellant by using unnecessary force by hogtying him;

4. the infliction of cruel and unusual punishment by depriving the appellant of access to a toilet and forcing him to walk while hogtied.

Appellant sought damages from TDCJ-ID for:

1. "Allowing the negligent use of [security] devices on [appellant] when [appellant] was secured through policy dictate."

2. Mental anguish, pain, and suffering TDCJ-ID knew or should have known appellant would incur through the negligent use of [security] devices.

3. Cruel and unusual punishment in that (1) TDCJ-ID knew or should have known of the unnecessary use of force against appellant; (2) appellant was denied access to the toilet on the bus due to his being hogtied; and (3) appellant was forced to walk while hogtied when he was secured and posed no threat.

4. TDCJ-ID's approval of cruel and unusual punishment of appellant in that: TDCJ-ID knew or should have known appellant would suffer needless pain and anxiety due to (1) his inability to use the toilet and (2) his having to walk while hogtied. Also, appellant was subjected to ankle, wrist, and back pain resulting from the unnecessary use of force.

Motion to Dismiss

Pursuant to TEX.CIV.PRAC. & REM.CODE ANN. § 13.001 (Vernon Supp.1995), appellees moved to dismiss the lawsuit as frivolous, asserting the following grounds:

1. Appellant has not specifically pled facts to overcome TDCJ-ID's governmental immunity.

2. The State must consent to suit and no statutory or legislative consent exists in this instance, nor has statutory or legislative consent been pled.

3. Sovereign immunity bars all state claims against state officials in their official capacities undertaken without the State's consent.

4. Qualified immunity bars this suit because the appellees were acting in their official capacities as employees of TDCJ-ID with the good faith belief that their actions were proper under the United States Constitution and laws of Texas.

5. Quasi-judicial immunity shields appellees from personal liability because their acts were discretionary, in good faith, and within the scope of their authority.

6. Appellant failed to allege the deprivation of a constitutional right to support his § 1983 claim.

7. Appellant's negligence allegations do not constitute a cause of action under § 1983.

8. TDCJ-ID is not a proper party under § 1983.

9. The allegations in appellant's petition are insufficient in substance, manner, and form to state a claim under the Texas Tort Claims Act.

10. Appellant fails to show how and in what manner a condition or use of tangible personal or real property is related to his alleged injuries.

11. Appellant failed to comply with the notice requirement of the Texas Tort Claims Act.

Without a hearing and without stating the basis of its decision, the trial court granted the motion to dismiss.

In his sole point of error, Harrison contends the trial court abused its discretion when it dismissed his lawsuit as frivolous.

Standard & Scope of Review

A judge may dismiss a suit brought in forma pauperis by finding that it is frivolous or malicious. In determining whether an action is frivolous or malicious, the statute allows the judge to consider whether:

(1) the action's realistic chance of ultimate success is slight;

(2) the claim has no arguable basis in law or in fact; or

(3) it is clear that the party cannot prove a set of facts in support of the claim.

TEX.CIV.PRAC. & REM.CODE ANN. § 13.001(b) (Vernon Supp.1995).

Case law requires that we consider only the second factor--whether there is an arguable basis in law or fact. Johnson v. Lynaugh, 796 S.W.2d 705, 706 (Tex.1990). When, as here, the trial court dismisses without a fact hearing, it could not have determined the suit had no arguable basis in fact. Hector v. Thaler, 862 S.W.2d 176, 178 (Tex.App.--Houston [1st Dist.] 1993, no writ). Thus, we must consider whether the trial court properly determined there is no arguable basis in law for the suit. Johnson, 796 S.W.2d at 706.

A trial court has broad discretion to dismiss under section 13.001. Brown v. Lynaugh, 817 S.W.2d 813, 815 (Tex.App.--Houston [1st Dist.] 1991, no writ). We review such decisions only to decide whether the trial court abused its discretion by acting arbitrarily, capriciously, and without reference to any guiding principles. Pedraza v. Tibbs, 826 S.W.2d 695, 698-99 (Tex.App.--Houston [1st Dist.] 1992, writ dism'd w.o.j.). We will consider each ground in the motion to dismiss.

Motion to Dismiss Grounds

Appellant has not specifically pled facts to overcome TDCJ-ID's governmental immunity.

Citing federal cases, the State argues that appellant has failed to specifically plead facts sufficient to overcome its immunity.

Heightened pleading requirements may be enforced in immunity cases in federal courts. See Elliott v. Perez, 751 F.2d 1472, 1476-82 (5th Cir.1985). There are no such requirements in Texas courts. Pleadings ...