Jones v. Tex. Dep't Of Criminal Justice-inst.Al Div.

• Decision Date: 14 April 2010
• Docket Number: No. 10-09-00060-CV.,10-09-00060-CV.
• Citation: 318 S.W.3d 398
• Parties: Christopher JONES, Appellant,v.TEXAS DEPARTMENT OF CRIMINAL JUSTICE-INSTITUTIONAL DIVISION, et al., Appellees.
• Court: Texas Court of Appeals

318 S.W.3d 398

Christopher JONES, Appellant,v.TEXAS DEPARTMENT OF CRIMINAL JUSTICE-INSTITUTIONAL DIVISION, et al., Appellees.

No. 10-09-00060-CV.

Court of Appeals of Texas Waco.

April 14, 2010.

Christopher Jones, Gatesville, pro se.

David P. Weeks, Madison County Crim. Dist. Atty., Huntsville, for appellees.

Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.

OPINION

FELIPE REYNA, Justice.

Christopher Jones brings this interlocutory appeal from the granting of a motion to dismiss filed by the Texas Department of Criminal Justice and a plea to the jurisdiction filed by TDCJ and four TDCJ employees. He contends in five issues that: (1) the court abused its discretion by granting TDCJ's motion to dismiss his suit against the individual appellees under section 101.106 of the Tort Claims Act even though he also filed claims under title 42, section 1983 of the U.S.Code; (2) the court abused its discretion by granting the plea to the jurisdiction without first reviewing his petition and the proceedings to determine in which capacity the individual appellees were sued; (3) the court erred by dismissing his suit before ruling on his pending motions for discovery and for summary judgment; (4) the court erred by dismissing his suit “without understanding or paying attention to the actual facts and legal theories” alleged; and (5) he has been prejudiced by the district clerk's failure to provide complete records to himself and to this Court. We will affirm in part and dismiss in part.

Background

Jones's “Second Amended Complaint Original Petition” names seven defendants: the Texas Department of Criminal Justice-Institutional Division, TDCJ Director Nathaniel Quarterman, Correctional Officer Captain Smith, Security Staff Sergeant Emertson, Grievance Coordinator C. McGilbra, Assistant Warden Gary Hunter, and Assistant Administrator Veronica Brisher.¹

Jones's legal claims arise from five factually distinct incidents. In essence, Jones complains about several instances of misconduct by two prison employees and further complains about the failure of supervisors to discipline these employees and the handling of grievances he filed regarding these claims of misconduct.

Jones alleges in his second amended complaint that:

• Smith “maliciously sadisticly [sic] and wantonly” handcuffed Jones without provocation or just cause after strip searching him and then, with Emertson, “marched [him] from one end of the Ferguson Unit Prison Facility to the other completely naked, needlessly, in front of numerous inmates and male and female prison staff”;

• Smith and Emertson “acted wantonly, maliciously and sadisticly [sic] began punching [Jones] in the back of his head and began ramming his face and forehead into the wall while he was handcuffed,” causing him to suffer physical injuries and to be “terrified, outraged, humiliated, and fear[ful] for his life”;

• he was “maliciously sadisticly [sic] placed in a solitary cell handcuffed without any of the basic human necessities for 12 hours” by Smith and Emertson;

• Smith and Emertson “sadisticly [sic], wantonly” failed to follow TDCJ policy regarding securing, collecting and storing inmate property and committed theft by failing to return his property to him; and

• the remaining defendants failed to properly handle the grievances he filed with regard to these incidents.

Before Jones filed his second amended complaint, TDCJ filed a motion to dismiss his claims against Quarterman, McGilbra, Hunter and Brisher under section 101.106(e) of the Texas Tort Claims Act. Several months after he filed the second amended complaint, TDCJ, Quarterman, McGilbra, Hunter and Brisher filed a plea to the jurisdiction.²

After a hearing, the court granted the plea to the jurisdiction and the motion to dismiss in separate written orders. After reviewing a post-trial motion filed by Jones and the defendants' response to that motion, the court granted a new trial only with respect to Jones's claims under section 1983 against Quarterman, McGilbra, Hunter and Brisher in their individual capacities.

Dismissal of State Law Claims

Jones contends in his first issue that the court abused its discretion by granting TDCJ's motion to dismiss his suit against the individual appellees under section 101.106(e) even though he also filed claims under section 1983. He contends in his third and fourth issues respectively that the court erred by dismissing his suit: (a) before ruling on his pending motions for discovery and for summary judgment and (b) “without understanding or paying attention to the actual facts and legal theories” alleged.

Appellees' motion to dismiss relies solely on section 101.106(e) as a basis for dismissal. See Tex. Civ. Prac. & Rem.Code Ann. § 101.106(e) (Vernon 2005). We first must determine whether this Court has jurisdiction to address an interlocutory appeal from the granting of a motion to dismiss under section 101.106(e). See Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 158 (Tex.2007) (“Courts always have jurisdiction to determine their own jurisdiction.”).

Section 51.014 of the Civil Practice and Remedies Code establishes our jurisdiction for most interlocutory appeals. Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (Vernon 2008). Subsections (5) and (8) of this statute expressly permit the appeal of an interlocutory order which:

denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state; or

grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001.

Id. § 51.014(a)(5), (8).

Several courts have concluded that they have jurisdiction under subsection (5) to review the denial of a motion to dismiss under section 101.106. See City of Arlington v. Randall, 301 S.W.3d 896, 902 n. 2 (Tex.App.-Fort Worth 2009, pet. filed); Escalante v. Rowan, 251 S.W.3d 720, 727 (Tex.App.-Houston [14th Dist.] 2008, pet. filed); Lanphier v. Avis, 244 S.W.3d 596, 598-99 (Tex.App.-Texarkana 2008, pet. dism'd w.o.j.); Walkup v. Borchardt, No. 07-06-00040-CV, 2006 WL 3455254, at *1 n. 1 (Tex.App.-Amarillo Nov. 30, 2006, no pet.); contra Hudak v. Campbell, 232 S.W.3d 930, 931 (Tex.App.-Dallas 2007, no pet.).

Here, however, because the trial court granted TDCJ's dismissal motion and subsection (5) permits an appeal only from the denial of a pleading raising immunity, jurisdiction would have to lie under subsection (8) which permits an appeal from an interlocutory order which “grants or denies a plea to the jurisdiction by a governmental unit.” Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8).

The reference to “plea to the jurisdiction” is not to a particular procedural vehicle but to the substance of the issue raised. Thus, an interlocutory appeal may be taken from a refusal to dismiss for want of jurisdiction whether the jurisdictional argument is presented by plea to the jurisdiction or some other vehicle, such as a motion for summary judgment. By the same token, an interlocutory appeal cannot be taken from the denial of a plea to the jurisdiction that does not raise an issue that can be jurisdictional.

Tex. Dep't of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex.2004) (citing Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004)); accord

Dallas County v. Autry, 251 S.W.3d 155, 159-60 (Tex.App.-Dallas 2008, pet. denied). Thus, our jurisdiction to review the granting of the motion to dismiss rests on whether the motion raises jurisdictional grounds for dismissal. See id.

Section 101.106(e) provides, “If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.” Tex. Civ. Prac. & Rem.Code Ann. § 101.106(e). The Supreme Court has construed a prior version of this statute ³ as conferring “an unequivocal grant of immunity.” Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex.1997). However, the Court did not specify in Newman what type of immunity was granted by the statute.

In subsequent cases, the Supreme Court has characterized the immunity conferred by section 101.106 as immunity from liability. Sykes, 136 S.W.3d at 640; Dallas County MHMR v. Bossley, 968 S.W.2d 339, 344 (Tex.1998); accord Snelling v. Mims, 97 S.W.3d 646, 648 (Tex.App.-Waco 2002, no pet.); see also Escalante, 251 S.W.3d at 727 (“immunity defense” ⁴); Klein v. Hernandez, 260 S.W.3d 1, 21 (Tex.App.-Houston [1st Dist.] 2008, pet. granted) (Taft, J., concurring). Several intermediate courts of appeal have characterized this statutory immunity as immunity from suit. See Saade v. Villarreal, 280 S.W.3d 511, 521 (Tex.App.-Houston [14th Dist.] 2009, pet. filed); Bailey v. Sanders, 261 S.W.3d 153, 157 (Tex.App.-San Antonio 2008, no pet.); Tex. Dep't of Agric. v. Calderon, 221 S.W.3d 918, 922 (Tex.App.-Corpus Christi 2007, no pet.); Meroney v. City of Colleyville, 200 S.W.3d 707, 715 (Tex.App.-Fort Worth 2006, pet. granted, judgm't vacated w.r.m.); City of San Angelo Fire Dep't v. Hudson, 179 S.W.3d 695, 703 n. 7 (Tex.App.-Austin 2005, no pet.).

We will follow the plain language of the Supreme Court's decisions in Sykes and Bossley and in our own decision in Snelling and treat the statutory immunity conferred by section 101.106 as immunity from liability.

“[I]mmunity from liability is an affirmative defense that cannot be raised by a plea to the jurisdiction.” State v. Lueck, 290 S.W.3d 876, 880 (Tex.2009). Therefore, the immunity conferred by section 101.106 is not jurisdictional. An order granting a motion to dismiss under section 101.106(e) cannot be appealed under section 51.014(a)(8) of the Civil Practice and Remedies Code. See Simons, 140 S.W.3d at 349; Autry, 251 S.W.3d at 159-60.

Accordingly, we dismiss Jones's first, third and fourth issues for want of jurisdiction. See Matis v. Golden, 228 S.W.3d 301, 305 (Tex.App.-Waco 2007, no pet.).

Plea...