Salazar v. Collins

• Decision Date: 27 February 2008
• Docket Number: No. 10-06-00377-CV.,10-06-00377-CV.
• Citation: 255 S.W.3d 191
• Parties: C. Joseph SALAZAR, II, Appellant, v. James A. COLLINS and Jack M. Garner, Appellees.
• Court: Texas Court of Appeals

255 S.W.3d 191

C. Joseph SALAZAR, II, Appellant, v. James A. COLLINS and Jack M. Garner, Appellees.

No. 10-06-00377-CV.

Court of Appeals of Texas, Waco.

February 27, 2008.

Rehearing Overruled March 18, 2008.

C. Joseph Salazar II, Rosharon, pro se.

Christopher C. Wike, Asst. Atty. Gen., Austin, for appellees.

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

OPINION

FELIPE REYNA, Justice.

Prison inmate C. Joseph Salazar, II appeals from a summary judgment granted in favor of prison administrators James A. Collins and Jack M. Garner. Salazar contends in three issues that: (1) the court erred by granting Collins's and Garner's summary-judgment motion and denying Salazar's motion for partial summary judgment because the evidence conclusively establishes that they had a legal duty to protect him from another inmate who assaulted him (two issues); and (2) the court abused its discretion by permitting the withdrawal of deemed admissions. We will reverse and remand.

Background

Salazar's suit is based on an allegation that he was attacked with a weapon by fellow inmate Mark Basden in December 1992,¹ "which resulted in a prominent scar and permanent disfigurement." At the time of the alleged assault, Collins was the Executive Director of the Texas Department of Criminal Justice, and Garner was the warden of the Hughes Unit where Salazar was imprisoned. Salazar alleged in his Sixth Amended Complaint² that Collins and Garner (collectively, "Appellees") were liable for various theories of negligence and gross negligence because TDCJ "agents, employees, and servants" housed Salazar in the administrative segregation unit with Basden even though they knew that both were associated with competing "disruptive groups" and because of the manner in which TDCJ "agents, employees, and servants" implemented or failed to implement administrative policies promulgated by TDCJ for security in administrative segregation units.

Salazar filed a motion for partial summary judgment in which he alleged that Appellees owed him a duty as a matter of law to control Basden's conduct and that section 501.019 of the Government Code does not apply.³ Salazar argued in particular that they owed him a duty to control Basden's conduct because a "special relationship" existed between Appellees and Basden and because they "had specific control over the security of the premises."

Appellees filed a traditional summary-judgment motion⁴ in which they argued that: (1) they owed no legal duty to Salazar because his injuries were not foreseeable, the imposition of such a duty in the prison context would be contrary to public policy, and there was no "special relationship" between Basden and them merely because of their status as prison administrators; and (2) they have official immunity because inmate housing assignments are discretionary matters, they were acting in their official capacity, and Salazar did not allege that they acted in bad faith.

In Salazar's First Amended Motion for Partial Summary Judgment and Responses to Defendants Motion for Summary Judgment, he abandoned his claim regarding section 501.019 of the Government Code but reiterated his duty contention on the same grounds. In response to Appellees' summary-judgment claims, he argued that:

(1) they owed him a duty of reasonable care because of their "special relationship" with him;

(2) they are not entitled to official immunity because:

(A) prison guards admittedly failed to follow TDCJ policy AD-03.50 (governing prisoners in administrative segregation) which requires among other things that guards thoroughly search dayrooms and recreational areas "prior to and after each use" and thoroughly strip-search inmates "before and after recreation or leaving the assigned cellblock," and

(B) policy AD-03.50 imposes ministerial rather than discretionary duties; and

(3) they are not entitled to official immunity because the allegations of his petition that they acted with "gross negligence," "reckless disregard," and "conscious indifference" should be construed as allegations of bad faith.

In support of his amended motion/response, Salazar offered his own affidavit, Appellees' responses to his first and fourth requests for admissions, his second request for admissions and production of documents, which Appellees had failed to answer, and his third request for admissions, which Appellees had also failed to answer.

Appellees filed a response in which they argued primarily that they had no legal duty because they had no "day-to-day control and supervision" over Basden. However, they did not provide additional summary-judgment evidence to support this contention.

During a telephonic hearing on the summary-judgment motions, the court asked Salazar to provide copies of the signed return receipts accompanying his unanswered discovery requests, which Salazar did by filing a "Supplemental Record" about one week after the hearing. These receipts demonstrate that the Attorney General's office received Salazar's discovery requests as he alleged.

Appellees then filed a motion to strike their deemed admissions. They admitted that the discovery requests were received by the Attorney General's office but argued that their failure to answer was accidental and not the result of conscious indifference because the documents were never received by the attorney-in-charge of their case. They also argued that Salazar would not be prejudiced if their deemed admissions were withdrawn.

In a subsequent hearing, the court granted Appellees' motion to strike the deemed admissions, denied Salazar's amended motion for partial summary judgment, took Appellees' summary-judgment motion under advisement, and set the case for jury trial.

Salazar then filed his Eighth Amended Complaint, alleging only two claims against Appellees, namely, that they are liable for ordinary negligence and gross negligence because their "agents, employees and/or servants failed to take reasonable steps to control the conduct of Basden" (the inmate who assaulted Salazar). In connection with these claims, Salazar alleges that prison employees at the Hughes Unit failed to follow TDCJ policy AD-03.50, complaining in particular that prison guards failed to thoroughly search dayrooms and recreational areas "prior to and after each use" or thoroughly strip-search inmates "before and after recreation or leaving the assigned cellblock."⁵

The trial court granted Appellees' summary-judgment motion, holding in particular that neither Appellee "owed a legal duty to Plaintiff Salazar" and that both Appellees "are entitled to official immunity."

Deemed Admissions

Salazar contends in his third issue that the court abused its discretion by permitting Appellees to withdraw their deemed admissions.

A trial court has broad discretion to grant or deny a request to withdraw deemed admissions. Wheeler v. Green, 157 S.W.3d 439, 443 (Tex.2005) (per curiam). No abuse of discretion occurs in this regard if there is a showing of (1) good cause and (2) no undue prejudice. Id. at 442 (citing TEX.R. CIV. P. 166a(c), 198.3). Good cause is established by a showing that the failure to respond to the request for admissions "was an accident or mistake, not intentional or the result of conscious indifference." Id. "Even a slight excuse will suffice, especially when delay or prejudice to the opposing party will not result." Boulet v. State, 189 S.W.3d 833, 836 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (quoting Spiecker v. Petroff, 971 S.W.2d 536, 538 (Tex.App.-Dallas 1997, no pet.)). Undue prejudice occurs when permitting the withdrawal and allowing a late response will delay the trial or significantly hamper the opposing party's ability to prepare for trial. Wheeler, 157 S.W.3d at 443.

Salazar served his second and third requests for admissions in August and September of 2003 respectively. Appellees apparently did not become aware of their failure to respond until June 2004 when Salazar filed his amended motion for partial summary judgment and response to Appellees' summary-judgment motion. In Appellees' motion to strike the deemed admissions, they stated that their failure to answer the requests for admissions happened because these documents were inadvertently misplaced after they were received by the Office of the Attorney General and were never routed to the particular attorney assigned to the Salazar case.

Appellees' motion indicates that there was no conscious indifference on their part and that the failure to timely respond was due to a clerical error within the Office of the Attorney General. Thus, the court did not abuse its discretion by finding good cause for the withdrawal of the deemed admissions. See Spiecker, 971 S.W.2d at 541-42.

Regarding undue prejudice, there is nothing in the record to indicate that trial was delayed or Salazar's ability to prepare for trial was hindered by the trial court's decision. See Wheeler, 157 S.W.3d at 443. In fact, as will be seen hereinbelow, some of Appellees' late-filed responses actually support Salazar's contentions. We hold that the court did not abuse its discretion by permitting the withdrawal of the deemed admissions. Accordingly, we overrule Salazar's third issue.

Contentions Which Will Not Be Addressed

Appellees address issues of vicarious liability and res judicata in their brief. For the reasons which follow, however, we find that these issues were not properly raised in the summary-judgment pleadings. Therefore, we shall not further address them on appeal.

A trial court cannot grant summary judgment on a ground not expressly presented in the summary judgment motion or a response thereto. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996); Watson v. Dallas Indep. Sch. Dist., 135 S.W.3d 208, 219 (Tex.App.-Waco 2004, no pet.). We may consider only those grounds "the movant actually presented to the trial court" in the motion. Id. Grounds raised in a brief filed in support of...