Texas Dept. of Criminal Justice v. Thomas

• Decision Date: 19 April 2007
• Docket Number: No. 01-04-01084-CV.,01-04-01084-CV.
• Parties: THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE and Glenda Pierson, Appellants, v. Linda THOMAS as personal representative for the Estate of Damon Hollimon, deceased, and Ashley Dominique Hollimon, Appellees.
• Court: Texas Court of Appeals

263 S.W.3d 212

THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE and Glenda Pierson, Appellants, v. Linda THOMAS as personal representative for the Estate of Damon Hollimon, deceased, and Ashley Dominique Hollimon, Appellees.

No. 01-04-01084-CV.

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

April 19, 2007.

Bill Davis, Office of Attorney General (MC059), Maurice L. Taylor, Office of the Attorney General, Austin, Sean Daniel Jordan, Office of the Attorney General, Houston, TX, for Appellants.

Douglas C. Sikes, Provost*Umphrey Law Firm, L.L.P., Beaumont, TX, for Appellees.

Panel consists of Justices NUCHIA, KEYES, and HANKS.

OPINION

SAM NUCHIA, Justice.

Appellants, The Texas Department of Criminal Justice (TDCJ) and Glenda Pierson (Pierson), bring this interlocutory appeal of the orders of the trial court denying TDCJ's plea to the jurisdiction and Pierson's motion for summary judgment.¹ TDCJ's plea asserted sovereign immunity from suit, and Pierson's motion for summary judgment asserted qualified immunity. We reverse and render.

BACKGROUND

The deceased, Damon Hollimon, was incarcerated in TDCJ's Estelle Unit in Huntsville, Texas and was in a sex-offender treatment program. He had been diagnosed as paranoid-schizophrenic, but had been in remission and was not taking any medication. However, because his condition was deteriorating and he was becoming increasingly tense, agitated, defensive, and violent, the decision was made to transfer Hollimon to a psychiatric unit. A "move team" of five officers was sent to Hollimon's cell. Pierson, a University of Texas Medical Branch (UTMB) nurse, was called in to advise whether there was any reason that pepper spray should not be used to subdue Holliman and to provide medical assistance as needed during the move. Pierson and the members of the move team were wearing gas masks. After reviewing Holliman's medical chart, Pierson found no reason why chemical restraint should not be used. Pierson, in her notes, recorded the time of various events in this forced move.

The move team first asked Holliman to leave his cell at 3:21 p.m., and Holliman refused. At 3:22, a member of the team discharged a canister of pepper spray in Holliman's direction. Holliman coughed, but refused to move. The officer waited two minutes, then discharged a second canister of pepper spray, with the same result. After another two minutes, the officer discharged a third canister, but Hollimon still refused to move. At 3:28 p.m., the officers entered the cell to force Hollimon out, and Hollimon, who was described as having a "well developed, well nourished, muscular" body, resisted. The ensuing struggle resulted in a "major use of force" by the team, with Hollimon face-down on the floor and an officer pressing his knee down on the back of Hollimon's neck as other officers secured Hollimon's hands and feet. At 3:31 p.m., the hand and leg restraints were in place, and Hollimon was on his side in the cell. A second 3:31 entry, the last entry by Pierson, noted that Hollimon was brought out of the cell and summarized the actions that resulted in Hollimon's arrival at the medical department.²

As the officers picked Hollimon up and moved him out of the cell, Pierson saw that his neck was limp and his head was "wobbly" and thought that his neck had been broken. She checked his vital signs and found that he had no carotid pulse, no heart rate, was not breathing, and had fixed and dilated pupils. Pierson testified that she did not remove her gas mask to perform cardiopulmonary resuscitation because she would then have been exposed to the pepper spray and would have needed medical attention herself and thus would not have been of any assistance to Hollimon. After checking Hollimon's vital signs, Pierson told the officers to take Hollimon to the medical department "now."

The move team carried Hollimon toward the prison medical department, which, according to trial testimony, was a one-and-one-half to two-and-one-half minute walk from the cell. They had to go down a flight of stairs and pass through a "wing picket gate," which was locked. However, the guard was not on duty, and they had to find another guard to unlock the gate. Medical personnel were waiting on the other side of the gate with a stretcher and took Hollimon across the hall to the medical department. Hollimon arrived at the medical department at 3:38 p.m., seven minutes after he was removed from the cell. Cardiopulmonary resuscitation was attempted, but Hollimon did not respond and was pronounced dead. An autopsy disclosed that Hollimon died from asphyxiation, and Pierson and members of the move team wrote reports of the incident. TDCJ investigated the incident, and the Walker County District Attorney conducted a criminal investigation, but no charges were filed.

On June 12, 1998, four months after Hollimon's death, an attorney wrote to the warden of the Estelle Unit as follows:

I write this letter on behalf of the surviving daughter, and the personal representative of the Estate of Damon L. Hollimon. Ashley D. Hollimon, a minor, is the sole surviving child of Damon L. Hollimon. Linda Thomas, Ashley's mother, is the personal representative of the Estate of Damon L. Hollimon. Please see attached Affidavit of Personal Representative, Affidavit of Heirship, and Death Certificate of Damon L. Hollimon.

As evidenced by the Death Certificate, Mr. Hollimon died of asphyxiation on February 18, 1998, while an inmate at the Estelle Unit of the Texas Department of Corrections.

At this time, I request copies of medical records, investigative reports, and video tapes relating in any way to the death and the circumstances surrounding the death of Mr. Hollimon. If there is a charge for these documents, please advise.

On February 12, 1999, appellees³ sued TDCJ, its executive director, the warden of the Estelle Unit, and unnamed prison guards, asserting causes of action under the Texas Tort Claims Act,⁴ wrongful death and survival statutes,⁵ and section 1983⁶ for violations of civil rights. In an amended petition, appellees added UTMB, Pierson individually and in her capacity as nurse for UTMB, and nine employees of TDCJ. UTMB filed a plea to the jurisdiction, asserting sovereign immunity from suit for the wrongful death claim and arguing that appellees' claims against UTMB did not fall under the Texas Tort Claims Act. The trial court granted UTMB's plea and dismissed the claims against UTMB. Pierson filed a similar plea to the jurisdiction, which the court granted, and the claims against her in her official capacity were dismissed. Appellees filed a second amended petition in which they asserted only a section 1983 claim against Pierson individually and a claim under the Texas Tort Claims Act against TDCJ. TDCJ filed a plea to the jurisdiction asserting sovereign immunity and a motion for summary judgment asserting lack of notice. The trial court denied these motions. Pierson filed a motion to dismiss and motion for summary judgment, which the court also denied. This appeal followed.

DISCUSSION

TDCJ's Appeal: Notice

In September 2005, TDCJ filed a supplemental brief, asserting for the first time lack of notice as a jurisdictional bar to the suit. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993) ("Subject matter jurisdiction is an issue that may be raised for the first time on appeal; it may not be waived by the parties."). Therefore, we first consider TDCJ's notice issue. TDCJ asserts, "The absence of notice under Texas Civil Practice and Remedies Code § 101.101 divests the trial court of subject-matter jurisdiction." Section 101.101 provides as follows:

(a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:

(1) the damage or injury claimed;

(2) the time and place of the incident; and

(3) the incident.

....

(c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant's property has been damaged.

TEX. CIV. PRAC. & REM.CODE ANN. § 101.101 (Vernon 2005). Texas courts of appeals have been divided in determining what constitutes "actual notice" for the purpose of this statute and in how they treat the lack of notice. The supreme court settled the issue of what constitutes actual notice in Texas Department of Criminal Justice v. Simons, 140 S.W.3d 338 (Tex.2004). In that case, the court held "that actual notice under section 101.101(c) requires that a governmental unit have knowledge of the information it is entitled to be given under section 101.101(a) and a subjective awareness that its fault produced or contributed to the claimed injury." Id. at 348 (emphasis added). The court explained that the purpose of the statute is "to enable governmental units to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial." Id. at 347 (quoting Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995)). However, investigation of an incident alone is not enough to show that a governmental unit has actual knowledge of an injury. Id. "If a governmental unit is not subjectively aware of its fault, it does not have the same incentive to gather information that the statute is designed to provide, even when it would not be unreasonable to believe that the governmental unit was at fault." Id. at 347-48. The court recognized that, although "actual notice is a fact question when the evidence is disputed," it is, in many instances, a question of law. Id. at 348. The court also stated that subjective awareness may sometimes be proved by circumstantial evidence, but the subjective awareness must be actual subjective awareness of its fault. Id. (emphasis added).

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