In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00022-CV
REIDIE JACKSON, TDCJ #1164177, APPELLANT
V.
CAPTAIN VAUGHN, ET AL, APPELLEES
On Appeal from the 72nd District Court
Lubbock County, Texas
Trial Court No. 2012-500,295, Honorable Ruben Gonzales Reyes, Presiding
December 11, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Reidie Jackson, a Texas prison inmate appearing pro se and in forma
pauperis, brought suit under 42 U.S.C. § 1983 against prison employees of the Texas
Department of Criminal Justice. He appeals the trial court’s judgment dismissing his
suit pursuant to Chapter 14 of the Texas Civil Practice & Remedies Code.1 We will
reverse the trial court’s judgment and remand the cause.
1
TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001-.014 (West 2002 & Supp. 2014).
Background
Jackson’s original petition complained of the actions of a Captain Vaughn and a
Lieutenant Emsoff, and additional defendants whose names he did not then know, sued
as John Doe and Jane Doe defendants. The John and Jane Doe defendants were
members of a Montford Unit “use of force team.” The John Doe defendants forcibly
removed Jackson from his cell when he would not vacate it without the return of his
personal property. The Jane Doe defendant operated a camera recording the use-of-
force event. Jackson’s supplemental pleadings identified the members of the use of
force team as Nall, Ortega, Guzman, Martinez, and Honesto and the Jane Doe
defendant as Mayne.
Jackson complains that Vaughn, Emsoff, and team members violated his Eighth
Amendment right to be free from cruel and unusual punishment. The gist of his factual
allegations are that the male team members struck him in the ribs and face and “kneed”
him in the face, all while he was in restraints. Mayne operated a camera but did not
record the event, and Vaughn and Emsoff stood by and watched the event with
deliberate indifference to Jackson’s safety.
Vaughn and Emsoff filed a motion to dismiss under Chapter 14 of the Civil
Practice and Remedies Code alleging procedural and substantive defects in Jackson’s
pleadings. In November 2012, the trial court conducted a hearing on the motion to
dismiss. Jackson appeared in person.2 No testimonial or documentary evidence was
received but the court heard extensive argument. The court initially took the matter
2
See TEX. CIV. PRAC. & REM. CODE ANN. § 14.008 (West 2002) (court may hold a
hearing).
2
under advisement but subsequently granted the motion and signed a “Final Judgment”
disposing of all claims and all parties. Findings of fact and conclusions of law were
filed. The court found Jackson’s suit was not timely filed. It also found Jackson failed to
plead facts sufficient to allege an excessive use of force claim and show any personal
involvement by Vaughn and Emsoff. Finally, the court found Jackson did not sufficiently
allege facts rebutting the qualified immunity defense asserted by Vaughn and Emsoff.
Analysis
First Issue: Untimely Filed Petition
An action brought by an inmate in which an affidavit of inability to pay costs is
filed is governed by Chapter 14 of the Texas Civil Practice and Remedies Code. TEX.
CIV. PRAC. & REM. CODE ANN. § 14.002(a) (West Supp. 2014). We review a trial court’s
decision to dismiss an action under Chapter 14 for abuse of discretion. Brewer v.
Simental, 268 S.W.3d 763, 767 (Tex. App.—Waco 2008, no pet.).
By his first issue on appeal, Jackson argues that dismissing his lawsuit as
untimely filed was an abuse of discretion. On the record before us, we agree.
Jackson’s original petition bears the district clerk’s January 6, 2012, file stamp, a
date some six months beyond the statutory thirty-one day deadline.3 Jackson, however,
contended he timely filed suit through the prison mail system.
3
See TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(b) (West 2002) (“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”); Moreland v. Johnson,
95 S.W.3d 392, 395 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (“A suit that is not
3
Appended to the original petition are Jackson’s step 1 and step 2 offender
grievance forms. Jackson submitted the step 1 form in March 2011, alleging that prison
employees took his property and assaulted him. He received a response the following
month, and filed the step 2 grievance form on May 3, 2011. The step 2 form does not
indicate the date on which the response was returned to Jackson.
The unsworn declaration appended to Jackson’s original petition pursuant to Civil
Practice and Remedies Code § 14.005(a)(1) states he received the step 2 response on
May 29. The conclusions of law the trial court signed include the statement, “[Jackson]
filed his Step 2 grievance . . . on May 3, 2011, and received a decision from the
grievance system on May 26, 2011.” May 26 is the date the step 2 response was
signed by the prison official. The trial court thus apparently inferred the grievance form
was returned to Jackson the same day. Accepting the trial court’s conclusion, his suit
was subject to dismissal unless it was filed by June 27, 2011.4
At the hearing on the motion to dismiss, counsel for Vaughn and Emsoff argued
dismissal was required because Jackson’s original petition was untimely. Jackson
countered that his petition was timely filed when he placed it in the prison mail system
or a mailbox on the date his inmate trust account affidavit was notarized, June 23, 2011.
________________________
timely filed pursuant to section 14.005(b) is barred and may be dismissed with
prejudice”).
4
June 27, 2011 was a Monday. See TEX. GOV’T CODE ANN. § 311.014(b) (West
2013) (“If the last day of any period is a Saturday, Sunday, or legal holiday, the period is
extended to include the next day that is not a Saturday, Sunday, or legal holiday”).
4
The trial court, examining his petition, confirmed that the trust account affidavit was
notarized on that date.5
Vaughn and Emsoff acknowledge Jackson’s original petition was received by the
district clerk no later than July 1, 2011. On that date, the clerk sent a letter to Jackson
stating she would not accept his lawsuit for filing.6
Thereafter, Jackson twice petitioned this court for a writ of mandamus compelling
the district clerk to file his original petition.7 We dismissed both petitions on procedural
grounds, not reaching their merits. Jackson also sought mandamus relief from a
Lubbock County district court. His appellate brief contains, in the statement of facts for
his first issue, the statement, “Following the writ filed in the 99th District Court Appellant
received a letter from District Clerk Barbara Sucsy informing Appellant to resend his
original complaint for filing.” Appellees do not contradict the statement, and we accept it
5
The trust account statement does not appear in the clerk’s record as filed in this
court. The trial court’s statements at the motion hearing make clear, however, that the
court examined it on that occasion.
6
Although it is undisputed the district clerk sent such a letter dated July 1, 2011,
the letter does not appear in the record of this case. We take judicial notice, however,
of the contents of this court’s file in In re Jackson, No. 07-11-00439-CV, 2011 Tex. App.
LEXIS 8720 (Tex. App.—Amarillo, Nov. 2, 2011, orig. proceeding) (mem. op.). Jackson
filed the district clerk’s letter as a part of the mandamus record in that original
proceeding. The letter expresses the district clerk’s understanding that she was
precluded by a local rule of the district courts from opening a cause with John Doe or
Jane Doe defendants, and without a first name for Captain Vaughn.
7
In re Jackson, No. 07-11-00439-CV, 2011 Tex. App. LEXIS 8720 (Tex. App.—
Amarillo, Nov. 2, 2011, orig. proceeding) (mem. op.); In re Jackson, No. 07-11-00487-
CV, 2011 Tex. App. LEXIS 9939 (Tex. App.—Amarillo Dec. 16, 2011, orig. proceeding)
(per curiam, mem. op.).
5
as true. TEX. R. APP. P. 38.1(g).8 Consistent with the district clerk’s instruction to re-
send his original pleading, on the original petition Jackson filed in January 2012,
Jackson’s signatures on his petition, his declaration of previous filings 9 and his
declaration under section 14.005(a)(1) all are dated June 21, 2011.
Appellees argue Jackson’s contention is like that presented by the plaintiff in
Doyle v. Lucy, No. 14-03-00039-CV, 2004 Tex. App. LEXIS 2790 (Tex.App.—Houston
[14th Dist.] March 30, 2004, no pet.), who asserted the operation of section 14.005(b)
should be tolled in his case because he was misled by the sheriff’s and district clerk’s
offices about the location of filing. Id. at 11-12. We disagree with appellees’ argument.
Jackson is not contending he should be excused from the thirty-one-day deadline of
section 14.004(b). He contends he complied with it, by timely delivering his pleading
into the prison mail system.
Despite contrary statements in the findings and conclusions the trial court
signed,10 review of the entire record leaves us with doubts the trial court dismissed
Jackson’s suit because it was untimely filed. See Warner v. Glass, 135 S.W.3d 681,
684 (Tex. 2004) (per curiam) (“Therefore, a pro se inmate’s claim under section 14.004
8
Jackson’s statement is confirmed also by the copy of the letter, which appears
in the appendix to his appellant’s brief. The letter is dated December 16, 2011, is
addressed to him from the district clerk, references Jackson’s mandamus proceedings
in the district court and this court, and begins with the instruction, “Please re-send the
original petition for filing.”
9
See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004 (West Supp. 2014).
10
The findings and conclusions do not address the undisputed fact Jackson’s
original petition was received by the district clerk no later than July 1, 2011. The
findings and conclusions state merely that Jackson received a response to his step 2
grievance on May 26, 2011 and filed his petition on January 6, 2012.
6
of the Inmate Litigation Act is deemed filed at the time the prison authorities duly receive
the document to be mailed”). Appellees argued Jackson failed to meet the deadline, but
pointed to no evidence contradicting his declarations that he delivered his original
petition for mailing on June 23, 2011, the same day the prison official notarized his trust
account statement. Given that absence of contrary evidence and the persuasive
evidence supporting Jackson’s contention he delivered his pleading on June 23,
coupled with the undisputed presence of the pleading in the district clerk's hands no
later than July 1, to any extent the trial court’s order of dismissal depends on a
determination that Jackson did not timely file his suit, the order is an abuse of discretion.
We sustain Jackson’s first issue.
Substantive Claims: No Arguable Basis in Law
Fourth Issue
By his fourth issue Jackson challenges the trial court’s determination that his suit
had no arguable basis in law. In a conclusion of law, the trial court found Jackson’s
claims were frivolous because they lacked an arguable basis in law. TEX. CIV. PRAC. &
REM. CODE ANN. § 14.003(b)(2) (West 2002). Whether a claim has an arguable basis in
law is a legal question we review de novo. Hamilton v. Pechacek, 319 S.W.3d 801, 809
(Tex. App.—Fort Worth 2010, no pet.). In conducting our review, we take as true the
allegations of the inmate’s petition and review the types of relief and causes of action
set out therein. Id. That is, we review the inmate’s petition to determine whether, as a
matter of law, it states a cause of action authorizing relief. Id. A claim lacks an
7
arguable basis in law if it is an “indisputably meritless legal theory.” Id. Bearing in mind
these standards, we turn to Jackson’s relevant allegations of fact.
Jackson’s pleadings allege that on March 16, 2011, at a guard’s direction
Jackson packed his property and was transported from the Clements Unit, his place of
confinement, to the Montford Unit for a medical evaluation. Among the items Jackson
packed were affidavits he intended to use in seeking post-conviction relief. On arrival at
the Montford Unit, Jackson was separated from his property.
Jackson later told a guard he wished to refuse medical treatment and return to
his unit. He signed a written refusal of treatment. He complained to a guard that he
had not received his property or a receipt. Later in the day he demanded to speak with
a ranking officer. When this request was denied Jackson refused to surrender the
handcuffs that restrained him.
According to procedure, the guard notified an officer of Jackson’s refusal.
Vaughn and Emsoff responded. Vaughn assured Jackson his property would be on the
bus for the return trip to his unit. At that, Jackson relinquished the handcuffs and
remained confined in a cell. He continued to ask about a receipt for his property.
The following day Jackson refused preparation for the bus trip back to his unit.
Ranking officers were notified and preparations for forcing Jackson’s compliance began.
Vaughn and Emsoff again responded to the call. Jackson accused them of lying to him
the previous day about his property. They answered with “vulgar language.” Emsoff
told Jackson if he did not get on the bus “he would make sure the camera couldn’t see
while the team kicked [Jackson’s] ass.”
8
When the use-of-force team, a camera operator, and Vaughn and Emsoff arrived
at Jackson’s cell, he was wearing boxer shorts, socks, and Adidas shoes. He
barricaded the door with a mattress, then moved to the side and placed his hands in the
air in surrender. A team member pushed him to the floor. Jackson obeyed commands
to lie prone with his hands behind his back.
Jackson’s pleadings further allege that Vaughn and Emsoff watched as team
members placed mechanical restraints on Jackson. The team member holding
Jackson’s head kneed him in the face and three others punched his ribs and face. One
“sadistically and maliciously began punching [Jackson’s] face and mouth with a closed
fists (sic).” Another team member “holding [Jackson’s] head or shoulder pushed
extremely hard on his head trying to hold his head in place.” A team member twisted
Jackson’s left leg tearing away his shoe sole. Emsoff “smirked” as Jackson was taken
away. During transit back to his unit, Jackson noticed his dental plate was broken and
his face was swelling. Jackson also complained of chipped or cracked teeth and other
dental problems he attributed to the incident. Since the incident Jackson “has been
having progressively blurred vision.”
Excessive Use of Force and Bystander Liability
Section 1983 provides a cause of action against “every person who,” under color
of state law, “subjects, or causes to be subjected,” another person to a deprivation of a
federally protected right. 42 U.S.C. § 1983. Section 1983 does not create a substantive
right but provides a remedy for the rights it designates. Johnston v. Harris County Flood
Control Dist., 869 F.2d 1565, 1573 (5th Cir. 1989). A plaintiff in a 1983 case must first
9
identify a specific constitutionally protected right that was infringed. Kesler v. King, 29
F. Supp. 2d 356, 366 (S.D. Tex. 1998) (citing Graham v. Connor, 490 U.S. 386, 394,
109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)).
Jackson alleges a violation of his Eighth Amendment right to be free from cruel
and unusual punishments. The Eighth Amendment proscribes “the imposition of pain
totally without penalogical (sic) justification.” Evans v. Dugger, 908 F.2d 801, 803 (11th
Cir. 1990) (citations omitted). Instances of “physical abuse directed at [a] prisoner after
he terminates his resistance to authority would constitute an actionable eighth
amendment violation.” Hope v. Pelzer, 536 U.S. 730, 731, 122 S.Ct. 2508, 153 L.Ed.2d
666 (2002) (quoting Ort v. White, 813 F.2d 318, 324 (11th Cir. 1987)).
When an inmate brings an excessive force section 1983 claim against a prison
official individually, “the core judicial inquiry is . . . whether force was applied in a good-
faith effort to maintain or restore discipline, or maliciously and sadistically to cause
harm.” Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). An
Eighth Amendment excessive force claim against a prison official requires an inmate to
demonstrate whether subjectively the defendant acted with a sufficiently culpable state
of mind and objectively whether the force applied was harmful enough to amount to a
constitutional violation. Hudson, 503 U.S. at 8.
Additionally, an officer present at the scene who fails to take reasonable
measures to protect an inmate from another officer’s use of excessive force may incur
section 1983 liability. Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). Establishing
bystander liability requires a showing that an officer knows another officer is committing
10
a constitutional violation, has a reasonable opportunity to prevent the harm, and
chooses not to act. Kitchen v. Dallas County, 759 F.3d 468, 481 (5th Cir. 2014) (citing
Sanchez v. City of Chicago, 700 F.3d 919, 926 (7th Cir. 2012)). See Estate of Davis v.
Delo, 115 F.3d 1388, 1395 (8th Cir. 1997) (explaining “[a] prison official may be liable
for failure to protect an inmate from a use of excessive force if he is deliberately
indifferent to a substantial risk of serious harm to an inmate” and affirming the trial
court’s findings of liability by prison physical restraint team members who observed a
corrections officer apply excessive force to an inmate yet did nothing to protect the
inmate from the substantial risk of serious harm posed by the officer’s blows); Kesler v.
King, 29 F.Supp.2d 356, 369-72 (S.D.Tex. 1998) (citing DeShaney v. Winnebago
County Social Services Dept., 489 U.S. 189, 200, 109 S.Ct. 998, 103 L.Ed.2d 249
(1989)) (explaining “the duty to intercede is heightened in a prison setting, where the
state has restrained an individual’s liberty to such a degree that he can no longer care
for or protect himself”). Bystander liability may attach regardless of whether the directly-
responsible officer can be specifically identified. Kitchen, 759 F.3d at 481.
Jackson’s pleadings allege he was beaten by team members acting “maliciously
and sadistically” merely to cause him harm. Taking Jackson’s plead facts as true, as
we must, his pleadings sufficiently allege a section 1983 excessive force claim and a
bystander claim. Accordingly, the trial court abused its discretion by dismissing
Jackson’s suit against the defendants on the ground the suit lacked a basis in law.
11
Qualified Immunity
The trial court found Vaughn and Emsoff were “entitled to qualified immunity.” It
stated in a conclusion of law that Jackson had not “alleged facts sufficient to overcome
Defendants’ qualified immunity.”11
The affirmative defense of qualified immunity is available in a section 1983 claim
to a government official performing discretionary functions. Escobar v. Harris County,
442 S.W.3d 621, 629-30 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Gomez,
446 U.S. at 640). To prevail on the defense, the government official’s conduct must not
violate clearly established constitutional or statutory rights of which a reasonable person
would be aware. Padilla v. Mason, 169 S.W.3d 493, 502 (Tex. App.—El Paso 2005,
pet. denied); Scott v. Britton, 16 S.W.3d 173, 180 (Tex. App.—Houston [1st Dist.] 2000,
no pet.). A legal right is “clearly established” when the “contours of the right [are]
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97
L.Ed.2d 523 (1987); Hill v. Trinci, No. 14-10-00862-CV, 2012 Tex. App. LEXIS 5934, at
*9 (Tex. App.—Houston [14th Dist.] July 24, 2012, no pet.) (mem. op.).
11
In another conclusion of law the trial court stated Jackson was obligated “to
allege facts which show a waiver of qualified immunity.” We do not believe Jackson’s
pleading obligation included anticipating allegations of qualified immunity as an
affirmative defense. See Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64
L.Ed.2d 572 (1980). (explaining that because qualified immunity is a defense “[i]t is for
the official to claim that his conduct was justified by an objectively reasonable belief that
it was lawful. We see no basis for imposing on the plaintiff an obligation to anticipate
such a defense by stating in his complaint that the defendant acted in bad faith”). But
our analysis makes resolution of this question unnecessary.
12
Our review here concerns merely whether, as alleged, Jackson’s claims lack a
basis in law. The question whether further proceedings will confirm the truth of either
party’s contentions is beyond the scope of our review. This said, on March 17, 2011, it
was settled that the Eighth Amendment prohibited the kind of malicious and sadistic
application of force Jackson has alleged. To the extent the trial court based its
dismissal decision on the sufficiency of Jackson’s pleadings vis-à-vis the official
immunity claim of Vaughn and Emsoff, it abused its discretion.
Conclusion
We reverse the order of the trial court and remand the case for further
proceedings. See TEX. R. APP. P. 43.2(d).
James T. Campbell
Justice
13
Reidie Jackson, TDCJ 1164177 v. Captain Vaughn
Combined Opinion