Heirs of Bernardo Del Real to Wit: Carmen Del Real Herrera Lydia Del Real Selvera Rosalinda Del Real Gutierrez Refugio Del Real Manuel Del Real Jr. And John Del Real All Individually and on Behalf of Bernardo Del Real, and on Behalf of the v. Robert Eason

Opinion filed June 7, 2012

In The

Eleventh Court of Appeals
__________

No. 11-10-00151-CV
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HEIRS OF BERNARDO DEL REAL TO WIT: CARMEN DEL REAL
HERRERA; LYDIA DEL REAL SELVERA; ROSALINDA DEL REAL
GUTIERREZ; REFUGIO DEL REAL; MANUEL DEL REAL JR.; AND
JOHN DEL REAL ALL INDIVIDUALLY AND ON BEHALF OF
BERNARDO DEL REAL, DECEASED, AND ON BEHALF OF THE
ESTATE OF BERNARDO DEL REAL, Appellants

V.

ROBERT EASON, Appellee

On Appeal from the 259th District Court

Jones County, Texas

Trial Court Cause No. 022205

OPINION
Appellants alleged that they are heirs of Bernardo Del Real, deceased. They brought this
action pursuant to 42 U.S.C. § 1983,1 alleging that Del Real contracted a staph infection while a

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State courts have concurrent jurisdiction with federal courts to adjudicate Section 1983 claims. Haywood v. Drown,
556 U.S. 729, 735 (2009); Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 367 (1990).
prisoner at the Texas Department of Criminal Justice French Robertson Unit and that the
infection ultimately caused Del Real’s death. Appellee, Robert Eason, is the former senior
warden of the French Robertson Unit. Appellants alleged that appellee had acted with deliberate
indifference to Del Real’s serious medical needs and safety. Appellee filed no-evidence and
traditional motions for summary judgment. The trial court granted appellee’s motions and
entered a judgment that appellants take nothing by their suit against appellee. In this appeal,
appellants contend that the trial court erred by granting summary judgment to appellee. We
affirm.
Proceedings in Trial Court
In Cause Number 021958 in the trial court, appellants sued the State of Texas; the Texas
Department of Criminal Justice (TDCJ); and appellee, in his individual and official capacities.
Appellants alleged state law claims and federal claims against the defendants. Appellants’
federal claims against appellee were based on his alleged deliberate indifference to Del Real’s
serious medical needs and safety.
TDCJ filed a motion to dismiss appellants’ claims against appellee. In its motion, TDCJ
asserted that appellants’ claims against appellee should be dismissed under Section 101.106(e) of
the Texas Tort Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(e) (West 2011).
Appellee filed no-evidence and traditional motions for summary judgment relating to appellants’
federal claims under Section 1983. Appellee asserted, among other things, that there was no
evidence (1) that he had acted with deliberate indifference to Del Real’s medical needs or (2) that
he had been personally involved in any of the alleged deprivations of Del Real’s rights or
liberties under the U.S. Constitution. Appellants filed a response to TDCJ’s motion to dismiss
and appellee’s motions for summary judgment.
The trial court held a hearing on the motion to dismiss and the motions for summary
judgment. At the hearing, appellants agreed that their state law claims against appellee should be
dismissed. Following the hearing, the trial court entered an order dismissing appellants’ state
law claims against appellee. The trial court also entered a judgment in which it granted
appellee’s no-evidence and traditional motions for summary judgment. The trial court concluded
in the judgment “that there is no evidence that [appellee] violated the constitutional rights of the
deceased.” The trial court entered an order severing appellants’ claims against appellee from the
remainder of the claims in Cause Number 021958. Therefore, the trial court’s judgment

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disposing of appellants’ claims against appellee became final and appealable. The severed cause
was assigned Cause Number 022205.
In this appeal, appellants challenge the trial court’s granting of summary judgment to
appellee on their Section 1983 claims. They do not challenge the trial court’s dismissal of their
state law claims against appellee.
Issues on Appeal
In two appellate issues, appellants contend that the trial court erred by granting summary
judgment to appellee. In their first issue, appellants contend that appellee did not establish his
affirmative defense of qualified immunity as a matter of law. In their second issue, appellants
contend that a genuine issue of material fact exists as to whether appellee acted with deliberate
indifference to Del Real’s serious medical needs and safety.
Standard of Review
We will first review the trial court’s summary judgment under the no-evidence motion
for summary judgment standards set forth in Rule 166a(i) of the Rules of Civil Procedure.
TEX. R. CIV. P. 166a(i). When a no-evidence motion for summary judgment is filed, the burden
shifts to the nonmoving party to present evidence raising an issue of material fact as to the
elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
A trial court must grant a proper no-evidence motion for summary judgment unless the
nonmovant produces more than a scintilla of probative evidence to raise a genuine issue of
material fact on the challenged elements of the claim. Rule 166a(i); Ford Motor Co. v. Ridgway,
135 S.W.3d 598, 600 (Tex. 2004); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.
2002). We review a no-evidence summary judgment under the same standard as a directed
verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). We review the
evidence in the light most favorable to the party against whom the summary judgment was
rendered, crediting evidence favorable to that party if reasonable jurors could and disregarding
contrary evidence unless reasonable jurors could not. Tamez, 206 S.W.3d at 582; City of Keller
v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d
193, 208 (Tex. 2002). We may not consider any evidence presented by the movant unless it
creates a fact question. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).

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 Applicable Law
Section 1983 creates a private right of action to vindicate violations of rights, privileges,
and immunities secured by the Constitution and laws of the United States. Rehberg v. Paulk,
132 S.Ct. 1497, 1501 (2012). A prison official’s deliberate indifference to a substantial risk of
serious harm to a prisoner violates the Eighth Amendment’s prohibition against cruel and
unusual punishment. Farmer v. Brennan, 511 U.S. 825, 828 (1994); Estelle v. Gamble, 429 U.S.
97, 104 (1976). Deliberate indifference is an extremely high standard to meet. Gobert v.
Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). To establish deliberate indifference, a prisoner
must show that the prison official knew of and disregarded an excessive risk to the prisoner’s
health or safety. Farmer, 511 U.S. at 837. The prisoner must show both that the official was
aware of facts from which the inference could be drawn that a substantial risk of serious harm
existed and that the official actually drew the inference. Id.
Additionally, a Section 1983 claim cannot be premised on a respondeat superior theory.
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Thus, supervisors, such as prison wardens, are not
liable for subordinates’ actions on any vicarious liability theory. Oliver v. Scott, 276 F.3d 736,
742 (5th Cir. 2002); Thompkins v. Belt, 828 F.2d 298, 303–04 (5th Cir. 1987). A supervisor may
be held liable under Section 1983 if (1) he is personally involved in the constitutional
deprivation, (2) a sufficient causal connection exists between the supervisor’s wrongful conduct
and the constitutional deprivation, or (3) he implements a policy so deficient that the policy itself
is a repudiation of constitutional rights and is the moving force behind a constitutional
deprivation. Thompkins, 828 F.2d at 304.
Analysis
Appellants alleged that appellee acted with deliberate indifference to Del Real’s serious
medical needs and safety. Once appellee filed his no-evidence motion for summary judgment,
the burden shifted to appellants to present evidence raising an issue of material fact as to whether
appellee acted with deliberate indifference to Del Real’s serious medical needs or safety. Tamez,
206 S.W.3d at 582.
A review of the record shows that appellants did not present any competent summary
judgment evidence in response to appellee’s motions for summary judgment. Appellants filed
“Plaintiff’s Response to Warden Eason’s Motion(s) for Summary Judgment(s) and
Dismissal(s).” Appellants also filed a document that they entitled “Attachments and Exhibits for

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Plaintiff’s Response to Warden Eason’s Motion(s) for Summary Judgment(s) and Dismissal(s).”
In this document, appellants requested the trial court to take judicial notice of their “Attachments
1-13,” their Second Amended Petition, and “the additional Exhibits attached hereto.”
“Attachments 1-13” were not attached to the “Attachments and Exhibits” document. Instead,
“Attachments 1-13” were apparently attached to appellants’ original petition. “Attachments 1-
13” are not included in the appellate record. Appellants attached four exhibits to the
“Attachments and Exhibits” document. Appellants did not present any summary judgment
evidence authenticating or verifying their “Attachments 1-13” or exhibits.
Appellants did not file any affidavits in support of their response to appellee’s motions
for summary judgment. Appellants included a section entitled “Factual Excerpts” in their
“Attachments and Exhibits” document. In their “Factual Excerpts,” appellants cited some of
their “Attachments 1-13” and exhibits. The “Factual Excerpts” were not supported by affidavit
or other summary judgment proof.
Appellants’ pleadings and unauthenticated documents did not constitute competent
summary judgment evidence. Pleadings are not competent summary judgment evidence, even if
sworn or verified. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660
(Tex. 1995); Zeifman v. Nowlin, 322 S.W.3d 804, 808 (Tex. App.—Austin 2010, no pet.).
Unverified documents attached to pleadings are not proper summary judgment evidence. Rath v.
State, 788 S.W.2d 48, 50 (Tex. App.—Corpus Christi 1990, writ denied). Documents submitted
as summary judgment proof must be sworn to or certified. TEX. R. CIV. P. 166a(f); Llopa, Inc. v.
Nagel, 956 S.W.2d 82, 87 (Tex. App.—San Antonio 1997, writ denied). Thus, unauthenticated
or unsworn documents do not constitute competent summary judgment evidence. Kleven v. Tex.
Dep’t of Criminal Justice–I.D., 69 S.W.3d 341, 345 (Tex. App.—Texarkana 2002, no pet.);
Lopa, Inc., 956 S.W.2d at 87.
Appellants did not present any summary judgment evidence raising a genuine issue of
material fact as to whether appellee acted with deliberate indifference to Del Real’s serious
medical needs or safety. Therefore, appellants did not meet their summary judgment burden
under Rule 166a(i). Ridgway, 135 S.W.3d at 600. We note that appellants’ “Factual Excerpts”
and the exhibits to their “Attachments and Exhibits” document do not make any references to
appellee or his conduct. Thus, even assuming that the “Factual Excerpts” and exhibits were

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competent summary judgment evidence, appellants failed to raise a fact issue on whether
appellee acted with deliberate indifference to Del Real’s serious medical needs or safety.
Because appellants did not meet their burden under Rule 166a(i), the trial court did not
err in granting summary judgment in favor of appellee, and we need not consider whether
appellee satisfied his burden for obtaining a traditional summary judgment under TEX. R. CIV. P.
166a(c) on his qualified immunity defense. Appellants’ issues on appeal are overruled.
This Court’s Ruling
The trial court’s judgment is affirmed.

TERRY McCALL
JUSTICE

June 7, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.

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