Julio Perez, Jr. v. Texas Department of Criminal Justice

ACCEPTED
06-14-00065-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/22/2015 2:59:25 PM
DEBBIE AUTREY
CLERK

No. 06-14-00065-CV.

FILED IN
IN THE COURT OF APPEALS 6th COURT OF APPEALS
TEXARKANA, TEXAS
FOR THE SIXTH JUDICIAL DISTRICT OF TEXAS
1/27/2015 8:25:00 AM
TEXARKANA, TEXAS
DEBBIE AUTREY
Clerk

JULIO PEREZ, JR.,
Appellant,

v.

BRAD LIVINGSTON, SANTANA COOK, SHERRI DAVIS,
AND JAMES WESTON
DEFENDANTS / Appellees.

On Appeal from the 5TH JUDICIAL DISTRICT COURT
BOWIE COUNTY, TEXAS, HONORABLE JUDGE RALPH BURGESS
Trial Court Cause No. 13C1819005

APPELLEES’ BRIEF

KEN PAXTON JERRY S. BERGMAN
Attorney General of Texas Assistant Attorney General
State Bar No. 24081694
CHARLES E. ROY P.O. Box 12548
First Assistant Attorney Austin, Texas 78711
General [Tel.] (512) 463-2080
[Fax] (512) 495-9139
JAMES E. DAVIS
Deputy Attorney General
for Civil Litigation Attorneys for Appellees

KAREN MATLOCK *No Oral Argument Requested
Chief-Law Enforcement Defense
Division

i
 IDENTITIES OF PARTIES AND COUNSEL

Appellant
JULIO PEREZ, JR., TDCJ No.852734
TDCJ-TELFORD UNIT
3899 STATE HIGHWAY 98
NEW BOSTON, TX 75570
Appellant Pro Se

Defendants / Appellees
BRAD LIVINGSTON
P.O. BOX 99
Huntsville, TX 77342

SANTANA COOK
TDCJ-TELFORD Unit
3899 STATE HIGHWAY 98
NEW BOSTON, TX 75570

SHERRI DAVIS
TDCJ-TELFORD Unit
3899 STATE HIGHWAY 98
NEW BOSTON, TX 75570

JAMES WESTON
TDCJ-TELFORD Unit
3899 STATE HIGHWAY 98
NEW BOSTON, TX 75570

Attorney for Appellees’ Livingston, Cook, Davis and Weston
Jerry S. Bergman-Assistant Attorney General
Law Enforcement Defense Division
P.O. Box 12548
Wm. P. Clements, 7th Floor
Austin, Texas 78711-2548
Phone: 512-463-2080
Fax: 495-9139
Jerry.Bergman@texasattorneygeneral.gov

ii
 TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ......................................................................................................... ii
TABLE OF CONTENTS.................................................................................................................................... iii
INDEX OF AUTHORITIES ............................................................................................................................... iv
STATEMENT OF THE CASE ............................................................................................................................. 1
ISSUES PRESENTED........................................................................................................................................ 3
The sole issue to be decided is whether the trial court abused
its discretion in dismissing Appellant’s suit as frivolous and
for failure to comply with Chapter 14 of the Texas Civil
Practice & Remedies Code. .................................... 3
STATEMENT OF FACTS .................................................................................................................................. 3
SUMMARY OF THE ARGUMENT .................................................................................................................... 3
ARGUMENT ................................................................................................................................................... 4
1) The trial court did not abuse its discretion in dismissing
Appellant’s suit for failure to comply with Chapter 14. ...... 4
(a) Standard of review .................................................................................................................... 4
(b) The trial court did not abuse its discretion because Appellant failed to file his claim before
the 31st day after the date on which the inmate received a written response from the grievance
system. .................................................................................................................................................. 5
(c) The trial court did not abuse its discretion in dismissing Appellant’s suit pursuant to section
14.003, because Appellant made a false allegation of poverty. ........................................................... 7
(d) The trial court did not abuse its discretion because Appellant’s claims had no arguable basis
in law and were properly dismissed pursuant to section 14.003. ...................................................... 10
i) The trial court did not abuse its discretion dismissing
Appellant’s suit because his tort claim was barred by Franka........ 12
ii) The trial court did not abuse its discretion because
Appellant’s tort claim of gross negligence had no arguable basis
in law. ........................................................................................................................................ 13
iii) The trial court did not abuse its discretion because
Appellant’s failure to protect claim had no arguable basis in
law. 15
CONCLUSION AND PRAYER ......................................................................................................................... 18
NOTICE OF ELECTRONIC FILING .................................................................................................................. 19
CERTIFICATE OF COMPLIANCE .................................................................................................................... 20
CERTIFICATE OF SERVICE............................................................................................................................. 21

iii
 INDEX OF AUTHORITIES

CASES
Adams v. Perez,
331 F3d 508 (5th Cir. 2003). ................................ 22
Burnett v. Sharp,
328 S.W.3d 594(Tex. App.—Houston [14th Dist.] 2010, no pet.). 17
Carr v. Brasher,
776 S.W.2d 567(Tex. 1989)). ................................. 11
Charchere v. Salinas,
No. 13-97-036-CV, 1998 WL 35276221 at *1. ................... 23
Craddock v. Sunshine Bus Lines,
133 S.W.2d 124 (Tex. 1939). ............................. 10, 13
Domino v. Texas Dep=t of Criminal Justice,
239 F3d 752 (5th Cir. 2001); ................................ 23
Donaldson v. Tex. Dep’t of Criminal Justice-Corr. Insts. Div.,
355 S.W.3d 722 (Tex. App.—Tyler 2011, pet. denied ........... 15
Evans v. Tex. Dep’t of Crim. Justice-Inst’l Div.,
No. 01-07-00847, 2008 WL 2548986 at *4. ..................... 21
Farmer v. Brennan,
511 U.S. 825 (1994). ................................ 22, 23, 24
Hickson v. Moya,
926 S.W.2d 397 (Tex. App.—Waco 1996, no writ). .............. 10
La.-Pac. Corp. v. Andrade,
19 S.W.3d 245 (Tex.1999); ................................... 20
Leachman v. Dretke,
261 S.W.3d 911 (Tex. App.—Amarillo 2009, no pet.). ......... 21
Lee Lewis Constr., Inc. v. Harrison,
70 S.W.3d 778 (Tex.2001) ................................ 19, 20
Lewis v. Johnson,
97 S.W.3d 885 (Tex. App.—Corpus Christi 2003, no pet.) ...... 13
Lopez v. Serna,
414 S.W.3d 890 (Tex. App.—San Antonio 2013, no pet). ........ 19
McClain v. Terry,
320 S.W.3d 394 (Tex. App.—El Paso 2010, no pet.); ....... 14, 15
Mendoza v. Livingston,
No. 09-12-00594-CV, 2014 WL 670119 at 3-4 (mem. op). ........ 15
Mobil Oil Corp. v. Ellender,
968 S.W.2d 917 (Tex.1998). .................................. 19
Moncada v. Brown,
202 S.W.3d 794 (Tex. App. –San Antonio 2006, no pet.); ...... 21
iv
Neals v. Norwood,
59 F.3d 530 (5th Cir.1995); ............................. 22, 23
Reeves v. Collins,
27 F.3d 174 (5th Cir. 1994). ................................ 23
Smithson v. Cessna Aircraft Co.,
665 S.W.2d 439 (Tex. 1984); ............................. 10, 12
Terry v. Garcia,
800 S.W.2d 854, (Tex. App.-San Antonio 1990, writ denied). .. 20
Thompson v. Upshur County, TX,
245 F.3d 447 (5th Cir. 2001). ............................... 23
Vega v. Tex. Dep’t of Criminal Justice-Corr. Insts. Div.,
No. 12-10-00149-CV, 2011 WL 3273256 at 3 .................... 14
Walker v. Gonzales County Sheriff's Dep't.,
35 S.W.3d 157 (Tex. App.—Corpus Christi 2000, pet. denied 11, 16
Wolfe v. C.S.P.H., Inc.,
24 S.W.3d 641 (Tex. App.—Dallas 2000, no pet.) .......... 15, 18

STATUTES
Chapter 14 of the Texas Civil Practice & Remedies Code...... 8, 9
TEX. CIV. PRAC. & REM. CODE § 14.002. ............................ 10
TEX. CIV. PRAC. & REM. CODE § 14.003(a)(1). ...................... 13
TEX. CIV. PRAC. & REM. CODE § 14.003(a)(2 .................... 21, 24
TEX. CIV. PRAC. & REM. CODE § 14.003(a). ......................... 16
TEX. CIV. PRAC. & REM. CODE § 14.005(a) .......................... 13
TEX. CIV. PRAC. & REM. CODE § 14.005(b). ......................... 11
Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11)................. 20
TEX. CIV. PRAC. & REM. CODE, sections 14.001 ..................... 10
TEX. R. APP. P. 38.1(h) .................................... 15, 17
TEX. R. CIV. P. 145 (a) ........................................ 14

v
 No. 06-14-00065-CV.

IN THE COURT OF APPEALS
FOR THE SIXTH JUDICIAL DISTRICT OF TEXAS
TEXARKANA, TEXAS

JULIO PEREZ, JR.,
Appellant,

v.

BRAD LIVINGSTON, SANTANA COOK, SHERRI DAVIS,
AND JAMES WESTON
DEFENDANTS / Appellees.

APPELLEES’ BRIEF

TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:

Appellees’ Brad Livingston, Santana Cook, Sherri Davis

and James Weston submit this brief in support of the trial

court’s judgment dismissing this case. Appellees’

respectfully offer the following:

STATEMENT OF THE CASE

Julio Perez, Jr., Appellant pro se in the above- styled

cause, is an inmate currently housed in the Telford Unit of

the Texas Department of Criminal Justice (“TDCJ”) in New

Boston, Texas.

1
 On November 26, 2013, Appellant filed his Original

Petition, naming Brad Livingston (TDCJ), Santana Cook, Sherri

Davis, and James Weston, as Defendants in this matter in their

individual and official capacities. C.R. at 9. Appellant

alleged that Appellees were grossly negligent when they

failed to protect him from another inmate, in violation of

his Eighth Amendment rights. C.R. at 6-7. Appellant sought

compensatory damages. C.R. at 9.

On May 12, 2014, Appellees filed their original answer

and jury demand. C.R. at 28. Contemporaneously, Appellees

filed a motion to dismiss, identifying the defects in

Appellant’s pleadings and urging the court to dismiss the

suit pursuant to Chapter 14 of the Texas Civil Practice &

Remedies Code. C.R. at 33.

On July 2, 2014, the trial court signed the final

judgment, dismissing Appellant’s suit as frivolous and for

failure to comply with Chapter 14 of the Texas Civil Practice

& Remedies Code. C.R. at 74. Appellant filed his notice of

appeal with the trial court on July 23, 2014. C.R. at 76.

2
 ISSUES PRESENTED

The sole issue to be decided is whether the trial court
abused its discretion in dismissing Appellant’s suit as
frivolous and for failure to comply with Chapter 14 of the
Texas Civil Practice & Remedies Code.

STATEMENT OF FACTS

Appellant alleges that on June 21, 2013, another inmate

damaged his personal letters and “dashed” him with a

concoction of feces and urine. C.R. at 6. Appellant further

alleges that Appellees’ Cook, Davis and Weston were grossly

negligent because they failed to protect him from another

inmate, in violation of his Eighth Amendment rights. C.R. at

6-7.

On June 24, 2013, Appellant filed his Step 1 grievance

number 2013167969. C.R. at 14-15. On August 1, 2013,

Appellant filed his Step 2 grievance number 2013167969. C.R.

at 16-17. On November 25, 2013, Appellant’s mail was

postmarked for delivery. C.R. at 72. On November 26, 2013,

Appellant’s original petition was filed. C.R. at 4.

SUMMARY OF THE ARGUMENT

The record supports the trial court’s judgment in

dismissing Appellant’s suit pursuant to Chapter 14 of the

3
Texas Civil Practice & Remedies Code. The trial court did not

abuse its discretion and the dismissal should be affirmed.

ARGUMENT

1) The trial court did not abuse its discretion in
dismissing Appellant’s suit for failure to comply with
Chapter 14.

Appellant is an inmate who preceded pro se and filed a

declaration of inability to pay costs. C.R. at 23. Chapter

14, therefore, governed the suit in the trial court. TEX. CIV.

PRAC. & REM. CODE § 14.002.

(a) Standard of review

Appellant’s suit was properly dismissed for failure to

comply with the mandatory requirements of Chapter 14. TEX.

CIV. PRAC. & REM. CODE, sections 14.001, et. seq. In Appellant’s

brief he argues that he timely filed his original petition.

An appellate court should review the dismissal of a suit

pursuant to Chapter 14 for an abuse of discretion. Hickson v.

Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ). An

abuse of discretion is found where a court acts without

reference to guiding principles. Smithson v. Cessna Aircraft

Co., 665 S.W.2d 439, 443 (Tex. 1984); Craddock v. Sunshine

Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939). Because the trial

court did not specify the grounds for dismissal, C.R. at 73-
4
74, the appellate court should affirm the decision if any

theory is meritorious. Walker v. Gonzales County Sheriff's

Dep't., 35 S.W.3d 157, 162 (Tex. App.—Corpus Christi 2000,

pet. denied)(citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.

1989)).

(b) The trial court did not abuse its discretion because
Appellant failed to file his claim before the 31st
day after the date on which the inmate received a
written response from the grievance system.

Section 14.005(b) states that “[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.” TEX. CIV. PRAC. & REM. CODE

§ 14.005(b). Appellant filed

On June 24, 2013, Appellant filed his Step 1 grievance

number 2013167969. C.R. at 14-15. On August 1, 2013,

Appellant filed his Step 2 grievance number 2013167969. C.R.

at 16-17. On November 25, 2013, Appellant placed his original

petition in the mail. C.R. at 72. On November 26, 2013,

Appellant’s original petition was filed. C.R. at 4.

An inmate’s 31-day deadline begins on the date he

receives the Step Two response back from the grievance

investigator. TEX. CIV. PRAC. & REM. CODE § 14.005(b). In its

5
decision to dismiss Appellant’s suit, the trial court

examined Appellant’s claims under the guiding principles of

Chapter 14 by determining the date Appellant received his

step 2 response, the required filing date under section

14.005(b), the date that Appellant mailed his petition and

the date that Appellant’s petition was filed. C.R. at 72.

The trial court explained that Appellant could have

received his step 2 response either on October 9, 2013, based

on the last date of the step 2 grievance, C.R. at 17, or

Appellant could have received his step 2 response on October

23, 2013, based on Appellant’s unsworn declaration. C.R. at

11. Next, the trial court stated that Appellant’s petition

was filed on November 26, 2013; however, the trial court would

consider November 25, 2013, the date Appellant placed his

petition in the mail, as the date upon which time began to

run. C.R. at 72. Thus, the time period the trial court looked

at was from October 23, 2013 to November 25, 2013. As such,

the trial court determined that Appellant still did not meet

the requirement set forth in § 14.005(b). Id.

In making its decision the trial court followed the

guiding principles of Chapter 14. Smithson v. Cessna Aircraft

Co., 665 S.W.2d 439, 443 (Tex. 1984); Craddock v. Sunshine
6
Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939). The provision of

section 14.005(b) is mandatory and requires a trial court to

dismiss an inmate’s claim for failure to comply with the

deadline. TEX. CIV. PRAC. & REM. CODE § 14.005(a); see also Lewis

v. Johnson, 97 S.W.3d 885, 887–88 (Tex. App.—Corpus Christi

2003, no pet.) (recognizing the mandatory language in section

14.005(b)).

Because Appellant failed to file his claim before the

31st day after the date he received the written decision to

his Step Two grievance, the trial court did not abuse its

discretion in dismissing Appellant’s suit as untimely.

(c) The trial court did not abuse its discretion in
dismissing Appellant’s suit pursuant to section
14.003, because Appellant made a false allegation
of poverty.

In Appellees’ motion to dismiss, they argued that

Section 14.003 states that a “court may dismiss a claim,

either before or after service of process, if the court finds

that . . . the allegation of poverty in the affidavit or

unsworn declaration is false.” TEX. CIV. PRAC. & REM. CODE §

14.003(a) (1).

Texas Rule of Civil Procedure 145 defines a “party who

is unable to afford costs” as a person who either (1)

7
presently receives governmental entitlement based on

indigency, or (2) “any other person who has no ability to pay

costs.” TEX. R. CIV. P. 145 (a). The courts have held: “An

inmate who has funds in his trust account is not indigent.”

McClain v. Terry, 320 S.W.3d 394, 397 (Tex. App.—El Paso 2010,

no pet.); Vega v. Tex. Dep’t of Criminal Justice-Corr. Insts.

Div., No. 12-10-00149-CV, 2011 WL 3273256 at 3. “Generally,

the test for determining entitlement to proceed in forma

pauperis is whether the preponderance of the evidence shows

that the [plaintiff] would be unable to pay the costs of his

suit if he wanted to and made a good faith effort to do so.

Vega, 2011 WL 3273256 at 3. In other words, the in forma

pauperis regime in Texas looks to an inmate’s subjective good

faith effort to pay his court costs, and the court does not

abuse its discretion in dismissing a suit where it finds the

allegation of poverty to be false. Id.

In his brief, Appellant did not offer any argument that

his allegation of poverty was not false. See generally

Appellant’s Brief. Appellant has therefore waived this issue.

The failure to adequately brief an issue, either by failing

to specifically argue and analyze one's position or to provide

authorities and record citations, waives any error on appeal.
8
See TEX. R. APP. P. 38.1(h) (brief must contain clear and

concise argument for contentions with appropriate citations

to authorities and record); Wolfe v. C.S.P.H., Inc., 24 S.W.3d

641, 646-47 (Tex. App.—Dallas 2000, no pet.)(appellant waives

issues if he fails to support contentions with appropriate

authority).

In any event, Appellant’s unsworn declaration of poverty

was false. Appellant filed an unsworn declaration stating he

is unable to pay the filing fees or any costs incurred

thereafter, and filed a certified copy of his inmate trust

account. C.R. at 23. Appellant’s trust account statement

shows that he previously had a high balance of $62.00 from

July-October 2013, $92.00 in June 2013, and $42.00 in May

2013. C.R. at 24. There is authority finding if an inmate

has funds in his inmate trust account, he is not indigent for

Chapter Fourteen purposes, and his allegation of poverty is

false. See McClain v. Terry, 320 S.W.3d 394 (Tex. App.—El

Paso 2010, no pet.); Donaldson v. Tex. Dep’t of Criminal

Justice-Corr. Insts. Div., 355 S.W.3d 722 (Tex. App.—Tyler

2011, pet. denied); Mendoza v. Livingston, No. 09-12-00594-

CV, 2014 WL 670119 at 3-4 (mem. op).

9
 Appellant’s balance for his trust account over the

preceding six (6) months shows that he had a source of income

and is not indigent. McClain, 320 S.W.3d at 397. Had

Appellant “wanted” to make a good faith effort to pay the

cost of his suit, he could have done so.

Because the trial court did not specify the grounds for

dismissal, C.R. at 73-74, this Court should affirm the

decision because Appellant’s declaration of poverty was

false. Walker v. Gonzales County Sheriff's Dep't., 35 S.W.3d

157, 162 (Tex. App.—Corpus Christi 2000, pet. denied)(citing

Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989)). Therefore,

the trial court did not abuse its discretion in dismissing

Appellant’s suit pursuant to section 14.003.

(d) The trial court did not abuse its discretion because
Appellant’s claims had no arguable basis in law and
were properly dismissed pursuant to section 14.003.

In Appellees’ motion to dismiss, they argued that Section

14.003 permits a court to dismiss a claim, either before or

after service of process, if the court finds the claim

frivolous or malicious. TEX. CIV. PRAC. & REM. CODE § 14.003(a).

In so finding, the court may rely upon the following statutory

factors: the claim’s ultimate chance of success; whether the

claim has an arguable basis in law; whether it is clear that
10
the party cannot prove facts in support of the claim; or

whether the claim is substantially similar to a previous claim

filed by the petitioner because it arises from the same

operative facts. “A claim has no arguable basis in law if it

is [based on] an indisputably meritless legal theory.”

Burnett v. Sharp, 328 S.W.3d 594, 604 (Tex. App.—Houston [14th

Dist.] 2010, no pet.). Finally, a court does not abuse its

discretion by dismissing an inmate’s suit based upon a finding

that an inmate failed to state a cause of action for which

relief can be granted. Because the trial court followed these

statutory guidelines in dismissing Appellant’s claims, there

was no abuse of discretion.

In his brief, Appellant did not offer any argument that

his claims were not frivolous or that they were not based on

an indisputably meritless legal theory. See generally

Appellant’s Brief. Appellant has therefore waived this issue.

The failure to adequately brief an issue, either by failing

to specifically argue and analyze one's position or to provide

authorities and record citations, waives any error on appeal.

See TEX. R. APP. P. 38.1(h) (brief must contain clear and

concise argument for contentions with appropriate citations

to authorities and record); Wolfe, 24 S.W.3d at 646-47. Even
11
if he had briefed the issue, the trial court did not abuse

its discretion in concluding that his claims were frivolous

as discussed below.

i) The trial court did not abuse its discretion
dismissing Appellant’s suit because his tort
claim was barred by Franka.

The Texas Supreme Court’s interpretation of the Texas

Tort Claims Act (“TTCA”) forecloses any state tort claim

brought by Plaintiff in this case. Tex. Civ. Prac. & Rem.

Code at § 101.001 et seq; Franka v. Velasquez, 332 S.W.3d 367

(Tex. 2011). In Franka, the Texas Supreme Court explained

that section 101.106(f) was intended to “foreclose suit

against a government employee in his individual capacity.”

Franka, 332 S.W.3d at 381. The Court reasoned that denying

an avenue of recovery for plaintiffs is exactly what the

Legislature intended because in waiving governmental immunity

for the governmental unit, “the Legislature correspondingly

sought to discourage or prevent recovery against an

employee.” Id. at 384. Under the Franka rule, all tort claims,

including intentional torts, “could have been brought”

against the governmental unit, regardless of whether the

governmental unit's immunity from suit is expressly waived by

the TTCA for those claims. Id. at 385.
12
 Tort claims are subject to the TTCA, as interpreted by

Franka. See Lopez v. Serna, 414 S.W.3d 890, 893-94 (Tex. App.—

San Antonio 2013, no pet). Therefore, Appellant’s claim of

gross negligence was subject to the TTCA, immunity barred

suit against TDCJ defendants, and the trial court did not

abuse its discretion in dismissing Appellant’s suit pursuant

to section 14.003.

ii) The trial court did not abuse its discretion
because Appellant’s tort claim of gross
negligence had no arguable basis in law.

Appellant alleged that Appellees’ Cook, Davis and Weston

were grossly negligent when they failed to protect him when

another inmate destroyed his personal letters and “dashed”

him with a concoction of feces and urine. As Appellees’

stated in the court below, to successfully allege gross

negligence a litigant’s claim must consist of two elements:

“extreme risk” and “actual awareness.” Lee Lewis Constr.,

Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex.2001); Mobil Oil

Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998). To support

a finding of gross negligence, a party must show that, (1)

viewed objectively from the actor's standpoint, the act or

omission complained of must involve an extreme degree of risk,

considering the probability and magnitude of the potential
13
harm to others; and (2) the actor must have actual, subjective

awareness of the risk involved, but nevertheless proceed in

conscious indifference to the rights, safety, or welfare of

others. Lee Lewis Constr., Inc., 70 S.W.3d at 785 (emphasis

added); Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11) (West

2008). “[I]n other words, the plaintiff must show that the

defendant knew about the peril, but his acts or omissions

demonstrate that he did not care.” La.-Pac. Corp. v. Andrade,

19 S.W.3d 245, 246–47 (Tex.1999); accord Terry v. Garcia, 800

S.W.2d 854, 856 (Tex. App.-San Antonio 1990, writ denied).

Appellant did not plead facts on which a court could

infer that there was an “extreme risk” of harm, and that

Appellees Cook, Davis and Weston had an “actual awareness” of

that harm. Appellant claimed that another inmate damaged

some of his property during a “dashing”, alleging that

Defendants Clark, Davis and Weston, witnessed the incident

and were grossly negligent in protecting him. C.R. 6-7.

However, pursuant to the Unit Grievance Investigator response

to Step 1 Grievance 2013167969, security staff were

questioned regarding the alleged “dashing” incident, and all

officers stated that “they did not witness offender Moreno

dash anything” and Plaintiff provided no evidence to
14
substantiate his claim. C.R. at 15. Appellant was unable to

prove that Appellees’ Cook, Davis and Weston had “subjective

awareness” of an “actual risk”, viewed objectively from the

officer’s standpoints at the time of the incident. Moncada v.

Brown, 202 S.W.3d 794, 802-03 (Tex. App. –San Antonio 2006,

no pet.); Evans v. Tex. Dep’t of Crim. Justice-Inst’l Div.,

No. 01-07-00847, 2008 WL 2548986 at *4. Outside of

Appellant’s speculative allegations he could not state that

there was an “extreme risk” and that Appellees Cook, Davis

and Weston knew anything about it.

On this basis, the trial court did not abuse its

discretion in dismissing Appellant’s gross negligence claim

because it had no arguable basis in law. TEX. CIV. PRAC. & REM.

CODE § 14.003(a)(2); see also Leachman v. Dretke, 261 S.W.3d

911, 913 (Tex. App.—Amarillo 2009, no pet.).

iii) The trial court did not abuse its discretion
because Appellant’s failure to protect claim
had no arguable basis in law.

Appellant alleged that Appellees’ Cook, Davis and Weston

failed to protect him when another inmate destroyed his

personal letters and “dashed” him with a concoction of feces

and urine. As Appellees’ stated in the court below, to

successfully allege failure to protect a litigant’s claim
15
must show that he was “incarcerated under conditions posing

a substantial risk of serious harm and that prison officials

were deliberately indifferent to his need for protection.”

Neals v. Norwood, 59 F.3d 530, 533 (5th Cir.1995); Adams v.

Perez, 331 F3d 508, 512 (5th Cir. 2003). Prison officials

are not liable for failure to protect if (1) Athey were unaware

of even an obvious risk to inmate health or safety,@ (2) Athey

did not know of the underlying facts indicating a sufficiently

substantial danger,@ (3) Athey knew of the underlying facts

but believed (albeit unsoundly) that the risk to which the

facts gave rise was insubstantial or nonexistent,@ or (4)

Athey knew of a substantial risk to inmate health or safety .

. . [and] responded reasonably to the danger, even if the

harm was not ultimately averted.@ Farmer v. Brennan, 511 U.S.

825, 844-45 (1994).

To prove the deliberate indifference element of failure

to protect requires a showing of “subjective recklessness” as

used in criminal law; under this standard, the prison

“official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference.” Farmer, 511 U.S. at 835-

38; see also Reeves v. Collins, 27 F.3d 174, 175 (5th Cir.
16
1994). Deliberate indifference is an extremely high standard

to meet; it Acannot be inferred merely from a negligent or

even grossly negligent response to a substantial risk of

serious harm.” Domino v. Texas Dep=t of Criminal Justice, 239

F3d 752, 756 (5th Cir. 2001); Thompson v. Upshur County, TX,

245 F.3d 447, 459 (5th Cir. 2001).

Appellant did not plead facts on which a court could

infer that Appellant was “incarcerated under conditions

posing a substantial risk of serious harm and that prison

officials were deliberately indifferent to his need for

protection.” Neals, 59 F.3d at 533; Adams, 331 F3d at 512.

Prison officials are not expected to prevent all inmate-on-

inmate violence. Adames, 331 F.3d at 512. Prison officials

are not liable for failure to protect if Athey were unaware

of even an obvious risk to inmate health or safety,@ Farmer

511 U.S. at 844-45. Furthermore, where the attack is “sudden

and unexpected”, as is the case here, there is no evidence to

support a finding of failure to protect. Charchere v. Salinas,

No. 13-97-036-CV, 1998 WL 35276221 at *1.

Appellant asserted that the alleged “dashing” incident

was witnessed by Defendants Cook, Davis and Weston; however,

pursuant to the UGI response, they stated that they “did not
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witness offender Moreno dash anything”. C.R. at 15. In other

words, they were unaware of an obvious risk to inmate health

or safety. Farmer, 511 U.S. at 844-45. Appellant could not

support his speculative allegations with any evidence that

proves Appellees Cook, Davis and Weston had any knowledge

that Appellant was going to be “dashed”, or that he had been

“dashed”; therefore, they could not possibly have inferred

that he was at substantial risk of harm.

Accordingly, the trial court did not abuse its

discretion in dismissing Appellant’s failure to protect claim

because it had no arguable basis in law. TEX. CIV. PRAC. & REM.

CODE § 14.003(a)(2)

CONCLUSION AND PRAYER

The trial court acted with reference to guiding law and

principles as discussed above. The trial court’s dismissal

pursuant to Chapter 14 of the Texas Civil Practice & Remedies

Code was not an abuse of discretion. Appellees pray that this

Honorable Court affirm the final judgment issued in the court

below.

Respectfully Submitted,

KEN PAXTON
Attorney General of Texas

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 CHARLES E. ROY
First Assistant Attorney General

JAMES E. DAVIS
Deputy Attorney General for
Civil Litigation

KAREN D. MATLOCK
Chief, Law Enforcement Defense
Division

/s/ JERRY S. BERGMAN
JERRY S. BERGMAN
Assistant Attorney General
State Bar No.24081694

Law Enforcement Defense Division
P. O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 463-2080 / Fax No. (512)
495-9139

Attorneys for Appellees

NOTICE OF ELECTRONIC FILING

I, JERRY S. BERGMAN, Assistant Attorney General of Texas,

certify that I have electronically submitted for filing a

copy of the foregoing in accordance with the electronic filing

system for the Sixth Court of Appeals on January 22, 2015.

/s/ JERRY S. BERGMAN
JERRY S. BERGMAN
Assistant Attorney General

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 CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of

Tex. R. App. P. 9.4(e) because it has been prepared in a

conventional typeface no smaller than 14-point for text and

12-point for footnotes. This document also complies with the

word-count limitations of Tex. R. App. P. 9.4(i), if

applicable, because it contains 4,729 words, excluding any

parts exempted by Tex. R. App. P. 9.4(i)(1).

/s/ JERRY S. BERGMAN
JERRY S. BERGMAN
Assistant Attorney General

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 CERTIFICATE OF SERVICE

I hereby certify that on January 22, 2015, a true and
correct copy of the foregoing document was served via the
Court’s ECF system to all counsel of record by placing it in
the United States Mail, postage prepaid, addressed to:
Julio Perez, TDCJ No. 852734
TDCJ – Barry S. Telford Unit
3899 State Highway 98
New Boston, TX 75570
Plaintiff Pro Se
/s/ JERRY S. BERGMAN
JERRY S. BERGMAN
Assistant Attorney General

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