Van Lee Brewer v. Jason Simental ( 2008 )

IN THE
TENTH COURT OF APPEALS
No. 10-07-00094-CV
VAN LEE BREWER,
Appellant
v.
JASON A. SIMENTAL, GORDON TOWNSEND,
CARL DAVIS, DAVID DUKE, JANET C. TAYLOR,
LINDSAY LEWIS, ROBERT LOSACK,
AND JOHN D. SEIGLE,
Appellees
From the 278th District Court
Walker County, Texas
Trial Court No. 23325
OPINION
Van Brewer, a prison inmate at the Wynne Unit in Huntsville, is appealing the
trial court’s dismissal order of his section 1983 civil-rights suit against eight Texas
Department of Criminal Justice—Institutional Division employees: Jason A. Simental,
Gordon Townsend, Carl Davis, David Duke, Janet C. Taylor, Lindsay Lewis, Robert
Losack, and John D. Seigle. We will reverse and remand.
Factual Background
Brewer’s claims center around the alleged misconduct of Simental, a correctional
lieutenant in the Wynne Unit’s Administrative Segregation (Ad. Seg.) unit at the time.
According to Brewer’s petition, in October of 2005, Brewer was involved pro se in civil
litigation pending before the Texas Supreme Court with a pending October 14 deadline
that necessitated access to the prison’s law library. Brewer was assigned work hours of
1:00 to 9:00 p.m. on a utility squad, so he was requesting and being granted law library
official passes (internally called “lay-ins”) from 5:50 a.m. to 7:55 a.m. and 9:00 a.m. to
11:00 a.m. The law library staff could not issue lay-ins for times when an inmate was
scheduled to be working, and the staff checked Brewer’s assigned work hours on a
computer before issuing his lay-ins.
The gist of Brewer’s claim is that Simental unilaterally and without authority
(including no official work duty reassignment) assigned Brewer to work utility in Ad.
Seg. at 5:00 a.m. to keep Brewer out of the law library. When Brewer did not report
because he had a law library lay-in (and also because he had been removed from
working in Ad. Seg. because of an altercation with an Ad. Seg. inmate in 2002),
Simental, individually and at times with corrections sergeant Gordon Townsend and
corrections officers Carl Davis or David Duke, removed Brewer numerous times from
the law library and assigned him to his cell for not reporting to work in Ad. Seg. at 5:00
a.m. In response, Brewer filed grievances against them for not allowing him law library
access and violating TDCJ’s Access-to-Court Policy. Simental, Davis, and Duke
retaliated by filing several disciplinary charges against Brewer, and Brewer filed more
Brewer v. Simental Page 2
grievances for their filing false disciplinary charges.
Brewer alleges that Janet C. Taylor (an administrative assistant), Lindsay Lewis (a
grievance investigator), Robert Losack (corrections captain and disciplinary hearing
officer), and John D. Seigle (corrections sergeant and law library supervisor) conspired
in one way or another with Simental. With Taylor, Simental had Brewer’s work
assignment changed ex post facto on the computer to validate Simental’s actions. With
Seigle, Simental had Brewer’s law library access taken away. With Lewis and Losack,
Simental had Brewer’s Ad. Seg. restriction removed, had Brewer’s grievances denied,
and had Brewer disciplined. Brewer was disciplined with several thirty-days’
commissary restrictions, thirty-days’ cell restrictions, loss of contact visitation, a forty-
five days’ property restriction, and line class reductions.
Procedural Background
With the filing of his section 1983 lawsuit on January 24, 2006, Brewer included
his affidavit of indigence with trust fund statement, affidavit relating to previous
filings, affidavit of grievances, and first supplemental affidavit of grievances. The next
day, the clerk issued a bill of costs totaling $1,021.00 for the filing, citation, and service
fees, and the trial court ordered the clerk to assess them against Brewer in accordance
with Government Code section 498.0045 and Civil Practice and Remedies Code section
14.006. The trial court also ordered payments of those costs from Brewer’s inmate trust
account in accordance with section 14.006(b). Finally, the trial court ordered the clerk to
send a copy of all of Brewer’s filings to the Attorney General’s office for a review and a
response on Brewer’s compliance with Chapter 14 of the Civil Practice and Remedies
Brewer v. Simental Page 3
Code and for obtaining authority to represent and to answer on behalf of the
defendants. Brewer filed a second supplemental affidavit of grievances on February 9.
The defendants filed a motion to dismiss under Chapter 14, asserting: (1) Brewer
failed to comply with section 14.005 and Government Code section 551.008 relating to
the exhaustion and filing of administrative grievances; and (2) Brewer’s claims are
frivolous or malicious. The trial court found that Brewer’s petition was frivolous and
did not comply with Chapter 14 and dismissed the suit with prejudice. Raising three
issues, Brewer appeals.
Application of Section 14.002
A prison inmate who files suit in a Texas state court pro se and who seeks to
proceed in forma pauperis must comply with the procedural requirements set forth in
Chapter 14 of the Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN.
§§ 14.002(a), 14.004, 14.005 (Vernon 2002). Failure to fulfill those procedural
requirements will result in dismissal of an inmate’s suit. See Bell v. Texas Dep’t of Crim.
Justice-Inst. Div., 962 S.W.2d 156, 158 (Tex. App.—Houston [14th Dist.] 1998, pet.
denied).
Brewer’s first issue complains about the facial unconstitutionality of Chapter 14.
He asserts that, despite his invocation of Chapter 14 by his filing an affidavit of
indigence, once the trial court assessed costs and ordered their payment out of his
inmate trust account, the continued application of Chapter 14 violates equal protection
and is thus unconstitutional because his suit is treated differently than the suit of a non-
indigent inmate who paid costs of suit in advance and thus would not be governed by
Brewer v. Simental Page 4
Chapter 14).
Constitutional violations must be raised in the trial court to be preserved for
appellate review. In re S.A.P., 169 S.W.3d 685, 692 (Tex. App.—Waco 2005, no pet.)
(citing In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003)). Because Brewer did not raise his
equal protection argument in the trial court, he has not preserved his first issue for
appellate review. TEX. R. APP. P. 33.1(a).
Chapter 14 Dismissal
Generally, the dismissal of inmate litigation under Chapter 14 is reviewed for
abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no
writ). “To establish an abuse of discretion, an appellant must show the trial court’s
actions were arbitrary or unreasonable in light of all the circumstances. The standard is
clarified by asking whether the trial court acted without reference to any guiding rules
or principles.” Spurlock v. Schroedter, 88 S.W.3d 733, 735-36 (Tex. App.—Corpus Christi
2002, no pet.) (internal citations omitted).
Affidavits Relating to the Grievance System
Section 14.005(a) mandates that an inmate who files a claim that is subject to the
TDCJ grievance system file an affidavit or unsworn declaration stating the date that his
grievance was filed and the date that he received the written grievance decision. TEX.
CIV. PRAC. & REM. CODE ANN. § 14.005(a)(1). The section also mandates the filing of a
copy of the written grievance decision. Id. § 14.005(a)(2). If an inmate does not strictly
comply with section 14.005(a), a trial court does not abuse its discretion in dismissing
the claim. Draughon v. Cockrell, 112 S.W.3d 775, 776 (Tex. App.—Beaumont 2003, no
Brewer v. Simental Page 5
pet.). Brewer’s second issue complains that the trial court abused its discretion for
dismissing his suit because of noncompliance with section 14.005(a).
Brewer filed an original affidavit of grievances and a supplemental affidavit of
grievances with his original petition, and Brewer filed a second supplemental affidavit
of grievances two weeks later. In their motion to dismiss, the defendants asserted: (1)
Brewer’s attached grievances refer to retaliation claims against only Simental and
Townsend; (2) a copy of the grievance against Simental and Townsend was not
included; and (3) Brewer did not grieve against Seigle. For these reasons, the
defendants contended that Brewer did not comply with section 14.005 and Brewer did
not exhaust his administrative remedies.
Brewer filed six detailed grievances pertaining to his claims in this case, as shown
by Brewer’s original affidavit of grievances and his two supplemental affidavits of
grievances. The two supplemental affidavits were necessitated by the prison’s need for
extensions to investigate two of the grievances (including Brewer’s second (October 19)
grievance against Simental and Townsend) and to replace the prison’s notices of
extension with the grievances upon Brewer’s receipt. On appeal, defendants in effect
concede that Brewer technically complied with section 14.005(a), and the record reflects
such compliance. Therefore, to the extent the trial court dismissed Brewer’s suit for
failure to comply with section 14.005, we find no grounds upon which the trial court
could have found a failure to comply, and we conclude that the trial court abused its
discretion. See Spurlock, 88 S.W.3d at 733.
The other aspect of the defendants’ contention goes to the substance of Brewer’s
Brewer v. Simental Page 6
grievances and the persons whom Brewer was grieving against.1 A remedy provided
by the statutory prison inmate grievance system is the exclusive administrative remedy
available to an inmate for a claim for relief against the department. TEX. GOV’T CODE
ANN. § 501.008(a) (Vernon 2004). “An inmate may not file a claim in state court regarding
operative facts for which the grievance system provides the exclusive administrative
remedy until: (1) the inmate receives a written decision issued by the highest authority
provided for in the grievance system; . . .” Id. § 501.008(d)(1) (emphasis added).
The purpose of sections 14.005 and 501.008 is to allow the trial court to ensure
that an inmate proceeding in forma pauperis has first used TDCJ’s grievance procedure
and has exhausted his administrative remedies through the prison grievance system
before filing suit on the same operative facts. See Spurlock, 88 S.W.3d at 737; Smith v.
Texas Dep’t of Crim. Justice-Inst. Div., 33 S.W.3d 338, 341 (Tex. App.—Texarkana 2000,
pet. denied). Other than reviewing a grievance to insure that the inmate’s claim arises
from the same operative facts set forth in the grievance, nothing in the grievance system
statutes supports the defendants’ contention that the trial court—or an appellate court
reviewing a trial court—can or should parse through an inmate’s grievance to
determine the nature of the inmate’s claims and whether a person is a proper party
based on the grievance’s content. Accord Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir.
1 The Fifth Circuit has summarized the TDCJ grievance guidelines for inmates:
The record in this case includes portions of the guidelines that TDCJ provides prisoners
regarding how to file grievances. Among other things, the rules direct inmates to write
“briefly and clearly” but also to “be very specific about your grievance or your problem.”
They state that a grievance should contain facts, not legal words or conclusions. They
further direct the prisoner to “[t]ell us what action you want us to take to resolve your
grievance or problem,” but they specifically state that a prisoner should “not ask us to
take disciplinary action against employees.”
Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004).
Brewer v. Simental Page 7
2004) (applying federal exhaustion statute) (“We are mindful that the primary purpose
of a grievance is to alert prison officials to a problem, not to provide personal notice to a
particular official that he may be sued; the grievance is not a summons and complaint
that initiates adversarial litigation. Cf. Brown[ v. Sikes, 212 F.3d 1205, 1207-10 (11th Cir.
2000)] (rejecting a rule that a prisoner must always name defendants in his grievance).
But, at the same time, the grievance must provide administrators with a fair
opportunity under the circumstances to address the problem that will later form the
basis of the suit, and for many types of problems this will often require, as a practical
matter, that the prisoner’s grievance identify individuals who are connected with the
problem.”).
We have reviewed Brewer’s grievances. They set forth the same operative facts
as his petition with great detail. They provide prison administrators with fair notice of
his allegations so that the alleged problem could have been addressed by them, and for
each grievance, no administrative response asserted a lack of specificity or inadequacy.
Therefore, to the extent the trial court dismissed Brewer’s suit based on the defendants’
grounds that the grievances did not adequately set forth the claims and parties as in this
suit, we find no grounds upon which the trial court could have could have concluded
that Brewer failed to comply with sections 14.005 and 501.008 in exhausting his
administrative remedies, and we conclude that the trial court abused its discretion. We
sustain Brewer’s second issue.
Frivolousness
The trial court’s dismissal order states that Brewer’s petition is frivolous.
Brewer v. Simental Page 8
Brewer’s third issue complains that the trial court’s dismissal for frivolousness is an
abuse of discretion.
Section 14.003 allows a trial court to dismiss a suit filed by an indigent inmate,
either before or after service of process, if the court finds that the claim is frivolous or
malicious. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2). In determining whether
the claim is frivolous or malicious, the trial court may consider whether (1) the claim’s
realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or
in fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the
claim is substantially similar to a previous claim filed by the inmate because the claim
arises from the same operative facts. Id. § 14.003(b).
Standard of Review
The Texas Supreme Court has expressed doubt about whether a
trial court can properly dismiss a suit only because the claim’s realistic
chance of ultimate success is slight or because it is clear that the party
cannot prove facts in support of the claim. Johnson v. Lynaugh, 796 S.W.2d
705, 706-07 (Tex. 1990). Practically speaking, therefore, the trial court is
limited to determining whether the claim has an arguable basis in law or
fact. Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d 113, 115 (Tex.
App.—Austin 1997, writ denied). When the trial court dismisses a claim
without conducting a fact hearing, we are limited to reviewing whether
the claim had an arguable basis in law. Sawyer v. Texas Dep’t of Criminal
Justice, 983 S.W.2d 310, 311 (Tex. App.—Houston [1st Dist.] 1998, pet.
denied); Leon Springs Gas Co. v. Rest. Equip. Leasing Co., 961 S.W.2d 574, 579
(Tex. App.—San Antonio 1997, no pet.); Bohannan v. Texas Bd. of Criminal
Justice, 942 S.W.2d at 115; In re Wilson, 932 S.W.2d 263, 265 (Tex. App.—El
Paso 1996, no writ).
Smith, 33 S.W.3d at 340; see also Spurlock, 88 S.W.3d at 736.
The issue before us is whether the trial court properly determined there was no
arguable basis in law for the suit. Spurlock, 88 S.W.3d at 736 (citing Lentworth v. Trahan,
Brewer v. Simental Page 9
981 S.W.2d 720, 722 (Tex. App.—Houston [1st Dist.] 1998, no pet.)). A fact hearing on
frivolousness is necessary only if the claim has an arguable basis in law. Johns v.
Johnson, 2005 WL 428465, at *1 (Tex. App.—Waco Feb. 23, 2005, no pet.) (mem. op.)
(citing Denson v. T.D.C.J.-I.D., 63 S.W.3d 454, 459 (Tex. App.—Tyler 1999, pet. denied)).
In this case, the trial court held no fact hearing on the defendants’ motion to dismiss.
Thus, its basis for determining that Brewer’s claims were frivolous could not have been
because it found they had no arguable basis in fact, but was because they had no
arguable basis in law. Id. The issue of whether there was an arguable basis in law is a
legal question that we review de novo. Id.; Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex.
App.—Houston [1st Dist.] 2002, no pet.).
To determine whether the trial court properly decided there was no arguable
basis in law for Brewer’s suit, we examine the types of relief and causes of action that
Brewer pled in his petition to determine whether, as a matter of law, the petition stated
a cause of action that would authorize relief. Johns, 2005 WL 428465, at *1; Spurlock, 88
S.W.3d at 736. We review and evaluate pro se pleadings by standards less stringent
than those applied to formal pleadings drafted by lawyers. Spurlock, 88 S.W.3d at 736
(citing Thomas v. Collins, 860 S.W.2d 500, 503 (Tex. App.—Houston [1st Dist.] 1993, writ
denied)). Also, in reviewing the dismissal of Brewer’s suit, we are bound to take as true
the allegations in his petition. Jackson v. Tex. Dep’t Crim. Justice-Inst. Div., 28 S.W.3d 811,
813 (Tex. App.—Corpus Christi 2000, pet. denied).
Section 1983
Brewer’s suit asserts claims under 42 U.S.C § 1983. Section 1983 provides a cause
Brewer v. Simental Page 10
of action and remedy when any “person” acting under color of state law deprives
another of rights, privileges, or immunities protected by the U.S. Constitution or laws.
Gordon v. Scott, 6 S.W.3d 365, 369 (Tex. App.—Beaumont 1999, pet. denied) (citing
Thomas, 960 S.W.2d at 109). A section 1983 action will lie against state officials in their
personal or individual capacities. Id. Brewer sued all seven defendants in their
individual capacities.
Brewer’s petition asserts two distinct claims:2 (1) retaliation for Brewer’s exercise
of his constitutional right to access the courts; and (2) conspiracy to retaliate for
attempting to exercise his constitutional right to access the courts.
Retaliation
To prevail on a section 1983 retaliation claim, an inmate “must be able to show
more than a personal belief that he is the victim of retaliation.” Johns, 2005 WL 428465,
at *3 (citing Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997)).
[A]n inmate must be able to establish: i) a specific constitutional right; ii)
the defendants’ intent to retaliate against him for exercising that right; iii)
a retaliatory adverse act; and iv) causation—a showing that “but for the
retaliatory motive, the complained of incident would not have occurred.”
McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998).
Id. Indisputably, “a prison official may not retaliate against or harass an inmate for
exercising the right of access to the courts, or for complaining to a supervisor about a
2 We do not discern in Brewer’s petition a separate claim for the deprivation of Brewer’s access to
courts. Generally, and at least for an isolated deprivation of an inmate’s access to court by denying or
interfering with an inmate’s access to the law library, the inmate must show actual injury, usually in the
form of legal prejudice in the litigation the inmate is involved in. See Johns, 2005 WL 428465, at *2. But
when an inmate alleges an ongoing pattern of denial of access and interference, actual injury need not be
shown. See Martin v. Ezeagu, 816 F. Supp. 20, 24 (D.D.C. 1993). On remand, if Brewer disagrees with our
assessment of his petition, he would not be precluded from explicitly pleading such a claim because the
facts in his grievances and petition plainly support one.
Brewer v. Simental Page 11
guard’s misconduct.” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). The purpose of
allowing retaliation claims under section 1983 is to ensure that prisoners are not unduly
discouraged from exercising their constitutional rights. Morris v. Powell, 449 F.3d 682,
686 (5th Cir. 2006).
i. specific constitutional right
“An inmate has a constitutional right of access to courts. Tighe v. Wall, 100 F.3d
41, 42 (5th Cir. 1996). That access must be adequate, effective, and meaningful. Bounds
v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977).” Johns, 2005 WL 428465,
at *2. Brewer’s petition plainly meets this element.
ii. intent to retaliate
The inmate must “allege a chronology of events from which retaliation may
plausibly be inferred.” Woods, 60 F.3d at 1166 (quoting Murphy v. Lane, 833 F.2d 106,
108-09 (7th Cir. 1987) (holding that the plaintiff’s complaint “set forth a chronology of
events from which retaliatory animus on the part of defendants could arguably be
inferred” sufficient to overcome a motion to dismiss)); see also Johns, 2005 WL 428465, at
*3 (inmate’s petition failed to allege facts or chronology of events showing retaliation).
Brewer’s 26-page petition more than adequately details a chronology of events from
which the defendants’ retaliatory animus could arguably be inferred. Brewer pleads,
for example, that the defendants knew he had a court deadline, that the defendants
knew he was assigned to work utility from 1:00 p.m. to 9:00 p.m., that the defendants
knew that he could not obtain law-library lay-ins during his assigned work hours, that
the defendants knew he had law-library lay-ins at 5:50 a.m., and that the defendants
Brewer v. Simental Page 12
told him that they did not care that he had lay-ins because they could make him work
whenever they wanted to, including when Brewer had a scheduled lay-in or was
actually in the law library.3 Moreover, Brewer pleads that, on October 18, while
attending his 5:55 a.m. to 7:55 a.m. law library session, at 6:54 a.m. Simental called the
library and told the officer on duty that Brewer should not have a lay-in and told the
3 Notable here is the defendants’ contention in their brief, (Defendants-Appellees’ Br. at 11), along
with several of the prison administration’s grievance responses, to the effect that “offenders may be
ordered to report to work at any time.” (C.R. 0051, 0055, 0057, 0059, 0061, 0063) [Emphasis added.] This
position and this alleged prison policy heightens the analysis of Brewer’s retaliation claim because it
raises the specter of pretext in the denial of access to the law library, which segues into the inmate
disciplinary process. I.e., a prison guard or officer who seeks to deny an inmate access to the courts can
simply order him to report to work when the inmate has a law library pass, and when the inmate
disobeys the order, the guard or officer files a disciplinary charge against the inmate, who is then
punished for violating policy.
The Fifth Circuit has addressed the thorny issue of an inmate’s section 1983 retaliation claim
arising out of an allegedly false disciplinary charge and the tension between an inmate’s exercise of
constitutional rights and the wide latitude needed by prison officials in the control and disciplining of
inmates:
While we remain fully supportive of the proposition that prison officials must
have wide latitude in the control and disciplining of inmates, that “latitude does not
encompass conduct that infringes on an inmate's substantive constitutional rights.”
Within that limitation we intend no undue restriction of actions legitimately motivated
by concerns of prison order and discipline. . . .
To assure that prisoners do not inappropriately insulate themselves from
disciplinary actions by drawing the shield of retaliation around them, trial courts must
carefully scrutinize these claims. To state a claim of retaliation an inmate must allege the
violation of a specific constitutional right and be prepared to establish that but for the
retaliatory motive the complained of incident—such as the filing of disciplinary reports
as in the case at bar—would not have occurred. This places a significant burden on the
inmate. Mere conclusionary allegations of retaliation will not withstand a summary
judgment challenge. The inmate must produce direct evidence of motivation or, the
more probable scenario, “allege a chronology of events from which retaliation may
plausibly be inferred.”
Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (footnotes and citations omitted).
Regardless of that tension, an “action motivated by retaliation for the exercise of a
constitutionally protected right is actionable, even if the act, when taken for a different reason, might
have been legitimate.” Id. at 1165 (citing Mt. Healthy City School Distr. Bd. of Ed. v. Doyle, 429 U.S. 274, 97
S. Ct. 568, 50 L. Ed. 2d 471 (1977); Jackson v. Cain, 864 F.2d 1235 (5th Cir. 1989); Smith v. Maschner, 899 F.2d
940 (10th Cir. 1990); Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988)). In addition, several of the administration
responses to Brewer’s grievances (C.R. 0069, 0071, 0085) confirm his claim that he had and was using law
library lay-ins when Simental or others ordered him to work outside of his assigned work schedule, thus
interfering with his library access. Thus, we are not hesitant to find that despite the apparently legitimate
disciplinary charges, Brewer’s section 1983 retaliation claim has an arguable basis in law.
Brewer v. Simental Page 13
officer to send Brewer to meet with Simental at the C-Hall Desk. Brewer met Simental
and Townsend there, and they both stated, “We have already told you that you would
not be attending the law library.” They then placed Brewer under cell restriction, and
when Brewer said that he would file another grievance against them, they both stated,
“when we are done with you, you won’t know how to spell grievance.”
Brewer’s petition adequately pleads retaliatory intent. See Martin v. Ezeagu, 816
F. Supp. 20, 24 (D.D.C. 1993) (inmate adequately pled ongoing pattern of harassment,
interference, and exclusion from law library).
iii. retaliatory adverse act
Brewer’s 26-page petition details the numerous times between October 7 and
October 19 that Simental, at times alone and at times with Townsend and Davis,
removed Brewer from the law library because he allegedly was not reporting to utility
work in Ad. Seg. at 5:00 a.m. The petition details the several allegedly false disciplinary
charges that were filed against him by Simental, Townsend, Davis, and Duke on the
ground that Brewer was not reporting to utility work in Ad. Seg. at 5:00 a.m., yet
Brewer pleads that he was already scheduled to work a 1:00 p.m. to 9:00 p.m. utility
shift and he had law-library lay-ins starting at 5:50 a.m. Brewer’s petition details the
disciplinary punishment he received as a result of those charges: commissary
restrictions, cell restrictions, loss of contact visitation, property restriction, and line class
reductions.
Brewer’s petition adequately pleads retaliatory adverse acts.
Brewer v. Simental Page 14
iv. causation
Brewer’s petition adequately details that, but for the defendants’ orders for him
to report to work during his law library lay-ins, the disciplinary charges and the
resulting punishments would not have occurred.
In conclusion, in our de novo review of Brewer’s petition, we hold that his section
1983 retaliation claim has an arguable basis in law. Accordingly, the trial court abused
its discretion in dismissing it as frivolous. We sustain in part Brewer’s third issue.
Conspiracy
Brewer alleges that several other prison officials or employees conspired with
Simental and his cohorts to assist in their retaliation against Brewer. Brewer alleges that
Janet C. Taylor, an administrative assistant, assisted Simental by changing Brewer’s
work hours in the prison computer system in the middle of Simental’s course of
conduct to keep Brewer out of the library and by not notifying Brewer of this change
(he alleged receiving notice of the changed hours after Simental filed a disciplinary
report charging Brewer with not reporting to work as ordered and scheduled). 4
Brewer alleges that John D. Seigle, a corrections sergeant and law library
supervisor, assisted Simental on October 19 by acceding to Simental’s demand that
Brewer’s lay-in for that day, which Seigle had issued, be taken back. According to
Brewer, while he was in the law library, Seigle was called to Simental’s office, and when
Seigle returned, he said that Simental had accused him of “taking sides” with an
offender instead of with a co-worker and ranking officer.
4 The administration response to one of Brewer’s grievances appears to support this allegation; it
notes that there was “a written notice of change to job hours as of 10-20-2005 at 9:26 am.” (C.R. 0061).
Brewer v. Simental Page 15
Lindsay Lewis, the Warden’s grievance investigator, and Robert Losack, a
corrections captain and disciplinary hearing officer, are alleged to have assisted
Simental in the grievance and disciplinary process by ignoring evidence and preventing
Brewer’s access to evidence to defend his claims and defenses. Brewer also alleges that
Lewis and Losack had the authority to stop Simental’s retaliation but failed to do so.
Instead, they removed Brewer’s Ad. Seg. restriction, denied Brewer’s grievances, and
disciplined Brewer.
In a federal suit with similar claims alleged, the district court stated the
applicable law:
To allege a claim of conspiracy to deprive a plaintiff of his
constitutional rights, a plaintiff must allege, “(1) a conspiracy involving
two or more persons; (2) for the purpose of depriving, directly or
indirectly, a person or class of persons of the equal protection of the laws;
and (3) an act in furtherance of the conspiracy; (4) which causes injury to a
person or property, or deprivation of any right or privilege of a citizen of
the United States.” Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994).
Where all of the defendants are members of the same collective entity,
however, the conspiracy does not involve two or more people. Id. at 653;
see also Moody v. Jefferson Parish Sch. Bd., 803 F. Supp. 1158, 1166 (E.D. La.
1992) (School Board, Principal, Vice-Principal, and various teachers are all
employed by the Jefferson Parish School Board and, thus, are a single
entity), aff’d, 2 F.3d 604 (5th Cir. 1993); Hankins v. Dallas Indep. Sch. Dist.,
698 F. Supp. 1323, 1330 (N.D. Tex. 1988) (high school and its officials
constitute a single entity); Chambliss v. Foote, 421 F. Supp. 12, 15 (E.D. La.
1976) (“the university and its officials are considered as constituting a
single legal entity which cannot conspire with itself”), aff’d, 562 F.2d 1015
(5th Cir. 1977).
Brown v. Carr, 2008 WL 2571713, at *5 (S.D. Tex. June 26, 2008). Because all of the
defendants were members of the same collective entity (TDCJ-ID’s McConnell Unit), the
plaintiff did not state a separate legal claim for conspiracy apart from his retaliation
Brewer v. Simental Page 16
claim. See id.
Brewer’s conspiracy claim suffers from the same flaw; all of the defendants who
allegedly conspired are or were Wynne Unit employees at the time of the alleged acts.
Accordingly, they could not have conspired under the applicable law to afford Brewer
an actionable section 1983 conspiracy claim, and that claim thus has no arguable basis in
law.5 Accordingly, the trial court did not abuse its discretion in dismissing it as
frivolous. We overrule in part Brewer’s third issue.
Conclusion
Having sustained Brewer’s second issue and his third issue in part, we reverse
the trial court’s dismissal order and remand this cause for further proceedings
consistent with this opinion.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissents. A separate opinion will not issue.)
Reversed and remanded
Opinion delivered and filed September 10, 2008
[CVPM]
5 The fact that Brewer’s conspiracy claim is not actionable does not render the allegations—which
are obviously disturbing if true—any less egregious, especially with Brewer’s access-to-courts
constitutional backdrop. See Wood, 60 F.3d at 1165 (noting other circuit’s opinion that “an allegation of
retaliatory disciplinary charges could give rise to either an independent section 1983 action or be part of a
procedural due process review of the disciplinary hearing”) (citing Smith v. Maschner, 899 F.2d 940, 946-48
(10th Cir. 1990)); see also id. (“the court with which [the inmate] sought contact, and not his jailer, will
determine the merits of his claim”) (quoting Andrade v. Hauck, 452 F.2d 1071, 1072 (5th Cir. 1971)).
Brewer v. Simental Page 17