Betty Buffington v. Texas Department of Criminal Justice - Institutional Division ( 2003 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                             Memorandum Opinion

Betty Buffington

Appellant

Vs.                   No. 11-02-00088-CV -- Appeal from Taylor County

Texas Department of Criminal Justice - Institutional Division

Appellee

Betty Buffington and her sisters, individually and as representatives of the estate of Andy Booker, sued various defendants asserting that they were responsible for Booker=s untimely death.  One of the defendants, the Texas Department of Criminal Justice - Institutional Division (TDCJ), filed a plea to the jurisdiction asserting sovereign immunity.  The trial court granted TDCJ=s plea to the jurisdiction, dismissed the plaintiffs= claims against TDCJ, and severed the claims against TDCJ from the remainder of the plaintiffs= claims.  Buffington filed a pro se notice of appeal with respect to the trial court=s order dismissing TDCJ.^[1]  Buffington and one of her sisters have each filed in this court a letter brief requesting that this court keep their father=s case open. However, because TDCJ is immune from suit with respect to the claims asserted against it, we must affirm the trial court=s dismissal.

The plaintiffs asserted the following causes of action against the defendants:  negligence; gross negligence; violation of the Eighth Amendment; a claim under 42 U.S.C.A. ' 1983 (West 1994); wrongful death and survival; and the Texas Tort Claims Act, TEX. CIV. PRAC. & REM. CODE ANN. ch. 101 (Vernon 1997 & Supp. 2003).  However, as reflected in the plaintiffs= second amended petition and in their response to TDCJ=s plea to the jurisdiction, the only cause of action asserted against TDCJ was brought under the Texas Tort Claims Act.  In its plea to the jurisdiction, TDCJ asserted that it was immune from suit because the plaintiffs= allegations did not fall under the limited waiver provisions of the Texas Tort Claims Act. 

In order to address this issue, we must determine the scope of waiver from the terms of the Act and then determine whether the particular facts of this case are within that scope.  Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001).  In so doing, we must consider the plaintiffs= pleadings and any evidence introduced that is relevant to the jurisdictional issue. Texas Department of Criminal Justice v. Miller, supra; Texas Natural Resource Conservation Commission v. White, 46 S.W.3d 864, 868 (Tex.2001); Bland Independent School District v. Blue, 34 S.W.3d 547 (Tex.2000).  In this case, no evidence was introduced at the hearing on the plea to the jurisdiction.

Under the doctrine of sovereign immunity, a governmental unit  is protected from suit unless immunity has been specifically waived by the legislature by clear and unambiguous language.  TEX. GOV=T CODE ANN. ' 311.034 (Vernon Supp. 2003); Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.), cert. den=d, 525 U.S. 1017 (1998).  The plaintiffs asserted that immunity was waived in this case by Section 101.021(2), which provides that a governmental unit is liable for Apersonal injury and death so caused by a condition or use of tangible personal or real property@ if, under the same circumstances, a private person would be liable under Texas law.

The plaintiffs alleged in their pleadings that Booker was confined in the Geriatric Ward of the Estelle Unit of TDCJ when he sustained injuries from being beaten by another inmate and that these injuries ultimately caused Booker=s death. The petition reads in part as follows:

[Booker] was a sixty-six year old who was confined to a wheelchair due to his ongoing battle with a kidney disease....On April 7, 1998, [Booker] was confronted and threatened by Defendant Matthew Ellisor....The Department was made aware of Ellisor=s continuing threats to [Booker] and, therefore, was aware of the strong probability that Ellisor would assault [Booker].  Despite this fact, the Department allowed Ellisor to follow [Booker] into the restroom and brutally attack [Booker].  As [Booker] attempted to lift himself from his wheelchair in the bathroom, Ellisor entered the bathroom - unsupervised by the Department=s officers - repeatedly assaulting [Booker] - kicking and hitting him, knocking him from his wheelchair and onto the floor, where he laid crying in pain.  As a result of the assault, [Booker] suffered from internal bleeding, broken ribs, and other physical injuries.  Despite the fact that [Booker] was in serious need of medical care, the Department failed to address his injuries....He repeatedly requested medical assistance, but was ignored by the Department.  On April 13, 1998, the Department released [Booker] to his family members in a serious medical condition.  The Department failed to disclose the assault and [Booker=s] subsequent injuries to [Booker=s] family....[Booker] remained in constant and continual pain until his untimely death on May 18, 1998.

The plaintiffs asserted that the defendants failed to provide adequate protection, failed to administer medical care, and subjected their father to cruel and unusual punishment.  The plaintiffs also asserted that Booker=s death Awas caused by a condition or use of tangible personal property, namely the door which separated the bathroom...from any and all prison guards and/or security.@ 

We hold that the plaintiffs failed to assert a claim against TDCJ for which immunity has been waived by Section 101.021(2). Immunity is waived under that section only when the condition or use of the property proximately caused the injury or death.  AProperty does not cause injury if it does no more than furnish the condition that makes the injury possible.@ Dallas County Mental Health and Mental Retardation v. Bossley, supra at 343; Eastland County Cooperative Dispatch v. Poyner, 64 S.W.3d 182, 198 (Tex.App. - Eastland 2001, pet=n den=d). Furthermore, Section 101.021(2) does not waive immunity for the Anon-use@ of property.  Kerrville State Hospital v. Clark, 923 S.W.2d 582, 585 (Tex.1996); Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex.1994).  In this case, the door and the bathroom merely furnished conditions that made Booker=s injuries possible; they did not proximately cause his death.  Although the plaintiffs attempted to bring their case within Section 101.021(2), the real substance of their complaint is that their father=s death was caused, not by a condition or use of property, but by the failure of the defendants to protect Booker from Ellisor and the failure of the defendants to provide medical care to Booker after the assault.  The Texas Tort Claims Act does not waive immunity for these claims.  See Sections 101.021 & 101.055; Dallas County Mental Health and Mental Retardation v. Bossley, supra.  Because the pleadings do not assert a claim for which sovereign immunity has been waived, the trial court properly granted TDCJ=s plea to the jurisdiction and dismissed TDCJ from the lawsuit. 

The judgment of the trial court is affirmed.

                                                                                                JIM R. WRIGHT

JUSTICE

July 3, 2003

Not designated for publication.  See TEX.R.APP.P. 47.2(a).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]We note that the trial court subsequently granted defendant Jack Dean=s plea to the jurisdiction and also dismissed the plaintiffs= claims against Dean. The propriety of the trial court=s order dismissing Dean is not at issue in this appeal because Buffington=s notice of appeal specifically stated the intent to appeal the trial court=s AOrder signed on February 15, 2002,@ which is an appealable order dismissing and severing TDCJ.