heirs-of-bernardo-del-real-to-wit-carmen-del-real-herrera-lydia-del-real ( 2012 )


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  • Opinion filed June 7, 2012
    In The
    Eleventh Court of Appeals
    __________
    No. 11-10-00151-CV
    __________
    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
    1
    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
    2
    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).
    3
    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
    4
    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
    5
    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.
    6