Marshall Jackson, Jr. v. Denny Morrison, Janice Robinson, Gateway Foundation, Inc., Jesus Sanchez, Robert Auert, Patrick Lowe, and Anita Bjornaas ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00419-CV
Marshall Jackson, Jr., Appellant
v.
Denny Morrison, Janice Robinson, Gateway Foundation, Inc.,
Jesus Sanchez, Robert Auert, Patrick Lowe, and Anita Bjornaas, Appellees
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. 13-0077, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Marshall Jackson, Jr., appeals from the trial court’s grant of summary
judgment in favor of Denny Morrison, Janice Robinson, Gateway Foundation, Inc., Jesus Sanchez,
Robert Auert, Patrick Lowe, and Anita Bjornaas. We will affirm the trial court’s summary judgment.
BACKGROUND
Jackson is an inmate in the Texas Department of Criminal Justice prison system and
was previously held at the Kyle Correctional Center in Kyle, Texas.1 As a condition of his parole,
Jackson was required to receive professional drug treatment at an In-Prison Therapeutic Community
at the Kyle Correctional Center operated by Gateway Foundation, Inc. A few months after he began
his treatment at Gateway, Jackson was disciplined for refusing to participate in many of the program’s
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The facts recited in this opinion are taken from pleadings filed with the trial court.
activities and was subsequently subject to a disciplinary hearing conducted by prison officials
regarding his conduct. Jackson was later discharged from Gateway for refusing to take part in group
sessions and for failing to complete a number of assigned projects.
A few weeks before being discharged from Gateway, Jackson filed a pro se petition
against Gateway and some of its employees (the Defendants). In his petition, Jackson alleged that
the Defendants “del[eg]ated their professional and legal authority” to treat him to Freddie Clark,
a fellow inmate who was also receiving treatment at Gateway; that they were negligent in “failing
to prevent Freddie Clark from acting as [Jackson’s] therapist[] despite [Jackson’s] numerous
request[s] over a three (3) month period and then by failing to perform the proper professional
treatment”; and that the Defendants were “grossly negligent in denying [Jackson’s] request for
legal counsel” during his disciplinary hearing. The Defendants maintain that Jackson’s treatment
was conducted under the supervision of licensed counselors at all times and that they took no part
in Jackson’s disciplinary hearing.
The Defendants served Jackson with fifteen requests for admissions, which included
the following:
REQUEST FOR ADMISSION NO. 1: Admit or deny that you were given
opportunity to have counsel represent you at the disciplinary hearing described in
your Petition.
[. . .]
REQUEST FOR ADMISSION NO. 6: Admit or deny that the alleged injuries
suffered by you in this matter are due to your own negligence for failing to participate
in the treatment program.
It is undisputed that Jackson did not respond to these requests.
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The Defendants filed a Traditional and No-Evidence Motion for Summary Judgment,
arguing that Jackson could not prove a prima facie case for any of his claims because their requests
for admissions were deemed admitted.2 Jackson filed a response to this motion and attached as
evidence his own unsworn affidavit. The trial court granted the Defendants’ motion for summary
judgment without specifying the grounds relied on for its ruling.
Jackson now brings two issues on appeal, contending that the trial court should not
have granted the Defendants’ no-evidence motion for summary judgment in light of the evidence
that he presented in his affidavit.
STANDARD OF REVIEW
We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). We take as true all evidence favorable to the non-moving party, and
we indulge every reasonable inference and resolve any doubts in the non-moving party’s favor. Id.
To prevail on a traditional motion for summary judgment, the moving party must establish that there
is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ.
P. 166a(c). A defendant who conclusively negates at least one of the essential elements of a cause
of action is entitled to summary judgment. Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013).
We construe pro se pleadings and briefs liberally, but we hold pro se litigants to
the same standards as licensed attorneys and require them to comply with applicable laws and
rules of procedure. In re N.E.B., 251 S.W.3d 211, 211–12 (Tex. App.—Dallas 2008, no pet.) (citing
2
According to Rule 198.2(c) of the Texas Rules of Civil Procedure, a request for admission
is deemed admitted without a court order if a response is not served within 30 days.
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Mansfied State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978)). To do otherwise would give
pro se litigants an unfair advantage over litigants represented by counsel. Mansfield, 573 S.W.2d
at 185.
DISCUSSION
Neither of the issues that Jackson brings on appeal addresses the Defendants’
traditional motion for summary judgment. By failing to raise this issue in his brief to this Court,
Jackson has waived it. See Tex. R. App. P. 38.1(f); Sunbeam Envtl. Servs., Inc. v. Texas Workers’
Comp. Ins. Facility, 71 S.W.3d 846, 851 (Tex. App.—Austin 2002, no pet.) (holding appellants
waived issue of attorney’s fees by failing to raise it in their initial appellate brief). Even though we
liberally construe pro se pleadings and briefs, we will not sua sponte address appellate issues and
arguments that a litigant might have raised but did not. See Moore v. Brown, 408 S.W.3d 423, 431
n.10 (Tex. App.—Austin 2013, pet. denied).
Even if Jackson had not waived this issue, we conclude that the trial court properly
granted the Defendants’ motion for traditional summary judgment. The Defendants’ requests for
admissions, which were deemed admitted because Jackson failed to respond, conclusively negate
at least one essential element of each of Jackson’s causes of action. First, Jackson admitted that “the
alleged injuries [that he] suffered . . . in this matter [were] due to [his] own negligence for failing to
participate in the treatment program.” This admission conclusively negates the causation element
of his negligence claim. Second, Jackson admitted that he was “given the opportunity to have
counsel represent [him] at the disciplinary hearing described in [his] Petition.” This admission
conclusively negates his claim that the Defendants were grossly negligent in denying his request
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for legal counsel during his disciplinary hearing. These deemed admissions leave no issue of
material fact and entitle the Defendants to judgment as a matter of law. Having concluded that the
trial court’s order should be affirmed on the grounds raised in the Defendants’ traditional motion
for summary judgment, we need not reach the issues that Jackson brings on appeal, which address
only the Defendants’ no-evidence grounds. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79
(Tex. 1989) (explaining that when trial court’s order does not specify the grounds relied on for its
ruling, the summary judgment will be affirmed if any of the theories advanced are meritorious).
CONCLUSION
We affirm the trial court’s grant of summary judgment for the Defendants.
__________________________________________
Scott K. Field, Justice
Before Justices Puryear, Pemberton, and Field
Affirmed
Filed: July 8, 2015
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