Jerry L. Bangmon v. Latonia Jones and Rodney Simon ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-22-00221-CV
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JERRY L. BANGMON, Appellant
V.
LATONIA JONES AND RODNEY SIMON, Appellees
________________________________________________________________
On Appeal from the 136th District Court
Jefferson County, Texas
Trial Cause No. D-203,523
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MEMORANDUM OPINION
Jerry L. Bangmon (Bangmon or Appellant) appeals the trial court’s judgment
granting Latonia Jones (Jones) and Rodney Simon’s (Simon) (collectively
Defendants or Appellees) plea to the jurisdiction and dismissing Bangmon’s claims
with prejudice. Finding no error, we affirm.
Background
Bangmon filed a pro se original petition entitled “Derivative Tort Claim”
against Defendants Jones and Simon. Bangmon, an inmate serving a sentence at the
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Stiles Prison Unit, alleged that Jones and Simon, who were Law Librarians at the
Stiles Prison Unit, denied Bangmon access to the restroom. According to Bangmon,
the Defendants, in the course and scope of their employment, committed criminal
offenses under the Texas Penal Code because they denied him access to the restroom
during the time when prison officials were conducting a “headcount.” He argues the
Defendants’ actions were intentional torts against him based on the Defendants’
alleged criminal actions. His petition asserted that the Defendants’ actions were an
intentional denial of his rights and violations of laws relating to the Defendants’
employment that constituted the following criminal offenses: Official Oppression
under Penal Code Chapter 39.03, Violations of the Civil Rights of Person in Custody
under Penal Code Chapter 39.04, Abuse of Official Capacity under Penal Code
Chapter 39.01, and Criminal Conspiracy under Penal Code Chapter 15.02. Bangmon
asserts these alleged criminal offenses are predicated on violations of the Civil
Rights of Institutionalized Person Act, Americans with Disabilities Act,
Rehabilitation Act, and various civil rights. According to Bangmon, the alleged
criminal offenses resulted in the denial of his rights under the First, Fifth, Eighth,
and Fourteenth Amendments to the United States Constitution. Bangmon’s petition
seeks compensatory damages and criminal charges against the Defendants.
Jones and Simon filed their Plea to the Jurisdiction, asking the trial court to
dismiss all claims against them for lack of jurisdiction. According to Jones and
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Simon, the trial court lacks jurisdiction because Bangmon’s tort claims are barred
by sovereign immunity because his petition asserts that the Defendants at the time
of the alleged acts were working within their official duties while employed by the
Texas Department of Criminal Justice, and Bangmon’s alleged tort claims do not
fall within the limited statutory waiver of sovereign immunity found exclusively in
the Texas Tort Claims Act. Jones and Simon also argue that the trial court lacks
jurisdiction over Bangmon’s alleged criminal violations because the Penal Code
does not confer a private right of action.
The trial court granted the Defendants’ Plea to the Jurisdiction and dismissed
Bangmon’s claims against the Defendants with prejudice. Bangmon filed this
appeal.
Issues on Appeal
In his pro se brief, Bangmon raises two issues on appeal. His “Statement of
Issues Presented for Review” are as follows:
1. Whether the court in granting dismissal with prejudice after Plaintiff
had requested for the court to take out all Penal Codes and proceed
with the claim on the Americans with Disabilities Act, []
Rehabilitation Act, and violations of civil rights. Judgment
improperly disputed factual issues.
2. Whether the Plaintiff’s factual allegations of deprivation[]s of
restroom use by prison staff raised a material issue under the Eighth
and Fourteenth Amendment[s] for depriving Plaintiff to dispose of
his bodily fluids, and or wastes.
He also then states that he is presenting the following “points of error:”
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Point of Error 1.
The district court err[]ed by failing to take out all Penal Codes used or
cited in the claim, as Plaintiff had requested in his motion to amend, to
give the court jurisdiction over the constitutional claims, since the court
lacks jurisdiction over criminal violations because Penal Codes does
not confer a private right of action.
Point of Error 2.
The court err[]ed by dismissing Plaintiff[’]s claim and not allowing the
claim to proceed on the merits and constitutional violations of civil
rights and equal protection.
Point of Error 3.
The court err[]ed by overlooking Plaintiff[’]s exhibit[]s and medical
record[]s submitted as to blood in urine from said deprivation. Plaintiff
may seek damages compensatory under the Americans with Disabilities
Act (ADA) for emotional distress and humiliation.
Point of Error 4.
A complaint should not be dismissed unless the Plaintiff can prove no
set of facts, has failed to demonstrate facts, that if proven would entitle
him to relief. No state shall deprive any person of life, liberty, or
property without due course of law.
Point of Error 5.
Every person who, under color of any statute, ordinance, regulation,
custom or usage, of any state or territory, or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
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Standard of Review
Whether a court has subject matter jurisdiction is a question of law. Tex.
Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
We review the trial court’s ruling on the plea to the jurisdiction de novo. See Farmers
Tex. Cty. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 240 (Tex. 2020) (citing Presidio
Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 929 (Tex. 2010)). We must determine
whether Bangmon’s petition alleged facts affirmatively demonstrating the trial
court’s jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004).
Generally, we construe an appellant’s pro se brief liberally. See Giddens v.
Brooks, 92 S.W.3d 878, 880 (Tex. App.—Beaumont 2002, pet. denied). That said, a
pro se litigant is held to the same standards as licensed attorneys and must comply
with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573
S.W.2d 181, 184-85 (Tex. 1978); Giddens, 92 S.W.3d at 880-81.
Analysis
Bangmon asserted in his petition a claim he entitled “Derivative Tort Claim” 1
and he stated that the Defendants acted “in their own individual capacity under the
1
We assume all common-law tort theories alleged against a governmental unit
or its employees fall under the TTCA for purposes of section 101.106. See Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008) (citing
Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex. 1997)).
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color of state and federal laws” but elsewhere he also stated that the Defendants were
acting as public servants in the course of their employment. Reading Bangmon’s
petition liberally, it appears he sued the Defendants in their official and individual
capacities. See Giddens, 92 S.W.3d at 880. “[P]ublic employees [] have always been
individually liable for their own torts, even when committed in the course of
employment, and suit may be brought against a government employee in his
individual capacity.” Franka v. Velasquez, 332 S.W.3d 367, 383 (Tex. 2011)
(citations omitted). However, under section 101.106 of the Texas Tort Claims Act
(TTCA),
[i]f a suit is filed against an employee of a governmental unit based on
conduct within the general scope of that employee’s employment and
if it could have been brought under this chapter against the
governmental unit, the suit is considered to be against the employee in
the employee’s official capacity only.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f).
We conclude that Bangmon’s tort claims are governed by section 101.106(f).
First, Appellees are both employees of TDCJ-CID, a state agency. Second, the
TTCA defines scope of employment as “the performance for a governmental unit of
the duties of an employee’s office or employment and includes being in and about
the performance of a task lawfully assigned to an employee by competent authority.”
Tex. Civ. Prac. & Rem. Code Ann. § 101.001(5). Scope of employment “extends to
job duties to which the official has been assigned, even if the official errs in
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completing the task.” Lopez v. Serna, 414 S.W.3d 890, 894 (Tex. App.—San
Antonio 2013, no pet.). In our review of the pleadings, we must ascertain the true
nature of Bangmon’s claims. See State v. Lain, 349 S.W.2d 579, 582 (Tex. 1961)
(court should not exalt form over substance when considering capacity in which an
officer is sued). Bangmon’s allegations relate to tasks lawfully assigned to Appellees
– regulating inmates’ activities in the library during “count time,” when the inmates
are not allowed to change locations in order to be counted in a particular location.
Accordingly, it is clear from the record that Appellees were acting within the scope
of their employment. See Lopez, 414 S.W.3d at 894. Third, “if a state employee is
alleged to have committed negligence or other ‘wrongful conduct’ in the general
scope of employment, then the suit is subject to section 101.106(f) because it could
have been brought against the state agency[,]” and this applies to both intentional
and unintentional torts. See id. at 895. Therefore, Bangmon’s tort claims are subject
to section 101.106(f), and his tort claims are against Appellees in their official, not
individual capacity. See id.Under Texas Law, a suit against a government employee in his official
capacity is a suit against his government employer. Franka, 332 S.W.3d at 382.
“[A]n employee sued in his official capacity has the same governmental [or
sovereign] immunity, derivatively, as his government employer.” Id. at 382-83.
TDCJ-CID, a state agency, enjoys sovereign immunity from suit unless the
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legislature expressly waives that immunity. See Tex. Office of Comptroller of Pub.
Accounts v. Saito, 372 S.W.3d 311, 314 (Tex. App.—Dallas 2012, pet. denied).
The TTCA provides a limited waiver of immunity for certain suits against
governmental entities. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653,
655 (Tex. 2008); see Tex. Civ. Prac. & Rem. Code Ann. § 101.025(a) (providing
wavier of immunity from suit “to the extent of liability created by this chapter[]”).
The TTCA waives immunity from liability in three general areas: “use of publicly
owned automobiles, premises defects, and injuries arising out of conditions or use
of property.” Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000) (quoting
Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976)); Tex. Civ. Prac. & Rem.
Code Ann. § 101.021. However, Bangmon alleged that the Defendants’ actions were
intentional torts, and the TTCA does not waive immunity for intentional torts. See
Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (“This chapter does not apply to a
claim . . . arising out of assault, battery, false imprisonment, or any other intentional
tort[.]”); Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001).
Bangmon’s petition, therefore, affirmatively negates any allegation of waiver of
immunity for the Defendants’ performance of their employment responsibilities and
shows the trial court lacks subject matter jurisdiction.
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In Bangmon’s petition, he also alleges the Defendants committed certain
criminal offenses 2 and each of his constitutional claims are premised on those
alleged criminal acts. We agree with the Defendants that the Texas Penal Code does
not create private causes of action. Burke Ctr. for MHMR v. Carr, No. 09-04-138-
CV, 2004 Tex. App. LEXIS 11499, at *11 (Tex. App.—Beaumont Dec. 22, 2004,
pet. denied) (mem. op.) (citing Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex.
App.—San Antonio 2002, no pet.)). Bangmon admits in his appellate brief that “the
[trial] court lack[ed] jurisdiction over criminal violations because Penal Codes do[]
not confer a private right of action.” Therefore, the allegations in Bangmon’s petition
affirmatively negate the existence of jurisdiction, and the trial court properly
dismissed Bangmon’s claims with prejudice. See Miranda, 133 S.W.3d at 227 (“If
the pleadings affirmatively negate the existence of jurisdiction, then a plea to the
jurisdiction may be granted without allowing the plaintiff[] an opportunity to
amend.”); see also Cty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). We
overrule Bangmon’s issues and affirm the trial court’s judgment.
2
We note that although Bangmon argues that based on his “motion to amend,”
the trial court erred in not removing Bangmon’s references to the Penal Code in his
original petition at his request in order to give the court jurisdiction, Bangmon failed
to follow Rule 64 of the Texas Rules of Civil Procedure for amending his petition.
See Tex. R. Civ. P. 64 (requiring the party amending a pleading to point out the
instrument amended and amend by filing a substitute instrument that is entire and
complete in itself); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.
1978) (pro se litigant is held to the same standards as licensed attorneys and must
comply with applicable laws and rules of procedure).
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AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on March 1, 2023
Opinion Delivered June 29, 2023
Before Golemon, C.J., Johnson and Wright, JJ.
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