in Re Reidie James Jackson, Relator

07-15-00429-CV
SEVENTH COiJHT OF APPE/ ! !2
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CAUSE NO. 2012500,295
REIDIE JACKSON § IN THE DISTRICT COURT
TDCJ # 1164177, §
Plaintiff §
§
§ LUBBOCK COUNTY, TEXAS
v. §
§
VAUGHN, ET AL, § 72nd JUDICIAL DISTRICT
Defendants §
Defendants Honesto, Nail, and Guzman's Motion to Declare
Plaintiff a Vexatious Litigant & Request for Security
Defendants Honesto, Nail, and Guzman file this Motion to declare PlaintiffReidie Jackson
a vexatious litigant and request that the Court stay the proceedings and order Plaintiff to provide
security pursuant to Section 11.051 of the Texas Civil Practice and Remedies Code.
Statement of the Case
·Plaintiff is Reidie Jackson. On January 6, 2012, Plaintiff filed suit against Defendants
Robert Vaughn and Nicky Emsoff for assault, battery, conspiracy, excessive force, bystander
liability, and violations ofthe Texas Constitution and U.S. Constitution. On December 11, 2014,
the Amarillo Court of Appeals reversed the trial court judgment dismissing Plaintiff's suit pursuant
to Chapter 14 of the Texas Civil Practice & Remedies Code, and remanded the case. See Jackson
v. Vaughn, 07-13-00022-CV, 2014 WL 6999333, at *6 (Tex. App.-Amarillo Dec. 11, 2014, no.
pet. h.). The Court of Appeals held that Plaintiff's pleadings sufficiently alleged a Section 1983
excessive force claim and a bystander claim. !d. On April24, 2015, Defendants Peter Honesto and
James Nail filed their original answer, and on April27, 2015, Defendants Honesto and Nail, along
with David Guzman, who was answering for the first time, filed an amended answer. 1
1
The counsel for defendants was not made aware until February 4, 2015 that Defendants Honesto, Nail, and
Guzman had potentially been served back in November 2012.
1
Arguments and Authorities
A. Vexatious Litigant Statutes
Chapter 11 of the Civil Practice and Remedies Code contains provisions addressing
vexatious litigants-persons who abuse the legal system by filing numerous, frivolous lawsuits.
See Tex. Civ. Prac. & Rem. Code§§ 11.001-11.104. This chapter provides that on or before the
ninetieth day after the defendant files an original answer or makes a special appearance, the
defendant may move for an order declaring that the plaintiff a vexatious litigant and requiring the
plaintiff to furnish security in order to proceed with 1'1is case. Tex. Civ. Prac. & Rem. Code §
11.051. Additionally, the court may declare this litigant vexatious on its own motion after notice
and hearing. Tex. Civ. Prac. & Rem. Code§ 11.202(a); In re Douglas, 333 S.W.3d 273,287 (Tex.
App.-Houston [1st Dist.] 2010, no pet.).
On the filing of a motion under§ 11.051, the litigation is stayed until after the motion's
disposition. Tex. Civ. Prac. & Rem. Code § 11.052. If, after hearing the evidence on the motion,
the Court grants the motion, it "shall order the plaintiff to furnish security for the benefit of the
moving defendant" to be paid by a date determined by the Court. Tex. Civ. Prac. & Rem. Code§
11.055 (emphasis added). If the plaintiff fails to pay the security within the court's deadline, the
court "shall dismiss [the] litigation." Tex. Civ. Prac. & Rem. Code§ 11.056 (emphasis added). If
the plaintiffs suit is subsequently dismissed on the mL ·its, Section 11.057 states that the "moving
defendant has recourse to the security ... in an amount determined by the Court."
B. Criteria for Finding a Litigant Vexatious
Under Section 11.054, a court may find a plaintiff vexatious if the defendant shows that
there is not a "reasonable probability" that the plaintiff will prevail in the present suit. Second, the
defendant must meet one of three additional requirements. This prong of the vexatious litigant
2
analysis is satisfied by Plaintiffs pro se litigation history. Over the past seven years, Plaintiff has
"commenced, prosecuted, or maintained at least five litigations as a pro se litigant ... that have
been: (A) finally determined adversely to the Plaintiff; (B) permitted to remain pending for at least
two years without [proceeding] to trial or hearing; or (C) determined ... to be frivolous or
groundless." See Tex. Civ. Prac. & Rem. Code§ 11.054(1).
C. Effect of Declaring Plaintiff to be Vexatious
Because Offender Reidie James Jackson fits the statutory definition of a vexatious litigant,
this court should require him "to furnish security for the benefit of the moving defendant" and
"dismiss [this suit if he] does not furnish the security within the time set by the order." Tex. Civ.
Prac. & Rem. Code § 11.055-56. If his suit is subsequently dismissed on the merits, Section 11.057
requires that Defendants "have recourse to the security ... in an amount determined by the Court."
D. Notice of Stay of Proceedings
Upon the filing of this motion, the present "litiJation is stayed and the moving defendant
is not required to plead" until10 days after the motion is denied or 10 days after the Plaintiff has
furnished security in accordance with the Court's order. Tex. Civ. Prac. & Rem. Code§ 11.052.
E. No Reasonable Probability of Success on the Merits.
Before finding a plaintiff a vexatious litigant, the defendant must show that "there is not a
reasonable probability that the plaintiff will prevail in the litigation against the defendant." See
Tex. Civ. Prac. & Rem. Code § 11.054. "Undertaking [this] inquiry implicitly requires the trial
court to preliminarily accept the factual assertions as true and assess whether they comprise a
viable cause of action." Lagaite v. Uy, 347 S.W.3d 890, 893 (Tex. App.-Amarillo 2011, no pet.). . v.S~;()fl
·. ----, >r ~(1 . ~~
By its terms, Section 11.054 "does not require conclusive evidence" that the plaintiff is /vexatious'\.~. 'i:l\A:.\(~~
\ )0\ ~
litigant but "proof rising only to the level of a reasonabu probability." Gant v. Grand Prairie Ford, 'p~\1..')(
~·,\,'{-(
,o'9
~·
3
L.P., 2-06-386-CV, 2007 WL 2067753, at *3 (Tex. App.-Fort Worth July 19,2007, pet. denied).
The Amarillo Court of Appeals held that "[t]aking Jackson's plead facts as true ... his pleadings
sufficiently allege a section 1983 excessive force claim and a bystander claim." Jackson, 2014 WL
6999333 at *5. However, Plaintiffs claims are not likely to succeed on the merits.
1. There is no reasonable probability that Plaintiff will prevail on his excessive use
of force claim.
There is not a reasonable probability that Plaim:iff will succeed on his use of force claim.
The constitutional standard for an excessive use of force is "whether force was applied in a good
faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of
causing harm." Hudson v. McMillian, 503 U.S. 1, 6 (1992) (internal quotations omitted). The Court
in Hudson also noted that the Eighth Amendment's prohibition o~ cruel and unusual punishment
"necessarily excludes from constitutional recognition de minimis uses of physical force, provided
that the use of force is not of a sort repugnant to the conscience of mankind." !d. at 10 (internal
quotations omitted); see also Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). Plaintiffs
claims of excessive use of force must fail if Defendants acted with even an arguable effort to
maintain or restore discipline. See Whitley v. Albers, 475 U.S. 312, 321-22 (1986) ("Prison
administrators ... should be accorded wide-ranging ueference in the adoption and execution of
policies and practices that in their judgment are needed to preserve internal order and discipline
and to maintain institutional security.") (internal quotations omitted).
The Supreme Court in Hudson provides the five factors that a Plaintiff must prove to
support his excessive use of force claim. Hudson, 503 U.S. at 7. The Hudson factors include: (1)
the extent of the injury suffered; (2) the need for the application of force; (3) the relationship
between the need and the amount of force used; (4) the threat reasonably perceived by the
responsible officials; and (5) any efforts made to temper the severity of a forceful response. Id. at
4
7; Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998); Hudson v. McMillian, 962 F.2d 522, 523
(5th Cir. 1992). "The amount of force that is constitutionally permissible ... must be judged by
the context in which that force is deployed." Ikerd v. Blair, 101 F.3d 430, 434 (5th Cir. 1996). It
should be noted that not every push or shove, even if it may seem unnecessary in the peace of a
judge's chambers, violates a prisoner's constitutional rights. Johnson v. Glick, 481 F .2d 1028, 1033
(2nd Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033 (1973)). Plaintiff cannot satisfy
the five Hudson 8 that he must prove in order to support his use of force claim.
First, Plaintiff has not shown an injury. In Brown v. Lippard, the Fifth Circuit considered
the effect of the first Hudson factor, relating to the injuries suffered. 472 F.3d 384, 386-387 (5th
Cir. 2006). The Fifth Circuit held in that case that injuries are insufficient to support an
excessive force claim where there is no physical injury, or where the injury is extremely minor,
such as a bruise caused by having one's ear twisted. Id. at 387. Additionally, civil rights plaintiffs
must allege an actual injury caused by the defendants' actions. Wilkins v. Gaddy, 559 U.S. 34, 1178
(2010) ("An inmate who complains of a push or shove that causes no discernible injury almost
certainly fails to ~ate a valid excessive force clai~'); see also Memphis Community School
Districtv. Stachura, 477 U.S. 299,308 (1986) (for a§ 1983 claim to b~iabl~the plaintiffmust
allege an injury). This is true in cases alleging excessive use of force. See, e.g., Jackson v.
Culbertson, 984 F.2d 699, 700 (5th Cir. 1993) (excessive force claim for spraying with a fire hose
frivolous where prisoner suffered no injury); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
1997) (sore, bruised ear which required no medical care and healed in a few days would not support
civil rights claim for excessive force). Ultimately, where the objective factors of an inmate's
medical record show no evidence of any injuries consistent with the inmate's allegations, the court
may conclude that the allegations are implausible. See Wilburn v. Shane, 193 F.3d 517, 1999 WL
5
706141 (5th Cir. 1999), citing Wesson v. Oglesby, 910 F.2d 278,281-82 (5th Cir. 1990).
In Williams, an offender accused an officer of using excessive force in violation of his
Eighth Amendment rights. Williams v. Thompson, No. 5:11-cv-68, 2012 U.S. Dist. LEXIS 25302,
at *2-3 (E.D. Tex. Feb. 27, 2012). More specifically, the offender alleged that the officer hit him
over the head with a flashlight so hard that he was knocked unconscious. Id. at *6. The medical
records, however, did not show that the offender had a bruise, knot, or any injury associated with
his allegation of excessive force. Id. The Court held, that since the objective medical records did
not show that the offender suffered an injury, his claims were dismissed in line with the Supreme
Court's holding in Wilkins. Id. at *7.
Plaintiff has not suffered an injury or provided proof of an injury outside of his conclusory
self-serving statements. See, e.g., Plaintiff's Second Amended Complaint at 14 ("Every [sic] since
the incident Plaintiff has been having progressively blurred vision, his real tooth along with his
temporary dental plate suffered chips and breakage."), Plaintiff's Third Amended Complaint at 6
("Plaintiff was permanently injured."). Moreover, a review of the relevant portions of the medical
report contained in the Use of Force Report indicate that at the time of the event Plaintiff
complained of back injury, yet upon examination no injuries were found. Exhibit A at 4-6.
Additionally, the medical records for the relevant time period do not show that the Plaintiff
submitted any sick call requests or saw a clinician for his alleged injuries. Exhibit B at 7. Given
that Plaintiff did not suffer any injuries or has not presented credible evidence of his injuries, there
is no reasonable probability that Plaintiffwill prevail in his excessive use of force claim.
The next Hudson factor discussed is the need for the application of force. In his second
amended complaint, Plaintiff states that he committed several defiant acts that caused force to be
used: he refused the initial preparation and transport; '1e refused to relinquish the handcuffs and
6
follow commands of the officers; and he placed his mattress in front of the entrance of his cell
,(-!
door in order to obstruct the officers' path. Plaintiff's Second Amended Complaint at pages 10-12; ·9·tK
,J '-' ,·
,~rs ,tfY
see also Exhibit A at 2-4. These acts of defiance are what initiated the use of force and were 1' /
~in order to regain compliance and the safe transport of the Plaintiff.
The third Hudson factor discussed relates to the relationship between the need and the
amount of force used. The officers involved used the minimum amount of force necessary to
/ ----
control Plaintiff in response to Plaintiffs acts of misconduct and defiance. Plaintiff refused to
~ ~ iJ- relinquish his hand restraints when instructed by the officers and he used his mattress as a physical
xy};(\~r
4
rf'' _, ~ deterrent to promote his non-compliance. In such a case, force was necessary to regain control of
·~0"-..j-+
.r' Plaintiff.
The final two Hudson factors deal with the threat perceived and the efforts made to temper
the severity of the response. As admitted by the Plaintiff, he refused to comply with several orders
from the officers for transport and even used his bed as a barrier between himself and the officers.
Given that the officers' line of sight was presumably obstructed and Plaintiff continuously refused
to comply with orders to be searched and have hand restraints applied, force was reasonable,
necessary, and administered in a manner to effectuate safe transport of the Plaintiff despite his
non-compliance.
When viewed in its totality, the evidence presented fails to support Plaintiffs alleged
violations to his Eighth Amendment rights; therefore, Plaintiff is not reasonably likely to succeed
on his excessive use of force claim.
2. There is no reasonable probability that Plaintiff will prevail on his bystander
liability claim.
Plaintiff alleges that Defendants Vaughn and Emsoff were deliberately indifferent to the
use of force and deliberately allowed excessive force to occur. Plaintiff's Fourth Amended
7
Complaint at 4. Plaintiff never contends that Defendants Vaughn and Emsoff actually participated
in the use of force. Bystander liability exists only when an officer "(1) knows that a fellow officer
is violating an individual's constitutional rights; (2) has a reasonable opportunity to prevent the
harm; and (3) chooses not to act." Kitchen v. Dallas County, Tex., 759 F.3d 468, 480 (5th Cir.
2014). The plaintiff must be able to allege and prove "another officer's use of excessive force" in
order to establish a (ause of actio~ under bystander liability. I d. Additionally, even if an officer is
present during the relevant events, the plaintiff must show that the officer "had a reasonable
opportunity to realize the excessive nature of the force and to intervene to stop it." Hale v. Townley,
45 F.3d 914,919 (5th Cir. 1995).
For reasons discussed the previous section, there is no reasonable probability that Plaintiff
will succeed on the merits of his excessive use of fcrce claim. Thus, because a constitutional
violation is an essential underlying element of bystander liability, there is also no reasonable
probability that Plaintiff will succeed on his bystander liability claim.
3. Defendants are entitled to qualified immunity.
Defendants were employed by TDCJ at all times relevant to the allegations in Plaintiffs
petitions. Defendants asserted their entitlement to qualified immunity in their answers and are
entitled to the protections afforded b~ that affirmative defense. The Amarillo Court of Appeals
held that it was error to dismiss the original proceedings based on "the sufficiency of Jackson's
pleadings vis-a-vis the official immunity claim of Vaughn and Emsoff." Jackson, 2014 WL
6999333 at *9. However, because Defendants Honesto, Nail, and Guzman did not answer prior to
the case being appealed to the Amarillo Court of Ap1,eals, they have never argued the issue of
qualified immunity as it applies to them. Additionally, because the bystander liability claim was
never explicitly plead or briefed on appeal nor was it addressed in the Court's original Findings of
8
Fact and Conclusions of Law, Defendants Emsoff and Vaughn have not yet addressed the issue of
qualified immunity as it pertains to Plaintiff's bystander liability claim.
In order to overcome a defendant's entitlement to qualified immunity, a plaintiff must
satisfy a three-part test. Kipps v. Callier, 197 F.3d 765, 768 (5th Cir. 1999) (citing Morris v.
Dearborne, 181 F.3d 657, 665 (5th Cir. 1999)). First, the plaintiff must allege the deprivation of a
constitutional right. Wilson v. Layne, 526 U.S. 603,603 (1999); see also Morris v. Dearborne, 181
F.3d 657,665 (5th Cir. 1999). Second, the plaintiffmust allege the violation of a right that was
1.. clearly established at the time of the alleged violation. Wilson, 526 U.S. at 603. Finally, the plaintiff
-d \§'ust producif competent summary judgment evidence which demonstrates that the violation
occurred or at least gives rise to a genuine issue of material fact as to whether the defendant actually
engaged in the conduct that violated the clearly established right. Kipps, 197 F.3d at 768. If the
plaintiff meets this burden, then the court must decide whether the conduct was nonetheless
"objectively reasonable." Eugene v. AliefiSD, 65 F.3d 1299, 1305 (5th Cir. 1995). A plaintiff fails
to satisfy either of these requirements with conclusory allegations of wrongdoing. Geter v.
Fortenberry, 849 F.2d 1550, 1553 (5th Cir. 1988).
As detailed above, Plaintiff's claims are substantively deficient and he has: 1) Plaintiff has
not suffered, a physical injury as required by Hudson; 2) Plaintiff's excessive use of force claim
against Defendants fails to withstand constitutional scrutiny when analyzed under the factors
delineated in Hudson and Wilkins; and 3) Plaintiff's bystander liability claims fails because there
was no underlying constitutional violation of Plaintiff's rights of which Defendants Emsoff and
Vaughn were aware. For these reasons, the Defendants' entitlement to qualified immunity is
preserved and therefore, Plaintiff has no reasonable probability of success on his claims.
As shown above, Plaintiff's claims fail constitu·:ional scrutiny. Therefore, the Plaintiffhas
9
not cleared the first hurdle of the qualified immunity analysis. However, even if the Court could
find that there was a violation of the Plaintiffs constitutional rights, it must still determine whether
the Defendants' actions were objectively unreasonable in light of the law as it existed at the time
the conduct occurred and in light of the information that the defendant possessed. Assuming
arguendo that Defendants violated Plaintiffs constitutional rights, their actions were objectively
reasonable. For this independent reason, Defendants arlo! entitled to qualified immunity.
Foremost, as supported by the attached evidence, Plaintiff has not suffered an injury within
the framework of the constitution that would incite its protection. Furthermore, Plaintiff himself
admitted that he was committed several defiant acts, which lead to the need for an extraction team.
Therefore, any force, if used, was reasonably applied in an effort to regain compliance.
In total, the Plaintiff has offered only conclusory allegations which are not sufficient to
show a reasonable probability of success on the merits of his claims. Defendants have also
provided evidence that shows that there is not a reasonable probability that Plaintiff will prevail in
the litigation. Thus, Defendants have met the first prong of the test to determine whether Plaintiff
is a vexatious litigant.
F. Plaintiff's Previous Litigation
In the past seven years, Plaintiff has filed more than five litigations and appeals, proceeding
pro se, which have been finally determined adversely against him or dismissed as groundless or
frivolous. 2 The following six suits have been dismissed as groundless or frivolous: (1) Jackson v.
Darryl Glenn, 2:14-cv-0036 (N.D. Amarillo Division) was dismissed on July 2, 2014 as frivolous
and for failure to state a claim (See Exhibit C); (2) Jackson v. John Adams, et al., 2:10-cv-0261
2 While Plaintiff has already been declared
vexatious by the 25lst District Court in Potter County on June 26, 2013
and is now subject to a prefiling order (See Exhibit I), this prefiling order does not apply to the current litigation since
it was filed prior to the prefiling order being signed.
10
(N.D. Amarillo Division) was dismissed on June 15, 2011 as frivolous and for failure to state a
claim (See Exhibit D at 6); (3) Jackson v. Rick Thaler, et al., No. 25,403 (278th District Court of
Walker County) was dismissed on August 2, 2011 as frivolous (See Exhibit E, Memorandum
Opinion from the Appeal in the Tenth Court of Appeals at 1-2); (4) Jackson v. Boland, et al., No.
2:12-cv-0212 (N.D. Amarillo Division) was partially dismissed against Defendant G. David as
frivolous and for failure to state a claim on January 14, 2013 (See Exhibit F); (5) Jackson v. Mark
W Stiles Unit, et al., No. E-0189936 (172nd District Court of Jefferson County) was dismissed on
January 6, 2012 as frivolous (See Exhibit G); (6) Jackson v. State of Texas, No. 11-E-0255-C
(130th District Court of Matagorda County, Texas) was dismissed on April21, 2011 as having no
arguable basis in law (See Exhibit H).
Thus, Plaintiff clearly fits the statutory definition of a vexatious litigant for this suit as well.
Therefore, the Court should order him to furnish security and his case should be dismissed if this
security is not timely paid.
Conclusion
Because Plaintiff does not have a reasonable probability of prevailing on his claims and
because Plaintiff has commenced at least five lawsuits prose in the seven-year period immediately
preceding the date of this motion, the Court, after notice and a hearing, should order plaintiff to
provide security to defendant to cover reasonable expenses incurred in connection with the
litigation, including costs and attorney fees. See Tex. Civ. Prac. & Rem. Code§ 11.055(c)
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
11
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
KAREN D. MATLOCK
Assistant Attorney General
Chief, Law Enforcement Defense Division
Is/ PATRICK T. POPE
PATRICK T. POPE
Assistant Attorney General
Attorney-in-Charge
State Bar No. 24079151
Law Enforcement Defense Division
Office of the Attorney General
P. 0. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 463-2080 I Fax (512) 936-2109
ATTORNEYS FOR DEFENDANTS
VAUGHN, EMSOFF, NALL, HONESTO,
AND GUZMAN
NOTICE OF ELECTRONIC FILING
I, PATRICK POPE, Assistant Attorney General of Texas, do hereby certify that I have
electronically submitted for filing a correct copy of the foregoing Defendants Honesto, Nail, and
Guzman's Motion to Declare Plaintiff a Vexatious Litigant & Request for Security in
accordance with File & Serve Xpress for Lubbock County, Texas, on May 8, 2015.
Is/ PATRICK T. POPE
PATRICKT. POPE
Assistant Attorney General
12
CERTIFICATE OF SERVICE
I, PATRICK POPE, Assistant Attorney General of Texas, do hereby certify that a true
and correct copy of the above and foregoing Defendants Honesto, Nail, and Guzman's Motion
to Declare Plaintiff a Vexatious Litigant & Request for Security has been served by placing
same in the United States Mail on May 8, 2015, addre (NOTE: New or additfone/lnfonnatlon must be :supporled by writtenent:stateme to call all those, or limit yourself to just those, named In the Reporl)
nts [on an lnter-Offfce Communication].)
•
If facts are evident you may determine there Is no necessity to
conduct interviews; if so, proceed to Section N: and
•
Provide a summary of nndlngs and recommendations in
Section IV forth" Reprimanding Authority to review.
Instruct/~ to Reprfm andlng Authorf ty:
•
Not• your evaluatfon of the employee's conduct and ection
taken, if any, in Section V.
I. USE OF FORCE OCCURRED
a. Use of Force occurred on (date/lime):
3-17-11 1515
b. Location where use of force occurred:
WRMF Ward AS-1
II. EMPLOYEE PARTICIPANT I WITNESS
Ma:tne Cind:t
(Print Last}
0 CO IV
(First} (MI} (Rank/Title)
Ill. FACT-FINDING INQUIRY
a. Fact-tlndlng Inquiry began on (date): 412/2011 and ended on (date): 4/512011
b. EMPLO VEE(S) interviewed (p/tHse print):
Last Guzma n First David Ml _J_ Rank COlli
Last Honest o First Peter Ml _jj_ Rank CO IV
Last ~illl First Jsi!D§I Ml _a_ Rank CQI!I
c. OFFENDER(S) Interviewed (please print):
Last none First Ml
Last First Ml
- TDCJJ Custody
- TDCJJ Custody
IV. SUMMARY AND FINDINGS
a. Summary of Inquiry: See attache d
b. Findings: Based on See attache d
, it appears the employee's actions were:
12] Appropriate; 0 Inappropriate (.> Determ ined to be 'aggtav ated'? 0 YES 0 NO),
. .. as evidenced by: 0 Alleged violation of departmental rules/regulations (Specify):
0 Other (Specify):
c. Recommendatlons: ~ No action taken 0 Refer to OIG for investigation 0 Employee Hearing pursuant to PD-22
0 Other (Specify):
A
d. Assistant Warden (ordealgnee) conducting inquiry:
Ra~ Perez
(Printed Name and Rank/Title)
Major ~~ -v//3///
(SljjilatureiO!JW.
V. FINAL OUTCOME
a. Evaluation: I have found the employee's actions were: ~ Appropriate 0
0 I am unable to determine based on evidence presented
Inappropriate (Determined to be 'aggrevated'? 0 YES 0 NO) -or-
b. Action: ~ No action taken 0 Refer to OIG for investigation (UOF-0/G RefemJI Attsched)
,...... - 0
Other (Specify):
jackson0001
SUMMARY: Offender Jackson was scheduled to chain out and stated he was not leaving the
unit without his property. He was housed in the Western Regional Medical Facility, AS-1. The
offender had no property at this unit. Warden Tucker was contacted and authorized the use of a
move team to place the offender on the chain bus by force if necessary. Chemical agents were
not authorized since the chain bus operator will not allow offenders on the bus who have been
exposed to chemical agents. A move team was assembled consisting of Officers: 1) Nail vest 9,
Ortega vest 12, Guzman vest 8. A. Martinez vest 13, Honesto vest 5 and Officer Mayne
operating the video camera. Sgt. Villegas briefed the camera and mistakenly stated chemical
agents were authorized. Staff went to the cell. Sgt. Villegas ordered Offender Jackson to submit
to a strip search and the application of hand restraints or chemical agents and/or the move team
would be used (although chemical agents would not be used). Offender Jackson refused and
stated he was not leaving until he had his property. Nurse Reese attempted verbal intervention
without success. Sgt. Villegas again repeated his orders and warnings. The offender did not
comply and placed a mattress in front of himself. Sgt. Villegas opened the cell door, the team
entered the eel} and Offender Jackson pushed team members past him. Team members were able
to grab Offender Jackson and force him to the floor."~er a brief struggle team members were
,- able ~y hand and leg restraints. Once restraints h1d been applied Offender Jackson stopped
··. resisting. Team members placea Offender Jackson in a sitting position, released the hand
restraints and reapplied them in front of his body. Team members released the leg restraints and
applied a chain. The lockbox and box was applied. Offender Jackson then refused to stand and
walk stating his leg was broken. Team members lifted Offender Jackson and placed him on a
gurney. Offender Jackson was then transported to the sally port. Arriving at the chain bus he
refused to stand and walk. Team members lifted Offender Jackson. carried him onto the bus and
placed him in a seat. The interior door was secured. The team exited the bus. The offender stated
his back and neck were injured. Nurse Reese visually assessed the offender and noted no visual
injury. Sgt. Villegas then took photos through the caged door. Sgt. Villegas then read the
offender participant statement and Offender Jackson stated he wanted to make a written
statement. Sgt. Villegas then concluded the use of force and the video camera was turned off.
FINDINGS: This use of force underwent a Fact-Finding Inquiry because the offender alleged he
was kicked and kneed in the head. Secondly, this action could not be confirmed or dismissed*
since the video camera wasnot on wide angle and could not be fully seen when viewing the
video tape.
Move team members were interviewed regarding their specific roles in this incident. All denied
the offender was struck or kneed during this use of force and did not see any other move team
member accomplish this action. Based on the offender's behavior during this incident and a lack
of evidence to support his account of the action's takert by staff, I do not feel any further action is
necessary with respect to this particular finding.
After the video camera was first turned on, Sgt. Villegas had Officer Mayne check the camera to
ensure it was on wide angle. During her manipulation of the camera's settings, which were
correct before she began to make readjustments, she zoomed the lens without returning it to the
wide angle setting, which significantly detracted from completely viewing the action taken
jackson0002
I
I find no action to intentionally conceal what took place
with this offender regarding the use of
the video camera. I do however feel Officer Mayne shoul
d undergo remedial training in the use
of the video camera however, to lessen the likelihoa ·1 of
this finding recurring. No further action
is necessary.
jackson0003
CRIMINAL JUSTICE
TE XA S DEPARTMENT OF
Use of Force Report
Witness Statement
acility (Unit and Alpha Cod
e): M
0 Use of Deadly Force
] Use of Minor For ce
·~eport Number: f'1A-o1.)9:ntal entity or officer
or employee of a
governmental entity, the Court must evaluate the complaint and dismis
s it without service of
process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolo 1
us , malicious, fails to state
a claim upon which relief can be granted, or seeks monetary relief from
a defendant who is
immune from such relie£ 28 U.S.C. 1915A; 28 U.S.C. 1915(e)(2).
The same standards will
support dismissal of a suit brought under any federal law by a prison
er confmed in any jail,
prison, or other correctional facility, where such suit concerns prison
conditions. 42 U.S.C.
1997e(c)(l). A Spears hearing need not be conducted for every prose
complaint. Wilson v.
Barrientos, 926 F.2d 480, 483 n.4 (5th Cir. 1991 l
1A claim is frivolous if it lacks
an arguable basis in law or in fact, Boo~r v. Koonce, 2 F.3d 114, 115
Denton v. Hernandez, 504 U.S. 25, 112 S. Ct. 1728, 1733, 118 L.Ed.2d (5th Cir. 1993); see,
340 (1992).
2Cf, Green
v. McKaskJe, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course,
our discussion of Spears should not be interpreted
to mean that all or even most prisoner claims require or deserve a SpearJ
'1earing, A district court should be able to dismiss as
frivolous a significant number of prisoner suits on the complaint alone
or d1e complaint together with the Watson
questionnaire.").
4\HHl261.allrui'.m that any federally protected right has
been violated by any one or more of the defendants. To state a claim upon which relief
may be
granted, ''the plaintiff must plead 'enough facts to state a claim to relief that is plausibl
e on its
face."' In re Katrina Canal Breaches Litigation, 495 F.3d 191,205 (5th Cir. 2007)(q
uoting Bell
At/. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007).
A
plausible entitlement to relief exists when the allegations in the complaint cross the thresho
lds
separating the "conclusory" from the "factual" and the "factually neutral" from the "factual
ly
suggestive." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 n.5, 127 S. Ct. 1955,
1966 n.5,
167 L. Ed. 2d 929 (2007). Plaintiff has utterly failed to state a claim on which relief can
be
granteq against any of the named defendants.
Plaintiffs attempt to challenge the entire disciplinary procedure is frivolous. Plaintif
f
was not prosecuted for the criminal acts he alleged fom·.ed the basis for disciplinary actions;
he
was, quite simply, disciplined. Thus, plaintiff was not entitled to the full panoply of
rights which
accompany criminal conviction. If the determination had been made that plaintiff's actions
were
egregious enough to justify referral for criminal prosecution, which sometimes happens
if the
crime is committed while the defendant is already serving time, plaintiff could have been
disciplined as well as subjected to criminal prosecution. Plaintiffs belief that his behavio
r
merited criminal conviction instead of a disciplinary procedure does not state a claim
of
4110.0261.allrules 4
Case 2:10-cv-00261-J-BB Document 9 Filed 06/15/11
Page 5 of 6 PageiD 77
constitutional dimension. Plaintiff is attempting to assert a constitutiona
l right which does not
exist and his claim, therefore, is frivolous. Neitzke v. Williams, 490
U.S. 319, 109 S. Ct. 1827,
104 L. Ed. 2d 338 (1989).
Plaintiff's attempt to challenge the existence of correspondence rules
which limit his First
Amendment freedom of speech while in prison is likewise frivolous.
Plaintiff offers the global
argument that the defendants enforce prison correspondence rules
all of which are, per se,
unconstitutional.
The Constitution is superior to any ordinary lee islative act and, where
they both apply to
the same subject matter, it is the Constitution which must govern.
Marbury v. Madison, 1
Cranch 137, 5 U.S. 137, 2 L. Ed. 60 (1803). "It is emphatically the
province and duty of the
judicial department to say what the law is. Those who apply the rule
to particular cases, must of
necessity expound and interpret that rule. If two laws conflict with
each other, the courts must
decide on the operation of each." !d. Therefore, it is the province
of the courts to interpret the
Constitution.
The Supreme Court has ruled that an inmate's First Amendment corres
pondence rights
may be limited by regulations reasonably related to the institution's
legitimate governmental
interest, such as, for example, security. Turner v. Safley, 482 U.S.
78, 107 S. Ct. 2254, 96
L. Ed. 2d 64 (1987). Plaintiff's challenge to the entirety of the corres
pondence rules is frivolous.
Neitzkev. Willia ms,49 0U.S. 3I9, I09S.Ct.1827, 104.L.Ed.2d338(1
989).
CONCLUSION
Plaintiff JACKSON has been given ample opportunity to provide his
best factual
statement. Jacquez v. Procunier, 801 F.2d 789,792 (5th Cir. 1986).
Plaintiff has had the
4\I0-0261.allrules 5
Case 2:10-cv-00261-J-BB Document 9 Filed 06/15/11
Page 6 of 6 PageiD 78
opportunity to amend to allege his best case and appears to have
done so. Bazrowx v. Scott, 136
F.3d 1053, 1054 (5th Cir. 1998).
For the reasons set forth above and pursuant to Title 28, United
States Code, sections
1915A and 1915(e)(2), as well as Title 42, United States Code,
section 1997e(c)(l), the Civil
Rights Complaint filed pursuantto Title 42, United States Code,
Section 1983, by plaintiff
REID IE JACKSON is DISMISSED WITH PREJUDICE AS FRIV
OLOUS AND FOR
FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN
BE GRANTED.
Further, in light of the failure of plaintiff LANDRUM to pay the
filing fee, request pauper
status, or respond to the show cause order, LANDRUM's claim
s are DISMISSED WITHOUT
PREJUDICE FOR FAlLURE TO PROSECUTE.
LET JUDGMENT BE ENTERED ACCORDP.-GL Y.
The Clerk shall send a copy of this order to plaintiff and to any
attorney of record. The
Clerk shall also mail copies of this order to TDCJ-Office of the
General Counsel, P.O. Box
13084, Austin, TX 78711; and to the ProSe Clerk at the U.S.
District Court for the Eastern
District of Texas, Tyler Division.
IT IS SO ORDERE~ .
Signed this the~~ of June, 2011.
4\10.026Uilrulcs 6
CAUSE NO. 2012-500,295
REIDIE JACKSON § IN THE DISTRICT COURT
TDCJ # 1164177, §
Plaintiff §
§
§ LUBBOCK COUNTY, TEXAS
v. §
§
VAUGHN,E T AL, § 72nd JUDICIAL DISTRICT
Defendants §
Defendants Honesto, Nail, and Guzman's Motion to Declare
Plaintiff a Vexatious Litigant & Request for Security
EX HI BI TE
IN THE
TENTH COURT OF APPEALS
No. 10-11-00323-CV
REID IE JAMES JACKSON,
Appellant
v.
RICK THALER, TEX. DEP'T OF
CRIMINAL JUSTICE,
Appellee
From the 278th District Court
Walker
MEMORA NDUM OPINION
This is an inmate-litigation case under chapter 14 of the Texas Civil Practices and
Remedies Code. See TEx. Civ. PRAc. & REM. CODE ANN. § 14.003(a)(2) (West 2002). In
seven issues, appellant, Reidie James Jackson, complains about
See id. We affirm.l
1 All pending motions are dismissed as moot.
I. BACKGROUND
Jackson is currently incarcerated at the Clements Unit in the Institutional
Division of the Texas Department of Criminal Justice in Amarillo, Texas. On December
13,2010, Jackson filed his original petition alleging a claim for false imprisonment based
upon his assertion that he was incarcerated seventy-one days in excess of his 333-day
criminal sentence. 2 He sought $110,000 in monetary damages and any other relief
necessary to "resolve the controversy." Thereafter, appellees, Rick Thaler and the Texas
Department of Criminal Justice, filed an original answer, asserting immunity and
numerous affirmative defenses, and a jury demand.3 The Texas Attorney General filed
an amicus curiae brief recommending that Jackson's claim be dismissed for failure to
comply with chapter 14. See id.
II. STANDARD OF REVIEW
Inmate litigation is governed by the procedural rules set forth in chapter 14 of the
civil practice and remedies code. See id. §§ 14.001-.014 (West 2002 & Supp. 2011); see also
McBride v. Tex. Bd. of Pardons & Paroles, No. 13-05-559-CV, 2008 Tex. App. LEXIS 1290, at
*6 (Tex. App.-Corpus Christi Feb. 21, 2008, pet. denied) (mem. op.). The Texas
Legislature enacted chapter 14 to control the flood of lawsuits filed in state courts by
2 Apparently, at some point, Jackson was released from prison, though the precise date is unclear
based on this record. His complaint pertains to a June 9, 1999 conviction for possession of a controlled
substance, which resulted in a three-year prison sentence with 333 days of time credited. In any event, he
is currently incarcerated based upon a separate criminal off-o nse.
3 In one of his numerous motions filed in the trial court. Jackson identified Thaler as the Director
of the Texas Department of Criminal Justice.
Jackson v. Thaler Page2
~--=
prison inmates, which consume valuable judicial resources with seemingly little
offsetting benefit. Hickson v. Moya, 926 S.W.2d 397, 399 (Tex. App.-Waco 1996, no
writ). This Court has noted:
Prisoners have everything to gain and little to lose by filing frivolous suits.
It costs them almost nothing; time is of JlO consequence to a prisoner;
threats of sanctions are virtually meaningless; and the prisoner can look
forward to a day trip to the courthouse. Thus, the temptation to file a
frivolous suit is strong. Such suits, however, waste valuable resources
and subject the state and its prison officials to the burden of unwarranted
litigation, preventing claims with merit from being heard expeditiously.
Id. (internal citations omitted) (citing Spellman v. Sweeney, 819 S.W.2d 206, 209 (Tex.
App.-Waco 1991, no writ)).
Generally, the dismissal of inmate litigation under chapter 14 is reviewed for
abuse of discretion. Brewer v. Simental, 268 S.W.3d 763, 767 (Tex. App.-Waco 2008, no
pet.). "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, pet. denied) (internal citations omitted). We may not substitute our judgment for
that of the trial court with respect to the resolution of factual issues or matters
committed to the trial court's discretion. See In re Spooner, 333 S.W.3d 759, 763 (Tex.
App.-Houston [1st Dist.] 2010, orig. proceeding); see also Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). The judgment of the trial court will be
affirmed if that judgment can be upheld on any reasonable theory supported by the
evidence. Ex parte E.E.H., 869 S.W.2d 496, 497-98 (Tex. App.-Houston [1st Dist.]l993,
Jackson v. Thaler Page3
writ denied); Harris County Dist. Attorney's Office v. Burns, 825 S.W.2d 198, 200 (Tex.
App.-Houston (14th Dist.] 1992, writ denied). And, we consider only the evidence
most favorable to the judgment, and if there is some evidence to support the judgment,
we will affirm. State v. Knight, 813 S.W.2d 210, 211 (Tex. App.-Houston [14th Dist.]
1991, no writ).
The trial court has broad discretion to dismiss an inmate's claim as frivolous.
Schroedter, 88 S.W.3d at 736. In fact, section 14.003 authorizes the trial court to dismiss
an inmate's claim, either before or after service , .f process, if the claim is found to be
frivolous or malicious. TEX. Civ. PRAC. & REM. CODE ANN.§ 14.003(a)(2). To determine
whether a claim is frivolous, the trial court may consider if: (1) the claim's realistic
chance of ultimate success is slight; (2) the claim has no arguable basis in law or 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); see Schroedter, 88 S.W.3d at 736.
Furthermore, the trial court is not required to conduct a hearing before
dismissing a case pursuant to chapter 14. See TEX. Civ. PRAC. & REM. CODE ANN.§
14.003(c). Instead, the question of whether to hold a hearing is committed to the trial
court's discretion. See id.; see also McCray v. Mulde·, No. 12-10-00349-CV, 2011 Tex. App.
LEXIS 5884, at *10 (Tex. App.-Tyler July 29, 2011, no pet.) (mem. op.) (citing Hamilton
v. Pechacek, 319 S.W.3d 801, 810 (Tex. App.-Fort Worth 2010, no pet.)). Thus, in this
case, the trial court was not required to provide Jackson with an opportunity to respond
before dismissing his claim under section 14.003. See, e.g., Geiger v. Garcia, No. 10-07-
Jackson v. Thaler Page4
00404-CV, 2009 Tex. App. LEXIS 7885, at *3 (Te.c App.-Waco Oct. 7, 2009, no pet.)
(citing Gowan v. Tex. Dep't of Criminal Justice, 99 S.W.3d 319,323 (Tex. App.-Texarkana
2003, no pet.)).
III. THE TRIAL COURT'S ORDER OF DISMISSAL
In his seven issues, Jackson contends that: (1) the trial court erred in dismissing
his lawsuit because he has a First Amendment right to file suit and because the
dismissal denied him due process; (2) the trial court violated Texas Rule of Civil
Procedure 308 by failing to enforce an order signed on February 9, 20114; (3) the trial
court erred by not allowing him to prosecute his claim against the defendants
4 Texas Rule of Civil Procedure 308 provides that:
The court shall cause its judgments and decrees to be carried into execution; and where
the judgment is for personal property, and it is shown by the pleadings and evidence and
the verdict, if any, that such property has an especial value to the plaintiff, the court may
award a special writ for the seizure and delivery of such property to the plaintiff; and in
such case may enforce its judgment by attachment, fine[,} and imprisonment.
TEX. R. Civ. P. 308.
In the February 9, 2011 order of which Jackson complains, the trial court ordered that the Texas
Attorney General's Office file an amicus curiae brief within sixty days of receipt of the order. Jackson
appears to argue that the filing of the amicus curiae brief was not timely ffied. We do not find this
argument to be meritorious, especially considering the Attorney General's Office ffied its amicus curiae
brief on February 28,2011, less than thirty days after the trial court signed its order.
And, to the extent that Jackson argues that the Attorney General's Office is not authorized to
represent Thaler, we point out that article IV, section 22 of the Texas Constitution provides that the
Attorney General "shall represent the State in all suits and pleas in the Supreme Court of the State in
which the State may be a party ... and perform such other duties as may be required by law." TEX.
CONST. art. IV,§ 21; see Brady v. Brooks, 99 Tex. 366,89 S.W. 1052, 1055 (1905). In addition, sections 101.103
and 104.004 of the civil practice and rem~dies code authorize the Attorney General's Office to defend
public servants. See TEX. Civ. PRAC. & REM. CoDE ANN. § 101.103 (West 2011) (stating that the Attorney
General's Office shall defend each action brought under the Texas Tort Claims Act 1/against a
governmental unit that has authority and jurisdiction coc :tensive with the geographical limits of this
state"); see id. § 104.004 (West 2011) (requiring the Attorney General's Office to defend a public servant
against a suit for damages based upon actions within the scope of the public servant's employment). We
therefore find this argument lacking an arguable basis in law as well.
Jackson v. Thaler PageS
separately; (4) the trial court was biased and refused him a fair trial; (5) Thaler did not
obey the trial court's orders-in particular, the February 9, 2011 order-and thereby
prejudiced Jackson's case; (6) the trial court erred in dismissing his lawsuit without
notice and a hearing; and (7) the trial court erred in relying on chapter 14 to analyze his
lawsuit.
When the trial court dismisses a claim without conducting a fact hearing, which
is the case here, the issue on appeal is whether the claim had an arguable basis in law.
See Spurlock v. Johnson, 94 S.W.3d 655,658 (Tex. App.-San Antonio 2002, no pet.) (citing
Martin v. Tex. Bd. of Criminal Justice, 60 S.W.3d 226,229 {Tex. App.-Corpu s Christi 2001,
no pet.); Sawyer v. Tex. Dep't of Criminal Justice, 983 S.W.2d 310, 311 (Tex. App.-
Houston [1st Dist.] 1998, pet. denied)). Based on our review of the record, including all
of the briefs and responses he has filed in this Court, we conclude that Jackson's false-
imprisonmen t claim has no arguable basis in law. See TEx. Ov. PRAC. & REM. CODE
ANN. § 14.003(b)(2); see also Brewer, 268 S.W.3d at 767; Spurlock, 94 S.W.3d at 658;
Schroedter, 88 S.W.3d at 736. This is true for many reasons, which we will now explain.
First, the crux of Jackson's underlying lawsuit is that he was wrongfully
incarcerated for a period beyond his judicially-imposed sentence. 5 The United States
Supreme Court has stated that "Congress has determined that habeas corpus is the
sIn his original petition, Jackson did not reference title 42, section 1983 of the United States Code.
See 42 U.S.C. § 1983; see also Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex. App.-San Antonio 2002, no pet.)
("To determine whether a trial court has properly determined that there is no arguable basis in law for a
claim, 'we examine the types of relief and causes of action appellant pleaded in his petition to determine
whether, as a matter of law, the petition stated a cause of action that would authorize relief.~~~ (quoting
Jackson v. Tex. Dep't of Criminal Justice-Inst. Div., 28 S.W.3d 811, 813 (Tex. App.-Corpus Christi 2000, pet.
denied))).
Jackson v. Thaler Page6
appropr iate remedy for state prisoners attacking the validity of the fact or length of
their confinement, and that specific determination must override the general terms of
[section] 1983." Prieser v. Rodriguez, 411 U.S. 475, 490, 93 S. Ct. 1827, 1836, 36 L. Ed. 2d
439 (1973). Later, in Heck v. Humphrey, the United States Supreme Court clarified that
"the hoary principle that civil tort actions are not appropriate vehicles for challenging
the validity of outstan ding criminal judgments applies to [section] 1983 damage s
actions that necessarily require the plaintiff to prove the unlawfulness of his conviction
or confinement ...." 512 U.S. 477, 486, 114 S. O·. 2364, 2372, 129 L. Ed. 2d 383 (1994).
Therefore, because Jackson challenges the validity of the fact and duratio n of his
confinement, the proper remedy is a habeas corpus petition in the federal court. See
·
Heck, 512 U.S. at 486, 114 S. Ct. at 2372; see also Prieser, 411 U.S. at 490,93 S. Ct. at 1836.
Next, Jackson fails to identify a basis in law for his claim of money damages;
instead, he simply asserts, without explaining, that he should be paid $110,000 in
money damage s for the alleged false imprisonment. Though he cites to the Texas Penal
Code, Texas Constitution, and other avenues for redress, Jackson cannot bring a private
cause of action under these provisions. See TEX. Ov. PRAc. & REM. CODE ANN. § 103.001
(West Supp. 2011) (providing that a person is entitled to compensation if, among other
things, he served time in prison and has received a full pardon on the basis of innocence
or has been granted relief in accordance with a writ of habeas corpus -none of which
apply here); Smith v. City of League City, 338 S.W.3d 114, 127 (Tex. App.-H ouston [14th
Dist.] 2011, no pet.) ("The due process provisions of the Texas Constitution do not
imply a cause of action for damages."); Spurlock, 94 S.W.3d at 658 ("However, the Texas
Jackson v. Thaler
Page7
Penal Code does not create private causes of action ... .");City of El Paso v. Heinrich, 284
)
S.W.3d 366, 380 (Tex. 2009) ("With the limited ultra vires exception ... governm ental
immunit y protects governm ent officers sued in their official capacities to the extent that
it protects their employers.").6
Therefore, because we have concluded that Jackson's lawsuit does not have an
arguable basis in law, we cannot say that the trial court abused its discretion in
dismissin g Jackson's lawsuit as frivolous without a hearing. See TEX. CIV. PRAC. & REM.
CODE ANN.§ 14.003(b)(2); see also Brewer, 268 S.W.3d at 767; Schroedter, 88 S.W.3d at 736.
Accordingly, we overrule all of Jackson's issues pertainin g to the trial court's order of
dismissal.
IV. JACKSON 'S REQUESTS FOR FINDINGS OF FACT AND CONCLUS IONS OF LAW
While we recognize that we are required to review and evaluate pro se pleading s
with liberality and patience, we are also required to apply the same standard s
applicable to pleading s drafted by lawyers. See f.oster v. Williams, 74 S.W.3d 200, 202
(Tex. App.-Texarkana 2002, pet. denied). In light of that, Jackson also appears to argue
6 On appeal, Jackson asserts that Thaler's actions were ultra vires;
however, in his original
petition, Jackson did not allege that Thaler acted outside the scope of his employment such that his
actions were ultra vires. See Franka v. Velasquez, 332 S.W.3d 367, 369 (Tex. 2011) (stating that "all
[common-law] tort theories alleged against a governmental unit ... are assumed to be 'under [the Tort
Oaims Act]' for purposes of section 101.106." (citing Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d
653, 659 (Tex. 2008))). In addition,
[i]t is fundamental that a suit against a state official is merely another way of pleading an
action against the entity of which [the official] is an agent. A suit against a state official in
his official capacity is not a suit against the official personally, for the real party in interest
is the entity. Such a suit actually seeks to impose liability against the governmental unit
rather than on the individual specifically named and is, in all respects other than
name ... a suit against the entity.
Id. at 382 n.68 (internal citations & quotations omitted).
Jackson v. Thaler PageS
that he was entitled to findings of fact and conclusions of law from the trial court. Here,
Jackson requeste d such findings. And when the trial court failed to enter such findings
,
Jackson sent the trial court a letter notifying it that the findings were past due. See TEX.
R. Crv. P. 297.
Texas courts have held that, when a trial court renders judgme nt or dismisses a
cause without hearing any evidence, findings of fact are not appropriate. See IKB Indus.,
Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997); Retzlaff v. Tex. Dep't of Criminal
Justice, 94 S.W.3d 650, 655 (Tex. App.-H ouston [14th Dist.] 2002, pet. denied) (holding
that there is no duty to file findings after dismissal of an inmate suit under Texas Civil
Practice and Remedies Code chapter 14); Timmons v. Luce, 840 S.W.2d 582, 586 (Tex.
App.-T yler 1992, no writ); see also Walker v. Callahan, No. 04-05-00095-CV, 2005 Tex.
App. LEXIS 7887, at **3-4 (Tex. App.-S an Antonio Sept. 28, 2005, no pet.) (mem. op.);
Khufu v. Stringfellow, No. 12-03-00362-CV,2005 Tex. App. LEXIS 3291, at *7 (Tex. App.-
Tyler Apr. 29, 2005, pet. denied) (mem. op.). Thus, the trial court had no duty to file
findings of fact and conclusions of law in this Cc'.e. See IKB Indus., Ltd., 938 S.W.2d at
443; Retzlaff, 94 S.W.3d at 655; Timmons, 840 S.W.2d at 586; see also Walker, 2005 Tex.
App. LEXIS 7887, at **3-4; Khufu, 2005 Tex. App. LEXIS 3291, at *7. As such, this issue is
overrule d.
V. CONCLU SION
Having overrule d all of Jackson's issues on appeal, we affirm the judgme nt of the
trial court.
Jackson v. Thaler Page9
ALSCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed February 29, 2012
[CV06]
Jackson v. Thaler Page 10
CAUSE NO. 2012-500,295
REIDIE JACKSON § IN THE DISTRICT COURT
TDCJ # 1164177, §
Plaintiff §
§
§ LUBBOCK COUNTY, TEXAS
v. §
§
VAUGHN,E T AL, § 72nd JUDICIAL DISTRICT
Defendants §
Defendants Honesto, Nail, and Guzman's Motion to Declare
Plaintiff a Vexatious Litigant & Request for Security
EX HI BI TF
r-~----~----------------~----------- ---------------------------------------~·\
Case 2:12-cv-00212-~;~ Document 23 Filed 01/14/13 ~~e 1 of 4 PageiD 269
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
REIDIE JACKSON, PRO SE, §
TDCJ-CID No. 1164177, §
Previous TDCJ-CID No. 795456, §
Previous TDCJ-CID No. 874760, §
JERMAINE LANDRUM, §
TDCJ-CID No. 1403311 §
§
Plaintiffs, §
§
v. § 2:12-CV-0212
§
GREGORY BOLAND, §
MANUEL FRESCAS, and §
GREGORY S. DAVID, §
§
Defendants. §
ORDER OF PARTIAL DISMISSAL
The instant cause was originally filed as Case No. 100851-A in the 47th Judicial District ·
Court of Potter County, Texas on August 30,2012 and was removed to the United States District
Court for the Northern District of Texas, Amarillo Division, on October 8, 2012, by defendants
BOLAND and FRESCAS, where it was filed under the above-stated style and cause number.
PlaintiffREIDIE JACKSON, acting pro se and while a prisoner confined in the Texas
Department of Criminal Justice, Correctional Institutions Division, filed suit pursuant to Title 42,
United States Code, sections 1983, 1985(3), and 1986 complaining against the above-named
defendants. The filing fee was paid by the defendants upon removal.
On December 14, 2012, a Report and Recommendation was issued by the United States
Magistrate Judge recommend·
case 2:12-cv-00212-.:.]~ Document 23 Filed 01/14/13 ~:te 2 of 4 PageiD 270
On December 26, 2012, plaintiff filed a document entitled "Second Amended Compla
int"
which, by his January I0, 2013 Response, he has elected to have treated as his Objectio
ns to the
Report and Recommendation. By his Objections, plaintiff alleges defendant DAVID was
presumably the warden who gave directions and enforced policies on the High Security
Area where
plaintiff was housed. He states defendant DAVID enforced the policy or custom that prevente
d
inmates from giving sick call requests directly to medical personnel.
Plaintiff goes on to allege that all the defendants had a "mutual understanding" and a
common goal of deliberately, intentionally, or recklessly endangering plaintiffs present
and future
health. Plaintiff says defendant DAVID, after receiving notice of the altercation between
plaintiff
and defendant FRESCAS, "refus[ ed] to instruct a subordinate [to] have medical engage
treatment
policy."
While plaintiff ascribes a "mutual understanding" and "common goal" to the defendants,
he
does not present any allegation of material fact to support the implicit claim of conspira
cy.
Conclusory allegations lacking reference to material facts are not sufficient to state a claim
of
conspiracy under section 1983, McAfee v. 5th Circuit Judges, 884 F.2d 221 (5th Cir.1989
), cert.
denied, 493 U.S. 1083, 110 S. Ct. 1141, 107 L. Ed. 2d 1046 (1990).
As to his allegation that DAVID, after receiving notice of the February 25, 2012 altercati
on
between plaintiff and defendant FRESCAS, "refus[ed] to instruct a subordinate [to] have
medical
engage treatment policy," the only notice plaintiffs complaint indicates went to DAVID
was that
contained in plaintiffs April27, 2012 Step I Grievance No. 2012160993, by which plaintiff
requested a unit transfer. Although plaintiff alluded to an attempt by the other defenda
nts to cover-
up the incident by denying him medical treatment, plaintiff does not actually request medical
treatment or indicate he needs any at that time. Moreover, defendant DAVID merely investig
ated
2
Case 2:12-cv-00212-~;)s Document 23 Filed 01/14/13 t.:]te 3 of 4 PageiD 271
and resolved the grievance. As set forth in the Magistrate Judge's Report and Recomm
endation, the
narrowing of prisoner due process protection announced in Sandin v. Conner, 515 U.S.
472, 115
S. Ct. 2293, 132 L. Ed. 2d 418 ( 1995), leaves plaintiff without a federally-protected right
to have his
grievances investigated and resolved. Any right of that nature is grounded in state law
or regulation
and the mere failure of an official to follow state law or regulation, without more, does
not violate
constitutional minima. See, e.g., Murray v. Mississippi Dept. ofCorrections, 911 F.2d
1167, 1168
(5th Cir. 1990); Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir.), cert. denied, 489 U.S. 1085,
109 S. Ct.
1545, 103 L. Ed. 2d 849 (1989); Baker v. McCollan, 433 U.S. 137, 146-47, 99 S.Ct. 2689,26
95-
2696,61 L.Ed.2d 433 (1979). Moreover, plaintiff's claim in this respect is, at most, that
defendant
DAVID was negligent in the investigation and resolution of plaintiff's grievance. Plaintif
f's section
1983 claim against defendant DAVID on this basis lacks an arguable basis in law and
is frivolous.
Neitzke v. Williams, 490 u.s. 319, 109 S. Ct. 1827, 104 r .Ed.2d 338 (1989).
The Court has made an independent examination of the records in this case and has
examined the Magistrate Judge's Report and Recommendation, as well as the Objectio
ns filed by the
plaintiff.
The Court is ofthe opinion that the objections ofthe plaintiff should be OVERRULED
and
the Report and Recommendation of the United States Magistrate Judge should be ADOPT
ED by the
United States District Court, as supplemented herein.
This Court, therefore, does OVERRULE plaintiff's objections, and does hereby ADOPT
the
Report and Recommendation of the United States Magistrate Judge, as supplemented
herein.
IT IS THEREFORE ORDERED that plaintiff's Civil Rights Claims filed pursuant to Title
42, United States Code, sections 1983, 1985(3) and 1986 by plaintiffREIDIE JACKS
ON against
defendant GREGORY S. DAVID be DISMISSED WITPOUT PREJUDICE FOR FAILUR
E TO
3
Case 2:12-cv-00212-.C~ Document 23 Filed 01/14/13 ~~e 4 of 4 PageiD 272
STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED AND WITH PREJUDICE
AS
FRIVOLOUS.
LET JUDGMENT BE ENTERED ACCORDINGLY.
The Clerk shall send a copy ofthis order to plaintiff and to any attorney of record.
The Clerk shall also provide a copy of this order by regular mail, facsimile transmission,
or
e-mail to: (l) the TDCJ-Office ofthe General Counse~,. P.O. Box 13084, Austin, Texas,
78711, Fax
Number (512) 9362159; (2) the Inmate Trust Fund, P.O. Box 629, Huntsville, Texas 77342-0
629,
fax: 936-437-4793; and (3)
It is SO ORDERED.
{
Signed this the _ _ __.;.;_/_,.f_/ day of January, 2013.
4
CAUSE NO. 2012-500,295
REIDIE JACKSON § IN THE DISTRICT COURT
TDCJ # 1164177, §
Plaintiff §
§
§ LUBBOCK COUNTY, TEXAS
v. §
§
VAUGHN, ET AL, § 72nd JUDICIAL DISTRICT
Defendants §
Defendants Honesto, Nail, and Guzman's Motion to Declare
Plaintiff a Vexatious Litigant & Request for Security
EX HIB ITG
'.
Cause No. 11-E-0255-C
REIDIE JACKSON § IN THE DISTRICT COURT OF
§
vs. § MATAGORDA COUNTY, TEXAS
§
STATE OF TEXAS, et al. § 130th JUDICIAL DISTRICT COURT
ORDER DISMISSING INMATE LITIGATION
(§ 14.003(a)(2), Tex. Civ. Prac. & Rem. Code)
On this day the court received and reviewed the original petition filed by Reidie
Jackson, an inmate incarcerated in the Institutional Division, Texas Department of Criminal
Justice. Jackson filed an unsworn declaration of inability to pay costs with the petition,
therefore, TEX. CIV. PRAC. & REM. CODE, Chapter 14, relating to Inmate Litigation, applies.
Chapter 14 authorizes a trial court to dismiss an inmate's claim as frivolous, before
or after service of process, if it finds "(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 clair. l is substantially similar to a previous
claim filed by the inmate because the claim arises from the same operative facts." TEX. CIV.
PRA(::. &REM. CODE §14.003(b).
The court has determined that the is case may be decided without hearing and
therefore accepts Plajntifr s allegations as true. 1 Jackson's claim under Section 1, Article 17,
Texas Constitution2 alleges that his property was taken under a search warrant issued on
Deputy Keith Sullivan's affidavit. He alleges the affidavit supporting the warrant stated, "the
[confidential informant] advised [Sullivan] that.. .. " Jackson infers from this that Sullivan's
affidavit was not made based on information within Sullivan's personal knowledge, but
instead within the confidential informant's personal knowledge. Jackson concludes the
search warrant and subsequent search were legally defective.
Perales v. Kinney, 891 S.W.2d 731, 732 (Tex.App.-Houston [1st Dist.] 1994, no writ).
2
"No person's property shall be taken, damaged, or destroyed for or applied to public use
without adequate compensation being made ... " Tex. Const. art. I, § 17.
..,
l
H
V o 3~ f 'lLS-11 (p w.__
i i'
--.J-)_.}0
Plaintiffs allegations, taken as true, have no arguable basis in law because the
officer's reliance upon information provided by a confidential informant does not render the
officer's affidavit defective or the subsequent search illegal. 3 The court therefore determines
that Plaintiffs claims, taken as true on the facts, is without an arguable basis in law.
ITIS ORDERED that this case and cause of action is hereby DISMISSED WITHOUT
PREJUDICE pursuant to TEX. CIV. PRAC. & REM. CODE§ 14.003(a)(2) and § 14.003(b )(2).
Signed: April21, 2011.
c
Judge Presiding
Illinoisv. Gates, 462 U.S. 213,231, (l983)(approvingsearch warrants supported by hearsay
when the informant's information is sufficiently reliable to provide the magistrate with a substantial basis
for determining the existence of probable cause).
CAUSE NO. 2012-500,295
REIDIE JACKSON § IN THE DISTRICT COURT
TDCJ # 1164177, §
Plaintiff §
§
§ LUBBOCK COUNTY, TEXAS
v. §
§
VAUGHN, ET AL, § 72nd JUDICIAL DISTRICT
Defendants §
Defendants Honesto, Nail, and Guzman's Motion to Declare
Plaintiff a Vexatious Litigant & Request for Security
EX HIB ITH
REIDIE JAMES .JACKSON,
Plaintiff
v.
DAVID ELLIS, ET AL.,
Defendants
251ST .JUDICIAL DISTRICT
ORDER·
On this date, the Court considered Defendants Ellis and Gratz's Motion to Dismiss
Pursuant to Chapter 14 of the Texas Civil Practice & Remedies _Code and Defendallts' Motion
to Declare Plaintiff a Vexatious Litigant and Motion for a Pre-Filing Order simultaneously.
After sufficient notice to all parties and a hearing on the motions, the Court reviewed the
pleadings on file, the law, and the arguments of the p1.1rties and has detennined that Defendants'
Motions should be GRANTED as set forth below:
IT IS THEREFORE
of ac
the
IT IS FURTHER ORDERED; that Plaintiff Reidie James Jack~on should be, and
therefore is, designated a vexatious litigant pursuant to Texas Civil Practice and Remedies Code
§ 11.054;
IT IS FURTHER ORDERED, That Plaintiff Reiclie James Jackson provide security for
the benefit of Defendants in the amount of$ {51) .DC) , within 30 days of the signing of
this Court's order pursuant to Texas Civil Practice and Remedies Code § 11.055, or this suit will
be dismissed pursuant to Texas Civil Practice and Remedies Code § 11.056; A CERT\FIED CP,PY
Page 1 of i/
CAROLINE WOODBURN
District Clerk
Pottir cou~ty. Texas .
1.444483 ' )! . C"...
By,_ _..,.:"\•1-....
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\ """",...._.,__,. IJCLIUL"
IT IS FURTHER ORDERED, that Plaintiff Reidie James Jackson is hereby subject to
this Pre-Filing Order and is enjoined from filing any new litigation in propria persona in the
State of Texas without the prior pem1ission of the local administrative judge, pursuant to Texas
Civil Practice and Remedies Code §11..051-11.057.
SIGNED this ,;1(o~day of~Jt~UJ'i=-w..t~---' 2013.
A CERTIFIED COPY
Page ·/ of ')·-
CAROLINE WOODBURN
District Clerk
Potter..C.Ounty, Texas
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By "fiX}'
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Filed 8/3/2015 11 :50:00 AM
Barbara Sucsy
District Clerk
Lubbock County, Texas
CAUSE NO. 2012-500,295 RHR
REIDIE JACKSON § IN THE DISTRICT COURT
TDCJ # 1164177, §
Plaintiff §
§
§ LUBBOCK COUNTY, TEXAS
v. §
§
VAUGHN, ET AL, § 72nd JUDICIAL DISTRICT
Defendants §
Order
On this date, the Court considered Defendants Honesto, Nail, and Guzman's Motion to
Declare Plaintiff a Vexatious Litigant & Request for Security.
The Court finds Plaintiff Reidie Jackson is a vexatious litigant pursuant to Section 11.054
of the Texas Civil Practice and Remedies Code. Plaintiff is hereby ordered to furnish security in
the amount of $ SOO.OO by September 3 , 2015 to proceed in his claims against
Defendants Peter Honesto, James Nail, and David Guzman. Failure to timely furnish security shall
result in dismissal of the claims against Defendants Peter Honesto, James Nail, and David Guzman.
The Court further ORDERS that the case is abated until further order of the Court.
SIGNED on this the 3 rd day of_A_u_g_u_st_ _ _ _ _ _ _ , 2015.
Is/ Ruben Reyes
JUDGE PRESIDING
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