in Re Reidie James Jackson, Relator
This text of in Re Reidie James Jackson, Relator (in Re Reidie James Jackson, Relator) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
07-15-00429-CV
SEVENTH COiJHT OF APPE/ ! !2 vlvtAI\l LONG, CLERK LOL\RT D'F A?PEA~
~EVE \\.\'T\-\ t)\~W \CT cF TE.'if\5
9-E\0\E' 1.-.)PrM.ES \TAC...\:.:~D\\1 ,"""\\{;.o\\11 '"'a"iL, ·\(~\a..\-or '
v. \\oncn:l-b\e. :Rub r\. ~e..ies '\ 72..~ JtAdi~d \):,s\-c\c.:\- , LlA'obDe-'( LAsu."'+v , TeXa.s
'REPrL ~'Y IN IN\t'R~T t ?~ \1.~-\o " i:S"o.-~ rt~.\\ \ t:h:v~~ Ga\.(2.ff\a.\'\
PE\\\\DtJ \-oe MAl'JOAMI\As ?bAtN::>T- OSDSR r~'N\ ·72.f\o\ i::fUD\C\ AL U\ST'R\C..T of' L\AB~CC...K C..otlNTY , T£xPtS ~ \\cn.ocab\e.. 'Pl~ ". ~Y.e.s. .... CJ\U6£· 'No . .'Z..o\'2.. -5oo,2.'15 &\cl\'" ~~ v. C.O..ota.•'"'- v~h" ,e\-a.\.
~E\b\E ~~ ttoc:~!'J ~\\(b.l\\11 ~~b U~\ C\(C,() \ ~Pur ~ \ \\t'Y'f'tr~\\t. '-.\x 1'\\bl t? e.i,d;e_. 6Q.O'\.e.S Jo.c:...\C~o n • -~e..tcl~e.- ;:rQ,\.~ Siic..\\s~ ~\\~A\77
Yro ~JL. - ~e\o..·h, r C..,~1ts -qGOI ~S'>ll- AYV'f'tll\\cl)<
}115hDIC..b\..a_ ·~W:x.rt \\. ~JZ.Y~ • . \-\t;n. '\ 'A·nv\~\y L. ~{)tf'mo-f"\ ,. ~ . , ?d~ \i CY\>2.:':> -1-c ' \::)n. v ~d C:ux~rMn 1 A\torY\.JLv -hs-c -~ 'VM"hes 3~ l\.1a_\\ . . Co.";h \ Skhbn- ~ V\ .l.(\\-e,_~-\- PoLo . Box \Z.5~~" A~::,hn ~.lBln ..\\ .. ~ j; \\\ ?. "\ ?.~ S~a~e..I"NU\+ of -\-~ Lase P.3 J:ss~ 9re.seA-k.d I. PA .Stcx\-uY\.~..(\ \- Df '\=" o.c..t:::, ~1 . .. i P:4 A- r.f'l u f'I'\Q...n\- ~\ P5 ~to--t~~ ~ ~b ~L. " . P.l .. LcmclLASICSY'I i Pru..Ver ?.9 C...cu-4-\}\'c.Ak cf· Ser'I~C..t<.. P.C\ L lo- ... \1 R.e..ld;e_ ~Ys~ v.~~v..ii\ V~ ,(>1-\'?>-Doo~C. V" '2.cl4 W\.(d\'\'\'~?J:, - ~, ?. '2. /\ .,5 {\~ {:\qo ...- \\N'A,·,\\c \Je.c.. \\ ..:2.o\4 ,no ~\..'\ ·T~~ Cr~ v~\ Vro..d-\CJL~ ~-\e5> Ccxk. ~ \\. D'5'5 9tu\.e.;) ot:. ?t~\c..te... v('~U.\e. 'quk_ 52 I.. A ~ L \o..fuoc-o..do.. 8sh C.o. Te.x:a::!l , L.l.C... ~~q 2>w2J qD'B ( Tt2.X P..w- D:..\\a.s 2..o\O) lexa..s L~v:\ Oco..ct~c.e.. & ~~e. :~ C..o~ S\~.oo·~ ... - • 1JS b.u.Mw-dc v. L~we.-\l A~ :SW~ iC-'2... (Tu 2..oo\) . . V7 \\tsw-e..\\ v. Te_,((lL~ \J' m-\w~ t.c.YV\~ . ~{V\ , \4'2> !)W3d -\\fa A-\4 (Te..x A-f>f'- A\A:)h." 2oo4 R* ~(\., ••• \\I 1n re~€.\U\E. 3"\\«\E~ ()~'( \-\D~DR~~LE ?iU'B£\"l \\. ~E>IES, 1'2_n~ Suo\C..\A-L 1J)~n\C-T, \..U-&BOC..\C ~DU~ ,\Ej;~~ , Re...<;.A:sf\~\-, ~6PrL ?A) -rt> \l\c \-\OND~?t~\.£ o\.1'::>\\e..E~ OF '\\\E t.OUK:r of' ?tv?E~\..S-: tl:JN\5 t\\Dv.-1 , ~~d~«:...- (Jet.NI.ILS ~o..c...'h-:.o(\ ... McJ-or 1-c Qd--1\-\0't\ ~s Lou.('·\- ·foe Wr~\- ~r N'\~CLtY\.Al-~ .. \-\.e. w(H"lci o.f.F-v- -tk. Po\tn...fll'\£> \n <5.u9~ ~ -.. -1-o w~t- : :.:r:. 'Bn\\':,F t\\::':>TOK.'/ ~~~e..- ~o..cvvz.S ~~on \':::! f"-s.... ~\~N-;.W ·,n 'H1!.l~ ~o..tw?.b lf~sGY'\ v. Waa.;(\ Vo..u.~ e..t o.-\., ~ "h'7: 5oo, zcts , -~(\ -t~ ~nd J"'tAJ~\a.\ D;str\c..-\- wh.ue, -\-k \-tbV'\orCLb\e... 'Hu..'ne..f\ \-\. Ke. Ye:s 'Vre.-s~ci-es Re.:a~12- ~Q\..~ So..cA \~ 1-~ ~\Qtor II'\-\-~~ n.~-9\"lc_a_-\-; on ~' \--..n-\1- of ~~w ~·\a.\ N?..l~ tr~a\ r-~ ~ hi)\Q_ 1 ... of w'h;.c.h c..au..r+ crn • fi.Ftex ~ ~t ~r':) f'<\chi5Y\ tz:. ~n-sh1-·c../ New \rla.-\ ~ w:~ nc 1 CDier \~\\-ec -T-o e..;<~ru n --\-k u;nf\ \~ ~~ &f' -~ d.c~uM5L.Ylt- , ~<"\-~An "Def€.X\o\cx.()-t-s 'l Y\ c.Au-SQ.. '2...1? \2..- ~DD ~ ~q 5 hn.:ve... ~ set -~, D4- \\- ~o\G • :rr:.. l'{\f\~~tf\\.).:) ~TA-n;MEf\\1 o\= SuR\':>D\G\i~ --nv..~ 1 ~ d../'\. D, ~~~ f"\o_,\ ?ro~ \n':!) ~<>to.b\ls k.e\ b'/ ~ of ~PPe.UCih:.. ~oc.e.dute. ., ~ 52 ~ \\\o ofu~ \~Y ~s o.dvt.u .:u.L. -~11-TGI'fiENr ot 1WL~ (i>\ ·~ uV\du\'f'~V\~ '?CI)~\~ \'::l C.. 42. \.).~~ ~ \ttiQ') ~CQ.sS~'IIe.... f'orC-~ ~ \:rt~;\u.ndtU' hob\\\tv tl(}..\m ;(\ wh~c..'n N\ovMh V~\d MDti6Y\ to D~\ue.. ?\a..\C\-\1~' V~J(ah'ou.-:, L~n-T t 'Re..
Free access — add to your briefcase to read the full text and ask questions with AI
07-15-00429-CV
SEVENTH COiJHT OF APPE/ ! !2 vlvtAI\l LONG, CLERK LOL\RT D'F A?PEA~
~EVE \\.\'T\-\ t)\~W \CT cF TE.'if\5
9-E\0\E' 1.-.)PrM.ES \TAC...\:.:~D\\1 ,"""\\{;.o\\11 '"'a"iL, ·\(~\a..\-or '
v. \\oncn:l-b\e. :Rub r\. ~e..ies '\ 72..~ JtAdi~d \):,s\-c\c.:\- , LlA'obDe-'( LAsu."'+v , TeXa.s
'REPrL ~'Y IN IN\t'R~T t ?~ \1.~-\o " i:S"o.-~ rt~.\\ \ t:h:v~~ Ga\.(2.ff\a.\'\
PE\\\\DtJ \-oe MAl'JOAMI\As ?bAtN::>T- OSDSR r~'N\ ·72.f\o\ i::fUD\C\ AL U\ST'R\C..T of' L\AB~CC...K C..otlNTY , T£xPtS ~ \\cn.ocab\e.. 'Pl~ ". ~Y.e.s. .... CJ\U6£· 'No . .'Z..o\'2.. -5oo,2.'15 &\cl\'" ~~ v. C.O..ota.•'"'- v~h" ,e\-a.\.
~E\b\E ~~ ttoc:~!'J ~\\(b.l\\11 ~~b U~\ C\(C,() \ ~Pur ~ \ \\t'Y'f'tr~\\t. '-.\x 1'\\bl t? e.i,d;e_. 6Q.O'\.e.S Jo.c:...\C~o n • -~e..tcl~e.- ;:rQ,\.~ Siic..\\s~ ~\\~A\77
Yro ~JL. - ~e\o..·h, r C..,~1ts -qGOI ~S'>ll- AYV'f'tll\\cl)<
}115hDIC..b\..a_ ·~W:x.rt \\. ~JZ.Y~ • . \-\t;n. '\ 'A·nv\~\y L. ~{)tf'mo-f"\ ,. ~ . , ?d~ \i CY\>2.:':> -1-c ' \::)n. v ~d C:ux~rMn 1 A\torY\.JLv -hs-c -~ 'VM"hes 3~ l\.1a_\\ . . Co.";h \ Skhbn- ~ V\ .l.(\\-e,_~-\- PoLo . Box \Z.5~~" A~::,hn ~.lBln ..\\ .. ~ j; \\\ ?. "\ ?.~ S~a~e..I"NU\+ of -\-~ Lase P.3 J:ss~ 9re.seA-k.d I. PA .Stcx\-uY\.~..(\ \- Df '\=" o.c..t:::, ~1 . .. i P:4 A- r.f'l u f'I'\Q...n\- ~\ P5 ~to--t~~ ~ ~b ~L. " . P.l .. LcmclLASICSY'I i Pru..Ver ?.9 C...cu-4-\}\'c.Ak cf· Ser'I~C..t<.. P.C\ L lo- ... \1 R.e..ld;e_ ~Ys~ v.~~v..ii\ V~ ,(>1-\'?>-Doo~C. V" '2.cl4 W\.(d\'\'\'~?J:, - ~, ?. '2. /\ .,5 {\~ {:\qo ...- \\N'A,·,\\c \Je.c.. \\ ..:2.o\4 ,no ~\..'\ ·T~~ Cr~ v~\ Vro..d-\CJL~ ~-\e5> Ccxk. ~ \\. D'5'5 9tu\.e.;) ot:. ?t~\c..te... v('~U.\e. 'quk_ 52 I.. A ~ L \o..fuoc-o..do.. 8sh C.o. Te.x:a::!l , L.l.C... ~~q 2>w2J qD'B ( Tt2.X P..w- D:..\\a.s 2..o\O) lexa..s L~v:\ Oco..ct~c.e.. & ~~e. :~ C..o~ S\~.oo·~ ... - • 1JS b.u.Mw-dc v. L~we.-\l A~ :SW~ iC-'2... (Tu 2..oo\) . . V7 \\tsw-e..\\ v. Te_,((lL~ \J' m-\w~ t.c.YV\~ . ~{V\ , \4'2> !)W3d -\\fa A-\4 (Te..x A-f>f'- A\A:)h." 2oo4 R* ~(\., ••• \\I 1n re~€.\U\E. 3"\\«\E~ ()~'( \-\D~DR~~LE ?iU'B£\"l \\. ~E>IES, 1'2_n~ Suo\C..\A-L 1J)~n\C-T, \..U-&BOC..\C ~DU~ ,\Ej;~~ , Re...<;.A:sf\~\-, ~6PrL ?A) -rt> \l\c \-\OND~?t~\.£ o\.1'::>\\e..E~ OF '\\\E t.OUK:r of' ?tv?E~\..S-: tl:JN\5 t\\Dv.-1 , ~~d~«:...- (Jet.NI.ILS ~o..c...'h-:.o(\ ... McJ-or 1-c Qd--1\-\0't\ ~s Lou.('·\- ·foe Wr~\- ~r N'\~CLtY\.Al-~ .. \-\.e. w(H"lci o.f.F-v- -tk. Po\tn...fll'\£> \n <5.u9~ ~ -.. -1-o w~t- : :.:r:. 'Bn\\':,F t\\::':>TOK.'/ ~~~e..- ~o..cvvz.S ~~on \':::! f"-s.... ~\~N-;.W ·,n 'H1!.l~ ~o..tw?.b lf~sGY'\ v. Waa.;(\ Vo..u.~ e..t o.-\., ~ "h'7: 5oo, zcts , -~(\ -t~ ~nd J"'tAJ~\a.\ D;str\c..-\- wh.ue, -\-k \-tbV'\orCLb\e... 'Hu..'ne..f\ \-\. Ke. Ye:s 'Vre.-s~ci-es Re.:a~12- ~Q\..~ So..cA \~ 1-~ ~\Qtor II'\-\-~~ n.~-9\"lc_a_-\-; on ~' \--..n-\1- of ~~w ~·\a.\ N?..l~ tr~a\ r-~ ~ hi)\Q_ 1 ... of w'h;.c.h c..au..r+ crn • fi.Ftex ~ ~t ~r':) f'<\chi5Y\ tz:. ~n-sh1-·c../ New \rla.-\ ~ w:~ nc 1 CDier \~\\-ec -T-o e..;<~ru n --\-k u;nf\ \~ ~~ &f' -~ d.c~uM5L.Ylt- , ~<"\-~An "Def€.X\o\cx.()-t-s 'l Y\ c.Au-SQ.. '2...1? \2..- ~DD ~ ~q 5 hn.:ve... ~ set -~, D4- \\- ~o\G • :rr:.. l'{\f\~~tf\\.).:) ~TA-n;MEf\\1 o\= SuR\':>D\G\i~ --nv..~ 1 ~ d../'\. D, ~~~ f"\o_,\ ?ro~ \n':!) ~<>to.b\ls k.e\ b'/ ~ of ~PPe.UCih:.. ~oc.e.dute. ., ~ 52 ~ \\\o ofu~ \~Y ~s o.dvt.u .:u.L. -~11-TGI'fiENr ot 1WL~ (i>\ ·~ uV\du\'f'~V\~ '?CI)~\~ \'::l C.. 42. \.).~~ ~ \ttiQ') ~CQ.sS~'IIe.... f'orC-~ ~ \:rt~;\u.ndtU' hob\\\tv tl(}..\m ;(\ wh~c..'n N\ovMh V~\d MDti6Y\ to D~\ue.. ?\a..\C\-\1~' V~J(ah'ou.-:, L~n-T t 'Re.. 3 (,3) ·""fhu-~ eM-~ ~\-hPk thf '-u·V\oco..d"\CO.:\ +o 'Y-a.'I"Q..o C\. ~o nd \--, ~J . <4J 1.\ Did ·u-~c..\ C..O.U.:r c..bA~«:.- ~~ di~el-IDn wb ;\- ~olA~ci ~a..\-o0 1-t. ve.xa.t-l"o\AS -~ nCl \<-C~..-~~'C\u..'de...- pro~~\y·\c ide.vo..\\ ~ ~ (l:)-;,erls 'oz.., tria.\ c.o\AC"""t +'a..\\~ +o Mct\vze.. \aw ~\y or CU'~\y 1-\--\-o ~of tk.c.asJL. 2...:'\ Ui'd 1c;a.,\ ~ U:'o~ ~~ dl~u-e.\ion \:s-1 o\d.u--;n~ ~a...\-o0 ·\o 9o.."( ~':jDO. oO ¥-rurw;(\~ hL. was. Pfb~~~ \n ~YrA Y'CMA?U'\~ 'V\Ar~\AC\T C...ha..~e..r \4 C..~ vi\ i/cuc-h'CJ2..-& -~ ~ ~ -::sr... ~TffitN\alf Dr ~~ ~1 ~a.\-or \'b t~ ?\runhW \n &;~ ~Cfw~ v, ~~~{\ \f~'r.n<-·h.--\.) ~~ ~h ,.*Z.o\2.-':>oo,'L'l~ • .::c;.. JOU\l.A.Q.,c"f t~·F '2.o\o 0l..Ad~e..- ~e.-"es ~er..n.\-e.d ~~~ C...hcU~T~ \1\: N\c\-~cm to D,-s ~~~ • · C..,O'lM' t c-t? \\?ttA\s \e-N'll.X:')~ ~ \UY\(L(\ckd -\-\u.., ~ .\(\ .To..c.k~cm v. 'i~'nf\ c£-\'?rooo'22...- \_,v-.. ?_o\~ WL ((:HCf\~'0':> (\a. \)r"~·-A~r;\\o Dec.\\ -..Zc1~ , n.o ~ h--:'\ • ·-nv.'s ~ fi' ~\~ ht.\d -\-hn-1- fte1a.+-or:.... c.Gm \C\CO~ u~~~ .to~ c...\~ a O.f\cl K.Q..CW&~\- ~ S-z_c.-u.r-thr n.\- ~ 2> (E); 't.i6 fu.-s~\z. Proo:~o\\~ ef' s~s on -\-h.cL N\~~t":> \ +~ N\ova.~ c._;-\-d . . L~l\.~te.... Y. Uy ~1 ;)'\',rM sqo .,.~'6 (\€)(. t\~0,. -\\(\"A\;\ \o Zo\ \ ,no e,:r~. ,. UM.tu-+akln6 \l"-ls::J \f\ . o..:>~:'l5 w\\atku- ~Y tomfrise a. v\a.6\a_ ~ st cM:..hm'"\ .'' \'{\o'lavi\b l('{!l..ili- ~n \-o ~ thcrt- \-\\A-:., L~c-t. of Pt~~ )o.\~v 'rul~ ~~ cl~~ mS Suff?c.Au\\\ -f a.\~ e,J(~S~-VL kc..z... ~ 0. b-vs·\-urukr- do..\\'\\ "hl- tha..+ ~ "-L_. 1\f\ ~ 'iWL:C'\·1~ ~ ~-\-- \ \l c...,~\nts 01.\-L -not- \' \ / t "\ Y\UY -Th ~u.t...ceaa 0(\. 'I( n \elfa...-\h CM to ~t 1-k._ .So..fv\JL. O..~m.o..i\-T5 T'n.a._v 'no.d ?rev\IS)A.:>\'i ~ ;'(\ ~ ~~ \4 \-'rvL ·fY'A~lbol( \W&-' n.r~\Acwu+~ 1 M~\5\'\.S -\-o 'DI<;;.M\~s r\'\\(\u.s '1"\vwz_ YVu.t~"k_ ~-\:<., ~n ~~'Zc\2.-000 -.25\15 So bt ci\"2/rM~S~~ (L(""a.... ~\c..~m-s ~(\,s+ t\'\lv~nts ne nRPaa:\ ~".) fiXcM\ab\z_ t.m~\ hl'\o..\ d~Pos~n'rn ~ -11~-h l,\;L.o..r o...'b.J..,"ie.- t:~\;- dl:sacZ...-h'tM. ~~-k w~o ~c-1- ck.Uslts'Y\ ~-::. CEn.ha..r-'f to t5NL ('.DM{Al.\kd bY ~ ~ brt.utv\S+-o.,nc. w~\'n.tw.t «---f'~QA\CA.- ~ CM'\Y ~d\~ '<'lAks c;- ~r\f\~P\..e.s~ tA.'S'< c_~>rP v, W(L5t "t8\ SwZJ.-")5'0 • A \-r\a-\ ~ ~a;\~ \-e. Clr\Gl.\vu... \~ ?l'OPfU'\Y ~' \o c;..fJ(J\y ~\- ~co~ 9revls\15Y\5 , T~\A.<6'n ~ w~~'f\-~ wo..s m\\~\-r d.\ff!<2A-u'\T --~ "',,:;\-: 11 :r::.n ~\-otZ.A~f\;n.
\rus...~ no CM"~'o\a... ·~~ \s \ V'\ \a..v-...~ er \n ~c:u:;,.-\- ;...(3) :I:-r \~ ~-\-ro-T POI.C-T-Y e&Mo-l- 9n:rv~ f'o..dc;. \"' ~\M'Ptrr\- of ~~n , ~~ s ,,,:o~tCM\tra.11·t s\n1.t'fa.c ·\-o or~) t-k... c..\,:r.,t'M ~c.Q...\f\o\1\5 d~m .. . . . '' T.e.x ~v; \ ~ra.c:--\-tc.z..g, ~m ~ ~ V\, oo·:, ("B) (t')-~) \\:s 4 9c0V\mAS h s\-~W , wcrro\1-~ \~ l'Vk\d \y ctrtf'~ , ~ tk ~\ ~s ·~ ~ f-o stoP e..,~«\S vu~ ( -\-~ i~ 1\0t- o.. ·~~a& 9f'tba}o\ \~ 1-ha:\- +~ 1 ~\~~ w;\\ \>C'·~.N&~\ \(\ -\-'N, \\h~ct+\ '9\a_;n\i W'~ c.h11Y\S 11r.:z.. ~+ \:\Ce__\y io sv..c.c.uJ 0\'\ -\\vL vw:z..~~h~' ~ AQ~t :1 b~bt+ A ~~-4. l' Mo+ \~\~v -\o SVI cca~ H a.ncl • tJOt a_ \eQt.~~ 1 \'robCLb)\~fv v>\ru'\'\bfr w\\\ ~ce>ra.\\ \' ore... t-wo ~o..c~-\.. -:,.i-CA.rvlouds , DnR-- ~a'{f, OruL fVIAY oc ('(l.{j,'-f V\o-\-, t k ek\.cu- "!:.O.)f'f:. ~ 6 no wo..V l5NL wi\\ !.~. ~()..tor w~N\d ~~ +-~ 'oi' ·+hAs ~ r:f ~b hc\d.\~ \us ~\.~\~ "S~il.A\1-\v a.\~ c:l SfOC,\\t:rf\ \qt)~ a~s~v~ ~CR c...\a.(m ~ \qJ':.klt.rv:k(' e~m t 0~~, '2..c\1 wLCoC\C\'\?)~n\-*S ~. lln.d -\-'M_ N\a.vtln\-s e..~ 1'n~ -~_y ~ \?ak.\or '' ~\AWic1stnt\y n.\~ \< v~abk. c..la~l"'l ~ i-M..+ -\-k ~t-~ tha-t Movo..n-\-~ ~td ~ f\ .La.oo.\1-e.... y, V\'1 '~\A. ~ ~ D~ ~rullnQl Q.J.c:J-w. viZ-Xa.-·HCVI..S GV\d o.-~1'1'\~ ~~\-v ·ru..r +NL- Drd.u- ct\~~~c;.~~ ~ahn-s ~ms CL~ns;~ ~ ~ N\ova...tt-\-s ;nckckd -\-\...L i' rY\ofu.r fu.t_bbuJ '' c\cw..~ Tt> 1nc.l.wL.... o..\\ clru'Ms or- d.tt~ctGth:\s 0'1' ~~ r).,'<,(Jo~te of- o..\\ ~CMti-L~ 0--1'\d c1G.\.~M6 , ~ 1'\6 aP~\ ·\o ~ S\a2.. Cr~o\ ..) . lr~a.\ ~ 1-k. s~t- ~s ~ hsr- -APe~\ t \,?..a\~ ~ ~\o\ 'oz... \mRr~c...·hc.a,\ o_nd ~ f'•u~'-u- o._s e.. c:\\-:;,Wk~saJ .,(:: -~ M-e'l\.dAn-t- m~ \'\&u..~ib\v 'bz.. cll...\'.ero.d. -\o d..U-'f\,V\~ T-n'a.\ tJ\ o.~ ?crmL b.eA&~ c\u...rt'o ~~ V\.VL.nA- Y\ll.E.)D~IL\-\ 1'.>'1\ • "fcrr ~ n~.O·--~ ~tQ,\-d. o...nd ~ -~ ft'rd.t 1'\~ ~ \-~ ~k clalV\t-~ !!.aN\'* 1~"1\Drb\'( f"'(M'Q,t\ C..OY\;\Tti.\1~ Wit-h to-IA..t+ Df? -APPeA-l~ ~t\Q1 t'rA+- "\.vd~n~s CL\~ c..lC\.~M ~ wh..C..'t\ -c-~\\~ ~ ~ ~d , ~ ~Ji\\CMS \-~ ~ tk ~~aA-\s ~ i~~~AL- M()..ncl.o-,mus ,e..t&·Fbv re.vexs,-o~ oc vll.C.CLt\~ 'c:b\-Y\ ~ ~ ~~ n.~-\- ~\a:t01"' br triet\ c._.:sw+. y,· .s,. nm::rtu:Nr rffficrs~z... \Zi).u,\-br \ !:> ~nc\l~ 7 0~0(} c~~ "'"'\)~\~ \.(5)'\ of s\-ak.e- U5Y\6t\~-\'iln\ \I" c..t~ Q..:r- ~-\'" ~r (tz..) ~ ~\s \cchA-4.-L (!.(jU'"\.Y\Ot ~.-n~ e..c.t.sLsc; te -\-\ut.. ~b +hr~ i..U\reA-51!1'\~bb.. \-\'l\.cU\c.\a:\ ~\u-~ \ 0,} ~nl f"\-~ ~~~ ~ k ~ , s.c -\--~ 1-\.-..a.... ~~s\o..twr-e.., '('N'(Y ~ a:'or~:~3<'.lT-e.. 1-k -r~ -\n o..ss.ex+ w- CJ:sw\M61\ -\ a.w ~"ii2.- cJ.: a.c.h~ ~less \-k- "\.IUI-5c.rn ~ \t-s a.ch'L>'V\ cu.-bi~s 1-k. \1\-~~W\-b C01.::>n'\v.-h~ ,,-~1- \-o l'~~S .. T-v- C_u-n~ A<+- \J ~ 13 , .~J 1 '\ (l\\ ~~ SM\\ ~ e~ "\0--n~ vJ.ex-'f 'P6$(li'i('\ k CLA \n_jV,.C'!/ ~ ~l ~ ~{\ \tv. s \~s . . ~l)c:£\~ , ~ 61'1 e;r ~~tt+-c:rh'on , ~\-'A.n ~ ~v 'bv d..tu... c.~ J \o..w, '' \-.~)\ '1/. l~o.:'> vVt:r>"WS L.a-P, ~ fY' ' \4'3 S h(Jd .:f\('ct ,.t\.t\Dt ('tu-. AP~.-'0iV~-~h'" Z,Co4 P~t- '11\.L. Quf'~b"U2.. of= ~-e.r \\ \s +o ~-\- hi''ft>\0'\A.S suiJ-.s b.cii"Ync~ b~ ~ u.~_xk.iYb. ~\a,-\--o-r~ ~:.\- \~ l.~~·z.a.O~ , ':>u.~-t- ~~ ~05 C"e.~-\-1.--\G\~ ~Y'\ ~\-s ~C'O':IJ2..CiA.:n'(jn bY C..h~ptri,r \\' ~ ~1-1 ce..ct..u.ll~·~ ~mE'o~ hv "\"riCA.\ ~ • ~\a.--\-c-r ~~ ?erf\'\A.1rd to ~ro~ \" hrr-MA- ~~·b w~-r C..,\¥:w'\u \-\ t;. y. \)me... &~ ~ ~ 'bt v..~.'~ tus t\ ruM\C..,:,o__\ \:yM""fUU"' 0\.~A~-t- C1 tn~-N.U\bk druM v\t>\a.--\-e..s. L.10lRter \ \ (t) ~ 6) J' +~ ~•o·y\Sitms ~o.n~. Loe>:>\~m cl -\-k.f>5oD ~Jy- ~~~ O.'fW OLC..U?.-"bS ~\a-~ ~().6 ~\V'\~\~"':>~ ("~ ~\-O'f' \~ lV\ "n's.::m ('.A.f\a we\~ tc wor\:::: o.\-f--~~ 'ru_ w~\J. ~~a~\ \ITh.l~d. ~ do sc l 8 t.D\\\e.ux=.:,,~ ~i Pi(AYEf?.. e._l5V\L\.A.L~\-te.\Y , +~ -h-la.\ c..&J+ ·.P~k_d ·\-c CV\Gt\YZQ... t-k \~ \)~Q.r\Y ~ ~~~ n.c. o..ck.~~ ~\ G.Na.\'\a.b\.L 11 Movt:U\.ts ~'ntsw.ul no e.NidsLnCQ... -\-ha:\- WIJ'U.,\d \~)\y ?rev~+ ~\c:d-or ~ ob\-o.-lV\ ir-e> r~ a_~ k $..k-\--eJ vla-bk. dc~u' M • ~y re.-~vl1SI../lt tar D.:f\ ~~ ~h~ to ~rov,-c:k. ~r~'f n:h~ o.,n~ sh~ o..u_,-\-~h.c-r;Za-6 fuVVI to t'n:;~~e_ ~ Su..\4- ;5. £k vlc\cd-i'cr-r. af.- h2s 0~ ~ n~ ~ It Is a 0\Gt.s a£:lC.uhd- -90"6Y' ~~- -~\a,-\-t,.,- f>C'I1JIS ~ \-\O"YVJY'a,b~ ~r+ bKA-NT hls. ~~+- ~ ~M.LL5 bY' reN..uJl'nm 4-hL. -h--nd.,'ncc / DRDetZ_ +-'rvr+- ~\a..~ Sw t "r.AJ. M
0\<..Dtse_ ci\~'t"'\A~-::, ~ hls cl~"" -s ~(\.~-\- Mo'I"CU\..+s t\ ~t~Yf\C.J\TE ·oF ~RV\L.E .::r: ~ hrzrelJy c...erhh' t-\rv\f o.. +-f'L.UL CA.nd Cbrr~+- ~OPY r:P £,.) 19-for..S P~J,itl>h .~ wnl of' IY1~mc.0 iv:ts b.e11 0~ fue.s a+ 5.e.J'l+ +c, RD. f!:d i053C, \ Lu!bocK' TX 7q1oB bv PhuiL~ 5.cucl. ;'n lAS 1··Nrt'llY>)( 1 s+ cJo55 VV'Ail em C>c.J-~ 2B 2oJ5 • Tke.. fJarf- 6f t1L ~tX' Wl- {).Vfl.I.JablL wa.s U'~ r'Ybtron 1o :Dzchre:. Pla/nfif> vexai-rl»is G'-h-htr1r; +hAs t5 airet1Clv fib! ;A 7'2. .-. q Rf+; o\4111-t of A-LA t-Junhc.A::t+, 01 t)d'enJA1!th fY\otiDYl. to De~(l(.re:., Pie,t. tYJh:r Ve..t1t--h-o-us L1'h3a+J+- & ~UQSf- fv.r 3 \rlctl Ccur+~ A-t.A:)'-'_'b+ 3 )_201~ OicD~R oiLclar;n~ plc.U'l·L'it' v.e.xA-fiao 'fV\DhDY! ~ ~C....."li-5 i ~u+t ()7r\ ? 0 b J ectr OY15 \ r i a.l C.Ol.4rt Q;:,{l11!'ssi~ Oe.f..e-ndL'iVJf:::, Hl..Yn.f2S1u l NCLII 1 61.)zvVI4Y1 -Pur &./u-re -1-o ? '"'/ :>~cu.< r ;t-y P\~'nhff~ {'().otiVJ'l w --~n:;,h#--e/ Y\llo+t'C»? ~r 1\Jaw lr/14-/ IM -n--\£ S\A:re. DF TEXA-S ~ \-\-\~ C...OLUJn' 0~ PoTIER .::::r:- (1._\'V\. ~ci~e.. :Yo..~~ ~G!Lc.k:56\'\ *=\\G:Al77 C\.~ C/A..M ovti""(is) )1-e.A-f~ of ~.z... I. ()...m of tits\.l...f\ct o..l'\d bodY . O..f\d flt....\lv c_a..Pab\.e of' r'f\l'tk:i..10 ·T'h.a.. ;;ta._\-~f\1-S. ~.;;?_.;(\ Ql~ t-M..v a.re.. ~ .rrom mv Pe.C.:S6fla..\ \An6Wi2J I l)...v'\1\. t~ 'P\CU:.!\\-ItP ~Y\ ~d'ie.. C)~ u-~c...~ v. (&p+,l..:(\ V'ot~hVI .e..hL 2..oi'2..,SOD,2.c.tS \r. 12. ,.a Su.ch.c-i.ol D;str-~c...+ "'L...bb we. O..VI DRDER finc.\..i'l\3 I wa? ve:>CC:tht5WJ o..Y\~ -\n:':)·tn..~.d-ed. YM.. to Dz..t:~do.A-\--5 whom 1-fut-;a;~ t\..uL v-2. ¥a-heu~ ~ro~I-Y\£:>o -hk..d a. Mct-;OV\ 6 \)e..c.,\a.r-<.2.- \J\~n\-;.W o Ve.,;')(a+;~ Li·h~arr\- & ~'U.42.St Gc 5auc:+Y1 w~U:c:h ~ 6 Pcu+· ;::.f tNL. \-ria.\ (.Ol.A,("r~ -re.u::mi. \h.Q, 1-\--eflltf) 0.-()e.. o..u.~e ~ o.r.e- p\o._c_ul we-~ 1'\ fo-\ ce.P-e..re.nC£.. ~<"d. ciMI~'c.a-\-i£5Y\ • ::c. 0<-'I"Y'' -~ cr~~ rro.r~ a..,..... cl CAm l'f\c..0J'G2.('0.+.eJ tTl-'1 ~ Ut11A'+- .of. T DCS \ V\ 'Po\\-er ~t"\f-v <\<2.)<.Q!>. ::t:' ~<- v--~ Pet\a\t-r t:f ~__}·u.rY -\+.+ +~~Q.. k 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 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." 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). 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." 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. 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. 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. 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 Reidie Jackson No.1164177 TDCJ- Clements Unit 9601 Spur 591 Amarillo, TX 79107 Plaintiff ProSe /s/ PATRICKT. POPE PATRICKT. POPE Assistant Attorney General 13 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 EXHIBIT A TEXAS DEPARTMENT OF CRIMINAL JUSTICE Use of Force Report Employee Use of Force Fact Findin g Inquir y Facility (Unit snd Alpha Coda): Montfo rd JM 0 Use of Minor Force 1:81 Use of Major Force 0 Use of Deadly Force Report Numbe r: MA-0139~03-11 Incident Numbe r(if applicable) : Instruction• to Aftlsts nt Warden (01' designe e): • comple te Sections I and II; • If employe es/offen ders interviewed, list them in Section Ill (no requirem > (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 che d 0 Continuatton page(s) atta Ill. ACKNOWLEDGEMENT ·-·-·~~,;"" ~"hmitte d is complete and accurate. "·- jackson0004 ------ -·---~--------- TEXAS DEPARTMENT Ot- CRIMINAL JUSTICE Use of Fo rce Report . Em plo ye e/O ffe nd er Use of Force InJury Re po rt 0 Use of Minor Fm :e Report Number: MI=:Q'.1'i1 ~ lJJ - £I 0 Use of Deadly Force lnd den t Num bef (If appkab le): L EMPLOYEE OR OFFENDER .R8n111111te: TDCJNo.: --1\--lot./-- --:z-------------- =1 '1 I. EXAMINATION . •· DldEmpJoyeeiOif8ndet~ollfM? If 'YES,' dnc:ribe: --~~~"'"" ",_ w.. ltMt ErnployeeK)frender eum__ --ftJ:::YES z: -- 0 NO -- e5 YES 0 -:NO:=--'YE ----------:--:---......,._,.-- b. ______ lnlld .. the unll1 lf'N O,' explllln: --- S,' d..elllrne~ 3/Yzb If provide I':2 --------- E~-- I ,., o. W• alh e ----~r--- lnfl - - - - - - --------- • If 'YES,' p111ce e "by ttiiC nd dur lnt the use d bee h II'U dfw bod y lhatw. ? ~ 0 YES f!'H!Tif:. NO r:1 1 ~ § Elld f,_ ~ ••. •,., .., Abd om MIS tam adl ·01 ~ Ank'-(1) • O:Z 1vr ntJ. 03 Bllclc • 04 ButtocU·O& OM III· OfJ e.t a) • E~a) • 01 ar FIIC e·O I· Foa41F... -10 Glnlt8l AIM · 22 • ~· Hlnd(a)-12 HHd -13 Hlp(1) ·14 leg § .. f:fHM• IIH it•h all beu..d (1)· Ned& -11 PeNta • 21 17 8 Sho 1ft ll.d below): ulder-18 Wrltt(a). 20 d. Indica~~~ the extent of Inju l Grain· 11 l 0 Hospital (Heme): - - - - - - - - -- -- -- -- -·~kh~~~= 0 Unit Infirmary 0 Othef(S,_clfyl: - - - - --- - --------- -------- -------------1 b. Medical staf f wt10 administ ered, or allelnpted to administ er, treatment (Prt111 Ntme111tltl.': ------- ------- -- N. ACKNOWLEDGEMENTS 1. b 1administered trle ctxamlnalion J administered. or attempted to adninisler, J... _.,, (Sig n.,I NtiO aii) G /LJt/-, /'/ZI tho treatment (SUJilalure/Dalt . /J ...) --/" "'. /? · l: 'f) /J. '"" ./ 'A-If1 ..., I v 1 1 r II jacksonooosl I &ntford JM 0 Use of Minor Force fi?J UN of Major Force 0 Use of Deadly Force Repc111 Number. /l1,4 0 I J1 9 -OS -l( Incident Number (If eppllcable): VI. DIAGRAM(&) I DESCRIPTION OP INJURY In~ fD MNICIII Sfllltt ---------------------------- • tndlclltw lnjurlM •u,.,/ned during the u.. of ron:. by m-'rlllf body d,.,.,• •nd provide brl.t ducrlptlon below: Brief Oeec:r!ptlon: Oeecr1pllon provl~ed by. /} jackson0006 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 ITB AFFIDAVIT § THE STATE OF TEXAS § § COUNTY OF WALKER BEFORE ME, the undersigned authority, personally appeared Lisa D.Cunha, who, being by me duly sworn, deposed as follows: "My name is Lisa D'Cunha, and I am over the age of eighteen (18), of sound mind, competent and capable of making this affidavit, and personally acquainted with the facts herein stated: I am the Custodian of Records at The University of Texas Medical Branch - Correctional Managed Care, Health Services Archives and my office is located in Huntsville, Texas. In this capacity, I am the individual who can authenticate and certify as official, copies of medical records at the TDC.! Health Services Archives. Attached hereto are 37 pages of records from the medical records of Reidie Jackson TDCJ #1164177. These said records are kept in the regular course of business by an employee or representative of UTMB-Correctional Managed with knowledge of the act, event, condition, opinion or diagnosis, recorded or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original and no other documents exist in the files on the above named person at TDCJ Health Services Archives". £~ Lisa D'Cunha State ofT exas, County ofW~er . .J Before Me [~ /{ ·- V-L'dwo on this day personally appeared ~C---- /0 t!ua"-6o , known to me through her Texas Driver's License to be the person whose name is subscribed to the foregoing instrument and acknowledge to me that she executed the same for the purpose and consideration therein expressed. jAJ..r Given under my hand and seal of office this _ _ _ _ _ _ _day of ~5< , A.D., Jj) t-d--' a Correctional Managed Care MD/MLP - SICK CALL EXAM Patient Name: JACKSON, REI DIE TDCJ#: 1164177 Oat~: 03/21/2011 11:40 Facility: CLEMENTS ECB (BC) Age: 33 year Race: B Sex: male Most recent vitals from 3/21/2011: BP: 162/94 (Sitting); Wt:; Height: 781n.; Pulse: 88 (Sitting); Resp:; Temp: Allergies: NO KNOWN ALLERGIES Current Medications: NORVASC 1OMG, 1 TABS ORAL QD VASOTEC 20MG, 1 TABS ORAL QD TENEX 2MG, 1 TABS ORAL QPM LOPRESSOR 100MG, 1 TABS ORAL BID ZOLOFT 100MG, 1 TABS ORAL QAM HYDRODIURIL 25MG, 1 TABS ORAL QD SCR Received On: _ _ _ (date) Today's Problem: S: POST MONTFORD FOLLOW UP NO COMPLAINTS 0: L T FOOT • INFECTION HEALED UP A: POST MONTFORD FOLLOW UP Plan is as follows: RTC AS NEEDED. Electronically Signed by PATEL, DHIRAJLAL S. M.D. on 03/21/2011. ##And No Others## jackson0007 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 EXHIBIT C -·· -·--·------····-··---------------------- Case 2:14-cv-00036-J-BB Document 21 Filed 07/02/14 Page 1 of 1 PageiD 134 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION REID IE JACKSON, PRO SE, § also known as REIDIE JAMES JACKSON, § TDCJ-CID No. 1164177, § Previous TDCJ-CID No. 795456, § Previous TDCJ-CID No. 874760, § § Plaintiff, § § v. § 2:14-CV-0036 § DARRYL GLENN, Law Library Supervisor; § § Defendant. § JUDGMENT Of equal date herewith, the Court has entered an Order of Dismissal in the above-referenced and numbered cause. JUDGMENT IS ENTERED ACCORDINGLY. IT IS THEREFORE ORDERED and DECREED that the Civil Rights Complaint by plaintiff REID IE JACKSON is DISMISSED WITH PREJUDICE AS FRIVOLOUS AND WITHOUT PREJUDICE FOR FAlLURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED. The Clerk will mail a copy of this Judgment to the plaintiff and to each attorney of record by first class mail. It is SO ORDERED. Signed this the ------~~:.-·_,_1J,~lf~day of July, 2014. / CAUSE NO. 2012-:';00,295 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 EXH IBIT D Case 2:10-cv-00261-J-BB Document 9 Filed 06115/11 Page 1 of 6 PageiD 73 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: 10-CV-0261 § JOHN ADAMS ET AL., § § Defendants. § MEMORANDUM OPINION AND ORDER OF DISMISSAL Plaintiff REIDIE JACKSON, acting prose and while a prisoner incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit pursuant to Title 42, United States Code, section 1983 complaining against ten defendants employed by or associated with the Texas Department of Criminal Justlce and has been granted permission to proceed in forma pauperis. The original complaint was also signed by inmate JERMAINE LANDRUM. Inmate LANDRUM did not pay the filing fee nor did he submit an application to proceed in forma pauperis. On May 23, 2011, a show cause order issued giving LANDRUM until June 6, 2011 to respond and show cause why he should not be dismissed from this cause. The response period has expired, and no response has been received. It appears inmate LANDRUM has abandoned this cause and his claims should be dismissed for failure to prosecute. Case 2:10-cv-00261-J-BB Document 9 Filed 06/15/11 Page 2 of 6 PageiD 74 On May 9, 20 11, an Order to Cure Deficiencies by Amended Complaint and Findings, Conclusions and Recommendation issued in the instant cause, informing plainti ff JACKSON of the deficiencies in his original complaint and ordering him to cure by filing an amended complaint or to file objections to the Findings, ConClusions and Recommenda tion. Plaintiff filed his Amended Complaint on May 20, 2011. By his Amended Complaint, plaintiff JACKSON alleges he has been prosec uted for acts which constitute crimes under Texas state law, but that these prosecutions have been handled by defendants through the disciplinary process of the Text1S prison system. Plainti ff alleges defendants ADAMS, BERGER, BAKER, CLARK, and NASH have a fiducia ry responsibility to plaintiff to abide by state and federal laws and to ensure his civil rights are not violated. Plaintiff states any warden, major or captain in TDCJ-CID can participate in the disciplinary process. As a result of disciplinary cases, plaintiff states he has suffered punish ments including the use of force, confiscation of money from his inmate account, confiscation of personal property, cell restriction, confiscation of accumulated goodtime credits, visitati on restriction, denial of line class, and confinement to administrative segregation. Plainti ff says the disciplinary rules are used for population management and retaliation. Plaintiff does not challenge any specific disciplinary rule or application of the disciplinary process, but challen ges the entire disciplinary process. Plaintiff JACKSON further alleges defendants GLENN, EDWARDS, MASS EY, BRINKLEY, and SEGMAN are all mailroom personnel who are responsible for handling inmate mail and that they utilize illegal rules to deny inmates general correspondenc e, justifying the rules with security concerns. He complains they restrict books and publica tions concerning 4\l(H)26J.allruh:s 2 Case 2:10-cv-00261-J-BB Document 9 Filed 06/15/11 Page 3 of 6 PageiD 75 death, rape, sex, drugs, and assault and use the rules to relieve thems elves of the duty to deliver the mail. As with the disciplinary rules, plaintiff does not challenge any one rule or application of the rules, but the fact that there are correspondence rules at all. Plaintiff JACKSON has attached some grievances to his complaint as "examples of the ongoing violations that are enacted and enforced by defendants" but, as his statement of claims shows, he does not base his complaint on the incidents forming the basis for those grievances. Instead, he asserts the broader claims set forth above. Plaintiff JACKSON requests an award of damages and that TDCJ-CID be ordered "to get in compliance with the law." JUDICIAL REVIEW When a prisoner seeks redress from a governmt>: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 The District Judge has reviewed plaintiffs pleadings and has viewed the facts alleged by plaintiff in his complaint to determine ifhis claims present grounds for dismissal or should proceed to answer by defendants. THE LAW AND ANALYSIS Plaintiff's statement of claim fails to state a cl:>'.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). 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. 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.)). 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. 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. 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. 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-.... ·~)... ') \ """",...._.,__,. 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 1' >t ~t f) ' By "fiX}' . v· ) _. Deputy CD -o '""-l -< 0 = .__. ~ §; -I --1 m c_. c::: : o::o z: --0 I, Caroline Woodburn, Cieri( of .lha .District ::lJ (J)r -~-f-- Courts and County Courts at Law, In a~d ~'"\;) j 0 -,·--~z --..] c:/',~ I for PoMr County, Texas, do h~reby certify 0 c that the foregoing instrum~nt ~s a ~orrect r-::~~~0' z ::o-. copy of the original on f~le tn thiS OffiC9 ;'?, .. -; 3 . .,:-;.. ATTES~O ,.-, thisL\mY,,of \) ~ iJ.\b ' .'--;'- ~~~....~ \ ~D ro ~ 0 rn ---1 (;:0. f! 'H""l By ~~: ~··~J ~~ (Al\.~.J\ ..4.:..... \ '"it .c '·~· -o rn ~t2m t. .. (.) v . J\... Oeputy c >< )> N1 CD /'..C =< 0) :0 z 1.444484 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 sc N E 7 -417 : , t'"" lk c "l . * + m t tJ u ~ o [ ' ~. eiDT CI(~Spur r d - s OCf1 'TPJcl(s , _ qGo 9JD7 -·qr;;,CJ:'9 o Tx 7 · fi-rvvtral AG~ U.~ P~L8.oT gifYit:f! ~ AMA~~1~2ro , rx N~VJu~~ toos •• <> '. $o.oo Fi2304H t 08442 ·08 ,, . f ' Prppee,_/,s o C o u r ti s t r ; c r o f le.xH :.s S~ver;PtJ.o-.. D S o y CJ5-i-o os -q5-4o ? q I wtr,'Jlo )I K " , Ar r"A. Vexatious Litigant Statutes
B. Criteria for Finding a Litigant Vexatious
C. Effect of Declaring Plaintiff to be Vexatious
D. Notice of Stay of Proceedings
E. No Reasonable Probability of Success on the Merits.
3. Defendants are entitled to qualified immunity.
F. Plaintiff's Previous Litigation
V. PHOTOGIW'HI ~ fD Shift SllpfiiVIMr. • Affllch all~ ltetw:
I Patient Language: ENGLISH Name of interpreter, if required:
II. STANDARD OF REVIEW
III. THE TRIAL COURT'S ORDER OF DISMISSAL
IV. JACKSON 'S REQUESTS FOR FINDINGS OF FACT AND CONCLUS IONS OF LAW
R. Crv. P. 297.
V. CONCLU SION
Related
Cite This Page — Counsel Stack
in Re Reidie James Jackson, Relator, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-reidie-james-jackson-relator-tex-2015.