Russell Ham v. William Stephens, Oliver J. Bell, and Robin Sullivan

Opinion

Russell Hast #1104449 Allan B. Polunsky Unit

FILED IN

3872 FM 350 South

1ST COURT OF APPEALS

Livingston,Tx 77351 HOUSTON, TEXAS

AUG 0 6 2015

August 3, 2015 CHRISTOPHER A. PRINE

Clerk of the Court/ CLERK First Court of Appeals 301 Fannin Houston* Tat 77002 Re:Russell Ham v. William Stephens* ST.AL.#

Dear Clerka Enclosed please find (1) original copy of Appellant Russell Ham's Reply Brief. Please bring this motion to the Court's Attention. Also enclosed is Appellant's copy of Appellant Russell Ham's Reply Brief. Please date stamp Appellant's copy and return tohim in the S.A.S.E.* Thank you.

A true and correct copy has been mailed to the Appellee. Respectfully submittedi

Russell Ham# Pro se

No. 01-15-00036-CV

FILED IN

tST COURT OFAPPEALS

HOUSTON, TEXAS

IN THE

AUG 0 6'2015

FIRST COURT OF APPEALS CHRISTOPHER A. PRINE

AT HOUSTON CLERK.

Russell Ham

Appellent

William Stephens,ET.AL

Appellee.

Appealed from the 411th court of Polk county, Texas

APPELLANT RUSSELL HAM'S APPELLATE REPLY BRIEF

Russell Ham

T.D.C.J.-ID#1104449

Polunsky Unit

3872 FM 350 South

Livingston,Texas 77351

ORAL ARGUMENT WAIVED

TABLE OF CONTESTS

Table of contents 1 Indes of Authorities 2 - Statement onOral Argument 3 Issues Presented 4 ISSUE-ONEs Was Appellee Sullivan Acting under the scope of employment wlien she destroyed Appellant Ham's photo album, grandmother's will, and legal papers. 3-10 ISSUE TWO: Should the trial court have dismissed Appellant Ham's suit against Appellee Sullivan without allowing Appellant thlty days to cure defects pursuant to Texas Civil Practice § Remedies Code §101.106(f). 10-11 Statement of Facts 5-6 Summary of Argument 7 Argument 8-11 Prayer 12 Certificate of Service 13 Appendix 14

INDE2 OF AUTHORITIES

CASES

City of Lancaster v. Chambers, 883 S.W.2d 650,658(Tex. 1994)^9 Frank v. Velasquez,332 S.W.3d 367,369(Tex.2011) 8

Presiado v. Sheffield,230 S.W.3d 272,275(Tex.App.- Beaumont 2007) 10 Reece v. Johnson,2013 Tex.App.Lexis 10621 9-10

CONSTITUTION

United States Constitution, 14th Amendment 11

STATUTES

Texas Civil Practice &Remedies CODE § ^|-^1^|^fj i6 Texas Civil Practice & Remedies Code§101.106(f) 15 (

Texas Penal Code§31.01(2)(A) 10 Texas Penal Code §31.03 (a) 10

OTHER

RRestatement (Third) of Agency §7.07 17

Statement On Oral Argument The Court should not grant Oral Argument for the following reasons:

(a) Appellant Ham believes that Oral Argument will not aid this Honorable Court's determination of this Appeal.

ISSUE 1

WasAppellee Sullivan acting under thr scope of employment when she destroyed Appellant Ham's photo album,grandmother's will,and legal papers.

ISSUE 2

Should the trial court have dismissed appellant Ham's suit against appellee Sullivan without allowing appellant thirty days to cure defects pursuant to Texas Civil Practice and Remedies Code § 101.106(f).

STATBHEOT OF FACTS • * ' "

On April 13,2014, at the Allen B. Polunsky Unit* Livingston, Texas w&a on ife*s bi-^'v.vti-l^ ioek-dowii. Russell Bam, plaintiff brought his personal * legal and spiritual property to the 19

Building .Oorot tya to bo searched.{?l'»Pee*,j^« 2) RussellHaa'a property was searched bf Officer Robin Sullivan* Officer Sull

ivan i®«*©di®tely began to threaten tothrov at?ay his property, if he did'at hurry up and bring his property* Russell lam replied "if you do decide to do so* I want confiscation papers'*.{PI*&

•t* pf.2)* Also * ho told officer Sullivan-that**if you refuse'-' or fail to issue me confiscation ppapere* I will file a-grievance on you".(PL's £>et*pg.2) Officer Sullivan then replied"that'

if you write a grievance I will write you a discippliaary iafca* ctiefi.{PL*ePet.pf.2).However, Officer Sullivan unlawfully and fitaliciouslly confiscated his Holy Bible*(3) throe Dungeons and Dragon books* an wallas 26 other books belonging to Russell »a©..(PL'aP#t. pg.2)0ffieer Robin Sullivan also confiscated

Susseil Baa's photo album contains his grandmother's mill otid various legal papers* and placed it into the ftrasisean #{§&####$$ # P9.2«3)offic@r ftobi® Failed or refused to icaue confiscaties*

papers for the property she eonfiscated from auoeell mm*

Russell Ham timely filed his Step 1 Grievance asserting various elates retaliation and Texas Theft Liability eisiaa* among other claims. Gnlfey 5*2314* the decisionmaker Assistant Warden Donald Munis held Substantiate your allegations.you could only prove

legitimate ownership o£ (4) four of the booJia.contact Officer

Fox in the property room for these items to be returned. Ho policy violations noted. Ho further action warranted.

Russell Ham*dissstifled with the response of the Step 1 Deci sionmaker* submitted his Step 2 Grievance* showing how and what the unit level failed to consider in their investigation.80

HaylS*2014*the response from Matt Gross.Regional Director held that the grievance has been investigated b^ their ofice.your

allegations of misconduct could not be sustained.No further Investigations is warranted by this office.

aussell Bara timely filed his Appeal on March 6*201S

:*v

SUMMARY OP THE ARGUMENT

A Appellant's first argument is that Appellee Sullivan vonfiscated some of Appellant's books and turned them into the Polunsky property officer without writing Appellant any confiscation papers. Appelleealso destroyed Appellant's photo albumi grandmother's will and various legal papers.

Appellant's second argument is that the District Court abused* it's discretion when it dismissed Appellant's lawsuit

againt Appellee without allowing him the opportunity to cure the defects under Texas. Civil Practice & remedies Code

§101.106(f). Appellant was denied Due Process ©flaw as guaranteed under the 14th Amendment to the Uniter States constituton.

ARGUMENT

ISSUE ONE:

Was Appellee Sullivan Acting under the scope of employment whe nshe destroyed Appewhen she destroyed Appellant Ham's photo album* grandmother's will and legal papers.

In Franka v. Velasquez*332 S.W.3d 367(Tex.2011*the Texas Supreme Court set out a 3 prong test to determine whether a suit against a government employee is considered a suit against

the employee in her official capacity. Id. a§ 369. (1) whether the defendant is an employee Of a governmental unit:

(2) whether the defendant is acting within the general scope Of her employment;and (3) whether suit could have been brought under the tort claims act against the agency. Id. at 369.

Appellant admits that Appellee Sullivan is a T.D.C.J. emplog#e4. This admission meets Prank's first prong, the second prong of Prank/ whether the Appellee was acting within the general scope ofher employment is where Appellant and Appellee differ. Appellee claims she was in her scope of employment when she confiscated Appellant's books and failed to give him confiscation papers when she turned the books into the Polunsky property room. Appellee claims she was in the scope ofemployment when she destroyed Appellant's photo album,grandmother's will* and various legal papers by throwing theminthe trash can. Appellee never turned the pholo album/ nor Appellant's grandmother's

will/ nor the various legal papers of Appellant's into the Polunsky property room she destroyed them instead.

"An official acts within the scope of authority if she is

dischaging the duties generally assigned to her." city of Lancaster v. Chambers, 883 S.W.2d 650/658(Tex.1994).

Appellee's destruction of Appellant's property during the semi-annual shakedown is not included in the scope of her

employment, upon information and belief the T.D.CiJ- has a policy of turning into the property room all personal property that is taken from inmate's during shakedown.

The Texas Tort Claims Act defines the "scope of employment"

as"the performance for a government unit of the duties of an employee's office or employment and include being in and about the performance of a tasklawfully assigned to an employee by competent authority." Texas Civil Practice &Remedies Code § 101.001(5). an employee's Act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve and purpose of the employer* Restatement (third) of agency §7.07(2). see appendix C.

In Reece v. Johnson* 2013 Tex.App.Lexis 10621* inmate William Reece sued TDCJ correctional officers alleging a claim under the Texas Theft Liability Act pertaining to the alleged

destruction and taking of Reece's personal property. This case is identical to Ham's present case against Sullivan.

Sullivan's search of Ham's property was within the yeneral

scope of employment and was a lawfully assigned task* see Reece v. Johnson*supra. Sullivan's acts of destroying Ham's property

10

without turning them into the Polunsky Unit property room are acts occurring "within an independent course of conduct not in tended by the employee to serve any purpose of the employer." Restatement(third) of agency §7.07(2).see also Reece v. Johnson* supra.Ham's allegations that Sullivan destroyed his property* name the photo album* grandmother's will*and varioun's legal papers is an arguable claim that Sullivan committed theft and is liable under the Texas Theft Liability Act in her indivdual capacity, see Tex. Penal Code 31.01(2)(a).*31.03(a); Reece v. Johnson/ supra, see also Presiado v. Sheffield. 230 S.W.3d 272/ 275(Tex.App.-Beaumont 2007)(inmate's TLA CLAIM AGAINST PRISON EMPLOYEE"S IN THEIR INDIVIDUAL CAPACITIES FOR DESTROYING HIS PERSONAL PROPERTY HAD ARYUABLE BASIS IN LAW.). ISSUE TWO:

The question before this Court is "should the trial court have dismissed Appellant Ham's suit against Appellee Sullivan without allowing Appellant thirty days to cure defects pursuant to Texas Civil Practice SRemedies Code §101.106(f)."

The answer is no of course not. The due process clause of the 14th Amendment to the United States Constitution guarantees due process of Law. A chance to be heard. A reading of Tex. Civ. Prac&Rem. Code §101.106(f) shows the legisature fully intended to give a plaintiff the oportunity to amend his pleadings dismissing the employee and naming the governmental unit as the defendant on orbefore the 30th day after the date the motion is filed, see Appendix A.

11

Appellee destroyed some of Appellant's property and confiscated some of Appellant's property, when Appellee filed a motion to dismiss the case without giving Appellant a chance to dismiss Appellee and name the governmental unit as defendant according to the Tex.Civ.Practice arem.Code §101.106(f) statute.the trial court abused it's Authority without giving Appellant a chance to remedy the situation. Astate shall not deprive a person of property without due process of law.Id./14th Amend, to the U.S. Constitution.

12

PRAYER

For these reasons Appellant Ham asks this Honorable Court to reverse and remand this ease back to the trial court so that Appellant can take this case to a jury trial onthe merits of whether Appellee Robin Sullivan was actinq under the scope of employment.

13

CERTIFICATE OP SERVICE I/Russell Ham, TDCJ ld#1104449, Pro se certify that a true and correct copy of Appellant Russell Ham's Appellant Reply Brief has been placed in the Allan B. Polunsky Unit's mailbox on August 3, 2015, postage prepaid, first class mail addressed to the Clerk of the Court, First Court of Appeals,301 Fannin/ Houston, Texas 77002. A true and correct copy has been mailed to the following:

Briana Webb

Assistant Attorney General P.O.Box 12548, Capital Station Austin, Texas 78711

^—.

Russell Ham,Pro se

T.D.CJ.-ID# 1104449 Polunsky Unit

3872 FM 350 South

Livingston,Texas 77351

14

APPENDIX

A-Texas Civil Practice &Remedies Code §101.106(f) B-Texas Civil Practice SRemedies Code §101.106(5) C-Restatement (Third) of Agency, §7.07 Employee Acting within Scope of Employment

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A

Texas Civil Practice & Remdies Code §101.106(f)

(f) f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only. On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismiss ing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed*

16

Texas Civil Practice & Remedies Code §101.001(5)

"SCOPE OF EMPLOYMENT" means the performance for a governmetal unit of the duties of an employee's office or employment and includes beinq in or about the performance of a task lawfully assigned to an employee by competent authority.

Restatement (Third) of Agency § 7.07Employee Acting Within Scope of Employmeat (l)An employer is saflject to vicarious liability for a tort committed by its employee acting within the scope of employment.

C§) An employee acts within the scope of employment when performing work assigned by the employer or engaged in a course of conduct subject to the employerls controll. An employee's act is hot within the scope of employment when it occurs within and independent course of conduct not intended by the employee to serveany purpose of the employer.

(3) For purposes of this section, (a) an employee is an agent whose principal controls or has the right to control the manner and means of the agent's performance of work, and (b) the fact that work is performed gratuitously does not relieve a principle of liability.

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