      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-14-00419-CV



                                 Marshall Jackson, Jr., Appellant

                                                   v.

                 Denny Morrison, Janice Robinson, Gateway Foundation, Inc.,
           Jesus Sanchez, Robert Auert, Patrick Lowe, and Anita Bjornaas, Appellees


      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NO. 13-0077, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING



                              MEMORANDUM OPINION


                Appellant Marshall Jackson, Jr., appeals from the trial court’s grant of summary

judgment in favor of Denny Morrison, Janice Robinson, Gateway Foundation, Inc., Jesus Sanchez,

Robert Auert, Patrick Lowe, and Anita Bjornaas. We will affirm the trial court’s summary judgment.


                                          BACKGROUND

                Jackson is an inmate in the Texas Department of Criminal Justice prison system and

was previously held at the Kyle Correctional Center in Kyle, Texas.1 As a condition of his parole,

Jackson was required to receive professional drug treatment at an In-Prison Therapeutic Community

at the Kyle Correctional Center operated by Gateway Foundation, Inc. A few months after he began

his treatment at Gateway, Jackson was disciplined for refusing to participate in many of the program’s


       1
           The facts recited in this opinion are taken from pleadings filed with the trial court.
activities and was subsequently subject to a disciplinary hearing conducted by prison officials

regarding his conduct. Jackson was later discharged from Gateway for refusing to take part in group

sessions and for failing to complete a number of assigned projects.

                 A few weeks before being discharged from Gateway, Jackson filed a pro se petition

against Gateway and some of its employees (the Defendants). In his petition, Jackson alleged that

the Defendants “del[eg]ated their professional and legal authority” to treat him to Freddie Clark,

a fellow inmate who was also receiving treatment at Gateway; that they were negligent in “failing

to prevent Freddie Clark from acting as [Jackson’s] therapist[] despite [Jackson’s] numerous

request[s] over a three (3) month period and then by failing to perform the proper professional

treatment”; and that the Defendants were “grossly negligent in denying [Jackson’s] request for

legal counsel” during his disciplinary hearing. The Defendants maintain that Jackson’s treatment

was conducted under the supervision of licensed counselors at all times and that they took no part

in Jackson’s disciplinary hearing.

                 The Defendants served Jackson with fifteen requests for admissions, which included

the following:


       REQUEST FOR ADMISSION NO. 1: Admit or deny that you were given
       opportunity to have counsel represent you at the disciplinary hearing described in
       your Petition.
       [. . .]
       REQUEST FOR ADMISSION NO. 6: Admit or deny that the alleged injuries
       suffered by you in this matter are due to your own negligence for failing to participate
       in the treatment program.


It is undisputed that Jackson did not respond to these requests.



                                                  2
                The Defendants filed a Traditional and No-Evidence Motion for Summary Judgment,

arguing that Jackson could not prove a prima facie case for any of his claims because their requests

for admissions were deemed admitted.2 Jackson filed a response to this motion and attached as

evidence his own unsworn affidavit. The trial court granted the Defendants’ motion for summary

judgment without specifying the grounds relied on for its ruling.

                Jackson now brings two issues on appeal, contending that the trial court should not

have granted the Defendants’ no-evidence motion for summary judgment in light of the evidence

that he presented in his affidavit.


                                      STANDARD OF REVIEW

                We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005). We take as true all evidence favorable to the non-moving party, and

we indulge every reasonable inference and resolve any doubts in the non-moving party’s favor. Id.

To prevail on a traditional motion for summary judgment, the moving party must establish that there

is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ.

P. 166a(c). A defendant who conclusively negates at least one of the essential elements of a cause

of action is entitled to summary judgment. Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013).

                We construe pro se pleadings and briefs liberally, but we hold pro se litigants to

the same standards as licensed attorneys and require them to comply with applicable laws and

rules of procedure. In re N.E.B., 251 S.W.3d 211, 211–12 (Tex. App.—Dallas 2008, no pet.) (citing


        2
        According to Rule 198.2(c) of the Texas Rules of Civil Procedure, a request for admission
is deemed admitted without a court order if a response is not served within 30 days.

                                                   3
Mansfied State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978)). To do otherwise would give

pro se litigants an unfair advantage over litigants represented by counsel. Mansfield, 573 S.W.2d

at 185.


                                            DISCUSSION

                Neither of the issues that Jackson brings on appeal addresses the Defendants’

traditional motion for summary judgment. By failing to raise this issue in his brief to this Court,

Jackson has waived it. See Tex. R. App. P. 38.1(f); Sunbeam Envtl. Servs., Inc. v. Texas Workers’

Comp. Ins. Facility, 71 S.W.3d 846, 851 (Tex. App.—Austin 2002, no pet.) (holding appellants

waived issue of attorney’s fees by failing to raise it in their initial appellate brief). Even though we

liberally construe pro se pleadings and briefs, we will not sua sponte address appellate issues and

arguments that a litigant might have raised but did not. See Moore v. Brown, 408 S.W.3d 423, 431

n.10 (Tex. App.—Austin 2013, pet. denied).

                Even if Jackson had not waived this issue, we conclude that the trial court properly

granted the Defendants’ motion for traditional summary judgment. The Defendants’ requests for

admissions, which were deemed admitted because Jackson failed to respond, conclusively negate

at least one essential element of each of Jackson’s causes of action. First, Jackson admitted that “the

alleged injuries [that he] suffered . . . in this matter [were] due to [his] own negligence for failing to

participate in the treatment program.” This admission conclusively negates the causation element

of his negligence claim. Second, Jackson admitted that he was “given the opportunity to have

counsel represent [him] at the disciplinary hearing described in [his] Petition.” This admission

conclusively negates his claim that the Defendants were grossly negligent in denying his request

                                                    4
for legal counsel during his disciplinary hearing. These deemed admissions leave no issue of

material fact and entitle the Defendants to judgment as a matter of law. Having concluded that the

trial court’s order should be affirmed on the grounds raised in the Defendants’ traditional motion

for summary judgment, we need not reach the issues that Jackson brings on appeal, which address

only the Defendants’ no-evidence grounds. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79

(Tex. 1989) (explaining that when trial court’s order does not specify the grounds relied on for its

ruling, the summary judgment will be affirmed if any of the theories advanced are meritorious).


                                         CONCLUSION

               We affirm the trial court’s grant of summary judgment for the Defendants.



                                              __________________________________________

                                              Scott K. Field, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: July 8, 2015




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