                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-07-00094-CV

VAN LEE BREWER,
                                                          Appellant
v.

JASON A. SIMENTAL, GORDON TOWNSEND,
CARL DAVIS, DAVID DUKE, JANET C. TAYLOR,
LINDSAY LEWIS, ROBERT LOSACK,
AND JOHN D. SEIGLE,
                                      Appellees



                          From the 278th District Court
                             Walker County, Texas
                             Trial Court No. 23325


                                    OPINION


      Van Brewer, a prison inmate at the Wynne Unit in Huntsville, is appealing the

trial court’s dismissal order of his section 1983 civil-rights suit against eight Texas

Department of Criminal Justice—Institutional Division employees: Jason A. Simental,

Gordon Townsend, Carl Davis, David Duke, Janet C. Taylor, Lindsay Lewis, Robert

Losack, and John D. Seigle. We will reverse and remand.
                                 Factual Background

       Brewer’s claims center around the alleged misconduct of Simental, a correctional

lieutenant in the Wynne Unit’s Administrative Segregation (Ad. Seg.) unit at the time.

According to Brewer’s petition, in October of 2005, Brewer was involved pro se in civil

litigation pending before the Texas Supreme Court with a pending October 14 deadline

that necessitated access to the prison’s law library. Brewer was assigned work hours of

1:00 to 9:00 p.m. on a utility squad, so he was requesting and being granted law library

official passes (internally called “lay-ins”) from 5:50 a.m. to 7:55 a.m. and 9:00 a.m. to

11:00 a.m. The law library staff could not issue lay-ins for times when an inmate was

scheduled to be working, and the staff checked Brewer’s assigned work hours on a

computer before issuing his lay-ins.

       The gist of Brewer’s claim is that Simental unilaterally and without authority

(including no official work duty reassignment) assigned Brewer to work utility in Ad.

Seg. at 5:00 a.m. to keep Brewer out of the law library. When Brewer did not report

because he had a law library lay-in (and also because he had been removed from

working in Ad. Seg. because of an altercation with an Ad. Seg. inmate in 2002),

Simental, individually and at times with corrections sergeant Gordon Townsend and

corrections officers Carl Davis or David Duke, removed Brewer numerous times from

the law library and assigned him to his cell for not reporting to work in Ad. Seg. at 5:00

a.m. In response, Brewer filed grievances against them for not allowing him law library

access and violating TDCJ’s Access-to-Court Policy.         Simental, Davis, and Duke

retaliated by filing several disciplinary charges against Brewer, and Brewer filed more

Brewer v. Simental                                                                  Page 2
grievances for their filing false disciplinary charges.

       Brewer alleges that Janet C. Taylor (an administrative assistant), Lindsay Lewis (a

grievance investigator), Robert Losack (corrections captain and disciplinary hearing

officer), and John D. Seigle (corrections sergeant and law library supervisor) conspired

in one way or another with Simental.          With Taylor, Simental had Brewer’s work

assignment changed ex post facto on the computer to validate Simental’s actions. With

Seigle, Simental had Brewer’s law library access taken away. With Lewis and Losack,

Simental had Brewer’s Ad. Seg. restriction removed, had Brewer’s grievances denied,

and had Brewer disciplined.         Brewer was disciplined with several thirty-days’

commissary restrictions, thirty-days’ cell restrictions, loss of contact visitation, a forty-

five days’ property restriction, and line class reductions.

                                 Procedural Background

       With the filing of his section 1983 lawsuit on January 24, 2006, Brewer included

his affidavit of indigence with trust fund statement, affidavit relating to previous

filings, affidavit of grievances, and first supplemental affidavit of grievances. The next

day, the clerk issued a bill of costs totaling $1,021.00 for the filing, citation, and service

fees, and the trial court ordered the clerk to assess them against Brewer in accordance

with Government Code section 498.0045 and Civil Practice and Remedies Code section

14.006. The trial court also ordered payments of those costs from Brewer’s inmate trust

account in accordance with section 14.006(b). Finally, the trial court ordered the clerk to

send a copy of all of Brewer’s filings to the Attorney General’s office for a review and a

response on Brewer’s compliance with Chapter 14 of the Civil Practice and Remedies

Brewer v. Simental                                                                      Page 3
Code and for obtaining authority to represent and to answer on behalf of the

defendants. Brewer filed a second supplemental affidavit of grievances on February 9.

       The defendants filed a motion to dismiss under Chapter 14, asserting: (1) Brewer

failed to comply with section 14.005 and Government Code section 551.008 relating to

the exhaustion and filing of administrative grievances; and (2) Brewer’s claims are

frivolous or malicious. The trial court found that Brewer’s petition was frivolous and

did not comply with Chapter 14 and dismissed the suit with prejudice. Raising three

issues, Brewer appeals.

                             Application of Section 14.002

       A prison inmate who files suit in a Texas state court pro se and who seeks to

proceed in forma pauperis must comply with the procedural requirements set forth in

Chapter 14 of the Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN.

§§ 14.002(a), 14.004, 14.005 (Vernon 2002).         Failure to fulfill those procedural

requirements will result in dismissal of an inmate’s suit. See Bell v. Texas Dep’t of Crim.

Justice-Inst. Div., 962 S.W.2d 156, 158 (Tex. App.—Houston [14th Dist.] 1998, pet.

denied).

       Brewer’s first issue complains about the facial unconstitutionality of Chapter 14.

He asserts that, despite his invocation of Chapter 14 by his filing an affidavit of

indigence, once the trial court assessed costs and ordered their payment out of his

inmate trust account, the continued application of Chapter 14 violates equal protection

and is thus unconstitutional because his suit is treated differently than the suit of a non-

indigent inmate who paid costs of suit in advance and thus would not be governed by

Brewer v. Simental                                                                    Page 4
Chapter 14).

       Constitutional violations must be raised in the trial court to be preserved for

appellate review. In re S.A.P., 169 S.W.3d 685, 692 (Tex. App.—Waco 2005, no pet.)

(citing In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003)). Because Brewer did not raise his

equal protection argument in the trial court, he has not preserved his first issue for

appellate review. TEX. R. APP. P. 33.1(a).

                                  Chapter 14 Dismissal

       Generally, the dismissal of inmate litigation under Chapter 14 is reviewed for

abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no

writ). “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, no pet.) (internal citations omitted).

Affidavits Relating to the Grievance System

       Section 14.005(a) mandates that an inmate who files a claim that is subject to the

TDCJ grievance system file an affidavit or unsworn declaration stating the date that his

grievance was filed and the date that he received the written grievance decision. TEX.

CIV. PRAC. & REM. CODE ANN. § 14.005(a)(1). The section also mandates the filing of a

copy of the written grievance decision. Id. § 14.005(a)(2). If an inmate does not strictly

comply with section 14.005(a), a trial court does not abuse its discretion in dismissing

the claim. Draughon v. Cockrell, 112 S.W.3d 775, 776 (Tex. App.—Beaumont 2003, no

Brewer v. Simental                                                                   Page 5
pet.). Brewer’s second issue complains that the trial court abused its discretion for

dismissing his suit because of noncompliance with section 14.005(a).

       Brewer filed an original affidavit of grievances and a supplemental affidavit of

grievances with his original petition, and Brewer filed a second supplemental affidavit

of grievances two weeks later. In their motion to dismiss, the defendants asserted: (1)

Brewer’s attached grievances refer to retaliation claims against only Simental and

Townsend; (2) a copy of the grievance against Simental and Townsend was not

included; and (3) Brewer did not grieve against Seigle.           For these reasons, the

defendants contended that Brewer did not comply with section 14.005 and Brewer did

not exhaust his administrative remedies.

       Brewer filed six detailed grievances pertaining to his claims in this case, as shown

by Brewer’s original affidavit of grievances and his two supplemental affidavits of

grievances. The two supplemental affidavits were necessitated by the prison’s need for

extensions to investigate two of the grievances (including Brewer’s second (October 19)

grievance against Simental and Townsend) and to replace the prison’s notices of

extension with the grievances upon Brewer’s receipt. On appeal, defendants in effect

concede that Brewer technically complied with section 14.005(a), and the record reflects

such compliance. Therefore, to the extent the trial court dismissed Brewer’s suit for

failure to comply with section 14.005, we find no grounds upon which the trial court

could have found a failure to comply, and we conclude that the trial court abused its

discretion. See Spurlock, 88 S.W.3d at 733.

       The other aspect of the defendants’ contention goes to the substance of Brewer’s

Brewer v. Simental                                                                   Page 6
grievances and the persons whom Brewer was grieving against.1 A remedy provided

by the statutory prison inmate grievance system is the exclusive administrative remedy

available to an inmate for a claim for relief against the department. TEX. GOV’T CODE

ANN. § 501.008(a) (Vernon 2004). “An inmate may not file a claim in state court regarding

operative facts for which the grievance system provides the exclusive administrative

remedy until: (1) the inmate receives a written decision issued by the highest authority

provided for in the grievance system; . . .” Id. § 501.008(d)(1) (emphasis added).

       The purpose of sections 14.005 and 501.008 is to allow the trial court to ensure

that an inmate proceeding in forma pauperis has first used TDCJ’s grievance procedure

and has exhausted his administrative remedies through the prison grievance system

before filing suit on the same operative facts. See Spurlock, 88 S.W.3d at 737; Smith v.

Texas Dep’t of Crim. Justice-Inst. Div., 33 S.W.3d 338, 341 (Tex. App.—Texarkana 2000,

pet. denied). Other than reviewing a grievance to insure that the inmate’s claim arises

from the same operative facts set forth in the grievance, nothing in the grievance system

statutes supports the defendants’ contention that the trial court—or an appellate court

reviewing a trial court—can or should parse through an inmate’s grievance to

determine the nature of the inmate’s claims and whether a person is a proper party

based on the grievance’s content. Accord Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir.

1       The Fifth Circuit has summarized the TDCJ grievance guidelines for inmates:
        The record in this case includes portions of the guidelines that TDCJ provides prisoners
        regarding how to file grievances. Among other things, the rules direct inmates to write
        “briefly and clearly” but also to “be very specific about your grievance or your problem.”
        They state that a grievance should contain facts, not legal words or conclusions. They
        further direct the prisoner to “[t]ell us what action you want us to take to resolve your
        grievance or problem,” but they specifically state that a prisoner should “not ask us to
        take disciplinary action against employees.”
Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004).

Brewer v. Simental                                                                                   Page 7
2004) (applying federal exhaustion statute) (“We are mindful that the primary purpose

of a grievance is to alert prison officials to a problem, not to provide personal notice to a

particular official that he may be sued; the grievance is not a summons and complaint

that initiates adversarial litigation. Cf. Brown[ v. Sikes, 212 F.3d 1205, 1207-10 (11th Cir.

2000)] (rejecting a rule that a prisoner must always name defendants in his grievance).

But, at the same time, the grievance must provide administrators with a fair

opportunity under the circumstances to address the problem that will later form the

basis of the suit, and for many types of problems this will often require, as a practical

matter, that the prisoner’s grievance identify individuals who are connected with the

problem.”).

       We have reviewed Brewer’s grievances. They set forth the same operative facts

as his petition with great detail. They provide prison administrators with fair notice of

his allegations so that the alleged problem could have been addressed by them, and for

each grievance, no administrative response asserted a lack of specificity or inadequacy.

Therefore, to the extent the trial court dismissed Brewer’s suit based on the defendants’

grounds that the grievances did not adequately set forth the claims and parties as in this

suit, we find no grounds upon which the trial court could have could have concluded

that Brewer failed to comply with sections 14.005 and 501.008 in exhausting his

administrative remedies, and we conclude that the trial court abused its discretion. We

sustain Brewer’s second issue.

Frivolousness

       The trial court’s dismissal order states that Brewer’s petition is frivolous.

Brewer v. Simental                                                                     Page 8
Brewer’s third issue complains that the trial court’s dismissal for frivolousness is an

abuse of discretion.

       Section 14.003 allows a trial court to dismiss a suit filed by an indigent inmate,

either before or after service of process, if the court finds that the claim is frivolous or

malicious. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2). In determining whether

the claim is frivolous or malicious, the trial court may consider whether (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

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).

       Standard of Review

               The Texas Supreme Court has expressed doubt about whether a
       trial court can properly dismiss a suit only because the claim’s realistic
       chance of ultimate success is slight or because it is clear that the party
       cannot prove facts in support of the claim. Johnson v. Lynaugh, 796 S.W.2d
       705, 706-07 (Tex. 1990). Practically speaking, therefore, the trial court is
       limited to determining whether the claim has an arguable basis in law or
       fact. Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d 113, 115 (Tex.
       App.—Austin 1997, writ denied). When the trial court dismisses a claim
       without conducting a fact hearing, we are limited to reviewing whether
       the claim had an arguable basis in law. Sawyer v. Texas Dep’t of Criminal
       Justice, 983 S.W.2d 310, 311 (Tex. App.—Houston [1st Dist.] 1998, pet.
       denied); Leon Springs Gas Co. v. Rest. Equip. Leasing Co., 961 S.W.2d 574, 579
       (Tex. App.—San Antonio 1997, no pet.); Bohannan v. Texas Bd. of Criminal
       Justice, 942 S.W.2d at 115; In re Wilson, 932 S.W.2d 263, 265 (Tex. App.—El
       Paso 1996, no writ).

Smith, 33 S.W.3d at 340; see also Spurlock, 88 S.W.3d at 736.

       The issue before us is whether the trial court properly determined there was no

arguable basis in law for the suit. Spurlock, 88 S.W.3d at 736 (citing Lentworth v. Trahan,

Brewer v. Simental                                                                      Page 9
981 S.W.2d 720, 722 (Tex. App.—Houston [1st Dist.] 1998, no pet.)). A fact hearing on

frivolousness is necessary only if the claim has an arguable basis in law. Johns v.

Johnson, 2005 WL 428465, at *1 (Tex. App.—Waco Feb. 23, 2005, no pet.) (mem. op.)

(citing Denson v. T.D.C.J.-I.D., 63 S.W.3d 454, 459 (Tex. App.—Tyler 1999, pet. denied)).

In this case, the trial court held no fact hearing on the defendants’ motion to dismiss.

Thus, its basis for determining that Brewer’s claims were frivolous could not have been

because it found they had no arguable basis in fact, but was because they had no

arguable basis in law. Id. The issue of whether there was an arguable basis in law is a

legal question that we review de novo. Id.; Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex.

App.—Houston [1st Dist.] 2002, no pet.).

       To determine whether the trial court properly decided there was no arguable

basis in law for Brewer’s suit, we examine the types of relief and causes of action that

Brewer pled in his petition to determine whether, as a matter of law, the petition stated

a cause of action that would authorize relief. Johns, 2005 WL 428465, at *1; Spurlock, 88

S.W.3d at 736. We review and evaluate pro se pleadings by standards less stringent

than those applied to formal pleadings drafted by lawyers. Spurlock, 88 S.W.3d at 736

(citing Thomas v. Collins, 860 S.W.2d 500, 503 (Tex. App.—Houston [1st Dist.] 1993, writ

denied)). Also, in reviewing the dismissal of Brewer’s suit, we are bound to take as true

the allegations in his petition. Jackson v. Tex. Dep’t Crim. Justice-Inst. Div., 28 S.W.3d 811,

813 (Tex. App.—Corpus Christi 2000, pet. denied).

       Section 1983

       Brewer’s suit asserts claims under 42 U.S.C § 1983. Section 1983 provides a cause

Brewer v. Simental                                                                     Page 10
of action and remedy when any “person” acting under color of state law deprives

another of rights, privileges, or immunities protected by the U.S. Constitution or laws.

Gordon v. Scott, 6 S.W.3d 365, 369 (Tex. App.—Beaumont 1999, pet. denied) (citing

Thomas, 960 S.W.2d at 109). A section 1983 action will lie against state officials in their

personal or individual capacities.           Id.   Brewer sued all seven defendants in their

individual capacities.

       Brewer’s petition asserts two distinct claims:2 (1) retaliation for Brewer’s exercise

of his constitutional right to access the courts; and (2) conspiracy to retaliate for

attempting to exercise his constitutional right to access the courts.

       Retaliation

       To prevail on a section 1983 retaliation claim, an inmate “must be able to show

more than a personal belief that he is the victim of retaliation.” Johns, 2005 WL 428465,

at *3 (citing Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997)).

        [A]n inmate must be able to establish: i) a specific constitutional right; ii)
        the defendants’ intent to retaliate against him for exercising that right; iii)
        a retaliatory adverse act; and iv) causation—a showing that “but for the
        retaliatory motive, the complained of incident would not have occurred.”
        McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998).

Id. Indisputably, “a prison official may not retaliate against or harass an inmate for

exercising the right of access to the courts, or for complaining to a supervisor about a


2        We do not discern in Brewer’s petition a separate claim for the deprivation of Brewer’s access to
courts. Generally, and at least for an isolated deprivation of an inmate’s access to court by denying or
interfering with an inmate’s access to the law library, the inmate must show actual injury, usually in the
form of legal prejudice in the litigation the inmate is involved in. See Johns, 2005 WL 428465, at *2. But
when an inmate alleges an ongoing pattern of denial of access and interference, actual injury need not be
shown. See Martin v. Ezeagu, 816 F. Supp. 20, 24 (D.D.C. 1993). On remand, if Brewer disagrees with our
assessment of his petition, he would not be precluded from explicitly pleading such a claim because the
facts in his grievances and petition plainly support one.

Brewer v. Simental                                                                                Page 11
guard’s misconduct.” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). The purpose of

allowing retaliation claims under section 1983 is to ensure that prisoners are not unduly

discouraged from exercising their constitutional rights. Morris v. Powell, 449 F.3d 682,

686 (5th Cir. 2006).

       i. specific constitutional right

       “An inmate has a constitutional right of access to courts. Tighe v. Wall, 100 F.3d

41, 42 (5th Cir. 1996). That access must be adequate, effective, and meaningful. Bounds

v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).” Johns, 2005 WL 428465,

at *2. Brewer’s petition plainly meets this element.

       ii. intent to retaliate

       The inmate must “allege a chronology of events from which retaliation may

plausibly be inferred.” Woods, 60 F.3d at 1166 (quoting Murphy v. Lane, 833 F.2d 106,

108-09 (7th Cir. 1987) (holding that the plaintiff’s complaint “set forth a chronology of

events from which retaliatory animus on the part of defendants could arguably be

inferred” sufficient to overcome a motion to dismiss)); see also Johns, 2005 WL 428465, at

*3 (inmate’s petition failed to allege facts or chronology of events showing retaliation).

Brewer’s 26-page petition more than adequately details a chronology of events from

which the defendants’ retaliatory animus could arguably be inferred. Brewer pleads,

for example, that the defendants knew he had a court deadline, that the defendants

knew he was assigned to work utility from 1:00 p.m. to 9:00 p.m., that the defendants

knew that he could not obtain law-library lay-ins during his assigned work hours, that

the defendants knew he had law-library lay-ins at 5:50 a.m., and that the defendants

Brewer v. Simental                                                                  Page 12
told him that they did not care that he had lay-ins because they could make him work

whenever they wanted to, including when Brewer had a scheduled lay-in or was

actually in the law library.3           Moreover, Brewer pleads that, on October 18, while

attending his 5:55 a.m. to 7:55 a.m. law library session, at 6:54 a.m. Simental called the

library and told the officer on duty that Brewer should not have a lay-in and told the



3        Notable here is the defendants’ contention in their brief, (Defendants-Appellees’ Br. at 11), along
with several of the prison administration’s grievance responses, to the effect that “offenders may be
ordered to report to work at any time.” (C.R. 0051, 0055, 0057, 0059, 0061, 0063) [Emphasis added.] This
position and this alleged prison policy heightens the analysis of Brewer’s retaliation claim because it
raises the specter of pretext in the denial of access to the law library, which segues into the inmate
disciplinary process. I.e., a prison guard or officer who seeks to deny an inmate access to the courts can
simply order him to report to work when the inmate has a law library pass, and when the inmate
disobeys the order, the guard or officer files a disciplinary charge against the inmate, who is then
punished for violating policy.
         The Fifth Circuit has addressed the thorny issue of an inmate’s section 1983 retaliation claim
arising out of an allegedly false disciplinary charge and the tension between an inmate’s exercise of
constitutional rights and the wide latitude needed by prison officials in the control and disciplining of
inmates:
                  While we remain fully supportive of the proposition that prison officials must
         have wide latitude in the control and disciplining of inmates, that “latitude does not
         encompass conduct that infringes on an inmate's substantive constitutional rights.”
         Within that limitation we intend no undue restriction of actions legitimately motivated
         by concerns of prison order and discipline. . . .
                  To assure that prisoners do not inappropriately insulate themselves from
         disciplinary actions by drawing the shield of retaliation around them, trial courts must
         carefully scrutinize these claims. To state a claim of retaliation an inmate must allege the
         violation of a specific constitutional right and be prepared to establish that but for the
         retaliatory motive the complained of incident—such as the filing of disciplinary reports
         as in the case at bar—would not have occurred. This places a significant burden on the
         inmate. Mere conclusionary allegations of retaliation will not withstand a summary
         judgment challenge. The inmate must produce direct evidence of motivation or, the
         more probable scenario, “allege a chronology of events from which retaliation may
         plausibly be inferred.”
Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (footnotes and citations omitted).
         Regardless of that tension, an “action motivated by retaliation for the exercise of a
constitutionally protected right is actionable, even if the act, when taken for a different reason, might
have been legitimate.” Id. at 1165 (citing Mt. Healthy City School Distr. Bd. of Ed. v. Doyle, 429 U.S. 274, 97
S.Ct. 568, 50 L.Ed.2d 471 (1977); Jackson v. Cain, 864 F.2d 1235 (5th Cir. 1989); Smith v. Maschner, 899 F.2d
940 (10th Cir. 1990); Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988)). In addition, several of the administration
responses to Brewer’s grievances (C.R. 0069, 0071, 0085) confirm his claim that he had and was using law
library lay-ins when Simental or others ordered him to work outside of his assigned work schedule, thus
interfering with his library access. Thus, we are not hesitant to find that despite the apparently legitimate
disciplinary charges, Brewer’s section 1983 retaliation claim has an arguable basis in law.

Brewer v. Simental                                                                                    Page 13
officer to send Brewer to meet with Simental at the C-Hall Desk. Brewer met Simental

and Townsend there, and they both stated, “We have already told you that you would

not be attending the law library.” They then placed Brewer under cell restriction, and

when Brewer said that he would file another grievance against them, they both stated,

“when we are done with you, you won’t know how to spell grievance.”

       Brewer’s petition adequately pleads retaliatory intent. See Martin v. Ezeagu, 816

F. Supp. 20, 24 (D.D.C. 1993) (inmate adequately pled ongoing pattern of harassment,

interference, and exclusion from law library).

       iii. retaliatory adverse act

       Brewer’s 26-page petition details the numerous times between October 7 and

October 19 that Simental, at times alone and at times with Townsend and Davis,

removed Brewer from the law library because he allegedly was not reporting to utility

work in Ad. Seg. at 5:00 a.m. The petition details the several allegedly false disciplinary

charges that were filed against him by Simental, Townsend, Davis, and Duke on the

ground that Brewer was not reporting to utility work in Ad. Seg. at 5:00 a.m., yet

Brewer pleads that he was already scheduled to work a 1:00 p.m. to 9:00 p.m. utility

shift and he had law-library lay-ins starting at 5:50 a.m. Brewer’s petition details the

disciplinary punishment he received as a result of those charges:                  commissary

restrictions, cell restrictions, loss of contact visitation, property restriction, and line class

reductions.

       Brewer’s petition adequately pleads retaliatory adverse acts.




Brewer v. Simental                                                                       Page 14
       iv. causation

       Brewer’s petition adequately details that, but for the defendants’ orders for him

to report to work during his law library lay-ins, the disciplinary charges and the

resulting punishments would not have occurred.

       In conclusion, in our de novo review of Brewer’s petition, we hold that his section

1983 retaliation claim has an arguable basis in law. Accordingly, the trial court abused

its discretion in dismissing it as frivolous. We sustain in part Brewer’s third issue.

       Conspiracy

       Brewer alleges that several other prison officials or employees conspired with

Simental and his cohorts to assist in their retaliation against Brewer. Brewer alleges that

Janet C. Taylor, an administrative assistant, assisted Simental by changing Brewer’s

work hours in the prison computer system in the middle of Simental’s course of

conduct to keep Brewer out of the library and by not notifying Brewer of this change

(he alleged receiving notice of the changed hours after Simental filed a disciplinary

report charging Brewer with not reporting to work as ordered and scheduled). 4

       Brewer alleges that John D. Seigle, a corrections sergeant and law library

supervisor, assisted Simental on October 19 by acceding to Simental’s demand that

Brewer’s lay-in for that day, which Seigle had issued, be taken back. According to

Brewer, while he was in the law library, Seigle was called to Simental’s office, and when

Seigle returned, he said that Simental had accused him of “taking sides” with an

offender instead of with a co-worker and ranking officer.

4       The administration response to one of Brewer’s grievances appears to support this allegation; it
notes that there was “a written notice of change to job hours as of 10-20-2005 at 9:26 am.” (C.R. 0061).

Brewer v. Simental                                                                              Page 15
       Lindsay Lewis, the Warden’s grievance investigator, and Robert Losack, a

corrections captain and disciplinary hearing officer, are alleged to have assisted

Simental in the grievance and disciplinary process by ignoring evidence and preventing

Brewer’s access to evidence to defend his claims and defenses. Brewer also alleges that

Lewis and Losack had the authority to stop Simental’s retaliation but failed to do so.

Instead, they removed Brewer’s Ad. Seg. restriction, denied Brewer’s grievances, and

disciplined Brewer.

       In a federal suit with similar claims alleged, the district court stated the

applicable law:

               To allege a claim of conspiracy to deprive a plaintiff of his
       constitutional rights, a plaintiff must allege, “(1) a conspiracy involving
       two or more persons; (2) for the purpose of depriving, directly or
       indirectly, a person or class of persons of the equal protection of the laws;
       and (3) an act in furtherance of the conspiracy; (4) which causes injury to a
       person or property, or deprivation of any right or privilege of a citizen of
       the United States.” Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994).
       Where all of the defendants are members of the same collective entity,
       however, the conspiracy does not involve two or more people. Id. at 653;
       see also Moody v. Jefferson Parish Sch. Bd., 803 F. Supp. 1158, 1166 (E.D. La.
       1992) (School Board, Principal, Vice-Principal, and various teachers are all
       employed by the Jefferson Parish School Board and, thus, are a single
       entity), aff’d, 2 F.3d 604 (5th Cir. 1993); Hankins v. Dallas Indep. Sch. Dist.,
       698 F. Supp. 1323, 1330 (N.D. Tex. 1988) (high school and its officials
       constitute a single entity); Chambliss v. Foote, 421 F. Supp. 12, 15 (E.D. La.
       1976) (“the university and its officials are considered as constituting a
       single legal entity which cannot conspire with itself”), aff’d, 562 F.2d 1015
       (5th Cir. 1977).

Brown v. Carr, 2008 WL 2571713, at *5 (S.D. Tex. June 26, 2008). Because all of the

defendants were members of the same collective entity (TDCJ-ID’s McConnell Unit), the

plaintiff did not state a separate legal claim for conspiracy apart from his retaliation


Brewer v. Simental                                                                        Page 16
claim. See id.

        Brewer’s conspiracy claim suffers from the same flaw; all of the defendants who

allegedly conspired are or were Wynne Unit employees at the time of the alleged acts.

Accordingly, they could not have conspired under the applicable law to afford Brewer

an actionable section 1983 conspiracy claim, and that claim thus has no arguable basis in

law.5    Accordingly, the trial court did not abuse its discretion in dismissing it as

frivolous. We overrule in part Brewer’s third issue.

                                              Conclusion

        Having sustained Brewer’s second issue and his third issue in part, we reverse

the trial court’s dismissal order and remand this cause for further proceedings

consistent with this opinion.



                                                          BILL VANCE
                                                          Justice


Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
       (Chief Justice Gray dissents. A separate opinion will not issue.)
Reversed and remanded
Opinion delivered and filed September 10, 2008
[CVPM]



5        The fact that Brewer’s conspiracy claim is not actionable does not render the allegations—which
are obviously disturbing if true—any less egregious, especially with Brewer’s access-to-courts
constitutional backdrop. See Wood, 60 F.3d at 1165 (noting other circuit’s opinion that “an allegation of
retaliatory disciplinary charges could give rise to either an independent section 1983 action or be part of a
procedural due process review of the disciplinary hearing”) (citing Smith v. Maschner, 899 F.2d 940, 946-48
(10th Cir. 1990)); see also id. (“the court with which [the inmate] sought contact, and not his jailer, will
determine the merits of his claim”) (quoting Andrade v. Hauck, 452 F.2d 1071, 1072 (5th Cir. 1971)).

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