                                  NUMBER 13-07-00690-CV

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


BRAD LIVINGSTON, ROBERT TREON,
MARTHA WEAR, AND PAUL MORALES,                                                             Appellants,

                                                     v.

ATIBA RAMONE TAYLOR, TDCJ #1082601,                                                           Appellee.


      On appeal from the 156th District Court of Bee County, Texas.



                             MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Yañez and Benavides
             Memorandum Opinion by Justice Benavides

        Appellants, Brad Livingston, Robert Treon, Martha Wear, and Paul Morales

(collectively, “the Livingston defendants”),1 appeal from the trial court’s denial of their

motion for summary judgment. See TEX . CIV. PRAC . & REM . CODE ANN . § 51.014(a)(5)



         1
           W hen the underlying suit was file, Livingston was the Executive Director of the Texas Departm ent
of Crim inal Justice, Treon was the TDCJ-CID Region IV Director, W ear was an Assistant Director of TDCJ-
CID Region IV, and Morales was a W arden at the McConnell Unit.
(Vernon 2008) (providing for the appeal of a district court’s interlocutory order that “denies

a motion for summary judgment that is based on an assertion of immunity by an individual

who is an officer or employee of the state or a political subdivision of the state”). On

appeal, the Livingston defendants assert that (1) they are entitled to official immunity, and

(2) they are entitled to qualified immunity. We reverse and render judgment for the

Livingston defendants.

                                      I. BACKGROUND

       Appellee, Atiba Ramone Taylor, is an inmate at the McConnell Unit, a Texas

Department of Criminal Justice - Correctional Institutions Division (“TDCJ-CID”) facility in

Beeville, Texas. On August 8, 2005, claiming that his cell leaked water, particularly during

rainy weather, Taylor filed a Step 1 grievance. Taylor alleged that the leaking sometimes

flooded the whole floor and “floods out the entire run.” “These living conditions are a risk

at . . . pneumonia, patheginical [sic] infections (that breed on stagnated water just as West

Nile infected mosquitos), at fungal, and other aquatic, or viral life forms, and a risk of

electricution [sic].” He was also denied “mops [ ] and other cleaning materials . . . .”

Pursuant to an investigation of this complaint, a work order for repairs was generated. On

September 28, 2005, Taylor filed a Step 2 grievance alleging that no repairs had been

made. Taylor stated that he had been “dealing” with this issue since the beginning of

2004. Taylor was informed that the work order was sufficient to address his complaint and

that he should ask for more towels if water enters his cell.

       On November 14, 2005, proceeding pro se and in forma pauperis, Taylor filed a

section 1983 action against the Texas Department of Criminal Justice (“TDCJ”) asserting

that it violated his Eighth Amendment right to be free from cruel and unusual punishment.

See 42 U.S.C. § 1983; U.S. CONST . amend. VIII. On July 21, 2006, Taylor amended his

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petition to include the Livingston defendants as parties to the suit and to add a new claim

under the Texas Tort Claims Act. See TEX . CIV. PRAC . & REM . CODE ANN . § 101.021

(Vernon 2005). Taylor asserted that the conditions in his cell caused him rashes and skin

bumps, the discharge of black mucus when he sneezes and coughs, and shortness of

breath. On March 16, 2007, the trial court held a telephone conference in which Taylor’s

Texas Tort Claims Act claim was dismissed against all parties. The section 1983 claims

proceeded against the Livingston defendants in their official and individual capacities but

were dismissed as to the TDCJ.2

        On May 15, 2007, the Livingston defendants filed a traditional motion for summary

judgment asserting sovereign, official, and qualified immunity. See TEX . R. CIV. P. 166a.

On October 19, 2007, the trial court denied the Livingston defendants’ motion for summary

judgment. This appeal ensued.

                                       II. STANDARD OF REVIEW

        We review the grant or denial of a traditional summary judgment de novo. See

Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.7 (Tex. 2005) (citing Schneider Nat’l

Carriers, Inc. v. Bates, 147 S.W.3d 264, 290 n. 137 (Tex. 2004)). To be entitled to

summary judgment, the movant must demonstrate that no genuine issues of material fact

exist and that he is entitled to judgment as a matter of law. See TEX . R. CIV. P. 166a(c).

Once the movant satisfies his burden, the burden shifts to the non-movant to produce

evidence sufficient to raise a fact issue. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex.

1996). In determining whether a fact issue exists, evidence favorable to the non-movant


        2
         During the March 16, 2007 telephone conference, the trial court recognized that an agency is not
an appropriate party to a section 1983 action. See Retzlaff v. Tex. Dep’t of Crim. Justice, 135 S.W .3d 731,
744 (Tex. App.–Houston [1st Dist.] 2003, no pet.) (citing Denson v. T.D.C.J.-I.D., 63 S.W .3d 454, 461 (Tex.
App.–Tyler 1999, pet. denied)).

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is taken as true. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997) (citing

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)). All doubts will be

resolved in favor of the non-movant, and all reasonable inferences will be indulged in his

favor. Id. (citing Nixon, 690 S.W.2d at 549).

                                          III. SOVEREIGN IMMUNITY3

         The Livingston defendants assert that, in their official capacity as employees of

TDCJ, they are entitled to sovereign immunity. See Vela v. Rocha, 52 S.W.3d 398, 403

(Tex. App.–Corpus Christi 2001, no pet.) (“An individual sued in his official

capacity . . . may in some cases enjoy the protections of sovereign immunity to the extent

those protections are available to his employer.”); Hidalgo County v. Gonzalez, 128

S.W.3d 788, 793 (Tex. App.–Corpus Christi 2004, no pet.) (“If the governmental unit would

be immune due to sovereign immunity, so is the governmental official sued in his official

capacity.”). Congress did not intend section 1983 of the Civil Rights Act to abrogate a

state’s sovereign immunity without the state’s consent.4 Will v. Mich. Dep’t of State Police,

491 U.S. 58, 65-66 (1989) (holding that “a State is not a person within the meaning of §

1983.”); see 42 U.S.C. § 1983. Therefore, TDCJ is not a proper party to a section 1983

claim. Harrison v. Tex. Dept. of Criminal Justice-Institutional Div., 915 S.W.2d 882, 889

(Tex. App.–Houston [1st Dist.] 1995, no pet.) (“Neither a state nor its officials acting in their


         3
          The Livingston defendants appear to use the term s “official im m unity” and “sovereign im m unity”
interchangeably. However, the m ore accurate term for the assertion in their first issue is “sovereign im m unity.”
See Texas A & M Univ. Sys. v. Koseoglu, 233 S.W .3d 835, 843 (Tex. 2007) (“[A]n official sued in his individual
capacity would assert official im m unity as a defense to personal m onetary liability, which is well suited for
resolution in a m otion for sum m ary judgm ent. But an official sued in his official capacity would assert
sovereign im m unity.”) (internal citations om itted).

         4
             Section 1983 provides:          “Every person who, under color of any statute . . . of any
State . . . subjects . . . any citizen of the United States . . . within the jurisdiction thereof to the deprivation of
any rights, privileges, or im m unities secured by the Constitution and laws, shall be liable to the party injured
in an action at law . . . .” 42 U.S.C. § 1983 (1996); see Scott v. Britton, 16 S.W .3d 173, 180 (Tex.
App.–Houston [1st Dist.] 2000, no pet.).

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official capacities are ‘persons’ under § 1983.”). When sued under section 1983 in his

official capacity, a suit against a state official is a suit against the state, and is therefore

barred by sovereign immunity. See Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 581

(Tex. 2001). We conclude that the Livingston defendants are protected by sovereign

immunity in their official capacities and sustain their first issue. See id. at 582.

                                          IV. QUALIFIED IMMUNITY5

        Qualified immunity shields a government official “performing discretionary functions

from liability for civil damages under section 1983, provided the official’s conduct does not

violate clearly established constitutional or statutory rights of which a reasonable person

would have been aware.” Scott v. Britton, 16 S.W.3d 173, 180 (Tex. App.–Houston [1st

Dist.] 2000, no pet.) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Legal rights

are clearly established when the ”’contours of the right [are] sufficiently clear that a

reasonable official would understand that what he is doing violates that right.’” Tex. Dep’t

of Criminal Justice v. Thomas, 263 S.W.3d 212, 219 (Tex. App.–Houston [1st Dist.] 2007,

pet. denied) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

        When a government official pleads qualified immunity, the summary judgment



        5
            W e recognize that the term s “official im m unity” and “qualified im m unity” are often used
interchangeably. See Travis v. City of Mesquite, 830 S.W .2d 94, 100 n.2 (Tex. 1992) (Cornyn, J., concurring).
However, the doctrines are separate defenses: qualified im m unity applies when federal law claim s are raised
while official im m unity applies when state law claim s are raised. See Newman v. Kock, 274 S.W .3d 697, 705
(Tex. App.–San Antonio 2008, no pet.); see also Hudson v. Vasquez, 941 S.W .2d 334, 338 (Tex.
App.–Corpus Christi 1997, no writ) (noting that “the federal test is nevertheless distinct from the state test, and
resolution of state law im m unity issues does not resolve federal im m unity issues under section 1983.”). W hen
considering claim s of qualified im m unity, Texas courts apply the sam e burden shifting as the Fifth Circuit. See
e.g., Newman, 274 S.W .3d at 705; Leachman v. Dretke, 261 S.W .3d 297, 313 (Tex. App.–Fort W orth 2008,
no pet.); Tex. Dep’t of Criminal Justice v. Thomas, 263 S.W .3d 212, 219 (Tex. App.–Houston [1st Dist.] 2007,
pet. denied); Carrera v. Yepez, 6 S.W .3d 654, 661 (Tex. App.–El Paso 1999, pet. dism ’d w.o.j.) (“The
affirm ative defense of qualified im m unity, however, gives rise to shifting burdens.“) (citing Salas v. Carpenter,
980 F.2d 299, 306 (5th Cir. 1992) (explaining the burden shifting process in qualified im m unity cases)).




                                                         5
burden shifts to the plaintiff to produce evidence which establishes that the official’s

conduct violated the clearly established law. Newman v. Kock, 274 S.W.3d 697, 705 (Tex.

App–San Antonio 2008, no pet.) (citing Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir.

2005)); see Pearson v. Callahan, 129 S.Ct. 808, 815 (2009) (noting that qualified immunity

is immunity from suit, not merely a defense to liability). “Once the defendant official pleads

good faith and demonstrates that the challenged actions occurred in the context of

discretionary authority, the burden shifts to the plaintiff to rebut this defense.” Scott v.

Godwin, 147 S.W.3d 609, 616 (Tex. App.–Corpus Christi 2004, no pet.) (citing Carrera v.

Yepez, 6 S.W.3d 654, 661 (Tex. App.–El Paso 1999, pet. dism’d w.o.j.); Haynes v. City of

Beaumont, 35 S.W.3d 166, 176 (Tex. App.–Texarkana 2000, no pet.)).

       To prove an Eighth Amendment violation based on the conditions of confinement,

the plaintiff must show that the deprivation he alleges is objectively serious and that the

government official acted with deliberate indifference to his health and safety. Hernandez

v. Velasquez, 522 F.3d 556, 560-61 (5th Cir. 2008); Britton, 16 S.W.3d at 181. To

demonstrate that the deprivation he alleges is objectively serious, Taylor must show “that

the condition [is] so serious as to ‘deprive prisoners of the minimal civilized measure of

life’s necessities,’ as when it denies the prisoner some basic human need.’” Woods v.

Edwards, 51 F.3d 577, 581 (5th Cir. 1995) (quoting Harris v. Angelina County, 31 F.3d 331,

334 (5th Cir. 1994)). To prove deliberate indifference, the plaintiff must show that the

official was “aware of facts from which it could be inferred that a substantial risk of serious

harm exists, and must draw that inference.” Britton, 16 S.W.3d at 181. “Deliberate

indifference is an extremely high standard to meet.” Domino v. Tex. Dep’t of Criminal

Justice, 239 F.3d 752, 756 (5th Cir. 2001).



                                              6
         Assuming, arguendo, that Taylor’s housing conditions were objectively serious, we

conclude that Taylor failed to prove that the Livingston defendants acted with deliberate

indifference.    See Britton, 16 S.W.3d at 181.        As the Supreme Court has noted,

“[D]eliberate indifference describes a state of mind more blameworthy than negligence.”

Farmer, 511 U.S. at 835. There must have been “‘more than ordinary lack of due care for

the prisoner’s interests or safety.’” Id. (quoting Whitley v. Albers, 475 U.S. 312, 319

(1986)). The summary judgment evidence presented to the trial court demonstrated that,

not only were the Livingston defendants not negligent, they were pursuing solutions to the

problems.

         Treon stated in his affidavit that 8-Building, among other buildings in the McConnell

Unit, had an outstanding Major Work Request to replace its roof, which was part of a

project to replace 445,524 square feet of roof. Livingston attached to his motion for

summary judgment work orders for roof repairs between March 2004 and February 2005.

Norris Jackson, an assistant warden at the McConnell Unit, testified via affidavit that there

was a Major Work Order for repairing 8-Building’s roof with work projected to begin in

October 2006 and finishing in October 2007. In response to Taylor’s Step 1 grievance, the

warden noted that “a work order has been generated and has been deferred to regional

headquarter[s]. Once more material is received, repairs will be made.” Unsatisfied by this

result, Taylor filed a Step 2 grievance to which Treon responded, “The Step 1 response

has addressed your complaint. Additionally, notify staff to request extra towels if water

enters your cell.”

         One federal district court has addressed this precise issue of leaking cells at the

McConnell Unit. In Weber v. Stevens, the District Court for the Southern District of Texas

noted,

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       The mere fact that defendants were aware that the roofs throughout the
       prison facility needed to be replaced is insufficient to prove that defendants
       were deliberately indifferent to plaintiff's health and safety. To the contrary,
       the evidence shows that a concentrated effort was being made to protect the
       health and safety of plaintiff and other inmates by responding to
       maintenance work orders.

See also No. C.A. C-04-378, 2005 WL 2076280, at *6 (S.D. Tex. Aug. 26, 2005) (finding

also that, on similar facts, plaintiff failed to establish that such living conditions were

objectively serious). Similarly, we conclude that Taylor has failed to satisfy his burden of

proving that Livingston acted with deliberate indifference to his health and safety.

Therefore, we conclude that the Livingston defendants are entitled to qualified immunity,

and we sustain their second issue.

                                      V. CONCLUSION

       Having found that the Livingston defendants are entitled to sovereign and qualified

immunity, we reverse the trial court’s judgment and render judgment that, on his section

1983 claims, Taylor take nothing from the Livingston defendants in either their official or

individual capacities. See Petta, 44 S.W.3d at 581.




                                                     ________________________
                                                     GINA M. BENAVIDES,
                                                     Justice

Memorandum Opinion delivered and
filed this the 6th day of August, 2009.




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