                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-13-00022-CV


                     REIDIE JACKSON, TDCJ #1164177, APPELLANT

                                             V.

                        CAPTAIN VAUGHN, ET AL, APPELLEES

                            On Appeal from the 72nd District Court
                                    Lubbock County, Texas
           Trial Court No. 2012-500,295, Honorable Ruben Gonzales Reyes, Presiding

                                   December 11, 2014

                             MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant Reidie Jackson, a Texas prison inmate appearing pro se and in forma

pauperis, brought suit under 42 U.S.C. § 1983 against prison employees of the Texas

Department of Criminal Justice. He appeals the trial court’s judgment dismissing his

suit pursuant to Chapter 14 of the Texas Civil Practice & Remedies Code.1 We will

reverse the trial court’s judgment and remand the cause.


      1
          TEX. CIV. PRAC. & REM. CODE ANN. §§ 14.001-.014 (West 2002 & Supp. 2014).
                                       Background


       Jackson’s original petition complained of the actions of a Captain Vaughn and a

Lieutenant Emsoff, and additional defendants whose names he did not then know, sued

as John Doe and Jane Doe defendants. The John and Jane Doe defendants were

members of a Montford Unit “use of force team.” The John Doe defendants forcibly

removed Jackson from his cell when he would not vacate it without the return of his

personal property. The Jane Doe defendant operated a camera recording the use-of-

force event. Jackson’s supplemental pleadings identified the members of the use of

force team as Nall, Ortega, Guzman, Martinez, and Honesto and the Jane Doe

defendant as Mayne.


       Jackson complains that Vaughn, Emsoff, and team members violated his Eighth

Amendment right to be free from cruel and unusual punishment. The gist of his factual

allegations are that the male team members struck him in the ribs and face and “kneed”

him in the face, all while he was in restraints. Mayne operated a camera but did not

record the event, and Vaughn and Emsoff stood by and watched the event with

deliberate indifference to Jackson’s safety.


       Vaughn and Emsoff filed a motion to dismiss under Chapter 14 of the Civil

Practice and Remedies Code alleging procedural and substantive defects in Jackson’s

pleadings. In November 2012, the trial court conducted a hearing on the motion to

dismiss. Jackson appeared in person.2 No testimonial or documentary evidence was

received but the court heard extensive argument. The court initially took the matter

       2
        See TEX. CIV. PRAC. & REM. CODE ANN. § 14.008 (West 2002) (court may hold a
hearing).

                                               2
under advisement but subsequently granted the motion and signed a “Final Judgment”

disposing of all claims and all parties. Findings of fact and conclusions of law were

filed. The court found Jackson’s suit was not timely filed. It also found Jackson failed to

plead facts sufficient to allege an excessive use of force claim and show any personal

involvement by Vaughn and Emsoff. Finally, the court found Jackson did not sufficiently

allege facts rebutting the qualified immunity defense asserted by Vaughn and Emsoff.


                                         Analysis


First Issue: Untimely Filed Petition


       An action brought by an inmate in which an affidavit of inability to pay costs is

filed is governed by Chapter 14 of the Texas Civil Practice and Remedies Code. TEX.

CIV. PRAC. & REM. CODE ANN. § 14.002(a) (West Supp. 2014). We review a trial court’s

decision to dismiss an action under Chapter 14 for abuse of discretion.          Brewer v.

Simental, 268 S.W.3d 763, 767 (Tex. App.—Waco 2008, no pet.).


       By his first issue on appeal, Jackson argues that dismissing his lawsuit as

untimely filed was an abuse of discretion. On the record before us, we agree.


       Jackson’s original petition bears the district clerk’s January 6, 2012, file stamp, a

date some six months beyond the statutory thirty-one day deadline.3 Jackson, however,

contended he timely filed suit through the prison mail system.




       3
        See TEX. CIV. PRAC. & REM. CODE ANN. § 14.005(b) (West 2002) (“A court shall
dismiss a claim if the inmate fails to file the claim before the 31st day after the date the
inmate receives the written decision from the grievance system”); Moreland v. Johnson,
95 S.W.3d 392, 395 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (“A suit that is not

                                             3
       Appended to the original petition are Jackson’s step 1 and step 2 offender

grievance forms. Jackson submitted the step 1 form in March 2011, alleging that prison

employees took his property and assaulted him. He received a response the following

month, and filed the step 2 grievance form on May 3, 2011. The step 2 form does not

indicate the date on which the response was returned to Jackson.


       The unsworn declaration appended to Jackson’s original petition pursuant to Civil

Practice and Remedies Code § 14.005(a)(1) states he received the step 2 response on

May 29. The conclusions of law the trial court signed include the statement, “[Jackson]

filed his Step 2 grievance . . . on May 3, 2011, and received a decision from the

grievance system on May 26, 2011.” May 26 is the date the step 2 response was

signed by the prison official. The trial court thus apparently inferred the grievance form

was returned to Jackson the same day. Accepting the trial court’s conclusion, his suit

was subject to dismissal unless it was filed by June 27, 2011.4


       At the hearing on the motion to dismiss, counsel for Vaughn and Emsoff argued

dismissal was required because Jackson’s original petition was untimely.           Jackson

countered that his petition was timely filed when he placed it in the prison mail system

or a mailbox on the date his inmate trust account affidavit was notarized, June 23, 2011.




________________________
timely filed pursuant to section 14.005(b) is barred and may be dismissed with
prejudice”).
       4
         June 27, 2011 was a Monday. See TEX. GOV’T CODE ANN. § 311.014(b) (West
2013) (“If the last day of any period is a Saturday, Sunday, or legal holiday, the period is
extended to include the next day that is not a Saturday, Sunday, or legal holiday”).


                                             4
The trial court, examining his petition, confirmed that the trust account affidavit was

notarized on that date.5


       Vaughn and Emsoff acknowledge Jackson’s original petition was received by the

district clerk no later than July 1, 2011. On that date, the clerk sent a letter to Jackson

stating she would not accept his lawsuit for filing.6


       Thereafter, Jackson twice petitioned this court for a writ of mandamus compelling

the district clerk to file his original petition.7 We dismissed both petitions on procedural

grounds, not reaching their merits.       Jackson also sought mandamus relief from a

Lubbock County district court. His appellate brief contains, in the statement of facts for

his first issue, the statement, “Following the writ filed in the 99th District Court Appellant

received a letter from District Clerk Barbara Sucsy informing Appellant to resend his

original complaint for filing.” Appellees do not contradict the statement, and we accept it




       5
        The trust account statement does not appear in the clerk’s record as filed in this
court. The trial court’s statements at the motion hearing make clear, however, that the
court examined it on that occasion.
       6
         Although it is undisputed the district clerk sent such a letter dated July 1, 2011,
the letter does not appear in the record of this case. We take judicial notice, however,
of the contents of this court’s file in In re Jackson, No. 07-11-00439-CV, 2011 Tex. App.
LEXIS 8720 (Tex. App.—Amarillo, Nov. 2, 2011, orig. proceeding) (mem. op.). Jackson
filed the district clerk’s letter as a part of the mandamus record in that original
proceeding. The letter expresses the district clerk’s understanding that she was
precluded by a local rule of the district courts from opening a cause with John Doe or
Jane Doe defendants, and without a first name for Captain Vaughn.
       7
         In re Jackson, No. 07-11-00439-CV, 2011 Tex. App. LEXIS 8720 (Tex. App.—
Amarillo, Nov. 2, 2011, orig. proceeding) (mem. op.); In re Jackson, No. 07-11-00487-
CV, 2011 Tex. App. LEXIS 9939 (Tex. App.—Amarillo Dec. 16, 2011, orig. proceeding)
(per curiam, mem. op.).

                                              5
as true. TEX. R. APP. P. 38.1(g).8 Consistent with the district clerk’s instruction to re-

send his original pleading, on the original petition Jackson filed in January 2012,

Jackson’s signatures on his petition, his declaration of previous filings 9 and his

declaration under section 14.005(a)(1) all are dated June 21, 2011.


      Appellees argue Jackson’s contention is like that presented by the plaintiff in

Doyle v. Lucy, No. 14-03-00039-CV, 2004 Tex. App. LEXIS 2790 (Tex.App.—Houston

[14th Dist.] March 30, 2004, no pet.), who asserted the operation of section 14.005(b)

should be tolled in his case because he was misled by the sheriff’s and district clerk’s

offices about the location of filing. Id. at 11-12. We disagree with appellees’ argument.

Jackson is not contending he should be excused from the thirty-one-day deadline of

section 14.004(b). He contends he complied with it, by timely delivering his pleading

into the prison mail system.


      Despite contrary statements in the findings and conclusions the trial court

signed,10 review of the entire record leaves us with doubts the trial court dismissed

Jackson’s suit because it was untimely filed. See Warner v. Glass, 135 S.W.3d 681,

684 (Tex. 2004) (per curiam) (“Therefore, a pro se inmate’s claim under section 14.004


      8
         Jackson’s statement is confirmed also by the copy of the letter, which appears
in the appendix to his appellant’s brief. The letter is dated December 16, 2011, is
addressed to him from the district clerk, references Jackson’s mandamus proceedings
in the district court and this court, and begins with the instruction, “Please re-send the
original petition for filing.”
      9
          See TEX. CIV. PRAC. & REM. CODE ANN. § 14.004 (West Supp. 2014).
      10
          The findings and conclusions do not address the undisputed fact Jackson’s
original petition was received by the district clerk no later than July 1, 2011. The
findings and conclusions state merely that Jackson received a response to his step 2
grievance on May 26, 2011 and filed his petition on January 6, 2012.

                                            6
of the Inmate Litigation Act is deemed filed at the time the prison authorities duly receive

the document to be mailed”). Appellees argued Jackson failed to meet the deadline, but

pointed to no evidence contradicting his declarations that he delivered his original

petition for mailing on June 23, 2011, the same day the prison official notarized his trust

account statement.     Given that absence of contrary evidence and the persuasive

evidence supporting Jackson’s contention he delivered his pleading on June 23,

coupled with the undisputed presence of the pleading in the district clerk's hands no

later than July 1, to any extent the trial court’s order of dismissal depends on a

determination that Jackson did not timely file his suit, the order is an abuse of discretion.


       We sustain Jackson’s first issue.


Substantive Claims: No Arguable Basis in Law


       Fourth Issue


       By his fourth issue Jackson challenges the trial court’s determination that his suit

had no arguable basis in law. In a conclusion of law, the trial court found Jackson’s

claims were frivolous because they lacked an arguable basis in law. TEX. CIV. PRAC. &

REM. CODE ANN. § 14.003(b)(2) (West 2002). Whether a claim has an arguable basis in

law is a legal question we review de novo. Hamilton v. Pechacek, 319 S.W.3d 801, 809

(Tex. App.—Fort Worth 2010, no pet.). In conducting our review, we take as true the

allegations of the inmate’s petition and review the types of relief and causes of action

set out therein. Id. That is, we review the inmate’s petition to determine whether, as a

matter of law, it states a cause of action authorizing relief.       Id.   A claim lacks an




                                              7
arguable basis in law if it is an “indisputably meritless legal theory.” Id. Bearing in mind

these standards, we turn to Jackson’s relevant allegations of fact.


       Jackson’s pleadings allege that on March 16, 2011, at a guard’s direction

Jackson packed his property and was transported from the Clements Unit, his place of

confinement, to the Montford Unit for a medical evaluation. Among the items Jackson

packed were affidavits he intended to use in seeking post-conviction relief. On arrival at

the Montford Unit, Jackson was separated from his property.


       Jackson later told a guard he wished to refuse medical treatment and return to

his unit. He signed a written refusal of treatment. He complained to a guard that he

had not received his property or a receipt. Later in the day he demanded to speak with

a ranking officer. When this request was denied Jackson refused to surrender the

handcuffs that restrained him.


       According to procedure, the guard notified an officer of Jackson’s refusal.

Vaughn and Emsoff responded. Vaughn assured Jackson his property would be on the

bus for the return trip to his unit.   At that, Jackson relinquished the handcuffs and

remained confined in a cell. He continued to ask about a receipt for his property.


       The following day Jackson refused preparation for the bus trip back to his unit.

Ranking officers were notified and preparations for forcing Jackson’s compliance began.

Vaughn and Emsoff again responded to the call. Jackson accused them of lying to him

the previous day about his property. They answered with “vulgar language.” Emsoff

told Jackson if he did not get on the bus “he would make sure the camera couldn’t see

while the team kicked [Jackson’s] ass.”


                                             8
       When the use-of-force team, a camera operator, and Vaughn and Emsoff arrived

at Jackson’s cell, he was wearing boxer shorts, socks, and Adidas shoes.              He

barricaded the door with a mattress, then moved to the side and placed his hands in the

air in surrender. A team member pushed him to the floor. Jackson obeyed commands

to lie prone with his hands behind his back.


       Jackson’s pleadings further allege that Vaughn and Emsoff watched as team

members placed mechanical restraints on Jackson.            The team member holding

Jackson’s head kneed him in the face and three others punched his ribs and face. One

“sadistically and maliciously began punching [Jackson’s] face and mouth with a closed

fists (sic).”   Another team member “holding [Jackson’s] head or shoulder pushed

extremely hard on his head trying to hold his head in place.” A team member twisted

Jackson’s left leg tearing away his shoe sole. Emsoff “smirked” as Jackson was taken

away. During transit back to his unit, Jackson noticed his dental plate was broken and

his face was swelling. Jackson also complained of chipped or cracked teeth and other

dental problems he attributed to the incident. Since the incident Jackson “has been

having progressively blurred vision.”


                Excessive Use of Force and Bystander Liability


       Section 1983 provides a cause of action against “every person who,” under color

of state law, “subjects, or causes to be subjected,” another person to a deprivation of a

federally protected right. 42 U.S.C. § 1983. Section 1983 does not create a substantive

right but provides a remedy for the rights it designates. Johnston v. Harris County Flood

Control Dist., 869 F.2d 1565, 1573 (5th Cir. 1989). A plaintiff in a 1983 case must first



                                               9
identify a specific constitutionally protected right that was infringed. Kesler v. King, 29

F. Supp. 2d 356, 366 (S.D. Tex. 1998) (citing Graham v. Connor, 490 U.S. 386, 394,

109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)).


       Jackson alleges a violation of his Eighth Amendment right to be free from cruel

and unusual punishments. The Eighth Amendment proscribes “the imposition of pain

totally without penalogical (sic) justification.” Evans v. Dugger, 908 F.2d 801, 803 (11th

Cir. 1990) (citations omitted). Instances of “physical abuse directed at [a] prisoner after

he terminates his resistance to authority would constitute an actionable eighth

amendment violation.” Hope v. Pelzer, 536 U.S. 730, 731, 122 S.Ct. 2508, 153 L.Ed.2d

666 (2002) (quoting Ort v. White, 813 F.2d 318, 324 (11th Cir. 1987)).


       When an inmate brings an excessive force section 1983 claim against a prison

official individually, “the core judicial inquiry is . . . whether force was applied in a good-

faith effort to maintain or restore discipline, or maliciously and sadistically to cause

harm.” Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). An

Eighth Amendment excessive force claim against a prison official requires an inmate to

demonstrate whether subjectively the defendant acted with a sufficiently culpable state

of mind and objectively whether the force applied was harmful enough to amount to a

constitutional violation. Hudson, 503 U.S. at 8.


       Additionally, an officer present at the scene who fails to take reasonable

measures to protect an inmate from another officer’s use of excessive force may incur

section 1983 liability. Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). Establishing

bystander liability requires a showing that an officer knows another officer is committing



                                              10
a constitutional violation, has a reasonable opportunity to prevent the harm, and

chooses not to act. Kitchen v. Dallas County, 759 F.3d 468, 481 (5th Cir. 2014) (citing

Sanchez v. City of Chicago, 700 F.3d 919, 926 (7th Cir. 2012)). See Estate of Davis v.

Delo, 115 F.3d 1388, 1395 (8th Cir. 1997) (explaining “[a] prison official may be liable

for failure to protect an inmate from a use of excessive force if he is deliberately

indifferent to a substantial risk of serious harm to an inmate” and affirming the trial

court’s findings of liability by prison physical restraint team members who observed a

corrections officer apply excessive force to an inmate yet did nothing to protect the

inmate from the substantial risk of serious harm posed by the officer’s blows); Kesler v.

King, 29 F.Supp.2d 356, 369-72 (S.D.Tex. 1998) (citing DeShaney v. Winnebago

County Social Services Dept., 489 U.S. 189, 200, 109 S.Ct. 998, 103 L.Ed.2d 249

(1989)) (explaining “the duty to intercede is heightened in a prison setting, where the

state has restrained an individual’s liberty to such a degree that he can no longer care

for or protect himself”). Bystander liability may attach regardless of whether the directly-

responsible officer can be specifically identified. Kitchen, 759 F.3d at 481.


       Jackson’s pleadings allege he was beaten by team members acting “maliciously

and sadistically” merely to cause him harm. Taking Jackson’s plead facts as true, as

we must, his pleadings sufficiently allege a section 1983 excessive force claim and a

bystander claim.     Accordingly, the trial court abused its discretion by dismissing

Jackson’s suit against the defendants on the ground the suit lacked a basis in law.




                                            11
              Qualified Immunity


       The trial court found Vaughn and Emsoff were “entitled to qualified immunity.” It

stated in a conclusion of law that Jackson had not “alleged facts sufficient to overcome

Defendants’ qualified immunity.”11


       The affirmative defense of qualified immunity is available in a section 1983 claim

to a government official performing discretionary functions. Escobar v. Harris County,

442 S.W.3d 621, 629-30 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Gomez,

446 U.S. at 640). To prevail on the defense, the government official’s conduct must not

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

would be aware. Padilla v. Mason, 169 S.W.3d 493, 502 (Tex. App.—El Paso 2005,

pet. denied); Scott v. Britton, 16 S.W.3d 173, 180 (Tex. App.—Houston [1st Dist.] 2000,

no pet.). A legal right is “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.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97

L.Ed.2d 523 (1987); Hill v. Trinci, No. 14-10-00862-CV, 2012 Tex. App. LEXIS 5934, at

*9 (Tex. App.—Houston [14th Dist.] July 24, 2012, no pet.) (mem. op.).




       11
           In another conclusion of law the trial court stated Jackson was obligated “to
allege facts which show a waiver of qualified immunity.” We do not believe Jackson’s
pleading obligation included anticipating allegations of qualified immunity as an
affirmative defense. See Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64
L.Ed.2d 572 (1980). (explaining that because qualified immunity is a defense “[i]t is for
the official to claim that his conduct was justified by an objectively reasonable belief that
it was lawful. We see no basis for imposing on the plaintiff an obligation to anticipate
such a defense by stating in his complaint that the defendant acted in bad faith”). But
our analysis makes resolution of this question unnecessary.

                                             12
      Our review here concerns merely whether, as alleged, Jackson’s claims lack a

basis in law. The question whether further proceedings will confirm the truth of either

party’s contentions is beyond the scope of our review. This said, on March 17, 2011, it

was settled that the Eighth Amendment prohibited the kind of malicious and sadistic

application of force Jackson has alleged.        To the extent the trial court based its

dismissal decision on the sufficiency of Jackson’s pleadings vis-à-vis the official

immunity claim of Vaughn and Emsoff, it abused its discretion.


                                      Conclusion


      We reverse the order of the trial court and remand the case for further

proceedings. See TEX. R. APP. P. 43.2(d).




                                                 James T. Campbell
                                                     Justice




                                            13
