      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-05-00709-CV



                                    David Mendez, Appellant

                                                  v.

                             David Balagia and T. Riley, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
       NO. GN500810, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                             MEMORANDUM OPINION


               David Mendez appeals from the district court’s grant of summary judgment in favor

of David Balagia and T. Riley. We affirm the judgment.


                                         BACKGROUND

               Mendez is an inmate serving a life sentence in the Institutional Division of the Texas

Department of Criminal Justice (TDCJ) on a capital murder conviction. He was initially booked into

the Travis County Jail in 1997 on capital murder charges and was tried, convicted of capital murder,

and sentenced to confinement for life in TDCJ, as the State did not seek the death penalty. In March

2000, after sentencing but before transfer to TDCJ, corrections officers classified Mendez as a “high-

security risk inmate” based on information that he and another inmate were planning to take a female
hostage and attempt to escape.          This Court later reversed Mendez’s conviction and

remanded for a new trial.1

                Mendez was bench-warranted from TDCJ back to Travis County on July 3, 2002, and

was again held in the Travis County Jail pending retrial. Upon his return to the county jail, Mendez

was again classified as a high-risk prisoner and was placed in administrative segregation, where he

remained for the fifteen months he continued to be held there. Mendez was again convicted of

capital murder, received a life sentence, and was transferred to TDCJ. His second conviction was

affirmed by this Court.2

                Mendez, acting pro se, later filed suit against Balagia and Riley, two corrections

officers with the Travis County Sheriff’s Office. Mendez alleged that Balagia ordered him into

administrative segregation in July 2002 “knowing that the escape allegation was false,” and

complained that Balagia’s conduct constituted intentional infliction of emotional distress. Mendez

further pleaded that Riley, “a recreation officer,” forced him to wear leg irons during his recreation

periods that “would wear away plaintiff’s flesh on his ankles” and that such conduct constituted

intentional infliction of emotional distress. Liberally construing his pleadings, Mendez also alleges

that Riley intentionally inflicted emotional distress on him by failing to provide him a “due process

hearing” when placing him in administrative segregation and that Balagia is vicariously liable for

such conduct.




       1
           Mendez v. State, 56 S.W.3d 880 (Tex. App.—Austin 2001, pet. ref’d).
       2
          Mendez v. State, No. 03-03-00571-CR, 2004 Tex. App. LEXIS 11216, at
*1 (Tex. App.—Austin Dec. 16, 2004, pet. ref’d) (mem. op., not designated for publication).

                                                  2
               Balagia and Riley filed a “no evidence” motion for summary judgment asserting,

among other grounds, (1) sovereign immunity and absence of a waiver under the tort claims act, see

Tex. Civ. Prac. & Rem. Code Ann. § 101.057 (West 2005); (2) Mendez “failed to state a

constitutionally cognizable liberty interest”; (3) no evidence of “extreme and outrageous” conduct;

and (4) no evidence of damages. In response, Mendez filed an amended petition abandoning any

claims against the two corrections officers in their official capacities and purporting to proceed

against them exclusively in their individual capacities. The district court granted their motion

without stating the grounds. This appeal followed.


                                          DISCUSSION

               In six issues on appeal, Mendez challenges the district court’s summary judgment in

favor of Balagia and Riley, attacking each of the grounds raised in their motion. Mendez also argues

that the district court erred in granting summary judgment on his allegation that Balagia is

vicariously liable for Riley’s conduct because that ground was never explicitly raised in the

summary-judgment motion.


Standard of review

               We review the district court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Because the district court’s order does not specify the

grounds for its summary judgment, we must affirm the order if any of the grounds presented to the

district court are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216

(Tex. 2003); Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 692 (Tex. App.—Austin 2005, pet. denied).



                                                 3
We conclude that the motion for summary judgment must be affirmed on no-evidence grounds.

               A no-evidence motion for summary judgment must be granted if, after an adequate

time for discovery, (1) the moving party asserts that there is no evidence of one or more essential

elements of a claim or defense on which an adverse party would have the burden of proof at trial,

and (2) the nonmovant fails to produce more than a scintilla of summary judgment evidence raising

a genuine issue of material fact on those elements. Tex. R. Civ. P. 166a(i). A no-evidence summary

judgment is essentially a directed verdict granted before trial, to which we apply a legal-sufficiency

standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003);

Perdue v. Patten Corp., 142 S.W.3d 596, 603 (Tex. App.—Austin 2004, no pet.). A no-evidence

summary judgment will be sustained when (1) there is a complete absence of evidence of a vital fact,

(2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered

to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or

(4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, 118 S.W.3d at

751. We view the evidence in the light most favorable to the non-movant, disregarding all contrary

evidence and inferences. Id. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711

(Tex. 1997)). More than a scintilla of supporting evidence exists if the evidence would allow

reasonable and fair-minded people to differ in their conclusions. Id. “Less than a scintilla of

evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or

suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).




                                                  4
Summary-judgment grounds

               To recover damages for intentional infliction of emotional distress, a plaintiff must

establish that (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was

extreme and outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and

(4) the emotional distress suffered by the plaintiff was severe.              Hoffmann-La Roche,

Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004). A defendant’s conduct satisfies the second

element only if it is “‘so outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community.’”       Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006)

(quoting Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)). “Meritorious claims for

intentional infliction of emotional distress are relatively rare precisely because most human conduct,

even that which causes injury to others, cannot be fairly characterized as extreme and

outrageous.” Id.

               In his response to the motion for summary judgment, Mendez attached a letter from

Balagia and a document entitled “Unsworn Declaration of David Mendez.” Neither item provides

more than a scintilla of evidence that Balagia’s and Riley’s conduct was “extreme and outrageous.”

               In the letter, dated April 2001, Balagia wrote Mendez the following:


       In regards to the incident you were involved in while incarcerated in the Travis
       County jail in March of 2000, the investigation could not produce any evidence or
       facts to support the allegation of an attempt to escape on your part. The investigation
       also revealed you to be a security risk.




                                                  5
               Mendez claims that this letter is evidence that he should not have been placed in

administrative segregation. We note that, on its face, the letter reflects determinations that while

Mendez had not actually attempted to escape, he was nonetheless a security risk. This letter does

not raise a fact issue as to whether placing Mendez in administrative segregation was “extreme and

outrageous” conduct. Similarly, Mendez’s “Unsworn Declaration” provides no more than a scintilla

of evidence of “extreme and outrageous conduct.” In the declaration, Mendez makes various

allegations, including that his leg cuffs hurt his ankles, that he had difficulty sleeping while in

administrative segregation, and that his many complaints and grievances about being placed in

administrative segregation and leg cuffs were ignored by prison officials. Even accepting all of these

allegations as true, we hold that they do not rise to the level of conduct that is “so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community.” See Suberu, 216 S.W.3d

at 796. We can find no authority holding that placing an inmate who has been determined to be a

security risk in administrative segregation or leg cuffs is “extreme and outrageous conduct,” nor does

Mendez cite any such authority.

               We similarly reject Mendez’s claims that are predicated on a perceived right to a “due

process hearing” regarding his placement in administrative segregation. “[A]bsent extraordinary

circumstances, administrative segregation as such, being an incident to the ordinary life of a prisoner,

will never be a ground for a constitutional claim.” Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998)

(labeling such a claim “frivolous”).




                                                   6
               Further, Mendez adduced no evidence of damages under his intentional-infliction

claim. See Hoffmann-La Roche, 144 S.W.3d at 438, 445. Finally, because the foregoing grounds

are dispositive of Mendez’s claims against Riley, they likewise negate any claim that Balagia is

vicarious liable for Riley’s conduct.

               These grounds are sufficient to support summary judgment in favor of Balagia and

Riley.3 We accordingly overrule Mendez’s issues and affirm the district court’s summary judgment.




                                                    ____________________________________

                                                    Bob Pemberton, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed: July 26, 2007




       3
         Mendez also asserts that the district court erred in granting summary judgment based on
sovereign immunity because he non-suited his official-capacity claims. Because the other summary
judgment grounds are sufficient to support the district court’s judgment, we need not reach this
argument.

                                               7
