[U] Ingram v. Scott, No. 03-00-00768-CV (Tex.App. Dist.3 08/30/2001)

[1] TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


[2] NO. 03-00-00768-CV


[3] 2001.TX


[4] August 30, 2001


[5] CHESTER WILLIAM INGRAM, JR., APPELLANT
v.
WAYNE SCOTT, APPELLEE


[6] FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT NO. 98-02199, HONORABLE MARGARET COOPER, JUDGE PRESIDING


[7] Before Justices Kidd, B. A. Smith and Puryear


[8] The opinion of the court was delivered by: David Puryear, Justice


[9] Appellant Chester William Ingram, Jr., appeals from the district court's order granting appellee Wayne Scott's motion for summary judgment. We will affirm.


[10] Factual Background


[11] Ingram is an inmate in the Texas Department of Criminal Justice-Institutional Division ("the Department"). He filed a mandamus action complaining that Scott, the Department's executive director, had violated section 501.008 of the Government Code, governing the development of an inmate grievance system. Specifically, Ingram alleged that the Department did not have in place procedures for inmates to substantiate their grievances. *fn1 See Tex. Gov't Code Ann. § 501.008(b)(1) (West 1998). Ingram and Scott both filed motions for summary judgment. The district court granted Scott's motion in October 1999, and Ingram appealed to this Court. We reversed the district court's order, holding that Scott had not established his right to summary judgment; we overruled Ingram's contentions that he was entitled to summary judgment and that the trial court should have compelled Scott to answer Ingram's discovery requests. See Ingram v. Scott, No. 03-99-00774-CV (Tex. App.--Austin June 22, 2000, no pet.) (not designated for publication). We noted that Scott's motion for summary judgment argued that inmate grievance procedures need not be in writing and stated that the Department is required by statute and departmental directives to establish procedures but failed to attach as an exhibit any affidavit or other evidence explaining those procedures. See id., slip op. at 14-16.


[12] On remand, Ingram filed a new motion for summary judgment and Scott filed a supplemental motion for summary judgment. The district court granted Scott's supplemental motion, and Ingram appeals from that order, complaining that the district court erred in granting Scott's motion for summary judgment and in denying Ingram's. He contends that Scott did not establish the existence of the procedures required by section 501.008 for inmates to substantiate their grievances and that, to the contrary, he established as a matter of law that those procedures do not exist. We disagree.


[13] Standard of Review


[14] A mandamus action initiated in a trial court is subject to appeal as any other civil suit. See Anderson v. City of Seven Points, 806 S.W.2d 791, 792 n.1 (Tex. 1991); University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.). Therefore, we do not review a trial court's granting or denial of summary judgment under the abuse of discretion standard applicable to mandamus actions initiated in appellate courts; instead we review such decisions under standards generally applicable to motions for summary judgment in other civil suits. See University of Tex. Law Sch., 958 S.W.2d at 481.


[15] Summary judgment is properly granted only when the movant establishes that there are no genuine issues of material fact to be decided and that he is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Memorial Med. Ctr. v. Howard, 975 S.W.2d 691, 692 (Tex. App.--Austin 1998, pet. denied). A defendant seeking summary judgment must negate as a matter of law at least one element of each of the plaintiff's theories of recovery or plead and prove as a matter of law each element of an affirmative defense. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). If the defendant produces evidence establishing his right to summary judgment, the burden shifts to the plaintiff to present evidence raising a fact issue. See id.


[16] In reviewing the grant of summary judgment, we view the evidence in the light most favorable to the non-movant and make every reasonable inference and resolve all doubts in favor of the non-movant. See id.; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Howard, 975 S.W.2d at 693. When the trial court's order granting summary judgment does not specify the grounds relied upon, we will affirm the judgment if it is supported by any of the grounds put forth by the movant. See Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999); Howard, 957 S.W.2d at 693.


[17] Discussion


[18] In his supplemental motion for summary judgment, Scott stated that the Department distributes "Instructions on How to Write and Submit Grievances" to inmates. Those instructions are as follows:


[19] Use dark ink or type only, submit the original form . . ., and write legibly so that your grievance may be addressed. State the issue grieved in as few words as possible. Avoid the use of legal terms. State the facts of the incident, because facts can be investigated. Be brief, but clear in stating the problem. . . . If official documents . . . are necessary to support the issue, they may be attached.


[20] The instructions tell an inmate to contact a unit grievance investigator ("UGI") if he needs help completing a grievance form or understanding a grievance decision. Scott explained that the Department interprets section 501.008 to mean that an inmate substantiates his or her grievance by "filing a formal written grievance in accordance with the instructions on the face of the grievance form itself" and the above described instructions.


[21] Attached as an exhibit to Scott's motion was an affidavit by Keith Clendennen, Administrator of Offender Grievances for the Department. As exhibits, Clendennen produced a Department board policy and an administrative directive, both governing how the Department processes grievances, and the most recent Offender Grievance Operations Manual. The manual informs inmates that their grievances are confidential and that investigative notes, reports, or testimony will not be provided to the grievant. The manual explains that such investigative materials may contain sensitive security information and could lead to retaliation. The manual also lists what are grievable and non-grievable issues. The manual explains,


[22] Offenders must state the nature of the grievance on a single grievance form in the space provided. Only official documents (i.e. I-60, sick call requests, property papers, etc.) necessary to substantiate the claim may be attached to the grievance. Insects, food particles, or similar items that are not necessary to support and/or process the grievance will not be accepted as attachments. Grievances submitted with excessive or inappropriate attachments may be returned to the offender unprocessed.


[23] The manual goes on to explain that the inmate must document an attempt to resolve the issue informally and must document a request for a specific action to resolve the complaint. The manual explains the steps taken in processing grievances, the role of a UGI, and includes the grievance form instructions and numerous examples of forms that may be used in grievance processing.


[24] Scott also attached as an exhibit the affidavit of Carl Reynolds, the Department's general counsel, who stated that the statutes related to inmate grievances were not intended to give inmates a right to conduct discovery as part of the grievance procedure, but were intended to have inmates "identify evidence, within their personal knowledge, supporting their grievance complaint by writing a formal grievance" for investigation. He states that the Department has written and distributed instructions on how inmates should write their grievances and what information should be included.


[25] Ingram argues that "[n]o single source and location of words in the submitted documents [attached to Scott's supplemental motion]" sets out procedures satisfying section 501.008 and that "since no labeled 'procedure' exist [sic], Scott is not in compliance" with the law. Ingram further contends that instructions on completing a grievance form are not the same as "procedures for an inmate to identify evidence to substantiate" a grievance and that any procedure alleged by Scott is "elective" because UGIs have discretion in conducting investigations and interviewing alleged witnesses. We do not believe that the investigative methods used by UGIs has any bearing on whether Scott has complied with section 501.008. Further, we disagree with Ingram's claim that Scott has failed to identify satisfactory procedures.


[26] Section 501.008 states that the Department must develop and maintain a certified grievance system that includes procedures for an inmate to identify substantiating evidence and to receive all formal written responses to his grievance. Tex. Gov't Code Ann. § 501.008. Section 501.008 does not address how grievances are to be investigated and does not require a particular form, location, or manner in which the procedures are to be developed or distributed. Nor is the Department required to provide evidence to an inmate who believes that the evidence would substantiate his grievance.


[27] Scott's exhibits show that an inmate must first pursue informal resolution of his complaint and request specific relief. Then an inmate must, using Department forms and following the distributed instructions, describe the complaint, set out the facts to be investigated, and attach any applicable official documents. In other words, the Department informs inmates that they should explain all relevant facts and attach any relevant documentary evidence; this is the method by which the Department has decided inmates should identify substantiating evidence. In his supplemental motion, Scott demonstrated as a matter of law that the Department has satisfied section 501.008 and has developed a procedure for inmates to identify evidence. Having held Scott was entitled to summary judgment, we overrule Ingram's argument that the district court should have granted Ingram's motion for summary judgment. We overrule Ingram's issues on appeal and affirm the district court's judgment.


[28] Affirmed


[29] Do Not Publish



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Opinion Footnotes

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[30] *fn1 In relevant part, section 501.008 reads as follows: (a) The department shall develop and maintain a system for the resolution of grievances by inmates housed in facilities operated by the department or under contract with the department that qualifies for certification under 42 U.S.C. Section 1997e and the department shall obtain and maintain certification under that section. . . . (b) The grievance system must provide procedures: (1) for an inmate to identify evidence to substantiate the inmate's claim; and (2) for an inmate to receive all formal written responses to the inmate's grievance. Tex. Gov't Code Ann. § 501.008 (West 1998).

Ingram v. Scott, No. 03-99-00774-CV (Tex.App. Dist.3 05/11/2000)

[1] TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


[2] NO. 03-99-00774-CV


[3] 2000.TX


[4] May 11, 2000


[5] CHESTER WILLIAM INGRAM, JR., M.D., APPELLANT
V.
WAYNE SCOTT, APPELLEE


[6] FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT NO. 98-02199, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING


[7] Before Justices Jones, Yeakel and Patterson.


[8] The opinion of the court was delivered by: Jan P. Patterson, Justice


[9] Appellant Chester William Ingram, Jr. appeals the district court's granting of summary judgment in favor of appellee Wayne Scott, executive director of the Texas Department of Criminal Justice (the Department). We will reverse the district court's judgment and remand the cause for further proceedings.


[10] Ingram is an inmate in the custody of the Department. He sued Scott in Scott's personal and official capacities, alleging Scott was violating section 501.008 of the Texas Government Code,*fn1 which governs the Department's development of a system to handle inmate grievances. See Tex. Gov't Code Ann. § 501.008 (Tex. 1998). Ingram filed a brief in support of his petition for writ of mandamus and attached to his brief twenty-six exhibits, mainly consisting of denied inmate grievances.


[11] Scott and Ingram both moved for summary judgment. The trial court granted Scott's motion and denied Ingram's. Ingram appeals, arguing the court erred (1) in granting Scott's motion because a material issue of fact existed, (2) in not granting Ingram's motion for summary judgment, and (3) in not compelling Scott to comply with Ingram's discovery requests.


[12] Standard of Review


[13] A mandamus action initiated in a trial court is subject to appeal as any other civil suit. See Anderson v. City of Seven Points, 806 S.W.2d 791, 792 n.1 (Tex. 1991); University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.-Austin 1997, no writ). Therefore, we do not review a trial court's granting or denial of summary judgment under the abuse of discretion standard applicable to mandamus actions initiated in appellate courts; instead we review such decisions under standards generally applicable to motions for summary judgment in other civil suits. See University of Tex. Law Sch., 958 S.W.2d at 481.


[14] Summary judgment is properly granted only when the movant establishes that there are no genuine issues of material fact to be decided and that he is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Memorial Med. Ctr. v. Howard, 975 S.W.2d 691, 692 (Tex. App.-Austin 1998, pet. denied). A defendant seeking summary judgment must negate as a matter of law at least one element of each of the plaintiff's theories of recovery or plead and prove as a matter of law each element of an affirmative defense. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). If the defendant produces evidence establishing his right to summary judgment, the burden shifts to the plaintiff to present evidence raising a fact issue. See id.


[15] In reviewing the grant of summary judgment, we view the evidence in the light most favorable to the non-movant and make every reasonable inference and resolve all doubts in favor of the non-movant. See id.; Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Howard, 975 S.W.2d at 693. When the trial court's order granting summary judgment does not specify the grounds relied upon, we will affirm the judgment if it is supported by any of the grounds put forth by the movant. See Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999); Howard, 957 S.W.2d at 693.


[16] Did the trial court err in granting Scott's motion for summary judgment?


[17] Scott moved for summary judgment on the grounds that (1) Ingram's claims had no basis in law, (2) the complained-of procedures were not required to be in writing, (3) Ingram raised no constitutional claims and therefore could not complain that prison regulations were being violated, (4) Scott was protected by official immunity, and (5) Scott was protected by sovereign immunity as far as he was sued in his official capacity.*fn2


[18] Ingram complains in two points of error that the trial court erred in granting summary judgment for Scott because Ingram at a minimum established the existence of a genuine issue of material fact. Further, Ingram argues the defenses of official and sovereign immunity are not appropriate defenses in this case. We will first examine whether Scott established the affirmative defenses of official and sovereign immunity. Is Scott shielded by official and sovereign immunity?


[19] Official immunity is an affirmative defense, and the defendant has the burden to establish all the elements of the defense. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). A government employee is entitled to official immunity from suit arising from the performance of (1) his discretionary duties, as opposed to ministerial acts, (2) in good faith as long as (3) he is acting within the scope of his authority. See id. A ministerial act is one prescribed and defined by the law with such precision and certainty as to leave nothing to the exercise of discretion or judgment. See id. at 654. In other words, an action involving personal deliberation, decision, and judgment is discretionary; an action requiring obedience to orders or the performance of a mandatory duty is ministerial. See id.


[20] In his motion for summary judgment, Scott asserted his entitlement to the defense of official immunity and set out the elements of the defense. Scott then stated, "Because [Ingram] cannot prove that any statutes, rules, or procedures are being violated, Defendant Scott is entitled to official immunity."


[21] It was Scott's burden to establish his entitlement to official immunity. See id. at 653. Scott presented no evidence or argument to establish the elements of the defense. His conclusory statement that he is entitled to the defense because Ingram could not prove a statutory violation does not address the elements of official immunity and does not meet his burden.


[22] Further, the defense of official immunity is inapplicable here, where Ingram is seeking to compel Scott to perform a non-discretionary act. Section 501.008(b) requires that the Department's grievance system "must provide procedures . . . for an inmate to identify evidence to substantiate the inmate's claim." Tex. Gov't Code Ann. § 501.008(b) (emphasis added). While Scott has discretion to decide the structure of those procedures, it is mandatory that such procedures be in place. Official immunity is not a defense to a suit arising out of the non-performance of a ministerial act. See Chambers, 883 S.W.2d at 653. Scott has not demonstrated that summary judgment is proper based on the affirmative defense of official immunity.


[23] In asserting sovereign immunity as a defense, Scott again set out the basic rules of law governing the doctrine and asserted his entitlement to the defense to the extent he was sued in his official capacity. Ingram argued that, because he was not seeking monetary damages, sovereign immunity should not apply.


[24] Initially, we note Scott did not establish his entitlement to the defense of sovereign immunity. Furthermore, we do not believe Scott established that sovereign immunity could apply to this case. Under the doctrine of sovereign immunity, the State is not subject to suit or liable for damages caused by torts committed by its officers or agents in the absence of a constitutional or statutory provision creating such liability. See State v. Terrell, 588 S.W.2d 784, 785 (Tex. 1979). State employees acting in their official capacities are also shielded. See Bagg v. University of Tex. Med. Branch, 726 S.W.2d 582, 586 (Tex. App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.).


[25] Ingram did not seek damages from Scott or allege Scott had committed a tort. Ingram's claims are not the sort against which sovereign immunity should shield Scott. Scott cannot, as a public official, refuse to comply with a mandatory statutory obligation and then claim he is protected from a suit seeking to compel his compliance. Scott did not demonstrate his entitlement to sovereign immunity and the trial court's granting of summary judgment could not properly have rested upon that affirmative defense.


[26] Did Scott establish he was entitled to summary judgment on the merits of Ingram's claims?


[27] Ingram sought to compel Scott to comply with section 501.008(b)(1) of the Texas Government Code, which requires the Department to provide procedures for inmates to identify evidence to substantiate their claims.*fn3 See Tex. Gov't Code Ann. § 501.008(b)(1). Ingram complained that no such procedures were in place.


[28] Attached to Ingram's petition were the following exhibits: a letter from Ingram to Scott asking him to direct the warden of the Coffield Unit to comply with section 501.008; letters from Ingram and Ingram's sister to Scott asking Scott to furnish them with copies of the procedures under which inmates could identify substantiating evidence; and twenty-two exhibits consisting of denied inmate grievances. The reasons given for denying the grievances are short and without significant explanation, generally stating a Department officer had explained or denied the alleged incidents. In denying appeals of the grievances, the decision maker usually stated, "You have provided nothing at this level to justify further inquiry of the matter." On at least two forms, Ingram asked for the procedures mandated by section 501.008; neither form's response indicates Ingram was provided with the procedures. One form contains the reply, "THIS IS NOT A GRIEVANCE BUT A REQUEST FOR A GRIEVANCE PROCEDURE. IN THE FUTURE SEND YOUR REQUEST IN THE FORM OF AN I 60 YOU'LL RECEIVE [sic] YOUR REQUEST IN A MORE TIMELY MANNER."


[29] Scott moved for summary judgment on the grounds that Ingram's "allegations that [the Department] is not complying with section 501.008 of the Texas Government Code are insufficient to carry [Ingram's] evidentiary burden." Scott's motion for summary judgment argued as follows:


[30] [Ingram] further alleges that Defendant Scott is not in compliance with § 501.008(b)(1) because there are no written procedures implementing § 501.008(b)(1). However, the statute does not require the procedures to be written. It only requires that the grievance system must provide procedures for an inmate to identify evidence to substantiate the inmate's claim. Inmates are advised of the grievance process and procedure in their offender handbook which they receive upon their first commitment to a [Department] unit.


[31] The current grievance procedure allows all grievance allegations to be thoroughly investigated and substantiated if there is evidence. . . . The grievance officer thoroughly investigates the inmate's allegations and substantiates them if evidence is found. Therefore, the current inmate grievance procedures fully and completely comply with § 501.008 of the Texas Government Code.


[32] [Ingram] alleges violations of [Department] policy. Specifically, [Ingram] claims that [Scott] violated a [Department] directive by not investigating grievances. [Ingram] characterizes the failure to follow policy as an abuse of authority. Violations of prison regulations, without more, does [sic] not state a constitutional violation. An assertion that prison officials failed to follow departmental regulation must, on its own merit, state a constitutional claim. [Ingram] has not shown a corresponding violation of his constitutional rights with respect to his claims that prison regulations were not followed. (Internal citations omitted.)


[33] As supporting evidence, Scott attached (1) a May 21, 1989 order of the courts of the Eastern and Southern District of Texas stating the courts had certified the Department's grievance procedure,*fn4 and (2) an affidavit by Jane Cockerman, assistant administrator of the Department's inmate grievance procedure, in which she set out the framework of the procedure and stated, "The procedure which exists for an offender to identify evidence to substantiate his claim is through written formal grievance with attachments."


[34] Ingram responded to Scott's motion, arguing that procedures for identifying substantiating evidence must be in writing. Ingram took issue with Scott's explanation of the grievance procedure, specifically criticizing Scott's statement that grievance investigators may, acting under their discretion, interview witnesses, obtain documents, or view other information. Ingram argued that if the unwritten procedures leave the examination of substantiating evidence to an investigating officer's discretion, they run afoul of section 501.008(b)'s mandatory language that the Department must provide such procedures. Ingram alleged that a grievance investigator told Ingram that he did not personally investigate all the inmate grievances he received. Instead, the investigator sent forms to supervisors, who chose whether to review statements, records, or other evidence. The investigator looked through his procedures manual and was unable to find procedures governing substantiating evidence. Ingram stated, "Assuming, arguendo, that the requisite policy does exist, it is not in writing and not known to inmates or [Department] Grievance Investigators, or if in writing, it is so badly written that a reasonable person can not discern its meaning or mechanism. Therefore it does not comply with [section] 501.008."


[35] Ingram objected to Cockerman's affidavit on the grounds it was not written from personal knowledge and contained conclusory statements, and argued her affidavit admitted that no procedure for identifying evidence existed. Ingram further alleged that he never received the offender orientation handbook to which Scott referred in his motion for summary judgment. Finally, Ingram stated he made no constitutional claims.


[36] Ingram attached as evidence to his response to Scott's motion an executive directive written by Scott that describes the development and annual review of procedures and policies (ED-01.21). ED-01.21 defines various rules, policies, directives, and procedures governing operations of the Department and its facilities. ED-01.21 states that Board Rules shall be "published in the Texas Administrative Code," Board Policies are signed by the Department chairman and "distributed by Executive Services," Executive Directives are signed by the executive director and distributed by Executive Services or the Human Resources department, and Administrative Directives are "distributed by Executive Services." Further, ED-01.21 defines Division Directives and Operational Procedures, referring as examples to specific directives and procedures and their location in manuals. ED-01.21 explains that new or changed policies shall be proposed by "sending the proposal in writing." If policies are revised or added, a draft is distributed for review and notice of the final policy is sent out via electronic mail. Finally, ED-01.21 provides as follows: each policy is reviewed annually; the Departmental Policy and Operations Manual "includes selected board rules and all board policies, executive directives, and administrative directives"; the Personnel Manual "includes selected board rules and board policies that relate to human resources and all executive directives that are also known as personnel directives"; and each division or department reviews, maintains, and distributes its own policies and procedures and keeps its Division and Operational Manual current with Executive Services.


[37] Ingram attached as evidence his affidavit in which he recites the subject of his alleged conversation with the grievance investigator and their search for procedures in the manual. Ingram states that he and the investigator "both looked at [the investigator's] policy and procedure manual but neither could identify any such procedure. [The investigator] admitted that no such procedure exists as far as he could tell. He did not know of any procedure for an inmate to identify evidence to substantiate the inmate's claim."


[38] Finally, Ingram attached as evidence a grievance form that Ingram claimed showed a key witness was never interviewed. The grievance form allows an inmate to set out (1) how and when informal resolution was attempted, (2) details of the grievance, including "documentation, name of any witnesses supporting [the] claim and date of incident," and (3) action requested. The inmate named several witnesses, including Department personnel. The Department denied the grievance and the inmate appealed, stating the main witness was never contacted about the incident. The inmate alleged no investigation was done and he continued to have the same problem. The appeal was denied based on Department records and statements by two Department employees.


[39] In reviewing the granting of summary judgment for Scott, we view the evidence and arguments in the light most favorable to Ingram. See Centeq Realty, 899 S.W.2d at 197; Nixon, 690 S.W.2d at 548-49; Howard, 975 S.W.2d at 693. Viewed in this light, Scott's motion and evidence do not establish his entitlement to judgment as a matter of law.


[40] Scott's grounds for seeking summary judgment boil down to the argument that the procedures need not be in writing under the statute. However, Scott produced no evidence that the Department has any unwritten procedures, such as Scott's affidavit or the affidavit of any other Department employee with knowledge of such unwritten procedures. Moreover, Scott did not produce any evidence that these specific unwritten procedures exist. In fact, his motion for summary judgment does not even go so far as to actually allege that the procedures exist in an unwritten form. Cockerman's explanation of the grievance process does not establish as a matter of law that any procedures for identifying evidence are in place. Simply asserting that the statute does not explicitly require the procedures to be in writing does not entitle him to summary judgment on the merits of Ingram's claims.


[41] Furthermore, we believe Scott's contention that the procedures do not have to be in writing flies in the face of common sense. The Department employs people across Texas. It has personnel manuals, policy and operations manuals, and division and operational manuals containing a myriad of regulations and procedures governing an inmate's life. Proposed changes or additions to Department policies must be submitted in writing and go through a substantial review and editing process. Section 2001.004 of the Administrative Procedure Act (the APA) requires agencies to adopt "rules of practice stating the nature and requirements of all available formal and informal procedures," and to make available to the public "all rules and other written statements of policy or interpretations that are prepared, adopted, or used by the agency in discharging its functions." Tex. Gov't Code Ann. § 2001.004(1), (2) (West Supp. 2000). The Texas Administrative Code provides that "[state jail facility] administrators shall ensure that there is a written offender grievance procedure that is made available to all offenders which includes at least one level of appeal." 37 Tex. Admin. Code § 157.39(11) (West 1999). While we recognize that neither the APA nor section 157.39(11) applies to this division of the Department, see Tex. Gov't Code Ann. § 2001.226, we believe they support our view that Department procedures must be in writing. To argue that a statutorily-mandated procedure need not be written but instead could be passed along by word of mouth or in some other manner is nonsensical.


[42] We hold that Scott's motion for summary judgment was insufficient to entitle him to judgment on Ingram's claims. We sustain Ingram's second and third points of error.


[43] Did the trial court err in denying Ingram's motion for summary judgment?


[44] Ingram filed his own motion for summary judgment, in which he alleged that Scott had not answered Ingram's requests for admissions, resulting in the requests being deemed admitted. Ingram attached as evidence the unanswered requests for admissions and the certified mail receipt showing the discovery requests were received by Scott's attorney, Scott's answers to Ingram's first set of interrogatories, and Scott's response to Ingram's request for production. Ingram contends the trial court should have granted summary judgment in his favor because Scott's deemed admissions proved Ingram's claims. Claims based on section 501.008(a)


[45] Ingram requested in his motion that he be granted summary judgment on his claim that "Scott is not in compliance with applicable portions of 42 USC § 1997e which is referenced in [section] 501.008." However, section 1997e no longer requires states to meet minimum standards for grievance procedures. See 42 U.S.C.A. § 1997e. Thus, section 501.008(a) of the Government Code is of no effect as far as it requires a grievance procedure to be certified under section 1997e. Ingram abandoned his claims based on section 501.008(a) and was not entitled to judgment as a matter of law on his assertion that the grievance procedures are not in compliance with sections 1997e and 501.008(a). Claims based on section 501.008(b)


[46] Ingram alleged he was entitled to judgment as a matter of law under section 501.008(b) and asked the district court to issue a writ of mandamus ordering Scott to comply with that section.


[47] When a party does not timely answer requests for admissions, those admissions are deemed admitted and the party is precluded from offering summary judgment proof contrary to those admissions. See Tex. R. Civ. P. 198.2(c); Crowley v. Coles, 760 S.W.2d 347, 349 (Tex. App.-Houston [1st Dist.] 1988, no writ). No court order is necessary for the requests to be considered admitted. See Tex. R. Civ. P. 198.2(c). The trial court may allow the party to withdraw the admission if the party so moves, showing good cause for the withdrawal and that the opposing party will not be unduly prejudiced by the withdrawal. See Tex. R. Civ. P. 198.3. Scott failed to answer Ingram's requests, made no motion to withdraw the deemed admissions, and did not respond to Ingram's motion for summary judgment, which is based in large part on Scott's deemed admissions.*fn5 We conclude Ingram's requests should be deemed admitted.


[48] The admissions Scott is deemed to have admitted include the following statements: "[t]here is no written procedure for an inmate to identify evidence to substantiate the inmate's claim in the prison grievance procedure in Texas as required by § 501.008(b)(1) of the Texas Government Code"; "Board Policy 3.77 contains no rule or procedure for an inmate to identify evidence with which to substantiate the inmate's claim"; "Administrative Directive 03.82 contains no rule or procedure for an inmate to identify evidence with which to substantiate the inmate's claim"; and "[a] procedure for an inmate to identify evidence to substantiate the inmate's claim is not clearly explained in writing such that it is clear to a reasonable person exactly what that procedure is."


[49] A writ of mandamus is an extraordinary remedy and will issue to compel a public official to perform a non-discretionary act. See City Council of Austin v. Save Our Springs Coalition, 828 S.W.2d 340, 342 (Tex. App.-Austin 1992, no writ). A relator seeking mandamus under the common law must establish (1) the respondent has a legal duty to perform the non-discretionary act, (2) a demand was made for performance of the act, and (3) the respondent refused to perform the act. See Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979); City Council of Austin, 828 S.W.2d at 342-43.


[50] The deemed admissions clearly establish as a matter of law that Ingram's contention that section 501.008(b)(1), a non-discretionary act, is being violated. Ingram was entitled to judgment as a matter of law on his section 501.008(b) claims. We sustain Ingram's first point of error on his section 501.008(b) claims.


[51] Conclusion


[52] We sustain Ingram's first, second, and third points of error. Based on our disposition of those points of error, it is not necessary for us to address his fourth point of error. We reverse the district court's judgment granting summary judgment for Scott. We remand the cause to the district court with instructions to grant summary judgment in Ingram's favor and to issue a writ of mandamus requiring Scott to comply with section 501.008(b) of the Texas Government Code.


[53] Reversed and Remanded


[54] Publish



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Opinion Footnotes

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[55] *fn1 In July 1997, Ingram filed a petition for writ of mandamus with the supreme court, which denied his petition for lack of jurisdiction. Ingram then filed a petition for writ of mandamus in the district court of Walker County, which transferred the cause to Travis County.


[56] *fn2 Before filing his motion for summary judgment, Scott sought to have Ingram's suit dismissed as frivolous under section 14.003 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (West Supp. 2000). Ingram pointed out that his suit, while brought pro se, was not brought in forma pauperis and therefore was not subject to dismissal under section 14.003. See id. § 14.002(a).


[57] *fn3 In relevant part, section 501.008 reads as follows: (a) The department shall develop and maintain a system for the resolution of grievances by inmates housed in facilities operated by the department or under contract with the department that qualifies for certification under 42 U.S.C. Section 1997e and the department shall obtain and maintain certification under that section. . . . (b) The grievance system must provide procedures: (1) for an inmate to identify evidence to substantiate the inmate's claim; and (2) for an inmate to receive all formal written responses to the inmate's grievance. Tex. Gov't Code Ann. § 501.008. Initially, Ingram also complained Scott was violating section 501.008(a). When Scott pointed out that section 1997e had been amended so as to render Ingram's section 501.008(a) complaints moot, Ingram abandoned those claims. See 42 U.S.C.A. § 1997e (West Supp. 1999). In Scott's motion for summary judgment, he again attacked Ingram's section 501.008(a) complaints; Ingram reiterated that those claims had been abandoned.


[58] *fn4 The inclusion of the certification order only answered Ingram's abandoned claims that the grievance system was not certified, thus violating section 501.008(a) of the Government Code.


[59] *fn5 Ingram filed his appellant's brief on January 24, 2000, and on April 10, 2000, filed a motion to strike any brief filed by Scott as untimely filed. The case came under submission on April 24, 2000, and no appellee's brief has yet been filed. We dismiss Ingram's motion to strike as moot.