Prison neck-breaking case processed at less than breakneck speed

Texas Supreme Court grants another extension in appeal from lawsuit stemming from killing of mentally disturbed inmate by prison guards while a prison nurse stood by and did nothing. Justice Sam Nuchia, a former police chief, who wrote the majority opinion dismissing the suit against the governmental defendants, has since been denied the chance for reelection in the Republican primary and will step down at the end of the year. Justice Keyes wrote a vigorous dissent. The controversial case remains on hold in the Supreme Court, to wit:

Orders Pronounced June 11, 2008

ORDERS ON PETITIONS FOR REVIEW
THE ABATEMENT ORDER IS EXTENDED IN THE FOLLOWING PETITION FOR REVIEW:
07‑0457 LINDA THOMAS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DAMON HOLLIMON, DECEASED AND ASHLEY DOMINQUE HOLLIMON, INDIVIDUALLY v. INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE AND GLENDA PIERSON; from Walker County; 1st district (01‑04‑01084‑CV, ___ SW3d ___, 04‑19‑07)
[Note: The abatement order issued March 5, 2008 is extended to June 16, 2008, by which time the parties must file either a status report or a motion to dismiss.]

Link to Case in the Houston Court of Appeals below:

TDCJ v. Thomas No. 01-04-01084 (Tex.App.- Houston [1st Dist.] Apr. 19, 2007, pet. filed, briefing requested)(Nuchia) (Tort Claims Act, plea to the jurisdiction, suit against government entity, public officials/employees)
REVERSE TC JUDGMENT AND RENDER JUDGMENT:
Opinion by Justice Sam Nuchia
Before Justices Nuchia, Keyes and Hanks
Texas Department of Criminal Justice and Glenda Pierson v. Linda Thomas as Personal Representative for the Estate of Damon Hollimon, Deceased, and Ashley Dominique HollimonAppeal from 278th District Court of Walker County

Justice Evelyn Keyes dissented in TDCJ v. Thomas

DISSENTING OPINION

This is a case brought by the estate and survivors of a young, strong, healthy, but mentally disturbed prison inmate, Damon Hollimon. When Hollimon, a paranoid schizophrenic, became agitated and violent, a five-man team of correctional officers of the Texas Department of Criminal Justice (TDCJ) assigned to transfer him to a psychiatric unit subdued him in his cell by repeatedly spraying him with O.C. pepper spray and, when that proved insufficient, throwing him face down on the floor, where four security personnel suited in protective gear secured his hands and feet, while another member of the team knelt on his neck until it broke. Hollimon's heart stopped, he quit breathing, and his eyes dilated and fixed.

The nurse assigned to approve the use of chemical restraint and to be on hand to provide medical assistance during the forced move, Glenda Pierson (Pierson), did nothing other than approve the use of the O.C. pepper spray, don a gas mask, record the events, and, after Hollimon was removed from his cell, take Hollimon's vital signs and discover that there were none. Pierson then continued to stand by and do nothing, other than to order that Hollimon be taken to the infirmary, for seven minutes while prison employees transported Hollimon, including a five minute delay to fetch a key to unlock an unattended locked wing picket gate between the cell block and the prison medical department. Pierson testified that she knew Hollimon needed cardiopulmonary resuscitation (CPR) as soon as he was taken out of his cell, but she did not give him mouth-to-mouth resuscitation because she would have had to remove her gas mask and the pepper spray would have disabled her. She subsequently did remove her mask, but she still did not attempt to give Hollimon CPR. CPR was attempted by medical personnel when Hollimon was taken into the infirmary, but Hollimon did not respond and was pronounced dead.

The majority holds that Appellee's suit against Appellants, TDCJ and Pierson, must be dismissed because TDCJ had no notice of Linda Thomas's claim and Pierson proved as a matter of law that she was not "deliberately indifferent" to the risk to Hollimon from failure to receive CPR and is thus entitled to official immunity from liability for the harm he sustained from not receiving CPR in time to save his life.

In my view, the majority makes serious mistakes of law in deciding both issues. If its opinion is correct, the burden of proof of notice is so high and the standard of proof of official immunity so low that it would be surprising if a suit could be maintained against any Texas state agency or Texas state employee under the Texas Tort Claims Act, the Texas Wrongful Death and Survival statutes, or section 1983 of the United States Code ever again, making the applicable statutes otiose.

Therefore, I dissent.

I would affirm the trial court's denial of TDCJ's plea to the jurisdiction and Pierson's motion for summary judgment on her qualified immunity affirmative defense. [Read Entire Dissenting Opinion by Justice Keyes]