Russell Ham v. William Stephens, Oliver J. Bell, and Robin Sullivan
01-15-00036-CV
| Tex. App. | Aug 6, 2015Background
- Appellant Russell Ham (pro se, inmate) alleges Officer Robin Sullivan at Polunsky Unit confiscated and destroyed personal property during a unit shakedown, including a photo album containing his grandmother’s will and legal papers, and multiple books.
- Ham contends Sullivan failed to issue confiscation papers for items taken and threw certain items in a trash can instead of turning them into the unit property room.
- Ham filed prison grievances (Step 1 and Step 2); both were denied as unsubstantiated. He appealed to the court, and this is his appellate reply brief seeking reversal and remand.
- Procedurally, the trial court dismissed Ham’s claims against Sullivan (an individual employee). Ham argues the dismissal was improper because he was not given the 30-day opportunity to amend under Tex. Civ. Prac. & Rem. Code §101.106(f).
- Central legal question: whether Sullivan’s alleged conduct was within the scope of employment (which would treat the suit as official-capacity and require naming the governmental unit) or was an independent tortious act exposing her to individual liability under the Texas Theft Liability Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sullivan acted within the scope of employment when she confiscated and/or destroyed Ham’s property | Ham: Sullivan exceeded scope by destroying (not property-rooming) the photo album, will, and legal papers; those acts were an independent, wrongful course of conduct and support individual liability under the Texas Theft Liability Act | Sullivan/State: search and confiscation were part of duties during shakedown and thus within scope of employment, so suit is effectively against the government | Trial court dismissed claims against Sullivan as being in official capacity; Ham appeals and asks for reversal and remand (appeal pending) |
| Whether the trial court erred by dismissing without giving Ham 30 days to amend under Tex. Civ. Prac. & Rem. Code §101.106(f) | Ham: the statute requires the plaintiff be allowed to file amended pleadings dismissing the employee and naming the governmental unit within 30 days; denial violated due process | State: (implicit) dismissal appropriate because suit is effectively against the state under the statute | Ham argues dismissal without the §101.106(f) cure period was error; he seeks reversal (appeal pending) |
Key Cases Cited
- Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011) (three-prong test for whether suit against government employee is effectively against the official capacity: employee status, scope of employment, and whether suit could be brought under the Tort Claims Act)
- City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex. 1994) (definition of acting within scope: discharging duties generally assigned to the official)
- Presiado v. Sheffield, 230 S.W.3d 272 (Tex. App.—Beaumont 2007) (prisoner’s Texas Theft Liability Act claim against prison employees for destroying personal property had an arguable basis in law)