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Enriquez v. Eduardo Orihuela, M.D.

Court of Appeals of Texas, Fourteenth District

December 17, 2019

JUAN ENRIQUEZ, Appellant
v.
EDUARDO ORIHUELA, M.D., Appellee

          On Appeal from the 122nd District Court Galveston County, Texas Trial Court Cause No. 17-CV-1173

          Panel consists of Justices Wise, Zimmerer, and Spain.

          MEMORANDUM OPINION

          Charles A. Spain Justice

         Inmate Juan Enriquez appeals the Travis County district court's granting of appellee Eduardo Orihuela, M.D.'s motion to transfer venue and the Galveston County district court's granting of Orihuela's motion to dismiss. Enriquez argues: (1) venue in Travis County is mandatory under Civil Practice and Remedies Code section 15.014; and the Galveston County district court improperly dismissed with prejudice his claims against Orihuela under (2) section 101.106(f) of the Texas Tort Claims Act (TTCA) and (3) Civil Practice and Remedies Code section 14.005.

         We conclude that the Travis County district court did not err in transferring venue to Galveston County and the Galveston County district court properly dismissed with prejudice Enriquez's tort claims against Orihuela. However, we conclude that the Galveston County district court erred in dismissing with prejudice Enriquez's federal statutory claims based on Eighth Amendment violations pursuant to section 1983 and Enriquez's claims for prospective equitable relief to remedy Texas constitutional violations.

         We therefore affirm in part, reverse in part, and remand.

         I. Background

         Enriquez is currently housed in the Terrell Unit operated by the Texas Department of Criminal Justice-Correctional Institutions Division (TDCJ-CID).[1]

         According to Enriquez, in 2014, when he was housed in the Michael Unit operated by the TDCJ-CID, [2] a prison nurse "referred [him] to a provider" after Enriquez presented at sick call with serious medical symptoms. Senior Warden Eddie Baker did not help Enriquez see a provider, and prison infirmary personnel refused to attend to him. Later, a prison doctor examined Enriquez and requested an expedited transfer to John Sealy Hospital, associated with the University of Texas Medical Branch at Galveston (UTMB), for a scheduled cancer pathology evaluation. Baker did not transfer Enriquez, and prison personnel refused to transport him to John Sealy.

         In 2015, a prison nurse practitioner referred Enriquez to John Sealy for acute kidney failure. A hospital resident admitted Enriquez to John Sealy for kidney and prostate issues. A hospital supervising surgeon informed Enriquez that he was diagnosed with benign prostatic hyperplasia (BPH) and the surgeon would perform a procedure to correct the prostate problem. According to Enriquez, a hospital attending physician, Ahmed A. Morsy, M.D., failed and refused to treat Enriquez's kidney failure and to correct his prostate problem and instead approved his discharge.

         Subsequently, the prison nurse practitioner diagnosed Enriquez with anemia due to kidney damage. Another hospital resident examined Enriquez at John Sealy but only treated his prostate problem. Orihuela examined Enriquez, "actively participated in the decision-making process undertaken" by the resident, was present for the BPH procedure, and refused "to comply with [Enriquez's] request for treatment for his kidneys and for the anemia." Enriquez's continuing anemia was not treated.

         Later in 2015, despite repeated requests to be treated for his kidney and catheter issues and to get the results from recent blood tests, Enriquez did not see a provider for over two months. A prison doctor examined Enriquez, ordered lab tests for a urinary tract infection (UTI), and scheduled a follow-up appointment to select an antibiotic for the UTI. Prison employees did not produce Enriquez for this appointment. Another prison doctor then ordered additional lab tests and scheduled a follow-up appointment. Prison employees also did not produce Enriquez for this appointment. Enriquez's "untreated UTI was so severe" that he was ultimately transported by prison van to Palestine Regional Medical Center and received antibiotic shots for an epididymis infection.

         In 2016, Enriquez's epididymis infection returned. Prescribed antibiotics did not work. The prison nurse practitioner ordered antibiotic shots and oral antibiotics. The prison nurse scheduled to administer the shots told Enriquez they were no longer available. The oral antibiotics took a month to resolve his infection. According to Enriquez, Lannelle Linthicum, M.D., the Director of Medical Services for TDCJ-CID, has a policy and practice of allowing prisoners' serious medical needs to go unattended, undiagnosed, and untreated as dictated by prison policies promulgated and implemented by Dale Wainwright, the chairman of the Texas Board of Criminal Justice (TBCJ); Brad Livingston, the executive director of the TDCJ; and Baker.

         In 2017, Enriquez filed suit pro se and claimed indigence in Travis County district court (trial court cause number D-1-GN-16-005852) against Wainwright, Morsy, Orihuela, Linthicum, Livingston, and Baker, both individually and in their official capacities. Enriquez alleged claims of: (1) deliberate indifference to serious medical need of treatment for prostate cancer against Baker; (2) deliberate indifference to serious medical need of treatment for acute kidney failure against Morsy and Orihuela; (3) deliberate indifference to serious medical need to correct benign prostatic hyperplasia (BPH) against Morsy and Orihuela; (4) deliberate indifference to serious medical need of treatment for anemia against Orihuela; (5) deliberate indifference to serious medical need for treatment of UTIs against all "Defendants"; (6) negligence against all "Defendants"; and (7) exemplary damages when his injuries resulted from all "Defendants' gross negligence, malice, or fraud." Enriquez prayed for the following relief: (a) a writ of mandamus directing all "Defendants" to provide him with certain treatment for his BPH not to be performed by doctors connected with TDCJ or UTMB; (b) a writ of mandamus directing all "Defendants" to provide him with evaluation of and treatment for his kidneys not to be performed by doctors connected with TDCJ or UTMB; (c) a writ of mandamus directing all "Defendants" to provide him with treatment for his anemia not to be performed by doctors connected with TDCJ or UTMB; (d) prospective equitable relief; (e) actual, exemplary, and nominal damages; (f) pre- and postjudgment interest; and (g) any other relief in equity or law.

         Enriquez alleged that general venue was proper in Travis County-the location of Wainwright's principal office as TBCJ chairman, and of Livington's residence and his principal office as TDCJ executive director. Enriquez alleged that because he sought mandamus relief against the head of a state agency, venue was mandatory in Travis County under Civil Practice and Remedies Code section 15.014. Enriquez further alleged that venue was "proper in Travis County as the injunctive relief sought is ancillary to the tort and other claims made in this lawsuit."

         Orihuela filed a motion to transfer venue to Galveston County.[3] Orihuela argued that the complained-of medical care was rendered while Enriquez was being treated at UTMB, a state agency, where Orihuela is a faculty member employee. According to Orihuela, because Enriquez brought his lawsuit against Orihuela in his official capacity as an employee of UTMB, the suit was inherently against UTMB and was governed by the TTCA's mandatory-venue provision. See TTCA, Tex. Civ. Prac. & Rem. Code Ann. § 101.102(a). Orihuela filed an affidavit wherein he attested that he was a faculty member for the Department of Urology and salaried employee of UTMB, he received his paycheck from the State of Texas, and his involvement in Enriquez's medical care was pursuant to his employment.[4]

         Enriquez filed a motion to strike and a response to Orihuela's motion to transfer venue. Enriquez argued that Travis County was the proper venue because he sought mandamus against heads of state agencies (Wainwright as head of TBCJ and Bryan Collier as head of TDCJ[5]) and Orihuela did not deny Enriquez's venue facts. Enriquez also argued that Orihuela was an employee instead of a governmental unit and failed to establish mandatory venue in Galveston County. Enriquez challenged Orihuela's venue facts that he was a governmental unit and that Enriquez was suing UTMB. Enriquez filed a "plea to the jurisdiction" containing similar arguments.

         The Travis County district court held a hearing on Orihuela's motion to transfer venue; Enriquez appeared by telephone.[6] The Travis County district court signed an order on July 24, 2017. In pertinent part, the Travis County district court ordered that Enriquez's motion to strike was denied, found that Galveston County was the mandatory venue with respect to Enriquez's claims against Orihuela, found the claims against Orihuela involve separate and distinct causes of action that could be independently asserted against Orihuela in a separate lawsuit and which are not so interwoven with the remainder of the lawsuit so as to involve the same facts and issues, ordered that Enriquez's claims against Orihuela shall be severed and assigned a new cause number, [7] and ordered that after severance Orihuela's motion to transfer venue is granted and Enriquez's case against Orihuela shall be transferred to Galveston County.

         After the case was transferred to Galveston County district court (trial court cause number 17-CV-1173), Orihuela filed a motion to dismiss pursuant to TTCA section 101.106(f) and Civil Practice and Remedies Code chapter 14. Orihuela argued that Enriquez's healthcare liability claim must be dismissed because: (1) Orihuela met the criteria for dismissal under section 101.106(f) and (2) Enriquez did not prove that he complied with chapter 14's administrative exhaustion requirement in section 14.005.

         Enriquez filed an objection and response to Orihuela's motion to dismiss. Orihuela replied. The Galveston County district court on December 8, 2017, signed its order granting dismissal with prejudice. The Galveston County district court stated that it "f[ound] . . . Enriquez is a person housed in a secure correctional facility and therefore subject to the requirements of Civil Practice and Remedies Code Chapter 14-Inmate Litigation" and that there was "[n]o evidence tendered or presented by [Enriquez] showing compliance with [section] 14.005."

         Enriquez filed a motion to vacate judgment and a notice of appeal. Orihuela filed a response. Enriquez filed a "supplement to motion to vacate judgment and plea to the jurisdiction." On March 16, 2018, the Galveston County district court signed its order denying Enriquez's motion to vacate.

         This court initially dismissed Enriquez's appeal. However, we granted Enriquez's motion for rehearing, withdrew our prior opinion, vacated our prior judgment, and reinstated his appeal.

         II. Analysis

         Prior to submission, and after briefing was completed, Enriquez filed a motion for this court to consider a decision from the Third Court of Appeals-what he described as a "companion case and related issue." See Enriquez v. Wainwright, No. 03-18-00189-CV, 2018 WL 6565017, at *1 (Tex. App.-Austin Dec. 13, 2018, no pet.) (mem. op.) (reversing granting of Wainwright's and Linthicum's jurisdictional plea). We carried this motion with the case. Although we deny Enriquez's motion, we note that regardless of any filed motion we generally would-and do-consider all relevant authority as part of our review.

         A. Severance of Enriquez's claims against Orihuela

         In its order, along with granting Orihuela's requested transfer of venue, the Travis County district court apparently on its own motion found that Enriquez's claims against Orihuela involve separate and distinct causes of action which could be independently asserted against Orihuela in a separate lawsuit and which are not so interwoven with the remainder of the lawsuit so as to involve the same facts and issues, and severed Enriquez's claims against Orihuela. See Tex. R. Civ. P. 41 ("Any claim against a party may be severed and proceeded with separately."); Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990) (op. on reh'g) (claim is properly severable under rule 41 if (1) controversy involves more than one cause of action, (2) severed claim is one that would be proper subject of independently asserted lawsuit, and (3) severed claim is not so interwoven with remaining action that they involve same facts and issues).

         Orihuela argues that "Enriquez has waived any argument on appeal that severance was improper or an abuse of discretion." See Guar. Fed. Sav. Bank, 793 S.W.2d at 658 ("The trial court's decision to grant a severance will not be reversed unless it has abused its discretion."). We agree. On appeal, Enriquez does not mention, much less challenge, the Travis County district court's decision to sever his claims against Orihuela into a separate lawsuit or advance any argument that the Travis County district court abused its discretion in severing such claims. See Tex. R. App. P. 38.1(f). In light of Enriquez's failure to appeal any severance issue, we are constrained to consider his issues based only on his severed claims against Orihuela.

         B. Enriquez's venue issue

         1. Venue transfer law and standard of review

         Because venue may be proper in more than one county, the plaintiff is given the first choice to fix venue in a proper county by filing suit in that county. See In re Team Rocket, 256 S.W.3d 257, 259 (Tex. 2008). "All venue facts, when properly pleaded, shall be taken as true unless specifically denied by the adverse party." Tex.R.Civ.P. 87(3)(a). If the defendant, however, challenges the plaintiff's venue choice, the plaintiff must present prima facie proof that venue is proper. See id. 87(2)(a), 3(a); Wilson v. Tex. Parks and Wildlife Dep't, 886 S.W.2d 259, 260-61 (Tex. 1994). "Prima facie proof is made when the venue facts are properly pleaded and an affidavit, and any duly proved attachments to the affidavit, are filed fully and specifically setting forth the facts supporting each pleading." Tex.R.Civ.P. 87(3)(a). If the plaintiff does not meet this burden or the defendant brings forth "conclusive evidence" that destroys the plaintiff's prima facie proof, then the trial court "shall transfer the case to another county of proper venue." Wilson, 886 S.W.2d at 260. If the plaintiff proves venue facts that support venue, then the trial court must maintain the lawsuit in the county where suit was filed unless the motion to transfer is based on an established ground of mandatory venue. Tex.R.Civ.P. 87(3)(c).

         We review the district court's venue determination de novo. See Wilson, 886 S.W.2d at 261-62. On appeal of a venue determination, we review not only the pleadings and affidavits, but also the entire record. See Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b); Wilson, 886 S.W.2d at 261. We look for any probative evidence to support the plaintiff's choice of venue, even if the evidence preponderates to the contrary. See Wilson, 886 S.W.2d at 262. If any probative evidence supports the plaintiff's ...


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