Appeal from the 122nd District Court Galveston County, Texas
Trial Court Cause No. 17-CV-1173
consists of Justices Wise, Zimmerer, and Spain.
Charles A. Spain Justice
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.
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.
therefore affirm in part, reverse in part, and remand.
is currently housed in the Terrell Unit operated by the Texas
Department of Criminal Justice-Correctional Institutions
to Enriquez, in 2014, when he was housed in the Michael Unit
operated by the TDCJ-CID,  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.
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.
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.
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
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.
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.
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."
filed a motion to transfer venue to Galveston
County. 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
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) 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
Travis County district court held a hearing on Orihuela's
motion to transfer venue; Enriquez appeared by
telephone. 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,  and ordered that after severance
Orihuela's motion to transfer venue is granted and
Enriquez's case against Orihuela shall be transferred to
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.
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."
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
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
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.
Severance of Enriquez's claims against Orihuela
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).
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.
Enriquez's venue issue
Venue transfer law and standard of review
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).
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 ...