UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No.97-10264
Summary Calendar
PAMELA G. WALT,
Plaintiff-Appellant,
VERSUS
CITY OF DALLAS, A Municipal Corporation of the State of Texas; BEN
CLICK, Chief, Dallas Police Department, in his official capacity;
WILLIAM RATHBURN, Former Chief of Police, Dallas Police Department,
in his official capacity; JOHN WARE, City Manager, in his official
capacity; A C GONZALEZ, Assistant City Manager, in his official
capacity
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas, Dallas Division
(95-CV-412)
May 4, 1998
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Pamela G. Walt (“Walt”) appeals a judgment entered following
a verdict in favor of the City of Dallas (the “City”) in her § 1983
civil rights action alleging that the City had implemented a quota
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
system based on race and gender in executive level promotions for
the positions of assistant chief of police and executive assistant
chief of police in the Dallas Police Department in violation of her
equal protection rights. The jury found that the City had
intentionally discriminated against Walt by denying her a
meaningful opportunity to be considered for promotion with respect
to the executive assistant chief of police position. However,
municipalities are only subject to liability under 42 U.S.C. § 1983
if an official policy, custom or practice was responsible for the
injury or the deprivation of a federally protected right. Monell
v. Department of Social Servs. of City of New York, 436 U.S. 658,
694 (1978). The jury further found that the City did not have an
official policy or custom of discriminating against white females
with respect to that promotion, so that it rendered a take-nothing
judgment in favor of the City.
Walt argues that the district court erred by failing to submit
her proposed instructions, specifically an instruction that a
single discrimination incident is a sufficient basis for holding a
municipality liable under § 1983 where the municipality’s policy-
makers had actual or constructive knowledge of facts sufficient to
put them on notice that a failure to act was substantially certain
to result in a violation of constitutional rights; and an
instruction that the jury could infer a preexisting discriminatory
custom, policy or practice from a city policy-maker’s subsequent
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acquiescence in and/or ratification of discriminatory promotions.
Finally, she argues that the district court erred in instructing
the jury that “[a]n isolated incident cannot be the basis for
holding a municipality liable” under 42 U.S.C. § 1983.
Federal Rule of Civil Procedure 51 provides that “[n]o party
may assign as error the giving or the failure to give an
instruction unless that party objects thereto before the jury
retires to consider its verdict, stating distinctly the matter
objected to and the grounds of the objection.” Walt failed to
specifically object to the trial court’s instruction that Walt now
assigns as error, and Walt did not object to the trial court’s
failure to include the proposed jury instructions that are the
subject of this appeal. Because the purpose of Rule 51 is to
enable the trial court to correct any error it may have made before
the jury begins its deliberations, the objection and grounds
generally must be stated after the charge and before the jury
retires. Crist v. Dickson Welding, Inc., 957 F.2d 1281, 1286 (5th
Cir.), cert. denied, 506 U.S. 864 (1992). We do not believe that
this case falls under the exception to this general rule that
failure to object may be disregarded if the objecting party’s
position has been made clear to the court and it is plain that a
further objection would have been unavailing. See id. at 1287.
Therefore, we conclude that Walt did not preserve her right to
appeal the jury charge issue by timely objection.
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Even assuming that Walt properly preserved for review her
objections to the court’s charges, we find no error. The district
court has broad discretion in formulating the charge and it is
under no obligation to couch the charge in terms requested by
counsel. Davis v. Avondale Indus., Inc., 975 F.2d 169, 174 (5th
Cir. 1992). On appeal, the jury charge must be considered as a
whole, and so long as the jury is not misled, prejudiced, or
confused, and the charge is comprehensive and fundamentally
accurate, it will be deemed adequate. Id. at 174-75. We have
reviewed the record and the briefs and conclude that the
instructions submitted by the trial court defining “official policy
or custom” are, as a whole, comprehensive and fundamentally
accurate statements of the law. Therefore, we find no error in the
trial court’s refusal to give Walt’s proposed instructions.
The judgment appealed is AFFIRMED.
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