IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50037
Summary Calendar
ERICA MARIE TEJADA; EVELYN M. GARZA; ANTHONY BELANGER,
Individually and as Personal Representative of the Estate of
Erik Jason Belanger, deceased,
Plaintiffs-Appellants,
versus
STAN KNEE, Chief, Police Chief for the City of Austin Police
Department, Individually and in his official capacity;
FOUR UNKNOWN POLICE OFFICERS, Individually and in their Official
Capacity; CITY OF AUSTIN, a municipal corporation,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-99-CV-668-JN
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July 19, 2000
Before JOLLY, JONES and BENAVIDES, Circuit Judges.
PER CURIAM:*
The plaintiffs appeal the district court’s Fed. R. Civ.
P. 12(b)(6) dismissal of their civil rights action for failure to
state a claim upon which relief can be granted. The plaintiffs’ 42
U.S.C. § 1983 complaint sought to recover damages arising from an
automobile accident, alleging that: (1) four unknown police
officers unconstitutionally ordered the plaintiffs to leave the
scene of a public disturbance in an automobile, even though the
officers were aware that the plaintiffs were legally intoxicated,
*
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that this opinion should not be published and is not precedent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.
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and (2) the officers’ constitutional violation was caused by the
policies and customs of Chief Knee and the City of Austin.
As the plaintiffs did not allege that Chief Knee was
personally involved in the incident in question and as supervisory
personnel cannot be held liable in a § 1983 case under a vicarious-
liability theory, the plaintiffs failed to state a claim against
Chief Knee in his individual capacity. See Becerra v. Asher, 105
F.3d 1042, 1045 (5th Cir. 1997).
The plaintiffs have abandoned their First, Fourth, and
Fifth Amendment claims by addressing on appeal only their
substantive due process claims. See Davis v. Maggio, 706 F.2d 568,
571 (5th Cir. 1983). “The Due Process Clause of the Fourteenth
Amendment confers upon an individual the right to be free of
state-occasioned damage to [his] bodily integrity, not the
entitlement to governmental protection from injuries caused by
non-state actors.” Randolph v. Cervantes, 130 F.3d 727, 730 (5th
Cir. 1997). Although the Supreme Court has recognized an exception
to this general rule for cases in which there was a special
relationship between the state and the individual by virtue of
arrest, incarceration, institutionalization, or the like, no such
special relationship existed in this case. See id.
The plaintiffs contend that there is another applicable
exception because the state actors in this case created the danger
to which the plaintiffs were subjected. Although this court has
not affirmatively held that the state-created danger theory is
valid, see Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th
Cir. 1995), we have described its requirements as follows:
No. 00-50037
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the environment created by the state actors
must [have] be[en] dangerous; they must [have]
know[n] it [wa]s dangerous; and, to be liable,
they must have used their authority to create
an opportunity that would not otherwise have
existed for the third party’s crime to occur.
Put otherwise, the defendants must have been
at least deliberately indifferent to the
plight of the plaintiff.
Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 201 (5th Cir.
1994) (emphasis added).
Even if it is assumed that the state-created danger
theory would be accepted by this court and that the four unknown
police officers created a dangerous environment, the plaintiffs’
argument must fail. The plaintiffs’ allegations indicate that the
officers were acting under tense circumstances demanding their
instant judgment, without the opportunity for repeated reflection.
The officers’ actions are thus subject not to a deliberate-
indifference standard, but to an intentional-harm standard. See
County of Sacramento v. Lewis, 523 U.S. 833, 853-54 (1998). As the
plaintiffs did not allege that the officers intended to cause them
harm, the plaintiffs have failed to allege facts sufficient to
implicate the state-created danger theory.
Because the plaintiffs failed to state a claim against
any individual defendant, there is no underlying constitutional
violation for which the municipal defendants can be derivatively
liable on the basis of their policies or customs. See
Olabisiomotosho v. City of Houston, 185 F.3d 521, 528-29 (5th Cir.
1999). Thus, the plaintiffs failed to state a claim against the
four unknown police officers in their official capacities, Chief
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Knee in his official capacity, and the City of Austin. The
judgment of the district court is AFFIRMED.