McClendon v. City of Columbia

Revised July 27, 2001

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-60256

PETER CLAYTON MCCLENDON,
Plaintiff-Appellant,

versus

CITY OF COLUMBIA; ET AL.,
Defendants,

CITY OF COLUMBIA; JAMES R. CARNEY,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Mississippi

July 26, 2001

Before POLITZ, DeMOSS, and STEWART, Circuit Judges.

POLITZ, Circuit Judge:

Peter McClendon appeals an adverse grant of summary judgment dismissing his

claims against the City of Columbia and Officer James Carney. For the reasons
assigned, we affirm in part and reverse in part.

BACKGROUND

On July 12, 1993 Kevin Loftin shot Peter McClendon with a gun he received

from Officer Carney of the Columbia, Mississippi Police Department. Carney alleges

that the gun which was “loaned” to Loftin had been seized by the police department in

a raid on an unrelated suspect’s home, and that Officer Carney had been keeping it in

his desk at work. Loftin was a confidential informant for the Columbia Police

Department, working directly with Carney. Loftin had informed Carney that he was

worried of a possibility of violence between himself and McClendon because

McClendon was angry with Loftin for supplying a gun to someone who shot

McClendon’s cousin. Carney then allegedly agreed to give Loftin the gun out of his

desk to use as “protection” against McClendon until Loftin was able to get another gun.

Carney admittedly was aware that Loftin did not have access to a gun because Loftin’s

gun was in evidence for the aforementioned shooting of McClendon’s cousin.

Approximately one week later, Loftin allegedly used the gun he received from Carney

to shoot McClendon in the face, permanently blinding him.

McClendon’s instant action against Carney and the City of Columbia alleges

deprivation of his substantive due process and equal protection rights. He maintains

that the City’s failure to train Carney with regard to the use of informants displayed a

2
deliberate indifference to his rights, proximately causing his injury. Additionally, he

claims that there was pervasive custom and policy in the City condoning the storage of

evidence, weapons, and city property in accessible areas, rather than a locked and

controlled room, and that this custom and policy proximately caused his injury. Finally,

he claims that Carney knowingly and affirmatively created a dangerous situation by

providing Loftin with a gun when he was aware that violence was likely to erupt

between them. Accordingly, Loftin maintains that Carney is liable for his injuries under

the “state created danger” theory of liability.

Carney moved for summary judgment after the completion of discovery. The

magistrate judge granted the motion. The case against the City was set for trial but was

postponed at its request. The City then sought allowance to file a motion for summary

judgment out of time. That motion was granted and the subsequent motion for

summary judgment was also granted. This timely appeal followed.

ANALYSIS

We review a grant of summary judgment de novo, applying the same standards

as the district court, while viewing all disputed facts and reasonable inferences “in the

light most favorable to the nonmoving party. . . .”1 Summary judgment is appropriate

1
Duffy v. Leading Edge Prods., 44 F.3d 308, 312 (5th Cir. 1995).

3
only where “there is no genuine issue of material fact and . . . the moving party is

entitled to judgment as a matter of law.”2 To survive summary judgment, however, the

nonmoving party is required to do more than merely allege a material issue of fact,

instead he must “go beyond the pleadings and by [his] own affidavits, or by the

depositions, answers to interrogatories, and admissions on file, designate specific facts

showing that there is a genuine issue for trial.”3

I. State Created Danger Theory

We have recognized that, “When state actors knowingly place a person in

danger, the due process clause of the constitution has been held to render them

accountable for the foreseeable injuries that result from their conduct, whether or not

the victim was in formal state ‘custody.’”4 In Johnson v. Dallas Independent School

District,5 we discussed the history of and set forth the elements of the “state created

danger” theory without expressly adopting the theory. We acknowledged that other

courts uniformly have held that “state actors may be liable if they created the plaintiffs’

2
FED. R. CIV. P. 56(c).
3
Celotex Corp. v. Catrett, 447 U.S. 317, 324 (1986).
4
Johnson v. Dallas Indep. Sch. District., 38 F.3d 198, 200 (5th Cir. 1994).
5
Id.

4
peril, increased their risk of harm, or acted to render them more vulnerable to danger.”6

In Piotrowski v. City of Houston (I),7 we noted the basic requirements of the

state created danger theory: “First, a plaintiff must show that the state actors increased

the danger to her. Second, a plaintiff must show that the state actors acted with

deliberate indifference.”8 In Johnson we noted that to establish deliberate indifference,

the plaintiff must show:

[T]he environment created by the state actors must be dangerous; they
must know it is 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.9

Since Johnson, we have continued to recognize the existence of the theory and

observed that other circuits have found this theory to be constitutionally sound.10 We

6
Id. at 200.
7
Piotrowski v. City of Houston (I), 51 F.3d 512 (5th Cir. 1995).
8
Id. at 515.
9
Johnson, 38 F.3d at 201.
10
Piotrowski v. City of Houston (II), 237 F.3d 567 (5th Cir. 2001 ) (holding
that, even if theory was available in this circuit, plaintiff had not met element of
theory); Randolph v. Cervantes, 130 F.3d 727 (5th Cir. 1997) (same); Doe v.
Hillsboro Indep. Sch. District, 113 F.3d 1412 (5th Cir. 1997) (same); Piotrowski v.
City of Houston, 51 F.3d 512 (5th Cir. 1995) (same).

5
have not heretofore explicitly adopted and enforced this theory. We do so now.

In general, state and local governments are under no affirmative duty to protect

persons from the acts of private citizens. In DeShaney v. Winnebago County

Department of Social Services,11 the Supreme Court clearly held that:

[O]ur cases have recognized that the Due Process Clauses generally
confer no affirmative right to governmental aid, even where such aid may
be necessary to secure life, liberty, or property interests of which the
government itself may not deprive the individual. . . . If the Due Process
Clause does not require the State to provide its citizens with particular
protective services, it follows that the State cannot be held liable under
the Clause for injuries that could have been averted had it chosen to
provide them. As a general matter, then, we conclude that a State's failure
to protect an individual against private violence simply does not constitute
a violation of the Due Process Clause.12

The Court went on to note, however, that, “It is true that in certain limited

circumstances the Constitution imposes upon the State affirmative duties of care and

protection with respect to particular individuals.”13 Other circuits have recognized two

such limited circumstances—when the state has a special relationship with the person

and when the state exposes a person to a danger of its own creation.14 The latter has

11
489 U.S. 189 (1989).
12
Id. at 196-197.
13
Id. at 198.
14
Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993); L.W. v. Grubbs,
974 F.2d 119 (9th Cir. 1992); Gregory v. City of Rogers, Ark., 974 F.2d 1006 (8th

6
evolved into the state created danger theory. Most courts adopting the theory have

based their decision on language from DeShaney:

DeShaney did not rule that custody was required where the state
affirmatively causes the harm. In addition to pointing out that Joshua
DeShaney was not in state custody when injured, the Court noted that
"[w]hile the State may have been aware of the dangers that Joshua faced
in the free world, it played no part in their creation, nor did it do anything
to render him any more vulnerable to them." DeShaney thus suggests that
had the state created the danger, Joshua might have recovered even
though he was not in custody.15

As we stated in Johnson, the key element in the state created danger theory is a

determination that the state actor created the danger to the plaintiff or at least made him

more vulnerable to it. If the plaintiff advances a genuine issue of material fact that a

state actor created such a danger, his claim under § 1983 for a violation of due process

rights should not be dismissed on summary judgment.

Johnson involved a student killed at a high school by a person not authorized to

be on the campus. The evidence established that the shooter, Brown, rode a school bus

Cir. 1992) (en banc); D.R. v. Middle Bucks Area Vo. Tech. Sch., 972 F.2d 1364 (3d
Cir. 1992); K.H. v. Morgan, 914 F.2d 846 (7th Cir. 1990); Freeman v. Ferguson,
911 F.2d 52 (8th Cir. 1990); Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989);
Wells v. Walker, 852 F.2d 368 (8th Cir. 1988); Nishiyama v. Dickson County,
Tenn., 814 F.2d 277 (6th Cir. 1987) (abrogated on other grounds, Lewellen v.
Metropolitan Gov’t of Nashville, 34 F.3d 345 (6th Cir 1994)); Jackson v. City of
Joliet, 715 F.2d 1200 (7th Cir. 1983).
15
L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992) (quoting DeShaney, 489
U.S. at 201 (emphasis added)).

7
to the campus that morning and was allowed to enter the school even though he was

not wearing a student ID badge. There was also evidence that, although the school had

installed metal detectors, they were not being used that day. We found that, assuming

the state created danger theory was constitutionally sound, the pleadings in the case fell

short of the high standard required for liability. We noted that the school could not be

assumed to be a dangerous environment, nor was there any actual knowledge on the

part of the school of the danger to the student. Finally, we found no sufficiently

culpable affirmative conduct on the part of the school.16

Similarly in Doe v. Hillsboro Independent School District,17 we found that the

school would have had no duty under the state created danger theory because there was

no showing of a known danger. In Piotrowski v. City of Houston (I),18 we found that

the plaintiff could not meet the elements of a state created danger theory, even if we

were to adopt that theory, because she failed to demonstrate any causal connection

between the City and her ultimate injury. Instead, the plaintiff merely demonstrated

that certain officers increased her danger. Because the City could not be found liable

under a respondeat superior theory, we found the plaintiff failed to support her § 1983

16
Johnson v. Dallas Indep. Sch. District, 38 F.3d 198, 202 (5th Cir. 1994).
17
113 F.3d 1412 (5th Cir. 1997).
18
51 F.3d 512 (5th Cir. 1995).

8
claim. In Piotrowski II,19 we found that Piotrowski still had not met the requirements

of a state created danger theory, noting that the City actors did not create the danger

that Piotrowski faced.

In the case at bar, the district court determined that, because this circuit had not

yet adopted the state created danger theory of liability, Carney was entitled to judgment

as a matter of law. It also found that, “Even assuming that the state-created danger

theory was viable in this Circuit, McClendon’s claim would fail because Carney did not

affirmatively place McClendon in a position of danger, stripping him of his ability to

defend himself, and he did not cut off McClendon’s potential sources of private aid.”20

The court cited no record evidence in support of these findings.

We must determine whether McClendon has set forth sufficient evidence to

demonstrate that there is a genuine issue of material fact in this case regarding the

elements of the state created danger theory.

The record reflects that Carney admitted to loaning a handgun to Loftin for

“protection” from McClendon. It also reflects that Carney was aware that Loftin did

not have his own gun at the time of the “loan.” Carney admits in his deposition that

19
237 F.3d 567 (5th Cir. 2001).
20
Memorandum Opinion and Order Granting Defendant’s Motion for
Summary Judgment at 4, McClendon v. City of Columbia, No. 2:96CV255PG
(S.D. Miss. April 20, 1999).

9
McClendon had made “threats” against Loftin in his presence. Loftin testified in his

deposition that when he asked Carney for the gun things were “ at a boiling point.”

Loftin further testified that he used the gun given to him by Carney to shoot

McClendon. Carney disputes this, stating that, although he did give Loftin “a gun,” the

gun used in the shooting was never found. McClendon provided testimony that the gun

loaned to Loftin by Carney was evidence in another case that the Columbia police

department was investigating. Carney disputes this, claiming that the gun he loaned

Loftin belonged to Carney’s father.

This case differs significantly from the cases that previously have come before

us. Viewing the facts before us in the light most favorable to McClendon, as we must

at this stage, we find the affirmative conduct that was missing in Johnson, the

knowledge element missing in Doe, the causation requirement missing in Piotrowski

I, and the creation of danger that was missing in Piotrowski II. We find more than one

genuine issue of material fact regarding the elements of this theory.

This evidence supports the proposition that Officer Carney gave Kevin Loftin a

gun at a time when he knew or should have known that violence was close to erupting,

and at a time when he knew Loftin had no other gun in his possession. McClendon

claims that Carney used his authority to provide Loftin with a gun, thus creating an

opportunity for Loftin to commit the crime, which Loftin would not have otherwise had

10
because he did not have his own gun. If the facts alleged by McClendon are proven

at trial, a reasonable trier of fact could find that Carney created a danger that Loftin

would shoot McClendon, and that he contributed to an opportunity for Loftin to commit

a crime which otherwise might not have existed. Accordingly, the challenged summary

judgment should have been denied.

II. Qualified Immunity for Carney

Even if an official's conduct violates a constitutional right, he is entitled to

qualified immunity if the conduct was objectively reasonable.21 The objective

reasonableness of allegedly illegal conduct is assessed in light of the rules clearly

established at the time it was taken.22 A right will be considered clearly established

only when its contours are sufficiently clear so that a reasonable official would

understand that what he is doing violates that right.23 “This is not to say that an official

action is protected by qualified immunity unless the very action in question has

previously been held unlawful, but it is to say that in light of pre-existing law the

unlawfulness must be apparent.”24 Furthermore, “If reasonable public officials could

21
Pfannstiel v. City of Marion, 918 F.2d 1178 (5th Cir. 1990).
22
Anderson v. Creighton, 483 U.S. 637 (1987).
23
Id. at 640. White v. Taylor, 959 F.2d 539 (5th Cir. 1992).
24
Anderson, 483 U.S. at 640 (citation omitted).

11
differ on the lawfulness of the defendant's actions, the defendant is entitled to qualified

immunity.”25

The district court found that, “Assuming that McClendon has alleged facts

sufficient to show a violation of a constitutionally protected right, he cannot show that

Carney’s conduct was not objectively reasonable under the circumstances, in light of

clearly established law.”26 The court based this determination on the conclusion that,

at the time of the shooting, July 12, 1993, the state created danger theory was not a

viable theory in this circuit. Therefore, the court found, it was not clearly established

law at the time of this incident.

The district court was correct in stating that, at the time of the incident, this court

had only addressed the state created danger theory once, in Salas v. Carpenter.27 We

conclude, however, that the discussion in Salas was sufficient to give notice that a

police officer’s deliberate indifference could lead to liability for a violation of the

25
White, 959 F.2d at 544.
26
Memorandum Opinion and Order Granting Defendant’s Motion for
Summary Judgment at 5, McClendon v. City of Columbia, No. 2:96CV255PG
(S.D. Miss. April 20, 1999).
27
980 F.2d 299 (5th Cir. 1992).

12
victims’s due process rights.28 In Salas, we stated that:

If the state actor has a requisite mental state, a due process
deprivation could occur under two sets of circumstances. First, a
procedural or substantive due process violation could occur if a state
official causes injury by arbitrarily abusing governmental power. Second,
a substantive due process violation could occur if uncommon
circumstances create a duty for the state to protect a particular person. . . .
We have held that a constitutional deprivation can result from
“tortious conduct exceeding mere negligence but not quite rising to the
level of intentional, e.g., deliberate (or conscious) indifference,
recklessness, or gross negligence.”29

We recognized that other circuits had found a denial of due process when the state

creates the faced dangers. We did not reject the doctrine as unsound, rather we merely

found that the officer in that case had not increased the plaintiff’s “vulnerability to

danger in the sense envisioned by the Court in DeShaney.”30

In DeShaney, the Supreme Court held that state officials could not be liable for

failing to protect citizens from private violence. As stated above, however, the Court

was careful to note that the state had played no part in creating the danger or leaving

28
Salas, 980 F.2d at 311 (“On the other hand, the Ninth Circuit held that it
was clearly established in 1984 that a police officer's deliberate indifference, which
enhances an individual's risk of being harmed by a private actor, violates due
process. Plaintiffs have failed, however, to carry their burden of showing that
Carpenter acted with deliberate indifference.”).
29
Id. at 307.
30
Id. at 309.

13
the plaintiff more vulnerable to the danger. The clear implication of the Court's

language, which was written in 1989, was that a state could be liable when it

affirmatively acts to create, or increases a plaintiffs vulnerability to, danger from private

violence.

Although generally in cases of qualified immunity we look to the law of this

circuit and the Supreme Court to determine whether the applicable law was clearly

established at the time of the constitutional violation, we are not limited to looking only

at these decisions to make this determination. We have noted previously that:

As a general proposition, we will not rigidly define the applicable body
of law in determining whether relevant legal rules were clearly established
at the time of the conduct at issue. Relying solely on Fifth Circuit and
Supreme Court cases, for example, would be excessively formalistic, but
they will loom largest in our inquiries. In determining what the relevant
law is, then, a court must necessarily exercise some discretion in
determining the relevance of particular law under the facts and
circumstances of each case, looking at such factors as the overall weight
of authority, and the status of the courts that render substantively relevant
decisions, as well as the jurisdiction of the courts that render substantively
relevant decisions.31

Our examination of the law in other circuits at the time of the shooting demonstrates

that numerous federal cases had recognized and adopted this theory, including several

31
Melear v. Spears, 862 F.2d 1177, 1184 n. 8 (5th Cir. 1989) (internal citation
omitted).

14
of our sister circuits.32 At the relevant time, although many cases had found that the

requirements of the theory had not been met, no case had explicitly rejected the theory.

The overwhelming authority in the United States was that this was a viable theory of

law.

In Wood v. Ostrander,33 a police officer arrested a drunken driver, impounded

the car, and left the female passenger, Wood, stranded on the side of the road in a high

crime area five miles from her home. Wood was then picked up by an unknown man

who then took her to a secluded area and raped her. The Ninth Circuit found that the

law was unclear regarding whether “grossly negligent or reckless official conduct that

infringes upon an interest protected by the due process clause is actionable under

section 1983.”34 The court then determined, however, that under City of Canton v.

Harris,35 a state actor acting with deliberate indifference to a citizen’s safety in the face

of known dangers could result in a constitutional violation. In deciding the question of

qualified immunity, the court looked to the decisions of the Seventh Circuit in White

32
See supra, footnote 10.
33
879 F.2d 583 (9th Cir. 1989).
34
Id. at 587.
35
489 U.S. 378 (1989).

15
v. Rochford,36 Jackson v. City of Joliet,37 and Bowers v. DeVito.38 In those cases, the

Seventh Circuit noted the difference between a state placing a m an in a position of

danger and then failing to protect him and a state officer merely failing to avert danger

created by another. The Wood court found that by 1984 the law had been established

in White and clearly articulated in Bowers and Jackson. The court then held that, if the

facts asserted by the plaintiff were proved at trial, the officer in that case would not be

entitled to qualified immunity. As a result, the court reversed the lower court’s grant

of summary judgment in favor of the officer.

Freeman v. Ferguson,39 involved a claim that the police chief had directed

officers not to respond to a woman's complaints that her estranged husband was

violating his restraining order. The estranged husband, a close friend of the police chief,

eventually killed his former wife. The Eighth Circuit found that “a constitutional duty

to protect an individual against private violence may exist . . . if the state has taken

affirmative action which increases the individual’s danger of, or vulnerability to, such

36
592 F.2d 381 (7th Cir. 1979).
37
715 F.2d 1200 (7th Cir. 1983).
38
686 F.2d 616 (7th Cir. 1982).
39
911 F.2d 52 (8th Cir. 1990).

16
violence beyond the level it would have been at absent state action.”40 Three years

later, the circuit, in an en banc decision, again affirmed the viability of this theory in

Gregory v. City of Rogers, Arkansas.41

In Dwares v. City of New York,42 flag-burning demonstrators alleged that police

officers had violated their constitutional rights when the police officers told "skinheads"

that they would not interfere if the skinheads assaulted the demonstrators. The Second

Circuit concluded that a constitutional violation had been alleged. The court explained

that the police officer's affirmative conduct had made the demonstrators more

vulnerable to assault, even if the police officers were under no constitutional duty to

rescue the demonstrators from an assault.

We find it beyond peradventure that a police officer’s actions of giving a person

a weapon in a situation the officer knows or should know has a strong potential for

violence constitutes deliberate indifference on the part of the officer. Considering our

40
Id. at 55.
41
974 F.2d 1006, 1010 (8th Cir. 1992) (en banc) (“We have held the Due
Process Clause imposes a duty on state actors to protect or care for citizens in two
situations: first, in custodial and other settings in which the state has limited the
individuals' ability to care for themselves; and second, when the state affirmatively
places a particular individual in a position of danger the individual would not otherwise
have faced.”).
42
985 F.2d 94 (2d Cir. 1993).

17
statements in Salas, the inference which can be made from DeShaney, and the

prevailing law across the nation, it seems apparent that no reasonable public official

could have believed at the time of the incident that Officer Carney’s actions, if proven

as alleged in the petition, were lawful. We conclude that, at the time of the shooting

it was clearly established that a state actor creating a danger, knowing of that danger,

and using his authority to create an opportunity for a third person to commit a crime

that otherwise might not have existed, was subject to liability for a violation of the

victim’s rights. Accordingly, Carney would not be entitled to qualified immunity and

summary judgment was inappropriate at this stage.

III. McClendon’s Claims Against the City of Columbia

McClendon alleged that the City of Columbia was liable, under § 1983, for both

failure to properly train officers with regard to the appropriate use of confidential

informants and for a custom or policy of allowing evidence to be kept in the offices of

individual officers.

Municipalities may be held liable under § 1983 only when an official policy or

governmental custom of the municipality causes the deprivation or violation of the

constitutional rights of the plaintiff.43 In order to demonstrate a municipal custom or

43
Fraire v. City of Arlington, 957 F.2d 1268 (5th Cir. 1992).

18
policy, a plaintiff must allege: “[A] pattern of similar incidents in which citizens were

injured or endangered by intentional or negligent policy misconduct and/or that serious

incompetence or misbehavior was general or widespread throughout the police force.” 44

McClendon has failed to make a showing of such a custom or policy. He presented no

evidence of a pattern of incidents injuring or endangering citizens. The evidence he

presented did not establish that the alleged custom of improperly storing evidence was

“general or widespread throughout the police force.” Instead, all of the testimony

regarding improper storage of evidence related solely to the actions of Officer Carney

on a few limited occasions. His evidence, viewed in the light most favorable to him,

establishes, at best, an isolated incident of injury in violation of the unwritten city

policy regarding storage of evidence. The City, therefore, was entitled to summary

judgment on this claim.

McClendon’s claims regarding the City’s failure to train its officers regarding the

proper use of confidential informants also fails. The Supreme Court has stated, “[T]he

failure to provide proper training may fairly be said to represent a policy for which the

city is responsible, and for which the city may be held liable if it actually causes

44
Id. at 1278 (quoting Languirand v. Hayden, 717 F.2d 220, 227 (5th Cir.
1983)).

19
injury.”45 We recently held in a failure to train case that the plaintiff must prove his

rights were violated as a result of a municipal custom or policy of deliberate

indifference to his rights.46 In such cases, the plaintiff may prove deliberate

indifference in two ways: 1) by showing that the municipality deliberately or

consciously chose not to train its officers despite being on notice that its current training

regimen had failed to prevent tortious conduct by its officers; or 2) showing a single

incident with proof of the possibility of recurring situations that present an obvious

potential for violation of constitutional rights and the need for additional or different

police training.47

We generally have rejected the application of the single incident showing, noting

that “proof of a single incident ordinarily is insufficient to hold a municipality liable for

inadequate training.”48 We have, however, allowed liability to attach for a single

incident in at least one case. In Brown v. Bryan County, Oklahoma,49 we found that

the County was liable under the single incident exception where it failed to provide any

45
City of Canton v. Harris, 489 U.S. 378, 390 (1989).
46
Gabriel v. City of Plano, 202 F.3d 741 (5th Cir. 2000).
47
Id. at 745.
48
Id. (citing Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998)).
49
219 F.3d 450 (5th Cir. 2000).

20
training or supervision for a young, inexperienced officer with a record of recklessness.

In finding that liability could attach for a single incident, we found that, to proceed

under the exception, “the evidence must establish, under the stringent standards of the

Supreme Court's pronouncements in Bryan County, unmistakable culpability and

clearly connected causation.”50 In other words, as McClendon notes in his reply brief,

the “question is whether it should have been obvious that the failure to train was likely

to lead to the injury.”

We find this case distinguishable from Bryan. Although there is no evidence that

disputes McClendon’s claim that the City of Columbia does not provide specific

training for its officers regarding the use of informants, there is a difference between

a complete failure to train, as in Bryan, and a failure to train in one limited area. Even

if this failure to train is considered sufficiently culpable conduct, however, McClendon

has failed to prove a causal connection between this failure to train and his injury. He

points to no evidence demonstrating that any training on behalf of the City with regards

to the use of informants would have prevented Carney from providing Loftin with the

gun used in this case. His only evidence regarding this claim is an expert opinion

stating that the City failed to train Carney adequately with respect to dealing with

50
Id. at 461 (discussing Board of County Commissioners of Bryan County,
Ok. v. Brown, 520 U.S. 397 (1997)).

21
confidential informants. The expert presented no opinion regarding whether this failure

to train was causally connected to the injury at issue. McClendon claims that the Chief

of Police, after being made aware of Loftin’s danger, failed to provide guidance or

training to Carney which resulted in his decision to handle the situation by arming his

informant. Although Carney testifed in his deposition that the Chief of Police was made

aware of Loftin’s involvement in the shooting of McClendon’s cousin, there is no

evidence that his failure to take any action regarding this information actually led to

Carney’s decision to provide Loftin with a weapon. This is a mere conclusionary

allegation. The evidence presented by McClendon in regards to this claim, even

viewed in the light most favorable to him, fails to present a genuine issue of material

fact. Accordingly, the district court did not err in granting summary judgment in favor

of the City on this claim.

CONCLUSION

The district court properly granted summary judgment in favor of the City of

Columbia with respect to the claim of custom or policy regarding storage of evidence

and the claim of failure to train. We therefore AFFIRM the district court’s decision in

this regard.

With respect to the summary judgment in favor of James Carney, however, the

district court erred in granting summary judgment. The state created danger theory is

22
a viable theory of law in this circuit and summary judgment was improper on these

grounds. Additionally, as we have found that it was clearly established at the time of

the incident that creation of such a danger could lead to liability under § 1983, we

cannot say, viewing the evidence in the light most favorable to McClendon, that

Carney’s actions were objectively reasonable. Accordingly, summary judgment was

also improper on the grounds of qualified immunity. We therefore REVERSE and

REMAND this portion of the action for further proceedings consistent herewith.

AFFIRMED in part; REVERSED and REMANDED in part.

23