United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 27, 2006
Charles R. Fulbruge III
Clerk
No. 04-50774
RICARDO RIOS, II; MARISELA RIOS,
Individually and as next friend
of their minor children, Ricardo
Rios III, Laura Yvette Rios and
Ivn Alejandro Rios,
Plaintiffs-Appellees,
versus
THE CITY OF DEL RIO, TEXAS; ET AL,
Defendants,
WESLEY WILSON; MANUEL HERRERA,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Texas
Before GARWOOD, SMITH and DEMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
This is an appeal from the denial of a motion to dismiss on
the basis of qualified immunity.
Ricardo Rios II (Rios), joined by his wife and minor children,
filed this suit in November 2003 against the City of Del Rio,
Texas, its Chief of Police Manuel Herrera (Herrera), and its police
officer Wesley Wilson (Wilson), seeking to recover, under 42 U.S.C.
§ 1983 and state law, damages for personal injuries sustained when,
on the evening of June 30, 2002, Rios, then on duty as a U.S.
Customs Enforcement Officer at the Del Rio Port of Entry, was
struck by a City Police Department vehicle being driven by an
escaping City prisoner, Reymundo Avalos (Avalos). The defendants
jointly answered and filed a Rule 12(b)(6) motion to dismiss,
Wilson and Herrera claiming qualified immunity. Following denial
of the motion in July 2004, Wilson and Herrera timely brought this
interlocutory appeal under Mitchell v. Forsyth, 105 S.Ct. 2806
(1985).1
The complaint asserts that “Mr. Rios was subjected to
negligence, injury, gross misconduct and damages from the deadly
use of force in violation of rights guaranteed to him by the Fourth
and Fourteenth Amendments.” It alleges that at all relevant times
1
The magistrate judge ruled on the motion to dismiss, the
parties having agreed to proceed before him under 28 U.S.C. §
636(c). The magistrate judge amended the order to correct a
clerical error, noting that the Fourth Amendment claim against the
City was dismissed. The City also filed a timely notice of appeal
but subsequently on its motion we dismissed its appeal.
2
Wilson and Herrera were, respectively, City of Laredo police
officer and Chief of Police, acting within the course and scope of
their employment, and – under the heading “FACTS” – the following:
“4.2 On June 30, 2002, Mr. Rios was thirty-six years old
and he was on-duty as a U.S. Customs Enforcement Officer
at the Del Rio Port of Entry along the United States
border with Acuna, Coah., Mexico when he was struck and
severely injured by a City Police Department patrol unit
driven by an escaping prisoner, Mr. Reymundo Avalos.
4.3 Customs Officers at the Del Rio Port of Entry,
including Mr. Rios, were responding to the City Police
Department’s request for assistance in intercepting a car
chase which commenced at 617 Holt Street.
4.4 Mr. Reymundo Avalos was an adult person who had a
criminal history in the City including a penchant or
tendency to escape police custody which was well known to
the police officers of the City Police Department, and he
was known by the nickname around the City Police
Department as “Houdini.”
4.5 On the evening of June 30, 2002, Reymundo Avalos,
had been placed under arrest by Officer Wesley Wilson.
4.6 Officer Wilson improperly left the prisoner Reymundo
Avalos in the backseat of his patrol vehicle while the
keys were in the ignition and the engine running while he
visited with a person who lived in the neighborhood.
4.7 Mr. Avalos escaped from confinement in the rear sat,
commandeered the patrol car, and sped away.
4.8 The City Police Department issued an “all points
alert” on the escaping prisoner, Reymundo Avalos, and
proceeded to channel Reymundo Avalos towards the
International Bridge.
4.09 The City Police Department did not clearly inform
the Del Rio Port of Entry Customs Officers that the
vehicle being driven by Reymundo Avalos was an official
marked patrol car of the City Police Department.
3
4.10 Del Rio Police Department officers pursued the
patrol car being driven by Reymundo Avalos and had
opportunities to divert or disable that vehicle, but
failed to do so.
4.11 As the stolen vehicle driven by Reymundo Avalos
approached the open lane, the vehicle violently struck
Mr. Rios.
4.12 Mr. Rios sustained devastating injuries from the
violent impact by that vehicle . . . .”
It is also alleged that “[t]he City” was “acting with
deliberate indifference . . . breaching their duty to provide
Officer Wilson with adequate supervision and training regarding the
reasonable containment of prisoners in custody” and that “[t]he
facts stated” in the “Facts” section of the complaint “constitute
intentional, deliberate, and conscious indifference to well-known
standards in the management of the City Police Department in the
training on, demonstrated proficiency in, and the safe handling of
individuals in custody . . . .”
Additional allegations are that “Officers of the City Police
Department were aware of previous attempts of the prisoner to flee
from their custody,” “were aware that their actions increased
danger to others including Mr. Rios” and “were aware of department
and state law” [citing Tex. Trans. Code § 545.404] “that an
operator of a motor vehicle may not leave a vehicle unattended
without” stopping the engine, locking the ignition and removing the
key from the ignition. It is also alleged that “Defendants acted
4
with deliberate indifference to Mr. Rios’ safety, by creating an
environment which would not have existed for the crime to occur
otherwise,” and that
“7.1 . . . with an intentional, a deliberate, and a
conscious indifference to the lives and safety of other
persons, including Mr. Rios, the City adopted or
maintained, through its final policymakers,
unconstitutional policies and customs, and failed to
implement constitutional and proper policies and
procedures, which proximately caused or resulted din the
violation of the constitutional rights of Mr. Rios . . .
.
7.2 Officer Wilson acted willfully, deliberately,
maliciously, or with reckless disregard for Mr. Rios’
constitutional rights when, with knowledge of Reymundo
Avalos’ previous attempts to flee police custody, Officer
Wilson left Mr. Avalos unattended in an operative police
unit on June 30, 2002.”
DISCUSSION
Standard of Review
Our review of a district court’s decision on a 12(b)(6) motion
is, as we said in Campbell v. City of San Antonio, 43 F.3d 973, 975
(5th Cir. 1995):
“. . . de novo, accepting all well-pleaded facts as true
and viewing those facts in the light most favorable to
[the plaintiff]. Walker v. S. Cent. Bell Tel. Co., 904
F.2d 275, 276 (5th Cir. 1990); Heaney v. United States
Veterans Admin., 756 F.2d 1215, 1217 (5th Cir. 1985). .
. . dismissal [is not proper] ‘“unless it appears beyond
doubt that [the plaintiff] can prove no set of facts in
support of [her] claim which would entitle [her] to
relief.”’ Heaney, 756 F.2d at 1217 (quoting Conley v.
Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101-02, 2 L.Ed.2d
80 (1957)). However, ‘the complaint must contain either
direct allegations on every material point necessary to
5
sustain a recovery . . . or contain allegations from
which an inference fairly may be drawn that evidence on
these material points will be introduced at trial.’ 3
WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1216
at 156-159 (footnote omitted). ‘[A] statement of facts
that merely creates a suspicion that the pleader might
have a right of action’ is insufficient. Id. at 163
(footnote omitted). ‘Dismissal is proper if the
complaint lacks an allegation regarding a required
element necessary to obtain relief . . .” 2A MOORE’S
FEDERAL PRACTICE ¶ 12.07 [2.-5] at 12-91 (footnote
omitted). The court is not required to ‘conjure up
unpled allegations or construe elaborately arcane scripts
to’ save a complaint. Gooley v. Mobil Oil Corp., 851
F.2d 513, 514 (1st Cir. 1988). Further, ‘conclusory
allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to
dismiss.’ Fernandez-Montes v. Allied Pilots Ass’n, 987
F.2d 278, 284 (5th Cir. 1993).”2
Where the issue is one of qualified immunity, Saucier v. Katz,
121 S.Ct. 2151 (2001), states the relevant test as follows:
“A court required to rule upon the qualified immunity
issue must consider, then, this threshold question: Taken
2
See also, e.g., Drs. Bethea, Moustoukas v. St. Paul
Guardian Ins., 376 F.3d 399, 403 (5th Cir. 2004) (“conclusory
allegations or legal conclusions masquerading as factual
conclusions”); Taylor v. Books A Million, Inc., 296 F.3d 376, 378
(5th Cir. 2002) (same); Jones v. Alcoa Inc., 339 F.3d 359, 363 n.4
(5th Cir. 2003) (“conclusory allegations or unwarranted deductions
of fact” not accepted as true); Kane Enterprises v. MacGregor
(USA), 322 F.3d 371, 374 (5th Cir. 2003) (same).
And see WRIGHT & MILLER FEDERAL PRACTICE AND PROCEDURE: CIVIL 3d §
1216: “As one district court put the matter: ‘. . . if a pleader
cannot allege definitively and in good faith the existence of an
essential element of his claim, it is difficult to see why this
basic deficiency should not be exposed at the point of minimum
expenditure of time and money by the parties and the court.’” (id.
at 227, 229-30; footnote omitted, quoting Daves v. Hawaiian
Dredging Co., 114 F. Supp. 643, 645 (D.C. Haw. 1953)).
6
in the light most favorable to the party asserting the
injury, do the facts alleged show the officer’s conduct
violated a constitutional right?
. . .
If no constitutional right would have been violated were
the allegations established, there is no necessity for
further inquiries concerning qualified immunity.” Id. at
2156.3
Constitutional violation; state-created danger
The complaint makes plain that Rios asserts a Fourteenth
Amendment substantive due process right to be free from state
deprivation of his bodily integrity liberty interest.4 In DeShaney
v. Winnebago County, 109 S.Ct. 998 (1989), the Court held that
“[a]s a general matter . . . a State’s failure to protect an
individual against private violence simply does not constitute a
violation of the Due Process Clause,” but recognized an exception
respecting individuals in certain “special relationships” with the
state, id. at 104, an exception which it described and explained as
follows:
3
See also, e.g., Morin v. Moore, 309 F.3d 316, 319 (5th Cir.
2002) (in appeal from order denying Rule 12(b)(6) motion raising
qualified immunity our review is “de novo, accepting all well-pled
facts as true”).
4
While the complaint also references the Fourth Amendment,
none of the facts alleged even suggest that Rios was ever subjected
to a search or seizure by anyone, and the Fourth Amendment is
plainly not implicated. See County of Sacramento v. Lewis, 118
S.Ct. 1708, 1715 (1998). See also id. at n.7. Rios does not argue
otherwise.
7
“In the substantive due process analysis, it is the
State’s affirmative act of restraining the individual’s
freedom to act on his own behalf – through incarceration,
institutionalization, or other similar restraint of
personal liberty – which is the ‘deprivation of liberty’
triggering the protections of the Due Process Clause, not
its failure to act to protect his liberty interests
against harms inflicted by other means.” Id. at 1006.
Rios was injured from being struck by the patrol car “driven
by an escaping prisoner, Mr. Reymundo Avalos” who had earlier
“commandeered” the vehicle after having “escaped from confinement
in the rear seat . . . and sped away.” Obviously, Avalos is a
purely private party not in any sense acting under color of law,
and nothing in the complaint suggests otherwise. Moreover, it is
likewise obvious that Rios was not incarcerated or
institutionalized or under “other similar restraint of personal
liberty” so as to be within the noted “special relationship”
exception to DeShaney. Rios does not contend otherwise.
Rather, Rios seeks to invoke another purported exception to
DeShaney, namely what has been referred to as the “state-created
danger” theory. As we noted in McClendon v. City of Columbia, 305
F.3d 314, 327, 330-32 (5th Cir. 2002) (en banc), this court has
frequently spoken of the “state-created danger” theory, and has
discussed its various permutations and requirements as applied in
other circuits, but neither the Supreme Court nor this court has
ever either adopted the state-created danger theory or sustained a
8
recovery on the basis thereof. We have, however, many times
refused to allow recovery sought to be predicated thereunder. See,
e.g., Beltran v. City of El Paso, 367 F.3d 299, 307 (5th Cir. 2004)
(“This court has consistently refused to recognize a ‘state-created
danger’ theory of § 1093 liability”); Rivera v. Houston Independent
School District, 349 F.3d 244, 249 (5th Cir. 2003) (“We have never
recognized state-created danger as a trigger of State affirmative
duties under the Due Process clause”); Piotrowski v. City of
Houston, 237 F.3d 567, 584 (5th Cir. 2001) (“Although this court
has discussed the contours of the ‘state-created danger’ theory on
several occasions, we have never adopted that theory”); Randolph v.
Cervantes, 130 F.3d 727, 731 (5th Cir. 1997) (“The state-created
danger theory has not been adopted in this Circuit”); Johnson v.
Dallas I.S.D., 38 F.3d 198, 201 (5th Cir. 1994) (“no Fifth Circuit
case has yet predicated relief on a state created danger theory”);
Leffall v. Dallas I.S.D., 28 F.3d 521, 530 (5th Cir. 1994) (“We
have found no cases in our circuit permitting § 1983 recovery for
a substantive due process violation predicated on a state-created
danger theory”).
Rios contends, however, that Scanlan v. Texas A&M Univ., 343
F.3d 533 (5th Cir. 2003), adopted the state-created danger theory.
It is certainly not clear that Scanlan purports to do so. There
the panel primarily addressed the district court’s error in
9
considering matters outside the complaint in granting a Rule
12(b)(6) dismissal. The Scanlan panel did cite the Johnson and
Piotrowski opinions respecting what would be required to make out
a state-created danger claim,5 and stated that the plaintiffs had
adequately pled the there referenced required elements thereof;
however, this discussion was introduced by the statement that “this
Court has never explicitly adopted the state-created danger
theory,” Scanlan at 537, and nowhere in the opinion does the court
expressly purport to adopt or approve that theory. At least two
subsequent panels have construed Scanlan as not adopting the state-
created danger theory. See Beltran at 307 (citing McClendon and
Scanlan as examples of our refusal to recognize a state-created
danger theory); Rivera at 249 n.5 (“In Scanlan . . . [d]espite
remanding that case . . . for further proceedings, we did not
recognize the state created danger theory”). We need not, however,
ultimately resolve the meaning of Scanlan because, as explained
below, prior decisions of this court more specifically on point
here than Scanlan (and not cited in Scanlan) are controlling in the
present setting.6
5
Scanlan does not cite McClendon.
6
In this connection we assume, arguendo only, that the en
banc court’s statement in Walton v. Alexander, 44 F.3d 1297, 1306
(5th Cir. 1995), that
10
Officer Wilson
The only conduct, or inaction, alleged respecting Officer
Wilson, and the only fault or wrongdoing sought to be charged to
him, is that on the evening in question, after he had placed Avalos
under arrest, he “improperly left the prisoner . . . Avalos in the
backseat of his patrol car while the keys were in the ignition and
the engine running while he visited with a person who lived in the
neighborhood,” that as a result “Avalos escaped from confinement in
the rear seat, commandeered the patrol car, and sped away,” and
that “Wilson acted willfully, deliberately, or with reckless
disregard for Mr. Rios’ constitutional rights when, with knowledge
of Reymundo Avalos’s previous attempts to flee police custody,
Officer Wilson left Mr. Avalos unattended in an operative police
unit.” It is not alleged that in so leaving the vehicle unattended
Wilson knew or believed that Avalos would likely drive the vehicle
“. . . we hold that a ‘special relationship’ arises
between a person and the state only when this person is
involuntarily confined against his will through the
affirmative exercise of state power. Absent this
‘special relationship,’ the state has no duty to protect
nor liability from failing to protect a person under the
due process clause of the Fourteenth Amendment from
violence at the hands of a private actor.” (emphasis
added)
does not constitute an across-the-board preclusion of application
of the “state-created danger” theory in every conceivable factual
context.
11
to the Del Rio Port of Entry or would more likely endanger anyone
there as opposed to any other member of the general public in or
around the streets of Del Rio or its environs. In fact, the
contrary is to be inferred by the allegations that the “Police
Department . . . proceeded to channel Reymundo Avalos towards the
International Bridge” and that the police officers pursuing the
“stolen” patrol car driven by Avalos “had opportunities to divert
or disable the vehicle, but failed to do so.” It is not alleged
Wilson participated in the pursuit of Avalos or requested
assistance from any Customs Officers in intercepting Avalos or that
he had anything to do with the wording or transmission of the “all
points alert” or the failure to “clearly inform” Customs Officers
that the vehicle was a police department “official marked patrol
car.” There is no allegation that any alleged action or failure to
act on the part of Wilson was taken by him with the actual purpose
or intention of causing injury to anyone, much less Rios whom it is
not alleged Wilson in any way knew or even knew of.
Our decisions make clear that the facts alleged do not show
that Wilson’s conduct violated any constitutional right. In Saenz
v. Heldenfels Bros. Inc., 183 F.3d 389 (5th Cir. 1999), the
plaintiffs were injured when a (private actor) drunk drove his
truck into the plaintiffs’ oncoming vehicle, and we held there was
no constitutional violation on the part of a senior deputy sheriff
12
who had ordered his junior deputy not arrest or investigate (as the
junior wanted to) the truck driver, whom both believed to be drunk
as he sat in his vehicle (just in front of the deputies) at a stop
sign for some 15 minutes and was known to be “always drunk” and
“stopped for that” and had eventually pulled away making “a wide
right turn.” “A few minutes later” the drunk drove his truck into
the plaintiffs’ vehicle. Id. at 390. Relying on DeShaney, we held
that the allegations did not “state a constitutional claim.” Id.
at 391. We rejected application of the state-created danger theory
stating that the defendant senior deputy “was neither aware of an
immediate danger facing a known victim, nor did he use his
authority to prevent the appellants from receiving aid. This
‘state-created danger’ theory is inapposite without a known
victim,” and that a state officer “cannot offend due process by
permitting an intoxicated driver to remain on the highway, thereby
increasing the risk of harm to unidentified and unidentifiable
members of the public.” Id. at 392. The same principles apply
here and dictate the conclusion that Wilson’s conduct violated no
constitutional right.
We made a similar holding in Morin v. Moore, 309 F.3d 316 (5th
Cir. 2002), where the son of defendant police officer Moore shot
the plaintiffs using an AK-47 assault rifle which officer Moore had
procured from the Police Department and stored in his son’s bedroom
13
notwithstanding that he, and the defendant police officer who
furnished him the weapon, knew that the son was a psychologically
unstable drug user who revered Nazi ideology, and officer Moore,
the night before the shooting, had kicked his son’s former
girlfriend out of his house, knowing both that she had a new
boyfriend and that the son was looking for the new boyfriend (a
plaintiff victim of the shooting). We affirmed the district
court’s Rule 12(b)(6) dismissal of the complaint, noting that “the
allegations in this case do not show specific knowledge of a harm
to a known victim.” Id. at 323.7
Relatedly, we have rejected section 1983 liability in
instances where the alleged deliberate indifference of police
allowed a prisoner or prisoners to injure an officer. In Hogan v.
City of Houston, 819 F.2d 604 (5th Cir. 1987), a pre-DeShaney
decision, we affirmed a Rule 12(b)(6) dismissal of a section 1983
complaint alleging that “certain policies” of the City and its
Chief of Police respecting “procedures in the prisoner intake
facility, allowed a prisoner to grab another officer’s gun and
shoot [plaintiff, officer] Hogan with it” and that such policies
7
See also Lester v. City of College Station, 103 Fed. App.
814 (5th Cir. 2004) (“even if it is assumed that the state-created
danger theory applies, liability exists only if the state actor is
aware of an immediate danger facing a known victim” and does not
extend to “all foreseeable victims”).
14
“‘manifest deliberate indifference to or conscious disregard’ for
the safety of officers . . . on the part of the [defendants] City
and [its] Chief of Police.” Id. We held no constitutional
violation was alleged.
In deJesus Benavides v. Santos, 883 F.3d 385 (5th Cir. 1989),
one of our first decisions to consider DeShaney, we affirmed the
Rule 12(b)(6) dismissal of a section 1983 complaint by county jail
guards who while on duty and unarmed were shot by prisoners
attempting to escape; defendants were the sheriff, employer of the
guards, as well as the county commissioners and county judge. The
complaint alleged that the sheriff had been warned by the DEA
nearly two weeks before that a jailbreak was imminent and was also
aware of a persistent pattern on contraband smuggling into the
jail, but nevertheless the defendants, in “callous indifference” to
the safety of the guards, failed to take any appropriate action to
prevent or adequately prepare against, or protect the guards from,
the attempted escape and accompanying inmate violence. We held
that dismissal was required under DeShaney’s general rule that “‘a
State’s failure to protect an individual against private violence
simply does not constitute a violation of the Due Process Clause.’”
Id., 883 F.3d at 387 (quoting DeShaney, 109 S.Ct. at 1004). We
likewise noted that DeShaney “confirms” our earlier holding in
Hogan. Id., 883 F.3d at 387. Both Leffall, 28 F.3d at 528, and
15
our en banc opinion in Walton, 44 F.3d at 1304, rely on deJesus
Benavides for our holdings that there was no constitutional
violation when state actors were deliberately indifferent to, and
wrongfully failed to protect from private violence, individuals
with whom the state was not in the requisite special relationship
described in DeShaney.
These decisions – Saenz, Morin, Hogan, and deJesus Benavides
– were all rendered before Scanlan and (except for Hogan) after
DeShaney, and they plainly dictate the conclusion that Wilson’s
alleged conduct violated no constitutional right of Rios’s; nothing
in Scanlan, however it is interpreted, can change that and we are
bound to follow those pre-Scanlan decisions.8
We conclude that no constitutional violation on the part of
Wilson was alleged and that accordingly the district court should
have granted, and erred by denying, Wilson’s Rule 12(b)(6) motion
8
The rule in this circuit is that where two previous
holdings or lines of precedent conflict the earlier opinion
controls and is the binding precedent in this circuit (absent an
intervening holding to the contrary by the Supreme Court or this
court en banc). See, e.g., Billiot v. Puckett, 135 F.3d 311, 316
(5th Cir. 1998). The binding force of earlier opinions extends to
alternative holdings but not to obiter dictum. In Re Hearn, 376
F.3d 447, 453 & n.5 (5th Cir. 2004). However, “no panel is
empowered to hold that a prior decision applies only on the limited
set of facts set forth in that opinion,” U.S. v. Smith, 354 F.3d
390, 399 (5th Cir. 2003), and a prior panel’s explication of the
rules of law governing its holdings may not generally be
disregarded as dictum. Gochicoa v. Johnson, 238 F.3d 278, 286 n.11
(5th Cir. 2000).
16
to dismiss the section 1983 claims against him on the basis of
qualified immunity.
Chief Herrera
The complaint alleges absolutely no facts whatever regarding
Chief Herrera, either by name or by position (such as “Chief” or
“Chief of Police”), except that he “resides in Del Rio, Texas,” and
“[a]t all relevant times he was the Chief of the City Police
Department” and, along with Wilson and “[t]he officers and
employees of the City,” was “at all times relevant acting in bona
fide pursuance of general authority to perform for the City on the
subjects and matters to which their acts relate and are imputed to
the City.”
There is no vicarious or respondeat superior liability of
supervisors under section 1983. Thompkins v. Belt, 828 F.2d 298,
303-04 (5th Cir. 1987). “Rather, a plaintiff must show either the
supervisor personally was involved in the constitutional violation
or that there is a ‘sufficient causal connection’ between the
supervisor’s conduct and the constitutional violation.” Evett v.
Detntff, 330 F.3d 681, 689 (5th Cir. 2003). It is facially evident
that this test cannot be met if there is no underlying
constitutional violation.9 Breaux v. City of Garland, 205 F.3d
9
Even apart from this deficiency, the complaint alleges
nothing on the part of Herrera other than the fact that he was
17
150, 161 (5th Cir. 2000) (“the fact that Plaintiff’s First
Amendment rights were not actually infringed exonerates Holified
from supervisory liability”). We have held that we “use the same
standard in assessing an individual supervisor’s liability under §
1983" as that used “in assessing a municipality’s liability”
thereunder. Doe v. Taylor ISD, 15 F.3d 443, 453 (5th Cir. 1994)
(en banc) (see also id. at 454, supervisor’s deliberate
indifference to subordinate’s wrongdoing must have “caused a
constitutional injury to the” plaintiff). In Collins v. City of
Harker Heights, 112 S.Ct. 1061 (1992), the Court held that “proper
analysis requires us to separate two different issues when a
section 1983 claim is asserted against a municipality: (1) whether
plaintiff’s harm was caused by a constitutional violation, and (2)
if so, whether the City is responsible for that violation.” Id. at
1066 (emphasis added). Collins went on to hold that because there
was no underlying constitutional violation,10 Rule 12(b)(6)
dismissal was proper even though (as the Court assumed arguendo)
“the allegations in the complaint are sufficient to provide a
Chief of Police “at all relevant times.” That itself renders the
complaint insufficient to state a § 1983 claim against Herrera.
10
The plaintiffs’ decedent, a City employee, lost his life
because the City, despite being on notice of the risks,
systematically and intentionally failed to provide minimal safety
training and equipment required by state law.
18
substitute for the doctrine of respondeat superior as a basis for
imposing liability on the City for the tortious conduct of its
agents.” Id. at 2068.11 See also DeShaney, 109 S.Ct. at 1007 n.10
(because the county employee social workers did not violate child’s
constitutional rights by failing to protect him from private actor
violence “we have no occasion to consider . . . whether the
allegations in the complaint are sufficient to support a § 1983
claim against the county . . .”); City of Los Angeles v. Heller,
106 S.Ct. 1571, 1573 (1986) (no case “authorizes the award of
damages against a municipal corporation based on the actions of one
of its officers when . . . the officer inflicted no constitutional
harm. If a person has suffered no constitutional injury at the
hands of the individual police officer, the fact that the
departmental regulations might have authorized the use of
constitutionally excessive force is quite beside the point”); City
of Oklahoma v. Tutle, 105 S.Ct. 2427, 2436 n.8 (1985). And,
clearly controlling on this issue is our above discussed decision
in Saenz where, citing Heller, we rejected recovery sought against
the county on the basis of its alleged “custom or policy permitting
11
See also id. at 1067-68: stating that in Canton v. Harris,
109 S.Ct. 1197 (1989), “we concluded that if a city employee
violates another’s constitutional rights, the city may be liable if
it had a policy or custom of failing to train its employees and
that failure to train caused the constitutional violation.”
(emphasis added).
19
Gonzales to interfere with junior officers’ attempts to apprehend
drunk drivers” because we held that, under DeShaney, Deputy
Gonzalez’s preventing the arrest of the drunk driver (who minutes
later ran into plaintiffs) did not violate plaintiffs’
constitutional rights. Saenz, 183 F.3d at 392-93.12
Finally, the complaint fails to state a claim against Chief
Herrera for yet another separate and independent reason. We have
frequently held that supervisor liability under section 1983
requires a showing of the supervisor’s “deliberate indifference to
the known or obvious fact that such constitutional violations would
result” and “[t]hat ‘generally requires that a plaintiff
12
The only training or supervision deficiencies even
generally alleged in the complaint are those relating to
“containment of prisoners in custody,” “safe handling of
individuals in custody,” and the requirement that the operator of
a motor vehicle not leave it unattended without stopping the
engine, locking the ignition and removing the key from the
ignition. These relate only to Wilson’s alleged conduct which we
hold did not violate the Constitution.
It is also alleged that “City Police Department” thereafter
did “channel” the fleeing Avalos “towards the International
Bridge,” “had opportunities to divert or disable” the stolen patrol
car “but failed to do so,” and did not “clearly” inform Customs
officers that vehicle was “an official marked patrol car.” None of
these actions or omissions are alleged to be improper; nor is it
alleged that any of such matters resulted from any police
department custom or policy or inadequate training or supervision,
nor is any custom or policy or inadequate (or other) training or
supervision in relation to any of such matters alleged. Nor do any
of such allegations referenced in this paragraph state a
constitutional violation. See County of Sacramento v. Lewis, 118
S.Ct. 1708 (1998); DeShaney; Saenz.
20
demonstrate at least a pattern of similar violations.’” Johnson v.
Deep East Texas Regional Narcotics, 379 F.3d 293, 309 (5th Cir.
2004). See also, e.g., Estate of Davis v. City of North Richland
Hills, 406 F.3d 375, 381 (5th Cir. 2005); Burge v. St. Tammany
Parish, 336 F.3d 363, 370 (5th Cir. 2003); Cousin v. Small, 325
F.3d 627, 637 (5th Cir. 2003). Here there is no allegation of any
prior incident in which any arrestee or prisoner ever commandeered
(or even attempted to commandeer) a police car, much less that any
such ever resulted in any injury to another person. Nor is any
other fact alleged which would tend to indicate that Chief Herrera
had the deliberate indifference necessary for supervisory
liability.
We conclude that no constitutional violation on the part of
Chief Herrera is alleged,13 and that accordingly the district court
13
We also note that plaintiffs, after receiving certain
documentary discovery (including police department incident reports
concerning the subject events of June 30, 2002), and subsequently
having taken the deposition of a police Lieutenant Lissner who came
upon Avalos while he was still in Wilson’s vehicle and later
pursued Avalos after he escaped in Wilson’s vehicle, moved in June
2004 to file an amended complaint in which the only change
mentioned in the motion (the proposed amended complaint is not in
the record) is the dropping of Chief Herrera as a defendant and the
adding of Lissner as a defendant. The motion asserts that “Police
Chief Herrera was not involved in the arrest and chase of Reymundo
Avalos. Thus, Plaintiffs have no reason to nor intention of
continuing to pursue their claims against Police Chief Herrera” and
that the motion should be granted “because the amended pleading is
appropriate to dismiss a party against whom Plaintiffs has [sic] no
claim.” The district court did not rule on the motion and was
21
should have granted, and erred by denying, Herrera’s Rule 12(b)(6)
motion to dismiss the section 1983 claims against him on the ground
of qualified immunity.
CONCLUSION
Because the facts alleged in the complaint, taken in the light
most favorable to plaintiffs, do not show that either Wilson or
Herrera violated Rios’s federal constitutional rights, the district
court should have granted, and erred in overruling, the qualified
immunity based Rule 12(b)(6) motion of Wilson and Herrera as to
Rios’s section 1983 claims against them; and the district court’s
order overruling that motion is accordingly hereby REVERSED. As
claims against the City and state law claims against Wilson and
Herrera remain, the case is remanded for further proceedings
consistent herewith.
REVERSED and REMANDED.
apparently unaware of it as is not mentioned in the court’s July 14
order overruling the 12(b)(6) motions (or in subsequent clerical
correction thereof). After the court’s July 14 order plaintiffs in
effect withdrew the request to amend and asserted to the court that
“in light of this court’s order of July 14, 2004, Chief Herrera
should not be dismissed at the present time” but that “Lt. Lissner”
should be made “an additional Defendant along with Defendants
Officer Wilson and Chief Herrera.” So far as the record reflects
there has been no ruling making Lt. Lissner a party.
22