United States Court of Appeals,
Fifth Circuit.
No. 94-60790.
Wendell C. BAKER, Sr., et al., Plaintiffs-Appellants,
v.
Michael PUTNAL, et al., Defendants-Appellees.
Feb. 15, 1996.
Appeal from the United States District Court for the Southern
District of Texas.
Before KING, SMITH and STEWART, Circuit Judges.
STEWART, Circuit Judge:
This is a civil rights action filed under 42 U.S.C. § 1983 and
based on allegations that the defendants deprived plaintiffs of
certain constitutional rights in the shooting death of Wendell C.
Baker, Jr. Plaintiffs appeal the district court's final judgment
granting the defendants' motion to dismiss. Because the district
court considered summary judgment evidence, we view its order as
one granting summary judgment and conclude that the court erred in
finding no genuine issue of material fact as to the claim officer
Michael Putnal used excessive force. We affirm as to the remainder
of the court's final judgment.
BACKGROUND
Sergeant Michael Putnal, is a police officer for the City of
Galveston ("the City"). On March 14, 1992, he was on duty at R.A.
Apffel Park in Galveston where a large gathering of people were
celebrating spring recess from colleges and universities. While
Putnal and his fellow officers patrolled the park and beach area
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fighting broke out. Two witnesses told Putnal that someone had
entered the crowd with a pistol-gripped shotgun.
Minutes later, the officers heard gunfire which sent the crowd
scurrying. As Putnal moved to investigate, two people grabbed him
and gestured toward a red car which they said contained the
shooters. As Putnal approached the car he saw Wendell Baker, Jr.,
and another man sitting in a truck parked on the beach. As Putnal
neared the truck, Baker, Jr., who was sitting in the passenger's
seat, turned in Putnal's direction. Putnal shot and killed Baker,
Jr. Afterwards, police recovered a Browning automatic .380 caliber
pistol under the passenger's seat of the truck.
The parents of Baker, Jr., Wendell C. Baker, Sr., and Zoe A.
Baker, and Michelle Sapenter as next friend of Baker, Jr.'s minor
son, Ashton D. Baker (collectively "the Bakers") filed this action
alleging several civil rights violations under the Constitution and
42 U.S.C. § 1983. Specifically, the Bakers pled that: (1) Putnal
violated Baker, Jr.'s Fourth Amendment right to be free from
excessive force, his Eighth Amendment right to be free from cruel
and unusual punishment, and his Fourteenth Amendment due process
and Equal Protection rights; (2) Putnal's superiors failed to
provide Putnal with adequate training and supervision, which led to
the deprivation of Baker, Jr.'s constitutional rights; and (3) the
City's failure to provide Putnal with adequate training proximately
caused the violation of Baker, Jr.'s constitutional rights. The
Bakers also brought state law claims, complaining that defendants'
acts deprived them of Baker, Jr.'s society and companionship and
2
caused them to sustain both mental anguish and substantial
pecuniary loss. Their complaint, in addition to Putnal, named the
City of Galveston, Freddie Poor, and Dale P. Rogers as defendants.
Poor was chief of the Galveston police department at the time of
the shooting. The current chief, Rogers, was then a captain and
Chief of Patrol.
The defendants filed a joint motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6). The district court permitted
discovery limited to the issue of qualified immunity for Putnal and
his superiors. After the court denied a motion by the plaintiffs
to amend their complaint, the defendants filed separate motions for
summary judgment pursuant to Rule 56. Putnal's superiors stated in
their motion that they continued to assert the earlier joint motion
to dismiss.
The district court granted the dismissal motion while
expressly declining to rule on the pending motions for summary
judgment. With respect to the Fourth Amendment claim, the court
held that the Bakers had failed to satisfy the heightened pleading
standard required to overcome qualified immunity. Furthermore, it
found that Putnal acted properly and that his training was adequate
to the crisis at the park. The court then held that the Bakers had
no cognizable action under the Eighth Amendment because Baker, Jr.,
had not been arrested and had not been convicted, precluding Eighth
Amendment punishment analysis. Finally, the court held that Putnal
did not deprive Baker, Jr., of his right to life under the
Fourteenth Amendment because circumstances justified Putnal's use
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of deadly force.
As to Putnal's superiors, the court held that they were
entitled to qualified immunity because Putnal had not acted
improperly, Putnal's training was adequate, and the Bakers had not
shown that the superiors' actions or omissions rose to a level of
deliberate indifference. The court held that the City of Galveston
was liable neither for deliberate indifference nor callous
disregard. Furthermore, because Putnal did not violate the
Constitution, no wrongdoing could be attributed to the City.
Because the court dismissed the Bakers' § 1983 claims, it also
dismissed the pendent state law claims without prejudice. The
Bakers timely appealed.
DISCUSSION
Jurisdiction
Putnal opens his argument by saying that we have no
jurisdiction to address the § 1983 claims asserted by plaintiffs on
behalf of the estate of Wendell C. Baker, Jr., since the Bakers'
notice of appeal does not refer to the estate. Putnal relies on
Colle v. Brazos County, Tex., 981 F.2d 237 (5th Cir.1993), in which
a panel of this court considered whether jurisdiction obtained over
plaintiffs designated by the abbreviation, "et al.," or over only
the party specifically named in the notice of appeal.
Colle does not apply. Putnal's argument does not concern the
omission of a party from the notice of appeal but, rather, the
designation of the capacities in which the plaintiffs bring this
lawsuit. This court previously has made this distinction and found
4
that a party's failure to designate all of the capacities in which
he brings suit does not defeat jurisdiction. King v. Otasco, Inc.,
861 F.2d 438, 443 (5th Cir.1988). Accordingly, we do have
jurisdiction over the Bakers' claims as representatives of the
decedent's estate.
Standing
The other defendants—City, Poor, and Rogers—argue that the
plaintiffs have no standing under § 1983 to recover for
deprivations of "the love, society, comfort, protection, services,
and support" of Baker, Jr., since these claims are not
constitutionally guaranteed rights. Section 1983, they continue,
is not an available remedy for the general violations of tort law.
Instead, the right to sue is for personal violations of the
plaintiff's constitutional rights. By this reasoning, the district
court should have dismissed all claims brought by the Bakers on
their own behalf.
The first fallacy in defendants' argument is that the Bakers
bring this claim only under § 1983. The Bakers also allege these
deprivations under Texas law; and Texas law allows such recovery.
Grandstaff v. City of Borger, 767 F.2d 161, 172 (5th Cir.1985),
cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 686 (1987).
Secondly, defendants are wrong that only the person whose
constitutional rights have been violated may bring an action under
§ 1983. On the contrary, it is the law of this circuit that
individuals who are within the class of people entitled to recover
under Texas's wrongful death statute have standing to sue under §
5
1983 for their own injuries resulting from the deprivation of
decedent's constitutional rights. Tex.Civ.Prac. & Rem.Code Ann. §
71.004 (West 1986); Rhyne v. Henderson County, 973 F.2d 386, 391
(5th Cir.1992). The statute clearly recognizes the right of the
surviving children and parents of the deceased to bring an action
for the benefit of all. Therefore, Baker, Jr.'s parents and minor
son are within the class of people entitled to recover.
Heightened Pleading Standard
The Bakers argue that the district court erred by applying the
heightened pleading standard we enunciated in Elliott v. Perez, 751
F.2d 1472 (5th Cir.1985), in ruling on the motion to dismiss the
claims against Putnal and his superiors. They cite the Supreme
Court's decision in Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160,
122 L.Ed.2d 517 (1993) as overruling Elliott. Defendants counter
that the heightened pleading standard as applied to § 1983 claims
against government officials survived Leatherman, citing our en
banc decision in Schultea v. Wood, 47 F.3d 1427 (5th Cir.1995) (en
banc).
Defendants are correct that Leatherman does not preclude the
heightened pleading requirement in actions against individual
government defendants:
[U]nlike various government officials, municipalities do not
enjoy immunity from suit—either absolute or qualified—under §
1983. In short, a municipality can be sued under § 1983, but
it cannot be held liable unless a municipal policy or custom
caused the constitutional injury. We thus have no occasion to
consider whether our qualified immunity jurisprudence would
require a heightened pleading in cases involving individual
government officials.
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Leatherman, 507 U.S. at 166-67, 113 S.Ct. at 1162. It is
undisputed that Leatherman overruled Elliott with respect to § 1983
claims against municipalities, and the district court expressly did
not apply the heightened pleading standard to the Bakers' claims
against the City of Galveston. Although Schultea was decided after
the district court's opinion in this case, it does not establish
any new law with respect to the applicability of the heightened
pleading standard. Rather, it only clarifies where Leatherman left
this standard with respect to government officials:
"[T]he Court in Leatherman concluded that the heightened
pleading requirement of Elliott could not be applied in a §
1983 suit against a municipality, reserving the question of
whether it might survive in cases against public officials....
We do not abandon the insistence in Elliott v. Perez that a
complaint must do more than allege conclusions. Rather, we
embrace it ..."
Schultea, 47 F.3d at 1432, 1434. As the district court noted, this
standard requires more than conclusory assertions. It requires
claims of specific conduct and actions giving rise to a
constitutional violation. Thus, the Bakers must plead more than,
as the district court found, "conclusory allegations fail[ing] to
set forth specific facts showing that the use of force by Defendant
Putnal was excessive to the need and objectively unreasonable."
The Bakers also allege that even if Leatherman permits a
heightened standard to be maintained for public officials sued as
individuals, no heightened standard can be allowed for actions
against individual defendants in their official capacities. This
is true, and the Supreme Court has explained that official-capacity
lawsuits are typically an alternative means of pleading an action
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against the governmental entity involved, in this case the City of
Galveston. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 361, 116
L.Ed.2d 301, 309 (1991). Therefore, any claims against Poor and
Rogers in their official capacities should be treated as claims
against the City.
The Bakers allege that the district court erred in granting
the defendants' motion to dismiss by failing to limit its focus to
the allegations in the pleadings and consider these same
allegations in the light most favorable to them as the nonmoving
party. Furthermore, even if the court committed no such error, it
did err in not permitting them to amend their complaint before
entering the dismissal with prejudice. Their amendment, if
allowed, would have corrected any prior deficiencies. We address
the request to amend the complaint first.
The Amendment
We review a district court's denial of a motion to amend for
abuse of discretion. Whitaker v. City of Houston, 963 F.2d 831,
836 (5th Cir.1992). Two months after the defendants had filed
their motion to dismiss the district court held a scheduling
conference during which counsel for the Bakers indicated their
desire to amend the complaint. When the court asked what the
amendment would add, counsel responded that he could not give a
complete answer because discovery was not yet complete but that he
did intend to add "a couple of other Texas statutes that we feel
would be appropriate and applicable for recovery." The court then
stated that it would not "allow any amendments at this juncture"
8
because it wanted to resolve the immunity issue under § 1983 first.
The court put off those amendments until it could dispose of the §
1983 issues, likely because the court anticipated dismissing the
pendent state law claims along with the civil rights claims. The
record relates no other request by the Bakers for leave to amend
during the six months between the defendants' filing of their
motion to dismiss and the court's order granting the motion.
Furthermore, the Bakers have not clued us as to precisely what
allegations they would have added to their § 1983 claims had they
been given leave to amend. Under these circumstances it cannot be
said that the district court denied the Bakers the opportunity to
amend their complaint with respect to their civil rights claims,
much less that the denial prevented them from satisfying the
heightened pleading standard.
Motion to Dismiss
The next issue is whether we should review the district
court's order granting defendants' motion to dismiss as an order
granting summary judgment because the district court failed to
accept the allegations of the complaint as true and relied on
evidence outside the pleadings in ruling on the motion.
The Bakers contend that the district court improperly made
factual findings in ruling on defendants' motion to dismiss. In so
doing, the district court considered more than the pleadings, a
course reserved for summary judgment. Further the court failed to
follow Rule 12(b)(6)'s stricture of accepting all well-pleaded
facts as true and viewing the allegations of the complaint in a
9
light favorable to the nonmoving party. Accordingly, the Bakers
pray that we vacate the district court's order granting the motion
to dismiss and remand this case. The City and Putnal's superiors
counter that the district court merely made marginal references to
evidence outside the pleadings, but the basis for the dismissal was
clearly Rule 12(b)(6). Alternately, they ask that even if we find
that the court went beyond the scope of Rule 12(b)(6), that we yet
affirm the court's decision as an order granting summary judgment.
In considering a motion to dismiss for failure to state a
claim under Rule 12(b)(6), the district court must accept all
well-pleaded facts as true and view them in the light most
favorable to the plaintiff. McCartney v. First City Bank, 970 F.2d
45, 47 (5th Cir.1992). Also, the court may not look beyond the
pleadings in ruling on the motion. Id. The district court failed
to comply with this standard with respect to defendant Putnal. In
their complaint, the Bakers stated that:
Plaintiffs deny that Wendell C. Baker, Jr., had committed any
acts of aggression toward defendant Putnal, but even if
Wendell C. Baker, Jr., had possession of, or was holding a
pistol, he did not point the pistol in the direction of or
towards defendant Putnal.
In reciting the facts of the case, however, the district court
stated:
Defendant Putnal saw the passenger [Wendell C. Baker, Jr.] was
holding a blue steel semi-automatic handgun in his right hand
and a blue steel magazine in his left hand. The magazine was
loaded with bullets.... The passenger then turned in the
direction of Defendant Putnal as he simultaneously loaded the
magazine into the gun, leveling his gun at Defendant Putnal.
In effect, the trial court adopted portions of the defendants'
claims as fact without acknowledging any contradiction with the
10
complaint. Thus, the court failed to accept as true the Bakers'
allegation that Baker, Jr., did not point a gun at Putnal. In so
doing, the court failed to apply the standards of Rule 12(b)(6).
Dismissal under these circumstances was error.
The district court justified its decision on the basis of the
heightened pleading requirement of qualified immunity cases:
This Court is aware of the widely divergent allegations of the
facts set forth by the Plaintiffs and the Defendants. This
Court will not engage in weighing the facts as it would in a
Motion for Summary Judgment. Rather, this Court need only
evaluate the legitimate evidence necessary to support
qualified immunity.
In its memorandum and order the court called the complaint's
allegations conclusory, failing to set forth "specific facts
showing that the use of force by Defendant Putnal was excessive to
the need and objectively unreasonable." Concerning the dispute as
to whether Baker, Jr., had a gun when Putnal approached, the court
relied on Putnal's sworn affidavit testimony that Baker, Jr., did,
in fact, have a gun. The court discounted the Bakers' assertions
as founded upon "vague, unarticulated beliefs about the Decedent's
character." Indeed, the court stated that it "found that Defendant
Putnal acted properly in the precise circumstances of this case."
The court later relied on this "finding" in dismissing the claims
against Putnal's superiors and the City. Clearly, these references
to material outside the pleadings were not "stray" or "irrelevant"
and were hardly marginal.
In Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d
90 (1974), the Supreme Court said that if the defendant asserts
qualified immunity, the complaint should generally not be dismissed
11
for failure to state a claim because the issue of whether immunity
applies is a factual question related to the merits. Id. at 250,
94 S.Ct. at 1693. Other circuits have held that they will allow a
12(b)(6) motion for dismissal on the grounds of qualified immunity,
but only if it is supported by the allegations of the complaint
itself. See Fortner v. Thomas, 983 F.2d 1024, 1028 (11th
Cir.1993); Green v. Maraio, 722 F.2d 1013, 1018-19 (2d Cir.1983).
These holdings are consistent with the procedural framework we
outlined in Schultea for evaluating qualified immunity in a § 1983
case. Schultea says that a plaintiff must first "support[ ] his
claim with sufficient precision and factual specificity to raise a
genuine issue as to the illegality of defendant's conduct at the
time of the alleged acts." Schultea, 47 F.3d at 1434. If the
plaintiff meets this standard, the court may then limit discovery
to the issue of qualified immunity. Id. Subsequently, the court
can "determine whether the case can proceed and consider any
motions for summary judgment under Rule 56." Id. In this case,
the district court allowed discovery on the issue of qualified
immunity and proceeded to use that evidence to dismiss the case
under 12(b)(6).
As stated in Federal Rule of Civil Procedure 12(c), where a
district court grants a motion styled as a motion to dismiss but
bases its ruling on facts developed outside the pleadings, we
review the order as an order granting summary judgment. Estate of
Smith v. Tarrant County Hosp. Dist., 691 F.2d 207, 208 (5th
Cir.1982); see also Geiger v. United States, 707 F.2d 157, 160
12
(5th Cir.1983). We review the granting of summary judgment de
novo, applying the same criteria used by the district court.
Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.1994);
Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir.1994); Dorsett v.
Board of Trustees of State Colleges & Universities, 940 F.2d 121,
123 (5th Cir.1991). First, we consult the applicable law to
ascertain the material factual issues. King v. Chide, 974 F.2d
653, 655-56 (5th Cir.1992). We then review the evidence bearing on
those issues, viewing the facts and inferences to be drawn
therefrom in the light most favorable to the nonmoving party.
Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir.1994);
FDIC v. Dawson, 4 F.3d 1303, 1306 (5th Cir.1993), cert. denied, ---
U.S. ----, 114 S.Ct. 2673, 129 L.Ed.2d 809 (1994). Summary
judgment is proper "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law." Fed.R.Civ.P. 56(c).
Summary Judgment as to § 1983 Claims Against Officer Putnal
In Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114
L.Ed.2d 277 (1991), the Supreme Court presented the analytical
framework for determining whether a plaintiff's allegations are
sufficient to overcome a defendant's defense of qualified immunity
asserted in a motion for summary judgment. First, the court must
determine whether the plaintiff has alleged a violation of a
clearly established constitutional right. Id. at 231, 111 S.Ct. at
13
1792-93. If the plaintiff fails this step, the defendant is
entitled to qualified immunity. If she is successful, the issue
becomes the objective legal reasonableness of the defendant's
conduct under the circumstances. Anderson v. Creighton, 483 U.S.
635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987); Salas v.
Carpenter, 980 F.2d 299, 305-06 (5th Cir.1992). Qualified immunity
protects "all but the plainly incompetent or those who knowingly
violate the law." See Malley v. Briggs, 475 U.S. 335, 341, 106
S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).
The Bakers assert that Putnal shot and killed Wendell Baker,
Jr., without adequate provocation. To support their allegation,
they provide the sworn testimony of three witnesses who state that
the decedent took no threatening action toward Putnal as the
officer approached the truck. Indeed, their affidavits suggest
that Baker, Jr., may have barely had an opportunity to see Putnal
before Putnal fired his gun. Putnal, on the other hand, tells us
that Baker, Jr., was holding a semi-automatic pistol, loaded the
pistol with ammunition, and leveled it at him from the passenger's
side of the vehicle, thereby justifying deadly force.
There is also a dispute between the accounts of Putnal and
the Bakers's witnesses as to whether Putnal said anything to Baker,
Jr., before he turned toward Putnal. Whether Putnal ordered Baker,
Jr., to "freeze" or to drop the pistol before Baker, Jr., turned
toward him and whether Baker, Jr., was even holding the pistol or
pointing it at Putnal are certainly issues of fact material to
whether Putnal's actions were excessive and objectively reasonable.
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The only uncontroverted evidence is that there was a good deal of
confusion on the beach and that Baker, Jr., at least began to face
Putnal from his position in the truck. Chaos on the beach and
Baker, Jr.'s mere motion to turn and face Putnal are not compelling
reasons to find that Putnal's use of force was not excessive as a
matter of law. There are simply too many factual issues to permit
the Bakers' § 1983 claims to be disposed of on summary judgment.
We also are concerned with the district court's finding that
Putnal acted reasonably given the information from the County of
Galveston Medical Examiner's Office, obtained through discovery.
According to the report, Baker, Jr., received four gunshot wounds,
one to the left arm, one through the right upper back, one through
the left flank, and one through the left temple. The nature of the
wounds indicate that Baker, Jr., was not facing Putnal when he was
shot. The number of shots and the nature of the wounds raise a
serious question as to the reasonableness of his conduct, more of
a question of fact than a court may dispose of on summary judgment.
Therefore, we reverse the district court's order granting summary
judgment as to the Bakers' claims asserting Fourth and Fourteenth
Amendment due process violations and remand for trial.
Pre-trial detainees may not bring a cause of action based on
the Eighth Amendment. Thibodeaux v. Bordelon, 740 F.2d 329, 334
(5th Cir.1984). It protects only those who have been convicted.
Ingraham v. Wright, 430 U.S. 651, 664, 97 S.Ct. 1401, 1408-09, 51
L.Ed.2d 711 (1977). Inasmuch as Baker, Jr., was not incarcerated
at the time of his killing, his representatives have no cognizable
15
action under the Eighth Amendment. Therefore, the district court's
order granting summary judgment on this claim was proper.
As to the alleged Fourteenth Amendment equal protection
violation, the Bakers made no assertion to support such a claim.
We therefore uphold the granting of summary judgment on this claim.
Summary Judgment as to Putnal's Superiors
The Bakers also contend that Putnal's superiors are liable
under § 1983 because their failure to provide proper supervision
and training of Putnal led to the deprivation of Baker, Jr.'s
constitutional rights. According to the complaint, defendants
"Poor and Rogers were responsible for the training of all police
officers ... in the use of firearms and in the performance of their
duties as police officers." Putnal's superiors counter that they
are entitled to qualified immunity because the Bakers have not
asserted a constitutional violation due to inadequate training or
supervision.
For a police chief to be held liable under § 1983 there must
be some connection between the chief's action and the alleged
constitutional violation. Hinshaw v. Doffer, 785 F.2d 1260, 1263
(5th Cir.1986). The plaintiff must show that: (1) the police
chief failed to supervise or train the officer, (2) a causal
connection existed between the failure to supervise or train and
the violation of the plaintiff's rights, and (3) such failure to
supervise or train amounted to gross negligence or deliberate
indifference. Id.
The complaint states, "Defendants Poor and Rogers trained
16
defendant Putnal in the use of firearms in accordance with the
statutes, ordinances, regulations, customs, and usages of defendant
City and the State of Texas." The Bakers's own pleading
essentially concedes that they cannot satisfy the requirements for
holding Chiefs Poor and Rogers liable for Baker, Jr.'s death.
Further, the district court, which had considered any evidence
proffered by the Bakers in response to the pending motions for
summary judgment, found that Putnal's training was adequate with
respect to the situation at issue.
The summary judgment evidence does not support the claims of
inadequate training or deliberate indifference. At the time of the
incident, Poor was the Chief of Police for Galveston and Rogers was
the area incident commander on the day of the Baker, Jr., shooting.
The Bakers offer the affidavit of a purported criminal justice
expert, James D. Ginger, Jr., as evidence of the alleged inadequacy
of the supervision and training provided by Chiefs Poor and Rogers.
However, Ginger's statement is more aspersion than evidence. It
forms unsubstantiated conclusions regarding the defendants' role in
creating purportedly outdated policy and providing inadequate
manpower and supervision for controlling a crisis of the nature
that erupted the day of the shooting. For example, Ginger calls
then Captain Rogers's failure to assume command and control on the
day of the shooting a proximate cause of Putnal's reaction. Yet
there is no accompanying proof that Rogers knew of the gravity of
the situation developing at Apffel Park or could have responded in
time, much less evidence of any deliberate indifference overcoming
17
qualified immunity.
Supervisory officials may be held liable only if: (i) they
affirmatively participate in acts that cause constitutional
deprivation; or (ii) implement unconstitutional policies that
causally result in plaintiff's injury. Mouille v. City of Live
Oak, Tex., 977 F.2d 924, 929 (5th Cir.1992). Plaintiffs have
failed to show that Poor and Rogers acted in any way to violate
Baker, Jr.'s constitutional rights; we therefore affirm the
district court's judgment that the Bakers did not overcome
defendants' Poor and Rogers's defense of qualified immunity.
Summary Judgment as to the City of Galveston
Finally, the Bakers contend that the City is liable under §
1983 because Baker, Jr.'s death was "proximately caused by reason
of the carelessness, negligence, and gross negligence and/or
recklessness of defendant City, its agents, employees, and police
employees." To support this proposition, the complaint lists
fourteen acts or omission by the City, most of which involve the
City's alleged failure to provide its officers, in general, and
Putnal, in particular, with adequate training. The City only
argues that the Bakers have failed to state a claim and, so, only
addresses the facts alleged in the pleadings. We must go further
in the context of summary judgment review.
Municipalities are not vicariously liable for the actions of
their employees under § 1983. Municipal liability inures only when
the execution of a local government's policy or custom causes the
injury. Monell v. New York City Dep't of Social Serv., 436 U.S.
18
658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611, 638 (1978). In
order to hold a municipality liable under § 1983 for its employees'
acts, a plaintiff must show that a policy of hiring or training
caused those acts. Such a showing requires proof that (1) the
training or hiring procedures of the municipality's policymaker
were inadequate, (2) the municipality's policymaker was
deliberately indifferent in adopting the hiring or training policy,
and (3) the inadequate hiring or training policy directly caused
the plaintiff's injury. City of Canton v. Harris, 489 U.S. 378,
385-87, 109 S.Ct. 1197, 1205-07, 103 L.Ed.2d 412, 424-26 (1989);
Benavides v. County of Wilson, 955 F.2d 968, 972 (5th Cir.1992).
Where the alleged policy is one of inadequate police training, the
plaintiff can only satisfy the first element of municipal liability
if the failure to train satisfies the "deliberate indifference"
standard that applies to supervisor liability. Benavides, 955 F.2d
at 972.
On summary judgment, plaintiffs did not meet their burden.
Their only evidence as to policy, again, comes from the Ginger
affidavit, and it is no more damaging to the City, despite the
absence of a qualified immunity defense, than it is to defendants
Poor and Rogers.
The Bakers did not raise the issue of the dismissal of their
state law claims on appeal, so we do not address it now.
CONCLUSION
For the foregoing reasons, we REVERSE the district court's
order dismissing the claims against Putnal and REMAND for further
19
proceedings consistent with this opinion. We AFFIRM as to the
remaining defendants. We order each party to bear its own costs on
this appeal.
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