Baker v. Putnal

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 §

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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.

14
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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