Collins v. City of Harker Heights, Tex.

• Decision Date: 02 November 1990
• Docket Number: No. 89-8029,89-8029
• Citation: 916 F.2d 284
• Parties: Myra Jo COLLINS, Plaintiff-Appellant, v. The CITY OF HARKER HEIGHTS, TEXAS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 284

916 F.2d 284

59 USLW 2315

Myra Jo COLLINS, Plaintiff-Appellant, v. The CITY OF HARKER HEIGHTS, TEXAS, Defendant-Appellee.

No. 89-8029.

United States Court of Appeals,

Fifth Circuit.

Nov. 2, 1990.

Sanford Ray Rosen, San Francisco, Cal., Don Busby, Busby & Associates, P.C., Temple, Tex., for plaintiff-appellant.

Roy Lee Barrett, Stuart G. Smith, Naman, Howell, Smith & Lee, Waco, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, DAVIS, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

Myra Jo Collins appeals the Fed.R.Civ.P. 12(b)(6) dismissal of her Sec. 1983 action, which alleges that the failure of the City of Harker Heights, Texas, to adequately train its employees was a policy of deliberate indifference to her deceased husband's constitutional rights. Pursuant to controlling Fifth Circuit precedent, because an abuse of government power is not implicated, a Sec. 1983 action does not lie. Accordingly, we AFFIRM.

I.

According to Collins' complaint, her husband began working in July 1988, for the City in its sanitation and sewer department, including entering sewer mains through manholes when there was a sewer line problem. In October 1988, as instructed, he entered a manhole to clear a line and died of asphyxia before he could be removed.

Collins alleged that: her husband's death was caused by the City's policy of not providing safety training to its employees; there was a custom for safety equipment to either not be taken to, or used at, the job site; no warnings or instructions were given on the hazards in entering sewer lines or how to protect against them; several months before her husband's death, his supervisor entered a manhole and was rendered unconscious, placing the City on notice of the risks in sending its employees into the lines; the City systematically and intentionally failed to provide the equipment, training or instruction required by the Texas Hazard Communication Act; and, inter alia, this pattern of behavior by the City was a custom and policy of deliberate indifference to the Fifth and Fourteenth Amendment rights of its employees. ¹

The district court granted a Rule 12(b)(6) dismissal, expressly taking into consideration the applicable causation standard ("deliberate indifference to constitutional rights") set by City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), but noting that an "abuse of governmental power" was lacking, stating first:

The question of a government policy demonstrating deliberate indifference toward the rights or well being of its citizens through a failure to train is normally dealt with in an entirely different context. Usually the issue is associated with decisions made by law-enforcement, prison or social services officials. In this case the deceased was not in the custody of the [City], he was an employee.

(Citations omitted.) It next ruled that a municipality's improper action against its employee does not constitute ipso facto deprivation of a constitutional right; and held that because a constitutional right had not been violated, an action under Sec. 1983 could not lie.

II.

The question presented in this case is whether a plaintiff seeking recovery under Sec. 1983 for injury to a governmental employee must demonstrate, inter alia, that the conduct in issue was an abuse of governmental power. More particularly, does alleged wrongful conduct by government--in its capacity as employer rather than as a governing authority--that deprives its employee of an alleged constitutional right give rise to a Sec. 1983 action? We base our holding on the abuse of government power standard, separate from the constitutional deprivation element or standard. The district court appears to have merged those two standards, which are among those necessary for bringing Sec. 1983 into play here. In reviewing this Rule 12(b)(6) dismissal, we will keep them separate. ²

Section 1983 provides in relevant part:

Every person who under color of any statute, ordinance, regulation, custom or usage, of any state ... subjects or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, ... secured by the Constitution and laws, shall be liable to the party injured in an action at law....

42 U.S.C. Sec. 1983. In Monell v. Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that a Sec. 1983 action could lie against a municipality only where it "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers," or where "constitutional deprivations [occurred] pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decision making channels." Id. at 690-91, 98 S.Ct. at 2035-36.

Earlier, in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Court rejected the idea that "the Due Process Clause of the Fourteenth Amendment and Sec. 1983 make actionable many wrongs inflicted by government employees which had heretofore been thought to give rise only to state-law tort claims." Id. at 699, 96 S.Ct. at 1159. Furthermore, mere negligence is insufficient to establish municipal liability under Sec. 1983. Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986).

As stated fairly recently by the Supreme Court in the above-cited City of Canton, Ohio v. Harris, the "first inquiry in any case alleging municipal liability under Sec. 1983 is ... whether there is a direct causal link between a municipal policy or custom, and the alleged constitutional deprivation." 109 S.Ct. at 1203. City of Canton concerned a Sec. 1983 action for violation of an alleged Fourteenth Amendment right to receive proper medical attention while in post-arrest police custody, arising in part out of inadequate training of the custodial police officers concerning when to summon medical care for a detainee. For such failure to train cases, the Supreme Court noted there was "substantial division among the lower courts as to what degree of fault must be evidenced by the municipality's inaction before liability will be permitted" and held that "inadequacy of police training may serve as the basis for Sec. 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Id. at 1204 (emphasis by Court).

City of Canton does not permit all municipal failure to train actions to lie under Sec. 1983, as is reflected by the Court's restatement of its holding:

Consequently, while claims such as [the detainee's]--alleging that the city's failure to provide training to municipal employees resulted in the constitutional deprivation she suffered--are cognizable under Sec. 1983, they can only yield liability against a municipality where that city's failure to train reflects deliberate indifference to the constitutional rights of its inhabitants.

Id. at 1206. City of Canton arises out of the use, or abuse, of government power; the holding springs from a citizen being held in custody after arrest, without the ability to control or choose a necessary course of action and being dependent upon the government to do so. The holding establishes only the degree of fault that must be alleged and proved in Sec. 1983 actions against a municipality in certain failure to train cases; it does not hold that all such cases alleging the requisite causation lie under Sec. 1983. In this Circuit, there is a separate standard that must also be satisfied--an abuse of government power. While this element is in many ways similar to, and often blends with, other necessary elements for a Sec. 1983 action, such as deprivation of a constitutional right, and springs from the same sources as the deprivation element, it is separate nonetheless.

Keeping these standards in mind, we turn to Collins' complaint, in which she makes the requisite Monell and City of Canton allegations, charging that the City's "custom and policy of deliberate indifference towards the safety of its employees" violated the constitutional rights of her deceased husband. This notwithstanding, our holding is grounded in the abuse of power standard, which pertains to the decedent's relationship with the City--one of employer and employee, rather than one in which the City, as government, acted against the decedent, as governed. Therefore, it is not necessary to reach another of the standards, or elements, necessary for a Sec. 1983 action--whether there was a deprivation of a constitutional right. ³

Collins contends that pursuant to City of Canton, her claim is sufficient to withstand Rule 12(b)(6) dismissal. But, as discussed above, Collins reads too much into City of Canton. It pertained to cases concerning use of governmental power on the governed, to government qua government, consistent with the reminder in Daniels that

[o]ur Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society.

We have previously rejected reasoning that " 'would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the states,' " Paul v. Davis, 424 U.S. 693, 701 [96 S.Ct. 1155, 1160, 47 L.Ed.2d 405] (1976), quoted in Parratt v. Taylor, 451 U.S. , at 544 [101 S.Ct. 1908, 1917, 68 L.Ed.2d 420].

474 U.S. at 332, 106 S.Ct. at 665. Collins has received payments pursuant to the worker's compensation law of Texas; ⁴ and we express no opinion whether she might have a cause of action under state law. ⁵ In any event, and as held repeatedly in controlling precedent in this Circuit, she does not have a Sec. 1983 claim...