Baker v. Putnal, 94-60790

Citation75 F.3d 190
Decision Date15 February 1996
Docket NumberNo. 94-60790,94-60790
PartiesWendell C. BAKER, Sr., et al., Plaintiffs-Appellants, v. Michael PUTNAL, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Robert T. Saunders, Bellaire, TX, Frederick K. Wilson, Houston, TX, for Appellants.

George W. Vie, III, John Eckel, Mills, Shirley, Eckel & Bassett, Galveston, TX, for City of Galveston, Dale Rogers, Freddie Poor.

Anthony G. Brocato, Jr., James Ludlum, Jr., Ludlum & Ludlum, Austin, TX, for Michael Putnal.

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 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 caused them to sustain both mental anguish and substantial pecuniary loss. Their complaint 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.

                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 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 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 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 § 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.

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...

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