Bush v. Viterna

• Decision Date: 04 August 1986
• Docket Number: No. 85-1560,85-1560
• Citation: 795 F.2d 1203
• Parties: John BUSH, et al., Plaintiffs-Appellants, v. Robert O. VITERNA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1203

795 F.2d 1203

John BUSH, et al., Plaintiffs-Appellants, v. Robert O. VITERNA, et al., Defendants-Appellees.

No. 85-1560.

United States Court of Appeals Fifth Circuit.

Aug. 4, 1986.

Steven Ney, ACLU Nat. Prison Project, Elizabeth Alexander, Washington, D.C., James C. Harrington, Ed Sherman, Univ. of Texas School of Law, Austin, Tex., for plaintiffs-appellants.

F. Scott McCown, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for Viterna.

Steve Bickerstaff, Ann Clarke Snell, Austin, Tex., for amicus--Texas Ass'n of Counties.

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

Before GEE and HIGGINBOTHAM, Circuit Judges, and HARVEY, ^* Senior District Judge.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In 1975 the Texas legislature created the Texas Commission on Jail Standards and charged it to implement a policy "that all county jail facilities in the state conform to certain minimum standards of construction, maintenance, and operation." Tex.Rev.Civ.Stat.Ann. art. 5115.1 Sec. 1 (Vernon Supp.1986). The Commission was assigned to promulgate rules and standards and was given certain enforcement powers. A class of all current and future inmates in Texas' county jails sued under 42 U.S.C. Sec. 1983, asking a federal district court to compel the Commission to discharge its state-imposed duties. The district court granted a motion to dismiss, rejecting the contention that the Commission's alleged breach of duties imposed upon it by state law could give rise to a constitutional wrong. We are persuaded that the effort by Texas to improve conditions at its 254 county jails is not subject to federal superintendence. Because the asserted claim is an illegitimate effort to seek federal enforcement of state law, we affirm the district court's dismissal of the action.

I

Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), made it plain that the eleventh amendment bars enforcement in federal court of state-law claims against states. The plaintiff class does not contend otherwise. Conceding that the district court lacks the power to entertain a suit seeking enforcement of state law, the class asserts that the breach, by a state actor, of a state-imposed duty to correct constitutional wrongs is itself a constitutional wrong. Thus, while this class concededly had no claim against any agency with state-wide powers until Texas created the Commission in an effort to remedy deficiencies in its county jails, the undertaking to remedy is said to create liability for failures to carry out that undertaking. Termed a theory of "supervisory liability," the assertion is that the Commission is a legal cause of constitutional wrongs that it fails to prevent or correct. The class points to language in the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, that provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any ... person within the jurisdiction [of the United States] to the deprivation of any rights ... secured by the Constitution and laws, shall be liable to the party injured...." (emphasis added). Alluding, somewhat vaguely, to alleged violations of the eighth and fourteenth amendments, the class urges that its theory of supervisory liability has been adopted by this court in Sims v. Adams, 537 F.2d 829 (5th Cir.1976), Miller v. Carson, 563 F.2d 757 (5th Cir.1977), and Howard v. Fortenberry, 723 F.2d 1206 (5th Cir.), vacated in part, 728 F.2d 712 (5th Cir.1984).

The defendants deny that state law makes the Commission responsible for enforcing federal constitutional standards; that if the statute is unclear in this critical respect, we should abstain to allow the state courts to interpret the statute, thus perhaps avoiding the constitutional issue; and that this case is controlled by Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The Fifth Circuit precedent cited by the class is said to be either distinguishable or inapplicable in light of the Supreme Court's decision in Pennhurst.

II

When the Texas legislature created the Commission, the authority to supervise, direct, or control the actual daily operation of each county jail lay with the elected sheriff of the county, subject to a superintending role of the county commissioner's court, the basic legislative body in each Texas county. Neither the statute nor its legislative history suggests an intent to oust the counties from their historic role.

The statute creating the Commission, Tex.Rev.Civ.Stat.Ann. art. 5115.1 (Vernon Supp.1986), empowers that entity to act in several ways. In doing so it distinguishes between grants to the Commission of discretionary authority to act and impositions of mandatory duties to act. For example, the law provides that the Commission shall establish minimum standards for the physical plant of county jails, for custodial care, and for staffing and services at those facilities. Tex.Rev.Civ.Stat.Ann. art. 5115.1 Sec. 9(a)(1)-(3) (Vernon Supp.1986). Similarly, the Commission is obliged to require and review reports about the jails from county sheriffs and commissioners and to report any noncompliance with Commission standards or state law to those local officials and to the governor. Id. Secs. 9(a)(8)-(9), 11(b). When the statute turns to enforcement, however, it gives the Commission broad powers without imposing any obligation to act. See id. Sec. 11(d) ("If the [county] commissioners or sheriff does not comply [with commission orders] within the time granted by the commission, the commission may, by order, prohibit the confinement of prisoners in the noncomplying jail.") (emphasis added); id. Sec. 11(f) ("The commission, in lieu of closing a county jail, may institute an action [in state court] in its own name to enforce, or enjoin the violation of, its orders, rules, or procedures, or of Article 5115 Revised Civil Statutes of Texas, 1925, as amended.") (emphasis added). ¹

It appears from this statutory scheme that while the legislature imposed upon the Commission a duty to promulgate standards and investigate compliance, it did not impose a legal obligation to enforce those, or any other, standards. It follows that the asserted causal relationship between the Commission's breach of a state-imposed duty and any constitutional inadequacy of a particular county jail must rest upon the absence of announced regulation. Assuming, for now, both that the Commission has breached its statutory duties and that some county jails are constitutionally inadequate, the claimed causation is problematic. The counties were obliged to maintain their jails in conformity with constitutional standards before the Commission was created. It is unclear how any failure of the Commission to announce its own standards either causes or fails to halt any violations by the counties of the United States Constitution. The class asserts that the Commission has no discretion to promulgate and enforce standards that fail to protect inmates' constitutional rights. We can assume that the Commission lacked the discretion to set constitutionally inadequate standards in a way that would purport to authorize constitutional violations; and, as we read the statute, the Commission was indeed duty bound by state law to announce some regulations. ² But these assumptions are not enough to sustain the position of the class in this case. By its own theory of supervisory liability, a causal nexus must be found between the alleged breach of duty, viz. failure to promulgate or inadequate promulgation of standards and regulations, and the asserted constitutional violations. With the statutory structure in hand, we turn to a closer examination of the proffered theory of "supervisory liability."

III

A

We start by stating what supervisory liability cannot be: a mask for respondeat superior. The Commission cannot be vicariously liable for the acts of county officials in the maintenance of their jails--such attribution of liability is not permitted by Sec. 1983, which imposes liability for constitutional wrongs exclusively upon persons who have participated in the wrongful acts. Monell v. Department of Social Services, 436 U.S. 658, 690-95, 98 S.Ct. 2018, 2035-38, 56 L.Ed.2d 611 (1978). To be sure, such participation can consist in formulating a policy pursuant to which subordinates deprive a person of his constitutional rights. Imposition of liability upon such policy makers bears a superficial resemblance to vicarious liability in that it visits persons who were superiors of the primary actors, but its real nature is quite different. The wrong is the policy itself--thus, given a causal nexus between the policy and the injury, liability is direct rather than attributed.

Without quarreling with any of this, the class takes the argument one step further. It asserts that a state official's failure to carry out his state-imposed duties can be a basis for a constitutional claim if there is a causal nexus between the failure to act and the constitutional wrong. The liability of the jailer who "fails to correct" a constitutionally inadequate jail is said to be an example. The jailer's duty to operate the jail is found in state law, and he is liable under Sec. 1983 for resulting deprivations of constitutional rights. This example, which correctly illustrates one principle of federal constitutional law, can be misleading if used carelessly for purposes of analogy. In the example, state law identifies the jailer as the person responsible for the prisoners. The class appears to acknowledge as much by asserting that the role of state law in its supervisory theory is to identify the relevant state actors. Texas law, however, identifies the county sheriffs and commissioners courts, not the Commission on Jail Standards, as the keepers of the jails. Tex.Rev.Civ.Stat.Ann. arts. 5115, 5116 (Vernon Supp.1986)....