Lopez v. Houston Independent School Dist., 86-2569

• Decision Date: 26 May 1987
• Docket Number: No. 86-2569,86-2569
• Parties: 39 Ed. Law Rep. 21 Margaret LOPEZ, Individually and as Next Friend of John Adam Lopez, Plaintiff- Appellant, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 351

817 F.2d 351

39 Ed. Law Rep. 21

Margaret LOPEZ, Individually and as Next Friend of John Adam

Lopez, Plaintiff- Appellant, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees.

No. 86-2569.

United States Court of Appeals, Fifth Circuit.

May 26, 1987.

Larry Watts, Houston, Tex., for plaintiff-appellant.

M. David Frock, Douglas W. Lyons, Jr., Bracewell & Patterson, Jeffrey J. Horner, Kelly Frels, Houston, Tex., for defendants-appellees.

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

Before POLITZ, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Margaret Lopez, as next friend of John Adam Lopez, appeals from summary judgment dismissing claims under 42 U.S.C. Sec. 1983 and pendent state claims against the Houston Independent School District and the individual defendants, Charles Bradford, Richard House, and Clifford Kelton, sued both in their individual and official capacities. Lopez alleged that defendants deprived John of his liberty interest by failing to stop several students from beating him unconscious on a school bus and by not training its bus drivers to handle such incidents. We conclude that summary judgment was properly entered for the school district for lack of a fact issue regarding a Monell custom, and in favor of two supervisors for lack of proof of their direct acts. We conclude, however, that plaintiffs may proceed to trial against the bus driver.

I

A

When reviewing a summary judgment, we must view the evidence in the same manner as the district court, asking whether there is a genuine issue of material fact and whether the movant was entitled to judgment as a matter of law. Celotex Corp. v. Catrett, --- U.S. ----, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). ¹ Summary judgment is appropriate where, after adequate time for discovery, a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 2552-53. We state the facts in the most favorable way to the party attacking the summary judgment.

B

On May 17, 1982, John Adam Lopez and his sister, Diane Lopez, were riding home from Clifton Middle School on an H.I.S.D. school bus driven by Charles Bradford, a substitute driver. While the bus was on Interstate 610, three students attacked David Cardenas, a student seated next to John. The students also hit John during this melee, knocking him unconscious.

Although several students repeatedly asked Bradford to stop the bus and the fight, he did not intervene. Bradford continued driving until he came to the Ella Boulevard exit, where he pulled off of the freeway. The deposition testimony differed as to the duration of and number of fights. According to Diane Lopez, there was only one "fight" and it lasted 25 to 30 minutes before Bradford pulled the bus over. Bradford testified, however, that there were two separate fights, that he stopped the bus and intervened in the first fight, and that he stopped the bus as soon as possible when the second fight began.

Upon exiting the freeway, Bradford stopped at a convenience store rather than taking John to the hospital located across Ella Boulevard. The hospital was immediately available upon exiting the freeway. To gain access to the convenience store, Bradford had to make a U-turn on Ella Boulevard. Again, testimony, before the district court in depositions, differed about what happened. According to Diane, Bradford did not check on John at that time, but instead went directly to a telephone booth. Bradford testified that he first checked the child, saw that the child was unconscious but not bleeding, and then left to call his supervisor, Floyd Hopkins.

While Bradford talked to Hopkins, Diane and two other students carried John across the street to the hospital. Bradford saw them, but did not attempt to help or to stop them. Nor did he go to the hospital to see if he was needed after talking to Hopkins. Bradford waited at the bus with the other students for Rick House, the H.I.S.D. Transit Safety Superintendent, to arrive. After waiting for about two hours to no avail, he took the remaining students home.

Lopez sued the H.I.S.D., Bradford, House and Clifford Kelton, the H.I.S.D. Director of Transportation, on behalf of herself and John in federal district court, asserting Sec. 1983 claims and pendent state claims. The district court granted summary judgment in favor of the defendants, dismissing all federal claims. The district court found Lopez's claim to be barred by the statute of limitations, and found that John failed to state a Sec. 1983 claim because the school district's negligence did not expose John to a danger focused on an identifiable group or individual. The district court also found that any failure of the school district to adopt safety plans mandated by the state implicated none of John's constitutional rights. Finally, the district court dismissed John's state law claims without prejudice because "the scope of permissible state law claims may be expanded before the statute of limitations runs against [John]."

Lopez complains to us only about the dismissal of John's asserted Sec. 1983 claims. We treat first the claim against the H.I.S.D., and then turn to the individual defendants.

II

A

The H.I.S.D. is a local governmental body under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), sufficiently distinct from the state to be outside the eleventh amendment. See Kingsville Independent School District v. Cooper, 611 F.2d 1109, 1112 (5th Cir.1980). As a local government unit, it may not be held liable for a deprivation of a constitutional right solely because its employee is a tort-feasor, nor can it be held liable under Sec. 1983 on a respondeat superior theory. See Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 1297, 89 L.Ed.2d 452 (1986).

In Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984) (en banc), we established a standard to govern the imposition of liability under Sec. 1983 against local government units:

A [local government unit] is liable under Sec. 1983 for a deprivation of rights protected by the Constitution or federal laws that is inflicted pursuant to official policy.

Official policy is:

1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the [local government unit]'s lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or

2. A persistent widespread practice of [local government unit] officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents [local government unit] policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the [local government unit] or to an official to whom that body had delegated policy-making authority. Actions of officers or employees of a [local government unit] do not render the [local government unit] liable under Sec. 1983 unless they execute official policy as above defined.

To survive the H.I.S.D.'s motion for summary judgment, Lopez must identify and produce some evidence of "(1) a policy (2) of the [H.I.S.D.]'s policymaker (3) that caused (4) the plaintiff to be subjected to a deprivation of constitutional right." Palmer v. City of San Antonio, 810 F.2d 514, 516 (5th Cir.1987). To hold the H.I.S.D. liable, the policy or custom "must be the moving force of the constitutional violation." Id. (quoting Monell, 436 U.S. at 694, 98 S.Ct. at 2037, 56 L.Ed.2d 637).

B

Lopez's complaint alleged that the safety instruction provided by the H.I.S.D. was inadequate in that it failed to respond to the problem of student discipline on buses, that the H.I.S.D. delegated policy-making authority to its bus drivers and was therefore liable for the actions of Bradford, and that, even if the training were adequate, the instructions were not followed in this instance. We treat first the contention that Bradford failed to follow H.I.S.D. safety instructions, and then turn to the contention that H.I.S.D. policy was inadequate.

If the training were adequate, but not followed, the H.I.S.D. could not be held liable under Sec. 1983 for an episodic violation of its safety instructions. See Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir.1985) (error in execution, not adoption, of policy does not provide an affirmative link between the policy and the violation). As we will explain, there is no evidence in the record to suggest that the fight on the bus was not an episodic event.

But Lopez argues that the H.I.S.D.'s training policy was inadequate and a cause of John's injury, and that if Bradford had received better training he could have somehow prevented the harm to John. Obviously, such a claim faces substantial problems of causation. In Palmer, we noted that:

An "inadequate" training program alone is not ordinarily the moving force behind an injured plaintiff's harm, because the [employee] who injures the plaintiff does not rely upon inadequate training as tacit approval of his conduct. It is not enough that the [local government unit] could, but does not, reduce the risk of harm to the plaintiff.

810 F.2d at 516; see also City of Springfield v. Kibbe, --- U.S. ----, 107 S.Ct. 1114, 1121, 94 L.Ed.2d 293 (1987) (O'Connor J., dissenting) (inadequacy of training may serve as basis for Sec. 1983 liability only where the failure to train amounts to a reckless disregard for or deliberate indifference to the rights of the persons within the city's domain). Of course, the adequacy of training depends upon the task--here the problems confronting a driver of a school bus. As we understand Lopez's argument, violence on the buses was common and two related consequences...