Rios v. City of Del Rio TX

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT March 27, 2006

Charles R. Fulbruge III

Clerk

No. 04-50774

RICARDO RIOS, II; MARISELA RIOS,

Individually and as next friend

of their minor children, Ricardo

Rios III, Laura Yvette Rios and

Ivn Alejandro Rios,

Plaintiffs-Appellees,

versus

THE CITY OF DEL RIO, TEXAS; ET AL,

Defendants,

WESLEY WILSON; MANUEL HERRERA,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Texas

Before GARWOOD, SMITH and DEMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

This is an appeal from the denial of a motion to dismiss on

the basis of qualified immunity.

Ricardo Rios II (Rios), joined by his wife and minor children,

filed this suit in November 2003 against the City of Del Rio,

Texas, its Chief of Police Manuel Herrera (Herrera), and its police

officer Wesley Wilson (Wilson), seeking to recover, under 42 U.S.C.

§ 1983 and state law, damages for personal injuries sustained when,

on the evening of June 30, 2002, Rios, then on duty as a U.S.

Customs Enforcement Officer at the Del Rio Port of Entry, was

struck by a City Police Department vehicle being driven by an

escaping City prisoner, Reymundo Avalos (Avalos). The defendants

jointly answered and filed a Rule 12(b)(6) motion to dismiss,

Wilson and Herrera claiming qualified immunity. Following denial

of the motion in July 2004, Wilson and Herrera timely brought this

interlocutory appeal under Mitchell v. Forsyth, 105 S.Ct. 2806

(1985).1

The complaint asserts that “Mr. Rios was subjected to

negligence, injury, gross misconduct and damages from the deadly

use of force in violation of rights guaranteed to him by the Fourth

and Fourteenth Amendments.” It alleges that at all relevant times

1

The magistrate judge ruled on the motion to dismiss, the

parties having agreed to proceed before him under 28 U.S.C. §

636(c). The magistrate judge amended the order to correct a

clerical error, noting that the Fourth Amendment claim against the

City was dismissed. The City also filed a timely notice of appeal

but subsequently on its motion we dismissed its appeal.

2

Wilson and Herrera were, respectively, City of Laredo police

officer and Chief of Police, acting within the course and scope of

their employment, and – under the heading “FACTS” – the following:

“4.2 On June 30, 2002, Mr. Rios was thirty-six years old

and he was on-duty as a U.S. Customs Enforcement Officer

at the Del Rio Port of Entry along the United States

border with Acuna, Coah., Mexico when he was struck and

severely injured by a City Police Department patrol unit

driven by an escaping prisoner, Mr. Reymundo Avalos.

4.3 Customs Officers at the Del Rio Port of Entry,

including Mr. Rios, were responding to the City Police

Department’s request for assistance in intercepting a car

chase which commenced at 617 Holt Street.

4.4 Mr. Reymundo Avalos was an adult person who had a

criminal history in the City including a penchant or

tendency to escape police custody which was well known to

the police officers of the City Police Department, and he

was known by the nickname around the City Police

Department as “Houdini.”

4.5 On the evening of June 30, 2002, Reymundo Avalos,

had been placed under arrest by Officer Wesley Wilson.

4.6 Officer Wilson improperly left the prisoner Reymundo

Avalos in the backseat of his patrol vehicle while the

keys were in the ignition and the engine running while he

visited with a person who lived in the neighborhood.

4.7 Mr. Avalos escaped from confinement in the rear sat,

commandeered the patrol car, and sped away.

4.8 The City Police Department issued an “all points

alert” on the escaping prisoner, Reymundo Avalos, and

proceeded to channel Reymundo Avalos towards the

International Bridge.

4.09 The City Police Department did not clearly inform

the Del Rio Port of Entry Customs Officers that the

vehicle being driven by Reymundo Avalos was an official

marked patrol car of the City Police Department.

3

4.10 Del Rio Police Department officers pursued the

patrol car being driven by Reymundo Avalos and had

opportunities to divert or disable that vehicle, but

failed to do so.

4.11 As the stolen vehicle driven by Reymundo Avalos

approached the open lane, the vehicle violently struck

Mr. Rios.

4.12 Mr. Rios sustained devastating injuries from the

violent impact by that vehicle . . . .”

It is also alleged that “[t]he City” was “acting with

deliberate indifference . . . breaching their duty to provide

Officer Wilson with adequate supervision and training regarding the

reasonable containment of prisoners in custody” and that “[t]he

facts stated” in the “Facts” section of the complaint “constitute

intentional, deliberate, and conscious indifference to well-known

standards in the management of the City Police Department in the

training on, demonstrated proficiency in, and the safe handling of

individuals in custody . . . .”

Additional allegations are that “Officers of the City Police

Department were aware of previous attempts of the prisoner to flee

from their custody,” “were aware that their actions increased

danger to others including Mr. Rios” and “were aware of department

and state law” [citing Tex. Trans. Code § 545.404] “that an

operator of a motor vehicle may not leave a vehicle unattended

without” stopping the engine, locking the ignition and removing the

key from the ignition. It is also alleged that “Defendants acted

4

with deliberate indifference to Mr. Rios’ safety, by creating an

environment which would not have existed for the crime to occur

otherwise,” and that

“7.1 . . . with an intentional, a deliberate, and a

conscious indifference to the lives and safety of other

persons, including Mr. Rios, the City adopted or

maintained, through its final policymakers,

unconstitutional policies and customs, and failed to

implement constitutional and proper policies and

procedures, which proximately caused or resulted din the

violation of the constitutional rights of Mr. Rios . . .

.

7.2 Officer Wilson acted willfully, deliberately,

maliciously, or with reckless disregard for Mr. Rios’

constitutional rights when, with knowledge of Reymundo

Avalos’ previous attempts to flee police custody, Officer

Wilson left Mr. Avalos unattended in an operative police

unit on June 30, 2002.”

DISCUSSION

Standard of Review

Our review of a district court’s decision on a 12(b)(6) motion

is, as we said in Campbell v. City of San Antonio, 43 F.3d 973, 975

(5th Cir. 1995):

“. . . de novo, accepting all well-pleaded facts as true

and viewing those facts in the light most favorable to

[the plaintiff]. Walker v. S. Cent. Bell Tel. Co., 904

F.2d 275, 276 (5th Cir. 1990); Heaney v. United States

Veterans Admin., 756 F.2d 1215, 1217 (5th Cir. 1985). .

. . dismissal [is not proper] ‘“unless it appears beyond

doubt that [the plaintiff] can prove no set of facts in

support of [her] claim which would entitle [her] to

relief.”’ Heaney, 756 F.2d at 1217 (quoting Conley v.

Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101-02, 2 L.Ed.2d

80 (1957)). However, ‘the complaint must contain either

direct allegations on every material point necessary to

5

sustain a recovery . . . or contain allegations from

which an inference fairly may be drawn that evidence on

these material points will be introduced at trial.’ 3

WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1216

at 156-159 (footnote omitted). ‘[A] statement of facts

that merely creates a suspicion that the pleader might

have a right of action’ is insufficient. Id. at 163

(footnote omitted). ‘Dismissal is proper if the

complaint lacks an allegation regarding a required

element necessary to obtain relief . . .” 2A MOORE’S

FEDERAL PRACTICE ¶ 12.07 [2.-5] at 12-91 (footnote

omitted). The court is not required to ‘conjure up

unpled allegations or construe elaborately arcane scripts

to’ save a complaint. Gooley v. Mobil Oil Corp., 851

F.2d 513, 514 (1st Cir. 1988). Further, ‘conclusory

allegations or legal conclusions masquerading as factual

conclusions will not suffice to prevent a motion to

dismiss.’ Fernandez-Montes v. Allied Pilots Ass’n, 987

F.2d 278, 284 (5th Cir. 1993).”2

Where the issue is one of qualified immunity, Saucier v. Katz,

121 S.Ct. 2151 (2001), states the relevant test as follows:

“A court required to rule upon the qualified immunity

issue must consider, then, this threshold question: Taken

2

See also, e.g., Drs. Bethea, Moustoukas v. St. Paul

Guardian Ins., 376 F.3d 399, 403 (5th Cir. 2004) (“conclusory

allegations or legal conclusions masquerading as factual

conclusions”); Taylor v. Books A Million, Inc., 296 F.3d 376, 378

(5th Cir. 2002) (same); Jones v. Alcoa Inc., 339 F.3d 359, 363 n.4

(5th Cir. 2003) (“conclusory allegations or unwarranted deductions

of fact” not accepted as true); Kane Enterprises v. MacGregor

(USA), 322 F.3d 371, 374 (5th Cir. 2003) (same).

And see WRIGHT & MILLER FEDERAL PRACTICE AND PROCEDURE: CIVIL 3d §

1216: “As one district court put the matter: ‘. . . if a pleader

cannot allege definitively and in good faith the existence of an

essential element of his claim, it is difficult to see why this

basic deficiency should not be exposed at the point of minimum

expenditure of time and money by the parties and the court.’” (id.

at 227, 229-30; footnote omitted, quoting Daves v. Hawaiian

Dredging Co., 114 F. Supp. 643, 645 (D.C. Haw. 1953)).

6

in the light most favorable to the party asserting the

injury, do the facts alleged show the officer’s conduct

violated a constitutional right?

. . .

If no constitutional right would have been violated were

the allegations established, there is no necessity for

further inquiries concerning qualified immunity.” Id. at

2156.3

Constitutional violation; state-created danger

The complaint makes plain that Rios asserts a Fourteenth

Amendment substantive due process right to be free from state

deprivation of his bodily integrity liberty interest.4 In DeShaney

v. Winnebago County, 109 S.Ct. 998 (1989), the Court held that

“[a]s a general matter . . . a State’s failure to protect an

individual against private violence simply does not constitute a

violation of the Due Process Clause,” but recognized an exception

respecting individuals in certain “special relationships” with the

state, id. at 104, an exception which it described and explained as

follows:

3

See also, e.g., Morin v. Moore, 309 F.3d 316, 319 (5th Cir.

2002) (in appeal from order denying Rule 12(b)(6) motion raising

qualified immunity our review is “de novo, accepting all well-pled

facts as true”).

4

While the complaint also references the Fourth Amendment,

none of the facts alleged even suggest that Rios was ever subjected

to a search or seizure by anyone, and the Fourth Amendment is

plainly not implicated. See County of Sacramento v. Lewis, 118

S.Ct. 1708, 1715 (1998). See also id. at n.7. Rios does not argue

otherwise.

7

“In the substantive due process analysis, it is the

State’s affirmative act of restraining the individual’s

freedom to act on his own behalf – through incarceration,

institutionalization, or other similar restraint of

personal liberty – which is the ‘deprivation of liberty’

triggering the protections of the Due Process Clause, not

its failure to act to protect his liberty interests

against harms inflicted by other means.” Id. at 1006.

Rios was injured from being struck by the patrol car “driven

by an escaping prisoner, Mr. Reymundo Avalos” who had earlier

“commandeered” the vehicle after having “escaped from confinement

in the rear seat . . . and sped away.” Obviously, Avalos is a

purely private party not in any sense acting under color of law,

and nothing in the complaint suggests otherwise. Moreover, it is

likewise obvious that Rios was not incarcerated or

institutionalized or under “other similar restraint of personal

liberty” so as to be within the noted “special relationship”

exception to DeShaney. Rios does not contend otherwise.

Rather, Rios seeks to invoke another purported exception to

DeShaney, namely what has been referred to as the “state-created

danger” theory. As we noted in McClendon v. City of Columbia, 305

F.3d 314, 327, 330-32 (5th Cir. 2002) (en banc), this court has

frequently spoken of the “state-created danger” theory, and has

discussed its various permutations and requirements as applied in

other circuits, but neither the Supreme Court nor this court has

ever either adopted the state-created danger theory or sustained a

8

recovery on the basis thereof. We have, however, many times

refused to allow recovery sought to be predicated thereunder. See,

e.g., Beltran v. City of El Paso, 367 F.3d 299, 307 (5th Cir. 2004)

(“This court has consistently refused to recognize a ‘state-created

danger’ theory of § 1093 liability”); Rivera v. Houston Independent

School District, 349 F.3d 244, 249 (5th Cir. 2003) (“We have never

recognized state-created danger as a trigger of State affirmative

duties under the Due Process clause”); Piotrowski v. City of

Houston, 237 F.3d 567, 584 (5th Cir. 2001) (“Although this court

has discussed the contours of the ‘state-created danger’ theory on

several occasions, we have never adopted that theory”); Randolph v.

Cervantes, 130 F.3d 727, 731 (5th Cir. 1997) (“The state-created

danger theory has not been adopted in this Circuit”); Johnson v.

Dallas I.S.D., 38 F.3d 198, 201 (5th Cir. 1994) (“no Fifth Circuit

case has yet predicated relief on a state created danger theory”);

Leffall v. Dallas I.S.D., 28 F.3d 521, 530 (5th Cir. 1994) (“We

have found no cases in our circuit permitting § 1983 recovery for

a substantive due process violation predicated on a state-created

danger theory”).

Rios contends, however, that Scanlan v. Texas A&M Univ., 343

F.3d 533 (5th Cir. 2003), adopted the state-created danger theory.

It is certainly not clear that Scanlan purports to do so. There

the panel primarily addressed the district court’s error in

9

considering matters outside the complaint in granting a Rule

12(b)(6) dismissal. The Scanlan panel did cite the Johnson and

Piotrowski opinions respecting what would be required to make out

a state-created danger claim,5 and stated that the plaintiffs had

adequately pled the there referenced required elements thereof;

however, this discussion was introduced by the statement that “this

Court has never explicitly adopted the state-created danger

theory,” Scanlan at 537, and nowhere in the opinion does the court

expressly purport to adopt or approve that theory. At least two

subsequent panels have construed Scanlan as not adopting the state-

created danger theory. See Beltran at 307 (citing McClendon and

Scanlan as examples of our refusal to recognize a state-created

danger theory); Rivera at 249 n.5 (“In Scanlan . . . [d]espite

remanding that case . . . for further proceedings, we did not

recognize the state created danger theory”). We need not, however,

ultimately resolve the meaning of Scanlan because, as explained

below, prior decisions of this court more specifically on point

here than Scanlan (and not cited in Scanlan) are controlling in the

present setting.6

5

Scanlan does not cite McClendon.

6

In this connection we assume, arguendo only, that the en

banc court’s statement in Walton v. Alexander, 44 F.3d 1297, 1306

(5th Cir. 1995), that

10

Officer Wilson

The only conduct, or inaction, alleged respecting Officer

Wilson, and the only fault or wrongdoing sought to be charged to

him, is that on the evening in question, after he had placed Avalos

under arrest, he “improperly left the prisoner . . . Avalos in the

backseat of his patrol car while the keys were in the ignition and

the engine running while he visited with a person who lived in the

neighborhood,” that as a result “Avalos escaped from confinement in

the rear seat, commandeered the patrol car, and sped away,” and

that “Wilson acted willfully, deliberately, or with reckless

disregard for Mr. Rios’ constitutional rights when, with knowledge

of Reymundo Avalos’s previous attempts to flee police custody,

Officer Wilson left Mr. Avalos unattended in an operative police

unit.” It is not alleged that in so leaving the vehicle unattended

Wilson knew or believed that Avalos would likely drive the vehicle

“. . . we hold that a ‘special relationship’ arises

between a person and the state only when this person is

involuntarily confined against his will through the

affirmative exercise of state power. Absent this

‘special relationship,’ the state has no duty to protect

nor liability from failing to protect a person under the

due process clause of the Fourteenth Amendment from

violence at the hands of a private actor.” (emphasis

added)

does not constitute an across-the-board preclusion of application

of the “state-created danger” theory in every conceivable factual

context.

11

to the Del Rio Port of Entry or would more likely endanger anyone

there as opposed to any other member of the general public in or

around the streets of Del Rio or its environs. In fact, the

contrary is to be inferred by the allegations that the “Police

Department . . . proceeded to channel Reymundo Avalos towards the

International Bridge” and that the police officers pursuing the

“stolen” patrol car driven by Avalos “had opportunities to divert

or disable the vehicle, but failed to do so.” It is not alleged

Wilson participated in the pursuit of Avalos or requested

assistance from any Customs Officers in intercepting Avalos or that

he had anything to do with the wording or transmission of the “all

points alert” or the failure to “clearly inform” Customs Officers

that the vehicle was a police department “official marked patrol

car.” There is no allegation that any alleged action or failure to

act on the part of Wilson was taken by him with the actual purpose

or intention of causing injury to anyone, much less Rios whom it is

not alleged Wilson in any way knew or even knew of.

Our decisions make clear that the facts alleged do not show

that Wilson’s conduct violated any constitutional right. In Saenz

v. Heldenfels Bros. Inc., 183 F.3d 389 (5th Cir. 1999), the

plaintiffs were injured when a (private actor) drunk drove his

truck into the plaintiffs’ oncoming vehicle, and we held there was

no constitutional violation on the part of a senior deputy sheriff

12

who had ordered his junior deputy not arrest or investigate (as the

junior wanted to) the truck driver, whom both believed to be drunk

as he sat in his vehicle (just in front of the deputies) at a stop

sign for some 15 minutes and was known to be “always drunk” and

“stopped for that” and had eventually pulled away making “a wide

right turn.” “A few minutes later” the drunk drove his truck into

the plaintiffs’ vehicle. Id. at 390. Relying on DeShaney, we held

that the allegations did not “state a constitutional claim.” Id.

at 391. We rejected application of the state-created danger theory

stating that the defendant senior deputy “was neither aware of an

immediate danger facing a known victim, nor did he use his

authority to prevent the appellants from receiving aid. This

‘state-created danger’ theory is inapposite without a known

victim,” and that a state officer “cannot offend due process by

permitting an intoxicated driver to remain on the highway, thereby

increasing the risk of harm to unidentified and unidentifiable

members of the public.” Id. at 392. The same principles apply

here and dictate the conclusion that Wilson’s conduct violated no

constitutional right.

We made a similar holding in Morin v. Moore, 309 F.3d 316 (5th

Cir. 2002), where the son of defendant police officer Moore shot

the plaintiffs using an AK-47 assault rifle which officer Moore had

procured from the Police Department and stored in his son’s bedroom

13

notwithstanding that he, and the defendant police officer who

furnished him the weapon, knew that the son was a psychologically

unstable drug user who revered Nazi ideology, and officer Moore,

the night before the shooting, had kicked his son’s former

girlfriend out of his house, knowing both that she had a new

boyfriend and that the son was looking for the new boyfriend (a

plaintiff victim of the shooting). We affirmed the district

court’s Rule 12(b)(6) dismissal of the complaint, noting that “the

allegations in this case do not show specific knowledge of a harm

to a known victim.” Id. at 323.7

Relatedly, we have rejected section 1983 liability in

instances where the alleged deliberate indifference of police

allowed a prisoner or prisoners to injure an officer. In Hogan v.

City of Houston, 819 F.2d 604 (5th Cir. 1987), a pre-DeShaney

decision, we affirmed a Rule 12(b)(6) dismissal of a section 1983

complaint alleging that “certain policies” of the City and its

Chief of Police respecting “procedures in the prisoner intake

facility, allowed a prisoner to grab another officer’s gun and

shoot [plaintiff, officer] Hogan with it” and that such policies

7

See also Lester v. City of College Station, 103 Fed. App.

814 (5th Cir. 2004) (“even if it is assumed that the state-created

danger theory applies, liability exists only if the state actor is

aware of an immediate danger facing a known victim” and does not

extend to “all foreseeable victims”).

14

“‘manifest deliberate indifference to or conscious disregard’ for

the safety of officers . . . on the part of the [defendants] City

and [its] Chief of Police.” Id. We held no constitutional

violation was alleged.

In deJesus Benavides v. Santos, 883 F.3d 385 (5th Cir. 1989),

one of our first decisions to consider DeShaney, we affirmed the

Rule 12(b)(6) dismissal of a section 1983 complaint by county jail

guards who while on duty and unarmed were shot by prisoners

attempting to escape; defendants were the sheriff, employer of the

guards, as well as the county commissioners and county judge. The

complaint alleged that the sheriff had been warned by the DEA

nearly two weeks before that a jailbreak was imminent and was also

aware of a persistent pattern on contraband smuggling into the

jail, but nevertheless the defendants, in “callous indifference” to

the safety of the guards, failed to take any appropriate action to

prevent or adequately prepare against, or protect the guards from,

the attempted escape and accompanying inmate violence. We held

that dismissal was required under DeShaney’s general rule that “‘a

State’s failure to protect an individual against private violence

simply does not constitute a violation of the Due Process Clause.’”

Id., 883 F.3d at 387 (quoting DeShaney, 109 S.Ct. at 1004). We

likewise noted that DeShaney “confirms” our earlier holding in

Hogan. Id., 883 F.3d at 387. Both Leffall, 28 F.3d at 528, and

15

our en banc opinion in Walton, 44 F.3d at 1304, rely on deJesus

Benavides for our holdings that there was no constitutional

violation when state actors were deliberately indifferent to, and

wrongfully failed to protect from private violence, individuals

with whom the state was not in the requisite special relationship

described in DeShaney.

These decisions – Saenz, Morin, Hogan, and deJesus Benavides

– were all rendered before Scanlan and (except for Hogan) after

DeShaney, and they plainly dictate the conclusion that Wilson’s

alleged conduct violated no constitutional right of Rios’s; nothing

in Scanlan, however it is interpreted, can change that and we are

bound to follow those pre-Scanlan decisions.8

We conclude that no constitutional violation on the part of

Wilson was alleged and that accordingly the district court should

have granted, and erred by denying, Wilson’s Rule 12(b)(6) motion

8

The rule in this circuit is that where two previous

holdings or lines of precedent conflict the earlier opinion

controls and is the binding precedent in this circuit (absent an

intervening holding to the contrary by the Supreme Court or this

court en banc). See, e.g., Billiot v. Puckett, 135 F.3d 311, 316

(5th Cir. 1998). The binding force of earlier opinions extends to

alternative holdings but not to obiter dictum. In Re Hearn, 376

F.3d 447, 453 & n.5 (5th Cir. 2004). However, “no panel is

empowered to hold that a prior decision applies only on the limited

set of facts set forth in that opinion,” U.S. v. Smith, 354 F.3d

390, 399 (5th Cir. 2003), and a prior panel’s explication of the

rules of law governing its holdings may not generally be

disregarded as dictum. Gochicoa v. Johnson, 238 F.3d 278, 286 n.11

(5th Cir. 2000).

16

to dismiss the section 1983 claims against him on the basis of

qualified immunity.

Chief Herrera

The complaint alleges absolutely no facts whatever regarding

Chief Herrera, either by name or by position (such as “Chief” or

“Chief of Police”), except that he “resides in Del Rio, Texas,” and

“[a]t all relevant times he was the Chief of the City Police

Department” and, along with Wilson and “[t]he officers and

employees of the City,” was “at all times relevant acting in bona

fide pursuance of general authority to perform for the City on the

subjects and matters to which their acts relate and are imputed to

the City.”

There is no vicarious or respondeat superior liability of

supervisors under section 1983. Thompkins v. Belt, 828 F.2d 298,

303-04 (5th Cir. 1987). “Rather, a plaintiff must show either the

supervisor personally was involved in the constitutional violation

or that there is a ‘sufficient causal connection’ between the

supervisor’s conduct and the constitutional violation.” Evett v.

Detntff, 330 F.3d 681, 689 (5th Cir. 2003). It is facially evident

that this test cannot be met if there is no underlying

constitutional violation.9 Breaux v. City of Garland, 205 F.3d

9

Even apart from this deficiency, the complaint alleges

nothing on the part of Herrera other than the fact that he was

17

150, 161 (5th Cir. 2000) (“the fact that Plaintiff’s First

Amendment rights were not actually infringed exonerates Holified

from supervisory liability”). We have held that we “use the same

standard in assessing an individual supervisor’s liability under §

1983" as that used “in assessing a municipality’s liability”

thereunder. Doe v. Taylor ISD, 15 F.3d 443, 453 (5th Cir. 1994)

(en banc) (see also id. at 454, supervisor’s deliberate

indifference to subordinate’s wrongdoing must have “caused a

constitutional injury to the” plaintiff). In Collins v. City of

Harker Heights, 112 S.Ct. 1061 (1992), the Court held that “proper

analysis requires us to separate two different issues when a

section 1983 claim is asserted against a municipality: (1) whether

plaintiff’s harm was caused by a constitutional violation, and (2)

if so, whether the City is responsible for that violation.” Id. at

1066 (emphasis added). Collins went on to hold that because there

was no underlying constitutional violation,10 Rule 12(b)(6)

dismissal was proper even though (as the Court assumed arguendo)

“the allegations in the complaint are sufficient to provide a

Chief of Police “at all relevant times.” That itself renders the

complaint insufficient to state a § 1983 claim against Herrera.

10

The plaintiffs’ decedent, a City employee, lost his life

because the City, despite being on notice of the risks,

systematically and intentionally failed to provide minimal safety

training and equipment required by state law.

18

substitute for the doctrine of respondeat superior as a basis for

imposing liability on the City for the tortious conduct of its

agents.” Id. at 2068.11 See also DeShaney, 109 S.Ct. at 1007 n.10

(because the county employee social workers did not violate child’s

constitutional rights by failing to protect him from private actor

violence “we have no occasion to consider . . . whether the

allegations in the complaint are sufficient to support a § 1983

claim against the county . . .”); City of Los Angeles v. Heller,

106 S.Ct. 1571, 1573 (1986) (no case “authorizes the award of

damages against a municipal corporation based on the actions of one

of its officers when . . . the officer inflicted no constitutional

harm. If a person has suffered no constitutional injury at the

hands of the individual police officer, the fact that the

departmental regulations might have authorized the use of

constitutionally excessive force is quite beside the point”); City

of Oklahoma v. Tutle, 105 S.Ct. 2427, 2436 n.8 (1985). And,

clearly controlling on this issue is our above discussed decision

in Saenz where, citing Heller, we rejected recovery sought against

the county on the basis of its alleged “custom or policy permitting

11

See also id. at 1067-68: stating that in Canton v. Harris,

109 S.Ct. 1197 (1989), “we concluded that if a city employee

violates another’s constitutional rights, the city may be liable if

it had a policy or custom of failing to train its employees and

that failure to train caused the constitutional violation.”

(emphasis added).

19

Gonzales to interfere with junior officers’ attempts to apprehend

drunk drivers” because we held that, under DeShaney, Deputy

Gonzalez’s preventing the arrest of the drunk driver (who minutes

later ran into plaintiffs) did not violate plaintiffs’

constitutional rights. Saenz, 183 F.3d at 392-93.12

Finally, the complaint fails to state a claim against Chief

Herrera for yet another separate and independent reason. We have

frequently held that supervisor liability under section 1983

requires a showing of the supervisor’s “deliberate indifference to

the known or obvious fact that such constitutional violations would

result” and “[t]hat ‘generally requires that a plaintiff

12

The only training or supervision deficiencies even

generally alleged in the complaint are those relating to

“containment of prisoners in custody,” “safe handling of

individuals in custody,” and the requirement that the operator of

a motor vehicle not leave it unattended without stopping the

engine, locking the ignition and removing the key from the

ignition. These relate only to Wilson’s alleged conduct which we

hold did not violate the Constitution.

It is also alleged that “City Police Department” thereafter

did “channel” the fleeing Avalos “towards the International

Bridge,” “had opportunities to divert or disable” the stolen patrol

car “but failed to do so,” and did not “clearly” inform Customs

officers that vehicle was “an official marked patrol car.” None of

these actions or omissions are alleged to be improper; nor is it

alleged that any of such matters resulted from any police

department custom or policy or inadequate training or supervision,

nor is any custom or policy or inadequate (or other) training or

supervision in relation to any of such matters alleged. Nor do any

of such allegations referenced in this paragraph state a

constitutional violation. See County of Sacramento v. Lewis, 118

S.Ct. 1708 (1998); DeShaney; Saenz.

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demonstrate at least a pattern of similar violations.’” Johnson v.

Deep East Texas Regional Narcotics, 379 F.3d 293, 309 (5th Cir.

2004). See also, e.g., Estate of Davis v. City of North Richland

Hills, 406 F.3d 375, 381 (5th Cir. 2005); Burge v. St. Tammany

Parish, 336 F.3d 363, 370 (5th Cir. 2003); Cousin v. Small, 325

F.3d 627, 637 (5th Cir. 2003). Here there is no allegation of any

prior incident in which any arrestee or prisoner ever commandeered

(or even attempted to commandeer) a police car, much less that any

such ever resulted in any injury to another person. Nor is any

other fact alleged which would tend to indicate that Chief Herrera

had the deliberate indifference necessary for supervisory

liability.

We conclude that no constitutional violation on the part of

Chief Herrera is alleged,13 and that accordingly the district court

13

We also note that plaintiffs, after receiving certain

documentary discovery (including police department incident reports

concerning the subject events of June 30, 2002), and subsequently

having taken the deposition of a police Lieutenant Lissner who came

upon Avalos while he was still in Wilson’s vehicle and later

pursued Avalos after he escaped in Wilson’s vehicle, moved in June

2004 to file an amended complaint in which the only change

mentioned in the motion (the proposed amended complaint is not in

the record) is the dropping of Chief Herrera as a defendant and the

adding of Lissner as a defendant. The motion asserts that “Police

Chief Herrera was not involved in the arrest and chase of Reymundo

Avalos. Thus, Plaintiffs have no reason to nor intention of

continuing to pursue their claims against Police Chief Herrera” and

that the motion should be granted “because the amended pleading is

appropriate to dismiss a party against whom Plaintiffs has [sic] no

claim.” The district court did not rule on the motion and was

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should have granted, and erred by denying, Herrera’s Rule 12(b)(6)

motion to dismiss the section 1983 claims against him on the ground

of qualified immunity.

CONCLUSION

Because the facts alleged in the complaint, taken in the light

most favorable to plaintiffs, do not show that either Wilson or

Herrera violated Rios’s federal constitutional rights, the district

court should have granted, and erred in overruling, the qualified

immunity based Rule 12(b)(6) motion of Wilson and Herrera as to

Rios’s section 1983 claims against them; and the district court’s

order overruling that motion is accordingly hereby REVERSED. As

claims against the City and state law claims against Wilson and

Herrera remain, the case is remanded for further proceedings

consistent herewith.

REVERSED and REMANDED.

apparently unaware of it as is not mentioned in the court’s July 14

order overruling the 12(b)(6) motions (or in subsequent clerical

correction thereof). After the court’s July 14 order plaintiffs in

effect withdrew the request to amend and asserted to the court that

“in light of this court’s order of July 14, 2004, Chief Herrera

should not be dismissed at the present time” but that “Lt. Lissner”

should be made “an additional Defendant along with Defendants

Officer Wilson and Chief Herrera.” So far as the record reflects

there has been no ruling making Lt. Lissner a party.

22