IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-20112
_____________________
KAREN HUNTER LEKWA, Individually and as
Next Friend of Epiphany Akhimien Lekwa and
Nnate Lekwa, Minors; EPIPHANY AKHIMIEN
LEKWA; NNATE LEKWA,
Plaintiffs-Appellants,
versus
CITY OF HOUSTON,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-97-CV-1532)
_________________________________________________________________
June 23, 1999
Before JOLLY, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
This 42 U.S.C. § 1983 appeal arises from an incident of
excessive force by Lisa D. Allen, a police officer for the City of
Houston, Texas, who had a record of abusive conduct toward
citizens. In the case before us, Allen beat Karen Hunter Lekwa,
the plaintiff-appellant, with her police-issued flashlight during
a family disturbance call. We are called on to determine whether
the district court erred in absolving the City of Houston of
liability for this assault under both § 1983, and the Texas Tort
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Claims Act. Lekwa, individually, and on behalf of her children,
contends that the City is liable because her assault was a result
of a decision by Police Chief Samuel M. Nuchia that was
deliberately indifferent to her Fourth Amendment rights--to wit,
the decision to withdraw Allen as a candidate for the Personnel
Concerns Programs (for behavioral improvement) in order to
facilitate a settlement in Allen’s employment discrimination suit
against the City. The district court concluded that Lekwa had not
raised a genuine issue of material fact, which if resolved in her
favor, would establish that Chief Nuchia’s decision to remove Allen
was made with deliberate indifference. The district court further
concluded that Lekwa and the children’s claims against the City
under the Texas Tort Claims Act were precluded by the intentional
tort exception to the Act. For the reasons that follow, we affirm
the district court’s grant of summary judgment in the favor of the
City.
I
A
The facts of this appeal relate first, to Allen’s record as a
police officer for the City of Houston, Texas, and, second, to the
manner in which Allen responded to a “Family Disturbance/Weapon
Involved” call at Lekwa’s residence. We turn first to Allen’s
personnel history.
In August of 1992, Lisa D. Allen became a police officer for
the City of Houston. As early as 1994, Allen had been investigated
2
by the Internal Affairs Division of the Houston Police Department
no less than four times for a number of citizen-initiated
complaints. Furthermore, Allen’s fellow officers were reluctant to
handle police calls with her, and even more hesitant to provide her
back-up assistance. Allen had a reputation for being combative and
overly aggressive with complainants--she was known, according to
some officers, for “pouring gasoline on a fire.” Allen also
remained in constant conflict with particular supervisors in her
chain of command, especially Lieutenant Bruce D. Williams.
Over time, Allen’s supervisors believed that she was in need
of corrective behavioral training. On July 14, 1994, Sergeant
C. S. Bloomberg wrote Samuel M. Nuchia, the then chief of police of
the Houston Police Department. Sergeant Bloomberg advised Chief
Nuchia, inter alia, that because of Allen’s “recurring negative
performance patterns, and her problems interacting with the public”
she should be evaluated for placement in the Personnel Concerns
Program.1 Three other of Allen’s superiors, Lieutenant Bruce D.
1
The Personnel Concerns Program involves administrative
procedure to identify negative behavioral patterns in police
officers, and a program to assist the officers’ supervisors in
developing strategies to reverse these patterns. The Personnel
Concerns Program is a step-oriented process. Either a supervisor,
via the chain of command, or the chief of police identifies an
officer for placement in the program. The Personnel Concerns Unit
then conducts an investigation of the officer’s employment history.
The results of the investigation are reduced to a Personnel
Concerns Report that is forwarded to the Personnel Concerns
Committee. Based on the information contained in the report, the
Personnel Concerns Committee makes a recommendation to the chief of
police as to whether the officer should be required to enter the
program. If the Personnel Concerns Committee believes that the
3
Williams, Captain T. A. Bullock, and Assistant Chief T. W. Shane,
shared Sergeant Bloomberg’s concern, and endorsed the
recommendation letter.
Chief Nuchia promptly acted on Sergeant Bloomberg’s
recommendation. On August 10, 1994, the Chief forwarded Sergeant
Bloomberg’s memorandum to the Personnel Concerns Unit, and
instructed the unit to evaluate Allen’s work performance. The
execution of this order, however, was hardly immediate because of
other concerns relating to Allen.
On August 31, 1995, Sergeant Charles D. Williams, of the
Personnel Concerns Unit, and Assistant Chief Joe L. Breshears, then
head of the Personnel Concerns Committee, met with Sergeant Will
Robertson and Sergeant Michael Dirden, an attorney from the Legal
officer’s behavioral problems are psychological, then the officer
may be referred to the Administrative Personnel Committee for
further psychological evaluation. In any event, the chief of
police makes the final decision as to whether an officer is placed
in the Personnel Concerns Program. Upon the chief’s
recommendation, the officer remains in the program for one year.
During this year, close supervision, individual monitoring, and
strict reporting of the officer’s work-related activities are
required. In most instances, the officer is left in his current
post or assignment, and he continues to report to his first-line
supervisor. Specific attention is paid, however, to the behavioral
problems identified in the Personnel Concerns Report. If
appropriate, the officer completes specialized training in the
problem areas. During the twelve-month period, the officer’s
immediate supervisor completes weekly evaluations, and conducts
weekly counseling meetings. The Personnel Concerns Unit contacts
the officer’s supervisor weekly for work performance reports, and
holds monthly meetings with the officer to discuss the progress
made in the program. A monthly report of the officer’s progress is
forwarded to the chief of police. See Houston Police Department,
General Order # 30024 (issue date: June 9, 1993).
4
Services Unit of the Houston Police Department. The purpose of the
meeting was to discuss whether Sergeant Bloomberg’s recommendation
should be acted upon, in the light of certain legal developments.
Earlier, on or about August 5, 1994, Allen had filed
complaints against the City of Houston with both the Equal
Employment Opportunity Commission (“EEOC”), and the Texas
Commission on Human Rights. Allen’s attorney, Murray Malakoff, had
informed Dirden that the complaints were administrative precursors
to a Title VII, gender discrimination suit against the City.
Malakoff further stated that one of Allen’s charges of
discrimination related to Bloomberg’s recommendation, and that her
deferral from the Personal Concerns Program could facilitate a
settlement of a suit.
During the August 31, 1994 meeting, the three officers and the
one attorney agreed that because Allen had complained that Sergeant
Bloomberg’s recommendation was discriminatory, her subsequent
placement in the Personnel Concerns Program would be perceived as
retaliation. The group also agreed that the concerns raised in
Sergeant Bloomberg’s recommendation were personality-oriented
rather than disciplinary-oriented. Thus, the general consensus of
the group was that a change in supervision would be the best course
for getting Allen “on the right track.” In the light of these
considerations, Dirden, as legal counsel for the Houston Police
Department, concluded that it would be best to offer Allen a
settlement agreement: If Allen agreed to drop her discrimination
5
charges, she would be permitted to transfer to any unit within the
South or Westside Command of the Houston Police Department. If
Allen accepted the transfer, she would not be investigated by the
Personnel Concerns Unit. If Allen refused to transfer, however,
the Personnel Concerns investigation would move forward.
Next, Dirden contacted Chief Nuchia, and informed him of
Allen’s discrimination charges, and the terms of the proposed
settlement agreement. Dirden further advised the Chief that
offering Allen a transfer, and electing to forego the Personnel
Concerns investigation was the best action to take to prevent her
from pursuing the discrimination charges further. Chief Nuchia
agreed, and ratified the proposed settlement agreement. Sergeant
Williams made a notation to Allen’s personnel file dated August 31,
1994, which documented the terms of the proposed settlement. Thus,
as of August of 1994, Allen was no longer a candidate for the
Personnel Concerns Program. This information, however, was not
effectively communicated to the Personnel Concerns Unit. The Unit
ultimately proceeded with its investigation of Allen some thirteen
months later. The reason for the delay or for the timing of the
investigation is not clear from the record before us.
Thus, on September 26, 1995, Allen was instructed to appear at
an employee notification meeting conducted by Officer Edna Neal, an
investigator for the Personnel Concerns Unit. The purpose of the
meeting was to inform Allen of the imminent investigation. Neal
offered only one explanation for the thirteen-month delay--Allen’s
6
then pending discrimination suit against the City and Lieutenant
Williams.2 Neal officially started the investigation on
September 30, 1995, only to have the administrative process
derailed for a second time.
When Dirden learned that the Personnel Concerns Unit had
proceeded with the investigation, he contacted Chief Nuchia.
Dirden reiterated the terms of the August 31, 1994 proposed
settlement to the Chief, and advised him to stop the investigation.
Consequently, in a letter dated October 27, 1995, Chief Nuchia
advised the Personnel Concerns Unit that Allen was no longer a
candidate for the Personnel Concerns Program. By this time, Neal’s
investigation of Allen was substantially complete. She had compiled
a Personnel Concerns Report on Allen. When the Chief withdrew
Allen as a candidate for the program, however, he was neither aware
of the Personnel Concerns Report, nor its contents. Although the
Chief was guided by legitimate departmental concerns, the manner in
which he attempted further settlement of Allen’s discrimination
suit would not be without its consequences.
B
2
Notwithstanding the proposed settlement agreement, on
September 12, 1994, Allen filed an employment discrimination suit
in the district court of Harris County, Texas, against the City of
Houston and Lieutenant Bruce D. Williams. She alleged, inter alia,
that because of Williams’s discriminatory and retaliatory personnel
actions, she suffered “psychological injuries . . . and severe
mental anguish requiring treatment by health care providers and
medication.” The district court granted summary judgment in favor
of the City, which was not appealed.
7
Early in the morning hours of November 23, 1995, precisely at
2:58 a.m., several officers from the Houston Police Department
responded to a “Family Disturbance, Weapon Involved” call at Karen
Lekwa’s residence. Shannon Bennett, Lekwa’s neighbor, alerted the
authorities when she found Lekwa sitting in a puddle of water,
screaming hysterically, as she held her two children. Lekwa also
mumbled incoherently, and made hand gestures that suggested that a
gun had been placed to her head.
Officer Ronny S. Cortez arrived on the scene first. Lekwa
initially alleged that she and her two children, Epiphany Akhimien
Lekwa and Nnate Lekwa, had been kidnaped at gunpoint by Lawrence
Eruvwetere’s ex-wife. Eruvwetere was Lekwa’s paramour. After
confirming from Lekwa that the alleged suspect had left the scene,
and that the gun was no longer on the premises, Cortez radioed the
dispatcher, and advised her to slow the other units down. Cortez
explained that the situation was under control, and no weapon was
involved. As Cortez turned to question Eruvwetere, Officer Eric M.
Johnson arrived on the scene, followed by officers Charles K.
Overstreet and Tracie D. Mosley. After a quick briefing, the
officers all agreed that the situation had been sufficiently
neutralized, so that the disturbance call could be used to further
train Mosley, a new patrolman.
Allen was the last officer to make the scene. Upon her
arrival, Allen immediately assumed that Lekwa was the suspect, and
approached her in a confrontational manner. Cortez quickly
8
intervened, and briefed Allen. Cortez told her that the disturbance
call was under control, that Lekwa was the complainant, and that
she was unarmed. Allen’s initial hostile reaction to Lekwa was
only a prelude to the conduct that followed.
As the investigation progressed, the officers determined that
Lekwa had lied about being kidnaped to protect Eruvwetere, who had
previously assaulted her while brandishing a gun. Mosley further
sensed that Lekwa was afraid to speak truthfully in Eruvwetere’s
presence. Therefore, to “get the real story,” Mosley escorted
Lekwa approximately twenty-five feet away from the scene. Lekwa
remained quite emotional at this time, and continued to cry. She
carried her four-year-old daughter in her arms, and her son stood
at her side.
As Mosley continued to question Allen about Eruvwetere and the
gun incident, Allen walked hurriedly toward Lekwa, and immediately
started to frisk her. Allen grabbed Lekwa by the shirt and told
her to “calm down” or she would take her “f------ a–- to jail.”
Allen then asked Mosley had she searched the suspect. Mosley
reiterated that Lekwa was not the suspect, but the complainant.
Notwithstanding Mosley’s clarification, Allen grabbed Lekwa, who
pulled away in resistance. A struggle ensued whereby Allen placed
Lekwa in a choke-hold. Lekwa had difficulty breathing, and broke
the choke-hold by biting Allen’s left thumb. In retaliation, Allen
beat Lekwa with her police-issued flashlight, striking her
repeatedly over the head ten to fifteen times. Allen also yelled
9
several more profane words at Lekwa. During the course of the
assault, Lekwa dropped her daughter. She made no effort, however,
to defend herself, other than attempting to shield her head from
Allen’s blows.
The beating ended with Allen arresting Lekwa for resisting
arrest, and aggravated assault on a peace officer.3 The officers
at the Houston City Jail refused to admit Lekwa, however, because
of her head injuries. Lekwa was then transported to the Ben Taub
Hospital. She suffered a small midline bifrontal scalp hematoma
from the assault, and bruises to her hands.
II
A
On January 9, 1996, Mosley reported the Lekwa incident to the
Internal Affairs Division. Allen was placed on “relieved of duty”
status pending the outcome of a formal investigation into the
incident. The internal affairs investigation concluded that: (1)
Allen subjected Lekwa to official oppression in violation of Texas
Penal Code § 39.03; (2) Allen violated § 2.3 of the Houston Police
Department Rules Manual when she used profanity while speaking to
and about Lekwa; and (3) Allen made false statements to the
Internal Affairs Division regarding the assault in violation of
3
Allen later filed criminal charges against Lekwa for
aggravated assault of a peace officer. The Harris County District
Attorney dismissed the charges on January 25, 1996.
10
§ 2.6 of the Rules Manual. Consequently, on June 4, 1996, Allen
was terminated from the Houston Police Department.
Allen’s use of excessive force against Lekwa also resulted in
a criminal prosecution. On August 12, 1996, Allen was indicted on
one count of aggravated assault with a deadly weapon, a third
degree felony offense, and one count of official oppression. On
October 3, 1996, Allen plead nolo contendere to the charges. She
received a sentence of ten years probation and 250 hours of
community service.
B
Some five months prior to Allen’s sentencing, on April 30,
1996, Lekwa, individually, and as next friend of her children, sued
the City of Houston, and Allen. In her complaint and amended
complaint, Lekwa alleged, inter alia, a claim for excessive force
in violation of the Fourth Amendment under 42 U.S.C. § 1983, and a
claim for negligent supervision under the Texas Tort Claims Act.
On the behalf of her children, Lekwa alleged by-stander liability,
and claims for the loss of parental consortium.
The City removed the action to the United States District
Court for the Southern District of Texas on May 2, 1997, based on
federal question jurisdiction. The City then moved for summary
judgment on December 1, 1997.
11
On January 20, 1998, the district court granted the City’s
motion for summary judgment.4 Citing Board of County Commissioners
of Bryan County, Oklahoma v. Brown, 520 U.S. 397 (1997), the
district court concluded that there existed no evidence from which
a reasonable juror could conclude that the City, through its policy
maker, Chief Nuchia, acted deliberately indifferent to Lekwa’s
Fourth Amendment rights when it transferred Allen to another police
command, rather than place her in the Personnel Concerns Program.
Regarding the negligent supervision claim, the district court
concluded that the harm the plaintiffs suffered, if any, was caused
by Allen’s intentional assault, an action for which the City of
Houston had not waived its governmental immunity under the Texas
Tort Claims Act. Tex. Civ. Prac. & Rem. §§ 101.021(2) and
101.057(2).
The district court entered final judgment in the case on
January 30, 1998. On February 8, 1998, Lekwa filed a timely notice
of appeal.
After a review of the summary judgment record, we are
satisfied that the district court did not err in dismissing Lekwa
and the children’s claims, as a matter of law, under the Texas Tort
Claims Act.5 We likewise find that the children have no cognizable
4
Upon the district court’s grant of summary judgment in favor
of the City, Lekwa, in accordance with Fed.R.Civ.P. 41(a)(2),
successfully moved the district court to dismiss her claims against
Allen on January 22, 1998.
5
Under the Texas Tort Claims Act, a municipality is immune
12
claim for bystander liability against the City of Houston under
§ 1983. Grandstaff v. City of Borger, Texas, 767 F.2d 161, 172
(5th Cir. 1985). We therefore turn to address the remaining issue
in this appeal–-the City’s liability for Lekwa’s § 1983 claim and
her children’s derivative claim for loss of parental consortium.
III
from suit for claims arising out of intentional torts. § 101.057
(2). An injured party can pursue a claim for negligent supervision
arising out of the same set of facts, however, Holder v. Mellon
Mortg. Co., 954 S.W.2d 786, 805 (Tex. Civ. App.--Houston [14th
Dist.] 1997) (citations omitted), but only where the “focus” of the
claim is on the municipality’s negligent supervision, not the
intentional conduct of its employee. Medrano v. City of Pearsall,
No. 04-98-00698-CV, 1999 WL 43649,*3 (Tex. Civ. App.–San Antonio
1999) (citations omitted). Indeed, the Texas Supreme Court had
made clear that the intentional tort exception cannot be
circumvented with the mere allegation that a municipality
negligently supervised its employee-tortfeasor. Delaney v.
University of Houston, 835 S.W.2d 56, 60 (Tex. 1992). The
plaintiff must also establish a causal nexus between the employee’s
use of the municipal property, and the municipality’s alleged
negligent conduct. Holder, 954 S.W.2d at 807. We find that the
summary judgment record is void of even a scintilla of proof from
which a reasonable jury could infer the required causal nexus
between Allen’s misuse of the flashlight, and the City’s purported
negligent supervision. See id. Indeed, the record makes clear
that the injuries Lekwa sustained on November 23, 1994, were caused
solely by Allen’s intentional assault. We therefore conclude that
the district court properly dismissed Lekwa’s negligent supervision
claim, and the children’s derivative claim for loss of parental
consortium. Even treating the children’s bystander claim as a
direct claim under Texas law, see Harris County v. White, 823
S.W.2d 385, 388 (Tex. Civ. App.--Texarkana 1992), we hold that the
claim is likewise precluded by the intentional tort exception,
§ 101.057(2).
13
Because this § 1983 appeal is before us on the district
court’s grant of summary judgment in favor of the City, we review
the record de novo. To survive the City’s motion, Lekwa must
demonstrate that under the stringent standards of culpability, and
causation articulated in Board of County Commissioners of Bryan
County, Oklahoma v. Brown, 520 U.S. 397 (1997), there exists
sufficient evidence to support a jury’s verdict in her favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55 (1986). For
the purposes of summary judgment, Lekwa’s proffered evidence is to
be believed. Id. at 255. Thus, we will draw all justifiable
inferences from the evidence in the light most favorable to her.
Id.; Palmer v. BRG of Georgia, Inc., 498 U.S. 46, 49 n.5 (1990)
(citations omitted).
IV
Section 1983 provides a claim against every person who, under
the color of state law, deprives another of his or her federally
protected rights. 42 U.S.C. § 1983; Collins v. City of Harker
Heights, Texas, 503 U.S. 115, 120 (1992). It has long been the
rule that a municipality qualifies as a “person” for the purposes
of § 1983. Id. (citing Monell v. New York City Dept. of Soc.
Servs., 436 U.S. 658, 690 (1978)). However, a municipality is not
liable under § 1983 solely because one of its employees has
committed a constitutional tort. Monell, 436 U.S. at 691; Snyder
v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998), cert. granted in
part, 119 S.Ct. 863 (1999), and cert. dismissed, 119 S.Ct. 1493
14
(1999). Stated differently, a municipality cannot be held liable
under § 1983 on a theory of respondeat superior. Id. Rather,
municipal liability attaches under the federal statute only when
the execution of an official municipal policy or custom causes a
constitutional injury. Collins, 503 U.S. at 123 (citing Monell,
436 U.S. at 694); Snyder, 142 F.3d at 795 (internal quotations and
citations omitted). This standard of liability applies equally to
municipal policies that are facially unconstitutional, as well as
to those policies that are facially valid. Collins, 503 U.S. at
123 (citations omitted). The law is further clear that an isolated
decision tailored to a particular situation, but not intended to
control later situations constitutes a “policy” for the purposes of
§ 1983 provided the decision was made by an authorized policymaker,
who had final authority with respect to the action ordered. City
of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (citations
omitted); Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996),
cert. denied, 519 U.S. 817 (1996)(citations omitted).
Thus, in cases such as the instant matter, where a facially
valid decision by an authorized policymaker, i.e., the municipal
policy, is alleged to have resulted in the deprivation of the
plaintiffs’ federally protected rights, to fasten § 1983 liability
on the municipality, the plaintiffs must show that: (1) the
municipal policy was adopted with “deliberate indifference” to the
plaintiffs’ constitutional rights (culpability); and (2) the
municipal policy was the “moving force” behind the plaintiffs’
15
constitutional injury (causation). Snyder, 142 F.3d at 795. See
also Bryan County, 520 U.S. at 404-05. With these principles as a
guide, we turn to the summary judgment record before us.
V
A
In this case, it is undisputed that the City of Houston, Texas
Police Department had an established policy of investigating
“problem” officers, and then requiring the identified officer to
undergo corrective behavioral training vis-à-vis the Personnel
Concerns Program. This § 1983 appeal poses the question of the
City’s liability for Chief Nuchia’s decision to forego this
administrative process after the identified officer (Allen) brought
suit against the City challenging, inter alia, her placement in the
program. Thus, although her brief wanders from time to time, as we
understand Lekwa’s theory of liability, the City, through its
policymaker, Chief Nuchia, acted deliberately indifferent to her
Fourth Amendment rights, when, in an effort to settle Allen’s 1994
employment discrimination suit, Chief Nuchia withdrew Allen as a
candidate for the Personal Concerns Program. In doing so, it is
asserted that Chief Nuchia consciously decided to leave Allen on
the street--essentially as a cost of protecting the police
department from a lawsuit--notwithstanding his knowledge of her
psychological problems, and pattern of abusive conduct toward
citizens such as Lekwa. This decision may have been in the best
interest of the police department, the argument goes, but it was
16
deliberately indifferent to the right of citizens, including Lekwa,
to be free from excessive force. Lekwa therefore contends that
Allen’s use of excessive force against her was a predictable
consequence of the Chief’s decision to withdraw Allen from the
program.
Even if we assume, without deciding, that a jury could
reasonably find that the City of Houston was deliberately
indifferent in facilitating settlement of Allen’s discrimination
claim without considering the effect of Allen’s conduct on Lekwa
and other Houston citizen’s Fourth Amendment rights, still, we
cannot say that the district court erred in granting summary
judgment in favor of the City. We find that Lekwa’s § 1983 claim
and, in turn, the children’s derivative claim for loss of parental
consortium, is foreclosed by her failure to create a triable issue
on the second essential element of her case–-the causation
requirement. We therefore direct our inquiry to this evidentiary
shortcoming.6
B
Lekwa’s theory of causation is based on the assertion that if
Allen had been placed in the Personnel Concerns Program, she would
have been relieved of her duties as a street patrolman during the
course of her behavior modification training. The reasoning
6
Our disposition of this appeal on the cause-in-fact
requirement makes it unnecessary for us to reach the related issue
of proximate cause.
17
continues, “but for” Chief Nuchia’s wilful decision not to follow
the usual administrative policy of referring Allen to the Personnel
Concerns Program--a decision that was deliberately indifferent to
Houston citizens’ Fourth Amendment rights--Allen would not have
been in a position to apply excessive force to Lekwa. Thus, the
violation of Lekwa’s Fourth Amendment right to be free from
excessive force was caused by the Chief’s decision to take Allen
out of the Personnel Concerns Program, knowing (as he did) of her
proclivity for violence.
C
In Bryan County, 520 U.S. at 405 (citations omitted), the
Supreme Court reaffirmed its earlier precedent that the causation
requirement under § 1983 is a “rigorous” standard of proof, which
requires the plaintiff to establish a direct causal link between
the municipal policy, and the alleged constitutional injury. See,
e.g., City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 n.8 (1985)
(“moving force” requires an affirmative link between the policy and
the particular constitutional violation alleged); City of Canton v.
Harris, 489 U.S. 378, 385 (1989) (“first inquiry . . . under §
1983 . . . is whether there is a direct causal link between a
municipal policy or custom, and the alleged constitutional
deprivation”). See also Faire v. City of Arlington, 957 F.2d 1268,
1281 (5th Cir. 1992) (citations omitted) (“municipal policy must be
18
affirmatively linked to constitutional violation to be moving force
behind it”). Specifically, the plaintiff must establish that the
municipal policy (here, a specific decision by an authorized
policymaker) was the cause-in-fact of the injury, that is, that the
municipal policy served as the moving force behind the
constitutional violation at issue, or that the plaintiff’s injuries
resulted from the execution of the policy. Spiller v. City of
Texas City Police Department, 130 F.3d 162, 167 (5th Cir. 1997)
(internal citations and quotations omitted).
Regarding the cause-in-fact requirement, the Supreme Court has
further clarified that mere generalized conduct on the behalf of a
municipality, remote in either consequence or time, is insufficient
to carry the plaintiff’s burden: “Every injury suffered at the
hands of a municipal employee can be traced to a hiring decision in
a "but-for" sense: But for the municipality's decision to hire the
employee, the plaintiff would not have suffered the injury.
[Thus,] to prevent municipal liability. . .from collapsing into
respondeat superior liability, a court must carefully test the link
between the policymaker's inadequate decision [here, the decision
to remove Allen as a candidate for the behavioral improvement
program], and the particular injury alleged [here, Allen’s use of
excessive force against Lekwa in the violation of her Fourth
Amendment rights].” Bryan County, 520 U.S. at 410. We thus
require the plaintiff to present specific facts, from which
reasonable and fair-minded jurors would agree, that the execution
19
of the municipal policymaker’s decision directly resulted in her
constitutional injury. Spillers, 130 F.3d at 167. Accordingly, a
high level of proof is required to establish the cause-in-fact
requirement; the causal showing must be strong. See Snyder, 142
F.3d at 796.
Applying these standards, we find that Lekwa’s theory of
causation is based on an erroneous assumption, and, consequently,
her summary judgment evidence falls short of establishing the
requisite causal link. After a thorough review of the record,
including, General Order 300-24, which sets forth the Personnel
Concerns Program, we find no evidence that Allen’s placement in the
program would have resulted in her being removed from active duty.7
To be sure, the plain language of the Order makes clear that the
officer’s continued arrests, and related activities are used to
monitor her progress in the program. There is no evidence in the
record to show Allen would have been an exception to this general
rule. Thus, Lekwa and the children’s theory of causation
7
Houston Police Department General Order 300-24 provides, in
relevant part:
In most instances, the employee will be left in [her]
current assignment and [will] continue to report to [her]
first-line supervisor . . . In some cases it may be
determined that either the first-line supervisor or the
employee’s present assignment may be part of the problem.
If this determination is made, the PCU may move the
employee to an appropriate shift and assignment for
completion of the PCP, with the approval of the Chief of
Police. . . .
(Emphasis added.)
20
collapses. The evidence just does not fit the theory of the
plaintiffs’ case; this is not a case where the chief failed to
follow a policy that would have taken a known bad cop off the
streets. Even if Allen had been placed in the behavior improvement
program, she--as far as this record shows--would still have been on
the streets. Therefore, Lekwa and her children’s purported
constitutional injuries have no cause-in-fact link to the
policymaker’s decision as required by the case authority we have
earlier cited. Consequently, the City of Houston cannot be held
liable for Allen’s conduct.
Moreover, because of her repeated emphasis on the nuances of
the Personnel Concerns Program, and what the City “could have done”
to alleviate the risk that Allen would react violently to the
citizens she encountered, Lekwa’s causation argument invites an
inference specifically rejected by the Supreme Court in City of
Canton, 489 U.S. at 391-92. In the context of a § 1983 failure-to-
train case, the Canton Court explained that virtually every case in
which a municipal employee has inflicted a constitutional injury
upon a plaintiff, the § 1983 plaintiff will be able to point to
something the City “could have done” to prevent the incident. Id.
at 392. The Court cautioned, however, that such a lesser standard
of causation would result in de facto respondeat superior liability
on municipalities-–a result rejected in Monell, 436 U.S. at 693-94.
Therefore, guided by the necessity of distinguishing between direct
and vicarious liability under § 1983, the Canton Court emphasized
21
that it will not suffice to show that the plaintiffs’
constitutional harm could have been avoided if the officer had been
better trained to avoid the particular injury-causing conduct.
Canton, 489 U.S. at 392. Indeed, the § 1983 plaintiff “must still
prove” that a municipal policy “actually caused” her constitutional
harm. See id. In the light of Canton, Lekwa’s summary judgment
proof hardly provides a sufficient basis on which to present her
§ 1983 claim to the jury.
VI
In sum, we must take this § 1983 case in the factual posture
in which it has been presented. In the light of the structure of
the Personnel Concerns Program, which leaves the officer in her
current assignment, Lekwa’s proof of causation becomes largely a
matter of speculation and conjecture. We thus agree with the
district court that summary judgment in favor of the City of
Houston was appropriate.
For the reasons in this opinion, the district court’s grant of
summary judgment in favor of the City on Lekwa and her children’s
claims under § 1983 and the Texas Tort Claim Act is in all aspects
A F F I R M E D.8
8
Judge Emilio M. Garza concurs in the judgment only.
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Lekwa v. City of Houston
Combined Opinion