Shelley v. Dallas Tx City of ( 1996 )

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        UNITED STATES COURT OF APPEALS
For the Fifth Circuit
_______________________________
No. 95-10697
Summary Calendar
_______________________________
PAMELA BARRON SHELLEY, individually and
as next friend of Derrick Barron and Patrick Barron,
Plaintiff-Appellants,
VERSUS
CITY OF DALLAS, TEXAS,
Defendant-Appellee.
______________________
ANGEL GABBERT and Thomas Gabbert,
Plaintiff-Appellants,
VERSUS
CITY OF DALLAS, TEXAS,
Defendant-Appellee.
_____________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
3:93-CV-2293-H
_____________________________________________________
June 7, 1996
Before WISDOM, HIGGINBOTHAM, and PARKER, Circuit Judges.
PER CURIAM:*
The plaintiffs appeal from summary judgment in favor of the City of Dallas (the City). They
argue that the district court erred in grant ing summary judgment on their claims that there was a
widespread pattern of sexual misconduct in the Dallas Police Department (the Department); that the
Department was tolerant of the misconduct; and that the City was deliberately indifferent to the
constitutional rights of women through its failure to review, evaluate, and modify its procedures to
address the problem.1 Finding no reversible error, we AFFIRM.
To establish municipal liability under 42 U.S.C. § 1983, a plaintiff must establish that an
official municipal policy or custom caused a constitutional violation.2 The plaintiffs in the instant suit
have not alleged that an unconstitutional policy existed; instead, they assert that the Department’s
policy towards sexual misconduct by its officers was inadequate to curtail the problem of sexual
misconduct and was made with deliberate indifference to the possible unconstitutional consequences
to women.3
*
Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
1
In this consolidated action, the plaintiffs seek damages from the City as compensation for the
alleged sexual assaults perpetrated against them by officers of the Dallas Police Department, in separate
incidents, when the officers stopped the plaintiffs for traffic violations. The officers in question had no prior,
similar complaints in their file and the officers were dismissed by the Department as a result of its investigation
of the plaintiffs’ claims.
2
Monell v. Department of Soc. Servs.,

436 U.S. 658

, 694 (1978).
3
See Gonzalez v. Ysleta Indep. Sch. Dist.,

996 F.2d 745

, 759 (5th Cir. 1993).
2
The plaintiffs failed to provide sufficient evidence in support of their assertions and, therefore,
have not created a genuine issue of material fact. The only admissible evidence4 suggesting that the
City or Department was deliberately indifferent towards sexual misconduct is contained in the
affidavit of the plaintiffs’ expert witness, Dr. George Kirkham. His statements, however, do not
reveal that the Department’s “failure to adopt a precaution . . . [was] an intentional choice, [and] not
merely an unintentionally negligent oversight”. 5
To prevail under the deliberate indifference standard, the plaintiffs must establish that it is
obvious that the likely consequence of not adopting a policy will be the violation of constitutional
rights.6 Dr. Kirkham states only that the Department “violated standards of the law enforcement
profession by failing to monitor and react appropriately to a clear and longstanding pattern of sexual
misconduct on the part of [its] officers”, never explaining the standards he deems appropriate or even
enumerating the weaknesses in the Department’s policies and response to this problem.7 Competent
summary judgment evidence must contain more that subjective opinions.8 Furthermore, Dr. Kirkham
developed his opinion only after considering the complaints of sexual misconduct alleged against the
Department, which are outlined in the plaintiffs’ chart. The district court deemed m ost of these
complaints inadmissible because they were not sufficiently similar to or occurred after the incidents
4
The district court ruled that a chart prepared by the plaintiffs, which chronicles complaints
of sexual misconduct in the Department from 1986 to 1993, is inadmissible because it was not properly
authenticated or verified. Because the plaintiffs do not challenge this ruling, we will not reconsider it.
5
Rhyne v. Henderson County,

973 F.2d 386

, 392 (5th Cir. 1992).
6

Id. 7 See

Benavides v. County of Wilson,

955 F.2d 968

, 973 (5th Cir.), cert. denied,

506 U.S. 824

(1992).
8

Id. 3 in

this case.9 Accordingly, his affidavit can be taken only as evidence that the City or Department was
deliberately indifferent in 1993, but reveals nothing about the time at which the incidents in the instant
case occurred. As a result, we find that the plaintiffs failed to meet their burden of production and
that the district court properly granted the City’s motion for summary judgment.
AFFIRMED.
9
See Rodriguez v. Avita,

871 F.2d 552