Tarantino v. Pierce ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-10987
Summary Calendar
_____________________
J. CHRISTOPHER TARANTINO,
Plaintiff-Appellant,
versus
DARR D. PIERCE, Individually and in his
capacity as a City of Dallas Fireman,
Defendant,
CITY OF DALLAS,
Defendant-Appellee.
_______________________________________________________
Appeal from the United States District Court for
the Northern District of Texas
(3:97-CV-426-D)
_______________________________________________________
June 15, 1998
Before REAVLEY, KING and DAVIS, Circuit Judges.
PER CURIAM:*
Appellant J. Christopher Tarantino sued Darr Pierce, a
firefighter for the City of Dallas, and the City of Dallas (City)
for injuries allegedly sustained during an altercation between
Tarantino and Pierce. The district court granted summary
*
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this opinion should not be published and is not precedent except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.
judgment for the City, certifying the partial judgment as final
and appealable under Fed. R. Civ. P. 54(b). Tarantino appeals
the judgment in favor of the City, arguing that he raised fact
issues precluding summary judgment on his federal and state
claims. He also argues that the district court erred in denying
his motions for leave to amend and to continue the summary
judgment proceedings to allow for further discovery. We affirm.
Summary judgment was properly granted on the state law
negligence and gross negligence claims. The complaint alleged
that on May 5, 1995, Pierce “physically assaulted, battered and
officially pressed”1 Tarantino. Tarantino asserted in an
affidavit that he was attacked by Pierce, “who appeared to be in
a violent rage for no provocation after asking for assistance for
disabled motorists.” This incident occurred at a fire station.
Under the Texas Tort Claims Act, sovereign immunity is not
waived on any claim “arising out of assault, battery, false
imprisonment, or any other intentional tort . . . .”2 Even if
the claim can be characterized as one for negligence or gross
negligence, sovereign immunity is only waived if the injury
arises from the operation or use of a motor-driven vehicle or
1
In his motion for leave to amend, Tarantino explained
that “pressed” in the original complaint should have read
“oppressed.”
2
TEX. CIV. PRAC. & REM. CODE ANN. § 101.057 (West 1997). The
Act applies to political subdivisions of the state, including
cities. Id. § 101.001(2)(B).
2
equipment, or was caused “by a condition or use of tangible
personal or real property.”3 Tarantino’s alleged injury does not
fall within these categories.
While Tarantino argues that he was injured when Pierce threw
him to the ground, this “use” of real estate was so incidental to
the alleged physical assault that we do not believe Texas has
waived sovereign immunity from such a claim. The Texas Supreme
Court recently emphasized that “the waiver of immunity in the
Tort Claims Act is not, and was not intended to be, complete.”4
It rejected the notion that the mere involvement of property in
the injury is sufficient to waive sovereign immunity.
If only involvement were required, the waiver of
immunity would be virtually unlimited, since few
injuries do not somehow involve tangible personal or
real property. Requiring only that a condition or use
of property be involved would conflict with the Act’s
basic purpose of waiving immunity only to a limited
degree.5
Instead, the court held that “[p]roperty does not cause injury if
it does no more than furnish the condition that makes the injury
possible.”6 The plaintiffs had alleged that their son escaped
from a mental institution and committed suicide because a
technician had unlocked an outer door and an inner door was left
3
Id. § 101.021.
4
Dallas County Mental Health & Mental Re Ctr. v. Bossley,
1998 WL 169715, at *3 (Tex. Apr. 14, 1998).
5
Id. at *4.
6
Id.
3
unlocked. The plaintiffs alleged that unlocking the outer door
was a “use” of property, and that the unlocked inner door was a
“condition” of the property. The court held that although the
son’s “escape through the unlocked doors was part of a sequence
of events that ended in his suicide, the use and condition of the
doors were too attenuated from [the son’s] death to be said to
have caused it.”7 In the pending case, the “use” of property was
even more incidental to the injury.
As to Tarantino’s federal claim under 42 U.S.C. § 1983, the
complaint did not assert a federal cause of action against the
City. It alleged that “[t]he City is vicariously liable for any
negligence of Darr D. Pierce in this regard.” Municipalities
cannot be held liable under § 1983 under a respondeat superior or
vicarious liability theory.8 Further, § 1983 liability does not
extend to conduct that is merely negligent.9
Tarantino complains that the district court erred in denying
his motion to amend his complaint and his motion to continue the
summary judgment motion to allow additional discovery. The
substantive law of municipal liability is relevant to both
issues. Under § 1983, “Congress did not intend municipalities to
7
Id.
8
City of Canton v. Harris, 489 U.S. 378, 385 (1989).
9
Daniels v. Williams, 474 U.S. 327, 328 (1986); Davidson
v. Cannon, 474 U.S. 344, 349 (1986).
4
be held liable unless action pursuant to official municipal
policy of some nature caused a constitutional tort.”10 An
official policy is:
1. A policy statement, ordinance, regulation, or
decision that is officially adopted and promulgated by
the municipality’s lawmaking officers or by an official
to whom the lawmakers have delegated policy-making
authority; or
2. A persistent, widespread practice of city 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 municipal policy. Actual or constructive
knowledge of such custom must be attributable to the
governing body of the municipality or to an official to
whom that body had delegated policy-making authority.11
In the case of a municipality’s alleged failure to train its
employees, the Supreme Court has rejected a gross negligence
standard in favor of a deliberate indifference standard. The
plaintiff must show a deliberately indifferent policy of training
that was the “closely related” cause of the constitutional
violation.12
“Whether leave to amend should be granted is entrusted to
the sound discretion of the district court, and that court’s
10
Monell v. Department of Soc. Servs., 436 U.S. 658, 691
(1978).
11
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.
1984)(en banc).
12
Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453 (5th
Cir. 1994) (en banc) (discussing Canton, supra n.8).
5
ruling is reversible only for an abuse of discretion.”13 Leave
to amend need not be given if the complaint as amended would be
subject to dismissal.14 In ruling on a motion for leave to
amend, the court may consider whether granting leave to amend
would impose undue prejudice on the opposing party.15
Fed. R. Civ. P. 56(f) provides that the court may continue a
summary judgment motion to allow additional discovery, “[s]hould
it appear from the affidavits of a party opposing the motion that
the party cannot for reasons stated present by affidavit facts
essential to justify the party’s opposition.” Rule 56(f) is only
applicable to situations where a party shows that the additional
discovery will aid it in presenting a viable opposition to the
summary judgment motion.16 A party seeking continuance of a
motion for summary judgment in order to obtain further discovery
must show “why he needs additional discovery and how the
additional discovery will create a genuine issue of material
fact. The nonmoving party ‘may not simply rely on vague
assertions that additional discovery will produce needed, but
13
Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir.
1993).
14
Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539,
546 (5th Cir. 1980).
15
Louisiana v. Litton Mortgage Co., 50 F.3d 1298, 1303
(5th Cir. 1995).
16
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th
Cir. 1990).
6
unspecified facts.’”17 We review the district court’s denial of
a Rule 56(f) motion for abuse of discretion.18
We conclude that the district court did not abuse its
discretion in the denying the motions to amend and for a Rule
56(f) continuance. First, granting the motions would have
prejudiced the City, which had already moved for summary judgment
in reliance on the claims alleged in the original complaint. The
original complaint did not include a federal claim against the
City. We have noted as a general proposition that “[a] party
should not, without adequate grounds, be permitted to avoid
summary judgment by the expedient of amending its complaint.”19
Second, Tarantino did not show that he even understood the
burden he faced in making a showing of municipality liability
under § 1983, much less that he was capable of making such a
showing with further discovery. The proposed amended complaint
added an allegation that “[t]he City is alternatively liable
because of a pattern, practice or policy of constitutional
violations or grossly inadequate training that was likely to
result in constitutional violations.” The Rule 56(f) motion
states that plaintiff and his attorney “are aware of police and
17
Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th
Cir. 1993)(citations omitted; emphasis in original).
18
Id. at 1441.
19
Overseas Inns S.A. P.A. v. United States, 911 F.2d 1146,
1151 (5th Cir. 1990) (quoting district court below).
7
fire department employees who have committed violent acts due to
job-related stress and who feel that the City’s response to job-
related stress is grossly inappropriate.” The references to
“grossly inadequate” or “grossly inappropriate” training suggest
a gross negligence standard. As explained above, municipal
liability for failure to train cannot be based on a gross
negligence; the more stringent deliberate indifference standard
applies. The motion for leave to amend states that plaintiff
“seeks to add an allegation to make it clear that the City of
Dallas is alleged to be liable vicariously for the constitutional
deprivation of its employee.” As explained above, municipalities
cannot be held vicariously liable under § 1983. Tarantino’s
affidavit states that he has heard City firemen admit that job-
related stress has brought them to the verge of violence, that
City supervisors discouraged them from getting appropriate help,
and that “I also have the sense that these problems may have been
widespread.” However, Tarantino did not indicate that he
understood, intended to prove, or was capable of proving that the
City’s practice of discouraging firemen from getting appropriate
psychological help was so common and well settled as to
constitute a custom that fairly represents municipal policy, or
that actual or constructive knowledge of such custom is
attributable to the governing body of the municipality or to an
official to whom that body has delegated policy-making authority.
8
As explained above, the plaintiff must make such showings to
prevail against a municipality under § 1983.
Finally, we note that the proposed amended complaint did not
state a claim against the City under state law. Insofar as it
can be read to assert a negligent training claim under state law,
the waiver of sovereign immunity under state law only extends to
the operation of motorized vehicles or equipment, and injuries
caused by the operation or use of tangible personal or real
property, as explained above. A negligent training claim does
not fall under these exceptions to sovereign immunity.
AFFIRMED.
9