Diaz v. Mayor of Corpus Christi , 121 F. App'x 36 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 19, 2005
_____________________
Charles R. Fulbruge III
No. 04-40520 Clerk
Summary Calendar
_____________________
RUBEN DIAZ, JR., for Jacob Diaz,
Plaintiff - Appellant,
versus
MAYOR OF CORPUS CHRISTI; CARRASCO, JR.,
Police Officer; T. J. WEAVER, Police;
R. ORTIZ, Police; CITY OF CORPUS CHRISTI
POLICE DEPARTMENT,
Defendants - Appellees.
----------------------------------------------------------------
RUBEN DIAZ, JR. (Father) for Jacob Diaz
(Deceased),
Plaintiff - Appellant,
versus
THE MAYOR OF CORPUS CHRISTI; THE CITY OF
CORPUS CHRISTI POLICE DEPARTMENT; THE
CITY OF CORPUS CHRISTI; DISPATCHER JOHN
DOE/JANE DOE; OFFICER JOHN DOE/JANE DOE
#1; OFFICER JANE DOE/JOHN DOE #2,
Defendants - Appellees.
________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CV-479
USDC No. 2:03-CV-490
________________________________________________________________
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:1
Ruben Diaz, Jr. (“Diaz”), appeals the district court’s
dismissal of his claims related to the death of his son. We
AFFIRM.
I
Diaz, a federal prisoner, filed a pro se wrongful death action
in Texas state court against various political officials and police
officers from Corpus Christi, Texas, alleging that they were
responsible for the death of his son, Jacob Diaz (“Jacob”). He
alleged that the defendants had been willfully negligent and
deliberately indifferent and had violated his son’s constitutional
right to be free from “cruel and unusual punishment” when they
failed to respond appropriately to a “911" call reporting that
Jacob was being attacked by several men, leaving him to bleed to
death. Diaz sought $2 million in damages. The defendants removed
the wrongful death action to federal court because Diaz had alleged
a violation of Jacob’s constitutional rights.
Diaz also filed in federal court a pro se civil rights action
under 42 U.S.C. § 1983, naming most of the same defendants and
alleging essentially the same facts set forth in the wrongful death
1
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this opinion should not be published and is not precedent except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.
2
action. He attached a copy of his wrongful death complaint to the
civil rights complaint.
The defendants filed identical motions to dismiss the civil
rights and wrongful death complaints for failure to state a claim.
The two actions were consolidated, and the district court dismissed
Diaz’s claims on the ground that it lacked jurisdiction because
Diaz lacked standing to bring a § 1983 action on behalf of his
deceased son. The court declined to exercise supplemental
jurisdiction over Diaz’s state law claims. Judgment was entered on
March 23, 2004.
On April 8, Diaz filed a “Memorandum in Opposition” to the
order of dismissal or, in the alternative, a notice of appeal. The
attached envelope was postmarked April 5, 2004, and the back of the
envelope contains a date stamp of April 3, 2004, indicating that
the envelope was given to prison officials for mailing on that
date.
On May 24, 2004, the district court issued an order denying
Diaz’s “Motion for Reconsideration.” The court concluded that
Diaz’s motion was a motion for relief from judgment under Rule
60(b) rather than a Rule 59(e) motion to alter or amend the
judgment because it was filed sixteen days after the entry of
judgment. The court observed that Diaz had not challenged its
finding that it lacked jurisdiction, and it concluded that even if
it were to construe Diaz’s action as one for injuries he personally
suffered as a result of the deprivation of his son’s constitutional
3
rights, Diaz had failed to state a constitutional claim under §
1983.
II
A
Diaz’s “Memorandum in Opposition”, construed by the district
court as a motion for reconsideration, qualified as a FED. R. CIV.
P. 59(e) motion to alter or amend the judgment because it was
submitted to prison officials for mailing to the clerk within ten
days after the court granted the defendants’ motion to dismiss.
See FED. R. CIV. P. 6(a); Houston v. Lack, 487 U.S. 266, 269-76
(1988). Accordingly, the underlying judgment is before this court
for review. See Simmons v. Reliance Std. Life Ins. Co. of Texas,
310 F.3d 865, 867 (5th Cir. 2002).
B
Citing this court’s opinion in Baker v. Putnal, 75 F.3d 190,
195 (5th Cir. 1996), the district court held that it lacked
jurisdiction over Diaz’s claims regarding his son, because the
“parents of the deceased may only ‘sue under § 1983 for their own
injuries resulting from the deprivation of decedent’s
constitutional rights.’” Although Diaz does not challenge the
district court’s conclusion that it lacked jurisdiction over his
complaint, we nevertheless have the duty to consider this issue sua
sponte. Bridgmon v. Array Systems Corp., 325 F.3d 572, 575 (5th
Cir. 2003).
4
“[B]efore a federal court can consider the merits of a legal
claim, the person seeking to invoke the jurisdiction of the court
must establish the requisite standing to sue.” Whitmore v.
Arkansas, 495 U.S. 149, 154 (1990). “Standing under the Civil
Rights Statutes is guided by 42 U.S.C. § 1988, which provides that
state common law is used to fill the gaps in administration of
civil rights suits.” Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir.
2004). “Therefore, a party must have standing under the state
wrongful death or survival statutes to bring a claim under 42
U.S.C. §§ 1981, 1983, and 1988.” Id. (emphasis added).
In Texas, “[a] survival cause of action is brought by the
deceased’s estate to redress the deceased’s own injuries.” See
Gandara v. Slade, 832 S.W.2d 164, 167 (Tex. Ct. App. 1992)
(emphasis added) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 71.021
(1986)). On the other hand, “[a] wrongful death cause of action is
brought by survivors of the deceased to compensate themselves for
their loss of future pecuniary benefits, loss of inheritance,
mental anguish, and loss of society and companionship.” Id.
(citing TEX. CIV. PRAC. & REM. CODE ANN. § 71.004 (1986)).
Contrary to the district court’s conclusion, Baker did not
hold that surviving family members may sue only for their “own
injuries” in order to recover for the violation of a decedent’s
constitutional rights. Baker, 75 F.3d at 195. In Baker, this
court held that it is not the case “that only the person whose
constitutional rights have been violated may bring an action under
5
§ 1983.” Baker, 75 F.3d at 195. “On the contrary, it is the law
of this circuit that individuals who are within the class of people
entitled to recover under Texas’s wrongful death statute have
standing to sue under § 1983 for their own injuries from the
deprivation of decedent’s constitutional rights.” Id. The court
emphasized that the Texas wrongful death statute, TEX. CIV. PRAC. &
REM. CODE ANN. § 71.004 (West 1986), “clearly recognizes the right
of the surviving children and parents of the deceased to bring an
action for the benefit of all.” Id.
In his pro se § 1983 and wrongful-death complaints, Diaz did
not explicitly allege injuries that he had suffered personally as
a result of the violation of his son’s constitutional rights.
There is no allegation by Diaz, a federal prisoner, that he is a
legal representative of his son’s estate and thus entitled to bring
a survival action. Nonetheless, a pro se litigant’s pleadings must
be construed liberally in his favor. Oliver v. Scott, 276 F.3d
736, 740 (5th Cir. 2002) (citing Haines v. Kerner, 404 U.S. 519,
520 (1972)).
The minutes of a pretrial conference and evidentiary hearing
conducted by the magistrate judge on December 31, 2003, reflect
that the magistrate judge instructed Diaz to look in the Texas
Civil Practice and Remedies Code, sections 71.004A and 71.021B, so
that he could advise the magistrate judge whether he wished to
proceed under the Texas Survivor Act or the Texas Wrongful Death
Act. The magistrate judge’s report and recommendation states that,
6
at the Spears hearing conducted on March 10, 2004, Diaz informed
the magistrate judge that he was intending to sue for his son’s
wrongful death. Thus, although Diaz did not explicitly enumerate
injuries that he had suffered personally, we conclude that the
district court should have liberally construed his “wrongful death”
action such that it inherently alleged such losses. We therefore
hold that Diaz has standing to assert claims for the wrongful death
of his son.
C
Having concluded that the district court had jurisdiction to
adjudicate the merits, we now turn to consider the district court’s
ruling, in its order denying Diaz’s motion for reconsideration,
that Diaz had failed to state a claim for the violation of his
son’s constitutional rights. Diaz has not alleged that the 911
caller informed the dispatcher as to Jacob’s identity, location, or
condition, nor has he asserted that any of the police officers who
responded to the 911 call were aware of these matters. Mere
negligence, of course, does not give rise to a cognizable
constitutional claim under 42 U.S.C. § 1983. Daniels v. Williams,
474 U.S. 327, 332-36 (1986). To the extent that Diaz asserts a
claim that Jacob was subjected to “cruel and unusual punishment,”
the Cruel and Unusual Punishment Clause protects only convicted
prisoners. See Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996).
To the extent that Diaz is arguing that the defendants’ acts and
omissions violated his son’s substantive due process rights, he has
7
not shown either that Jacob was constitutionally entitled to
competent protective or rescue services, see Beltran v. City of El
Paso, 367 F.3d 299, 303-04 (5th Cir. 2004); Brown v. Commonwealth
of Pa., Dep’t of Health Emerg. Med. Servs. Training Inst., 318 F.3d
473, 478 (3d Cir. 2003), or that the defendants’ acts and omissions
“‘can properly be characterized as arbitrary, or conscience
shocking, in a constitutional sense.’” County of Sacramento v.
Lewis, 523 U.S. 833, 847 (1998) (citation omitted). We therefore
conclude that the district court did not err by dismissing Diaz’s
claims. See Vulcan Materials Co. v. City of Tehuacana, 238 F.3d
382, 387 (5th Cir. 2001).
III
The judgment of the district court is
AFFIRMED.
8