Vest v. State of Mississippi ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60403
Summary Calendar
DEENA LYNN VEST; TRACY CARL VEST, husband,
Plaintiffs-Appellants,
versus
STATE OF MISSISSIPPI; ET AL,
Defendants,
STATE OF MISSISSIPPI; TOMMY BARRETT, Individually and in his
Official Capacity,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:00-CV-48-P-B
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January 15, 2003
Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:1
Deena Lynn Vest and her husband, Tracy Carl Vest, appeal the
grant of the defendants’ FED. R. CIV. P. 12(b)(6) motion to dismiss
their complaint which raised claims under 42 U.S.C. § 1983 and
state law. The Vests argue that Patrolman Barrett’s failure to try
to locate Deena Vest’s car after it was pushed from the road in an
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that this opinion should not be published and is not precedent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.
accident violated the due process and equal protection clauses of
the Fourteenth Amendment. We review the district court’s ruling on
a FED. R. CIV. PRO. 12(b)(6) motion de novo. See Oliver v. Scott,
276 F.3d 736, 740 (5th Cir. 2002).
The complaint alleged that the dispatch office was informed by
an eyewitness that there had been a two-car collision, that law
enforcement personnel were sent to the scene of a “one-car”
accident, that, although physical evidence was present at the scene
to indicate a two-car collision, no search efforts were undertaken
for the other car, and that, even after the eyewitness told
Patrolman Barrett of the location of Deena Vest’s vehicle, no
reasonable search efforts for the car were undertaken. “To plead
a constitutional claim for relief under § 1983, [a plaintiff must]
allege a violation of a right secured . . . by the Constitution or
laws of the United States and a violation of that right by one or
more state actors.” Johnson v. Dallas Indep. Sch. Dist., 38 F.3d
198, 200 (5th Cir. 1994). However, the Due Process Clause of the
Fourteenth Amendment does not generally require the government to
protect its citizens against the acts of private actors. See
DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189,
195 (1989).
The gravaman of the Vests’ complaint is negligence, and,
therefore, it does not state a 42 U.S.C. § 1983 claim. See Jacquez
v. Procunier, 801 F.2d 789 (5th Cir. 1986). Although they allege
Patrolman Barrett’s failure to make a reasonable search was “a
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deliberate and intentional disregard and indifference to the safety
and well-being” of the Vests, such conclusional allegations that
are unsupported by facts do not state a claim under 42 U.S.C. §
1983. See Mowbray v. Cameron County, Tex., 274 F.3d 269, 278 (5th
Cir. 2001), cert. denied, 122 S. Ct. 1912 (2002).
The Vests also argue that Patrolman Barrett’s attempts to
protect the police officer responsible for the accident rather than
search for Deena’s car represents “blue blindness” resulting in an
equal-protection violation. The Vests offer no explanation of why
they should be considered members of a protected class such that
the Equal Protection Clause would be triggered by the facts of the
instant case. See Johnson v. Morel, 876 F.2d 477, 479 (5th Cir.
1989), abrogated on other grounds, Harper v. Harris County, Tex.,
21 F.3d 597 (5th Cir. 1994). The judgment of the district court
dismissing the Vests’ 42 U.S.C. § 1983 claims is AFFIRMED.
In a related state-law claim, the Vests also contend that the
district court erred in holding that their claim did not come under
the reckless-disregard exception to the Mississippi Tort Claims
Act. Under the Mississippi Tort Claims Act (MTCA), the State is
immune against claims “arising out of” “the performance or
execution of duties or activities relating to police or fire
protection unless the employee acted in reckless disregard of the
safety and well-being of any person not engaged in criminal
activity at the time of injury.” MISS. CODE ANN. § 11-46-9(1)(c).
“‘[R]eckless disregard’ embraces willful or wanton conduct which
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requires knowingly and intentionally doing a thing or wrongful
act.” Maye v. Pearl River County, 758 So. 2d 391, 394 (Miss.
1999). “Wantonness is a failure or refusal to exercise any care,
while negligence is a failure to exercise due care.” Turner v.
City of Ruleville, 735 So. 2d 226, 229 (Miss. 1999).
Because the motion to dismiss was based on Federal Rule of
Civil Procedure 12(b)(6), the complaint is liberally construed in
the plaintiffs’ favor, and all facts pleaded in the complaint must
be taken as true. Manguno v. Prudential Property and Cas. Ins.
Co., 276 F.3d 720, 725 (5th Cir. 2002). Such a motion is viewed
with disfavor and is rarely granted. Id. A complaint should be
dismissed under FED. R. CIV. P. 12(b)(6) only if it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim that would entitle him to relief. Id.The Vests’ complaint alleged that Patrolman Barrett ignored
the eyewitness’s statement that there was a second car involved in
the collision, which had gone into the ditch. They further alleged
that no search efforts were undertaken by the defendants to
ascertain the location of Deena Vest’s vehicle. Accepting these
facts as true, as we must, we cannot say that the Vests could prove
no set of facts in support of their claim that would entitle them
to relief under the reckless-disregard exception to the MTCA. See
Turner, 735 So. 2d 226, 229; Manguno, 276 F.3d 720, 725.
Accordingly, the district court’s dismissal of their state-law
claim is VACATED and REMANDED for further consideration, including
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whether the district court should exercise its discretion to retain
jurisdiction over the state-law claims. See Hubbard v. Blue Cross
& Blue Shield Ass’n, 42 F.3d 942, 947 (5th Cir. 1995).
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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