Roberts v. City of Shreveport ( 2007 )


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  •                                                                    United States Court of Appeals
                                                                                Fifth Circuit
                                                                             F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                             February 9, 2007
                               FOR THE FIFTH CIRCUIT                     Charles R. Fulbruge III
                                                                                 Clerk
    
    
                                     No. 05-31135
    
    
    
          JOYCE ROBERTS, Administratrix on behalf of Undray
          Carter Estate, LATASHA MILLS, on behalf of La’Quarshay
          Mills, NICOLE MOTON, on behalf of Kearra S. Moton,
    
                                              Plaintiffs-Appellants,
    
                                  versus
    
          CITY OF SHREVEPORT, Etc; ET AL,
    
    
    Defendants,
    
          CITY OF SHREVEPORT, on behalf of Police Department of
          Shreveport; ROBERT RIVET, STEVE PRATOR, XYZ
          INSURANCE CO., SPRINGS OF GRACE BAPTIST
          CHURCH INC.,
    
                                             Defendants-Appellees.
    
    
    
                     On Appeal from the United States District Court
                          for the Western District of Louisiana
                                D.C. No. 5:00-CV-00371
             _______________________________________________________
    
    Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.
    PER CURIAM:*
    
          Before us is the second appeal arising out of the death of Undray Carter.
    
    The relevant facts are set forth in Roberts v. City of Shreveport, 
    397 F.3d 287
     (5th
    
    Cir. 2005). We affirm for the following reasons:
    
          1.     Plaintiff Joyce C. Roberts, the mother of Carter, contends that the
    
    district court erred by holding that she has no standing to pursue a claim under §
    
    1983. We look to state law to determine who may recover under § 1983. See
    
    Rhyne v. Henderson County, 
    973 F.2d 386
    , 390–91 (5th Cir. 1992). The Louisiana
    
    statutes governing survival and wrongful death actions allow surviving parents to
    
    bring such an action “if he [the decedent] left no spouse or child surviving.” LA.
    
    CIV. CODE ANN. art. 2315.1 & 2315.2 (West 1997). In this case, Carter is survived
    
    by two minor children, and thus Roberts has no standing to bring suit under § 1983.
    
          2.     The plaintiffs challenge the district court’s grant of summary judgment
    
    for Springs of Grace Baptist Church, arguing that the Church was vicariously liable
    
    for Rivet’s tortious actions. Under Louisiana law, an employer is liable for the
    
    tortious acts of an employee if the employee’s actions were within the course and
    
    
    
          *
            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.
    
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    scope of his employment. LeBrane v. Lewis, 
    292 So. 2d 216
    , 217–18 (La. 1974).
    
    Vicarious liability will attach “only if the employee is acting within the ambit of his
    
    assigned duties and in furtherance of his of his employer’s objectives.” Wearrien
    
    v. Viverette, 35-446 (La. App. 2 Cir. 12/5/01) 
    803 So. 2d 297
    , 300. “The
    
    employee’s tortious conduct must be so closely connected in time, place, and
    
    causation to his employment duties as to be regarded a risk of harm fairly
    
    attributable to the employer’s business, as compared with conduct motivated by
    
    purely personal considerations entirely extraneous to the employer’s interests.” Id.
    
    To determine whether the actions were within the course and scope of employment,
    
    courts consider the following four factors:
    
    (1) whether the tortious act was primarily employment rooted;
    (2) whether the act was reasonably incidental to the performance of the employee’s
    duties;
    (3) whether the act occurred on the employer’s premises; and
    (4) whether it occurred during the hours of employment.
    
    Id. at 301.
    
          In this case, the act indisputably occurred within the hours of employment,
    
    on the employer’s premises, and thus two of the four factors are met. However,
    
    Rivet’s actions in killing Carter were not primarily related to his job as a crossing-
    
    guard, but to his own self-defense and his duties as a police officer. Furthermore,
    
    the shooting was not incidental to the duties of a crossing guard, nor in furtherance
    
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    of the Church’s objectives. Thus, the Church cannot be held liable for Rivet’s
    
    actions.
    
           3.     The plaintiffs argue that the district court improperly denied summary
    
    judgment on their state law tort claims against the City of Shreveport. They
    
    contend that the jury verdict against Rivet means that Rivet was negligent.
    
    However, the jury’s verdict on the plaintiffs’ federal law claims does not constitute
    
    a finding that Rivet was negligent under Louisiana law, and thus the district court
    
    did not err in denying plaintiffs’ motion for summary judgment.
    
           4.     Finally, plaintiffs contend that they have demonstrated a pattern of
    
    unconstitutional conduct by Officer Rivet, and therefore the district court judge
    
    erred in granting summary judgment for the City of Shreveport and the former
    
    Chief of Police on plaintiffs’ § 1983 claims.
    
           We have already addressed the pattern of allegedly unconstitutional conduct
    
    to which the plaintiffs refer, and held that “plaintiffs fall short in attempting to
    
    demonstrate a pattern of unconstitutional conduct on the part of Officer Rivet.”
    
    Roberts v. City of Shreveport, 
    397 F.3d 287
    , 294 (5th Cir. 2005). Plaintiffs have
    
    adduced no further evidence of unconstitutional behavior. Thus, plaintiffs have not
    
    shown that the City condoned any unconstitutional policy, custom, or practice that
    
    caused a violation of Carter’s constitutional rights, and their argument fails.
    
                                                4
    AFFIRMED.
    
    
    
    
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