Doe v. Rains County Independent School Dist. ( 1995 )

                          FOR THE FIFTH CIRCUIT
                              No. 94-41113
    JOHN DOE and JANE DOE, as Next Friend of
    Sarah Doe,
    ET AL.,
              Appeal from the United States District Court
                    for the Eastern District of Texas
                            (October 3, 1995)
    Before REYNALDO G. GARZA, KING, and HIGGINBOTHAM, Circuit Judges.
    HIGGINBOTHAM, Circuit Judge:
         This appeal arises from yet another tragic instance of a high
    school coach's alleged sexual abuse of a student.       It brings a
    difficult issue testing limits of federal judicial authority:
    whether a school teacher's breach of a state-law duty to report
    child abuse can, by itself, give rise to a federal claim against
    the teacher under 42 U.S.C. § 1983.      The parents of Sarah Doe
    allege that Dana White, a school teacher, caused Sarah to be
    deprived of rights protected under state law and the federal
    constitution when White failed to report her discovery of Sarah's
    sexual abuse within forty-eight hours as required by Texas law.
    See Tex. Fam. Code Ann. § 34.01-34.02.      White appeals from the
    district court's denial of her motion for summary judgment, in
    which she asserted qualified immunity.   We do not reach the issue
    of qualified immunity.   We conclude that because White's breach of
    her duty under Texas law to report child abuse was not under color
    of state law, the Does failed to state a claim under § 1983 against
    White.   We reverse and order dismissal of the suit against White.
         The Does argue that the sole issue before us is the district
    court's denial of White's motion for summary judgment on qualified
    immunity grounds, and that we therefore lack authority to review
    the ruling below that the Does have stated a claim against White.
    This argument is without merit.   When reviewing a district court's
    rejection of a defendant's assertion of qualified immunity, we
    start by asking whether plaintiffs have alleged a violation of a
    clearly established constitutional right.   Blackwell v. Barton, 
    34 F.3d 298
    , 301 (5th Cir. 1994). Thus, before reaching the qualified
    immunity question, we "first resolve the constitutional question --
    that is, whether [plaintiffs have] stated a claim for a violation
    of a right secured to [them] under the United States Constitution."
    Duckett v. City of Cedar Park, 
    950 F.2d 272
    , 278 (5th Cir. 1992)
    (citing Siegert v. Gilley, 
    500 U.S. 226
    , 232 (1991)).   In deciding
    whether the Does have stated a claim against White, we accept as
    true the facts as alleged by the Does.
         In September 1990, David Siepert resigned from his teaching
    and coaching position with the Lake Dallas Independent School
    District, amid allegations that he was sexually involved with a
    student of his who had been babysitting for him.   In August 1991,
    with the help of Arthur Talkington, a former Lake Dallas colleague
    who was employed with RISD, Siepert obtained a coaching position at
    Rains High School in RISD.   From the start of his employment with
    RISD, Siepert developed a reputation for acting inappropriately
    toward female students.   Reports of his misbehavior indicated, for
    example, that Siepert summoned female students from class early to
    wrap ankles or wrists for athletics, talked in front of students
    about dating high school students, and massaged a female student
    while alone with her in the gym.
         During the fall of 1991, while fifteen-year-old Sarah Doe was
    a student in Siepert's physical education class, Siepert contacted
    Sarah at school about babysitting for him.    Not long after Sarah
    began babysitting for Siepert's two children, Siepert began making
    sexual advances toward her. Siepert eventually began having sexual
    intercourse with Sarah on a regular basis throughout the 1991-1992
    school year, typically at his home while Sarah was "babysitting."1
    Siepert, though, did not limit his interaction with Sarah to his
          Siepert has denied the allegations that he engaged in any
    misconduct of a sexual nature with Sarah.
    home.       He often discussed babysitting arrangements with Sarah at
    school, drove Sarah from school to his home when she was scheduled
    to babysit, and gave gifts to her while in his car or at school.
    In addition, Siepert had physical contact with Sarah during his
    physical education class; for example, he would request Sarah's
    assistance in putting away athletic equipment, then grab her hands
    and buttocks while they were alone in the equipment room.    Although
    this in-school contact ended with the arrival of summer vacation,
    Siepert's requests for babysitting assistance did not.
         Dana White entered the scene during the summer of 1992.    White
    was employed as a junior high school teacher with RISD from August
    1982 until June 1993, during which time she was certified as a
    teacher in Texas and paid monthly pursuant to her teaching contract
    with RISD.       On June 22, 1992, White found out that Siepert was
    having sexual relations with Sarah.       On that date, Sarah called
    White from Siepert's home, where Sarah was babysitting, to ask for
    advice about a condom leak.       White suspected that Sarah might be
    having problems of a sexual nature with the adult for whom she was
    babysitting, but did not know his identity until Sarah indicated
    that she was babysitting for Siepert.       White immediately went to
    Siepert's home to talk with Sarah in person, at which time Sarah
    revealed the details of her ongoing sexual affair with Siepert.
    White chose not to report Siepert's abuse of Sarah at that time.2
          White insists that she remained silent to honor her promise
    of confidentiality to Sarah, which Sarah demanded before revealing
    Siepert's identity, and also because White believed that Sarah was
    not in immediate danger since Siepert was out of town. Although
    White's reasons for not reporting the abuse are not in the Does'
         Although Sarah made efforts to terminate her involvement with
    Siepert, she continued to babysit for him intermittently throughout
    the summer and into the fall of 1992.   On November 5, 1992, Sarah
    visited White's classroom to complain about her frustration with
    Siepert.   Sarah told White that Siepert had been making Sarah feel
    guilty about turning down babysitting assignments, and that he had
    told Sarah that he was interested in dating her.   White discussed
    Sarah's problem with her brother, her husband, and an attorney, but
    she again declined to report the abuse to the proper authorities.
    From November 5 through November 12, 1992, White and other school
    teachers and officials had various conversations regarding Sarah's
    abuse; however, a proper report was not made until November 12.3
         Jane and John Doe brought this civil rights suit asserting
    state and federal claims on behalf of Sarah against Siepert, White,
    RISD, and certain other RISD teachers and officials.      The Does
    allege that the defendants violated, inter alia, the Due Process
    Clause of the Fourteenth Amendment by causing Sarah to be deprived
    of her liberty interest in bodily integrity.   The Does sued White
    in her individual and official capacities, asserting that White, by
    exhibiting deliberate indifference to Sarah's constitutional rights
    alleged facts and thus not relevant to our disposition, we mention
    them to facilitate a better understanding of the supposed
    circumstances of White's inaction.
         On that date, White accompanied Sarah to Sarah's home, where
    Sarah told her parents about her involvement with Siepert. While
    there are conflicting indications as to what happened immediately
    thereafter, there is no dispute that White subsequently went to the
    local sheriff's office to file a report that included a discussion
    of Sarah's sexual involvement with Siepert.
    in breaching her duty under Texas law to report Sarah's abuse,
    caused Sarah's deprivation under color of state law.   White moved
    for summary judgment, arguing that the Does had failed to state a
    claim against her in her official capacity, and that she was
    entitled to qualified immunity in her individual capacity.       The
    district court granted summary judgment for White in her official
    capacity, but denied her motion as to her individual capacity.
    White appeals this denial of summary judgment on her qualified
    immunity claim, asserting that the Does have failed to state a
    § 1983 claim against her, and that in any event she is entitled to
    qualified immunity.
         To state a claim under § 1983, plaintiffs must allege two
    elements:   first, that they were deprived of a right or interest
    secured by the Constitution and laws of the United States, and
    second, that the deprivation occurred color of state law.   See West
    v. Atkins, 
    487 U.S. 42
    , 48 (1988).4   Where an asserted interest is
    protected by a constitutional provision that operates only against
          § 1983 provides, in relevant part:
         Every person who, under color of any statute, ordinance,
         regulation, custom, or usage, of any State or Territory
         or the District of Columbia, subjects, or causes to be
         subjected, any citizen of the United States or other
         person within the jurisdiction thereof to the deprivation
         of any rights, privileges, or immunities secured by the
         Constitution and laws, shall be liable to the party
         injured in an action at law, suit in equity, or other
         proper proceeding for redress.
    the State, such as those of the Fourteenth Amendment, plaintiffs
    must also allege state action to satisfy the first step of alleging
    an actionable deprivation.      See Lugar v. Edmondson Oil Co., 
    457 U.S. 922
    , 930 (1982).       Hence, to allege a violation of the Due
    Process Clause of the Fourteenth Amendment, the under color of
    state law requirement of § 1983 is usually overlapped by an
    allegation of state action made in asserting the constitutional
    violation. The Fourteenth Amendment's state action requirement may
    be nominally distinct from § 1983's under color of state law
    requirement, but the two inquiries are related; a showing of state
    action is sufficient to establish action under color of state law,
    id. at 935 & n.18, and "it is clear that in a § 1983 action brought
    against a state official, the statutory requirement of action
    `under color of state law' and the `state action' requirement of
    the Fourteenth Amendment are identical," id. at 929.            Accordingly,
    in § 1983 suits alleging a violation of the Due Process Clause of
    the Fourteenth Amendment, we have collapsed the state action and
    color   of   state   law   inquiries       into   a   single,   second   step:
    Plaintiffs must (1) assert a protected "liberty or property"
    interest and (2) show that they were deprived of that interest
    under color of state law.     See Doe v. Taylor Indep. Sch. Dist., 
    15 F.3d 443
    , 450 (5th Cir. 1993) (en banc), cert. denied, Lankford v.
    115 S. Ct. 70
         In light of our recent decision in Doe v. Taylor, we have
    little trouble concluding that the Does' allegations are sufficient
    to establish that Sarah suffered an actionable deprivation of her
    liberty interest in freedom from sexual abuse by persons wielding
    state authority.    In Doe v. Taylor, we held that "schoolchildren do
    have a liberty interest in their bodily integrity that is protected
    by the Due Process Clause of the Fourteenth Amendment and that
    physical sexual abuse by a school employee violates that right."
    15 F.3d at 445.    The factual predicate of Doe v. Taylor painted an
    unfortunate picture of sexual exploitation that is similar to what
    allegedly transpired in this case:             A high school coach who had a
    reputation for behaving inappropriately toward female students
    developed a sexual interest in a fifteen-year-old student in his
    biology class.      Using his state power and status, the coach
    manipulated the student, pursuing her during school hours and on
    school grounds -- for example, by writing suggestive notes on her
    homework and exams, showing her favoritism in class, and buying
    alcoholic    beverages    for     her    and    her   friends       during    lunch,
    eventually    having     sexual       intercourse     with    her    on    repeated
    occasions.   We concluded that he had acted under color of state law
    in sexually abusing the student, finding that "a `real nexus'
    exist[ed] between the activity out of which the violation occur[ed]
    and the teacher's duties and obligations as a teacher." Id. at 452
           Doe v. Taylor persuades us that the Does have stated a § 1983
    claim    against   Siepert      for     depriving     Sarah   of     her     federal
    constitutional right to bodily integrity.              Sarah was a student in
    Siepert's class, and Siepert had considerable interaction with
    Sarah at school:    He allegedly discussed babysitting arrangements
    with her, gave her rides from school, delivered personal notes to
    her, and gave gifts to her.           Particularly since White herself
    concedes in her brief that Siepert can be held liable under § 1983
    for Sarah's injury, we find it appropriate to assume, for purposes
    of this appeal, that the Does have adequately alleged that Siepert
    acted under color of state law in causing Doe to be deprived of her
    liberty interest in bodily integrity.         It is true that this reach
    of a constitutionally secured interest in personal liberty is
    fairly debatable as an original proposition.            We were persuaded in
    Doe v. Taylor that Supreme Court precedent has ended that precise
    debate for this, an inferior court.
         That a deprivation has occurred at the hands of a state actor,
    however, does not answer the separate question of which other
    persons, apart from the immediate perpetrator, may be held liable
    under § 1983.   To help focus this inquiry, our decision in Bush v.
    795 F.2d 1203
     (5th Cir. 1986), outlined a three-step
    approach for drawing the circle of liability in a § 1983 action.
    After finding that (1) a rights violation occurred (2) under color
    of state law, only then do we ask a third and final question:             Who
    are the state actors responsible for the constitutional violation?
    Id. at 1209; see also Collins v. City of Harker Heights, 
    112 S. Ct. 1061
    , 1066 (1992) ("[P]roper analysis requires us to separate two
    different   issues   when   a   §   1983   claim   is   asserted   against    a
    municipality:    (1)   whether      plaintiff's    harm   was   caused   by   a
    constitutional violation, and (2) if so, whether the city is
    responsible for that violation.").   As we explained in Bush, this
    final question "will usually be answered exclusively by reference
    to state law and practice. . . .        The states have virtually
    complete freedom to decide who will be responsible for such tasks,
    and therewith to determine who will be held liable for civil rights
    violations that occur in the course of carrying them out."     795
    F.2d at 1209.   Much as state law defines property interests, see
    Cleveland Bd. of Educ. v. Loudermill, 
    470 U.S. 532
    , 538 (1985),
    identifies which state officials have final policymaking authority,
    see City of St. Louis v. Praprotnik, 
    485 U.S. 112
    , 124-27 (1988),
    and determines whether a federal employee was acting within the
    scope of his employment, see Garcia v. United States, 
    62 F.3d 126
    ___ (5th Cir. 1995) (en banc), state law in this context delineates
    the contours of federal liability by locating the persons who can
    be held responsible under § 1983 for causing a constitutional
         The Does allege that the Texas Family Code, by imposing on
    teachers an affirmative duty to report child abuse in a timely
    manner, has encircled White as a state actor who can be held liable
    under § 1983 for Sarah's deprivation.    The Family Code provides
    generally that "[a]ny person having cause to believe that a child's
    physical or mental health or welfare has been or may be adversely
    affected by abuse or neglect shall report in accordance with
    Section 34.02 of this code."   Tex. Fam. Code Ann. § 34.01.   While
    Subsections (a) and (b) of § 34.02 prescribe the requisite method
    and content for a proper report, § 34.02(d) establishes a more
    stringent reporting requirement for "professionals":
         If a professional has cause to believe that a child has
         been or may be abused or neglected, the professional
         shall make an oral report as prescribed by Subsection (a)
         of this section not later than the 48th hour after the
         hour the professional first suspects that the child has
         been or may be abused or neglected. . . .         In this
         subsection, "professional" means an individual who is
         licensed or certified by the state, or who is an employee
         of a facility licensed, certified, or operated by the
         state, and who in the normal course of official duties,
         or duties for which a license or certification is
         required,    has    direct    contact   with    children.
         "Professional" includes teachers, nurses, doctors, and
         day-care employees.
    Hence, since a knowing failure to report in accordance with the
    applicable requirements is punishable as a misdemeanor, see Tex.
    Fam. Code Ann. § 34.07, the Family Code imposes on all teachers a
    criminally enforceable obligation to report child abuse within
    forty-eight hours of acquiring suspicion or knowledge of the abuse.
         The Does argue that a teacher who waits longer than forty-
    eight hours to report state-occasioned child abuse subjects herself
    to liability under § 1983 if she was deliberately indifferent to
    the constitutional rights of the abused child.   In particular, the
    Does rely on our holding in Doe v. Taylor that, where supervisory
    school officials were deliberately indifferent to a subordinate
    teacher's sexual abuse of a grade-school student, the officials can
    be held responsible for the resulting deprivation of the student's
    constitutional rights. See 15 F.3d at 452-54. While acknowledging
    that White was not a supervisory official, the Does suggest that
    our reasoning in Doe v. Taylor should be extended to this case,
    emphasizing the following passage from the concurring opinion:
    "State law allows us `to identify the persons responsible for [the]
    identified civil rights violation.' . . .                   To put the matter
    differently, state law guides us in circling state actors who
    fairly can be said to have caused Doe to be subjected to the rights
    violation."      Id. at 463 (Higginbotham, J., concurring).                  The
    district court agreed with the Does, relying on this passage in
    concluding that the Does had stated a § 1983 claim against White
    for causing Sarah's constitutional deprivation.
          White does not dispute that she breached her duty under Texas
    law by not reporting Sarah's abuse more promptly.                 Instead, she
    argues that her breach, standing alone, cannot give rise to a
    federal claim against her.        Thus, White offers a contrary reading
    of   Doe   v.   Taylor,    pointing   to    a   different   statement   in   the
    concurrence:     "Consider a classroom teacher in the same school as
    Coach Stroud who had full knowledge of Coach Stroud's activities
    but looked the other way.         Any moral duty aside, no one suggests
    that § 1983 imposes liability upon this silent teacher."                Id. at
    464 (Higginbotham, J., concurring).
          As the Does have pointed out, however, White omitted a key
    sentence that immediately follows her quoted segment:                    "This
    conclusion is found in the role of state law."              Id.   The Does thus
    argue that here, unlike Doe v. Taylor, state law does impose an
    affirmative duty on a fellow teacher not to remain silent, and that
    White's breach of that duty therefore can serve as the basis for
    § 1983 liability.         Hence, the precise question for this court is
    whether state law supports the conclusion that White's breach of
    her state-law duty to report child abuse renders her responsible
    for Sarah's constitutional injury at the hands of Siepert.
         The Does arguments, though logically enticing, are ultimately
    incomplete.       As we explained in Bush, it is often difficult, but
    nevertheless essential, to "isolat[e] the appropriate inquiry into
    the identity of the state actors responsible for the violations
    from the separate question of whether particular defendants had
    breached some duty imposed on them by state law."                 795 F.2d at 1209
    (emphasis added).        While the state may levy responsibility for
    constitutional injuries through imposition of state-law duties, it
    does not follow that every person who violates state law is
    amenable to a federal claim.           A state employee's breach of a duty
    does not by itself establish her liability under § 1983; rather,
    asking    whether    a   breach   of    a      state-law   duty   resulted      in   a
    constitutional injury is a vehicle for answering the critical
    question:     whether state law has reposed in a defendant enough
    responsibility for the underlying conduct that she can be said to
    have caused the injury herself. The state allocates responsibility
    under state law, but it is a federal decision as to whether its
    assignments of duties and authority create action under color of
    state law.    A state employee's breach of a state-law duty to act
    can give rise to § 1983 liability, but only if, as a matter of
    federal    law,    the   duty   is   of     such   nature   as    to   render    her
    responsible for the constitutional harm when breached.
           It is important to keep in mind that we are not asking whether
    breach of a state-law duty constitutes a distinct constitutional
    violation.    Since the Does have already asserted an actionable
    constitutional deprivation based on Siepert's abusive conduct, the
    precise question remaining is whether there are persons in addition
    to Siepert whose responsibility under state law is sufficient to
    subject them to liability under § 1983 for that single deprivation
    -- persons who, in the legal sense, are the participants.         By
    supplying the requisite elements of a § 1983 claim -- i.e., a
    constitutional deprivation, causation, and action under color of
    state law -- Siepert's alleged misconduct frees us to redirect our
    focus away from the requirements for a constitutional claim, which
    Siepert has met, and toward the lines of responsibility under state
    law.    In short, once we determine that a constitutional violation
    has occurred, we are no longer barred from finding another person
    liable under § 1983 for committing a state-law breach that caused
    the constitutional injury, even if the breach itself does not
    independently satisfy the elements of a constitutional claim.
           Taken to its extreme, such reliance on state law could allow
    states virtually unfettered latitude in prescribing the scope of
    federal liability.     Subject only to due process limitations, a
    state conceivably could declare a person responsible for someone
    else's unconstitutional conduct, through creation of state-law
    duties, no matter how attenuated the person's relationship to the
    injurious conduct and regardless of whether the person otherwise
    had any affiliation with the state.    But since the effect of state
    law in defining federal liability is ultimately an issue of federal
    law, and given our role in shaping federal law, we have seen fit to
    avoid such an outcome through interpretation of the elements of
    federal constitutional and statutory claims asserted via § 1983.
          The Supreme Court has emphasized that "the Due Process Clause
    `does not purport to supplant traditional tort law in laying down
    rules of conduct to regulate liability for injuries that attend
    living together in society.'" Collins, 112 S. Ct. at 1070 (finding
    no federal constitutional obligation to provide state employees
    with minimum levels of workplace safety and security) (quoting
    Daniels v. Williams, 
    474 U.S. 327
    , 332 (1986)); see also Bush, 795
    F.2d at 1209 ("[T]he enforcement of state law is the job of the
    states, and the federal civil rights statute may not be used to
    bootstrap alleged violations of state law into federal claims.").
    Mindful of its role in preserving the distinction between state law
    torts and constitutional violations, the federal judiciary has
    fashioned certain limiting principles designed to cabin the ability
    of state law to render persons liable under § 1983 for causing a
    constitutional injury.        A municipality, for instance, cannot be
    held vicariously liable under § 1983; rather, plaintiffs must point
    to an official policy or custom that was the "moving force" of a
    constitutional injury.        Monell v. New York City Dep't of Social
    436 U.S. 658
    , 694 (1978). Further, injuries resulting from
    a municipality's failure to train or to supervise its employees can
    give rise to § 1983 liability only where the inaction is indicative
    of   an   official   policy    or   custom   that   manifests   deliberate
    indifference toward the rights of the injured persons. See City of
    Canton v. Harris, 
    489 U.S. 378
    , 388 (1989).        Monell's moving force
    requirement   for   claims   of   failure   to   train   means   that   "the
    identified deficiency in a city's training program must be closely
    related to the ultimate injury."      City of Canton, 489 U.S. at 391.
    Stated another way, "[t]here must at least be an affirmative link
    between the training inadequacies alleged, and the particular
    constitutional violation at issue."         Oklahoma City v. Tuttle, 
    471 U.S. 808
    , 824 n.8 (1985).
         As the Court has explained, "permitting cases against cities
    for their `failure to train' employees to go forward under § 1983
    on a lesser standard of fault would result in de facto respondeat
    superior liability on municipalities -- a result we rejected in
    Monell."   City of Canton, 489 U.S. at 392.       Significantly, though,
    the refusal to impose vicarious liability, the requirement of an
    official policy or custom, the deliberate indifference standard,
    and the moving force test are not mandated by the language of
    either the Constitution or § 1983.           Rather, they are limiting
    principles that federal courts have fashioned in the course of
    drawing the line between liability under state-law obligations and
    § 1983.    The force of this distinction is exemplified by our
    holding that vicarious liability can never be the basis for a
    § 1983 claim, even where state law provides that a supervisor is
    vicariously liable for the conduct of his subordinates. See Baskin
    v. Parker, 
    602 F.2d 1205
    , 1208 (5th Cir. 1979) (relying on Monell).
    We, as federal courts, have chosen to supply certain glosses in our
    construction of § 1983 to bring into focus the difference between
    a state-law breach and a constitutional violation. In other words,
    in asking the federal-law question whether a state-law duty imposed
    responsibility under § 1983 for another person's constitutional
    wrong, we have chosen to say that not all state law obligations are
    of such nature that a person's breach subjects that person to
    federal liability.   We have chosen to demand a heightened showing
    of fault and causation before concluding that breach of a duty to
    act renders a supervisory state official or a municipality liable
    under § 1983.
         That a supervisory school official may be held liable under
    § 1983 for breaching his state-law duty to stop or prevent child
    abuse thus does not compel the conclusion that a nonsupervisory
    teacher is responsible for breaching a state-law duty to report the
    abuse.   Instead, this conclusion depends on a relative analysis of
    state law's treatment of supervisors and teachers.         We must ask
    what it is about a supervisor's duties and functions that renders
    a   state   supervisory   official    liable   for   a   constitutional
    deprivation by a subordinate.        Only when we learn this can we
    decide whether, despite her lack of supervisory powers, a teacher
    who breaches her duty to report child abuse nevertheless engages in
    conduct akin to that of a supervisor who flouts his responsibility
    to supervise.    By focusing on the core elements of supervisory
    liability, we can avoid the "risk of applying state law rather than
    simply using state law to identify the persons responsible for an
    identified civil rights violation."     Bush, 
    795 F.2d 1209
         The Does' reliance on our analysis of supervisory liability in
    Doe v. Taylor begs a critical element of this final step in our
    Bush inquiry:   Was White acting under color of state law when she
    breached this duty?   Color of state law in this context does not
    implicate the state action requirement of the Fourteenth Amendment
    because we are not asking whether White is guilty of committing an
    independent constitutional violation.   Rather, since the Does seek
    to hold White liable for damages under § 1983, the key question is
    whether she has met the statutory requirements of a § 1983 claim --
    whether she fairly can be said to have acted under color of state
    law in causing Sarah's constitutional injury. As the Supreme Court
    has explained, even where state action is not necessary to state a
    claim under § 1983, the color of state law requirement of § 1983
    still maintains its vitality as a statutory element:
         [A]lthough . . . the under-color-of-state-law requirement
         does not add anything not already included within the
         state-action requirement of the Fourteenth Amendment,
         § 1983 is applicable to other constitutional provisions
         and statutory provisions that contain no state-action
         requirement. Where such a federal right is at issue, the
         statutory concept of action under color of state law
         would be a distinct element of the case not satisfied
         implicitly by a finding of a violation of the particular
         federal right.
    Lugar, 457 U.S. at 935 n.18.
         While this case does not involve a federal right apart from
    the Does' Fourteenth Amendment substantive due process claim, the
    Court's analysis is nevertheless instructive as to the "distinct"
    nature of the statutory requirement of "action under color of state
    law."   That is, as Siepert's alleged sexual misconduct has already
    supplied the requisite state action for purposes of asserting a
    Fourteenth Amendment violation, we need not ask about Fourteenth
    Amendment state action in focusing on the Does' § 1983 claim
    against White.   But since we do have to ask whether White has met
    the statutory requirement of action under color of state law, our
    inquiry into White's liability under § 1983 is analytically similar
    to a § 1983 claim in which a claimant asserts the violation of a
    federal provision that does not contain a state action requirement.
    Thus, in asking whether White is liable under § 1983 for causing
    Sarah's deprivation by Siepert, we must determine whether it fairly
    can be said that White's breach of her state-law duty to report
    child abuse was action under color of state law, for only then can
    we find that the Does have satisfied the elements of a § 1983 claim
    against White.
         As we will explain, "color of state law" demands a causal
    connection between the state-law breach and the constitutional
    injury, and satisfaction of this causation requirement in turn
    hinges on the presence of a right of legal control over the events
    culminating in the constitutional harm.     Thus, while state law
    guides us in locating the constitutional actors responsible for
    causing a constitutional injury, we are still constrained in
    drawing the circle of federal liability; we must be satisfied that
    White's failure to report Sarah's abuse within forty-eight hours
    had the requisite causal relationship to Sarah's constitutional
    wrong. Simply put, White is responsible under § 1983 for breaching
    her duty to report Siepert's abuse of Sarah only if state law also
    empowered her with a right of legal control over Siepert.
         While state law imposes a panoply of legally enforceable
    obligations on both citizens and state employees, not every law
    creating a duty establishes that the obligated party is a state
    actor for purposes of fulfilling the duty.        "A State may, through
    its courts and legislatures, impose such affirmative duties of care
    and protection upon its agents as it wishes.       But not `all common-
    law duties owed by government actors were . . . constitutionalized
    by the Fourteenth Amendment.'"     DeShaney v. Winnebago County Dep't
    of Social Servs., 
    489 U.S. 189
    , 202 (1989) (quoting Daniels v.
    Williams, 474 U.S. at 335).     Many jurisdictions, for example, have
    recognized    misprision   of   felony   as   a   common   law   offense,
    criminalizing a failure to report known commission of a felony, see
    21 Am. Jur. 2d § 34, yet it has never been suggested that a person
    becomes a state actor solely by committing this offense.               If
    imposition of a duty on a person by itself cloaked that person with
    state authority such that breach entailed an exercise of state
    power, then every citizen would act under color of state law and
    face federal liability when breaching virtually any state-law
    obligation.   As such an outcome is untenable, a threshold question
    when dealing with any § 1983 action based on a breach of an
    affirmative duty is whether the alleged failure to act can be said
    to constitute action under color of state law.
         Liability attaches under § 1983 only where a defendant, acting
    under color of state law, causes a person to be deprived of a
    federally secured right or interest.       This requirement that action
    be under color of state law is as essential as it is rigorous; a
    person does not act under color of state law solely by virtue of
    her relationship to the state, but depending on her function --
    i.e., the nature of her challenged conduct.          See Polk County v.
    454 U.S. 312
    , 319-20 (1981) (holding that public defender
    does not act under color of state law when defending clients); see
    also Daniels v. Williams, 474 U.S. at 335-36 (emphasizing that
    claim based on Fourteenth Amendment does not transform every tort
    committed   by   state   official   or   employee   into   constitutional
    violation); Screws v. United States, 
    325 U.S. 91
    , 111 (1945)
    (noting that acts of state officer in ambit of personal pursuits
    are not acts under color of state law).             Regardless of one's
    affiliation with the state, "a person acts under color of state law
    only when exercising power `possessed by virtue of state law and
    made possible only because the wrongdoer is clothed with the
    authority of state law.'" Polk County, 454 U.S. at 317-18 (quoting
    United States v. Classic, 
    313 U.S. 299
    , 326 (1941)).           Hence, to
    determine which state-law duties are such that a breach is under
    color of state law from, we focus on the nature of the duty, not
    the status of the person.     We ask whether a particular duty is of
    such a nature that breach by a defendant represents a misuse of
    state authority -- i.e.,     whether the failure to act in accordance
    with the state-law duty entailed an exercise of power made possible
    only because the defendant was clothed with the authority of law.
         Where the alleged official misconduct involves a breach of an
    affirmative duty to act, a two-party conceptual complexity arises
    from the fact that the act complained of is (1) unlawful, and
    (2) an act of omission, rather than commission.    Ordinarily, the
    unlawfulness of official conduct does not preclude us from finding
    that the conduct was nevertheless action under color of state law.
    Thus, where a state official acted under a grant of authority by
    the state, she can be held liable under § 1983 for unlawful conduct
    on the ground that she exceeded her authority.    See, e.g., Monroe
    v. Pape, 
    365 U.S. 167
    , 170-87 (1961), overruled in part on other
    grounds, Monell, 436 U.S. at 690-701.
         This analysis cannot be easily extended, however, when the
    issue is a breach of an affirmative duty to act.    In particular,
    the conceptual difficulty is in deciding when it can be said that
    there was a conferral of state authority making it possible for a
    defendant to wield state power in failing to act.       Thus, when
    deciding whether the defendant exercised state power, the first
    question is, necessarily, whether the defendant possessed any state
    power to begin with -- i.e., whether she was clothed with state
    authority with respect to her duty to act.   This inquiry, in turn,
    requires an examination of our cases in which § 1983 liability has
    been based on a defendant's failure act, with a particular focus on
    the nature of the duty breached.5
         As we have held that state supervisors can be found liable
    under § 1983 for failing to comply with a state-law duty to act, we
    necessarily have determined that under certain circumstances, a
    guilty supervisor's inaction may constitute action under color of
    state law.     If a supervisor acted under color of state law, then he
    must have possessed and exercised state power in failing to act and
    thereby    causing     the   constitutional           injury      perpetrated    by   his
    subordinate.      Accordingly, we start by reviewing our supervisory
    liability cases in an effort to distill the proper meaning of
    "under    color   of   state   law"       as      applied    in    the   context   of   a
    defendant's inaction in the face of a duty to act.
         In Sims v. Adams, 
    537 F.2d 829
     (5th Cir. 1976), we explained
    that "§ 1983 requires a degree of causation as an element of
    individual     liability,      but      it     does    not     specifically      require
    `personal      participation.'"              Id.      at   831.       Where     personal
    participation     is    absent,      "a   supervisory          defendant   is   [still]
    subject to § 1983 liability when he breaches a duty imposed by
    state     or   local    law,      and     this        breach      causes   plaintiff's
         We are mindful of the Supreme Court's ruling in Collins that
    § 1983 does not require "proof of an abuse of governmental power
    separate and apart from the proof of a constitutional violation."
    112 S. Ct. at 1065.     Here, plaintiffs have already alleged a
    constitutional violation; we ask whether there is an exercise of
    authority only in answering the separate question of which other
    persons can be held liable under § 1983 for causing the alleged
    constitutional injury."         Id.    Thus, the plaintiff in Sims stated a
    claim against defendants who "allegedly breached the duties of a
    mayor    and   a   chief   of   police   to    control   a   policeman's    known
    propensity for improper use of force."              Id. at 832.
          Following the Supreme Court's decision in Monell, we held that
    a supervisory official could not be held vicariously liable under
    § 1983 for the misconduct of a subordinate, even where state law
    did impose vicarious liability on the supervisor.                 See Baskin v.
    Parker, 602 F.2d at 1208.         We did not retreat, however, from the
    rule that a state supervisor's breach of a state-law duty can give
    rise to direct liability under § 1983. We established a three-part
    test for determining when a supervisory official can be held liable
    for the conduct of a subordinate:             "the plaintiff must show that:
    (1)     the    [supervisor]     failed        to   supervise   or   train    the
    [subordinate], (2) a causal connection existed between the failure
    to supervise or train and the violation of the plaintiff's rights,
    and (3) such failure to supervise or train amounted to gross
    negligence or deliberate indifference."               Hinshaw v. Doffer, 
    785 F.2d 1260
    , 1263 (5th Cir. 1986); see also Bowen v. Watkins, 
    669 F.2d 979
    , 988 (5th Cir. 1982); Douthit v. Jones, 
    641 F.2d 345
    , 346-
    47 (5th Cir. 1981); Barksdale v. King, 
    699 F.2d 744
    , 746-48 (5th
    Cir. 1983).
          With this precedent in hand, we concluded in Doe v. Taylor
    that supervisory school officials can be held liable under § 1983
    for a subordinate teacher's sexual abuse of an elementary or
    secondary school student.             15 F.3d at 452-54.       Relying on the
    Supreme Court's analysis in City of Canton, we held that "a school
    official's liability arises only at the point when the student
    shows that the official, by action or inaction, demonstrates a
    deliberate indifference to his or her constitutional rights."               Doe
    v. Taylor, 15 F.3d at 454.        We adopted a three-step test in cases
    involving alleged sexual abuse of a grade-school student:              Where a
    supervisory school official (1) knew facts "pointing plainly toward
    the conclusion that the subordinate was sexually abusing the
    student,"   (2)   demonstrated     deliberate   indifference      toward    the
    student's constitutional rights by failing to take appropriate
    action to prevent or stop the abuse, the official can be held
    personally liable to the student if (3) the official's failure to
    act caused a constitutional injury to the student.              Id.
         Although these cases did not discuss how an official who
    breached a state-law duty to act could be said to have been acting
    under color of state law, it is not difficult to see that they
    possessed state authority. State law imposes duties on supervisory
    officials while entrusting them with power to assure compliance
    with constitutional     standards,     typically     by   exercising   direct
    control   over    subordinates.     Failure     to   exercise    control,   if
    accompanied by the requisite level of indifference, may give rise
    to § 1983 liability.     See, e.g., Sims, 537 F.2d at 832 (breach of
    "duties of a mayor and a chief of police to control a policeman's
    known propensity for improper use of force"); Bowen, 669 F.2d at
    988 (failure to supervise in face of history of widespread abuse);
    Hinshaw, 785 F.2d at 1264 & n.1 (failure "to control an officer's
    known propensity for the improper use of force"); Doe v. Taylor, 15
    F.3d at 454 (failure to supervise or control sexually wayward
    coach).   Thus, where a supervisory official breached a state-law
    duty with deliberate indifference toward a resulting constitutional
    injury,   he    misused     the    state    authority     conferred   on   him    to
    supervise and control his subordinates.                The supervisor's failure
    to act, coupled with his deliberate indifference, was tantamount to
    a conscious decision to allow the alleged constitutional injury to
    occur or persist.       See, e.g., Doe v. Taylor, 15 F.3d at 463 ("An
    omission that evinces deliberate indifference toward the violation
    of an individual's constitutional rights may amount to an act that
    causes the violation.") (Higginbotham, J., concurring); cf. City of
    Canton, 489 U.S. at 389 ("`[M]unicipal liability under § 1983
    attaches where -- and only where -- a deliberate choice to follow
    a course of action is made from among various alternatives' by city
    policymakers.") (quoting Pembaur v. City of Cincinnati, 
    475 U.S. 469
    , 483 (1986)).           This conclusion obtains because the state
    official was responsible for preventing the constitutional injury;
    his   failure    to    do   so    rendered      him   directly   liable    for   the
    deprivation that his subordinate perpetrated.                Such a supervisory
    official is liable under § 1983 not because he committed a distinct
    constitutional violation by breaching his duty to supervise, but
    because   his   failure      to   control       his   subordinate   rendered     him
    responsible      for    the       resulting      subordinate     misconduct       --
    essentially, he was a legal participant.
         We have never suggested, however, that only supervisors can be
    held liable for a failure to act that results in a constitutional
    injury.   Rather, it is state law's grant of a right of legal
    control   over   the   immediate    perpetrator   of   an   injury   that
    establishes that a state supervisor possessed and exercised state
    authority. While supervisors frequently have a right of control by
    virtue of their status, control can exist in other ways.
         Judge Rubin's opinion in Howard v. Fortenberry, 
    723 F.2d 1206
    (5th Cir. 1984), is instructive.         In Howard, two prisoners died
    after prison officers confined them to a so-called "hot box," which
    was intended to serve as a disciplinary measure for uncooperative
    prisoners.       The   plaintiffs   brought   claims   against   various
    officials, including the Director of the Department of Corrections
    and two "sanitarians" who had a statutory duty to inspect the
    prison.   The basis for the suit against the Director was that he
    breached his duty to inspect the prisons or otherwise to delegate
    the task to subordinates.      Despite his position as a "Director,"
    which ordinarily would seem to connote that he held a supervisory
    position, we found that he "apparently ha[d] no authority to remedy
    any deficiencies he might observe, beyond reporting them to the
    Governor."   Id. at 1212.    Because we found no evidence supporting
    "a causal connection between the Director's failure to report a
    condition in the prison to the Governor and the failure of the
    prison Board of Governors to change that condition," id., we
    concluded that "the Director's dereliction, if any, did not have a
    sufficient causal connection to the constitutional deprivation to
    establish liability under § 1983," id.
         Our analysis of the sanitarians in Howard, however, compelled
    a different result.    We noted that the sanitarians had "stated in
    their depositions that, if they had seen and inspected the cells,
    they would have forbidden their use immediately; their failure to
    inspect thus had a clear causal connection to the deaths of [the
    plaintiffs]."    Id. at 1213. Thus, even though the sanitarians were
    not positioned as supervisors, they acknowledged that they had a
    right of control over the persons who committed the deprivation, in
    that they could have forbidden the prison officials from using the
    hot boxes.    In other words, the sanitarians had legal authority to
    control the prison personnel with respect to their usage of the hot
    box, and therefore their failure to inspect, together with their
    corresponding failure to prevent the constitutional harm, was
    action under color of state law.
         This element of legal control is not confined to cases in
    which a state employee breached a duty to exert control over
    another state employee.    Rather, the existence of a legal right of
    control is the linchpin in all cases in which we have found § 1983
    liability based on breach of a duty to act, even where private
    actors committed the injurious harm.     Consider, for example, our
    decision in Lopez v. Houston Ind. School Dist., 
    817 F.2d 351
    Cir. 1987).     In Lopez, we held that a school bus driver could be
    found liable under § 1983 for failing to protect a student on his
    bus from being pummeled by another student.   Even though the other
    student's action was not a constitutional tort, as the attacking
    student was a private actor, we found that the bus driver had
    caused a distinct constitutional injury.     Observing that he "was
    entrusted with the care of students attending school under Texas'
    compulsory education statute," id. at 356, we concluded that "[h]is
    alleged failure to protect [the plaintiff] or to render emergency
    aid abuse[d] state power," id.    State law, in making the bus driver
    responsible for the welfare of students on his bus, empowered him
    with a right of control over those students.      Significantly, the
    driver locked the students in the bus and left them.        Since he
    would have been authorized under state law to use force to break up
    the fight, we held that his failure to do so after closing off the
    victim's possible escape routes, if accompanied by the requisite
    level of indifference, amounted to a conscious choice -- under
    color of state law -- to allow the beating of the child to
    continue.   See id. at 354-56.6
            Lopez is not to be understood as recognizing a "special
    relationship" between schoolchildren and the state giving rise to
    a generalized federal constitutional duty to protect children from
    harm on school buses. See Walton v. Alexander, 
    44 F.3d 1297
    , 1302-
    04 & n.4 (5th Cir. 1995) (en banc) (discussing contours of "special
    relationship" as emerging from DeShaney, Estelle v. Gamble, 
    429 U.S. 97
     (1976), and Youngberg v. Romeo, 
    457 U.S. 407
    Under Lopez, a state employee may face § 1983 liability when he
    misuses his state-conferred position in physically restraining a
    child in such a manner that the employee's conduct is tantamount to
    participation in the child's beating or other such victimization.
    Indeed, as Judge Posner has explained, "[i]f the state puts a man
    in a position of danger from private persons and then fails to
    protect him, it will not be heard to say that its role was merely
    passive; it is as much an active tortfeasor as if it had thrown him
    into a snake pit." Bowers v. DeVito, 
    686 F.2d 616
    , 618 (7th Cir.
           In sum, our cases indicate that a right of legal control over
    the persons or events giving rise to the injury complained of has
    existed in those instances in which we have necessarily found that
    breach of a state-law duty to act was action under color of state
    law.    Hence, the question in this case is whether a failure to
    report, in the absence of an accompanying duty to exercise state-
    conferred legal control, can still be said to constitute action
    under color of state law that causes the unreported constitutional
    injury.    Holding that White can be held liable under § 1983 for an
    alleged delay in reporting Sarah's sexual abuse, in the absence of
    a determination that she had a legal right of control over Siepert,
    would effectuate an unprecedented extension of federal liability.
    Our authority to allow such a result aside, it is inappropriate to
    do so unless we first conclude that the right of legal control is
    of no significance to the elements of § 1983 liability.               We turn
    now to that question.
           A right of control, as noted by our analysis in Howard, speaks
    most apparently to the issue of causation; absent a right of
    control, we concluded that the causal connection between the
    failure to act and the ultimate injury was too speculative to
    support a finding of § 1983 liability.             Indeed, we suggested in
    Bush that the requisite causation under § 1983 could never exist
    unless a     defendant   had   a   duty    to   correct   the   constitutional
    violation:    "[A]ccepting for now the concept that the breach of a
    state-imposed duty can cause a constitutional tort, we hold that
    the necessary causal relationship is absent when a state duty to
    regulate, monitor, inspect, or advise is not accompanied by an
    obligation to extirpate constitutionally substandard conditions or
    activities that may be encountered."    795 F.2d at 1208.    Under this
    rule, even where a plaintiff might be able to demonstrate that
    compliance with a state-law duty would have been instrumental in
    preventing or stopping a constitutional harm, the stricter causal
    connection requirement of § 1983 may foreclose a federal claim
    against the noncomplying defendant.
         We have cautioned, however, that causation under § 1983 is
    "not to be gauged by the standards of ordinary tort law."     Gonzalez
    v. Ysleta Indep. Sch. Dist., 
    996 F.2d 745
    , 755 (5th Cir. 1993);
    (citing Martinez v. California, 
    444 U.S. 277
    , 285 (1980)). Indeed,
    this requirement of a causal connection in a § 1983 action often
    may have the practical effect of imposing a heightened standard of
    proximate   cause.   For   example,    in   Martinez   v.   California,
    plaintiffs sued under § 1983 on behalf of a woman whose life was
    taken by a parolee five months after his release by a parole board.
    The Supreme Court concluded that, "[r]egardless of whether, as a
    matter of state tort law, the parole board could be said either to
    have had a `duty' to avoid harm to [the parolee's] victim or to
    have proximately caused her death," the board did not deprive the
    victim of her life within the meaning of the Fourteenth Amendment.
    Martinez, 444 U.S. at 285 (citing Palsgraf v. Long Island R. Co.,
    248 N.Y. 339
    162 N.E. 99
     (1928)).     The Court emphasized that "at
    least under the particular circumstances of this parole decision,
    appellants' decedent's death [was] too remote a consequence of the
    parole officers' action to hold them responsible under the federal
    civil rights law.       Although a § 1983 claim has been described as a
    `species of tort liability,' it is perfectly clear that not every
    injury in which a state official has played some part is actionable
    under that statute."           Id. (quoting Imbler v. Pachtman, 
    424 U.S. 409
    , 417 (1976)).
          This    causal   connection        requirement       may   take   shape    as    a
    stricter test of factual causation, but it is a more nuanced
    inquiry, particularly in the context of a failure to act.                             In
    demanding that a failure to supervise or train must be "closely
    related" to the constitutional injury, see City of Canton, 489 U.S.
    at 391 -- and regardless of how this test is otherwise stated, see
    Oklahoma City v. Tuttle, 471 U.S. at 824 n.8 (indicating necessity
    of   "affirmative       link"      between       training        inadequacies     and
    constitutional violation); Polk County, 454 U.S. at 326 (noting
    that official policy must be "moving force" of constitutional
    violation) -- the ultimate inquiry is whether there is a connection
    between      action    taken     under     color      of    state    law   and    the
    constitutional harm.       Of course, that the challenged conduct was
    indeed action under color of state law -- that a separate nexus
    existed between the alleged inaction and an exercise of state
    authority -- is implicit in a finding that such a causal connection
    existed for purposes of § 1983 liability.                  See Doe v. Taylor, 15
    F.3d at 452 ("[I]f a `real nexus' exists between the activity out
    of   which    the   violation     occurs       and   the   teacher's    duties    and
    obligations as a teacher, then the teacher's conduct is taken under
    color of state law.").
           When a claimant shows that there is both conduct under color
    of state law and causation of the injury -- only then has he
    satisfied § 1983's requirement of causation under color of state
    law.    Put another way, the under color of state law requirement
    cannot be separated from the question of a causal connection
    between state authority and an alleged constitutional injury;
    rather, the notion of such a causal relationship is impounded in
    § 1983's requirement of action under color of state law.
           In the context of an alleged breach of a state-law duty to
    act, the causal connection becomes unsteady at the point of conduct
    unless there is a right of legal control over the persons or events
    giving rise to the injury. Absent such control, a person's ability
    to abate the harm is too speculative to support § 1983 liability.
    At the same time, lack of legal control calls into question whether
    there is an exercise of state authority in failing to act.    A right
    of control is authority conferred on a defendant by the State, and
    failure to utilize it properly can be said to constitute action
    under color of state law because the state actor is empowered by
    state law to take action that ordinary citizens cannot.      If state
    law has imposed a duty to report, investigate, monitor, or regulate
    without granting a duty to exercise state-conferred legal control
    over the underlying persons or events, there is no conduit through
    which an exercise of state power can be said to have caused the
    constitutional injury.    Because we find that the existence of a
    right of legal control is a compelling distinction in the question
    whether state law has located a person as a constitutional actor,
    we insist that a breach of a state-law duty to report cannot render
    a person liable under § 1983 as a responsible state actor unless
    that person also had a duty under state law to exercise state
    authority in controlling the events that produced the unreported
          Based on our analysis of the Texas Family Code, we conclude
    that White's breach of her duty to report did not establish the
    requisite causal nexus between state authority and Sarah's injury
    and therefore was not action under color of state law.             The Family
    Code imposes a general duty on all citizens to report child abuse
    to the proper authorities.         To supplement this citizen-wide duty,
    the   statute    establishes   a   stricter     reporting     requirement   for
    "professionals," defined to include teachers, doctors, day-care
    sitters, and other such persons who are licensed, certified, or
    employed by the state, and who have contact with children in the
    course of their official duties.        See Tex. Fam. Code Ann. § 34.01-
    34.02.     Yet    despite   the     reference    to   state    certification,
    licensing, or employment in identifying who bears the heightened
    reporting obligation, the statute nowhere distinguishes between
    public and private professionals.               More important, since the
    statute does not empower either citizens or professionals with a
    right of control over the child abuser, a failure to report in the
    proper manner does not have the causal connection necessary to
    implicate an exercise of state power made possible only because the
    silent party is clothed with state authority.
         Two illustrations expose the folly of suggesting that this
    Texas statute locates citizens or professionals as state actors who
    can be held responsible for constitutional injuries committed by
    persons whom they fail to report.       First, suppose that White, while
    vacationing in Daingerfield, Texas, had told a privately employed
    research physician, who had no daily contact with children, about
    Sarah's abuse.     While   this   doctor    would   face   state   criminal
    penalties for waiting too long to report the abuse, it is difficult
    to see how the doctor, solely because she was licensed by the state
    to practice medicine, possessed and exercised state authority in
    not reporting the breach.    Second, since the duty to report child
    abuse applies regardless of whether the abuser is a state actor or
    private citizen, a finding of § 1983 liability based on a teacher's
    failure to report would turn on the status of the abuser, not the
    teacher.   Where a child abuser has no state affiliation, the abuse
    itself is not a constitutional injury; the child would have to
    allege a separate deprivation arising purely from the teacher's
    failure to report.    Such a claim would be unavailing, however,
    unless we were to conclude that the teacher's breach of a duty was
    by itself a constitutional tort. Indeed, as we have explained, the
    presence of state-conferred legal control is necessary to the
    requisite link between the teacher as a state actor and the sexual
         Even though the Family Code has not empowered White with
    control over Siepert, White still may be held liable under § 1983
    for Sarah's injury if she otherwise possessed authority under state
    law -- e.g., as a teacher or a citizen -- to exercise control over
    Siepert actions.    Such control need not have been labeled as
    "supervisory," but may have existed, for example, if she had legal
    power to prohibit Siepert from having contact with Sarah.        Cf.
    Howard, 723 F.2d at 1213 (emphasizing that sanitarians could have
    prohibited prison officials from using unsafe hot boxes).    In such
    a situation, White's failure to report Sarah's sexual abuse may be
    found to have caused Sarah's constitutional injury because of
    White's responsibility for Sarah's welfare and concomitant right to
    exercise control over Siepert.7
         Based on our review of the Does' allegations, we find no basis
    for concluding that Sarah had sufficient control over Siepert to
    render her liable under § 1983 for his abuse of Sarah.      The Does
    concede that White did not have supervisory authority over Siepert.
    Although White and Siepert both worked in the same school district,
    White was a junior high school teacher at a different school than
    Siepert; even though White and Siepert were at neighboring schools,
          Thus, a school supervisory official can be held liable for
    breaching his duty under the Family Code to report a subordinate's
    abuse of a grade school student. See Doe v. Taylor, 15 F.3d at 465
    (Higginbotham, J., concurring). The federal cause of action arises
    not strictly from the official's breach of his duty to report, but
    because his inaction constitutes an injurious abdication of his
    separate responsibility to supervise and control his subordinates.
    In other words, a supervisory official's failure to report child
    abuse is simply one manifestation of his failure to take steps to
    prevent or eliminate injury to a student.
    her nearby status did not give her any legal control over Siepert.
    Regardless of whether Sarah had a generalized duty under state law
    to intervene on Sarah's behalf, we find that White had no right of
    control over Siepert and hence conclude that she cannot be held
    responsible under § 1983 for causing Sarah's constitutional injury
    at the hands of Siepert.
         In short, we conclude that a failure to report child abuse as
    required by Texas Fam. Code Ann. §§ 34.01-34.02 is not action under
    color of state law.   Since state law has not otherwise empowered
    White with a right of control over Siepert, we conclude that her
    breach did not have the requisite causal connection to Sarah's
    constitutional injury, and that White's delay in reporting was not
    action under color of state law.     White therefore cannot be held
    responsible under § 1983 for Siepert's sexual abuse of Sarah.
    Although White violated Texas law by breaching her duty to report
    Sarah's abuse within forty-eight hours, White's lack of control
    over Siepert means that she did not "exercise power `possessed by
    virtue of state law and made possible only because the wrongdoer is
    clothed with the authority of state law.'"    Polk County, 454 U.S.
    at 317-18 (quoting Classic, 313 U.S. at 326).   The decision of the
    district court denying White's motion for summary judgment is
    reversed, and this case is remanded with instructions to dismiss
    the § 1983 claim against White with prejudice, and to dismiss
    without prejudice the state claims against White over which the
    trial court had supplemental jurisdiction.