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that this opinion should not be published and is not precedent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.

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.

--------------------

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 2:00-CV-48-P-B

--------------------

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
2

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
3

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
4

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
5

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.