*

Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge

for the Seventh Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-2255.

John ROONEY, III, John Rooney, Jr., Marsha Rooney, Keith Rooney,

By and Through his Next Best Friend, John Rooney, Jr., his father,

Plaintiffs-Appellants,

v.

George Lee WATSON, individually and in his official capacity,

County of Volusia, Defendants-Appellees,

Department of Public Safety, Volusia Co., Defendant.

Dec. 26, 1996.

Appeal from the United States District Court for the Middle

District of Florida. (No. 93-32-CIV), Anne C. Conway, Judge.

Before HATCHETT, Chief Judge, ANDERSON, Circuit Judge, and WOOD*

,

Senior Circuit Judge.

HATCHETT, Chief Judge.

Following Cannon v. Taylor, 782 F.2d 947 (11th Cir.1986), the

court affirms the district court's granting of summary judgment to

a county and a deputy sheriff after finding that no constitutional

deprivations resulted from an automobile accident.

BACKGROUND

On January 23, l989, John Rooney III was driving his parents'

truck, and his younger brother, Keith Rooney, was a passenger.

George Watson, a deputy sheriff in Volusia County, Florida, while

on duty, was driving his patrol vehicle southbound on Highway 11

traveling at approximately 82 miles per hour. The Rooneys were

traveling northbound on Highway 11 and at Reynolds Road attempted

to make a left turn. Watson's patrol vehicle struck the Rooneys'
vehicle. At the time of impact, Watson's vehicle was traveling

approximately 73 miles per hour. Watson was neither engaged in a

police pursuit nor responding to an emergency call, and he did not

have his lights or sirens operating. As a result of the accident,

Keith Rooney sustained severe head injuries and John Rooney

sustained bodily injuries and lost teeth. Watson was not seriously

injured.

On January l4, l993, John Rooney, Jr., Marsha Rooney, John

Rooney III, and Keith Rooney filed suit against Deputy Watson and

Volusia County claiming constitutional violations under section

l983 and state law negligence claims. Following the completion of

discovery, the appellees moved for summary judgment. The district

court granted the appellees' motions for summary judgment on the

federal civil rights counts on January 23, l995, and in the same

order declined to exercise supplemental jurisdiction over the state

law claims. In granting the appellees' motions for summary

judgment, the district court relied on Cannon v. Taylor, 782 F.2d

947 (11th Cir.1986).

CONTENTIONS

The Rooneys contend that Watson's conduct amounted to a

constitutional deprivation. They argue that their case is

distinguishable from Cannon because Volusia County had a de facto

custom and policy that encouraged indiscriminate speeding and

grossly negligent driving. They assert that Keith Rooney was

deprived of a normal life, John Rooney III was deprived of a normal

life, and John, Jr. and Marsha Rooney were deprived of their

property, the truck, due to Volusia County's longstanding policy of
allowing recklessness in the operation of patrol vehicles.

The Rooneys claim that the distinction between their case and

"police-chase" cases that refused to find a constitutional

violation is that this was not a "police-chase" case. In this

case, Deputy Watson was not engaged in any pursuit of any kind.

They contend that Volusia County's refusal to prevent reckless

driving among patrol vehicles could have led a reasonable jury to

find that it amounted to a deliberate indifference to the rights of

third parties. They also argue that the district court confused

the role of custom and policy in the allegation with the separate

claim against Volusia County for failure to properly train and

supervise, and as a result, the district court reached the wrong

result. The Rooneys assert that the trial court failed to make the

distinction between their claim for deprivation of life, liberty

and property through a policy or custom, and their claim for

deprivation of their constitutional rights through a failure to

train or supervise. They contend that the Supreme Court recognized

a "failure to train" as a cognizable civil rights claim in City of

Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412

(1989).

Watson and Volusia County contend that the district court

properly granted summary judgment to them because the Rooneys

failed to prove a constitutional deprivation actionable under

section l983. They argue that in order for the Rooneys to state a

claim they must prove that a statute, ordinance, custom or policy

of the government caused the government officer or employee to

violate another's constitutional rights. Moreover, they argue that
Deputy Watson was not a policy maker for Volusia County; that the

Rooneys' claim of deprivation of substantive or procedural due

process is not triggered by mere negligence; that Deputy Watson's

actions cannot rise to an unreasonable seizure in violation of the

Fourth Amendment; and that under this court's decision in Cannon

v. Taylor, 782 F.2d 947 (11th Cir.1986), a negligent or even

grossly negligent operation of a motor vehicle by a policeman

acting in the line of duty does not give rise to a cause of action

for violation of a federal right under section l983.

ISSUE

The sole issue we address in this appeal is whether the

district court erred in granting summary judgment to the appellees

in finding that no constitutional deprivation occurred.

DISCUSSION

Our review of a district court's decision to grant summary

judgment is de novo. Hale v. Tallapoosa Co., 50 F.3d 1579 (11th

Cir.1995). We independently review the record to determine whether

summary judgment was appropriate viewing the pleadings,

depositions, answers to interrogatories and admissions on file

together with affidavits, if any, to determine whether a genuine

issue of material fact exists and whether the moving party is

entitled to judgment as a matter of law. Celotex v. Catrett, 477

U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In

making our determination, we view the record in the light most

favorable to the nonmoving party and with all reasonable inferences

resolved in their favor. Hale, 50 F.3d at 1581.

I. Deputy Watson
 The Rooneys brought this action under 42 U.S.C. § l983

claiming that both Deputy Watson and Volusia County violated their

constitutional rights to life, liberty, property, procedural due

process and rights to travel under the United States Constitution.

In order for the Rooneys to state a cause of action against Watson

in his official capacity, we must determine (1) whether Watson's

conduct alleged to have caused their harm occurred while he was

acting under color of state law, and (2) whether his alleged

conduct deprived the Rooneys of rights, privileges, or immunities

guaranteed under the Constitution or laws of the United States.

Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68

L.Ed.2d 420 (1981), overruled on other grounds by, Daniels v.

Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); see

also Burch v. Apalachee Community Mental Health Servs., Inc., 840

F.2d 797, 800 (11th Cir.1988), aff'd by, Zinermon v. Burch, 494

U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990).

 Our decision in Cannon v. Taylor, 782 F.2d 947 (11th

Cir.1986), directs our analysis in this case. In Cannon, a police

officer responding to a disturbance call at a local pool hall in

Columbus, Georgia, struck another vehicle killing the driver of

that vehicle. When responding to the call, the officer had neither

his flashing lights nor siren activated even though he was

traveling sixteen miles over the speed limit. Under Georgia law,

at the time of the accident, police officers responding to

emergency calls were allowed to exceed posted speed limits as long

as they used their vehicles' flashing lights and siren. The

decedent's family filed suit under 42 U.S.C. § l983 claiming that
the police officer and the city of Columbus deprived the decedent

of her life without due process of the law through reckless and

excessive speeding without the use of lights and sirens. In that

decision, this court held "that a person injured in an automobile

accident caused by the negligent, or even grossly negligent,

operation of a motor vehicle by a policeman acting in the line of

duty has no section l983 cause of action for violation of a federal

right." Cannon, 782 F.2d at 950. In reaching that conclusion,

this court noted that it could not find any cases supporting the

proposition that a police officer's negligence in operating his

vehicle deprives an injured person of due process of law and that

"automobile negligence actions are grist for the state law mill.

But they do not rise to the level of a constitutional deprivation."

Cannon, 782 F.2d at 949-50.

Under our reasoning in Cannon, Deputy Watson's single

accident, whether we characterize it as negligence or even gross

negligence causing the Rooneys harm, does not amount to a

constitutional deprivation. Although Watson was not responding to

an emergency call, we believe Cannon 's holding dictates the result

we reach. In this case, Watson was on duty and on patrol at the

time of the accident. Under the reasoning of Cannon, we do not

believe that any alleged negligence on Deputy Watson's part amounts

to a constitutional deprivation simply because he was speeding in

the absence of an emergency response or police pursuit. Perhaps

his driving at a high rate of speed in a non-emergency or

non-pursuit situation reveals gross negligence rather than

negligence, but it does not transform a state tort claim into a
 1

The Rooneys may still maintain a cause of action under

state law against Deputy Watson. 

 2The Rooneys also allege that Volusia County's failure to

train officers for high speed vehicle operation leads to a

cognizable cause of action under section l983. The Rooneys

cannot maintain this cause of action, however, because the

automobile accident did not rise to a level of violating their

constitutional rights. 

 3In Vineyard, we stated that "[o]nly when it is clear that a

violation of specific rights has occurred can the question of §

l983 municipal liability for the injury arise." Vineyard, 990

F.2d at 1211. 

constitutional deprivation under the circumstances of this case.

Therefore, in the absence of a constitutional deprivation, the

Rooneys cannot sustain a cause of action against Watson under

section l983.1

II. County of Volusia

 The Rooneys also assert that Volusia County maintained a

custom or policy of allowing patrol vehicles to drive recklessly.

Consequently, they argue that they should be able to establish

their section l983 claim based upon Volusia County's custom or

policy that led to their constitutional deprivation. As the

district court correctly pointed out, an inquiry into a

governmental entity's custom or policy is relevant only when a

constitutional deprivation has occurred.2

 See Vineyard v. County

of Murray, Georgia, 990 F.2d 1207, 1211 (11th Cir.), cert. denied,

510 U.S. 1024, 114 S.Ct. 636, 126 L.Ed.2d 594 (1993).3 Since we

have determined that Deputy Watson's conduct did not cause the

Rooneys to suffer a constitutional deprivation, we need not inquire

into Volusia County's policy and custom relating to patrol vehicle

operation and training. Los Angeles v. Heller, 475 U.S. 796, 799,
 4

A similar result obtains with respect to the Rooneys' other

theories of liability based on a failure to train and

unreasonable seizure. 

106 S.Ct. 1571, 1573, 89 L.Ed.2d 806 (1986) (finding that a

departmental policy or regulation authorizing the use of

constitutionally excessive force is not relevant when a person has

not been deprived of a constitutional right as a result of actions

taken by an individual police officer); see also Roach v. City of

Fredericktown, Mo., 882 F.2d 294, 297-98 (8th Cir.1989) (finding

that a municipality may be held liable under section l983 for

inadequate training only after determining that the plaintiff has

suffered a constitutional deprivation as a result of the municipal

employee's conduct). Therefore, our finding that the Rooneys did

not suffer any constitutional deprivation makes it unnecessary to

consider Volusia County's policy or custom.4

CONCLUSION

Because we have determined that Deputy Watson's conduct did

not deprive the Rooneys of any constitutional right, they cannot

maintain a cause of action under section l983. The district

court's decision granting Deputy Watson and the County of Volusia's

motions for summary judgment is affirmed.

AFFIRMED.

ANDERSON, Circuit Judge, concurring:

I concur in the judgment. For the reasons indicated in Judge

Hatchett's opinion, I agree that Deputy Watson did not violate

plaintiffs' constitutional rights. I also conclude that Volusia

County did not violate plaintiffs' constitutional rights. I note

that plaintiffs' only argument with respect to lack of training is
the lack of high speed training on the range. However, I do not

think that the lack of training on the range could be a

contributing cause in this case. Deputy Watson did not lose

control. Rather, the only possible causes of this accident are

readily subject to training in the classroom (e.g., the obvious

dangers of high speeds, especially at night, and in view of

oncoming traffic). I note also that plaintiffs' evidence about

speeding was vague and unhelpful and could not constitute the basis

of liability on the county's part for a constitutional violation.

In view of the evidence proffered by the plaintiffs in this summary

judgment record, I readily conclude that plaintiffs have failed to

show that Volusia County was deliberately indifferent in any manner

that could have caused the accident.