* 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. 07-10883

Summary Calendar

SHERONDA DANIELS, Individually and on Behalf of the Estate of L V

Daniels, Jr Deceased; L V DANIELS, SR, Individually and on Behalf of the

Estate of LV Daniels Jr Deceased; LILLIE RUE DANIELS, Individually and

on Behalf of the Estate of LV Daniels Jr Deceased

Plaintiffs -Appellants

v.

CITY OF DALLAS; KENT OWEN WOLVERTON, City of Dallas Officer

Individually and in his Official Capacity

Defendants-Appellees

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:05-CV-2460

Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

March 28, 2008

Charles R. Fulbruge III

Clerk
No. 07-10883

1 523 U.S. 833, 846 (1998) (observing that “for half a century now we have spoken of

the cognizable level of executive abuse of power as that which shocks the conscience.”).

Although Plaintiffs argue that the Supreme Court has questioned the validity of the “shocks

the conscience” test, the Court made clear in Lewis that it is the proper test for a constitutional

challenge under § 1983. See id. 

2 See, e.g., Hernandez ex rel. Hernandez v. Texas Dept. of Protective and Regulatory

Services, 380 F.3d 872, 882 (5th Cir. 2004) (citing Conner v. Travis County, 209 F.3d 794, 796

(5th Cir. 2000)) (“To establish deliberate indifference, the plaintiff must demonstrate

culpability beyond mere negligence or even gross negligence.”).

3 93 F.3d 418 (7th Cir. 1996). In Shobe, the officer who caused a fatal accident at an

intersection was not responding to an emergency and failed to turn on his emergency lights,

headlights, or sirens. Id. at 419.

2

This case involves the tragic death of L.V. Daniels, Jr. On September 23,

2005, Officer Castro of the Dallas police force made a call for back-up from a

drug arrest, requesting “Code 1” non-emergency cover. Officer Wolverton

responded, and as he was speeding through an intersection around 8:00 PM, he

swerved around a stopped car and hit Daniels, a pedestrian. Daniels sustained

fatal injuries, and his family sued under § 1983 for violation of the Fourteenth

Amendment right to life.

The central dispute is whether the district court, in dismissing Plaintiffs’

claims with prejudice and granting Defendants’ summary judgment motion, used

the proper standard for actions that “shock the conscience” and are a

constitutional violation under County of Sacramento v. Lewis.1 We need not

cabin this case into the narrow distinctions among high-speed chases and other

responses to emergencies and non-emergencies. 

It matters not here whether we apply an intent-to-harm standard for

chases or a lower standard of deliberate indifference; Wolverton’s actions do not

fall within the ambit of either. This is a case that, although tragic, involves

negligence or even gross negligence but not deliberate indifference2; under a

substantive due process inquiry, ordinary tort liability does not obtain. As the

Seventh Circuit held under a deliberate indifference inquiry in Hill v. Shobe,3
No. 07-10883

4

Id. at 421-22 (internal citations omitted). 

5 Smith v. Walden, Order, USDC No. 2:97-cv-204-J, affirmed in Smith v. Walden, 228

F.3d 408 (Table), 2000 WL 1056091, at *1 (5th Cir. July 17, 2000) (unpublished). 

6 Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Hernandez, 380 F.3d at 882

(internal citations omitted) (recognizing that “deliberate indifference is determined by a

subjective standard of recklessness” and that “‘‘the official must be both aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists, and he must

also draw the inference.’”). 

3

The fact that a public official committed a common law tort with

tragic results fails to rise to the level of a violation of substantive

due process. . . . motor vehicle accidents caused by public officials or

employees do not rise to the threshold of a constitutional violation

actionable under § 1983, absent a showing that the official knew an

accident was imminent but consciously and culpably refused to

prevent it. It is insufficient to show that a public official acted in

the face of a recognizable but generic risk to the public at large.4

In an unpublished opinion in Smith v. Walden, we similarly affirmed a

deliberate indifference holding in the police context. The district court held that

a police officer who was speeding without lights or a siren in response to a nonemergency call and killed an innocent passenger did not act with “the level of

arbitrary or intentional conduct that shocks the conscience in the constitutional

sense.”5

We find no facts in the pleadings or the record, viewed in the light most

favorable to Plaintiffs, showing that Wolverton acted with the recklessness

required for deliberate indifference.6 Nor do we find error in the district court’s

treatment of Plaintiffs’ facts and pleadings. No matter how favorably a court

treats the Plaintiffs’ facts and pleadings, they do not demonstrate the requisite

factors for deliberate indifference. 

Finally,Plaintiffs assertthatthe district court erred in granting summary

judgment for the City. Plaintiffs claim that the City could still be liable if

Wolverton’s actions did not violate Plaintiffs’ constitutional rights and that the
No. 07-10883

7 489 U.S. 378, 385 (1989) (emphasis added). 

8 436 U.S. 658, 692 (1978). 

4

court erred in concluding ipso facto that without a constitutional violation by

Wolverton,the City could not be liable. We are not persuaded. In City of Canton

v, Harris, the Court asked “whether there was a direct causal link between a

municipal policy or custom and the alleged constitutional deprivation.”7In

Monell v. New York City Dept. of Social Services,the Court held thatthe original

language of § 1983 “imposes liability on a government that, under color of some

official policy, ‘causes’ an employee to violate another’s constitutional rights.”8

While the officer here exceeded the posted speed limit, proceeding at a speed of

approximately 60 miles per hour, perhaps 57 or 58 miles per hour, he did not act,

as we have concluded, with a level of recklessness that was a breach of a

constitutional duty. Any link between a city policy as to the speed at which an

officer may respond to non-emergency calls and this accident cannot perforce

constitute a constitutional violation.

AFFIRMED.