UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-60283 Summary Calendar

DINAH ADAMS, Administratrix of the Estate of Stanley Cleo Adams, Deceased, and Heir-at-Law of the Deceased Stanley Cleo Adams, Plaintiff-Appellant,

versus

CITY OF JACKSON, MISSISSIPPI; CITY COUNCIL OF THE CITY OF JACKSON, MISSISSIPPI; CREDELL CALHOUN, in his Official Capacity; DENT ANGLIN, in his Official Capacity; LOUIS ARMSTRONG, in his Official Capacity; KENNETH STOKES, in his Official Capacity; E.C. FOSTER, in his Official Capacity; MARCIA WEAVER, in her Official Capacity; MARGARET BARRETT, in her Official Capacity; KANE DITTO, Individually and in his Official Capacity as Mayor of the City of Jackson; CITY OFJACKSON FIRE DEPARTMENT; JOSEPH L. DONOVAN, Individually and in his Official Capacity; JOSEPH GRAHAM, Individually and in his Official Capacity; JACOB BELL, Individually and in his Official Capacity; SAM THOMPSON, Individually and in his Official Capacity; DAVID GRAVES, Individually and in his Official Capacity; KENNETH TORNES, Defendants-Appellees.

* * * * *

ANNIE NORAINE MOREE, Executrix of the Estate of Meredith Don Moree, Deceased, and Heir-at-Law of the Deceased Meredith Don Moree, Plaintiff-Appellant,

versus

THE CITY OF JACKSON, STATE OF MISSISSIPPI, ET AL., Defendants-Appellees.* Pursuant to 5 TH C IR

. 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 5 TH C IR

. R. 47.5.4.

2 * * * * *

CATHY ROBBINS, Administratrix of the Estate of John Richard Robbins, Deceased, and Heir-at-Law of the Deceased John Richard Robbins, Plaintiff-Appellant,

versus

CITY OF JACKSON, MISSISSIPPI, a Municipal Corporation, ET AL., Defendants-Appellees.

Appeal from the United States District Court For the Southern District of Mississippi (3:96-CV-692-BN; 3:96-CV-693-BN; 3:96-CV-694-BN)

January 16, 1998

Before POLITZ, Chief Judge, DAVIS and BENAVIDES, Circuit Judges.

PER CURIAM: *

Dinah Adams, Annie Norai ne Moree, and Cathy Robbins appeal the

Rule 12(b)(6) dismissal of th eir civil rights action. For the reasons assigned, we

affirm.

Background

City of Jackson firefighter Kenneth Tornes shot and killed Captain Meredith

Don Moree, Captain John Richard Robbins, and District Chief Stanley Cleo Adams1 Blackburn v. City of Marshall , 42 F.3d 925 (5th Cir. 1995).

2 United States v. Real Property , 123 F.3d 312 (5th Cir. 1997).

3 during a weekly meeting of firefighters. The victims’ survivors filed this action,

claiming that the deaths were caused by the deliberate indifference and policy of

certain City of Jackson officials. The survivors allege that firefighters were

consistently harassed, discriminated against, and abused for union activity, creating

stress within the fire department. Despite severe tension demonstrated by group

protests and threats of violence, th e survivors claim that the municipalities

attempted to cover up the situation, making it worse.

On the defendants’ motion the district co urt dismissed the action, finding that

Tornes was not acting under color of state law when he shot the firefighters and that

the plaintiffs failed to allege a constitutional violation by the municipalities. The

plaintiffs timely appealed.

Analysis

Our review of a dismissal under Rule 12(6)(b) is de novo , with all wellpleaded facts taken as true and considered in the light most f avorable to the

plaintiffs. 1 We may uphold a dismissal on any basis that is supported by the

record. 2

Our review of the record discloses no error in th e district court’s3 Becerra v. Asher , 105 F.3d 1042 (5th Cir. 1997).

4 Collins v. City of Harker Heights , 503 U.S. 115 (1992).

5 Reimer v. Smith , 663 F.2d 1316 (5th Cir. 1981).

6 See Van Ort v. Estate of Stanewich , 92 F.3d 831 (9th Cir. 1996).

4 determination that Torn es did not act under color of state law when he shot and

killed his fellow firefighters. The mere fact that Tornes was a firefighter does not

bring his aberrant acts within the meaning of “unde r color of state law.” To be

such, Tornes’ actions must have related in some way to the performan ce of his

official duties. 3 It cannot reasonably be contended, nor does the complaint allege,

th at Tornes acted pursuant to any government or firefighter goal, or within his

scope of authority. Accordingly, we must find and conclude that Tornes’ acts were

not under color of state law.

To establish municipal liability the plaintiffs must allege (1) harm caused by

a constitutional violation and (2) that the municipality is responsible for that

violation. 4 Regardless of the violation claimed, however, it is axiomatic that a

section 1983 action requires a causal connection between the alleged violation and

t he section 1983 injury. 5 The mere assertion of a municipal policy action or

inaction as a “but-for” cause is not enough to prove a causal connection. 6

The facts alleged do not suggest that the municipalities could have foreseen7 See Martinez v. California , 444 U.S. 277 (1980).

5 Tornes’ action, an essential to establishing the necessary causal link between the

alleged polic y and injury. Although tension existed and there were threats of

violence, the municipalities could not have foreseen that their anti-union policies

would cause Tornes to murder three fellow firefighters. The causal connection

between the alleged policies and the unfortunate deaths of the firefighters are too

tenuous to im pose section 1983 liability. 7 Thus we must conclude that the

complaint fails to allege a claim upon which relief can be granted and the district

court’s dismissal was proper.

The judgment appealed is AFFIRMED.