1 United States Court of Appeals,

Fifth Circuit.

No. 94-20352.

Beryl EUGENE, Plaintiff-Appellant,

v.

ALIEF INDEPENDENT SCHOOL DISTRICT, Paula Conley and R.F. Griffin,

Individually and in their Official Capacities, DefendantsAppellees.

Oct. 5, 1995.

Appeal from the United States District Court for the Southern

District of Texas.

Before REYNALDO G. GARZA, HIGGINBOTHAM and PARKER, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Beryl Eugene filed this 42 U.S.C. § 1983 suit against Alief

I ndependent School District, Paula Conley and R.F. Gri ffin,

claiming that she was wrongly arrested and prosecuted in violation

of her st ate and federal constitutional rights. Holding that

summary judgment in favor of Alief Independent School District was

proper and that summary judgment in favor of Paula Conley and R.F.

Griffin was improper, we affirm in part and reverse in part.

I.

FACTS

Beryl Eugene's (Eugene) son attended Landis Elementary School

in Alief Independent School Dis trict (A.I.S.D.) during the 1990-

1991 school year. On September 28, 1990, Eugene attended a meeting

at the school concerning her son. She voiced complaints because

she believed that her s on's placement in a special education

program was racially motivated—he is black, and Alief is2

predominantly white. She also complained that her son's medication

had been mishandled by school personnel. Her son's teacher, a

special education counselor, the assista n t principal, and the

school nurse initially came to the meeting. The nurse left after

a short time and the assistant principal, concerned that Eugene was

angry, summoned the principal, Paula Conley (Conley), and a school

security officer, R.F. Griffin (Griffin).

Eugene decided to withdraw her son from school and asked that

someone go get her son. The counselor left the conference room to

get her son from his class. Eugene stated that she needed to use

the restroom, left the conference room and started down the hall

towar d the classrooms. Eugene claims that she did not know that

the hall led to the classrooms, and that she was simply looking for

a restroom. Conley told Griffin to stop Eugene. Conley then

pushed Eugene, and again told Griffin to stop her. Eugene claims

that, when pushed by Conley, she attempted to explain that she

simply needed to go to the bathroom. Griffin then pushed Eugene,

and Eugene pushed back. Griffin then tripped Eugene, pushed her to

the ground, and tried to handcuff her. When she resisted, Griffin

began to choke her. She then bit his hand to make him let go of

her neck. Griffin then told Eugene that she was under arrest, and

she allowed him to handcuff her. Eugene was not aware that Griffin

was a police officer during the confrontation.

Eugene was charged with assault on a police officer and found

guilty by a jury. The state district judge, however, entered a

verdict of not guilty as a matter of law.1 Eugene did not appeal the district court's granting of

summary judgment dismissing her state common law causes of

action. Thus, the propriety of that dismissal is not before this

Court.

3 Less than one year after her acquittal, Eugene filed suit

against A.I.S.D., Conley and Griffin in state district court,

a lleging violations of her constitutional rights under the Texas

and federal constitutions, as well as state common law causes of

action. 1 The defendants removed the case to federal district

court. A.I.S.D., Conley and Griffin then moved for summary

judgment on five grounds: (1) Eugene did not assert any

constitutional violations actionable under 42 U.S.C. § 1983; (2)

Eugene could not recover against A.I.S.D. because she did not show

that an official policy or custom of A.I.S.D. caused her rights to

be violated; (2) Conley and Griffin were entitled to qualified

immunity; (4) no cause of action existed for violations of the

Texas state constitution; and (5) Eugene's claims were barred by

limitations . The district court granted Appellees' motion for

summary judgment on the first four grounds, and entered judgment in

favor of Appellees. Eugene appeals from that judgment.

II.

STANDARD OF REVIEW

This is an appeal from a summary judgment. Our review of the

record is plenary, International Shor tstop, Inc. v. Rally's, 939

F.2d 1257, 1263 (5th Cir.1991), cert. denied 502 U.S. 1059, 112

S.Ct. 936, 117 L.Ed.2d 1 07 (1992), and "in reviewing a grant of

summary judgment we use the same standard used by the district4

court." D orsett v. Board of Trustees of State Colleges &

Universities, 940 F.2d 121, 123 (5th Cir .1991). "Having delved

t hrough the record to set forth all of the facts in a light most

favorable to Sanders, we must now consider whether an application

of the relevant law to those facts will lead us to the inescapable

conclusion that Appellees are entitled to judgment in their favor

as a matter of law." S anders v. English, 950 F.2d 1152, 1159 (5th

Cir.1992).

III.

VALIDITY OF EUGENE'S SECTION 1983 CAUSE OF ACTION

We first address whether the district court erred in holding

that Eugene's allegations of malicious prosecution, retaliation,

false arrest and bodily harm were not actionable under 42 U.S.C. §

1983 (Section 1983). Whether such acts are actionable is a

question of law; consequently, we apply a d e nov o standard of

review.

This circuit has explicitly held that malicious prosecution,

false arrest and bodily harm are actionable under Section 1983

because they violate the Fourth and Fourteenth Amendments. S anders

v. English, 950 F.2d 1152, 1159 (5th Cir.1992). S ee Doe v. Taylor

Indep. Sch. Dist., 15 F.3d 443, 450-51 (5th Cir.1994), cert. denied

--- U.S. ----, 115 S.Ct. 70, 130 L.Ed.2d 25. Thus, the district

court erred when it held that such claims were not actionable.

This case is complicated, however, by the Supreme Court's decision

in Albright v. Oliver,

-- - U.S. ----, 114 S.Ct. 807, 127 L.Ed.2d

114 (1994), which was decided while the instant case was on appeal.2 Based on our holding in Section IV, infra, Eugene failed to

create a fact issue as to whether A.I.S.D. can be held liable

under Section 1983, and therefore cannot amend her complaint as

to A.I.S.D. on remand.

5 Albright held that pretrial depri vations of liberty, such as

malicious prosecution, are not actionable under the Fourteenth

Amendment, but left open the possibility that such claims would be

actionable under the Fourth Amendment. Id. at ----, 114 S.Ct. at

813. Because Eugene's Section 1983 claims were based on violations

of her Fourteenth Amendment rights, her petition no longer states

a claim after Albright.

While we do not question A lbright, we will not affirm th e

summary judgment based on that case. Had the district court

followed this circuit's case law when it decided the motion for

summary judgment, it would have f ound that Eugene had a cause of

action. When A lbright was decided, Eugene would then have been

able to amend her complaint to base her Section 1983 action on

violations of the Fourth, rather than the Fourteenth, Amendment.

Thus, to the extent that Eu gene's summary judgment evidence

establishes a fact issue as to whether she can maintain suit

against Appellees, 2 she should be able to amend her compl aint to

base her claims on the Fourth Amendment.

IV.

EUGENE'S CLAIMS AGAINST A.I.S.D.

Eugene's summary judgment evidence f ailed to create a fact

issue as to whether A.I.S.D. can be held liable under Section 1983.

A.I.S.D. cannot b e held liable under Section 1983 on a theory of6

respondeat superior for the actions of its employees. See Monell

v. Department of Social Services, 436 U.S. 658, 690-94, 98 S.Ct.

2018, 2035-37, 56 L.Ed.2d 611 (1978); Johnson v. Moore, 958 F.2d

92, 93 (5th Cir.1992). Eugene must show that her Constitutional

rights were violated through the execution of an official policy by

A.I.S.D. Id. This circuit has defined official policy as:

1. A policy statement, ordinance, regulation, or decision that

is officially adopted and promulgated by the [district]

... or

b y an official to whom the [district] ha[s] delegate d

policy-making authority; or

2. A persistent, widespread practice of [district] officials

o r employees, which, although not authorized by officially

adopted and promulgated policy, is so common and well settled

as to constit ute a custom that fairly represents [district]

policy. Actual or constructive knowledge of such custom must

be attributable to the governing body of the district or to an

official to whom that body had delegated po licy-making

authority.

Johnson, 958 F.2d at 94. Eugene advances two arguments to support

her claim that her rights were violated by the ex ecution of an

official A.I.S.D. policy. First, she argues that force is a policy

of A.I.S.D., and that excessive force is an accepted practice.

Second, she argues that, under the site-based management philosophy

adopted by the Texas Education Agency, A.I.S.D. delegated final

decision-making authority on the Land is school campus to Conley.

Because Co nley ordered Griffin to arrest her, she argues, the

arrest and subsequent pr osecution were official policies of the

school district.

Eugene's summary judgment evidence failed to create a fact

issue as to whether the use of excessive force against parents was

an official policy of A.I.S.D. In support of her argument, Eugene7

presented evidence of a school manual allowing teachers to use

physical force against children that were out of control, and of

evidence of two alleged incidents of A.I.S.D. officials using

excessive force against students. This evidence, however, is only

indicative of A.I.S.D.'s policy of using force against unruly

students; it does not show that A.I.S.D. had a policy to use

excessive force against parents.

Eugene also failed to raise a fact issue as to whether Conley

had the type of final pol icy-making authority that would subject

A.I.S.D. to liability under Section 1983. Only the actions of

district officials with final policy-making authority subject the

district to such liability. S t. Louis v. Praprotnik, 485 U.S. 112,

128, 108 S.Ct. 915, 926-27, 99 L.Ed.2d 107 (1988). Whether Conley

had final policy-making authority is a question of state law. I d.

If she can show that Conley had such authority, she would also have

to show that Conley was responsible under state law for making

policy relating to security decisions. Eugene failed to make such

a showing.

Under Texas law, the final policy-making authority in an

independent school district rests with the district's board of

trustees. J ett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th

Cir.1993) (citing Tex.Educ.Code Ann. §§ 23.01 & 23.26(b) & (d)

(Vernon 1987)). Eugene failed to create a fact issue as to whether

A.I.S.D.'s trustees delegated final policy-making authority in the

area of security to Conley. Texas law enumerates the duties of a

principal, and security is not one of them. S ee Tex.Educ.Code Ann.8

§ 13.352 (Vernon 1991). Moreover, although Texas law provides that

the principal is to exercise decision-making authority in certain

areas, even in those areas the principal must follow the guidelines

and policies established by the school district. I d. Thus, under

Texas law Conley did not have final policy-making authority for

security.

Eugene also failed to create a fact issue as to whether

A.I.S.D.'s trustees delegated policy-making authority for security

to Conley. Eugene's sole support for her delegation theory was a

bare assertion that, under the Texas Education Agency's site-based

management philosophy, A.I.S.D. delegated final decision-making

authority on the Landis campus to Conley. This bare allegation,

unsupported by any evidence, is not suffi cient to defeat summary

judgment. In any event, assuming a rguendo that Conley had

decision-making authority for security, Eugene does not even argue

that she had policy-making authority. When an official's

discretionary decisions are constrained by policies not of that

official's making, those policies, rather than the decision-maker's

departure from them, are the act of the municipality. J ett, 7 F.3d

at 1246-51. Thus, Eugene failed to create a fact issue as to

whether po l icy-making authority for security was delegated to

Conley.

Because Eugene failed to create a fact issue as to whether her

rights were violated through the execution of an official A.I.S.D.

policy, summary judgment in favor of A.I.S.D. was proper. Thus,

the district court's decision to grant summary judgment in favor or9

A.I.S.D. is affirmed.

V.

QUALIFIED IMMUNITY

The district court erred in holding that Conley and Griffin

were entitled to qualified immunity. Public officials acting

within the scope of their official duties are shielded from civil

liability by the doctrine of qualified immunity. S ee Harlow v.

Fitzgerald, 457 U.S. 800, 815-19, 102 S.Ct. 2727, 27 36-38, 73

L.Ed.2d 396 (1982). However, qualified immunity does not shield a

public official whose conduct violates clearly-established

constitutional rights, if a reasonable person would have known that

such conduct was unconstitutional. H arlow v. Fitzgerald, 457 U.S.

800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396. To establish that

Conley and Griffin are not entitled to qualified immunity, Eugene

must satisfy a three-pronged test. First, she must show that she

has asserted a violation of a constitutional right. S iegert v.

Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed .2d 277

(1992). Second, she must show that this right was clearly

e stablished at the time of Conley and Griffin's actions. I d. at

233-34, 111 S.Ct. at 1794. Third, she must show that Conley and

Griffin's actions were objectively unreasonable. H arlow, 457 U.S.

at 818, 102 S.Ct. at 2738.

Eugene satisfied this th ree-pronged test. First, she

asserted a violation of a constitutional right, her right under the

Fourth and Fourte enth Amendments to be free from malicious

prosecution, false arrest and bodily harm. See Sanders, 950 F.2d10

at 1159; Doe, 15 F.3d at 450-51. Second, this right was clearly

established. This circuit held that she had such a right long

before the incident in question. S ee, e.g., Shaw v. Garrison, 467

F.2d 113, 120 (5th Cir.1972), cert. denied 409 U.S. 1024, 93 S.Ct.

467, 34 L.Ed. 2d 317. Finally, the summary judgment evidence

created a fact issue as to whether Conley and Griffin's actions

were objectively unreasonable. Arresting and prosecuting Eugene

would be o bjectively unreasonable if Conley and Griffin did not

have probable cause for the arrest and prosecution. To have

probable cause, Conley and Griffin would have to possess knowledge

that would wa rrant a prudent person's belief that Eugene had

already committed or was committing a crime. S ee Duckett v. Cedar

Par k, 950 F.2d 272, 278 (5th Cir.1992). Griffin's deposition

testimony, excerpts of which were properly before the district

court as summary judgment evidence, supports a finding that she was

committing no crime. The directed verdict of acquittal likewise

militates against summary judgment. A reasonable fact finder could

have concluded, based on this evidence, that she was simply looking

for a bathroom when Griffin, whom she did not know to be a police

officer, assaulted her. Thus, the evidence created a fact issue as

to whether Conley and Griffin had probable cause to arrest and

prosecute her.

Because the summary judgment evidence created a fact issue as

to whether Conley and Griffin were entitled to qualified immunity,

the court erred in granting summary judgment on that ground. Thus,

the district court's decision is reversed as to the granting of11

summary judgment against Eugene on her Section 1983 claims against

Conley and Griffin.

VI.

CONSTITUTIONAL TORTS UNDER THE TEXAS CONSTITUTION

The district court correctly decided that Eugene's

constitutional tort claims under Article I, Section 19 of the Texas

Constitution were unmeritorious. Whether Eugene made out such a

cause of action is a question of law, which we will review de novo.

Texas does not appear to recognize violations of its constitution

as an independent tort. One Texas Court of Appeals has stated that

"Texas has a strong bill of rights, but

... no Texas statute or

case

... provides a citizen the kind of redress afforded by 42

U.S.C. § 1983 or by Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics. There is no state constitutional

tort." B agg v. University of Texas Medical Branch, 726 S.W.2d 582,

584 n. 1 (Tex.App.—Ho uston [14th Dist.] 1987, writ ref'd n.r.e.)

(citations omitted). S ee also City of Houston v. Leach, 819 S.W.2d

185 (Tex.App.—Houston [14th Dist.] 1991, no writ). But see Jones

v. Memorial Hosp. Sys., 746 S.W.2d 891 (Tex.App.—Houston [1st

Dist.] 1988, no writ). This circuit has not passed on the question

of whether an actionable "state constitutional tort" exists under

Texas law, and we need not pass on the issue in this case. In

Gillum v. City of Kerrville, 3 F.3d 117, 122 (5th Cir.1993), cert.

denied

--- U.S. ----, 114 S.Ct. 881, 127 L.Ed.2d 76, we held that,

even if such a "tort" exists, Texas law would not allow government

employees to be sued for exercising their discretionary authority.12

Because the evidence is uncontroverted that Conley and Griffin were

acting within their discretionary authority—that is, as a principal

and as a security guard—the district court properly held that they

were immune to any suit under state law, including one based on the

Texas Constitution. Id. See Tex.Educ.Code Ann. § 21.912 (Vernon

1987).

VII.

LIMITATIONS

As an additional ground for affirming the summary judgment,

Appellees argue that the statute of limitations had run before

Eugene filed suit. Her Section 1983 claims are subject to a

two-year statute of limitations. S ee Wilson v. Garcia, 471 U.S.

261, 279, 105 S.Ct. 1938, 1948-49, 85 L.Ed.2d 254 (1985);

Tex.Civ.Prac. & Rem.Code Ann. § 16.003(a) ( Vernon 1986). Those

claims arise from events that occurred on September 28, 1990, and

she did not file her original suit in state court until December 9,

1992. However, because she could not file suit based on malicious

prosecution until December 10 , 1991, when she was acquitted from

the criminal charges against her, Eugene's cause of action did not

accrue until she was acquitted. S ee Johnson v. Louisiana Dept. of

Agriculture, 18 F.3d 318, 320-21 (5th Cir.1994). Because less than

two years elapsed between the accrual of her claim and the date she

filed her original petition in state court, her Section 1983 claims

are not barred by limitations.

VIII.

CONCLUSION13

We affirm the district court's summary judg ment in favor of

Alief I.S.D. and dismissing Eugene's state constitu tional tort

claims against Conley and Griffin, reverse and remand the district

court's summary judgment in favor of Conley and Griffin insofar as

it dismissed Eugene's 42 U.S.C. § 1983 claims against them, and

order the trial court to allow Eugene to amend her complaint to

bring her 42 U.S.C. § 1983 claims under the Fourth Amendment.

AFFIRMED IN PART AND REVERSED IN PART.