IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-41113

JOHN DOE and JANE DOE, as Next Friend of

Sarah Doe,

Plaintiff-Appellee,

versus

RAINS COUNTY INDEPENDENT SCHOOL DISTRICT,

ET AL.,

Defendants,

DANA WHITE,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

(October 3, 1995)

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

HIGGINBOTHAM, Circuit Judge:

This appeal arises from yet another tragic instance of a high

school coach's alleged sexual abuse of a student. It brings a

difficult issue testing limits of federal judicial authority:

whether a school teacher's breach of a state-law duty to report

child abuse can, by itself, give rise to a federal claim against

the teacher under 42 U.S.C. § 1983. The parents of Sarah Doe

allege that Dana White, a school teacher, caused Sarah to be

deprived of r ights protected under state law and the federal

constitution when White failed to report her discovery of Sarah's2

sex ual abuse within forty-eight hours as required by Texas law.

See Tex. Fam. Code Ann. § 34.01-34.02. White appeals from the

district court's denial of her motion for summary judgment, in

which she asserted qualified immunity. We do not reach the issue

of qualified immunity. We conclude that because White's breach of

her duty under Texas law to report child abuse was not under color

of state law, the Does failed to state a claim under § 1983 against

White. We reverse and order dismissal of the suit against White.

I.

A.

The Does argue that the sole issue before us is the district

court's denial of White's motion for summary judgment on qualified

immunity grou nds, and that we therefore lack authority to review

the ruling below that the Does have stated a claim against White.

This argument is without merit. When reviewing a district court's

r ejection of a defendant's assertion of qualified immunity, we

start by asking whether plaintiffs have alleged a violation of a

clearly established constitutional right. B lackwell v. Barton

, 34

F.3d 298, 301 (5th Cir. 1994). Thus, before reaching the qualified

immunity question, we "first resolve the constitutional question

--

that is, whether [plaintiffs have] stated a claim for a violation

of a right secured to [them] under the United States Constitution."

Duckett v. City of Cedar Park

, 950 F.2d 272, 278 (5th Cir. 1992)

(citing Siegert v. Gilley

, 500 U.S. 226, 232 (1991)). In deciding1 Siepert has denied the allegations that he engaged in any

misconduct of a sexual nature with Sarah.

3 whether the Does have stated a claim against White, we accept as

true the facts as alleged by the Does.

B.

In September 1990, David Siepert resigned from h is teaching

and coaching position with the Lake Dallas Independent School

District, amid allegations that he was sexually involved with a

student of his who had been babysitting for him. In August 1991,

with the help of Arthur Talkington, a former Lake Dallas colleague

who was employed with RISD, Siepert obtained a coaching position at

Rains High School in RISD. From the start of his employment with

RISD, Siepert developed a reputation for acting inappropri ately

toward female students. Reports of his misbehavior indicated, for

example, that Siepert summoned female students from class early to

wrap ankles or wrists for athletics, talked in front of students

about dating high school students, and massaged a female student

while alone with her in the gym.

During the fall of 1991, while fifteen-year-old Sarah Doe was

a student in Siepert's physical education class, Siepert contacted

S arah at school about babysitting for him. Not long after Sarah

began babysitting for Siepert's two children, Siepert began making

sexual advances toward her. Siepert eventually began having sexual

intercourse with Sarah on a regular basis throughout the 1991-1992

school year, typically at his home while Sarah was "babysitting." 1

Siepert, though, did not limit his interaction with Sarah to his2 White insists that she remained silent to honor her promise

of confidentiality to Sarah, which Sarah demanded before revealing

Siepert's identity, and also because White believed that Sarah was not in immediate danger since Siepert was out of town. Although

White's reasons for not reporting the abuse are not in the Does'

4 home. He often discussed babysitting arrangements with Sarah at

school, drove Sarah from school to his home when she was scheduled

t o babysit, and gave gifts to her while in his car or at school.

In addition, Siepert had physical contact with Sara h during his

physical education class; for example, he would request Sarah's

assistance in putting away athletic equipment, then grab her hands

and buttocks while they were alone in the equipment room. Although

this in-school contact ended with the arrival of summer vacation,

Siepert's requests for babysitting assistance did not.

Dana White entered the scene during the summer of 1992. White

was employed as a junior high school teacher with RISD from August

1982 until June 1993, during which time she was certified a s a

teacher in Texas and paid monthly pursuant to her teaching contract

with RISD. On June 22, 1992, White found out that Siepert was

having sexual relations with Sarah. On that date, Sarah called

White from Siepert's home, where Sarah was babysitting, to ask for

advice about a condom leak. White suspected that Sarah might be

having problems of a sexual nature with the adult for whom she was

b abysitting, but did not know his identity until Sarah indicated

that she was babysitting for Siepert. White immediately went to

Siepert's home to talk with Sarah in person, at which time Sarah

revealed the details of her ongoing sexual affair with Siepert.

White chose not to report Siepert's abuse of Sarah at that time. 2alleged facts and thus not relevant to our disposition, we mention

them to facilitate a better understanding of the supposed

circumstances of White's inaction.

3 On that date, White accompanied Sarah to Sarah's home, where

Sarah told her parents about her involvement with Siepert. While

there are conflicting indications as to what happened immediately

thereafter, there is no dispute that White subsequently went to the

local sheriff's office to file a report that included a discussion

of Sarah's sexual involvement with Siepert.

5 Although Sarah made efforts to terminate her involvement with

Siepert, she continued to babysit for him intermittently throughout

the summer and into the fall of 1992. On November 5, 1992, Sarah

visited White's classroom to complain about her frustration with

Siepert. Sarah told White that Siepert had been making Sarah feel

guilty about turning down babysitting assignments, and that he had

told Sarah that he was interested in dating her. White discussed

Sarah's problem with her brother, her husband, and an attorney, but

she again declined to report the abuse to the proper authorities.

From November 5 through November 12, 1992, White and other school

teachers and officials had various conversations regarding Sarah's

abuse; however, a proper report was not mad e until November 12. 3

Jane and John Doe brought this civi l rights suit asserting

state and federal claims on behalf of Sarah against Siepert, White,

RISD, and certain other RISD teachers and officials. The Does

allege that the defen dants violated, i nter alia

, the Due Process

Clause of the Fourteenth Amendment by causing Sarah to be deprived

of her liberty interest in bodily integrity. The Does sued White

in her individual and official capacities, asserting that White, by

exhibiting deliberate indifference to Sarah's constitutional rights4 § 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory

or the Di strict of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress.

6 in breaching her duty under Texas law to report Sarah's abuse,

caused Sarah's deprivation under color of state law. White moved

for summary judgment, arguing that the Does had failed to state a

claim against her in her official capacity, and that she was

entitled to qualified imm unity in her individual capacity. The

district court granted summary judgment for White in her official

capacity, but denied her motion as to her individual capacity.

White appeals this denial of summary judgment on her qualified

immunity claim, asserting that the Does have failed to state a

§ 1983 claim against her, and that in any event she is entitled to

qualified immunity.

II.

A.

To state a claim under § 1983, plaintiffs must allege two

elements: first, that they were deprived of a right or interest

secured by the Constitution and laws of the United States, and

second, that the deprivation occurred color of state law. S ee West

v. Atkins

, 487 U.S. 42, 48 (1988). 4 Where an asserted interest is

protected by a constitutional provision that operates only against7

the State, such as those of the Fourteenth Amendment, pla intiffs

must also allege state action to satisfy the first step of alleging

an actionable deprivation. S ee Lugar v. Edmondson Oil Co.

, 457

U.S . 922, 930 (1982). Hence, to allege a violation of the Due

Process Clause of the Fourteenth Amendment, the under color of

state law requirement of § 1983 is usually overlapped by an

allegation of state action made in a sserting the constitutional

violation. The Fourteenth Amendment's state action requirement may

be nominally distinct from § 1983's under color of state law

requirement, but the two inquiries are related; a showing of state

action is sufficient to establish action under color of state law,

id. at 935 & n.18, and "it is clear that in a § 1983 action brought

against a state official, the statutory requirement of action

`under color of state law' and the `state action' requirement of

the Fourteenth Amendment are identical," id. at 929. Accordingly,

in § 1983 suits alleging a violation of the Due Process Clause of

the Fourteenth Amendment, we have collapsed the state act ion and

color of state law inquiries into a single, second step:

Plaintiffs must (1) assert a prot ected "liberty or property"

interest and (2) show that they were deprived of that interest

under color of state law. S ee Doe v. Taylor Indep. Sch. Dist.

, 15

F.3d 443, 450 (5th Cir. 1993) (en banc), cert. denied

, Lankford v.

Doe , 115 S. Ct. 70 (1994).

In light of our recent dec ision in D oe v. Taylor

, we have

little trouble concluding that the Does' allegations are sufficient

to establish that Sarah suffered an actionable deprivation of her8

liberty interest in freedom from sexual abuse by persons wielding

state authority. In D oe v. Taylor

, we held that "schoolchildren do

have a liberty interest in their bodily integrity that is protected

by the Due Process Clause of the Fourteenth Amendment and that

physical sexual abuse by a school employee violates that right."

15 F.3d at 445. The factual predicate of D oe v. Taylor painted an

unfortunate picture of sexual exploitation that is similar to what

allegedly transpired in this case: A high school coach who had a

reputation for behaving inappropriately toward female students

d eveloped a sexual interest in a fifteen-year-old student in his

biology class. Using his state power and status, the coach

manip ulated the student, pursuing her during school hours and on

school grounds -- for example, by writing suggestive notes on her

homework and exams, showing her favoritismin class, and buying

alcoholic beverages for her and her friends during lunch,

eventually having sexual intercourse with her on repeated

occasions. We concluded that he had acted under color of state law

in sexually abu sing the student, finding that "a `real nexus'

exist[ed] between the activity out of which the violation occur[ed]

and the teacher's duties and obligations as a teacher." Id. at 452

n.4.

Doe v. Taylor persuades us that the Does have stated a § 1983

claim against Siepert for deprivi ng Sarah of her federal

constitutional right to bodily integrity. Sarah was a student in

Siepert's class, and Siepert had considerable interaction with

Sarah at school: He allegedly discussed babysitting arrangements9

with her, gave her rides from school, delivered personal notes to

her, and gave gifts to her. Particularly since White herself

concedes in her brief that Siepert can be held liable under § 1983

for Sarah's injury, we find it appropriate to assume, for purposes

of this appeal, that the Does have adequately alleged that Siepert

acted under color of state law in causing Doe to be deprived of her

liberty interest in bodily integrity. It is true that this reach

of a constitutionally secured interest in personal liberty is

fairly debatable as an original proposition. We were persuaded in

Doe v. Taylor that Supreme Court precedent has ended that precise

debate for this, an inferior court.

B.

That a deprivation has occurred at the hands of a state actor,

however, does not answer the separate ques tion of which other

persons, apart from the immediate perpetrator, may be held liable

under § 1983. To help focus this inquiry, our decision in B ush v.

Viterna

, 795 F.2d 1203 (5th Cir. 1986 ), outlined a three-step

approach for drawing the circ le of liability in a § 1983 action.

After finding that (1) a rights violation occurred (2) under color

of state law, only then do we ask a third and final question: Who

are the state actors responsible for the constitutional violation?

Id. at 1209; see also Collins v. City of Harker Heights

, 112 S. Ct.

1061, 1066 (1992) ("[P]roper analysis requires us to separate two

different issues when a § 1983 claim is asserted against a

municipality: (1) whether plaintiff's harm was caused by a

constitutiona l violation, and (2) if so, whether the city is10

responsible for that violation."). As we explained in Bush , this

final question "will usually be answered exclusively by reference

to state law and practice.

. . . The states have virtually

complete freedom to decide who will be responsible for such tasks,

and therewith to determine who will be held liable for civil rights

violations that occur in the course of carrying them out." 795

F.2d at 1209. Much as state law defines property interests, s ee

Cleveland Bd. of Educ. v. Loudermill

, 470 U.S. 532, 538 (1985),

identifies which state officials have final policymaking authority,

see City of St. Louis v. Praprotnik , 485 U.S. 112, 124-27 (1988),

and determines whether a federal employee was acting within the

scope of his employment, see Garcia v. United States

, 62 F.3d 126,

___ (5th Cir. 1995) (en banc), state law in this context delineates

the contours of federal liability by locating the persons who can

be held responsible under § 1983 for causing a constitutional

injury.

The Does allege that the Texas Family Code, by imposing on

teachers an affirmative duty to report child abuse in a timely

manner, has encircled White as a state actor who can be held liable

under § 1983 for Sarah's deprivation. The Family Code provides

generally that "[a]ny person having cause to believe that a child's

physical or mental health or welfare has been or may be adversely

affected by a buse or neglect shall report in accordance with

Section 34.02 of this code." Tex. Fam. Code Ann. § 34.01. While

Subsections (a) and (b) of § 34.02 prescribe the requisite method11

and content for a proper report, § 34.02(d) establishes a more

stringent reporting requirement for "professionals":

If a professional has cause to believe that a child has

been or may be abused or neglected, the profe ssional

shall make an oral report as prescribed by Subsection (a)

of this section not later than the 48th hour after the

hour the professional first suspects that the child has

been or may be abused or neglecte d. . . . In this

subsection, "professional" means an individual who is

licensed or certified by the state, or who is an employee

of a facility licensed, certified, or operated by the

state, and who in the normal course of official duties,

or duties for which a license or certification is

required, has direct contact with children.

"Professional" includes teachers, nurses, doctors, and

day-care employees.

Hence, since a knowing failure to report in accordance with the

applicable requirem ents is punishable as a misdemeanor, s ee Tex.

Fam. Code Ann. § 34.07, the Family Code imposes on all teachers a

criminally enforceable obligation to report child abuse within

forty-eight hours of acquiring suspicion or knowledge of the abuse.

The Does argue that a teacher who waits longer than fortyeight hours to report state-occasioned child abuse subjects herself

to liability under § 1983 if she was deliberately indifferent to

the constitutional rights of the abused child. In particular, the

Does rely on our holding in Doe v. Taylor that, where supervisory

school officials were deliberately indifferent to a subordinate

teacher's sexual abuse of a grade-school student, the officials can

be held responsible for the resulting deprivation of the student's

constitutional rights. S ee 15 F.3d at 452-54. While acknowledging

that White was not a supervisory official, the Does suggest that

our reasoning in D oe v. Taylor should be extended to this c ase,

emphasizing the follo wing passage from the concurring opinion:12

"State law allows us `to identify the persons responsible for [the]

identified ci vil rights violation.' . . . To put the matter

differently, state law guides us in circ ling state actors who

fairly can be said to have caused Doe to be subjected to the rights

violation." Id. at 463 (Higginbotham, J., concurring). The

district court agreed with the Does, relying on this passage in

concluding that t he Does had stated a § 1983 claim against White

for causing Sarah's constitutional deprivation.

White does not dispute that she breached her duty under Texas

law by not reporting Sarah's abuse more promptly. Instead, she

argues that her breach, standing alone, cannot give rise to a

federal claim against her. Thus, White offers a contrary reading

of Doe v. Taylor

, pointing to a different statement in the

concurrence: "Consider a classroom teacher in the same school as

Coach Stroud who had full knowledge of Coach Stro ud's activities

but looked the other way. Any moral duty aside, no one suggests

that § 1983 imposes liability upon this silent teacher." Id. at

464 (Higginbotham, J., concurring).

As the Does have pointed out, however, White omitted a key

sentence that immediately follows her quoted segment: "This

conclusion is found in the role of state law." I d. The Does thus

argue that here, unlike Doe v. Taylor , state law does impose an

affirmative duty on a fellow teacher not to remain silent, and that

White's breach of that duty therefore can serve as th e basis for

§ 1983 liability. Hence, the precise question for this court is

w hether state law supports the conclusion that White's breach of13

her state-law duty to report child abuse renders her resp onsible

for Sarah's constitutional injury at the hands of Siepert.

C.

The Does arguments, though logically enticing, are ultimately

incomplet e. As we explained in B ush

, it is often difficult, but

nevertheless essential, to "isolat[e] the appropriate inquiry into

the identity of the state actors res ponsible for the violations

from the s eparate question of whether particular defendants had

breached some duty imposed on them by state law." 795 F.2d at 1209

(emphasis added). While the state may levy responsibility for

constitutional injuries through imposition of state-law duties, it

does not follow that every person who violates state law is

amenable to a federal claim. A state employee's breach of a duty

does not by itself establish her liability under § 1983; rather,

asking whether a breach of a state-law duty resulted in a

constitutional injury is a vehicle for answering the critical

question: whether state law has reposed in a defendant enough

responsibility for the underlying conduct that she can be said to

have caused the injury herself. The state allocates responsibility

under state law, but it is a federal decision as to whether its

assignmen ts of duties and authority create action under color of

state law. A state employee's breach of a state-law duty to act

can give rise to § 1983 liability, but only if, as a matter of

federal law, the duty is of such nature as to render her

responsible for the constitutional harm when breached.14

It is important to keep in mind that we are not asking whether

breach of a state-law duty co nstitutes a distinct constitutional

violation. Since the Does have already asserted an actionable

constitutional deprivation based on Siepert's abusive conduct, the

precise question remaining is whether there are persons in addition

to Siepert whose responsibility under state l aw is sufficient to

subject them to liability under § 1983 for that single deprivation

-- persons who, in the legal sense, are the participants. By

supplying the requisite elemen ts of a § 1983 claim -- i.e., a

constitutional deprivation, causation, and action under color of

state law

-- Siepert's alleged misconduct frees us to redirect our

focus away from the requirements for a constitutional claim, which

Siepert has met, and toward the lines of responsibility under state

law. In short, once we determine that a constitutional violation

has occurred, we are no longer barred from finding another person

liable under § 1983 for committing a state-law breach that caused

the constitutional injury, even if th e breach itself does not

independently satisfy the elements of a constitutional claim.

Taken to its extreme, such reliance on state law could allow

states virtually unfettered latitude in prescribing the scope of

federal liability. Subject only to due process limitations, a

state conceivably could declare a person resp onsible for someone

else's unconstitutional conduct, through creation of state-law

duties, no matter how attenuated the person's relationship to the

injurious conduct and reg ardless of whether the person otherwise

had any affiliation with the state. But since the effect of state15

law in defining federal liability is ultimately an issue of federal

law, and given our role in shaping federal law, we have seen fit to

avoid such an outcome through interpretation of the elements of

federal constitutional and statutory claims asserted via § 1983.

The Supreme Court has emphasized that "the Due Process Clause

`does not purport to supplant traditional tort law in laying down

rules of conduct to regulate liabili ty for injuries that attend

living together in society.'" C ollins

, 112 S. Ct. at 1070 (finding

no federal constitutional obligation to provide state employees

with minimum levels of workplace safety and s ecurity) (quoting

Daniels v. Williams

, 474 U.S. 327, 332 (1986)); see also Bush

, 795

F.2d at 1209 ("[T]he enforcement of state law is the job of the

states , and the federal civil rights statute may not be used to

bootstrap alleged violations of state law into federal claims.").

Mindful of its role in preserving the distinction between state law

torts and constitutional violations, the federal judiciary has

fashioned certain limiting principles designed to cabin the ability

of state law to render person s liable under § 1983 for causing a

constitutional injury. A municipality, for instance, cannot be

held vicariously liable under § 1983; rather, plaintiffs must point

to an off icial policy or custom that was the "moving force" of a

constitutional injury. M onell v. New York City Dep't of Social

Servs.

, 436 U.S. 658, 694 (1978). Further, injuries resulting from

a municipality's failure to train or to supervise its employees can

give rise to § 1983 liability only where the inaction is indicative

of an official policy or custom that manifests deliberate16

indifference toward the rights of the injured persons. S ee City of

Canton v. Harris

, 489 U.S. 378, 388 (1989). M onell 's moving force

requirement for claim s of failure to train means that "the

identified deficiency in a city's training program must be closely

related to the ultimate injury." C ity of Canton

, 489 U.S. at 391.

Stated another way, "[t]here must at least be an affirmative link

between the t r aining inadequacies alleged, and the particular

constitutional violation at issue." Oklahoma City v. Tuttle , 471

U.S. 808, 824 n.8 (1985).

As the Court has explained, "permitting cases against cities

for their `failure to train' employees to go forward under § 1983

on a lesser standard of fault would result in de facto respondeat

superi or liability on municipalities -- a result we rejected in

Monell ." C ity of Canton

, 489 U.S. at 392. Significantly, though,

the refusal to impose vicarious liability, the re quirement of an

official policy or cu stom, the deliberate indifference standard,

and the moving force test are not man dated by the language of

either the Constitution or § 1983. Rather, they are limiting

principles that federal courts have fashioned in the course of

drawing the line between liability under state-law obligations and

§ 1983. The force of this distinction is exemplified by our

holding that vicarious liability can never be the basis for a

§ 1983 claim, eve n where state law provides that a supervisor is

vicariously liable for the conduct of his subordinates. S ee Baskin

v. Parker

, 602 F.2d 1205, 1208 (5th Cir. 1979) (relying on Monell ).

We, as federal courts, have chosen to supply certain glosses in our17

construction of § 1983 to bring into focus the difference between

a state-law breach and a constitutional violation. In other words,

in asking the federal-law question whether a state-law duty imposed

responsibility under § 1983 for another person's co nstitutional

wrong, we have chosen to say that not all state law obligations are

of such nature that a person's breach subjects that person to

federal liability. We have chosen to demand a heightened showing

of fault and causation before concluding that breach of a duty to

act renders a supervisory state official or a municipality liable

under § 1983.

That a supervisory school official may b e held liable under

§ 198 3 for breaching his state-law duty to s top or prevent child

abuse thus does not compel the conclusion that a nonsupervisory

teacher is responsible for breaching a state-law duty to report the

abuse. Instead, this conclusion depends on a relative analysis of

state law's treatment of supervisors and teachers. We must ask

what it is about a supervisor's duties and functions that renders

a state supervisory official liable f or a constitutional

deprivation by a subordinate. Only when we learn this can we

decide whether, despite her lack of supervisory powers, a teacher

who breaches her duty to report child abuse nevertheless engages in

conduct akin to that of a supervisor who flouts his responsibility

to supervise. By focusing on the core elements of supervisory

liability, we can avoid the "risk of applying state law rather than

simply using state law to identify the persons responsible for an

identified civil rights violation." Bush , 795 F.2d 1209.18 III.

The Does' reliance on our analysis of supervisory liability in

Doe v. Taylor begs a critical element of this final step in our

Bush inquiry: Was White acting under color of state law when she

breached this duty? Color of state law in this context does not

implicate the state action requirement of the Fourteenth Amendment

because we are not asking whether White is guilty of committing an

independent constitutional violation. Rather, since the Does seek

to hold White liable for damages under § 1983, the key question is

whether she has met the statutory requirements of a § 1983 claim

--

whether she fairly can be said to have acted under color of state

law in causing Sarah's constitutional injury. As the Supreme Court

has explained, even where state action is not necessary to state a

claim under § 1983, the color of state law requirement of § 1983

still maintains its vitality as a statutory element:

[A]lthough

. . . the under-color-of-state-law requirement

d oes not add anything not already included within the

state-action requirement of the Fourteenth Amendment,

§ 1983 is applicable to other constitutional provisions

and statutory provisions that contain no state-action

requirement. Where such a federal right is at issue, the

statutory concept of action under c olor of state law

would be a distinct element of the c ase not satisfied

implicitly by a finding of a violation of the particular

federal right.

Lugar , 457 U.S. at 935 n.18.

While this case does not involve a federal right apart from

the Does' Fourteenth Amendment substantive due process claim, the

Court's analysis is nevertheless instructive as to the "distinct"

nature of the statutory requirement of "action under color of state

law." That is, as Siepert's alleged sexual misconduct has already19

sup plied the requisite state action for purposes of asserting a

Fourteenth Amendment violatio n, we need not ask about Fourteenth

Amendment state action in focusing on the Does' § 1983 claim

against White. But since we do have to ask whether White has met

the statutory requirement of action under color of state law, our

inquiry into White's liability under § 1983 is analytically similar

to a § 1983 claimin which a claimant asserts the violation of a

federal provision that does not contain a state action requirement.

Thus, in asking whether W hite is liable under § 1983 for causing

Sarah's deprivation by Siepert, we must determine whether it fairly

c an be said that White's breach of her state-law duty to r eport

child abuse was action under color of state law, for only then can

we find that the Does have satisfied the elements of a § 1983 claim

against White

.

As we will explain, "color of state law" demands a causal

connection between the st ate-law breach and the constitutional

i njury, and satisfaction of this causation requirement in turn

hinges on the presence of a right of legal control over the events

culminating in the constitutional harm. Thus, while state law

guides us in locating the constitutional actors responsible for

causing a constitutional injury, we are still constra ined in

drawing the circle of federal liability; we must be satisfied that

White's failure t o report Sarah's abuse within forty-eight hours

had the requisite causal relationsh ip to Sarah's constitutional

wrong. Simply put, White is responsible under § 1983 for breaching20

her duty to report Siepert's abuse of Sarah only if state law also

empowered her with a right of legal control over Siepert.

A.

While state law imposes a panoply of legally enforceable

obligations on both citiz ens and state employees, not every law

creating a duty establishes that the obligated party is a state

actor for purposes of fulfilling the duty. "A State may, through

its courts and legislatures, impose such affirmative duties of care

and protection upon its agents as it wishes. But not `all commonlaw duties owed by government actors were

. . . constitutionalized

by the Fourteenth Amendment.'" D eShaney v. Winnebago County Dep't

of Social Servs.

, 489 U.S. 189, 202 (1989) (quoting Daniels v.

Williams

, 474 U.S. at 335). Many jurisdictions, for example, have

recognized misprision of felo ny as a common law offense,

criminalizing a failure to report known commission of a felony, see

21 Am. Jur. 2d § 34, yet it has never been suggested that a person

becomes a state actor solely by committing this offense. If

imposition of a duty on a person by itself cloaked that person with

state authority such that breach entailed an exercise of state

power, then every citizen would act u nder color of state law and

face feder a l liability when breaching virtually any state-law

obligation. As such an outcome is untenable, a threshold question

when dealing with any § 1983 action based on a breach of an

affirmative duty is whether the alleged failure to act can be said

to constitute action under color of state law.21

Liability attaches under § 1983 only where a defendant, acting

under color of state law, causes a person to be deprived of a

federally secured right or interest. This requirement that action

be under color of state law is as ess ential as it is rigorous; a

person do es not act under color of state law solely by virtue of

her relationship to the state, but depending on her function

--

i.e., the nature of her challenged c onduct. S ee Polk County v.

Dodson , 454 U.S. 312, 319-20 (1981) (holding that public defender

does not act under color of state law when defending clients); see

also Daniels v. Williams

, 474 U.S. at 335-36 (emphasizing that

claim based on Fourteenth Amendment does not transform every tort

committed by state off icial or employee into constitutional

violation); Screws v. United Stat es , 325 U.S. 91, 111 (1945)

(noting that acts of state officer in ambit of personal pursuits

a re not acts under color of state law). Regardless of one's

affiliation with the state, "a person acts under color of state law

only when exercising power `possessed by virtue of state law and

made possible only because the wrongdoer is clothed w ith the

authority of state law.'" P olk County

, 454 U.S. at 317-18 (quoting

United States v. Classic , 313 U.S. 299, 326 (1941)). Hence, to

determine which state-law duties are such that a breach is under

color of state law from, we focus on the natu re of the duty, not

the status of the person. We ask whether a particular duty is of

such a nature that breach by a defe ndant represents a misuse of

state authority

-- i.e., whether the failure to act in accordance22

with the state-law duty entailed an exercise of power made possible

only because the defendant was clothed with the authority of law.

Where the alleged official misconduct involves a breach of an

affirmative duty to act, a two-party conceptual complexity arises

from the fact that the act complained of is (1) unlawful, and

(2) an act of omission, rather than commission. Ordinarily, the

unlawfulness of official conduct does not preclude us from finding

that the conduct was nevertheless action under color of state law.

Thus, where a state offic ial acted under a grant of authority by

the state, she can be held liable under § 1983 for unlawful conduct

on the ground that she exceeded her authority. See, e.g.

, Monroe

v. Pa pe , 365 U.S. 167, 170-87 (1961), o verruled in part on other

grounds

, Monell , 436 U.S. at 690-701.

This analysis canno t be easily extended, however, when the

issue is a breach of an affirmative duty to act. In particular,

the conceptual difficulty is in deciding when it can be said that

there was a conferral of state authority making it possible for a

defendant to wi eld state power in failing to act. Thus, when

deciding whether the defendant exercise d state power, the first

question is, necessarily, whether the defendant possessed any state

power to begin with

-- i.e., whether she was cloth ed with state

authority with respect to her duty to act. This inquiry, in turn,

requires an examination of our cases in which § 1983 liability has5 We are mindful of the Supreme Court's ruling in Collins that

§ 1 983 does not require "proof of an abuse of governmental power

separate and apart from the proof of a constitutional violation."

112 S. Ct. at 1065. Here, plaintiffs have already alleged a

constitutional violation; we ask whether there is an exercise of

authority o nly in answering the separate question of which other

persons can be held liable under § 1983 for ca using the alleged

deprivation.

23 been based on a defendant's failure act, with a particular focus on

the nature of the duty breached. 5

B.

As we have held that state supervisors can be found liable

under § 1983 for failing to comply with a state-law duty to act, we

necessarily have determined that under certain circumstances, a

guilty supervisor's inaction may constitute action under color of

state law. If a supervisor acted under color of state law, then he

must have possessed and exercised state power in failing to act and

thereby causing the constitutiona l injury perpetrated by his

subordinate. Accordingly, we start by reviewing our supervisory

liability cases in an effort to distill the proper meaning of

"under co lor of state law" as applied in the context of a

defendant's inaction in the face of a duty to act.

In Sims v. Adams , 537 F.2d 829 (5th Cir. 1976), we explained

that "§ 1983 requires a degree of causation as an element of

individual liability, but it does not specifically require

`personal participation .'" I d. at 831. Where personal

participation is absent, "a super visory defendant is [still]

subject to § 1983 liability when he breaches a duty i mposed by

state or local law, and this breach cause s plaintiff's24

constitutional injury." I d. Thus, the plaintiff in S ims stated a

claim against defendants who "allegedly breached the duties of a

mayor and a chief of police to control a policeman's known

propensity for improper use of force." Id. at 832.

Following the Supreme Court's decision in Monell

, we held that

a supervisory official could not be held vicariously liable under

§ 1983 for the mi sconduct of a subordinate, even where state law

did impose vicarious liability on the supervisor. S ee Baskin v.

Parker

, 602 F.2d at 1208. We did not retreat, however, from the

rule that a state supervisor's breach of a state-law duty can give

rise to direct liability under § 1983. We established a three-part

test for determining when a supervisory official can be held liable

for the conduct of a subordinate: "the plaintiff must show that:

(1) the [supervisor] failed to supervise or train the

[subordinate], (2) a causal connection existed between the failure

to supervise or train and the violation of the plaintiff's rights,

and (3) such failure to supervise or train amounted to gross

ne gligence or deliberate indifference." H inshaw v. Doffer

, 785

F.2d 1260, 1263 (5th Cir. 1986); see al so Bowen v. Watkins , 669

F.2d 979, 988 (5th Cir. 1982); Douthit v. Jones

, 641 F.2d 345, 346-

47 (5th C ir. 1981); B arksdale v. King

, 699 F.2d 744, 746-48 (5th

Cir. 1983).

With this precedent in hand, we concluded in Doe v. Taylor

that supervisory school officials can be held liable under § 1983

for a subordinate teacher's sexua l abuse of an elementary or

secondary school stude nt. 15 F.3d at 452-54. Relying on the25

Supreme Court's analysis in City of Canton

, we held that "a school

official's liability arises only at the point when the student

shows that the official, by action or inaction, demonstrates a

deliberate indifference to his or her constitutional rights." D oe

v. Taylor , 15 F.3d at 454. We adopted a three-step test in cases

involving alleged sexual abuse of a grade-school student: Where a

supervisory school official (1) knew facts "pointing plainly toward

the conclusio n that the subordinate was sexually abusing the

student," (2) demonstrated deliberate indifference toward the

student's constitutional rights by failing to take appropriate

action to prevent or stop the abuse, the offici al can be held

personally liable to the student if (3) the official's failure to

act caused a constitutional injury to the student. Id.

Although these cases did not discuss how an official who

breached a state-law duty to act could be said to have been acting

under color of state law, it is not difficult to see that they

possessed state authority. State law imposes duties on supervisory

of ficials while entrusting them with power to assure compliance

with constitutional standards, typically by exercising direct

c ontrol over subordinates. Failure to exercise control, if

accompanied by the requisite level of indifference, may give rise

to § 1983 liability. See, e.g.

, Sims , 537 F.2d at 832 (breach of

"duties of a mayor and a chief of police to control a policeman's

known propensity for improper use of force"); Bowen

, 669 F.2d at

988 (failure to supervise in face of history of widespread abuse);

Hinshaw , 785 F.2d at 1264 & n.1 (failure "to control an officer's26

known propensity for the improper use of force"); Doe v. Taylor

, 15

F .3d at 454 (failure to supervise or control sexually wayward

c oach). Thus, where a supervisory official breached a state-law

duty with deliberate indifference toward a resulting constitutional

injury, he misused the state authority conferre d on him to

supervise and control his subordinates. The supervisor's failure

to act, coupled with his deliberate indifference, was tantamount to

a conscious decision to allow the alleged constitutional injury to

occur or persist. S ee, e .g.

, D oe v. Taylor

, 15 F.3d at 463 ("An

omission that evinces deliberate indifference toward the violation

of an individual's constitutional rights may amount to an act that

causes the violation.") (Higginbotham, J., concurring); cf. City of

Can ton , 489 U.S. at 389 ("`[M]unicipal liability under § 1983

attaches where -- and only where -- a deliberate choice to follow

a course of action is made from among various alternatives' by city

policymakers.") (quot ing Pembaur v. City of Cincinnati , 475 U.S.

469, 483 (198 6)). This conclusion obtains because the state

official was responsible for preventing the constitutional injury;

his failure to do so rendered him directly liable for the

deprivation that his subordinate perpetrated. Such a supervisory

official is liable under § 1983 not because he committed a distinct

constitutional violation by breaching his dut y to supervise, but

b ecause his failure to control his subordinate rendered him

responsible for the resulting subordinate misconduct

--

essentially, he was a legal participant.27

We have never suggested, however, that only supervisors can be

held liable for a failure to act that results in a constitutional

injury. Rather, it is state law's grant of a right of legal

control over the immediate perpetrato r of an injury that

establishes that a state supervisor possessed and exercised state

authority. While supervisors frequently have a right of control by

virtue of their status, control can exist in other ways.

Judge Rubin's opinion in Howard v. Fortenberry

, 723 F.2d 1206

(5th Cir. 1984), is instructive. In H oward

, two prisoners died

after prison officers confined them to a so-called "hot box," which

was intended to serve as a disciplinary measure for uncooperative

prisoners. The plaintiffs brought claims against various

officials, including the Director of the Department of Corrections

and two "sanitarians" who had a statutory duty to inspect the

prison. The basis for the suit against the Director was that he

breached his duty to inspect the prisons or otherwise to delegate

the task to subordinates. Despite his position as a "Director,"

which ordinarily would seem to connote that he held a supervisory

position, we found that he "apparently ha[d] no authority to remedy

any deficienc ies he might observe, beyond reporting them to the

Governor." Id. at 1212. Because we found no evidence supporting

"a causal connection bet ween the Director's failure to report a

condition in the prison to the Governor and the failure of the

prison Board of Governors to change that condition," id. , we

concluded that "the Director's dereliction, if any, did not have a28

sufficient causal connection to the constitutional deprivation to

establish liability under § 1983," id.

Our analysis of the sanitarians in Howard

, however, compelled

a different result. We noted that the sanitarians had "stated in

their depositions that, if they had seen and inspected the cells,

they would have forbidden their use immediately; their failure to

inspect thus had a clear causal connection to the deaths of [the

plaintiffs]." I d. at 1213. Thus, even though the sanitarians were

not positioned as supervi sors, they acknowledged that they had a

right of control over the persons who committed the deprivation, in

that they could have forbidden the prison officials from using the

hot boxes. In other words, the sanitarians had legal authority to

control the prison personnel with respect to their usage of the hot

box, and ther efore their failure to inspect, together with their

corresponding failur e to prevent the constitutional harm, was

action under color of state law.

This element of legal control is not confined to cases in

which a state employee breached a duty to exert control over

another state employee. Rather, the existence of a legal right of

control is the linchpin in all cases in which we have found § 1983

liability based on breach of a duty to act, even where private

actors committed the injurious harm. Consider, for example, our

decision in Lopez v. Houston Ind. School Dist. , 817 F.2d 351 (5th

Cir. 1987). In L opez

, we held that a school bus driv er could be

found liable under § 1983 for failing to protect a student on his

bus from being pummeled by another student. Even though the other6 Lopez is not to be understood as recognizing a "special

relationship" between schoolchildren and the state giving rise to

a generalized federal constitutional duty to protect children from

harm on school buses. S ee Walton v. Alexander

, 44 F.3d 1297, 1302-

04 & n.4 (5th Cir. 1995) (en banc) (discussing contours of "special

relationship" as emerging from DeShaney

, Estelle v . Gamble , 429

U.S. 97 (1976), and Youngberg v. Romeo

, 457 U.S. 407 (1982)).

Under Lopez

, a state emp loyee may face § 1983 liability when he

misuses his state-conferred pos ition in physically restraining a

child in such a manner that the employee's conduct is tantamount to

participation in the child's beating or other such victimization.

Indeed, as Judge Posner has explained, "[i]f the state puts a man

in a po sition of danger from private persons and then fails to

protect him, it will not be heard to say that its role was merely

passive; it is as much an active tortfeasor as if it had thrown him

into a snake pit." Bowers v. DeVito , 686 F.2d 616, 618 (7th Cir.

1982).

29 student's action was not a constitutional tort, as the at tacking

s tudent was a private actor, we found that the bus driver had

c aused a distinct constitutional injury. Observing that he "was

entrusted with the care of students attending school under Texas'

compulsory education statute," id. at 356, we concluded that "[h]is

alleged failure to protect [the plaintiff] or to render emergency

aid abuse[d] state power," id. State law, in making the bus driver

responsible for the welfare of students on his bus, empowered him

with a right of control over those students. Significantly, the

driver locked the students in the bus and lef t them. Since he

would have been authorized under state law to use force to break up

the fight, we held that his failure to do so after closing off the

victim's possible escape routes, if accom panied by the requisite

level of indifference, amounted to a conscious choice

-- under

col or of state law -- to allow the beating of the child to

continue. See id. at 354-56. 630

In sum, our cases indicate that a right of legal control over

the persons or events giving rise to the injury complained of has

existed in those instances in which we have necessarily found that

breach of a state-law duty to act was action under color of state

law. Hence, the question in this case is whether a failure to

report, in the absence of an accompanying duty to exercise stateconferred legal control, can still b e said to constitute action

under color of state law that causes the unreported constitutional

injury. Holding that White can be held liable under § 1983 for an

alleged delay in reporting Sarah's sexual abuse, in the absence of

a determination that she had a legal right of control over Siepert,

would effectuate an unprecedented extension of federal liability.

Our authority to allow such a result aside, it is inappropriate to

do so unless we first conclude that the right of legal control is

of no significance to the elements of § 1983 liab ility. We turn

now to that question.

C.

A right of control, as noted by our analysis in Howard

, speaks

most apparently to the issue of causation; absent a right of

control, we c oncluded that the causal connection between the

failure to act and the ultimate injury was too speculative to

support a finding of § 1 983 liability. Indeed, we suggested in

Bush that the requisite causation under § 1983 could never exist

unless a defendant had a duty to correct the constitutional

violation: "[A]ccepting for now the concept that the breach of a

s tate-imposed duty can cause a constitutional tort, we hold t hat31

the necessary causal relationship is absent when a state duty to

regulate, monitor, inspect, or advise is not accompanied by an

obligation to extirpate constitutionally substandard conditions or

activities that may be encountered." 795 F.2d at 1208. Under this

rule, even where a plaintiff might be able to demonstrate that

compliance with a state-law duty would have b een instrumental in

preventing or stopping a constitutional harm, the stricter causal

connection requirement of § 1983 may foreclose a federal claim

against the noncomplying defendant.

We have cautioned, howeve r, that causation under § 1983 is

"not to be gauged by the standards of ordinary tort law." G onzalez

v. Ysleta Indep. Sch. Dist.

, 996 F.2d 745, 755 (5th Cir. 1993);

(citing Martinez v. California

, 444 U.S. 277, 285 (1980)). Indeed,

this requirem ent of a causal connection in a § 1983 action often

may have the practical effect of imposing a heightened standard of

proximate cause. For example, in M artinez v. California

,

plaintiffs sued under § 1983 on behalf of a woman whose l ife was

taken by a parolee five months after his release by a parole board.

T he Supreme Court concluded that, "[r]egardless of whether, as a

matter of state tort law, the parole board could be said either to

have had a `duty' to avoid harm to [the parolee's] victim or to

have proximately caused her death," the board did not deprive the

victim of her life within the meaning of the Fourteenth Amendment.

Martinez , 444 U.S. at 285 (citing Palsgraf v. Long Island R. Co.

,

248 N.Y. 339, 162 N.E. 99 (1928)). The Court emphasized that "at

least under the particular circumstances of this parole decision,32

appellants' decedent's death [was] too remote a consequence of the

parole officers' action to hold them responsible under the federal

civil rights law. Although a § 1983 claim has been described as a

`species of tort liability,' it is perfectly clear that not every

injury in which a state official has played some part is actionable

under that statute." I d. (quoting Imbler v. Pachtman

, 424 U.S.

409, 417 (1976)).

This causal connection requirement ma y take shape as a

stricter test of factual causation, but it is a more nuanced

inquiry, particularly in the context of a failure to act. In

demanding that a failure to supervise or train must be "closely

related" to the constitutional injury, see City of Canton

, 489 U.S.

at 391

-- and regardless of how this test is otherwise stated, see

Oklahoma City v. Tuttle

, 471 U.S. at 824 n.8 (indicating necessity

of "affirmative link" between training inadequacies and

constitutional violation); Polk County

, 454 U.S. at 32 6 (noting

that official policy must be "moving force" of constitutional

violation)

-- the ultimate inquiry is whether there is a connection

between action taken under color of state law and the

constitutional harm. Of course, that the challenged conduct was

indeed action under color of state law

-- that a s eparate nexus

existed between the alleged inaction and an exerc ise of state

authority

-- is implicit in a finding that such a causal connection

existed for purposes of § 1983 liability. S ee Doe v. Taylor , 15

F.3d at 452 ("[I]f a `real nexus' exists between the activity out

o f which the violation occurs and the teacher's duties and33

obligations as a teacher, then the teacher's conduct is taken under

color of state law.").

When a claimant shows that there is both conduct under color

of state law and causation of the injury -- only then has he

satisfied § 1983's requirement of c ausation under color of state

law . Put another way, the under color of state law requirement

cannot be separated from the ques tion of a causal connection

between state authority and an alleged constitutiona l injury;

rather, the notion of such a causal relationship is impounded in

§ 1983's requirement of action under color of state law.

In the co ntext of an alleged breach of a state-law duty to

act, the causal connection becomes unsteady at the point of conduct

unless there is a right of legal control over the persons or events

giving rise to the injury. Absent such control, a person's ability

to abate the harm is too speculative to support § 1983 liability.

At the same time, lack of legal control calls into question whether

there is an exercise of state authority in failing to act. A right

of control is authority conferred on a defendant by the State, and

failure to utilize it properly can be said to constitute action

under color of state law because the state actor is empowered by

state law to take action that ordinary citizens cannot. If state

law has imposed a duty to report, investigate, monitor, or regulate

without granting a duty to exercise state-conferred legal control

over the underlying persons or events, there is no conduit through

which an exercise of state power can be said to have caused the

constitutional injury. Because we find that the existence of a34

right of legal control is a compelling distinction in the question

whether state law has located a person as a constitutional actor,

we insist that a breach of a state-law duty to report cannot render

a person liable under § 1983 as a res ponsible state actor unless

that person also had a duty under state law to exercise state

authority in controlling the events that prod uced the unreported

injury.

IV.

Based on our analysis of the Texas Family Code, we conclude

t hat White's breach of her duty to report did not establis h the

requisite causal nexus between state authority and Sarah's injury

and therefore was not action under color of state law. The Family

Code imposes a general duty on all citizens to report child abuse

to the proper authorities. To supplement this citizen-wide duty,

the statute establishes a stricte r reporting requirement for

"professionals," defined to include teachers, doctors, day-care

si tters, and other such persons who are licensed, certified, or

e mployed by the state, and who have contact with children in the

course of their official duties. S ee Tex. Fam. Code Ann. § 34.01-

34.02. Yet despite the reference to state certification,

licensing, or employment in identifying who b ears the heightened

reporting obligation, the statute nowhere distinguishes between

public and private professionals. More important, since the

statute does not empower either citizens or professionals with a

right of control over the child abuser, a failure to report in the35

proper manner does not have the causal connection necessary to

implicate an exercise of state power made possible only because the

silent party is clothed with state authority.

Two i llustrations expose the folly of suggesting that this

Texas statute locates citizens or professionals as state actors who

can be held responsible for constitutional in juries committed by

persons whom they fail to report. First, suppose that White, while

vacationing in Daingerfield, Texas, had told a privately employed

research physician, who had no daily contact with children, about

Sarah's abuse. While this doctor would face state criminal

penalties for waiting too long to report the abuse, it is difficult

to see how the doctor, solely because she was licensed by the state

to practice medicine, possessed and exerc ised state authority in

not reporting the breach. Second, since the duty to report child

abuse applies regardless of whether the abuser is a state actor or

private citizen, a finding of § 1983 liability based on a teacher's

failure to report would turn on the status of the abuser, not the

teacher. Where a child abuser has no state affiliation, the abuse

itself is not a constitutional injury; the child would have to

allege a sepa rate deprivation arising purely from the teacher's

failure to report. Such a claim would be unavailing, however,

unless we were to conclude that the teacher's breach of a duty was

by itself a constitutional tort. Indeed, as we have explained, the

presence of state-conferred legal control is necessary to the

requisite link between the teacher as a state actor and the sexual

abuse.7 Thus, a school supervisory official can be held liable for

breaching his duty under the Family Code to report a subordinate's

abuse of a grade school student. S ee Doe v. Taylor

, 15 F.3d at 465

(Higginbotham, J., concurring). The federal cause of action arises

not strictly from the official's breach of his duty to report, but

because his inaction c onstitutes an injurious abdication of his

separate responsibility to supervise and control his subordinates.

In other wo rds, a supervisory official's failure to report child

abuse is simply one manifestation of his failure to take steps to

prevent or eliminate injury to a student.

36 Even though the F amily Code has not empowered White with

control over Siepert, White still may be held liable under § 1983

for Sarah's injury if she otherwise possessed authority under state

law

-- e.g., as a teacher or a citizen

-- to exercise control over

Siepert actions. Such control need not have been labeled as

"supervisory," but may have existed, for example, if she had legal

power to prohibit Siepert from having contact with Sarah. C f.

Howard , 723 F.2d at 1213 (emphasizing that sanitarians could have

prohibited prison officials from using unsafe hot boxes). In such

a situation, White's failure to report Sarah's sexual abuse may be

found to have caused Sarah's constitutional injury because of

White's responsibility for Sarah's welfare and concomitant right to

exercise control over Siepert. 7

Based on our review of the Does' allegations, we find no basis

for concluding that Sarah had sufficient control over Siepert to

render her liable und er § 1983 for his abuse of Sarah. The Does

concede that White did not have supervisory authority over Siepert.

Although White and Siepert both worked in the same school district,

White was a junior high school teacher at a different school than

Siepert; even though White and Siepert were at neighboring schools,37

her nearby status did not give her any legal control over Siepert.

Regardless of whether Sarah had a generalized duty under state law

to intervene on Sarah's behalf, we find that White had no right of

control over Siepert and hence conclude that she cannot be held

responsible under § 1983 for causing Sarah's constitutional injury

at the hands of Siepert.

In short, we conclude that a failure to report child abuse as

required by Texas Fam. Code Ann. §§ 34.01-34.02 is not action under

color of state law. Since state law has not otherwise empowered

White with a right of control over Siepert, we conclude that her

breach did not have the requisite causal connection to Sarah's

constitutional injury, and that White's delay in reporting was not

action under color of state law. White therefore cannot be held

responsible under § 1983 for Siepert's sex ual abuse of Sarah.

Although White violated Texas law by breaching her duty to report

Sarah's abuse within forty-eight hours, White's lack o f control

over Siepert means that she did not "exercise power `possessed by

virtue of state law and made possible only because the wrongdoer is

clothed with the authority of state law.'" Polk County , 454 U.S.

at 317-18 (quoting Classic

, 313 U.S. at 326). The decision of the

district court denying White's motion for summary judgment is

reversed, and this case is remanded with inst ructions to dismiss

the § 1983 claim against White with prejudice, and to dismiss

without prejudice the state claims against White over which the

trial court had supplemental jurisdiction.

REVERSED and REMANDED.