### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 40517

DOROTHY SLADE, Individually, Mother of Marcus Dewayne Slade, Deceased and as Dependent Administratrix of the Estate of Marcus Dewayne Slade; C. S. SLADE, JR., Individually, Father of Marcus Dewayne Slade, Deceased; KIM SPEARMAN, as next friend of M.S., a minor, Son of Marcus Dewayne Slade, Deceased; COREN SLADE

- BELL, Individually, Sister of Marcus Dewayne Slade, Deceased and as next friend of D.K.J., a minor, Nephew of Marcus Dewayne Slade; TANISHA SLADE, Individually, Sister of Marcus Dewayne Slade , Deceased; MARCUS DEWAYNE SLADE, Deceased,

Plaintiffs

- Appellants

v.
CITY OF MARSH ALL, TEXAS; STANLEY SPENCE, Former Police Chief; JOHN JOHNS ON; CORTNEY WELLS; STACEY ROACH,

Defendants

- Appellees

Appeal from the United States District Court fo r the Eastern District of Texas

Before HIGGINBOTHAM, OWEN, and ELROD, Circuit Judges

. PATRICK E. HIGGINBOTHAM, Circuit Judge : Dorothy Slade, mother of decedent Marcus Dewayne Slade, brought a wrongful death suit under 42 U.S.C. § 1983 against the City of Marshal l and various local officials. The district court granted the City’s motion for summary judgment because Slade could not produce any evidence of causation. Slade now appeals the district court’s judgment, and we AFFIRM. United States Court of Appeals Fifth Circuit 

### FILED February 10, 2016 Lyle W. Cayce Clerk Case: 15-40517 Document: 00513374846 Page: 1 Date Filed: 02/10/2016No. 15

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2 I. This case concerns the tragic events that led to the death of Marcus Dewayne Slad e. On the night of January 4, 2013, officers of the Marshall Police Department were dispatched to investigate a disturbance. When officers arrived on the scene, they found a naked and agitated Marcus havi ng a physical altercation with a man who was seate d in a car. Officer John
Johnson approached Marcus , who was ye lling and refusing to calm down

. When Marcus began acting aggressively toward another officer, Officer Johnson deployed his taser. Marcus fell to the ground, but continued to struggle with of ficer s as they tried to subdue him. It took the sustained efforts
of several officers to handcuff Marcus . O fficers subsequently placed Marcus in a patrol car and transported him a short dista nce to the Harrison County Jail;
the drive t ook no more than five minutes. The transporting officer reported
that Marcus was speaking throughout the drive

. Shortly after arriving at the jail, officers noticed that Marcus was unresponsive. O fficers immediately began performing CPR and summoned par amedics, but Marcus was pronounced dead at the scene. The cause of death was later determined to be PCP toxicity. Dorothy Slade , Marcus’s mother, filed a wrongful death suit under § 1983 against the City of Marshall and several of the officers involved in the
incident. Among other claims, Slade alleged that the officers had violated her
son’s cons titutional rights b y failing to s eek medical treatment for Marcus until he became unresponsive at the jail . The district court granted summary judgment in favor of the defendants because Slade could not establish a causal
link between the officers’ alleged denial of medical care and her son’s death. Slade timely appealed to this Court

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3 II. This Court has held that “ a plaintiff seeking to recover on a wrongful death claim under § 1983 must prove both the alleged constitutional deprivation required by § 1983 and the ca usal link between the defendant’ s unconstitutional acts or omissions and the death of the victim, as r equired by the state’ s wrongful death statute. ” 1 Texas law is clear that “[u] nder the Wrongful Death Act, liabi lity may be predicated only on ‘ an i njury that causes
an ind ividual’ s death. ’ ” 2 That is, a plaintiff seeking to recover under Texas’s wrongful death statute must demonstrate that the defendant’s wrongful
actions more likely than not caused the decedent’s death

— not just that they reduced the decedent’s chance of su rvival by some lesser degree. 3 Slade concedes that she does not have evidence sufficient to meet this standard. But
she urges that this Court should decline to apply Texas’s causation standard for two different reasons: (1) case law supports an exception when the need for medical care is “obvious”; and (2) it is inconsistent with federal law.
A. Slade’s first argument is based upon the Sixth Circuit’s decision in Estate of Owensby v. City of Cincinnati

. 4 In Owe nsby , the Sixth Circuit addressed a similar incident in which an individual died shortly after being arrested and placed in the back of a patrol car. 5 The defendants argued, among other things, that the district court erred in denying summary judgment bec ause the estate

1 Phillips ex rel. Phillips v. Monroe County , 311 F.3d 369, 374 (5th Cir. 2002).
2 Kramer v. Lewisville Mem’l Hosp. , 858 S.W.2d 397, 404 (Tex. 1993) (quoting Tex. Civ. Prac. & Rem. Code § 71.002(b)) ; see also Guile v. United States , 422 F.3d 221, 225 (5th Cir. 2005) (citing Kramer , 858 S.W.2d at 399

- 400 )

. 3 See Kramer , 858 S.W.2d at 404 (“[T] he Act authorizes recovery solely for injuries that cause death, not injuries that cause the loss of a less

- than

- even chance of avoiding death. Hence, the Act on its terms does not authorize recovery under the separate injury approach to loss of chance. ”).

4 414 F.3d 596 (6th Cir. 2005).
5 See id. at 599

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4 had not proved that “the officers’ failure to provide medical care was the proximate cause of [the decedent’s] death .” 6 The Sixth Circuit acknowledged
that such evidence is sometimes required, but relied on an e arlier case for the proposit ion “t hat while medical proof may be necessary to assess whether the denial of medical care caused a serious medical injury in cases where th e prisoner or pretrial detainee’s ‘ affliction is seemingly minor or non

- obvious,’ no such evidence is required wher e the individual had a ‘ serious need for medical care that was so obvious that even a layperson would easily recognize the

nece ssity for a doctor’ s attention.’” 7 And b ecause it agreed with the district court’s assessment tha t the decedent’s “ need for medi cal care was obvious ,” the court concluded that “ the estate n eed not prove that the officers’ acts or omissions were the proximate cause of [the decedent’s] death in order to hold the officers liable under section 1983. ” 8 Slade asserts that we should conclude
the same. Slade, however, misunderstands the holding of Owensby . In Owensby , the Sixth Circuit addressed whether the estate had to offer evidence of
causation to establish its constitutional denial of medical care c laim

— not whether it had to offer evidence of a causal link between its alleged denial of
medical care claim and the decedent’s death. That is, the court considered only whether an arrestee must demonstrate that an officer’s deliberate indifference

caus ed his injuries to establish a violation of the Fourteenth Amendment. This
is evident both from the language of Owensby 9 and its reliance on an earlier

case that held that “actual harm” is not an element of a denial of medical care

6 Id. at 604.
7 Id. (quoting Blackmor e v. Kalamazoo County , 390 F.3d 890, 899 (6th Cir. 2004)).
8 Id.
9 See id. at 602 ( a nalyzing the need for evidence of causation under the heading: “ Do the Facts, Viewed in the Light Most Favorable to the Estate, Demonstrate a Constitutional Violation? ” ). Case: 15-40517 Document: 00513374846 Page: 4 Date Filed: 02/10/2016No. 15

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5 claim

. 10 This Court faces a different question here : assuming Slade has established a violation of the Fourteenth Amendment, can she demonstrate a

ca us al link between that violation and her son’s death? 11 Putting aside whether Marcus’s injuries were “so obvious that even a layperso n would easily recognize the necessity for a doctor’s attention” 12

— and whether this
three

- judge panel has the authority to read an exception into Phillips 13

— Owensby does not provide a basis for avoiding this inquiry.
B. Slade’s second argument is based upon 42 U.S.C. § 1988. “ Section 1988 requires that we apply state law to a section 1983 action where federal law is deficient, unless that state law conflicts with other federal law or policies. ” 14 This provision is rooted in the recognition that “f ederal law will not cover every issue that may arise in the context of a federal civil rights action .” 15 “ In 42 U.S.C. § 1988, Congress ‘ quite clearly instructs [federal cou rts] to refer to state
statutes’ when federal law provid es no rule of decision for actions brought under § 1983. ” 16 Section 1988, however, provides that state law governs only

10 See Blackmore , 390 F.3d at 899 (“ Where the seriousne ss of a prisoner’ s needs for medical care is obvious even to a lay person, the constitutional violation may arise. ” (emphasis added))

. 11 See Phillips ex rel. Phillips v. Monroe County , 311 F.3d 369, 374 (5th Cir. 2002) (“[A] plaintiff seeking to recover on a wrongful death claim under § 1983 must prove both the alleged constitutional deprivation required by § 1983 and the ca usal link between the defendant’ s unconstitutional acts or omissions and the death of the victim, as r equired by the state’ s wrongful death statute. ” (emphases added) ).
12 See Batiste v. Theriot , 458 F. App’x 351, 357

- 58 (5th Cir. 2012) (concluding that Owensby did not apply on the facts of the case).
13 See Gochicoa v. Johnson , 238 F.3d 278, 286 n.11 (5th Cir. 2000) (“W hen confronting decisions of prior pa nels, however, we are bound by ‘ not only the result but also those portions of the opi nion necessary to that result . . . .’” ( ellipsis in original) (quoting Seminole Tribe v. Florida , 5 17 U.S. 44, 67 (1996))) ; see also Batiste , 458 F. App’x at 357 (noting that “this court “has never adopted [Slade’s] position”)

. 14 Dobson v. Camden , 705 F.2d 759, 763 (5th Cir. 1983).
15 Moor v. Alameda County , 411 U.S. 693, 702 (1973).
16 Bd. of Regents v. Tomanio , 446 U.S. 478, 484 (1980) (alteration in original) (quoting Robertson v. Wegmann , 436 U.S. 584, 593 (1978)). Case: 15-40517 Document: 00513374846 Page: 5 Date Filed: 02/10/2016No. 15

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6 “ so far as the same is not inconsistent with the Constitutio n and laws of the
United States.” Slade urges that Texas’s causation requir ement should be disregarded because it is “inconsistent with the Constitution and the laws of
the United States.” Slade asserts that this Court should app ly instead the “loss
of chance” doctrine as a matter of federal common law. Under this doctrine, “[i ] t is not necessary to pr ove that a [plaintiff] would have survived if proper treatment had been given, but only that there would have been a chance of
survival .” 17

“ In resolving questions of inconsistency between state and federal law raised under § 1988, courts must look not only at particular federal statutes
and constitu tional provisions, but also at ‘ the policies expressed in [them].’” 18 The Supreme Court has instructed that “[o] f particular importance is wh ether application of state law ‘ would be inco nsistent with the federal policy underlying the cause of action under consideration. ’ ” 19 “The policies underlying § 1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of
state law .” 20 Texas’s causation requirement is not inconsistent with the se policies

. Section 1983 seeks to deter abuses of power that have actually
occurred and compensate victims who have actually been injured by such
abuses. 21 Although it is not perf ect, the causation requirement is a reasonable

17 Ruff v. Bossier Med. Ctr. , 952 F.2d 138, 140 (5th Cir. 1992) (describing doctrine as it has developed in Louisiana).
18 Robertson , 436 U.S. at 590 (alteration in original) (quoting Sullivan v. Little Hunting Park, Inc. , 396 U.S. 229, 240 (1969)).
19 Id. (quoting Johnson v. Ry. Express Agency, Inc. , 421 U.S. 454, 465 (1975)).
20 Id. at 590

- 91.
21 See Memphis Cmty. Sch. Dist. v. Stachura , 477 U.S. 299, 310 (1986) (“ Section 1983 presupposes that damages that compensate for actual harm ordinarily suffice to deter constitutional violations. ”); Carey v. Piphus , 435 U.S. 247, 254 (1978) (agreeing that “ the basic purpose of a § 1983 damages awa rd should be to compensate persons for injuries caused by the deprivation of constitutional rights ” (emphasis added)). Case: 15-40517 Document: 00513374846 Page: 6 Date Filed: 02/10/2016No. 15

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7 way to identify when liability is appropriate. Indeed, we have endorsed a similar causation requirement in the past and remarked that the “loss of chance” doctrine is “not relevant” in the § 1983 context. 22 T exas’s rule also does not “impair the policy of deterring illegality.” 23 Under Texas law , any plaintiff can recover as long as she can prove causation; officers are unlikely to change their behavior in anticipation of the speculative possibility that a fut ure plaintiff will be unable to prove causation at trial

. 24 At bottom, Slade’s position reduces to an argument that Texas’s causation requiremen t is inconsistent with the policies underlying § 1983 because it will prevent her from recovering in this case. Nevertheless, as we have said before, “[t] he fact that employing the Texas rule in this case denies compensation to appellants does not suffice to render the borrowing impermissibly inconsistent with federal law .” 25
III.
For the reasons st ated above, we AFFIRM.

22 Phillips ex rel. Phillips v. Monroe County , 311 F.3d 369, 375 (5th Cir. 2002).
23 Delesma v. City of Dallas , 770 F.2d 1334, 1340 (5th Ci r. 1985).
24 See id. ; see also Robertson , 436 U.S. at 592 (“ A state official contemplating illegal activity must always be prepared to face the prospect of a § 1983 action being filed against him. ”).
25 Delesma , 770 F.2d at 1340; see Robertson , 436 U.S. at 593 (“A stat e statute cannot be considered ‘inconsistent’ with federal law merely because the statute causes the plaintiff to lose the litigation .”). Case: 15-40517 Document: 00513374846 Page: 7 Date Filed: 02/10/2016