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 MARSHALL, TEXAS; STANLEY SPENCE, Former Police Chief; 

JOHN JOHNSON; CORTNEY WELLS; STACEY ROACH, 

 Defendants - Appellees

Appeal from the United States District Court

for 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 Marshall 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: 02/10/2016
No. 15-40517

2

I.

This case concerns the tragic events that led to the death of Marcus 

Dewayne Slade. 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 having 

a physical altercation with a man who was seated in a car. Officer John 

Johnson approached Marcus, who was yelling 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 officers as they tried to subdue him. It took the sustained efforts 

of several officers to handcuff Marcus. Officers subsequently placed Marcus in 

a patrol car and transported him a short distance to the Harrison County Jail; 

the drive took 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. Officers immediately 

began performing CPR and summoned paramedics, 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 constitutional rights by failing to seek 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.

 Case: 15-40517 Document: 00513374846 Page: 2 Date Filed: 02/10/2016
No. 15-40517

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 causal link between the defendant’s 

unconstitutional acts or omissions and the death of the victim, as required by 

the state’s wrongful death statute.”1 Texas law is clear that “[u]nder the 

Wrongful Death Act, liability may be predicated only on ‘an injury that causes 

an individual’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 survival 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 Owensby, 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 because 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 599-601.

 Case: 15-40517 Document: 00513374846 Page: 3 Date Filed: 02/10/2016
No. 15-40517

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 earlier case for the 

proposition “that while medical proof may be necessary to assess whether the 

denial of medical care caused a serious medical injury in cases where the 

prisoner or pretrial detainee’s ‘affliction is seemingly minor or non-obvious,’ no 

such evidence is required where the individual had a ‘serious need for medical 

care that was so obvious that even a layperson would easily recognize the 

necessity for a doctor’s attention.’”7 And because it agreed with the district 

court’s assessment that the decedent’s “need for medical care was obvious,” the 

court concluded that “the estate need 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 claim—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 

caused his injuries to establish a violation of the Fourteenth Amendment. This 

is evident both from the language of Owensby9 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 Blackmore v. Kalamazoo County, 390 F.3d 890, 899 (6th Cir. 2004)).

8 Id.

9 See id. at 602 (analyzing 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: 02/10/2016
No. 15-40517

5

claim.10 This Court faces a different question here: assuming Slade has 

established a violation of the Fourteenth Amendment, can she demonstrate a 

causal link between that violation and her son’s death?11 Putting aside 

whether Marcus’s injuries were “so obvious that even a layperson 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 Phillips13—

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 “federal 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 courts] to refer to state 

statutes’ when federal law provides 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 seriousness 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 causal link between the 

defendant’s unconstitutional acts or omissions and the death of the victim, as required 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) (“When confronting 

decisions of prior panels, however, we are bound by ‘not only the result but also those portions 

of the opinion necessary to that result . . . .’” (ellipsis in original) (quoting Seminole Tribe v. 

Florida, 517 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: 02/10/2016
No. 15-40517

6

“so far as the same is not inconsistent with the Constitution and laws of the 

United States.” Slade urges that Texas’s causation requirement should be

disregarded because it is “inconsistent with the Constitution and the laws of 

the United States.” Slade asserts that this Court should apply instead the “loss 

of chance” doctrine as a matter of federal common law. Under this doctrine, 

“[i]t is not necessary to prove 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 constitutional provisions, but also at ‘the policies expressed in [them].’”18 

The Supreme Court has instructed that “[o]f particular importance is whether 

application of state law ‘would be inconsistent 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 these

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 perfect, 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 award 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: 02/10/2016
No. 15-40517

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 Texas’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 future 

plaintiff will be unable to prove causation at trial.24 At bottom, Slade’s position 

reduces to an argument that Texas’s causation requirement 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 stated 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 Cir. 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 state 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