     Case: 15-40517   Document: 00513374846     Page: 1   Date Filed: 02/10/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                                          Fifth Circuit

                                                                         FILED
                                 No. 15-40517
                                                                    February 10, 2016
                                                                      Lyle W. Cayce
                                                                           Clerk
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.
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                                 No. 15-40517
                                       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.




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                                       No. 15-40517
                                              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.

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                                      No. 15-40517
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 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 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?”).
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                                         No. 15-40517
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 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 “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)).
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                                       No. 15-40517
“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)).
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                                       No. 15-40517
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.”).
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