                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                                                                    F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                    August 6, 2004
                                 FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                        Clerk


                                        No. 04-20044
                                      Summary Calendar



       KERRY COCHRAN; WANDA COCHRAN,

                                                           Plaintiffs-Appellants,

                                             versus

       CITY OF DEER PARK, TEXAS, PASADENA
       INDEPENDENT SCHOOL DISTRICT; RICHARD
       PHILLIPS, Officer, in his individual capacity,

                                                           Defendants-Appellees.


                   Appeal from the United States District Court for
                           the Southern District of Texas
                            (USDC No. H-02-CV-4518)
           _______________________________________________________


Before REAVLEY, WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:*

       The judgment is affirmed for the following reasons:




       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
       1. We essentially agree with the analysis offered by the district court. The

complaint alleges that a police dog, Falco, attacked Plaintiff Kerry Cochran. Defendant

Richard Phillips, an officer with Defendant Pasadena Independent School District (PISD),

was Falco’s handler. Officers with PISD and Defendant City of Deer Park were

searching for a third-party suspect or suspects, and the complaint does not allege that

Phillips ordered the dog to attack Cochran or intended that result. On the contrary, the

complaint alleges that “there was no evidence that Plaintiff Cochran was the suspect in

question.” It alleges that Defendants City of Deer Park and PISD were negligent in

failing to control the dog and allowing it to roam without a leash. The complaint likewise

alleges that Phillips “failed to control the animal in question by allowing the dog to roam

off its leash and failing to prevent the attack of Mr. Cochran.” The complaint, read as a

whole and in its specifics, alleges that Defendants did not intend for the dog to bite

Cochran and that the attack was the result of Defendants’ negligence rather than a result

they desired.

       2. The Supreme Court has long held that a federal cause of action under 42 U.S.C.

§ 1983 does not extend to conduct that is merely negligent. See Daniels v. Williams, 474

U.S. 327, 328 (1986); Davidson v. Cannon, 474 U.S. 344, 347 (1986).

       3. Plaintiffs characterize their federal claim as one for excessive force. We agree

with the district court that the complaint does not state a claim for a constitutional

violation actionable under § 1983. The claim if established does not amount to a Fourth

Amendment violation, because a Fourth Amendment seizure occurs “only when there is a

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governmental termination of freedom of movement through means intentionally applied.”

County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998) (emphasis omitted). The

complaint indicates that the attack on Cochran was not intended.

       4. Nor can the attack amount to a constitutional due process violation. In Lewis, a

case involving a police chase, the Court stated that “liability for negligently inflicted harm

is categorically beneath the threshold of constitutional due process.” Id. at 849. While

recognizing a “deliberate indifference” standard for governmental conduct sometimes

applicable to the treatment of prisoners and detainees in the custody of the government,

id. at 850, the Court rejected this standard as the appropriate one for conduct of the police

conducting a chase. In this circumstance, the Court held that “only a purpose to cause

harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary

conduct shocking to the conscience, necessary for a due process violation.” Id. at 836.

This standard is applicable to the pending case. Under this standard, “even precipitate

recklessness” will not suffice. Id. at 853. Only an “intent to harm” plaintiffs physically

or to worsen their legal plight can give rise to liability for a substantive due process

violation. Id. at 854.

       5. The district court did not abuse its discretion in denying the motion to alter or

amend judgment and motion for leave to file an amended complaint. Both motions were

filed after the entry of final judgment. Insofar as the motions rely on the deposition of

officer Phillips, that deposition was taken over a month before the district court ruled.

Insofar as the motions rely on alleged newly discovered evidence concerning prior

                                              3
incidents of biting by Falco, these prior incidents are not in our view relevant to whether

plaintiffs suffered a constitutional deprivation. The prior incidents do not demonstrate an

intent to seize Cochran or cause him harm, a necessary element to a Fourth Amendment

or substantive due process claim.

       6. The City and PISD were properly dismissed, because for the reasons stated

above the complaint failed to state a claim for an underlying federal constitutional

violation on which to premise municipal liability. See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 691 (1978) (holding that a municipality does not incur liability under §

1983 “unless action pursuant to official municipal policy of some nature caused a

constitutional tort”); City of Canton v. Harris, 489 U.S. 378, 385 (1989) (“[O]ur first

inquiry in any case alleging municipal liability under § 1983 is the question whether there

is a direct causal link between a municipal policy or custom and the alleged constitutional

deprivation.”).

       AFFIRMED.




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