    Case: 10-30300 Document: 00511377825 Page: 1 Date Filed: 02/10/2011




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

                                               FILED
                                                            February 10, 2011
                              No. 10-30300
                            Summary Calendar                    Lyle W. Cayce
                                                                     Clerk




BERNICE BROUSSARD,

                                         Plaintiff-Appellant,

versus

ARTHUR BASALDUA;
RONALD J. THERIOT, Individually and in His Official Capacity
as Sheriff of St. Martin Parish;
REGINALD CLUES, Individually and in His Official Capacity
as Warden of St. Martin Parish Correctional Center II,

                                         Defendants-Appellees.




                Appeal from the United States District Court
                   for the Western District of Louisiana
                          USDC No. 6:09-CV-1111
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                                       No. 10-30300

Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       We affirm the dismissal of this state-law tort suit for lack of subject matter
jurisdiction.


                                              I.
       Bernice Broussard, a corrections officer at the St. Martin Parish Correc-
tional Center II, brought a state-law battery claim against inmate Basaldua.
Broussard also sued, individually and in their official capacities, Sheriff Ronald
Theriot and Warden Reginald Clues, claiming they are liable for her injuries be-
cause they breached the parish’s contract with the federal government to house
federal inmates. She also claims they were liable under 42 U.S.C. § 1983 be-
cause their deliberate indifference to maintaining a safe work environment de-
prived her of her constitutional rights to liberty and bodily integrity. Finally,
she alleged that they were vicariously liable for Basaldua’s actions and were
negligent in training the corrections officers to keep the center safe.
       The magistrate judge recommended dismissal for lack of subject-matter
jurisdiction for failure to state a federal cause of action or to present a federal
question. Broussard objected to the recommended dismissal only with respect
to her contract argument; the district court adopted the recommendation.


                                              II.
       On appeal, Broussard contends that the parish’s contract with the federal
government for the housing of federal inmates establishes federal-question juris-


       *
         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.

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                                       No. 10-30300

diction, because her state-law tort claim implicates the interpretation of that
contract. To establish federal-question jurisdiction where federal law does not
create the cause of action, one must show that “(1) a federal right is an essential
element of the state claim, (2) interpretation of the federal right is necessary to
resolve the case, and (3) the question of federal law is substantial.” Howery v.
Allstate Ins. Co., 243 F.3d 912, 917 (5th Cir. 2001) (footnote omitted). Here, even
if the federal contract could hypothetically inform certain state-law questions
such as the standard of care, interpretation of the federal law is not an “essential
element” of the state tort claims.1 The federal contract thus does not create fed-
eral question jurisdiction.2
       We review Broussard’s arguments related to her § 1983 claim for plain
error, because they were not raised in her objections to the magistrate judge’s
recommendation. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th
Cir. 1996). First, Broussard correctly notes that a governmental entity can be
liable under § 1983 when it executes a “policy or custom” that leads to the inflic-
tion of the constitutional injury. See Monell v. N.Y.C. Dep’t of Soc. Servs., 436
U.S. 658, 694 (1978). She contends that Theriot and Clues can therefore be lia-
ble under federal law for failing to provide a safe work environment and thus de-
priving her of due process rights to liberty and bodily integrity. That argument
fails, however, because “[n]either the text nor the history of the Due Process



       1
        Cf. Howery, 243 F.3d at 918 (holding that even though provisions of the federal Fair
Credit Reporting Act might inform an inquiry about violations of a state-law deceptive trade
practices statue, they were not an element of the state law claim sufficient to create jurisdic-
tion).
       2
         Broussard’s argument that she was a third-party beneficiary of the federal contract
was dropped on appeal, so we need not consider it. Additionally, Broussard argues for the first
time on appeal that she was deprived of a constitutionally protected property interest in her
employment contract with the corrections center. That argument was not raised before the
magistrate judge or the district court and is thus waived. See Tex. Commercial Energy v. TXU
Energy, Inc., 413 F.3d 503, 510 (5th Cir. 2005).

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                                    No. 10-30300

Clause supports [a] claim that the governmental employer’s duty to provide its
employees with a safe working environment is a substantive component of the
Due Process Clause.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 126
(1992). The district court did not plainly err by refusing to find federal question
jurisdiction on that basis.
      Finally, Broussard argues that Theriot and Clues are liable under § 1983
because they were deliberately indifferent to the risk of harm to corrections offi-
cers in the workplace. For there to be a duty on state officials not to be “deliber-
ately indifferent” to violations of a person’s due process rights, the state must
have a “special relationship” with that person. Walton v. Alexander, 44 F.3d
1297, 1300-01 (5th Cir. 1995) (en banc). Moreover, “the state creates a ‘special
relationship’ with a person only when the person is involuntarily taken into state
custody and held against his will through the affirmative power of the state;
otherwise, the state has no duty arising under the Constitution to protect its citi-
zens against harm by private actors.” Id. at 1304. Because Broussard was not
involuntarily in state custody, she does not have the requisite relationship.
Thus, her allegations of deliberate indifference do not state a claim under § 1983,
and there is no federal question.
      In the absence of a federal question, the district court was correct to de-
cline to exercise supplemental jurisdiction over Broussard’s state-law claims.
We therefore AFFIRM the judgment of dismissal.




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