                IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT

                           _____________________

                                No. 98-20112
                           _____________________

KAREN HUNTER LEKWA, Individually and as
Next Friend of Epiphany Akhimien Lekwa and
Nnate Lekwa, Minors; EPIPHANY AKHIMIEN
LEKWA; NNATE LEKWA,

                                                    Plaintiffs-Appellants,

                                     versus

CITY OF HOUSTON,

                                              Defendant-Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                          (H-97-CV-1532)
_________________________________________________________________

                          June 23, 1999
Before JOLLY, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*


     This 42 U.S.C. § 1983 appeal arises from an incident of

excessive force by Lisa D. Allen, a police officer for the City of

Houston,    Texas,   who   had   a   record   of   abusive   conduct   toward

citizens.    In the case before us, Allen beat Karen Hunter Lekwa,

the plaintiff-appellant, with her police-issued flashlight during

a family disturbance call.       We are called on to determine whether

the district court erred in absolving the City of Houston of

liability for this assault under both § 1983, and the Texas Tort

     *
      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this opinion should not be published and is not precedent except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.
Claims Act.    Lekwa, individually, and on behalf of her children,

contends that the City is liable because her assault was a result

of   a   decision   by    Police    Chief    Samuel   M.   Nuchia   that    was

deliberately indifferent to her Fourth Amendment rights--to wit,

the decision to withdraw Allen as a candidate for the Personnel

Concerns    Programs     (for   behavioral     improvement)    in   order    to

facilitate a settlement in Allen’s employment discrimination suit

against the City.      The district court concluded that Lekwa had not

raised a genuine issue of material fact, which if resolved in her

favor, would establish that Chief Nuchia’s decision to remove Allen

was made with deliberate indifference.          The district court further

concluded that Lekwa and the children’s claims against the City

under the Texas Tort Claims Act were precluded by the intentional

tort exception to the Act.         For the reasons that follow, we affirm

the district court’s grant of summary judgment in the favor of the

City.

                                       I

                                       A

      The facts of this appeal relate first, to Allen’s record as a

police officer for the City of Houston, Texas, and, second, to the

manner in which Allen responded to a “Family Disturbance/Weapon

Involved” call at Lekwa’s residence.            We turn first to Allen’s

personnel history.

      In August of 1992, Lisa D. Allen became a police officer for

the City of Houston.      As early as 1994, Allen had been investigated




                                       2
by the Internal Affairs Division of the Houston Police Department

no   less   than   four   times   for       a   number   of   citizen-initiated

complaints. Furthermore, Allen’s fellow officers were reluctant to

handle police calls with her, and even more hesitant to provide her

back-up assistance. Allen had a reputation for being combative and

overly aggressive with complainants--she was known, according to

some officers, for “pouring gasoline on a fire.”                    Allen also

remained in constant conflict with particular supervisors in her

chain of command, especially Lieutenant Bruce D. Williams.

      Over time, Allen’s supervisors believed that she was in need

of corrective behavioral training.               On July 14, 1994, Sergeant

C. S. Bloomberg wrote Samuel M. Nuchia, the then chief of police of

the Houston Police Department.          Sergeant Bloomberg advised Chief

Nuchia, inter alia, that because of Allen’s “recurring negative

performance patterns, and her problems interacting with the public”

she should be evaluated for placement in the Personnel Concerns

Program.1    Three other of Allen’s superiors, Lieutenant Bruce D.

        1
         The Personnel Concerns Program involves administrative
procedure to identify negative behavioral patterns in police
officers, and a program to assist the officers’ supervisors in
developing strategies to reverse these patterns. The Personnel
Concerns Program is a step-oriented process. Either a supervisor,
via the chain of command, or the chief of police identifies an
officer for placement in the program. The Personnel Concerns Unit
then conducts an investigation of the officer’s employment history.
The results of the investigation are reduced to a Personnel
Concerns Report that is forwarded to the Personnel Concerns
Committee. Based on the information contained in the report, the
Personnel Concerns Committee makes a recommendation to the chief of
police as to whether the officer should be required to enter the
program. If the Personnel Concerns Committee believes that the




                                        3
Williams, Captain T. A. Bullock, and Assistant Chief T. W. Shane,

shared   Sergeant      Bloomberg’s        concern,     and   endorsed     the

recommendation letter.

     Chief    Nuchia    promptly     acted     on     Sergeant    Bloomberg’s

recommendation.   On August 10, 1994, the Chief forwarded Sergeant

Bloomberg’s   memorandum    to     the    Personnel    Concerns   Unit,   and

instructed the unit to evaluate Allen’s work performance.                 The

execution of this order, however, was hardly immediate because of

other concerns relating to Allen.

     On August 31, 1995, Sergeant Charles D. Williams, of the

Personnel Concerns Unit, and Assistant Chief Joe L. Breshears, then

head of the Personnel Concerns Committee, met with Sergeant Will

Robertson and Sergeant Michael Dirden, an attorney from the Legal



officer’s behavioral problems are psychological, then the officer
may be referred to the Administrative Personnel Committee for
further psychological evaluation.    In any event, the chief of
police makes the final decision as to whether an officer is placed
in   the   Personnel  Concerns   Program.     Upon   the   chief’s
recommendation, the officer remains in the program for one year.
During this year, close supervision, individual monitoring, and
strict reporting of the officer’s work-related activities are
required. In most instances, the officer is left in his current
post or assignment, and he continues to report to his first-line
supervisor. Specific attention is paid, however, to the behavioral
problems identified in the Personnel Concerns Report.           If
appropriate, the officer completes specialized training in the
problem areas.    During the twelve-month period, the officer’s
immediate supervisor completes weekly evaluations, and conducts
weekly counseling meetings. The Personnel Concerns Unit contacts
the officer’s supervisor weekly for work performance reports, and
holds monthly meetings with the officer to discuss the progress
made in the program. A monthly report of the officer’s progress is
forwarded to the chief of police. See Houston Police Department,
General Order # 30024 (issue date: June 9, 1993).




                                      4
Services Unit of the Houston Police Department. The purpose of the

meeting was to discuss whether Sergeant Bloomberg’s recommendation

should be acted upon, in the light of certain legal developments.

     Earlier,    on     or   about    August       5,    1994,       Allen    had   filed

complaints    against    the   City    of       Houston       with    both    the   Equal

Employment     Opportunity      Commission            (“EEOC”),       and     the   Texas

Commission on Human Rights. Allen’s attorney, Murray Malakoff, had

informed Dirden that the complaints were administrative precursors

to a Title VII, gender discrimination suit against the City.

Malakoff     further    stated       that       one     of    Allen’s        charges   of

discrimination related to Bloomberg’s recommendation, and that her

deferral from the Personal Concerns Program could facilitate a

settlement of a suit.

     During the August 31, 1994 meeting, the three officers and the

one attorney agreed that because Allen had complained that Sergeant

Bloomberg’s    recommendation        was       discriminatory,        her     subsequent

placement in the Personnel Concerns Program would be perceived as

retaliation.     The group also agreed that the concerns raised in

Sergeant   Bloomberg’s       recommendation            were    personality-oriented

rather than disciplinary-oriented.               Thus, the general consensus of

the group was that a change in supervision would be the best course

for getting Allen “on the right track.”                      In the light of these

considerations, Dirden, as legal counsel for the Houston Police

Department, concluded that it would be best to offer Allen a

settlement agreement: If Allen agreed to drop her discrimination




                                           5
charges, she would be permitted to transfer to any unit within the

South or Westside Command of the Houston Police Department.      If

Allen accepted the transfer, she would not be investigated by the

Personnel Concerns Unit.    If Allen refused to transfer, however,

the Personnel Concerns investigation would move forward.

     Next, Dirden contacted Chief Nuchia, and informed him of

Allen’s discrimination charges, and the terms of the proposed

settlement agreement.      Dirden further advised the Chief that

offering Allen a transfer, and electing to forego the Personnel

Concerns investigation was the best action to take to prevent her

from pursuing the discrimination charges further.     Chief Nuchia

agreed, and ratified the proposed settlement agreement.    Sergeant

Williams made a notation to Allen’s personnel file dated August 31,

1994, which documented the terms of the proposed settlement. Thus,

as of August of 1994, Allen was no longer a candidate for the

Personnel Concerns Program.    This information, however, was not

effectively communicated to the Personnel Concerns Unit.   The Unit

ultimately proceeded with its investigation of Allen some thirteen

months later.   The reason for the delay or for the timing of the

investigation is not clear from the record before us.

     Thus, on September 26, 1995, Allen was instructed to appear at

an employee notification meeting conducted by Officer Edna Neal, an

investigator for the Personnel Concerns Unit.   The purpose of the

meeting was to inform Allen of the imminent investigation.     Neal

offered only one explanation for the thirteen-month delay--Allen’s




                                 6
then pending discrimination suit against the City and Lieutenant

Williams.2    Neal     officially         started          the   investigation      on

September    30,    1995,    only   to    have      the    administrative      process

derailed for a second time.

     When Dirden learned that the Personnel Concerns Unit had

proceeded    with    the    investigation,       he       contacted    Chief   Nuchia.

Dirden reiterated      the    terms      of   the     August     31,   1994    proposed

settlement to the Chief, and advised him to stop the investigation.

Consequently, in a letter dated October 27, 1995, Chief Nuchia

advised the Personnel Concerns Unit that Allen was no longer a

candidate for the Personnel Concerns Program. By this time, Neal’s

investigation of Allen was substantially complete. She had compiled

a Personnel Concerns Report on Allen.                     When the Chief withdrew

Allen as a candidate for the program, however, he was neither aware

of the Personnel Concerns Report, nor its contents.                     Although the

Chief was guided by legitimate departmental concerns, the manner in

which he attempted further settlement of Allen’s discrimination

suit would not be without its consequences.

                                          B


        2
         Notwithstanding the proposed settlement agreement, on
September 12, 1994, Allen filed an employment discrimination suit
in the district court of Harris County, Texas, against the City of
Houston and Lieutenant Bruce D. Williams. She alleged, inter alia,
that because of Williams’s discriminatory and retaliatory personnel
actions, she suffered “psychological injuries . . . and severe
mental anguish requiring treatment by health care providers and
medication.” The district court granted summary judgment in favor
of the City, which was not appealed.




                                          7
     Early in the morning hours of November 23, 1995, precisely at

2:58 a.m., several officers from the Houston Police Department

responded to a “Family Disturbance, Weapon Involved” call at Karen

Lekwa’s residence.      Shannon Bennett, Lekwa’s neighbor, alerted the

authorities when she found Lekwa sitting in a puddle of water,

screaming hysterically, as she held her two children.       Lekwa also

mumbled incoherently, and made hand gestures that suggested that a

gun had been placed to her head.

     Officer Ronny S. Cortez arrived on the scene first.            Lekwa

initially alleged that she and her two children, Epiphany Akhimien

Lekwa and Nnate Lekwa, had been kidnaped at gunpoint by Lawrence

Eruvwetere’s ex-wife.        Eruvwetere was Lekwa’s paramour.       After

confirming from Lekwa that the alleged suspect had left the scene,

and that the gun was no longer on the premises, Cortez radioed the

dispatcher, and advised her to slow the other units down.          Cortez

explained that the situation was under control, and no weapon was

involved. As Cortez turned to question Eruvwetere, Officer Eric M.

Johnson arrived on the scene, followed by officers Charles K.

Overstreet and Tracie D. Mosley.         After a quick briefing, the

officers all agreed that the situation had been sufficiently

neutralized, so that the disturbance call could be used to further

train Mosley, a new patrolman.

     Allen was the last officer to make the scene.               Upon her

arrival, Allen immediately assumed that Lekwa was the suspect, and

approached   her   in   a   confrontational   manner.   Cortez    quickly




                                     8
intervened, and briefed Allen. Cortez told her that the disturbance

call was under control, that Lekwa was the complainant, and that

she was unarmed.        Allen’s initial hostile reaction to Lekwa was

only a prelude to the conduct that followed.

       As the investigation progressed, the officers determined that

Lekwa had lied about being kidnaped to protect Eruvwetere, who had

previously assaulted her while brandishing a gun.           Mosley further

sensed that Lekwa was afraid to speak truthfully in Eruvwetere’s

presence.       Therefore, to “get the real story,” Mosley escorted

Lekwa approximately twenty-five feet away from the scene.           Lekwa

remained quite emotional at this time, and continued to cry.            She

carried her four-year-old daughter in her arms, and her son stood

at her side.

       As Mosley continued to question Allen about Eruvwetere and the

gun incident, Allen walked hurriedly toward Lekwa, and immediately

started to frisk her.         Allen grabbed Lekwa by the shirt and told

her to “calm down” or she would take her “f------ a–- to jail.”

Allen then asked Mosley had she searched the suspect.               Mosley

reiterated that Lekwa was not the suspect, but the complainant.

Notwithstanding Mosley’s clarification, Allen grabbed Lekwa, who

pulled away in resistance.        A struggle ensued whereby Allen placed

Lekwa in a choke-hold.        Lekwa had difficulty breathing, and broke

the choke-hold by biting Allen’s left thumb. In retaliation, Allen

beat    Lekwa    with   her   police-issued   flashlight,    striking   her

repeatedly over the head ten to fifteen times.        Allen also yelled




                                      9
several more profane words at Lekwa.     During the course of the

assault, Lekwa dropped her daughter.   She made no effort, however,

to defend herself, other than attempting to shield her head from

Allen’s blows.

     The beating ended with Allen arresting Lekwa for resisting

arrest, and aggravated assault on a peace officer.3   The officers

at the Houston City Jail refused to admit Lekwa, however, because

of her head injuries.   Lekwa was then transported to the Ben Taub

Hospital.   She suffered a small midline bifrontal scalp hematoma

from the assault, and bruises to her hands.

                                II

                                 A

     On January 9, 1996, Mosley reported the Lekwa incident to the

Internal Affairs Division.   Allen was placed on “relieved of duty”

status pending the outcome of a formal investigation into the

incident.   The internal affairs investigation concluded that: (1)

Allen subjected Lekwa to official oppression in violation of Texas

Penal Code § 39.03; (2) Allen violated § 2.3 of the Houston Police

Department Rules Manual when she used profanity while speaking to

and about Lekwa; and (3) Allen made false statements to the

Internal Affairs Division regarding the assault in violation of




        3
         Allen later filed criminal charges against Lekwa for
aggravated assault of a peace officer. The Harris County District
Attorney dismissed the charges on January 25, 1996.




                                10
§ 2.6 of the Rules Manual.   Consequently, on June 4, 1996, Allen

was terminated from the Houston Police Department.

     Allen’s use of excessive force against Lekwa also resulted in

a criminal prosecution.   On August 12, 1996, Allen was indicted on

one count of aggravated assault with a deadly weapon, a third

degree felony offense, and one count of official oppression.    On

October 3, 1996, Allen plead nolo contendere to the charges.   She

received a sentence of ten years probation and 250 hours of

community service.

                                 B

     Some five months prior to Allen’s sentencing, on April 30,

1996, Lekwa, individually, and as next friend of her children, sued

the City of Houston, and Allen.       In her complaint and amended

complaint, Lekwa alleged, inter alia, a claim for excessive force

in violation of the Fourth Amendment under 42 U.S.C. § 1983, and a

claim for negligent supervision under the Texas Tort Claims Act.

On the behalf of her children, Lekwa alleged by-stander liability,

and claims for the loss of parental consortium.

     The City removed the action to the United States District

Court for the Southern District of Texas on May 2, 1997, based on

federal question jurisdiction.    The City then moved for summary

judgment on December 1, 1997.




                                 11
     On January 20, 1998, the district court granted the City’s

motion for summary judgment.4 Citing Board of County Commissioners

of Bryan County, Oklahoma v. Brown, 520 U.S. 397 (1997), the

district court concluded that there existed no evidence from which

a reasonable juror could conclude that the City, through its policy

maker, Chief Nuchia, acted deliberately indifferent to Lekwa’s

Fourth Amendment rights when it transferred Allen to another police

command, rather than place her in the Personnel Concerns Program.

Regarding the negligent supervision claim, the district court

concluded that the harm the plaintiffs suffered, if any, was caused

by Allen’s intentional assault, an action for which the City of

Houston had not waived its governmental immunity under the Texas

Tort Claims Act.          Tex. Civ. Prac. & Rem. §§ 101.021(2) and

101.057(2).

     The district court entered final judgment in the case on

January 30, 1998.       On February 8, 1998, Lekwa filed a timely notice

of appeal.

     After     a    review   of   the   summary   judgment   record,   we   are

satisfied that the district court did not err in dismissing Lekwa

and the children’s claims, as a matter of law, under the Texas Tort

Claims Act.5       We likewise find that the children have no cognizable

     4
     Upon the district court’s grant of summary judgment in favor
of the City, Lekwa, in accordance with Fed.R.Civ.P. 41(a)(2),
successfully moved the district court to dismiss her claims against
Allen on January 22, 1998.
         5
          Under the Texas Tort Claims Act, a municipality is immune




                                        12
claim for bystander liability against the City of Houston under

§ 1983.   Grandstaff v. City of Borger, Texas, 767 F.2d 161, 172

(5th Cir. 1985).   We therefore turn to address the remaining issue




in this appeal–-the City’s liability for Lekwa’s § 1983 claim and

her children’s derivative claim for loss of parental consortium.

                                III




from suit for claims arising out of intentional torts. § 101.057
(2). An injured party can pursue a claim for negligent supervision
arising out of the same set of facts, however, Holder v. Mellon
Mortg. Co., 954 S.W.2d 786, 805 (Tex. Civ. App.--Houston [14th
Dist.] 1997) (citations omitted), but only where the “focus” of the
claim is on the municipality’s negligent supervision, not the
intentional conduct of its employee. Medrano v. City of Pearsall,
No. 04-98-00698-CV, 1999 WL 43649,*3 (Tex. Civ. App.–San Antonio
1999) (citations omitted). Indeed, the Texas Supreme Court had
made clear that the intentional tort exception cannot be
circumvented with the mere allegation that a municipality
negligently supervised its employee-tortfeasor.         Delaney v.
University of Houston, 835 S.W.2d 56, 60 (Tex. 1992).           The
plaintiff must also establish a causal nexus between the employee’s
use of the municipal property, and the municipality’s alleged
negligent conduct. Holder, 954 S.W.2d at 807. We find that the
summary judgment record is void of even a scintilla of proof from
which a reasonable jury could infer the required causal nexus
between Allen’s misuse of the flashlight, and the City’s purported
negligent supervision. See id.      Indeed, the record makes clear
that the injuries Lekwa sustained on November 23, 1994, were caused
solely by Allen’s intentional assault. We therefore conclude that
the district court properly dismissed Lekwa’s negligent supervision
claim, and the children’s derivative claim for loss of parental
consortium.   Even treating the children’s bystander claim as a
direct claim under Texas law, see Harris County v. White, 823
S.W.2d 385, 388 (Tex. Civ. App.--Texarkana 1992), we hold that the
claim is likewise precluded by the intentional tort exception,
§ 101.057(2).




                                 13
     Because this § 1983 appeal is before us on the district

court’s grant of summary judgment in favor of the City, we review

the record de novo.    To survive the City’s motion, Lekwa must

demonstrate that under the stringent standards of culpability, and

causation articulated in Board of County Commissioners of Bryan

County, Oklahoma v. Brown, 520 U.S. 397 (1997), there exists

sufficient evidence to support a jury’s verdict in her favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55 (1986).    For

the purposes of summary judgment, Lekwa’s proffered evidence is to

be believed.    Id. at 255.   Thus, we will draw all justifiable

inferences from the evidence in the light most favorable to her.

Id.; Palmer v. BRG of Georgia, Inc., 498 U.S. 46, 49 n.5 (1990)

(citations omitted).

                                IV

     Section 1983 provides a claim against every person who, under

the color of state law, deprives another of his or her federally

protected rights.   42 U.S.C. § 1983;     Collins v. City of Harker

Heights, Texas, 503 U.S. 115, 120 (1992).      It has long been the

rule that a municipality qualifies as a “person” for the purposes

of § 1983.     Id. (citing Monell v. New York City Dept. of Soc.

Servs., 436 U.S. 658, 690 (1978)).    However, a municipality is not

liable under § 1983 solely because one of its employees has

committed a constitutional tort.     Monell, 436 U.S. at 691; Snyder

v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998), cert. granted in

part, 119 S.Ct. 863 (1999), and cert. dismissed, 119 S.Ct. 1493




                                14
(1999).    Stated differently, a municipality cannot be held liable

under § 1983 on a theory of respondeat superior.             Id.    Rather,

municipal liability attaches under the federal statute only when

the execution of an official municipal policy or custom causes a

constitutional injury.      Collins, 503 U.S. at 123 (citing Monell,

436 U.S. at 694); Snyder, 142 F.3d at 795 (internal quotations and

citations omitted).    This standard of liability applies equally to

municipal policies that are facially unconstitutional, as well as

to those policies that are facially valid.           Collins, 503 U.S. at

123 (citations omitted). The law is further clear that an isolated

decision tailored to a particular situation, but not intended to

control later situations constitutes a “policy” for the purposes of

§ 1983 provided the decision was made by an authorized policymaker,

who had final authority with respect to the action ordered.               City

of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (citations

omitted);     Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996),

cert. denied, 519 U.S. 817 (1996)(citations omitted).

      Thus, in cases such as the instant matter, where a facially

valid decision by an authorized policymaker, i.e., the municipal

policy, is alleged to have resulted in the deprivation of the

plaintiffs’ federally protected rights, to fasten § 1983 liability

on   the   municipality,   the   plaintiffs   must   show   that:   (1)   the

municipal policy was adopted with “deliberate indifference” to the

plaintiffs’    constitutional     rights   (culpability);    and    (2)   the

municipal policy was the “moving force” behind the plaintiffs’




                                    15
constitutional injury (causation).           Snyder, 142 F.3d at 795.           See

also Bryan County, 520 U.S. at 404-05.           With these principles as a

guide, we turn to the summary judgment record before us.

                                        V

                                        A

      In this case, it is undisputed that the City of Houston, Texas

Police   Department   had   an     established       policy    of    investigating

“problem” officers, and then requiring the identified officer to

undergo corrective behavioral training vis-à-vis the Personnel

Concerns Program.      This § 1983 appeal poses the question of the

City’s   liability    for   Chief    Nuchia’s    decision       to    forego   this

administrative process after the identified officer (Allen) brought

suit against the City challenging, inter alia, her placement in the

program. Thus, although her brief wanders from time to time, as we

understand Lekwa’s theory of liability, the City, through its

policymaker, Chief Nuchia, acted deliberately indifferent to her

Fourth Amendment rights, when, in an effort to settle Allen’s 1994

employment discrimination suit, Chief Nuchia withdrew Allen as a

candidate for the Personal Concerns Program.                  In doing so, it is

asserted that Chief Nuchia consciously decided to leave Allen on

the   street--essentially     as    a   cost    of    protecting       the   police

department from a lawsuit--notwithstanding his knowledge of her

psychological problems, and pattern of abusive conduct toward

citizens such as Lekwa.       This decision may have been in the best

interest of the police department, the argument goes, but it was




                                        16
deliberately indifferent to the right of citizens, including Lekwa,

to be free from excessive force.                 Lekwa therefore contends that

Allen’s use of excessive force against her was a predictable

consequence of the Chief’s decision to withdraw Allen from the

program.

      Even     if   we    assume,    without     deciding,       that    a    jury   could

reasonably      find      that   the    City     of    Houston     was       deliberately

indifferent in facilitating settlement of Allen’s discrimination

claim without considering the effect of Allen’s conduct on Lekwa

and other Houston citizen’s Fourth Amendment rights, still, we

cannot say that the district court erred in granting summary

judgment in favor of the City.             We find that Lekwa’s § 1983 claim

and, in turn, the children’s derivative claim for loss of parental

consortium, is foreclosed by her failure to create a triable issue

on   the   second        essential     element    of    her   case–-the        causation

requirement.        We therefore direct our inquiry to this evidentiary

shortcoming.6

                                           B

      Lekwa’s theory of causation is based on the assertion that if

Allen had been placed in the Personnel Concerns Program, she would

have been relieved of her duties as a street patrolman during the

course of her behavior modification training.                            The reasoning


           6
         Our disposition of this appeal on the cause-in-fact
requirement makes it unnecessary for us to reach the related issue
of proximate cause.




                                           17
continues, “but for” Chief Nuchia’s wilful decision not to follow

the usual administrative policy of referring Allen to the Personnel

Concerns Program--a decision that was deliberately indifferent to

Houston citizens’ Fourth Amendment rights--Allen would not have

been in a position to apply excessive force to Lekwa.               Thus, the

violation   of   Lekwa’s   Fourth    Amendment    right   to   be   free   from

excessive force was caused by the Chief’s decision to take Allen

out of the Personnel Concerns Program, knowing (as he did) of her

proclivity for violence.




                                      C

     In Bryan County, 520 U.S. at 405 (citations omitted), the

Supreme Court reaffirmed its earlier precedent that the causation

requirement under § 1983 is a “rigorous” standard of proof, which

requires the plaintiff to establish a direct causal link between

the municipal policy, and the alleged constitutional injury.               See,

e.g., City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 n.8 (1985)

(“moving force” requires an affirmative link between the policy and

the particular constitutional violation alleged); City of Canton v.

Harris, 489 U.S. 378, 385 (1989) (“first inquiry . . . under §

1983 . . . is whether there is a direct causal link between a

municipal   policy   or    custom,    and   the   alleged      constitutional

deprivation”). See also Faire v. City of Arlington, 957 F.2d 1268,

1281 (5th Cir. 1992) (citations omitted) (“municipal policy must be




                                     18
affirmatively linked to constitutional violation to be moving force

behind it”).      Specifically, the plaintiff must establish that the

municipal policy (here, a specific decision by an authorized

policymaker) was the cause-in-fact of the injury, that is, that the

municipal   policy     served      as     the     moving    force    behind     the

constitutional violation at issue, or that the plaintiff’s injuries

resulted from the execution of the policy.                  Spiller v. City of

Texas City Police Department, 130 F.3d 162, 167 (5th Cir. 1997)

(internal citations and quotations omitted).

     Regarding the cause-in-fact requirement, the Supreme Court has

further clarified that mere generalized conduct on the behalf of a

municipality, remote in either consequence or time, is insufficient

to carry the plaintiff’s burden: “Every injury suffered at the

hands of a municipal employee can be traced to a hiring decision in

a "but-for" sense: But for the municipality's decision to hire the

employee,   the    plaintiff      would    not    have   suffered    the   injury.

[Thus,] to prevent municipal liability. . .from collapsing into

respondeat superior liability, a court must carefully test the link

between the policymaker's inadequate decision [here, the decision

to remove Allen as a candidate for the behavioral improvement

program], and the particular injury alleged [here, Allen’s use of

excessive force against Lekwa in the violation of her Fourth

Amendment rights].”         Bryan County, 520 U.S. at 410.                 We thus

require   the   plaintiff    to    present       specific   facts,   from     which

reasonable and fair-minded jurors would agree, that the execution




                                          19
of the municipal policymaker’s decision directly resulted in her

constitutional injury.       Spillers, 130 F.3d at 167.       Accordingly, a

high level of proof is required to establish the cause-in-fact

requirement; the causal showing must be strong.           See Snyder, 142

F.3d at 796.

     Applying these standards, we find that Lekwa’s theory of

causation is based on an erroneous assumption, and, consequently,

her summary judgment evidence falls short of establishing the

requisite causal link.        After a thorough review of the record,

including, General Order 300-24, which sets forth the Personnel

Concerns Program, we find no evidence that Allen’s placement in the

program would have resulted in her being removed from active duty.7

To be sure, the plain language of the Order makes clear that the

officer’s continued arrests, and related activities are used to

monitor her progress in the program.         There is no evidence in the

record to show Allen would have been an exception to this general

rule.       Thus,   Lekwa   and   the   children’s   theory   of   causation


        7
      Houston Police Department General Order 300-24 provides, in
relevant part:
     In most instances, the employee will be left in [her]
     current assignment and [will] continue to report to [her]
     first-line supervisor . . . In some cases it may be
     determined that either the first-line supervisor or the
     employee’s present assignment may be part of the problem.
     If this determination is made, the PCU may move the
     employee to an appropriate shift and assignment for
     completion of the PCP, with the approval of the Chief of
     Police. . . .
(Emphasis added.)




                                        20
collapses.       The evidence just does not fit the theory of the

plaintiffs’ case; this is not a case where the chief failed to

follow a policy that would have taken a known bad cop off the

streets. Even if Allen had been placed in the behavior improvement

program, she--as far as this record shows--would still have been on

the   streets.      Therefore,    Lekwa      and   her   children’s    purported

constitutional     injuries      have   no    cause-in-fact     link    to   the

policymaker’s decision as required by the case authority we have

earlier cited.      Consequently, the City of Houston cannot be held

liable for Allen’s conduct.

      Moreover, because of her repeated emphasis on the nuances of

the Personnel Concerns Program, and what the City “could have done”

to alleviate the risk that Allen would react violently to the

citizens she encountered, Lekwa’s causation argument invites an

inference specifically rejected by the Supreme Court in City of

Canton, 489 U.S. at 391-92.       In the context of a § 1983 failure-to-

train case, the Canton Court explained that virtually every case in

which a municipal employee has inflicted a constitutional injury

upon a plaintiff, the § 1983 plaintiff will be able to point to

something the City “could have done” to prevent the incident.                Id.

at 392.   The Court cautioned, however, that such a lesser standard

of causation would result in de facto respondeat superior liability

on municipalities-–a result rejected in Monell, 436 U.S. at 693-94.

Therefore, guided by the necessity of distinguishing between direct

and vicarious liability under § 1983, the Canton Court emphasized




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that       it   will   not   suffice   to   show   that   the   plaintiffs’

constitutional harm could have been avoided if the officer had been

better trained to avoid the particular injury-causing conduct.

Canton, 489 U.S. at 392.        Indeed, the § 1983 plaintiff “must still

prove” that a municipal policy “actually caused” her constitutional

harm.      See id.     In the light of Canton, Lekwa’s summary judgment

proof hardly provides a sufficient basis on which to present her

§ 1983 claim to the jury.

                                       VI

       In sum, we must take this § 1983 case in the factual posture

in which it has been presented.         In the light of the structure of

the Personnel Concerns Program, which leaves the officer in her

current assignment, Lekwa’s proof of causation becomes largely a

matter of speculation and conjecture.              We thus agree with the

district court that summary judgment in favor of the City of

Houston was appropriate.

       For the reasons in this opinion, the district court’s grant of

summary judgment in favor of the City on Lekwa and her children’s

claims under § 1983 and the Texas Tort Claim Act is in all aspects

                                                          A F F I R M E D.8




       8
        Judge Emilio M. Garza concurs in the judgment only.




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