                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                 January 19, 2005
                      _____________________
                                                        Charles R. Fulbruge III
                           No. 04-40520                         Clerk
                         Summary Calendar
                      _____________________

RUBEN DIAZ, JR., for Jacob Diaz,

                                              Plaintiff - Appellant,

                             versus

MAYOR OF CORPUS CHRISTI; CARRASCO, JR.,
Police Officer; T. J. WEAVER, Police;
R. ORTIZ, Police; CITY OF CORPUS CHRISTI
POLICE DEPARTMENT,

                                           Defendants - Appellees.

----------------------------------------------------------------

RUBEN DIAZ, JR. (Father) for Jacob Diaz
(Deceased),

                                              Plaintiff - Appellant,

                             versus

THE MAYOR OF CORPUS CHRISTI; THE CITY OF
CORPUS CHRISTI POLICE DEPARTMENT; THE
CITY OF CORPUS CHRISTI; DISPATCHER JOHN
DOE/JANE DOE; OFFICER JOHN DOE/JANE DOE
#1; OFFICER JANE DOE/JOHN DOE #2,

                                           Defendants - Appellees.

________________________________________________________________

          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 2:03-CV-479
                      USDC No. 2:03-CV-490
________________________________________________________________
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:1

     Ruben     Diaz,   Jr.   (“Diaz”),   appeals   the   district   court’s

dismissal of his claims related to the death of his son.                 We

AFFIRM.

                                     I

     Diaz, a federal prisoner, filed a pro se wrongful death action

in Texas state court against various political officials and police

officers from Corpus Christi, Texas, alleging that they were

responsible for the death of his son, Jacob Diaz (“Jacob”).              He

alleged that the defendants had been willfully negligent and

deliberately indifferent and had violated his son’s constitutional

right to be free from “cruel and unusual punishment” when they

failed to respond appropriately to a “911" call reporting that

Jacob was being attacked by several men, leaving him to bleed to

death.    Diaz sought $2 million in damages.       The defendants removed

the wrongful death action to federal court because Diaz had alleged

a violation of Jacob’s constitutional rights.

     Diaz also filed in federal court a pro se civil rights action

under 42 U.S.C. § 1983, naming most of the same defendants and

alleging essentially the same facts set forth in the wrongful death




     1
      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.

                                     2
action.    He attached a copy of his wrongful death complaint to the

civil rights complaint.

     The defendants filed identical motions to dismiss the civil

rights and wrongful death complaints for failure to state a claim.

The two actions were consolidated, and the district court dismissed

Diaz’s claims on the ground that it lacked jurisdiction because

Diaz lacked standing to bring a § 1983 action on behalf of his

deceased    son.   The   court   declined   to   exercise   supplemental

jurisdiction over Diaz’s state law claims. Judgment was entered on

March 23, 2004.

     On April 8, Diaz filed a “Memorandum in Opposition” to the

order of dismissal or, in the alternative, a notice of appeal.       The

attached envelope was postmarked April 5, 2004, and the back of the

envelope contains a date stamp of April 3, 2004, indicating that

the envelope was given to prison officials for mailing on that

date.

     On May 24, 2004, the district court issued an order denying

Diaz’s “Motion for Reconsideration.”        The court concluded that

Diaz’s motion was a motion for relief from judgment under Rule

60(b) rather than a Rule 59(e) motion to alter or amend the

judgment because it was filed sixteen days after the entry of

judgment.    The court observed that Diaz had not challenged its

finding that it lacked jurisdiction, and it concluded that even if

it were to construe Diaz’s action as one for injuries he personally

suffered as a result of the deprivation of his son’s constitutional

                                   3
rights, Diaz had failed to state a constitutional claim under §

1983.

                                    II

                                    A

     Diaz’s “Memorandum in Opposition”, construed by the district

court as a motion for reconsideration, qualified as a FED. R. CIV.

P. 59(e) motion to alter or amend the judgment because it was

submitted to prison officials for mailing to the clerk within ten

days after the court granted the defendants’ motion to dismiss.

See FED. R. CIV. P. 6(a); Houston v. Lack, 487 U.S. 266, 269-76

(1988).    Accordingly, the underlying judgment is before this court

for review.    See Simmons v. Reliance Std. Life Ins. Co. of Texas,

310 F.3d 865, 867 (5th Cir. 2002).

                                    B

     Citing this court’s opinion in Baker v. Putnal, 75 F.3d 190,

195 (5th Cir. 1996), the district court held that it lacked

jurisdiction over Diaz’s claims regarding his son, because the

“parents of the deceased may only ‘sue under § 1983 for their own

injuries     resulting   from     the    deprivation   of   decedent’s

constitutional rights.’”        Although Diaz does not challenge the

district court’s conclusion that it lacked jurisdiction over his

complaint, we nevertheless have the duty to consider this issue sua

sponte.    Bridgmon v. Array Systems Corp., 325 F.3d 572, 575 (5th

Cir. 2003).



                                    4
     “[B]efore a federal court can consider the merits of a legal

claim, the person seeking to invoke the jurisdiction of the court

must establish    the   requisite      standing      to   sue.”     Whitmore    v.

Arkansas, 495 U.S. 149, 154 (1990).             “Standing under the Civil

Rights Statutes is guided by 42 U.S.C. § 1988, which provides that

state common law is used to fill the gaps in administration of

civil rights suits.”     Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir.

2004).    “Therefore, a party must have standing under the state

wrongful death or survival statutes to bring a claim under 42

U.S.C. §§ 1981, 1983, and 1988.”           Id. (emphasis added).

     In Texas, “[a] survival cause of action is brought by the

deceased’s estate to redress the deceased’s own injuries.”                     See

Gandara   v.   Slade,   832   S.W.2d   164,    167    (Tex.   Ct.    App.   1992)

(emphasis added) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 71.021

(1986)). On the other hand, “[a] wrongful death cause of action is

brought by survivors of the deceased to compensate themselves for

their loss of future pecuniary benefits, loss of inheritance,

mental anguish, and loss of society and companionship.”                        Id.

(citing TEX. CIV. PRAC. & REM. CODE ANN. § 71.004 (1986)).

     Contrary to the district court’s conclusion, Baker did not

hold that surviving family members may sue only for their “own

injuries” in order to recover for the violation of a decedent’s

constitutional rights.        Baker, 75 F.3d at 195.              In Baker, this

court held that it is not the case “that only the person whose

constitutional rights have been violated may bring an action under

                                       5
§ 1983.”   Baker, 75 F.3d at 195.       “On the contrary, it is the law

of this circuit that individuals who are within the class of people

entitled to recover under Texas’s wrongful death statute have

standing to sue under § 1983 for their own injuries from the

deprivation of decedent’s constitutional rights.”        Id.   The court

emphasized that the Texas wrongful death statute, TEX. CIV. PRAC. &

REM. CODE ANN. § 71.004 (West 1986), “clearly recognizes the right

of the surviving children and parents of the deceased to bring an

action for the benefit of all.”         Id.

     In his pro se § 1983 and wrongful-death complaints, Diaz did

not explicitly allege injuries that he had suffered personally as

a result of the violation of his son’s constitutional rights.

There is no allegation by Diaz, a federal prisoner, that he is a

legal representative of his son’s estate and thus entitled to bring

a survival action. Nonetheless, a pro se litigant’s pleadings must

be construed liberally in his favor.          Oliver v. Scott, 276 F.3d

736, 740 (5th Cir. 2002) (citing Haines v. Kerner, 404 U.S. 519,

520 (1972)).

     The minutes of a pretrial conference and evidentiary hearing

conducted by the magistrate judge on December 31, 2003, reflect

that the magistrate judge instructed Diaz to look in the Texas

Civil Practice and Remedies Code, sections 71.004A and 71.021B, so

that he could advise the magistrate judge whether he wished to

proceed under the Texas Survivor Act or the Texas Wrongful Death

Act. The magistrate judge’s report and recommendation states that,

                                    6
at the Spears hearing conducted on March 10, 2004, Diaz informed

the magistrate judge that he was intending to sue for his son’s

wrongful death.    Thus, although Diaz did not explicitly enumerate

injuries that he had suffered personally, we conclude that the

district court should have liberally construed his “wrongful death”

action such that it inherently alleged such losses.              We therefore

hold that Diaz has standing to assert claims for the wrongful death

of his son.

                                     C

     Having concluded that the district court had jurisdiction to

adjudicate the merits, we now turn to consider the district court’s

ruling, in its order denying Diaz’s motion for reconsideration,

that Diaz had failed to state a claim for the violation of his

son’s constitutional rights.        Diaz has not alleged that the 911

caller informed the dispatcher as to Jacob’s identity, location, or

condition, nor has he asserted that any of the police officers who

responded to the 911 call were aware of these matters.                  Mere

negligence,   of   course,   does   not   give   rise   to   a    cognizable

constitutional claim under 42 U.S.C. § 1983.        Daniels v. Williams,

474 U.S. 327, 332-36 (1986).        To the extent that Diaz asserts a

claim that Jacob was subjected to “cruel and unusual punishment,”

the Cruel and Unusual Punishment Clause protects only convicted

prisoners.    See Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996).

To the extent that Diaz is arguing that the defendants’ acts and

omissions violated his son’s substantive due process rights, he has

                                     7
not shown either that Jacob was constitutionally entitled to

competent protective or rescue services, see Beltran v. City of El

Paso, 367 F.3d 299, 303-04 (5th Cir. 2004); Brown v. Commonwealth

of Pa., Dep’t of Health Emerg. Med. Servs. Training Inst., 318 F.3d

473, 478 (3d Cir. 2003), or that the defendants’ acts and omissions

“‘can   properly   be   characterized   as   arbitrary,   or   conscience

shocking, in a constitutional sense.’”         County of Sacramento v.

Lewis, 523 U.S. 833, 847 (1998) (citation omitted).        We therefore

conclude that the district court did not err by dismissing Diaz’s

claims.   See Vulcan Materials Co. v. City of Tehuacana, 238 F.3d

382, 387 (5th Cir. 2001).

                                  III

     The judgment of the district court is

                                                                AFFIRMED.




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