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Williams v. City Baton Rouge4/30/1998
that the actions of Mayor Screen and Director Addison were taken "under color of state law" is erroneous.
A civil remedy for violation of a person's constitutional rights is provided for in 42 U.S.C. § 1983. Section 1983 imposes liability for violations of rights protected by the United States Constitution, not for violations of duties of care arising out of state tort law. Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689-94 n. 3, 61 L.Ed.2d 433 (1979); Ross v. Sheriff of Lafourche Parish, 479 So.2d 506, 512 (La. App. 1st Cir. 1985).
In order to hold the City/Parish liable under § 1983, plaintiffs must establish that (1) the actions of the City/Parish officials involved here were taken under color of law; (2) the conduct caused a deprivation of plaintiffs' rights, privileges or immunities secured by the Constitution or laws of the United States; and (3) the conduct was the consequence of the "policy or custom" of the City/Parish. See, e.g., Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986).
The United States Supreme Court construed the breadth of municipal liability under § 1983 in Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83, 106 S.Ct. 1292, 1299-1300, 89 L.Ed.2d 452 (1986), wherein it held that municipal liability arises where and only where, a deliberate choice to follow a course of action is made from among various alternatives by the officials responsible for establishing final policy with respect to the subject matter in question. The fact that a particular official Ä even a policymaking official Ä has discretion in the exercise of particular functions does not, without more, give rise to municipal liability. Id. Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law. Id.
In this case, the record fails to establish that the conduct of either Mayor Screen or Director Addison was the consequence of the official policy of the City/Parish, i.e., action "taken under state law." Accordingly, I concur in the majority's Conclusion that the trial court was erroneous in holding the City/Parish liable on a theory of recovery for violations of § 1983.
LeBLANC, Judge, Dissenting in part.
I agree with the written reasons of Judge Kuhn, except that part which suggests the "most the trial court could have awarded. . . .". I believe that the most the trial court could have awarded is far less than suggested by Judge Kuhn.
Otherwise, I agree with the remainder of his Dissent.
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