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County of El Paso v. Dorado9/15/2005
(5th Cir. 2001). The line between official policy and independent action of employees is often elusive. McMillian v. Johnson, 88 F.3d 1573, 1577 (11th Cir. 1996).
Supervisory officials and governmental entities such as cities and counties cannot be held vicariously liable for their subordinates' or employees' actions under section 1983. See Monell, 436 U.S. at 691-95, 98 S.Ct. at 2036-38; Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir.), cert. denied, 488 U.S. 851, 109 S.Ct. 135, 102 L.Ed.2d 108 (1988); Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985) (per curiam). Supervisory officials may be held liable only if they (1) affirmatively participate in acts that cause constitutional deprivation, or (2) implement unconstitutional policies that causally result in plaintiff's injury . See Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987); see also Grandstaff v. City of Borger, 767 F.2d 161, 169-70 (5th Cir. 1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 686 (1987). See also Parks, 2001 WL 1143275, at 3.
Policymaker
State law determines whether a particular official has final policy-making authority. Praprotnik, 485 U.S. at 123, 108 S.Ct. at 924. We must look to state and local law, as well as custom and usage having the force of law. Id. at 125 n.1, 108 S.Ct. at 925 n.1. Identifying final policymakers may be a difficult task, but state law always should direct us "to some official or body that has the responsibility for making law or setting policy in any given area of a local government's business." Id. at 125, 108 S.Ct. at 925. We may not assume that final policy-making authority lies in some entity other than that in which state law places it. Id. at 126, 108 S.Ct. at 925. To the contrary, we must respect state and local allocation of policy-making authority. Id. at 131, 108 S.Ct. at 928.
Two more principles guide our inquiry. First, "the authority to make municipal policy is necessarily the authority to make final policy." Id. at 127, 108 S.Ct. at 926. Second, the alleged policymaker must have final policy-making authority with respect to the action alleged to have caused the particular constitutional or statutory violation. Id. at 123, 108 S.Ct. at 924; Jett, 491 U.S. at 737, 109 S.Ct. at 2724. An official or entity may be a final policymaker with respect to some actions but not others. See Pembaur, 475 U.S. at 484 n.12, 106 S.Ct. at 1300 n.12. With respect to a particular action, more than one official or body may be a final policymaker. In other words, final policy-making authority may be shared. Praprotnik, 485 U.S. at 126, 108 S.Ct. at 925.
Our search for those responsible for setting EPCDF policy leads us to a review of state law. The Texas Local Government Code provides that " he sheriff of each county is the keeper of the county jail. The sheriff shall safely keep all prisoners committed to the jail by a lawful authority, subject to an order of the proper court." Tex. Loc. Gov't Code Ann. ยง 351.041(a) (Vernon 1999).
A county cannot be held liable solely because it employs a tortfeasor. See Monell, 436 U.S. at 691, 98 S.Ct. at 2036. Rather, only when the execution of a county's policies or its customs deprives an individual of constitutional or federal rights, does liability under section 1983 result. See id. at 694, 98 S.Ct. at 2037-38. The sheriff is without question the county's final policymaker in the area of law enforcement. Thus, a governmental entity like El Paso County can be held accountable for the illegal or unconstitutional actions of the Sheriff of El Paso County. He clearly set the goals for the County and determined how those goals would be achieved. See Colle v. Brazos County, Tex., 981 F.2d
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