(caption unavailable)

1Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to this Rule, the Court has determined that this opinion
should not be published.
2For the first time on appeal, Mitchell raises the issue that
the district court erred in overruling her motion to compel
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-60416
Summary Calendar
_____________________
JACKIE RENEE MITCHELL,,
Plaintiff-Appellant,
versus
JIMMY L. WILSON, Individually
and in his capacity as Chief
of Police of Jackson, Mississippi,
ET AL.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the
Southern District of Mississippi
CA 3:93 771)
_________________________________________________________________
March 29, 1995
Before JOHNSON, KING, and DEMOSS, Circuit Judges.
JOHNSON, Circuit Judge:1
Appellant Jackie Mitchell ("Mitchell") appeals the district
court's dismissal of her sections 1981 and 1983 action against
Police Chief Jimmy Wilson ("Wilson") and the City of Jackson,
Mississippi (the "City").2 Because we agree with the district

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discovery. Issues raised for the first time on appeal are not
reviewable by this Court unless they involve purely legal questions
and failure to consider them would result in manifest injustice.
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). A district
court has broad discretion in supervising discovery. See McLean v.
International Harvester Co., 817 F.2d 1214, 1223 (1987). A
determination as to whether Mitchell's allegation that the district
court abused its discretion during discovery has merit necessarily
includes a determination of factual issues; therefore, the issue
will not be reviewed for the first time by this Court on appeal.
2
court that Mitchell has failed to state a claim against either
Wilson or the City, we affirm.
I. Facts and Procedural History
On August 29, 1983, Mitchell was pulled over by a City police
vehicle driven by Officer Effa McDonald ("McDonald"). Mitchell
alleges that McDonald approached her car, handcuffed her, and then
instructed her to do as he said under threat of jail. Thereafter,
Mitchell maintains that McDonald drove her to a dark alley where he
threatened her with a pistol and raped her.
Based on this incident, Mitchell filed suit against the City
and Wilson, alleging violations of 42 U.S.C. §§ 1981 and 1983. She
claims, first, that Wilson failed to use reasonable care in hiring
McDonald and, second, that the City is liable for Wilson's actions
since Wilson was acting within the scope of his employment as
police chief when he hired McDonald.
Mitchell alleges that her assailant was hired as a police
officer by Wilson in November, 1992. She maintains that McDonald
had a "propensity for sexual violence" and was "incompetent and
unfit" to be a City police officer. Mitchell claims that Wilson is
liable under sections 1981 and 1983 since he "breached the duty he

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3
owed to the citizens of Jackson" in hiring and retaining McDonald.
She claims that he "knew or should have known" that McDonald was
incompetent and unfit to be a policeman, that McDonald presented a
threat to City residents, that he had been investigated on similar
charges of sexual misconduct, and that he had no regard for his
oath or obligations as a Jackson police officer. She maintains
that Wilson's hiring and retention of McDonald under these
circumstances constituted wilful and wanton conduct, justifying an
award of punitive damages. Mitchell alleges that the City is
vicariously liable for any misconduct of Wilson since he was acting
within the course and scope of his duties as police chief in
wrongfully hiring McDonald.
Wilson and the City moved to dismiss on the ground that
Mitchell has failed to state a claim under either 42 U.S.C. § 1981
or 42 U.S.C. § 1983. The district court agreed with Wilson and the
City, and dismissed Mitchell's suit pursuant to FED. R. CIV. P.
12(b)(6). Because we agree that no claim for which relief can be
granted has been stated by Mitchell against the City or Wilson, we
affirm the dismissal.
II. Discussion
This Court reviews the district court's grant of a defendants'
motion to dismiss under FED. R. CIV. P. 12(b)(6) de novo. See Cinel
v. Connick, 15 F.3d 1338, 1341 (5th Cir.), cert. denied, 115 S. Ct.
189 (1994). All well-pleaded facts must be accepted as true and
viewed in the light most favorable to the plaintiff. Id. The
complaint is subject to dismissal if it appears beyond a doubt that

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4
the plaintiff can prove no set of facts in support of her claim
which would entitle her to relief. See Chrissy F. v. Mississippi
Department of Public Welfare, 925 F.2d 844, 846 (5th Cir. 1991).
A. 42 U.S.C. § 1981
Section 1981 prohibits race discrimination in the making and
enforcement of contracts. 42 U.S.C. § 1981; see Walker v. South
Central Bell Telephone Co., 904 F.2d 275, 276 (5th Cir. 1990).
Mitchell failed to plead any facts showing that she was
discriminated against on the basis of race in the making and
enforcement of any contract. Because Mitchell has wholly failed to
advance any argument entitling her to relief under section 1981, we
agree with the district court that the Rule 12(b)(6) motion should
be granted as to this claim.
B. 42 U.S.C. § 1983
1. § 1983 Claim Against Chief Wilson
To obtain relief under section 1983, the plaintiff must prove
that she was deprived of a constitutional or federal statutory
right and that the person depriving the plaintiff of that right
acted under color of state law. 42 U.S.C. § 1983; see Hernandez v.
Maxwell, 905 F.2d 94, 95 (5th Cir. 1990). Under section 1983
supervisory official are not liable for the actions of subordinates
on any theory of vicarious liability. Thompkins v. Belt, 828 F.2d
298, 303 (5th Cir. 1987). A supervisory official may be held
liable for a subordinate's violation of constitutional rights if
the supervisor is personally involved in the constitutional
violation or there is a sufficient causal connection between the

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5
supervisor's wrongful conduct and the constitutional violation.
Id. at 304. Supervisory liability can exist without overt personal
involvement if the supervisor implemented a policy so deficient
that the policy "itself is a repudiation of constitutional rights"
and is "the moving force of the constitutional violation." Id.
(citations omitted). Additionally, the existence of a
constitutionally deficient policy cannot be inferred from a single
wrongful act. Thompkins 828 F.2d at 304-05. Additionally,
negligence alone is not actionable under section 1983. Daniels v.
Williams, 474 U.S. 327, 328 (1986).
Mitchell argues that Wilson is liable, because in hiring
McDonald he breached his duty to the people of Jackson by failing
to use reasonable care in his hiring practices. Mitchell contends
that Wilson's hiring and retention under the circumstances caused
McDonald to rape Mitchell. Mitchell's complaint sounds in
negligence, which is not actionable under section 1983. Mitchell
does not allege that Wilson instituted an inadequate hiring or
supervision policy or procedure, but instead Mitchell bases her
claim only on the one incident of McDonald's employment. Because
a single incident of negligent hiring is not actionable under
section 1983, Mitchell can prove no set of facts in support of her
claim which would entitle her to relief against Wilson. Therefore,
Mitchell failed to state an actionable claim, and the district
court did not err in dismissing her complaint against Wilson.
2. § 1983 Claim Against the City
A municipality cannot be held liable under section 1983 unless

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3On appeal, Mitchell argues that she was denied discovery
which would have allowed her to prove an unconstitutional custom or
policy as required by §1983. However, in the district court
Mitchell failed to so much as allege the existence of such a policy
or custom. She merely relied on a vicarious liability theory based
on Wilson's negligence. Because vicarious liability alone without
allegation of unconstitutional policy or custom cannot serve as a
ground of municipality liability, Mitchell has failed to even state
a claim upon which relief can be granted.
6
the plaintiff has alleged that an official policy or custom of the
municipality caused the constitutional violation. Monell v.
Department of Social Services, 436 U.S. 658, 690-94 (1978). The
plaintiff must prove that the policy in and of itself violates
constitutional rights, that the policy evidences a "deliberate
indifference" to constitutional rights, or that the municipality
has a custom of depriving persons of their constitutional rights.
Id. The first inquiry in any case alleging municipal liability
under section 1983 is whether there is a direct causal link between
a municipal policy or custom and the alleged constitutional
deprivation. See City of Canton v. Harris, 489 U.S. 378, 385
(1989). Vicarious liability does not provide a basis for municipal
liability. See Monell, 436 U.S. at 690-95.
In her complaint, Mitchell did not allege that a municipal
policy or custom caused her constitutional violation. Instead, she
vaguely based her claim against the City on vicarious
liability——which is not a basis for section 1983 liability on the
part of a municipality.3 Therefore, Mitchell did not properly
plead her claim against the City and the district court did not err
in dismissing that complaint as well.
III. Conclusion

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We agree that with the district court that Mitchell has failed
to state a claim upon which relief can be granted in this action
since neither negligence nor vicarious liability are actionable
under section 1983. Therefore, we affirm the district court's
dismissal.
AFFIRMED.

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