Summary Calendar JOSE VILLARREAL, Individually v. City of Mercedes, Texas

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
November 12, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41617
Summary Calendar
JOSE VILLARREAL, Individually and as Personal
Representative of the Estate of Jorge Villarreal,
Deceased; ROSA VILLARREAL, Individually and as
Personal Representative of the Estate of Jorge
Villarreal, Deceased,
Plaintiffs - Appellants
v.
CITY OF MERCEDES, TEXAS, ET AL.
Defendants
CITY OF MERCEDES, TEXAS
Defendant - Appellee
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-99-CV-163
--------------------
Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.
PER CURIAM:*
Jose and Rose Villarreal, Texas residents, appeal from the
district court’s order granting summary judgment to defendant
City of Mercedes (“City”). The Villarreals filed this 42 U.S.C.
§ 1983 civil rights complaint as representatives of the estate of

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their deceased son, Jorge. They alleged that the City violated
Jorge’s due process rights by having a deliberately indifferent
policy or practice by which it permitted and even encouraged a
public-works employee, defendant Lazaro Castellano, to drive
under the influence of alcohol. They also asserted a claim under
the Texas Tort Claims Act (“TTCA”).
Late on the evening of August 9, 1997, near Elsa, Texas,
Castellano, while under the influence of alcohol, drove his car
through a stop sign and collided with the 18-year-old Jorge’s
car, causing Jorge’s death. It has been the Villarreals’
contention that Castellano was acting within the scope of his
employment at that time, in that he was returning to Mercedes in
order to close up the Mercedes Civic Center following a private
function there. They argue that, for TTCA purposes, he was on a
“special mission” for his employer. They also complain that the
district court erred by “refus[ing] to consider” an affidavit
from Castellano that they submitted after the district court had
granted the City’s summary-judgment motion. In this 2001
affidavit, Castellano attested that, at the time of the accident,
he was in fact returning to Mercedes to close the Civic Center
and that he considered himself to be “on the clock.”
This court reviews de novo a district court’s order granting
a party’s summary-judgment motion. Whittaker v. BellSouth
Telecomm., Inc., 206 F.3d 532, 534 (5th Cir. 2000). Summary
judgment is proper if the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with any
affidavits filed in support of the motion, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
The moving party bears the burden of showing the district court
that there is an absence of evidence to support the nonmoving
party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). If the moving party meets the initial burden of showing
that there is no genuine issue, the burden shifts to the
nonmovant to set forth specific facts showing the existence of a
genuine issue for trial. Rule 56(e). The nonmovant cannot
satisfy his summary-judgment burden with conclusional
allegations, unsubstantiated assertions, or only a scintilla of
evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc).
Although in district court the parties and the court focused
primarily on the issue whether Castellano was acting under color
of state law at the time of the accident, they overlooked a
threshold issue: whether the Villarreals had even alleged a tort
of constitutional dimension against the City. See McKinney v.
Irving Indep. Sch. Dist., 309 F.3d 308, 312 (5th Cir. 2002),
cert. denied, 123 S. Ct. 1332 (2003) (42 U.S.C. § 1983 claimant
must establish (1) a violation of rights secured by the
Constitution or the laws of the United States that (2) was
committed by a person acting under color of state law). The

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substantive component of the Fourteenth Amendment’s Due Process
Clause “protects individual liberty against ‘certain government
actions regardless of the fairness of the procedures used to
implement them.’” Collins v. City of Harker Heights, Tex., 503
U.S. 115, 125 (1992) (citation omitted). It “does not transform
every tort committed by a state actor into a constitutional
violation.” DeShaney v. Winnebago County Dep’t of Soc. Servs.,
489 U.S. 189, 201 (1989). Generally, the Supreme Court has held
that “the substantive component of the Due Process Clause is
violated by executive action only when it ‘can properly be
characterized as arbitrary, or conscience shocking, in a
constitutional sense.’” County of Sacramento v. Lewis, 523 U.S.
833, 847 (1998) (quoting Collins, 503 U.S. at 128).
The claim set forth by the Villarreals does not rise to the
level of a constitutional tort. It is “analogous to a fairly
typical state-law tort claim.” See Collins, 503 U.S. at 128.
Although the Villarreals use the words “deliberately indifferent”
to describe the City’s policy, their specific assertions
regarding the City’s acts or omissions alleged a tort in the
nature of negligence. See id. Even if this court were to apply
the “deliberate indifference” standard, the Villarreals’
allegations--that the City knew of Castellano’s alcohol problems,
his prior arrests for public intoxication, and his prior
convictions of driving while intoxicated--failed to establish
that Jorge’s death was a “known or obvious consequence” of the

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City’s treatment of Castellano. See In re Foust, 310 F.3d 849,
861 (5th Cir. 2002).
The Villarreals also continue to assert a claim against the
City under the TTCA. The TTCA creates a limited waiver of
sovereign immunity when a death is caused by negligence of a
government employee acting “within his scope of employment,” if
the death arises from the operation of a “motor-driven vehicle.”
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)(A) (Vernon 1997);
DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995). An
employee is generally not acting within his “scope of employment”
when he is driving his or her own vehicle to or from his place of
employment. Terrell v. Sisk, 111 S.W.3d 274, 278 (Tex. App.
2003). Under the “special mission” exception, however, the
governmental unit may be held liable when the employee has
undertaken a “specific errand” at the “specific request” of the
employer. Wilie v. Signature Geophys. Servs., Inc., 65 S.W.3d
355, 359 (Tex. App. 2002).
Contrary to the Villarreals’ contention, the district court
did not refuse to consider Castellano’s 2001 affidavit. The
court ruled that, even if it considered the affidavit, the
affidavit would not change its ruling that the Villarreals were
not entitled to relief as to either their due process or TTCA
claim. This unsubstantiated evidence, which contradicted other
evidence in the record showing that Castellano was not considered
to be working at the time he attempted to drive back to Mercedes

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from Elsa, was not sufficient to show anything more than that
Castellano was driving to work. It did not demonstrate that
Castellano was on a “special mission.”
Because no summary-judgment evidence showed that Castellano
had been directed by his employer to be anywhere near Elsa on the
night of August 9, 1997, the Villarreals cannot establish that he
was on a special mission. Accordingly, the City was not liable
under the TTCA.
The judgment of the district court is AFFIRMED.

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