Rehearing and Rehearing En Banc Denied January 26, 1983.
GODBOLD, Chief Judge:
Plaintiff brought suit under 42 U.S.C. § 1983 and asserted a pendent state law negligence claim as administrator of the estate of his father, Isaac Daniels, for Daniels' wrongful death. Daniels disappeared while under the care of the defendant nursing home and has not been seen since. In a trial conducted before a magistrate with the consent of the parties pursuant to 28 U.S.C. § 636(c) the jury returned a verdict of $1 million, but the magistrate entered a judgment n.o.v. and granted a new trial in the alternative that the judgment is reversed. We affirm the judgment n.o.v.
I. The facts
Isaac Daniels was committed to an Alabama state mental hospital in 1970 at the age of 69 because he was senile and could not be stopped from wandering into strangers' houses. As his only mental problem was senility, Daniels was transferred in 1973 to the Twin Oaks Nursing Home, a private institution in Mobile, Alabama. After a trial period of two years Daniels was formally turned over to the nursing home on a permanent basis, under contract with the state.
Nurses' notes document that Daniels had a persistent tendency to wander off from the nursing home. During a six-month period in 1974, for example, Daniels succeeded in leaving the home five separate times. He usually was found in the neighborhood, but on one occasion in 1974 he walked into woods that were adjacent to the home and was found on the other side of a swamp located in the midst of the woods. Facts concerning the size and nature of the woods and swamp were not fully developed. All we know is that the woods were dense and that the swampy area was described as the size of a city block and as 200 yards long and the width of the courtroom. We do not
Because of Daniels' peripatetic tendency the nursing home began to restrain him regularly when he could not be watched. The means of restraint were tranquilizers and a "Posey vest," a cloth vest with straps that tie the patient to a bed or chair. On the morning of June 6, 1979, when Daniels was last seen, he was restrained in a Posey vest and was checked at hourly intervals up until 11:00. At approximately 11:45 a.m., however, it was discovered that Daniels was missing. Employees of the nursing home searched the surrounding neighborhood and the woods adjacent to the home but to no avail. Radio and television stations were notified. The next evening a team of four policemen with search dogs were called in, and they searched the woods and swamp for two to three hours. Neither Daniels nor his body was then found or has ever been found. One year later a state probate court appointed plaintiff to administer Daniels' estate, an act that plaintiff contends, and defendant does not challenge, conclusively establishes Daniels' death.
Plaintiff brought suit in federal court under 42 U.S.C. § 1983 charging that the nursing home's negligence caused Daniels' death in violation of due process and that the nursing home was a state actor.
On appeal plaintiff objects to the three post-verdict rulings just summarized. Defendant contends that the judgment can be sustained on the ground that there was insufficient evidence under the federal standard to support the verdict. We affirm on the basis of the latter ground.
II. Sufficiency of the evidence
Plaintiff's case rested entirely upon circumstantial evidence. There is no direct evidence of negligence or of the cause of death. Plaintiff contends that the jury could be properly allowed to infer negligence from the fact that Daniels could have left the nursing home only by passing a nurses' station, and that the jury could infer that this negligence proximately caused Daniels' death because he was infirm and senile.
A. Federal or state standard
The magistrate ruled that Alabama's rule against pyramiding inferences, i.e., that one inference cannot be based upon another, see e.g., Malone Freight Lines, Inc. v. McCardle, 277 Ala. 100, 107, 167 So.2d 274 (1964), was controlling on the federal court under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and therefore a judgment must be entered for defendant on the state law cause of action.
The magistrate erred in this ruling because Alabama's rule against pyramiding inferences is no more than a rule concerning the sufficiency of the evidence and therefore is a matter of federal law. Boeing Co. v. Shipman, 411 F.2d 365, 368-70 (5th Cir.1969) (en banc), settled that under Erie federal law controls questions of the sufficiency of the evidence in state law
Defendant contends that Alabama's rule against drawing one inference from another inference is analogous to the doctrine of res ipsa loquitur in that it determines when a case can be proved by circumstantial evidence, and that because res ipsa is a matter of state law, Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 738-40 (5th Cir.1980), so should be the rule against pyramiding inferences. State doctrines of res ipsa loquitur are respected in federal court because the doctrine has assumed the status of a substantive rule of law, affecting plaintiff's burden of proof or production of evidence, The Doctrine of Res Ipsa Loquitur in Alabama, 26 Ala.L.Rev. 433, 444-58 (1974). There is no authority or rationale to support the contention that the rule against pyramiding inferences has assumed this same substantive law status or that it is any more than a rule concerning sufficiency of the evidence. Even if there were some doubt, the issue is settled by Equitable Life Assurance Society v. Fry, 386 F.2d 239 (5th Cir.1967). There the appellants contended that a jury verdict could not be upheld because, inter alia, it necessarily involved "pyramiding of inferences." Id. at 241. The court held that "the test to be applied in diversity cases to determine the sufficiency of the evidence for submission of a case to a jury is a matter of federal law," id. at 245, and held that the inferences drawn by the jury were reasonable under federal standards, id. at 245-48.
B. The federal standard of allowable inferences
Defendant contends that the judgment can be sustained even if a federal standard is applied, because the inferences necessarily drawn by the jury were not reasonable or allowable ones. Defendant cites cases such as Smith v. General Motors Corp., 227 F.2d 210 (5th Cir.1955), and McNamara v. American Motors Corp., 247 F.2d 445 (5th Cir.1957), for the proposition that if the inference "is only a guess or a possibility, or is no more probable than one of several others," then a verdict must be directed for defendant. Smith, supra, 227 F.2d at 213.
In Planters Manufacturing Co. v. Protection Mutual Insurance Co., 380 F.2d 869 (5th Cir.), cert. denied, 389 U.S. 930, 88 S.Ct. 293, 19 L.Ed.2d 282 (1967), the rule of equally probable inferences was rejected. The court explained that the rule was based on the Supreme Court's precedent in Pennsylvania R.R. v. Chamberlin, 288 U.S. 333,
Id. at 878. Accord, Continental Ore Co. v. Union Carbide Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 1409, 8 L.Ed.2d 777 (1962) (we are bound "to give the [plaintiff] the benefit of all inferences which the evidence fairly supports even though contrary inferences might reasonably be drawn"). See generally, 9 Wright & Miller, Federal Practice and Procedure, § 2528 at 563-68 (1971).
C. The inferences in this case
Applying these principles to the facts of this case, we hold that the verdict cannot stand because a finding that negligence of the nursing home proximately caused Daniels' death is a product of too great a degree of speculation and conjecture based on the evidence in this record.
First, with respect to negligence, there was sufficient evidence from which a jury could infer that Daniels exited the home through negligence of the defendant. An exit door was kept unlocked, and a nurses' station that had to be passed in order to exit was required to be attended. No trace of Daniels was found in the home. Thus, the evidence supports inferences that he exited through this door and did so because of the home's negligence in either failing to keep the station attended or failing to monitor the exit properly.
As to the fact of death, the evidence permitted the jury to find that Daniels is no longer living.
First, plaintiff observes that Daniels was taking heart medication as near as six weeks prior to his disappearance and suggests that a jury could infer that Daniels died as the result of failure to take his medication. But there is no evidence in the record concerning the purpose of the medication indicating that it was vital or life-sustaining. The jury was not even told what Daniels' heart ailment was beyond a statement that the medicine he was taking was usually given for "some coronary insufficiency or an angina-like syndrome."
Plaintiff's second theory is that the jury could infer that Daniels wandered into the woods adjacent to the nursing home and perished from exposure or accident. In the midst of the woods is the swamp. Possibly the jury might infer that Daniels in his infirm and senile condition died from exposure or accident in the woods if there were sufficient evidence that he went into the woods, but the evidence is insufficient to support this preliminary finding. The evidence that Daniels might have wandered into the woods consists of this: during a prior escape he had entered the woods; the woods are adjacent to the home; and his body was never discovered elsewhere. We examine this circumstantial evidence to determine whether it is strong enough to support a rational inference that Daniels wandered into the woods.
Daniels' prior excursion into the woods gives insubstantial support to this inference. Of the seven or eight instances where Daniels left the home in the past, he only once went into the woods.
The proximity of the woods and the fact that Daniels was never discovered, while consistent with the theory that Daniels wandered into the woods, suggest only that disappearance in the woods was one possibility. Daniels might have disappeared in any one of a number of ways. To mention only a few, a passing motorist might have given him a ride out of town, he might have been the victim of violent crime, or he might have gone into an abandoned building and died from natural causes unrelated to his wandering. Because there is no evidence concerning the character of the surrounding neighborhood tending to negate these other possibilities, the mere possibility that he wandered into the woods is too speculative to be the basis for a jury verdict.
Furthermore, the bare possibility suggested by the proximity of the woods and Daniels' disappearance is "at war with uncontradicted ... facts." Fenner v. General Motors, supra, 657 F.2d at 650-51. There was no ready access into the woods. A fence surrounding three sides of the nursing home separated the home from the woods. In addition, there was uncontradicted testimony from an employee who searched the woods that after going in 10 to 15 feet the thickness of the woods made it hard to proceed without breaking limbs. As the district court acknowledged, the woods were "nearly impenetrable." In his earlier venture into the woods Daniels made it through to the far side of the swamp, but the jury did not know whether five years earlier the woods were as penetrable or impenetrable as when Daniels disappeared. The wooded area was searched with no success by a team of four policemen with trained dogs for a period of two to three hours, and the assistant administrator of the home searched it on several occasions.
We do not reach our conclusion on the strength of inferences contrary to the verdict. This is not a case where the evidence supports conflicting inferences. Instead, this is a case where there is no evidence beyond a mere scintilla that tells us what happened to Daniels; it is this lack of evidence that keeps the case from the jury and requires a directed verdict against the party with the burden of proof. We do not require that the cause of death be identified with scientific precision. See Alman Brothers Farms & Feed Mill, Inc. v. Diamond Laboratories, Inc., 437 F.2d 1295, 1301 (5th Cir.1971). However, the evidence must support an explanation of the cause of death that is sufficiently articulated that the jury is not permitted to engage in an unallowable degree of speculation. Plaintiff's explanations are not supported by the evidence.
Cases cited by plaintiff do not contradict our holding. In other cases where a nursing home or similar institution was held liable for a patient who wandered away and died, the body was found and the cause of death was ascertainable; therefore the only litigated issue was the negligence of the home, not proximate cause. See Krestview Nursing Home, Inc. v. Synowiec, 317 So.2d 94 (Fla.App.1975), cert. denied, 333 So.2d 463 (1976); Milton v. State, 293 So.2d 645 (La.Ct.App.1974). See generally, Liability of Hospital or Sanitarium for Injury or Death of Patient as a Result of His Escape or Attempted Escape, 70 A.L.R.2d 347 (1960); Patient Tort Liability of Rest, Convalescent or Nursing Homes, 83 A.L.R.3d 871, at § 7, "Wandering Away" (1978). Plaintiff erroneously attempts to rely on the doctrine of res ipsa loquitur. This doctrine may be used only to prove negligence, not proximate cause. Georgia Power Co. v. Edmonds, 233 Ala. 273, 275, 171 So. 256, 258 (1936); Alabama Power Co. v. Bryant, 226 Ala. 251, 254, 146 So. 602, 605 (1933).
Judge Hoffman agrees with this opinion with respect to the granting of judgment n.o.v., that is, the merits of the state law claim. He has, however, filed a special concurring opinion, expressing his view that the claim brought under 42 U.S.C. § 1983 does not present a substantial federal claim and should have been dismissed. With no substantial federal claim stated, in his view, the court lacked jurisdiction to hear the state wrongful death claim.
Chief Judge Godbold is of the view that the § 1983 claim was not subject to dismissal since prior decisions did not "inescapably render the claim[s] frivolous." Curtis v. Taylor, 625 F.2d 645, 649-50 (5th Cir.1980); Jackson v. Stinchcomb, 635 F.2d 462, 471 (5th Cir.1981). Judge Anderson concurs in this view but dissents on the merits of the state law claim and has filed a dissenting opinion on that issue.
The judgment is AFFIRMED.
ANDERSON, Circuit Judge, dissenting:
I agree with all of Chief Judge Godbold's opinion for the majority, except his conclusion that there is not sufficient evidence to support the jury finding of proximate cause. I would conclude that the jury might reasonably infer that the defendant's negligence in permitting Daniels to wander off was a proximate cause of his death. Daniels was a 78 year old senile man who was on heart medication and tranquilizers at the time. The record in this case contains evidence amply justifying the inference that Daniels was unable to cope with the real world environment outside the nursing home, and that it would pose a risk to Daniels' health and safety to thrust him alone into the outside world. If the cause of Daniels' death was exposure to the elements in the nearby woods or swamp, the
R. 94 (footnote omitted).
HOFFMAN, District Judge, concurring specially:
Plaintiff, Bob Daniels, as administrator of the estate of the decedent, Isaac Daniels, asserts two claims in this non-diversity action. The first is a claim under 42 U.S.C. § 1983 in which the plaintiff alleges that the defendants deprived Isaac Daniels of the right to life as guaranteed by the Constitution of the United States, while acting under color of law, by failing to properly supervise and provide safe care for him. The second claim is a pendent state law negligence claim for the wrongful death of Isaac Daniels which, under Alabama law, is limited to a recovery for punitive damages.
The case was tried by a magistrate and, upon an agreement of the parties that the federal and state theories of recovery were identical, both claims were submitted to the jury under a single negligence instruction. The jury returned a single general verdict for the plaintiff, awarding $1 million. The magistrate, however, entered a judgment n.o.v., and in the alternative, granted a new trial on the ground that damages were excessive.
Judge Godbold, in this appeal, affirms the granting of the judgment n.o.v. on the ground that there was insufficient evidence under the federal standard to support the jury's verdict. I agree with Judge Godbold's opinion as to the granting of judgment n.o.v. I concur specially, however, because in my opinion the 42 U.S.C. § 1983 claim does not present a substantial federal claim and as such the section 1983 claim should have been dismissed. Since no substantial federal claim was presented, the court lacked jurisdiction to hear the state negligent wrongful death claim.
A federal court has jurisdiction to hear a pendent state claim only when the court is presented with a substantial federal question and the state and federal claims derive from a common nucleus of operative fact. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966); Jackson v. Stinchcomb, 635 F.2d 462, 470 (5th Cir.1981). If a substantial federal claim is not presented, the court does not have pendent jurisdiction to hear a related state claim. See also Gellert v. Eastern Airlines, Inc., 688 F.2d 723 (11th Cir.1982). A claim is insubstantial if it lacks merit or if prior decisions clearly foreclose the matter. See Jackson v. Stinchcomb, supra, at 471; Florida East Coast Railway Co. v. United States, 519 F.2d 1184, 1194 n. 26 (5th Cir.1975). The question of whether pendent jurisdiction is proper normally will be resolved on the pleadings, but
It is my opinion that the plaintiff in this case failed to present a substantial federal question and thus the court lacked jurisdiction to hear either the federal or state claim.
A claim for relief under 42 U.S.C. § 1983
I. CONSTITUTIONAL DEPRIVATION?
First, the plaintiff has not complained of conduct involving a deprivation of constitution magnitude. The plaintiff alleges that the defendant nursing home deprived Isaac Daniels of life by negligently failing to properly supervise and provide safe care for him. Presumably, the plaintiff is claiming that the defendant's conduct violated the fourteenth amendment's protection against deprivation of life without due process of law. There cannot, of course, be a constitutional right to life without more.
On several occasions the Supreme Court has warned that section 1983 imposes liability for violations of rights protected by the Constitution, and not for violations of duties of care arising out of tort law. See, e.g., Baker v. McCollan, 443 U.S. at 146, 99 S.Ct. at 2695; Estelle v. Gamble, 429 U.S. 97, 104-06, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976); Paul v. Davis, 424 U.S. 693, 698-701, 96 S.Ct. 1155, 1159-1160, 47 L.Ed.2d 405 (1976). To warrant section 1983 relief, the defendant's actions must amount to a constitutional violation. See Baker v. McCollan, supra. While some conduct may clearly be violative of tort law, it may not be a constitutional injury, and the proper remedy is not a section 1983 claim but a suit in state court under traditional tort principles. Id. at 146, 99 S.Ct. at 2695. See also Shillingford v. Holmes, 634 F.2d 263 (5th Cir.1981).
Even if I were to assume that the defendant nursing home may have been negligent and as such its conduct was wrongful, the conduct was only tortious and did not constitute a constitutional deprivation. My opinion is based on previous decisions of this court and other courts. In Williams v. Kelley, 624 F.2d 695 (5th Cir.1980), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981), the Fifth Circuit addressed whether negligent wrongful death stated a deprivation of a constitutional right cognizable in a section 1983 claim. In Williams the decedent died as a result of a choke hold placed on him by a police custodial officer while the officer was attempting to restrain him. 624 F.2d at 696. The mother of the decedent sued the officers involved under section 1983 for wrongful death. Id. at 697. The court concluded that the allegations did not state a deprivation of a federal right and thus the requirements for a section 1983 suit had not been met. Id. at 697-98.
More recently in Hull v. City of Duncanville, 678 F.2d 582 (5th Cir.1982), the Fifth Circuit continued the Williams v. Kelley analysis and applied it to a section 1983 suit for injuries arising out of a train-vehicle collision. The father of the injured minor sued the city under section 1983 for depriving "the minor without due process of law of the minor's right to be free from permanently-disabling injuries." 678 F.2d at 583. The action was based upon the city's failure to enforce its train traffic speed limit, and its negligent failure to maintain the crossing and traffic signals. Id. at 583-84. The court found that the actions pleaded may constitute a tort, but did not establish a constitutional violation actionable under section 1983. Id. at 584-85.
424 U.S. at 698, 96 S.Ct. at 1159. The caution was reiterated in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), when Justice Rehnquist stated:
451 U.S. at 544, 101 S.Ct. at 1917. Similarly, Justice Powell stated in his concurrence in Parratt:
451 U.S. at 549, 101 S.Ct. at 1920.
For the above stated reasons, I believe that the conduct of the defendant nursing home, which the plaintiff bases his section 1983 claim upon, clearly does not amount to a constitutional deprivation.
II. STATE ACTION?
Second, the conduct of the defendant nursing home that the plaintiff complains of does not constitute state action.
The actions of a private party can be so closely associated with the state as to constitute state action. A private party will be subject to suit under section 1983 if the conduct allegedly causing the deprivation of a federal right is "fairly attributable to the state." Lugar v. Edmondson Oil Co., ___ U.S. ___, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982); Rendell-Baker v. Kohn, ___ U.S. ___, 102 S.Ct. 2764, 2770, 73 L.Ed.2d 418 (1982). The state must be shown to be sufficiently connected with the particular aspect of the defendant's conduct complained of so that the defendant is treated as a state actor and the defendant's act is treated as that of the state. See Lugar v. Edmondson Oil Co., 102 S.Ct. at 2754-55; Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982). See also Sims v. Jefferson Downs, 611 F.2d 609, 611 (5th Cir.1980). A number of different factors or tests have been articulated which can be looked to in determining whether conduct of a private party is fairly attributable to the state.
The complaining party can demonstrate that "there is a sufficiently close nexus [or symbiotic relationship] between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974) (emphasis added). See also Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Sims v. Jefferson Downs, 611 F.2d at 611. The plaintiff may also demonstrate that the state exercised its coercive power or provided significant encouragement such that the defendant's act was coerced by the state. Adickes v. S.H. Kress & Co., 398 U.S. 144, 170, 90 S.Ct. 1598, 1615, 26 L.Ed.2d 142 (1970). Last, the plaintiff may demonstrate that the private defendant exercised some power delegated to it by the state which is "traditionally exclusively reserved to the State." Jackson v. Metropolitan Edison Co., 419 U.S. at 352-53, 95 S.Ct. at 454-55. See also, Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157-61, 98 S.Ct. 1729, 1733-36, 56 L.Ed.2d 185. Considering all of the factors in this case that may be evidence of state action, in my opinion, there is no state action.
I believe the Supreme Court decision in Blum v. Yaretsky, ___ U.S. ___, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), controls this case and directs a finding of no state action.
Id. at 2789 (emphasis added). The Court specifically concluded that nursing homes do not perform a function that falls within the exclusive prerogative of the state. Id. at 2789-90. The Court stated:
Id. (emphasis added).
In Blum the Supreme Court likened the nursing home situation to the public defender situation in Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981).
102 S.Ct. at 2788.
Although not involving a nursing home, another case the Supreme Court decided along with Blum v. Yaretsky, directs a finding of no state action in this case. In Rendell-Baker v. Kohn, ___ U.S. ___, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), the Supreme Court addressed whether a private school was a state actor when it discharged certain employees. The school was a non-profit institution in Brookline, Massachusetts, that specialized in giving high school instruction to students with drug, alcohol, or behavioral problems, or other special needs. 102 S.Ct. at 2755-67. Students were referred to the school by the Brookline or Boston school committees, or by the Drug Rehabilitation Division of the Massachusetts Department of Mental Health. The school had a contract with the Boston School Committee requiring it to carry out the individualized plans developed for each student. The school also had a contract with the State Drug Rehabilitation Division. During the years pertinent to the case, the school had approximately 50 students, most having been referred to the
In my opinion, considering the results in Blum v. Yaretsky, supra, Rendell-Baker v. Kohn, supra, Polk County v. Dodson, supra, and other cases, the facts of the present case clearly indicate that there is no state action.
For the reasons discussed above, I believe the decisions of the district court and the magistrate that there was a constitutional deprivation and that there was state action were erroneous. Since the plaintiff did not allege any deprivation amounting to a violation of a federal right, and the activities of the defendant did not involve any state action, the plaintiff did not present a substantial federal question and the district court was without jurisdiction to consider the section 1983 claim or the pendent state claim.
Nevertheless, I join in the views of Chief Judge Godbold on the merits of the pendent state action.
Boeing's rejection of the "Planters principle" did not affect the aspect of Planters that disapproved the equally probable inferences rule. This latter aspect of Planters survives. First, Boeing did not address this aspect of Planters or this aspect of the Supreme Court FELA cases on which Planters relied. The aspect of Lavender and other FELA cases that the court took issue with in Boeing was that any evidence of negligence, even the slightest, would send the case to the jury. Id. at 370-71. Nowhere in Boeing is there an indication that the equally probable inferences rule was at issue or was considered. Therefore, in Boeing the court addressed only what quantum of evidence would make an inference reasonable, not whether the jury is allowed to choose between two equally probable, yet reasonable, inferences.
Second, the equally probable inferences rule of old cases such as Smith v. General Motors, supra, is inconsistent with the standard of sufficiency adopted in Boeing. In Boeing the court held that a verdict should be directed only if "the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict." Id. at 374 (emphasis added). This does not allow a rule where a verdict is directed simply because a contrary inference is equally likely. The contrary inference must be "so strong and overwhelming" that the inference in favor of plaintiff is unreasonable. Moreover, in Boeing the court expressly stated that "it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences." Id. at 375 (emphasis added).
Third, the former Fifth Circuit has frequently rejected the equally probable inferences rule in cases following Boeing. See Alman Brothers Farms & Feed Mill, Inc. v. Diamond Laboratories, Inc., 437 F.2d 1295, 1301 (5th Cir.1971); Tucker v. Bethlehem Steel Corp., 445 F.2d 390, 392 (5th Cir.1971) ("Given an apparent evidentiary basis for the verdict ... the appellate court's function is exhausted, `it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.'"); Callon Petroleum Co. v. Big Chief Drilling Co., 548 F.2d 1174, 1180 (5th Cir.1977) ("It should be left to the ... jury ... to resolve such conflicting inferences."); Nunez v. Superior Oil Co., 572 F.2d 1119, 1124 (5th Cir.1978) ("`the choice between permissible inferences is for the trier of facts'"); Southway Theatres v. Georgia Theatre Co., 672 F.2d 485, 495 (5th Cir.1982) (Unit B) ("`Where more than one reasonable inference can reasonably be drawn from the proof, it is for the jury to determine the proper one.'"). But see Prudential Insurance Co. v. Schroeder, 414 F.2d 1316, 1319 (5th Cir.1969).
In the present case, even assuming a substantial federal claim was presented, it was an abuse of discretion for the court to exercise its pendent jurisdiction. After weighing all the factors listed above, the balance falls unquestionably on the side of refraining from exercising pendent jurisdiction.
The courts that have attempted to implement the Parratt decision, have thus far been unable to reach a concensus as to the full meaning and reach of the decision. See, e.g., Pantoja v. City of Gonzales, 538 F.Supp. 335 (N.D.Cal.1982); Howse v. DeBerry Correctional Institute, 537 F.Supp. 1177 (M.D.Tenn.1982); Starstead v. City of Superior, 533 F.Supp. 1365 (W.D.Wis.1982). The present case at first blush appears to be one that may be impacted by Parratt, since it involves a simple negligence section 1983 claim, however, a thorough reading of Parratt and prior Supreme Court cases clearly reveals that this court does not need to address whether the Parratt analysis and holding applies. Before the Parratt analysis is reached and an exploration of the relationship between the defendant's state-of-mind and liability under section 1983 is necessary, the plaintiff must first establish the basic elements of a section 1983 claim. Parratt v. Taylor, 451 U.S. at 535, 101 S.Ct. at 1912; Baker v. McCollan, 443 U.S. 137, 139-40, 99 S.Ct. 2689, 2692-93, 61 L.Ed.2d 433 (1979). See also Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981). If the basic elements of a section 1983 claim are not established initially, as is the case here, it is not necessary to decide whether Parratt applies because a valid claim has not been stated. Accord, Hull v. City of Duncanville, 678 F.2d 582, 584-85 (5th Cir.1982). See also Major v. Benton, 647 F.2d 110, 112-13 (10th Cir.1981). See Baker v. McCollan, supra. The state-of-mind of the defendant, however, may be relevant as to the first element of a section 1983 claim; whether a constitutional violation occurred in the first place. Baker v. McCollan, supra, at 140 n. 1, 99 S.Ct. at 2692 n. 1.
624 F.2d at 697 (emphasis added) (citations omitted). See also Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981).
The plaintiff argues that this abuse of government power test does not survive Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), since Parratt allowed a section 1983 claim based on a negligent deprivation of property. This argument ignores language in Baker v. McCollan, 443 U.S. 137, 140 n. 1, 99 S.Ct. 2689, 2692 n. 1, 61 L.Ed.2d 433 (1979), where the Supreme Court pointed out that the defendant's state of mind can be relevant as to whether a constitutional violation occurred. Additionally, Hull v. City of Duncanville was a post-Parratt case in which the Fifth Circuit discussed Parratt and applied the abuse of government power standard.
Even without the abuse of government power standard, I do not believe the plaintiff in the present case has stated a constitutional violation.