Pasco, et al v. Holly Springs MS

* 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that this opinion should not be published and is not precedent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
June 8, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60586
Summary Calendar
ROY A. PASCO, by and through their Grandmother and next friend,
Beverly A. Pasco; BRIAN K. PASCO, by and through their
Grandmother and next friend, Beverly A. Pasco; BEVERLY A. PASCO,
Plaintiffs-Appellants,
versus
HOLLY SPRINGS, MISSISSIPPI,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:01-CV-247-MD
--------------------
Before BARKSDALE, EMILIO M. GARZA, AND DENNIS, Circuit Judges.
PER CURIAM:*
Roy A. Pasco and Brian K. Pasco, by and through their next
friend Beverly A. Pasco (collectively, “the plaintiffs”) appeal
the district court’s grant of summary judgment to Holly Springs,
Mississippi (“Holly Springs”), on their 42 U.S.C. § 1983 claims
and state law wrongful death claim alleging that Roy Gene Pasco,
Jr. (“Pasco”), was killed when his vehicle was bumped off the

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road by a Holly Springs police officer during a high speed chase.
The plaintiffs argue that the district court erred by granting
summary judgment to Holly Springs on their Fourth Amendment claim
on the ground that there was no municipal liability as a matter
of law. They further contend that the district court’s
alternative grant of summary judgment to Holly Springs on the
merits of their Fourth Amendment claim was erroneous. Finally,
they assert that the district court erred by granting summary
judgment to Holly Springs on their state law wrongful death claim
on the ground that it was barred by the Mississippi Tort Claims
Act (“MTCA”).
We review the grant of a motion for summary judgment de
novo. Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th
Cir. 1996). Summary judgment is appropriate when, considering
all of the allegations in the pleadings, depositions, admissions,
answers to interrogatories, and affidavits, and drawing
inferences in the light most favorable to the nonmoving party,
there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. FED. R. CIV. P.
56(c); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994)(en banc). If the moving party meets his burden of showing
that there is no genuine issue, the burden shifts to the
nonmoving party to produce evidence or set forth specific facts
showing the existence of a genuine issue for trial. FED. R. CIV.
P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

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The undisputed evidence before the district court showed
that the supervisor on duty ordered the police officer in
question, Brad Knoblauch (“Officer Knoblauch”), to terminate his
pursuit of Pasco prior to the accident that caused Pasco’s death.
The undisputed evidence also showed that Holly Springs’s written
policy on high speed chases by police officers provided that
supervisors could order the termination of any pursuit.
Accordingly, the district court did not err by finding that Holly
Springs’s policy regarding high speed chases did not give rise to
municipal liability for the alleged constitutional violation.
See Spiller v. City of Texas City, Police Dep’t, 130 F.3d 162,
167 (5th Cir. 1997).
The plaintiffs’s argument that respondeat superior liability
should apply to municipalities in 42 U.S.C. § 1983 actions is
foreclosed by the Supreme Court’s decisions in Monell v. Dep’t.
of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978), and
Board of County Comm’rs of Bryan County, Okl. v. Brown, 520 U.S.
397, 403 (1997). We cannot consider the plaintiffs’s contention
that those cases were wrongly decided as we are without the
authority to overrule binding Supreme Court precedent. See
Rodriguez de Quijas v. Shearson/American Exp. Inc., 490 U.S. 477,
484 (1989).
The undisputed evidence before the district court showed
that Pasco was engaged in the criminal activities of driving
under the influence of alcohol and fleeing from a police officer

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at the time of his death. See MISS. CODE ANN. §§ 63-11-30 & 63-3-
202. As Pasco was engaged in criminal activities at the time of
his death, the district court did not err by finding that the
plaintiffs’s state law wrongful death claim was barred by the
MTCA. See MISS. CODE ANN. § 11-46-9(1)(c).
We need not reach the remainder of the plaintiffs’s
arguments on appeal. Despite the plaintiffs’s request, we will
not reach an issue we would not otherwise reach simply because
the plaintiffs have recently filed a similar civil action against
Officer Knoblauch individually. We do not have jurisdiction to
issue advisory opinions. Carpenter v. Witchita Falls Independent
School Dist., 44 F.3d 362, 368 n.5 (5th Cir. 1995).
AFFIRMED.

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