Kenneth Hogan, Plaintiff-appellant, v. City of Houston, a Municipal Corporation, et al.,defendants-appellees, 819 F.2d 604 (5th Cir. 1987)

Kenneth Hogan appeals the dismissal of his complaint for failure to state a claim upon which relief can be granted.¹  We hold that the district court properly dismissed the complaint and affirm.

Before we examine the facts presented here, we note our standard of review of a district court order dismissing a claim under Fed. R. Civ. P. 12(b) (6): we consider only the pleadings and accept them as true, viewing them in the light most favorable to Hogan. Furthermore, we must reverse "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). See Palmer v. City of San Antonio, 810 F.2d 514, 515 (5th Cir. 1987).

In his complaint, Kenneth Hogan alleges that certain policies of the City of Houston (the City) regulating procedures in the prisoner intake facility, allowed a prisoner to grab another officer's gun and shoot Hogan with it. According to the complaint, the City's policies "manifest deliberate indifference to or conscious disregard" for the safety of its officers and establishes "gross negligence and recklessness" on the part of the City and Chief of Police Lee Brown.

The complaint therefore attempts to allege the degree of negligence necessary to state a section 1983 cause of action. See Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 664, 88 L. Ed. 2d 662 (1986). As we held in Rankin v. City of Wichita Falls, 762 F.2d 444, 447 (5th Cir. 1985), however, more is required: "one must allege 'the sort of abuse of government power that is necessary to raise an ordinary tort by a government agent to the stature of a violation of the Constitution.' " Id. (quoting Hull v. City of Duncanville, 678 F.2d 582, 584 (5th Cir. 1982)). Hogan's complaint²  does not meet this standard as there is no such allegation in it nor could there be under the facts as stated. This case is therefore controlled by our opinion in Rankin in which we held that "the City's failure to redress the patent but possibly severe defects in [the plaintiff's] workplace [cannot be viewed] as an abuse of government power." Id. at 449. Accordingly, the district court properly dismissed Hogan's complaint for failure to state a claim upon which relief may be granted.

AFFIRMED.