Unpublished Disposition, 940 F.2d 1535 (9th Cir. 1991)

MEMORANDUM^* 

In this Sec. 1983 action, Lisman appeals the district court's directed verdict and judgment in favor of the Medford School District. The district court had jurisdiction over the plaintiff's Sec. 1983 claim under 28 U.S.C. § 1343. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291. We affirm.

* The appellees contend this court lacks jurisdiction because the notice of appeal does not specify that Lisman is appealing from the order granting the motion for a directed verdict. This contention is meritless. The order granting the motion for directed verdict was not final and appealable until the court entered the final judgment in the case the next day. The appeal from that final judgment encompasses an appeal from the directed verdict.¹ 

II

Municipalities and other political subdivisions of a state (such as school districts) may not be held liable for violating constitutional rights solely on the basis of respondeat superior. Monell v. New York City Dept. of Social Svcs., 436 U.S. 658, 691 (1978). Political subdivisions are liable only where a constitutional violation results from conduct pursuant to "official policy." Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986).

The "official policy" requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible....--that is, acts which the municipality has officially sanctioned or ordered.

With this understanding, it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.

Id. at 479-80. Those circumstances are "where--and only where--a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Id. at 483-84. Authority to make municipal policy may be delegated by an official who possesses such authority, and whether an official had final policymaking authority is a question of state law. Id. at 483.

Lisman offered evidence to support his allegation that the School District delegated its power to establish final employment policy to Wisely. In fact, Lisman's case hinged upon Wisely's alleged retaliation against Lisman. But the jury's special verdict made it clear that Wisely did not violate Lisman's constitutional rights. The School District correctly notes that it cannot be held liable for Wisely's actions if Wisely inflicted no constitutional harm. See Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (" [No case] authorizes the award of damages against a municipal corporation based on the actions of one of its officers when in fact the jury has concluded that the officer inflicted no constitutional harm."). Lisman does not appeal the jury's finding that Wisely's conduct did not violate Lisman's constitutional rights. Thus, Lisman's only chance to prevail is to try to place responsibility on his superior, Diane Cowan, who was not named as a defendant in this case.

III

Lisman offered evidence to support his allegation that Cowan had discretion in setting his hours of employment. Lisman suggests that a directed verdict was improper because a jury could have found that Wisely subdelegated his final policymaking authority to Cowan.

It is not clear that this argument was raised before the district court. In fact, even in his brief on appeal, Lisman continues to argue that Cowan curtailed his working hours because Wisely directed her to do so. See Blue Brief at 13-14 (Wisely delegated his discretion to Cowan, "subject only to the restriction that she must apply it so as to reduce Plaintiff's hours of employment....") and at 15 (The reduction of Lisman's hours was "under the authority and direction of Superintendent Wisely."). Lisman's implicit argument that the School District can be held liable for Cowan's actions, even if Wisely did nothing wrong, appears to be a new theory of the case, one for which Lisman offers no factual support.

IV

The evidence and its inferences, considered as a whole and viewed in the light most favorable to Lisman, can support only one reasonable conclusion as to the verdict: the School District is not liable. No jury could find the School District liable for Cowan's actions because Lisman points to no evidence that she exercised final policymaking authority in a way that violated his constitutional rights. The School District is not liable for Wisely's actions because the jury expressly found that Wisely committed no constitutional wrong.

We therefore affirm the district court's judgment and deny Lisman's request for attorney fees under 42 U.S.C. § 1988.

AFFIRMED.