                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                   May 3, 2004

                                                        Charles R. Fulbruge III
                                                                Clerk
                          No. 02-51359
                        Summary Calendar



SALVADOR ESPARZA, Individually and as
Representative of the Estate of Eduardo Esparza;
ROSA ESPARZA, Individually and as Representative
of the Estate of Eduardo Esparza, Deceased,

                                     Plaintiffs-Appellants,

versus

ANDREWS BOARD OF TRUSTEES; ET AL.,

                                     Defendants,

ANDREWS BOARD OF TRUSTEES; PETE FRANCIS,
Individually and in his capacity as President
of the Andrews Board of Trustees; CHARLIE MOHN, Dr.,
Individually and in his official capacity as
Vice President of the Andrews Board of Trustees;
PATTY MCPHEARSON, Individually and in her official
capacity as Secretary of the Board of Trustees;
BRAD HORTON, Individually and in his official
capacity as member of the Andrews Board of Trustees;
LEE MAGEE, Individually and in his official capacity
as member of the Andrews Board of Trustees; ANDREWS
INDEPENDENT SCHOOL DISTRICT; ERVIN HUDDLESTON, Dr.,
Individually and in his official capacity as Superintendent
of Andrews Independent School District (AISD); MICHAEL
A. FETNER, Individually; ROBERT CRAWFORD, Individually,

                                          Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. MO-00-CV-44
                       --------------------
                          No. 02-51359
                               -2-

Before REAVLEY, JONES and PRADO, Circuit Judges.

PER CURIAM:*

     Rosa and Salvador Esparza, individually and as

representatives of the estate of their deceased son Eduardo

Esparza, appeal the district court’s order granting the summary

judgment motion of the Andrews Board of Trustees and its members,

the Andrews Independent School District (AISD), Ervin Huddleston,

the Superintendent of AISD, and Michael Fetner and Robert

Crawford, principals in AISD.

     The court has jurisdiction to review this appeal because

the district court entered final judgment with respect to these

appellees pursuant to FED. R. CIV. P. 54(b).   See Barrett v.

Atlantic Richfield Co., 95 F.3d 375, 379 (5th Cir. 1996).

     The Esparzas argue that AISD, the Andrews Board of Trustees,

and it administrators failed to adopt a policy or custom to

ensure the safety of children on swimming field trips and that

their failure to do so constituted deliberate indifference to

Eduardo Esparza’s constitutional rights.   They argue that the

district court’s determination that AISD, the Andrews Board of

Trustees, and its administrators consistently employed a practice

of having a lifeguard present at the pool was erroneous in light

of the testimony that there was no lifeguard present at the time



     *
        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.
                           No. 02-51359
                                -3-

of the incident.   The Esparzas also argue that the practice did

not rise to the level of a custom because of its infrequent use

and the lack of evidence that AISD and the Andrews Board of

Trustees were aware of the policy.

     Even accepting as true the evidence presented by the

Esparzas that the lifeguard was not present at the time of

the incident, the Esparzas failed to produce evidence to refute

the appellees’ evidence proving the existence of a long term

practice to require a lifeguard at the Andrews High School

swimming pool whenever it was used by outside groups.    The record

supports a finding that AISD, the Andrews Board of Trustees, and

their policymakers were aware of this practice and that it was so

consistently employed as to constitute a district policy.

See Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304

(5th Cir. 1995).

     The Esparzas also failed to present evidence that the

practice had been inadequate in the past or that it was obvious

that the policymakers’ failure to adopt all the precautions

suggested by the Esparzas would result in the deprivation of

a child’s constitutional rights.     Rhyne v. Henderson County,

973 F.2d 386, 392 (5th Cir. 1992).    The Esparzas did not

demonstrate that the custom or practices of AISD or the Andrews

Board of Trustees or their failure to implement a different

practice were acts of deliberate indifference which resulted in

the deprivation of Eduardo Esparza’s constitutional rights.
                            No. 02-51359
                                 -4-

Board of County Comm’rs of Bryan County, Okl. v. Brown, 520 U.S.

397, 404-05 (1997).

       Although the Esparzas’ allegation that Eduardo was deprived

of a protected liberty interest as a result of the deliberate

indifference of school employees stated a claim for the

deprivation of a clearly established constitutional right, cf.

Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th Cir. 1994)

(en banc), they failed to show that the individual appellees’

conduct was objectively unreasonable in light of the existing

law.    The Esparzas did not provide evidence showing that

the individual appellees failed to implement a safe practice

or deliberately placed the child in a dangerous situation.

There was no evidence of past incidents showing deliberate

indifference in the training of their subordinates.     See Snyder

v. Trepagnier, 142 F.3d 791, 799 (5th Cir. 1998).     Therefore, the

district court did not err in granting the individual appellees

qualified immunity.    Jones v. City of Jackson, 203 F.3d 875, 879

(5th Cir. 2000).

       The district court’s judgment granting summary judgment in

favor of the defendants-appellees and dismissing the claims

against them is AFFIRMED.
