                   IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT



                                     No. 00-50636



DELBERT LEAVITT, JR, Etc.; ET AL.,

                                                                                 Plaintiffs,


DELBERT LEAVITT, JR, Legal Representative of the Alvarez Children on behalf of the
ESTATE OF MARIA SUSANA ALVAREZ, DEC’D, AND APRIL ALVAREZ, STEPHANIE
ALVAREZ, ALEXIS ALVAREZ, ALEJANDRO ALVAREZ, JR AND ELIZABETH
ALVAREZ, Minors All Individually Acting By and Through their Legal Representative
DELBERT LEAVITT, JR; DOLORES BALEDEMAR; ESTATE OF MARIA SUSANA
ALVAREZ,

                                                                     Plaintiffs-Appellants,

                                        versus

CITY OF EL PASO; ET AL.,

                                                                              Defendants,


CITY OF EL PASO,
                                                                       Defendant-Appellee.



                      Appeal from the United States District Court
                           for the Western District of Texas

                                     June 19, 2001


Before DAVIS, WIENER, and STEWART, Circuit Judges.
PER CURIAM:*

       On March 17, 1997, Maria Susana Alvarez (“Suzy”) was shot and killed by her husband,

Alejandro Alvarez (“Alejandro”), a United States Border Patrol agent, with his duty weapon.

Alejandro was subsequently convicted of murder. Suzy’s estate, her five minor children, and her

mother brought suit under 42 U.S.C. § 1983 through her brother, Delbert Leavitt (“Leavitt”) against

the City of El Paso (“City”) claiming violations of equal protection and substantive due process.1 The

district court granted summary judgment in favor of the City on all of Leavitt’s claims which he now

appeals.

        This Court reviews summary judgments de novo, reviewing all disputed facts and reasonable

inferences “in the light most favorable to the nonmoving party.” Duffy v. Leading Edge Prods., 44

F.3d 308, 312 (5th Cir. 1995). Federal Rule of Civil Procedure 56(c) notes that summary judgment

is appropriate where “there is no genuine issue of material fact and . . . the moving party is entitled

to judgment as a matter of law.”

       Leavitt argues that the trial court erred when it granted summary judgment in favor of the City

on his substantive due pro cess claim. He claims that the City created a danger when it did not

provide Suzy transportation to a battered woman’s shelter t he evening before her murder and




   *
   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.
   1
     Leavitt also brought claims for negligent supervision and negligent entrustment of a weapon
against the United States under the Federal Tort Claims Act. The district court granted summary
judgment in favor of the United States on the negligent entrustment claim. Leavitt and the United
States subsequently agreed to dismiss the remaining claim.

                                                  2
according to a contract the City had with the shelter.2 Leavitt also contends that the trial court erred

when it granted summary judgment in favor of the City on his equal protection claim that the City had

a policy or custom of providing less police protection to victims of domestic violence than to victims

of other crimes. See Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 694 (1978).

Leavitt moreover argues that the district court erred when it held that the City was immune from

Leavitt’s claim under the Texas Tort Claims Act (“TTCA”).

       The City responds that neither Leavitt’s complaint nor the summary judgment evidence

presents any substantive evidence of a City policy or custom that deprives citizens of their

constitutional rights. It moreover argues that the El Paso Police Department did not have a duty to

control the acts of Alejandro because there was no “special relationship” between Suzy and municipal

employees. Vaquera v. Salas, 810 S.W.2d 456, 461 (Tex. App.-San Antonio 1991, writ denied).

The City also asserts that it is entitled to sovereign immunity under the TTCA because none of the

three exceptions to municipal liability, claims arising out of the operation or use of motor-driven

vehicles, claims arising from premises defects, and claims arising from the condition or use of personal

property, is satisfied here. See TEX. CIV. PRAC. & REM. CODE § 101.021.3


  2
     Although this Court has not recognized this theory, it has not eliminated the possibility of a due
process claim based on state-created danger. See Piotrowski v. City of Houston, 51 F.3d 512, 515
(5th Cir. 1995) (stating that “[w]hile this Court has not affirmatively held that this theory is a valid
exception to the DeShaney rule, . . . it has addressed what a plaintiff would have to demonstrate to
qualify for relief under this theory”).
   3
     The City also contends that this Court does not have jurisdiction to hear this appeal because it
claims that Leavitt filed a premature no tice of appeal. We find, however, that Federal Rule of
Appellate Procedure 4(a)(2) permits this Court to exercise jurisdiction. See Barrett v. Atlantic
Richfield Co., 95 F.3d 375, 379 (5th Cir. 1996) (stating that the Fifth Circuit had jurisdiction over a
case in which the plaintiff filed a notice of appeal before all claims were resolved against all parties
and when the district court had not certified the nonfinal judgment under Federal Rule of Civil
Procedure 54(b)).

                                                   3
        Suzy’s death at the hands of her husband and in front of at least two of her children is

unfortunate indeed. Having fully reviewed the record, we cannot conclude, however, that the district

court erred when it granted summary judgment. We, therefore, affirm.

AFFIRMED.




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