           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          January 8, 2009

                                       No. 08-40308                   Charles R. Fulbruge III
                                                                              Clerk

AMELIA JARAMILLO

                                                  Plaintiff-Appellant
v.

CITY OF MCALLEN, TEXAS;
HERMELINDA SMITH;
EDUARDO SMITH; MARCELO SMITH

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                   (07-CV-163)


Before GARWOOD, GARZA and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff Amelia Jaramillo appeals the district court’s grant of defendant
City of McAllen’s Rule 12(b)(6) motion to dismiss her several times amended
complaint against the City, under 42 U.S.C. § 1983 and under the Texas Tort
Claims Act, TEX. CIV. PROC. & REM. CODE § 101.021(2), seeking to impose
liability on the City for injuries she suffered as a result of being attacked on



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-40308

March 1, 2006 by a dog owned by co-defendants Hermelinda Smith and Eduardo
Smith while plaintiff was walking on public property within the City from her
place of employment to her home.1 It is alleged that on March 1, 2006, the
Smiths were negligent and grossly negligent, proximately causing plaintiff’s
injuries, in failing to properly confine, leash or muzzle their dog and in failing
to post a warning sign on their property and have liability insurance, as required
by City’s 1994 animal control ordinance. As to the City, it is alleged that “on one
or more occasions prior to March 1, 2006 . . . the Smiths’ dog attacked a human”
within the City but not on the Smiths’ property, and that the City knew that but,
contrary to the provisions of its animal control ordinance, did not seize the dog
and deliver it to an animal control shelter, declare it a vicious animal, notify the
Smiths of or conduct a hearing to declare the dog vicious, and “did not condition
the City’s release of the Smiths’ dog to the Smiths.” The referenced “one or more
occasions prior to March 1, 2006 ” are wholly unidentified.2 It is alleged that by
violating its animal control ordinance the “City has created a custom, usage
and/or policy of creating dangers of injury and death affecting the public
traveling within its borders which would not otherwise exist,” that “prior to
March 1, 2006 ” the City, “pursuant to its usual custom, usage and/or policy . .
. intentionally, recklessly and maliciously acted with reference to the Smiths’
dog” in violation of its animal control ordinance. Also alleged is that “said

       1
         On March 17, 2008, the same day that the district court granted the City’s Rule
12(b)(6) motion as to the claims against it, the court also granted plaintiff’s motion to sever her
claims against the Smiths from her claims against the City and to remand the claims against
the Smiths to state court from whence the City had removed them (on the basis of federal
question) following the assertion of the § 1983 claim against it in the state court suit. Thus
the district court’s March 17, 2008 orders disposed of the entire case before it.
       2
         There is absolutely no allegation even suggesting when – whether a month, or a year
or two years prior to March 1, 2006 – any such prior incident occurred, nor where (other than
within the City and not on the Smiths’ property) it occurred, nor any other even remotely
identifying allegation whatever. There is no identification, either by name or position or
otherwise, of any City personnel or victim involved. And, there is nothing to suggest that there
was more than one such incident.

                                                2
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custom, usage and/or policy of City has repeatedly and foreseeably created
significant risks of bodily injury and death for members of the public situated or
traveling within its borders, including plaintiff.”3              There is no allegation
whatever in the complaint that the City or any City officer or employee or
anyone acting for the City ever had any intent to injure plaintiff or anyone else,
or knew of any danger to plaintiff or to any particular, identifiable discrete group
including plaintiff (as distinguished from members of the public at large within
the City). There is no allegation that the Smiths’ dog was any more vicious or
dangerous on March 1, 2006 than it had been on any of the alleged “one or more
occasions prior to March 1, 2006” when it “attacked a human;” nor is it in
anyway alleged that the City ever did anything to the dog which made it more
vicious or changed it in any way.
       Appellant makes no complaint on appeal that she was denied any leave to
further amend or that her final amended complaint did not plead other than her
best case. We review the sufficiency of the amended complaint under the
standard set forth in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007),
namely that a complaint “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do” and
“[f]actual allegations must be enough to raise a right to relief above the
speculative level . . . on the assumption that all the allegations in the complaint
are true . . . .” Id. at 1965. The amended complaint here does not come close to
meeting that standard.
       The City’s alleged failure to adequately enforce the animal control
ordinance prior to March 1, 2006 so that the Smiths’ dog would not have
attacked plaintiff on March 1, 2006 does not constitute any sort of due process
violation, substantive or procedural, whether under a “state created danger”


       3
        Absolutely no particularization whatever is alleged with respect to any of these wholly
conclusory and general allegations.

                                              3
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theory or otherwise. This is clearly established by our prior decisions under
analogous facts. Saenz v. Heldenfels Bros. Inc., 183 F.3d 389 (5th Cir. 2003), is
directly on point. See also, e.g., Rios v. City of Del Rio, 444 F.3d 417, 423-25 (5th
Cir. 2006).4
       Plaintiff also asserts that her constitutional right to travel was infringed.
Saenz v. Roe, 119 S.Ct. 1518, 1525 (1999), states of the constitutional “right to
travel” that:
       “It protects the right of a citizen of one State to enter and to leave
       another State, the right to be treated as a welcome visitor rather
       than an unfriendly alien when temporarily present in the second
       State, and, for those travelers who elect to become permanent
       residents, the right to be treated like other citizens of that State.”
The complaint does not allege that plaintiff was on an interstate journey on
March 1, 2006 nor that she was then using an instrumentality of interstate
travel. She merely alleges that on March 1, 2006 she was walking home from
her employment at the Adult Day Care Center and the costs of the care there are
“paid by the United States through its Medicaid and/or Medicare programs, so
that Plaintiff’s employment involved Plaintiff in interstate commerce.” No
authority suggests that those facts in anyway indicate that the dog attack of
March 1, 2006 implicates the constitutional right to travel. Nothing in the
amended complaint even suggests any discrimination, intentional or otherwise,
on the part of the City as respects persons from other states or areas or as
respects travel of any kind. Moreover, just as the United States Constitution
does not generally obligate states or local governments to protect members of the
general public from the criminal or wrongful acts of private persons or their



       4
          Here there is no allegation of any “special relationship” as referenced in DeShaney v.
Winnebago County, 109 S.Ct. 998, 1004, 1006 (1989). Nor does the City’s animal control
ordinance create federal constitutional rights in members of the general public, such as
plaintiff, to proper enforcement of the ordinance as against the Smiths’ dog. See Town of Castle
Rock, Colo. v. Gonzales, 125 S.Ct. 2796 (2005).

                                               4
                                 No. 08-40308

animals which may invade their bodily integrity or property, so also it does not
require the states to protect members of the general public against such acts of
private persons or their animals which may adversely affect the individual’s
travel.
      Plaintiff also asserts that the City is liable under TEX. CIV. PROC. & REM.
CODE § 101.021(2), because the dog that attacked her on March 1, 2006 was
personal property. But the Smiths are alleged to have then owned the dog, and
to have then possessed it (it being alleged they negligently failed to leash or
muzzle it), and there is no allegation that the City ever used (or possessed or
controlled) the dog on March 1, 2006. However, “section 101.021(2) waives
immunity for the use of personal property only when the governmental unit
itself is the user” and “[a] governmental unit does not ‘use’ personal property
merely by allowing someone else to use it and nothing more.” San Antonio State
Hosp. v. Cowan, 128 S.W.3d 244, 245-46 (Tex. 2004).                This applies
notwithstanding that the personal property in question is dangerous. Texas
A&M Univ. v. Bishop, 156 S.W.3d 580, 583-84 (Tex. 2005).
      We affirm the judgment of the district court.
                                  AFFIRMED




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