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

                                                 FILED
                                                                          December 14, 2009

                                     No. 09-50165                       Charles R. Fulbruge III
                                   Summary Calendar                             Clerk



MARCOS LUEVANO

                                                   Plaintiff–Appellant
v.

PAULA GEYER; COUNTY OF UVALDE, TEXAS

                                                   Defendants–Appellees




                    Appeal from the United States District Court
                         for the Western District of Texas
                               USDC No. 2:08-cv-11


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Marcos Luevano (“Appellant”) appeals the district court’s dismissal of his
28 U.S.C. § 1983 claim brought on behalf of his daughter Marina Luevano
against Uvalde County Deputy Sheriff Paula Geyer.1 Geyer’s roommate was

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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
        Appellant originally brought suit in Texas state court, also pleading several claims
under Texas law. The Defendants removed to federal district court. After dismissing
Appellant’s § 1983 claim, the district court declined to exercise supplemental jurisdiction over
the remaining Texas law claims under 28 U.S.C. § 1367(c)(3) and remanded to state court.
Appellant does not appeal the remand.
                                   No. 09-50165

Marina’s non-custodial parent. Geyer allegedly left her service shotgun—loaded,
unsecured, and off-safety—in her bedroom while on duty, even though she knew
that Marina and her brother were visiting at the time. While Geyer was on
duty, her roommate’s son took the shotgun from Geyer’s room and accidentally
fired it, killing Marina.    Appellant sued Geyer for a violation of Marina’s
constitutional rights. Invoking the “state-created danger” theory of due process,
Appellant asserted that Geyer had created or exacerbated a dangerous situation
that ultimately caused his daughter’s death. The district court granted Geyer’s
motion to dismiss based on qualified immunity, and this appeal followed.
      We review a district court’s grant of a Rule 12(b)(6) motion de novo,
accepting all well-pleaded facts as true and review those facts in the light most
favorable to the plaintiff. Sanders-Burns v. City of Plano, 578 F.3d 279, 284 (5th
Cir. 2009). We apply a two-prong test to determine the applicability of qualified
immunity:     (1) whether the plaintiff has alleged a violation of a clearly
established federal constitutional or statutory right; and (2) whether the official’s
conduct was objectively reasonable in light of the clearly established legal rules
at the time of the alleged violation. Beltran v. City of El Paso, 367 F.3d 299, 303
(5th Cir. 2004).
      We first ask whether the plaintiff alleges a violation of a constitutional
right. Hernandez ex rel. Hernandez v. Tex. Dep’t of Protective & Regulatory
Servs., 380 F.3d 872, 879 (5th Cir. 2004). “Ordinarily, a state official has no
constitutional duty to protect an individual from private violence.” McClendon
v. City of Columbia, 305 F.3d 314, 324 (5th Cir. 2002) (en banc) (per curiam)
(citing DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 197
(1989)). Despite this general rule, the Supreme Court in DeShaney held that


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where the state, through affirmative exercise of its powers, acts to restrain an
individual’s freedom to act through “incarceration, institutionalization, or other
similar restraint of personal liberty,” the state creates a “special relationship”
between the individual and the state which imposes on the state a constitutional
duty to protect that individual from danger, including, in some circumstances,
private violence. DeShaney, 489 U.S. at 200. Many of our sister circuits have
read language from DeShaney to imply a “state-created danger” exception to the
private violence rule. See, e.g., Okin v. Village of Cornwall-On-Hudson Police
Dep’t, 577 F.3d 415, 434–35 (2d Cir. 2009); Waddell v. Hendry County Sheriff’s
Office, 329 F.3d 1300, 1306–07 (11th Cir. 2003); Ruiz v. McDonnell, 299 F.3d
1173, 1183–84 (10th Cir. 2002); Butera v. District of Columbia, 235 F.3d 637, 651
(D.C. Cir. 2001); Kallstrom v. City of Columbus, 136 F.3d 1055, 1066–67 (6th Cir.
1998); Kneipp v. Tedder, 95 F.3d 119, 1201, 1208 (3d Cir. 1996); Reed v. Gardner,
986 F.2d 1122, 1125 (7th Cir. 1993).
      We, however, have “not yet determined whether a state official has a
similar duty to protect individuals from state-created dangers.” McClendon, 305
F.3d at 325. We have repeatedly declined to rule on whether the state-created
danger theory applies in this Circuit, but have found that even if it did apply, it
would not allow recovery for the plaintiff under the facts of the case at hand.
See, e.g., Hernandez ex rel. Hernandez, 380 F.3d at 880 n.1; McClendon, 305 F.3d
at 325–26; McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 312–15 (5th Cir.
2002) (en banc); Morin v. Moore, 309 F.3d 316, 321–24 (5th Cir. 2002); Randolph
v. Cervantes, 130 F.3d 727, 731 (5th Cir. 1997).
      Even if we had adopted the state-created danger theory in this Circuit,
Appellant has failed to satisfy its elements. To recover under the state-created


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danger theory, we assume the plaintiff would have to show “(1) the state actors
created or increased the danger to the plaintiff and (2) the state actors acted
with deliberate indifference.”     McKinney, 309 F.3d at 313.          Deliberate
indifference in the state-created danger context requires both that a state actor
knew of an excessive risk to the victim’s health or safety and disregarded that
risk. Beltran, 367 F.3d at 307; McClendon, 305 F.3d at 326 n.8. “A state actor’s
actual knowledge is critical to the inquiry,” thus “[a] state actor’s failure to
alleviate ‘a significant risk that he should have perceived but did not,’ while ‘no
cause for commendation,’ does not rise to the level of deliberate indifference.”
Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
      Accepting his allegations as true, Appellant has not shown facts from
which a reasonable jury could find that Geyer had actual knowledge of the risk
created by leaving the shotgun loaded and off-safety in her unlocked bedroom.
See McClendon, 305 F.3d at 326 (finding no deliberate indifference where the
officer’s actions were likely negligent but he was not specifically aware of the
violent intentions of the informant to whom he had given a gun); Morin, 309
F.3d at 323 (finding no deliberate indifference where “the allegations in this case
do not show specific knowledge of a harm to a known victim”). In this case, it is
not enough to allege knowledge that the children were in the house and
could acquire the shotgun. Appellant must allege knowledge that the children
would acquire the shotgun. Therefore, even if the state-created danger theory
applied in this Circuit, it would not apply to this case.
      Because Appellant has failed to sufficiently allege a constitutional
violation, the district court was correct to dismiss his suit.      We therefore
AFFIRM.


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