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

                                                                            FILED
                                                                         February 1, 2008

                                       No. 07-40227                   Charles R. Fulbruge III
                                                                              Clerk

REGINA KELLEY, Individually and as Guardian and Next of Friend of IMARI
KELLEY and JADEN KELLEY; BYRON HALL,

                                                  Plaintiffs-Appellants,
v.

CITY OF WAKE VILLAGE, TEXAS; CHIEF OF POLICE TONY ESTES, In his
Individual and Official Capacity; OFFICER RUSSELL CRAWFORD, In his
Individual and Official Capacity,

                                                  Defendants-Appellees.



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 5:04-CV-137


Before GARZA, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Regina Kelley (“Kelley”) and her brother, Byron Hall, sued the City of
Wake Village, Texas (“the City”), Chief of Police Tony Estes, and Officer Russell
Crawford (collectively “Defendants”) alleging, inter alia, that the West Village
Police Department (“WVPD”) failed to follow state law as well as departmental
policy regarding domestic violence victims, and that, as a result, her rights


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40227

under the Equal Protection Clause of the Fourteenth Amendment were violated.
Defendants moved for summary judgment; their motion was granted by the
district court. We affirm.
                I. FACTUAL AND PROCEDURAL HISTORY
      We recite the facts in the light most favorable to Plaintiffs, the party
opposing summary judgment. On November 3, 2002, Officer Russell Crawford
of the Wake Village Police Department (“WVPD”) responded to a dispatch of
possible family violence at the home of Regina and Jerod Kelley, a married
couple who lived in Wake Village, a small community just outside of Texarkana,
Texas.   Kelley complained to Officer Crawford that Jerod had physically
assaulted her while her children were present. In her deposition, Kelley testified
Officer Crawford told her to shut up or else her children would be taken away
from her. However, Officer Crawford arrested Jerod that evening based on an
outstanding warrant, although Jerod was released that same night. Two days
later, he was arrested again on an assault charge stemming from the November
3 incident. Shortly thereafter Kelley and Jerod separated, and Hall moved into
the residence. Kelley also alleges that she had a protective order filed against
Jerod.
      On January 21, 2003, Kelley contacted the WVPD and reported that Jerod
was sitting outside of her residence in a vehicle, in violation of the protective
order. By the time the police arrived, Jerod was no longer present. Ten days
later, Kelley called the WVPD and reported that Jerod had put sugar in the gas
tank of her car. The WVPD officer who responded advised her that the car was
community property and that no crime had been committed. Kelley called back
later that night, stating that Jerod was unlawfully in front of the house. Pam
Bradley, Kelley’s mother, testified in her affidavit that a WVPD officer told
Kelley that she could either stay in the house with Jerod or take the children
and leave. Bradley also testified that the officer told Kelley that if she did not


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stop calling the police department her children would be taken away from her
by the Department of Human Services. On February 10, 2003, Kelley called the
police after Jerod had pointed his finger in a gun-like manner at her head and
threatened that he was going to shoot her. Susan Kelley, Jerod’s mother,
testified in her affidavit, that the WVPD officer who responded told Kelley that
if she continued calling about domestic violence the Department of Human
Services would take her children away.
      On February 13, 2003, Jerod was arrested for assaults by threat, and that
same day, Justice of the Peace Nancy Tallet issued a temporary emergency
protective order for Kelley against Jerod, which was entered in the Texas Crime
Information Center/National Crime Information Center (“TCIC/NCIC”)
database. However, the WVPD never received a copy of the order, and it is
undisputed that the WVPD computer system does not have access to the
TCIC/NCIC criminal reporting system database.
      On February 28, 2003, a WVPD officer responded to a dispatch of criminal
trespass at the Kelleys’ residence. Even though Jerod was not found on the
premises, the officer noted that a temporary protective order had been issued.
On March 22, 2003, Officer Crawford responded to a dispatch that Jerod had
violated the protective order by coming to the residence and harassing Kelley,
although once again, Jerod was not found on the premises.
      On April 11, 2003, Judge Leon Pesek, Jr. of the Bowie County Court issued
another protective order for Kelley against Jerod; this ordered was forwarded to
Chief Estes on April 14, 2003. During this time period and over the following
weeks, Kelley made several other phone calls to the WVPD complaining about
Jerod’s threatening and harassing behavior, which was in violation of the
protective orders.
      On July 27, 2003, at approximately 11:30 PM, Kelley called the WVPD
explaining that Jerod had come to the residence, grabbed her by the neck, and


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threatened to kill her if she ever left him. Hall fought with Jerod, and Jerod
then left the residence. Officer Hadaway searched the immediate area, but could
not locate Jerod. Officer Hadaway told Kelley to stay in the house and call 911
if Jerod returned. He also reported a violation of the protective order before he
began searching for Jerod.
      Approximately one hour later, WVPD Officers Hadaway and Shutte were
dispatched back to the residence regarding a call of vandalism in progress.
When they arrived, they found a man, Booker Williams, shot and dead in the
street in front of the house. Kelley had also been shot twice and was wounded,
and the officers discovered that Jerod was in the house and was holding four
children hostage. Chief Estes instructed the officers to contact the Texarkana
Metro SWAT and Hostage Negotiations Team. At 1:23 PM on July 28, 2003, the
SWAT team entered the house and safely retrieved the children; Jerod
committed suicide in front of the children. While Kelley was hospitalized, the
Department of Human Services placed her children in foster care.
      Kelley subsequently brought suit against Defendants pursuant to 42
U.S.C. §§ 1983 and 1988, alleging: (1) a substantive due process claim based on
a “special relationship” between her and Defendants, imposing an affirmative
duty to protect; (2) an equal protection claim based on law enforcement policies
and practices towards victims of domestic violence; (3) negligence and gross
negligence claims under the Texas Tort Claims Act; and (4) a claim of intentional
infliction of emotional distress. On March 9, 2005, the district court dismissed
all of Kelley’s claims except her gender-based denial of equal protection against
the City and the two named defendants in their official capacities. Defendants
then moved for summary judgment on the remaining claim.
      Defendants contested Kelley’s argument that the WVPD selectively denied
its police protective services to women who had been victims of domestic
violence, highlighting that no other woman, besides Kelley, complained of


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inadequate police protection from family violence during the relevant time
period. Officer Crawford presented deposition testimony where he discussed the
family violence training he had received, and explained the protocol that officers
are supposed to follow when there is an allegation that a protective order has
been violated.1 He testified that he was aware of the history of domestic violence
between Regina and Jerod Kelley, even though he stated he was not aware of the
protective order when he responded to the call on March 22, 2003. Chief Estes
testified that he has always ensured that all of his officers have complied with
the training requirements established by the Texas Commission of Law
Enforcement Officer Standards and Education (“TCLEOSE”). He agreed that
in domestic violence situations, the WVPD is legally required to submit incident
reports to the Department of Public Safety (DPS), whether or not an arrest is
effectuated, and he acknowledged that such reports were not always filed
regarding the Kelleys.
       Defendants also presented the expert report of Albert Rodriguez, the
Commander of the Training Academy for the DPS. In his report, Rodriguez
provided statistics that the WVPD received 419 calls2 from August 2000 through
July 13, 2003, 44 of which were for family violence. 58 people were arrested or
summoned during this period, 24 of which were arrested for family violence.
Rodriguez interpreted the data to indicate that approximately 41% of all arrests

       1
         Specifically, he testified that first the officer must verify the existence of the order.
If there is in fact a protective order and the alleged offender is on the scene, the officer can
arrest him. If the alleged offender is not present, the officer must use reasonable means to
track him down, particularly if the officer is aware of a previous history of family violence.
        Further, he testified that if the officer believes the allegations of the victim the officer
is required to take a report from the victim and get statements and warrants. Officer
Crawford acknowledged that Chief Estes never provided any instruction about how much
effort should be used to locate an alleged offender, and also that he never received any training
regarding the Wake Village family violence policy.
       2
         In conducting his analysis, Rodriguez only looked at the following offense categories:
assault, criminal mischief, criminal trespass, and family and domestic violence. He received
his data by looking at the police chief’s monthly reports (“PCMRs”).

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were for family violence, and approximately 54% of all family violence calls
resulted in arrests. He also stated that all offenders arrested for family violence
were male, all the victims were female, and that 20 of the 48 cases that were
referred for prosecution in the relevant time period were for family violence.
Based on these numbers, he concluded that there was no factual basis for
Kelley’s allegation that the WVPD had any discriminatory customs or policies
towards women who have been victims of family violence. Further, he argued
that even if the procedural violations of Texas law alleged by Kelley were true
and even if she could prove that certain officers failed to enforce the protective
orders, there is no evidence that WVPD had a custom or policy approving or
condoning such behavior.
      In response, Kelley argued that the evidence establishes that the WVPD
did not enforce the protective orders which had been issued because not only
should Jerod have been investigated, interviewed, or arrested after he
repeatedly violated the protective orders, but also the WVPD failed to fill out
Family Violence DPS reports, as they were required to do, for many of the
incidents leading up to July 27, 2003. She asserted that this lack of enforcement
indicates a custom, policy, or practice of Defendants to provide less police
protection to victims of domestic assault than other victims. Kelley also provided
the expert report and deposition of Sandy Kline, a retired sergeant with the
Houston Police Department. According to Kline, the WVPD repeatedly failed to
follow numerous provisions of the then-existing Texas Penal Code, Family Code,
and Code of Criminal Procedure, as well as its own departmental policies
regarding the handling of family violence incidents. After reviewing a number
of offense reports prepared by the WVPD, Kline reported that the WVPD had a
“consistent pattern [of] ignoring or minimizing allegations of family violence,”
and that such a pattern was evident in the reports related to the Kelleys. Kline
also took issue with the data used by Rodriguez, contending that he


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underreported the total number of arrests and calls within the relevant time
period.3 She concluded that the WVPD’s “practices, customs, and unwritten
policy in the disparate treatment of family violence victims has a chilling effect
of denying equal protection of the law to family violence victims.”
       The district court granted Defendants’ motion, and ordered all of Kelley’s
claims to be dismissed with prejudice. Kelley timely filed her notice of appeal.
                                   II. DISCUSSION
A.     Standard of Review
              We review the district court’s grant of Defendants’ motion for
summary judgment de novo. See McKee v. City of Rockwall, 877 F.2d 409, 410
(5th Cir. 1989).     Summary judgment is appropriate where “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV.
P. 56(c). “All reasonable doubts and inferences must be resolved in the light
most favorable to the non-movant,” McKee, 877 F.2d at 410 (internal citation
omitted).
B.     Municipal Liability
       The Supreme Court has explained that official-capacity suits should be
treated as suits against the government entity. Hafer v. Melo, 502 U.S. 21, 25
(1991). In order for municipal liability to be imposed under § 1983 three
elements must be proven: a policymaker, an official policy, and a violation of
constitutional rights whose “moving force” is the policy or custom. Piotrowski
v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell v. Dep’t of
Social Sciences, 436 U.S. 658 (1978).            Caselaw has consistently rejected


       3
        Specifically, she argued that the Uniform Crime Reports (UCRs) that were sent to the
DPS indicate that a larger number of people were arrested, and therefore the actual
percentage of family violence arrests by the WVPD was actually substantially lower.

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municipal liability predicated on respondeat superior, and instead, this Court
has held that “the unconstitutional conduct must be directly attributable to the
municipality through some sort of official action or imprimatur; isolated
unconstitutional actions by municipal employees will almost never trigger
liability.”   Id. (internal citations omitted).   Because no evidence has been
presented that Officer Crawford was, at any time relevant to this proceeding, a
policymaker in the WVPD, we affirm the district court’s dismissal of the claim
against him in his official capacity.
C.     Equal Protection Claims
       Before this Court, Kelley presents two arguments for why the district
court’s grant of summary judgment to Defendants was in error. First, she
asserts that the WVPD failed to follow state law regarding domestic violence
victims, and therefore it failed to enforce her protective order against Jerod.
Second, she contends that her right to equal protection as a victim of domestic
violence was violated as a “class of one” and that there was no rational basis for
the treatment. We will examine each argument in turn.
       1.
       In DeShaney v. Winnebago County Department of Social Services, 489 U.S.
189, 197 (1989), the Supreme Court held that “a State’s failure to protect an
individual against private violence does not violate the Due Process Clause.” In
that same opinion, however, the Court also recognized that “a State may not, of
course, selectively deny its protective services to certain disfavored minorities
without violating the Equal Protection Clause.” Id. at 197 n.3. While we have
warned that plaintiffs cannot make an “end-run” around DeShaney by simply
attempting to convert their due process claims into equal protection ones,
Beltran v. City of El Paso, 367 F.3d 299, 304 (citing McKee, 877 F.2d at 413), in
Shipp v. McMahon, 234 F.3d 907, 914 (5th Cir. 2000), overruled in part on other
grounds by, McClendon v. City of Columbia, 305 F.3d 323, 328-29 (5th Cir. 2002)

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(en banc), we “acknowledged that certain intentionally discriminatory policies,
practices, and customs of law enforcement with regard to domestic assault and
abuse cases may violate the Equal Protection Clause under the DeShaney
footnote.” Beltran, 367 F.3d at 304. In Shipp, we held that in order for a
plaintiff to sustain a gender-based equal protection claim, she must show: “(1)
the existence of a policy, practice, or custom of law enforcement to provide less
protection to victims of domestic assault than to victims of other assault; (2) that
discrimination against women was a motivating factor; and (3) that the plaintiff
was injured by the policy, custom, or practice.” 234 F.3d at 914.
      Accordingly, Kelley was first required to show the existence of a policy,
practice, or custom of law enforcement to provide less protection to victims of
domestic assault than to victims of other assault. To that end, she argues that
the statistics used by Commander Rodriguez, WVPD’s expert, are not only
inaccurate, but also that they present a distorted picture of arrests for domestic
violence, enforcement of protective orders, and the treatment of domestic
violence victims. She encourages this Court to rely on the data offered by her
own expert, Kline, which she contends proves that the WVPD had an unwritten
policy of minimizing allegations of domestic violence.         While we are not
convinced that Kelley has proven that women were “systemically shortchanged
or deprived of effective law enforcement response by the City’s policies,” Beltran,
367 F.3d at 305, taking the evidence in a light most favorable to her, Kelley’s
evidence raises a genuine issue of material fact as to whether the WVPD failed
to follow state law regarding domestic violence victims.         In reaching this
conclusion, we are swayed by Kline’s report, which asserts that WVPD police
officers consistently failed to generate offense reports, failed to report family
violence to the DPS, and failed to conduct the primary duties of police officers as
mandated by the Family Violence Prevention provisions of the Texas Code of
Criminal Procedure.

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      Nevertheless, ultimately we reject Kelley’s claim because she failed to
prove the second element of her gender-based equal protection claim: that
discrimination against women was a motivating factor. The Supreme Court has
defined “discriminatory purpose” as being “more than intent as volition or intent
as aware of consequences. It implies that the decisionmaker . . . selected or
reaffirmed a course of action at least in part ‘because of,’ not merely ‘in spite of’
its adverse effects upon an identifiable group.” Personnel Administrator v.
Feeney, 442 U.S. 256, 279 (1979).
      Kelley contends that Kline’s expert report and findings provide evidence
of discriminatory purpose. However, “[i]t is a truism that under current Equal
Protection Clause jurisprudence, a showing of disproportionate impact alone is
not enough to establish a constitutional violation . . . . The mere existence of
disparate treatment—even widely disparate treatment—does not furnish
adequate basis that discrimination was [impermissibly] motivated.” Soto v.
Flores, 103 F.3d 1056, 1067 (1st Cit. 1997) (internal quotation marks and
citations omitted). Even though Kline’s report highlights the various ways in
which the WVPD failed to follow Texas state law regarding domestic violence
victims, nothing she presents demonstrates a desire by the police department to
discriminate    against   women.        Without    this   showing    of   “invidious
discrimination,” Shipp, 234 F.3d at 914, Kline’s findings are insufficient to
satisfy the second element of Kelley’s equal protection claim.
      Further, although Kelley presented evidence that various police officers
threatened that her children would be taken away from her by the Department
of Human Services if she continued calling, such evidence is also insufficient.
As the district court wrote:
      While the comments may be deemed hurtful toward the Plaintiff,
      the equal protection claim that is before the Court is based on the
      alleged discriminatory impact of a policy or custom of Defendants to
      provide less police protection to victims of domestic assault than

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                                  No. 07-40227

      other assault victims. The evidence relied upon by Plaintiff is not
      material on the ultimate issue of whether victims of family violence
      received less protection than those of other crimes or that
      Defendants discriminated purposefully with respect to the service
      of protective orders in domestic violence cases.

We agree, and accordingly, hold that Kelley has failed to establish that
discrimination against women was a motivating factor. In light of that, we need
not analyze her claim under the third element, namely whether she was injured
by the policy, custom, or practice.
      2.
      Next, Kelley asserts that a genuine issue of material fact exists to show
that her constitutional rights to equal protection as a victim of domestic violence
were violated as a “class of one” and that there was no rational basis for that
treatment. We find her argument unpersuasive.
      In Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), the Supreme
Court recognized that equal protection claims can be brought by a “‘class of one,’
where the plaintiff alleges that she has been intentionally treated differently
from others similarly situated and that there is no rational basis for the
difference in treatment.” To prevail on such a cause of action, a plaintiff does not
have to allege membership in a protected class or group. Shipp, 234 F.3d at 916.
However, this Court requires a plaintiff “to present evidence that the defendant
deliberately sought to deprive him of the equal protection of the laws for reasons
of a personal nature unrelated to the duties of the defendant’s position.” Id.
(quoting Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000)).
      At most, Kelley has alleged that several WVPD officers made some
inappropriate comments to her; she does not dispute that the WVPD consistently
responded to the calls she made between November 2002 to July 2003, and she
presented no evidence that the WVPD treated her, in any meaningful way,
different than any other domestic violence victim. This case is distinguishable

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from Shipp, where Cherie Shipp made a much stronger showing for her “class
of one” claim. Shipp presented evidence which concretely raised the possibility
that her mother-in-law’s hostility towards her influenced the level of protection
she received from the police department, since her mother-in-law was a deputy
at the department who was “intimately involved” in the situation that led to the
filing of Shipp’s lawsuit. 234 F.3d at 916-17. Here, Kelley’s evidence does not
rise to such a level. Accordingly, she has failed to demonstrate that Defendants
“deliberately sought to deprive [her] of the equal protection of the laws.”
                              III. CONCLUSION
      While the facts of this case are undeniably tragic, Kelley has failed to
make out the elements for her equal protection claims. Therefore, the judgment
of the district court is AFFIRMED.




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