                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-20467
                         Summary Calendar



                         GLORIA SWIDRISKI,
                     as Representative of the
                  Estate of Marc Kajs, Deceased

                                            Plaintiff - Appellant,


                              VERSUS


                          CITY OF HOUSTON

                                              Defendant - Appellee.




           Appeal from the United States District Court
                for the Southern District of Texas
                        (No. H-00-CV-1074)

                        December 12, 2001
Before DeMOSS, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*

      Plaintiff-Appellant Gloria Swidriski brings this suit on

behalf of her deceased son Marc Kajs, alleging that the City of

Houston police department’s refusal to intervene in an abusive

relationship involving Kajs and his partner, Ilhan Yilmaz,



  *
    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opinion should not be published and is not precedent except under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.
resulted in Kajs’s death.   The suit is brought under 42 U.S.C. §

1983, Appellant alleging that the City violated Kajs’s right to

be free from state-created danger and irrational disparate

treatment.   The district court granted the City’s motion to

dismiss, concluding that the state-created danger theory was not

yet viable in this circuit and that Kajs was not entitled to

equal protection because he was not a member of a suspect class.

We affirm in part, reverse in part, and remand.

                              BACKGROUND

     The material facts are undisputed.    Yilmaz shot and killed

Kajs and then himself one Sunday afternoon outside the restaurant

where Kajs worked.   For some eight months before, the two had

been in an abusive relationship, with Yilmaz doing the abusing.

Kajs several times sought protection from the City police

department but to no avail.    Kajs in July 1997 moved out of the

apartment he and Yilmaz were sharing, shortly after which

Yilmaz’s threats intensified.    In the days that followed, Kajs

reported three incidents of threatening conduct by Yilmaz to

police.

     Sometime before Yilmaz had received a permit to carry a

concealed handgun.   In December 1997 Yilmaz purchased two guns at

a retail outlet, the police department having approved the sale

despite the complaints that had been lodged against him.

Yilmaz’s threatening conduct apparently subsided until March



                                 -2-
1998.     About that time, Yilmaz showed up at Kajs’s place of work

with a silhouette target with holes shot through and told Kajs he

was next.     Kajs twice more sought the help of City police but

again to no avail.     Yilmaz killed Kajs the same month.

                              DISCUSSION

      We review the district court’s ruling on a motion to dismiss

de novo.     See Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d

278, 284 (5th Cir. 1993).     When deciding a motion to dismiss

under Fed. R. Civ. P. 12(b)(6), the district court must accept

the plaintiff's factual allegations as true and resolve doubts as

to the sufficiency of the claim in the plaintiff’s favor.     See

id. The complaint should not be dismissed unless it appears

“beyond a doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.”     Id. at

284-85 (quoting Conley v. Gibson, 355 U.S. 41 (1957))(emphasis in

original).

                                  I.

      We expressly adopted the state-created danger theory in

McClendon v. City of Columbia, 258 F.3d 432, 436 (5th Cir.

2001).1    To succeed on such a claim, plaintiff must show that


  1
     We note that a petition for rehearing en banc has been filed
in McClendon, and that the Court requested a response, which has
been on file as of August 30, 2001. No action has since been taken
on the petition. Because we conclude that Appellant has failed to
state a claim under the state-created danger theory, we need not
await McClendon’s resolution before filing this opinion.

                                  -3-
defendants created a dangerous environment; that they knew it was

dangerous; and that they were deliberately indifferent to

plaintiff’s plight.   See id. at 438.   Appellant here has not made

out the first element.   In a case much like the one at bar, one

in which the City of Houston was also a defendant, we held that

certain police officers’ having protected plaintiff’s assailant

did not make the City liable, the City not having created the

abusive relationship between plaintiff and her assailant.     See

Piotrowski v. City of Houston, 237 F.3d 567, 584 (5th Cir. 2001).

By way of comparison, in McClendon we held that evidence of a

police officer’s having given a gun to plaintiff’s assailant, an

individual known to be on the brink of violence and who could not

otherwise obtain a firearm, was sufficient to survive a summary

judgment motion.   258 F.3d at 438.   Having liberally construed

Plaintiff’s amended complaint, we do not see any suggestion that

City officials created the situation that led to Kajs’s death.

Indeed, Appellant plainly states that Yilmaz’s abusing Kajs

predated Kajs’s first complaint to the police department.    And

nowhere is there any suggestion that the conduct of City

officials somehow enabled Yilmaz to commit the act of violence he

did whereas before he could do no worse than physically assault

Kajs.

     We also conclude that the police department’s failure to

inhibit Yilmaz’s purchase of the murder weapon does not subject


                                -4-
the City to liability.    It does not follow that the breakdown of

the background screening process itself was responsible for

creating the dangerous environment where handguns were made

available to persons with a violent propensity.    That condition

obviously preexisted any City involvement.     Cf. Johnson v. Dallas

Indep. Sch. Dist., 35 F.3d 198, 201 (5th Cir. 1994)(holding that

school district was not liable for shooter’s having entered

school without I.D. or not having gone through metal detector).

Further, we are not inclined to assign liability where to do so

would discourage the taking of preventive safety measures.       Here,

holding the City responsible for a lapse in its background

screening process would run contrary to that policy.

     Though we conclude that Appellant has failed to state a

claim for state-created danger, we are not unmindful of her

request that she be permitted to file a second amended complaint.

The usual custom upon granting a motion to dismiss is to allow an

opportunity to replead.     See Waste Control Spec., L.L.C. v.

Envirocare of Tex., Inc., 199 F.3d 781, 786 (5th Cir. 2000).       But

leave need not be granted where it appears that plaintiff has

made his “best case.”     See Jones v. Greninger, 188 F.3d 322, 327

(5th Cir. 1999).   Appellant here twice asked the district court

for permission to amend, and she has asked us for leave as well.

Appellant’s burden under her theory of recovery was well known.

Since she asserted state-created danger in her first complaint,


                                  -5-
Appellant knew that at a minimum she would have to allege that

the City was responsible for the danger that led to Kajs’s death.

Appellant has tried to meet this charge only by pointing to the

police department’s repeated refusals to intervene between Kajs

and Yilmax.   But this kind of inaction cannot create danger, as

we noted above.   Believing that Appellant would have urged that

the City officials’ positive conduct caused Kajs’s death if in

fact it had, we conclude that permitting further amendment is not

warranted.

                                  II.

     The district court’s dismissal of Appellant’s equal

protection claim was error, however.    The Fourteenth Amendment

guarantees that states treat similarly situated individuals

alike.   Certain kinds of state actions have a long history of

being particularly invidious, so with respect to such actions we

afford states little deference.    But simply because a state has

not historically treated certain persons differently than others

does not mean it can discriminate without at least offering a

rational basis for its actions.     See Hilliard v. Ferguson, 30

F.3d 649, 652 (5th Cir. 1994).    Here, the district court

concluded that because Kajs was not a member of a suspect class

he was not entitled to equal treatment as a matter of law.

Plaintiff alleges that it was the police department’s policy to

afford less protection to a victim of domestic violence in a

homosexual relationship; that animus was at least a motivating

                                  -6-
factor for the department’s disparate treatment; and that Kajs

was injured by this conduct.   That is sufficient to state an

equal protection claim.   See Shipp v. McMahon, 234 F.3d 907, 914

(5th Cir. 2000).

                            CONCLUSION

     For the foregoing reasons, we affirm the district court’s

dismissal of Appellant’s claim for state-created danger, but we

reverse dismissal of the equal protection claim and remand for

further proceedings.




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