               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-41291
                         Summary Calendar



MARY R. SHEERAN,

                                           Plaintiff-Appellant,

versus

JAMES SCHOEPNER, Chief in his official
capacity as Police Chief; CITY OF
HARLINGEN; JOE HILDRETH, in his official
capacity as police investigator,

                                           Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                       USDC No. B-98-CV-20
                      --------------------

                        September 30, 1999

Before KING, Chief Judge, and JOLLY and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Mary R. Sheeran appeals the district court’s dismissal of her

complaint pursuant to Fed. R. Civ. P. 12(b)(6).         Her amended

complaint named as defendants Police Chief James Schoepner, Officer

Joe Hildreth, and the City of Harlingen, Texas.    She alleged that

in violation of the Fourth and Fourteenth Amendments, Schoepner and

Hildreth unreasonably failed to enforce a protective order she

obtained in response to violence by her ex-husband.    She alleged

     *
        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that this opinion should not be published and is not precedent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. 98-41291
                                      -2-

that the City of Harlingen inadequately trains its police officers

about     domestic   violence      and     discriminatorily    provides      less

protection to victims of domestic assaults compared to victims of

other assaults.

     The defendants moved to dismiss the complaint.                 A magistrate

judge recommended that the motion to dismiss be granted.                       He

observed that the Due Process Clause of the Fourteenth Amendment

imposes    no   general   duty     on    government     officials    to   protect

individual citizens from crime.               He noted, however, that the

Government may have an affirmative duty to protect persons with

which it has a “special relationship.”            Because Sheeran was never

involuntarily confined by the Government, the magistrate determined

that no “special relationship” existed between Sheeran and the

individual defendants.      The magistrate recommended that Sheeran’s

claim against the City of Harlingen be dismissed because no due

process violation could be shown.

     Sheeran      filed    objections        to   the     magistrate      judge’s

recommendation.      She argued that, for purposes of the Due Process

Clause, a “special relationship” with the defendants had been

created by the Violence Against Women Act (VAWA).                   The district

court disagreed. After conducting a de novo review, it adopted the

magistrate      judge’s   Report     and     Recommendation    and     dismissed

Sheeran’s complaint.

     We review de novo a district court’s dismissal of a complaint.

Capital Parks, Inc. v. Southeastern Adver. & Sales Sys., Inc., 30

F.3d 627, 629 (5th Cir. 1994).             Such a dismissal will be upheld

“only if it appears that no relief could be granted under any set
                                 No. 98-41291
                                      -3-

of facts that could be proven consistent with the allegations.”

Id. (citation omitted).          All well-pleaded facts are accepted as

true and are viewed in the light most favorable to the plaintiff.

Id.

      The appellees argue that Sheeran waived her arguments by not

objecting on those bases to the magistrate judge’s recommendation.

The appellees are mistaken.          The district court made a “de novo

review of the entire file.”          Appellate review is thus preserved.

See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th

Cir. 1996) (en banc) (noting that the court “ordinarily will not

hold that a point reviewed de novo by the district judge was not

objected to before it was so reviewed by that judge”).

      Sheeran now argues that the district court erred in dismissing

her   complaint      because   she   alleged    a   viable   equal   protection

argument that she was treated differently because of her sex.                Her

complaint, however, did not indicate that she was pursuing any such

claim.     Although      the   complaint       repeatedly    referred   to   the

Fourteenth Amendment and explicitly invoked the Due Process Clause,

it never explicitly invoked the Equal Protection Clause.                     In

describing how the Fourteenth Amendment was violated, the complaint

referred to the defendants’ “failure to act,” their “unreasonable

conduct,” and their “failure to intervene.”             There is no argument

that the defendants treated Sheeran differently from the way they

treated male victims of domestic violence, just an argument that

all   victims   of    domestic   violence,      including    her   ex-husband’s

teenage son, received poor treatment from the defendants.
                                    No. 98-41291
                                         -4-

       In a case involving a claim that a municipality had a policy

of discouraging arrests in domestic violence cases, we noted that

the Due Process Clause does not make it illegal for a state

official     to    stand     “‘by    and     [do]    nothing       when    suspicious

circumstances dictate[] a more active role.’”                    McKee v. City of

Rockwall,    Tex.,    877    F.2d     409,    413    (5th   Cir.    1989)    (quoting

DeShaney, 489 U.S. at 203).            We held that a due process claim of

this type is not transformed “into an Equal Protection claim via an

allegation that state officers exercised their discretion to act in

one incident but not in another.”                 McKee, 877 F.2d at 413.            To

raise an equal protection claim on such facts, the plaintiff must

allege that a “non-arrest was the result of discrimination against

a protected class.”         Id. at 414.      Sheeran made no such allegation.

No    set   of    facts    that   could      be   proved    consistent      with    the

allegations of the complaint shows an equal protection violation.

The   complaint     thus    failed    to     state   a   claim     under    the    Equal

Protection Clause.         Capital Parks, 30 F.3d at 629.

       Sheeran argues that the district court improperly dismissed

her due process claim. To circumvent the general rule of DeShaney,

that state officials do not ordinarily have an affirmative duty to

protect citizens from third parties, she argues that (i) she was in

the    “constructive       custody”    of     the    defendants      and    (ii)    the

defendants’ failure to enforce her protective order constituted a

“state-created danger.”           See DeShaney, 489 U.S. at 199-200 (noting

an exception to the general rule “when the State takes a person

into its custody and holds him there against his will”).
                           No. 98-41291
                                -5-

     Nowhere in the complaint did Sheeran invoke the “state-created

danger” theory or argue that the defendants’ conduct, such as

Officer Hildreth’s statement that Sheeran should never have gotten

a gun, amounted to constructive custody. Just as Sheeran failed to

plead any equal protection claim in her complaint, Sheeran failed

to plead the particular due process arguments she presses on

appeal.   See Capital Parks, 30 F.3d at 629.

     AFFIRMED.
