                      United States Court of Appeals,

                               Fifth Circuit.

                                No. 97-60035.

 Blanche RANDOLPH, as Conservator of Deborah Randolph, Plaintiff-
Appellant,

                                      v.

   Al CERVANTES, Individually and in His Official Capacity as
Employee of Pine Belt Mental Health Center; Mary Phillips, In Her
Official Capacity as Employee of Pine Belt Mental Health Center;
Charles Main, Individually and in His Official Capacity as
Executive Director of Pine Belt Mental Health Center; Pine Belt
Mental Health Center;    James T. Crane, Individually and in His
Official Capacity as Commissioner of Region Twelve Mental Health
Commission;   Jack D. Triggs, Individually and in His Official
Capacity as Commissioner of Region Twelve Mental Health Commission;
Greg Breland, Individually and in His Official Capacity as
Commissioner of Region Twelve Mental Health Commission; Joe B.
Thompson, Individually and in His Official Capacity as Commissioner
of Region Twelve Mental Health Commission;          Ray Humphreys,
Individually and in His Official Capacity as Commissioner of Region
Twelve Mental Health Commission; Lela Buckley, Individually and in
Her Official Capacity as Commissioner of Region Twelve Mental
Health Commission; Alfred Lott, Individually and in His Official
Capacity as Commissioner of Region Twelve Mental Health Commission;
Kathy Evans, Individually and in Her Official Capacity as
Commissioner of Region Twelve Mental Health Commission; and Region
Twelve Mental Health Commission, a Body Politic, Defendants-
Appellees.

                               Dec. 22, 1997.

Appeal from the United States District Court for the Southern
District of Mississippi.

Before MAGILL,* SMITH and DeMOSS, Circuit Judges.

     MAGILL, Circuit Judge:

     This 42 U.S.C. § 1983 DeShaney claim is on appeal from the

district    court's    grant   of   summary   judgment   in   favor   of   the

state-actor defendants.        The law being settled in this Circuit, we

    *
        Circuit Judge of the Eighth Circuit, sitting by designation.


                                      1
affirm.

                                          I.

     Pine Belt Mental Health Center (Pine Belt) serves patients

located in Mississippi's Region XII, a geographic region including

nine counties.      In addition, Pine Belt owns and operates Pine Hill

Apartments, an apartment complex, and leases units in the complex

to patients enrolled in Pine Belt's transitional living program.

     Between 1978 and 1991, Deborah Randolph was committed to

various    Mississippi     state     mental     hospitals   on   at     least    nine

separate occasions. In December 1991, after Randolph allegedly set

fire to her mother's mobile home, Randolph's mother refused to

allow Randolph to live with her and again initiated involuntary

commitment proceedings against Randolph.

     On December 11, 1991, the Forrest County Chancery Court

conducted a sanity hearing for Randolph. Al Cervantes, one of Pine

Belt's caseworkers, testified that Randolph could remain in the

community and did not need to be involuntarily hospitalized. After

considering "[o]ut-patient care, day treatment in a hospital, night

treatment in a hospital, home health services, and custodial

placement with an individual, and others ... as alternatives to

institutionalization," I J.A. at 51 (emphasis added), the Chancery

Court   released     Randolph   on    her      own   recognizance      and   ordered

Randolph    to    attend   out-patient         treatment   at   Pine    Belt    under

Cervantes's supervision.

     After       being   released    on   her     own   recognizance,        Randolph

executed a lease for her own government-subsidized apartment.                     She


                                          2
resided at the apartment until June 1992, when she was evicted for

failing to comply with her rent agreement.

     Cervantes then helped Randolph apply for residence at Pine

Hill Apartments.   On July 1, 1992, Randolph executed a lease with

Pine Belt for a unit at Pine Hill Apartments.       The lease required

Randolph   to   abide   by   Pine   Hill   Apartments's   rules    and   to

participate in various programs sponsored by Pine Belt.           The lease

also provided that either Randolph or Pine Belt could terminate the

lease upon thirty days written notice.         Randolph's residence at

Pine Hill Apartments was voluntary, and Randolph at all times

retained the right to come and go from her unit and Pine Hill

Apartments at will.

     On August 18, 1992, Randolph found a used insulin syringe in

a diabetic neighbor's garbage receptacle.       Randolph then injected

some of that neighbor's insulin into each of her own eyes.         Despite

emergency surgery, Randolph lost one eye entirely and retained only

limited light perception in her other eye.

     Randolph's mother, acting as Randolph's conservator, filed

suit under 42 U.S.C. § 1983 against the Region XII commissioners,

Pine Belt, Pine Belt's executive director, and two Pine Belt

employees (collectively, the defendants), asserting that Randolph's

Fourteenth Amendment due process rights were violated while she was

residing at Pine Hill Apartments because the defendants did not

prevent Randolph from injuring herself. The district court granted

summary judgment to the defendants on the basis that the defendants

did not have a constitutional duty to protect Randolph from her


                                     3
self-inflicted injuries.   Randolph's mother appeals.

                                II.

     We review the district court's grant of summary judgment de

novo and examine the evidence in the light most favorable to the

nonmoving party.    See Hanks v. Transcontinental Gas Pipe Line

Corp., 953 F.2d 996, 997 (5th Cir.1992).

        To state a claim under 42 U.S.C. § 1983, "a plaintiff must

(1) allege a violation of rights secured by the Constitution or

laws of the United States and (2) demonstrate that the alleged

deprivation was committed by a person acting under color of state

law."   Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th

Cir.1994).1    In this case, Randolph's mother alleges that the

defendants had a constitutional duty to protect Randolph from her

self-inflicted injuries because either (1) a "special relationship"

existed between Randolph and the defendants or (2) the defendants

created the danger that befell Randolph.   We disagree.

                                 A.

        The Due Process Clause of the Fourteenth Amendment confers

upon an individual the right to be free of state-occasioned damage

to her bodily integrity, not the entitlement to governmental

protection from injuries caused by non-state actors.    See DeShaney

v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196-97, 109

S.Ct. 998, 1003-04, 103 L.Ed.2d 249 (1989);    Walton v. Alexander,

44 F.3d 1297, 1302 (5th Cir.1995) (en banc).    Thus, as a general


    1
     We assume, without deciding, that Pine Belt is a state actor
subject to potential liability under § 1983.

                                 4
rule, "a State's failure to protect an individual against private

violence simply does not constitute a violation of the Due Process

Clause."    DeShaney, 489 U.S. at 197, 109 S.Ct. at 1004.

     The Supreme Court has recognized an exception to this general

rule where a special relationship exists between the state and the

individual.         See    id.       at   199-200,     109    S.Ct.    at     1005-06.

Particularly, the Supreme Court has explained that a state may have

the constitutional duty to protect an individual from private

violence       if         the        state,         "through      incarceration,

institutionalization,           or   other       similar   restraint   of     personal

liberty," has limited the individual's freedom to act on her own

behalf.    Id. at 200, 109 S.Ct. at 1006.              This Court has explained,

however, that the DeShaney special relationship exists "only when

the state, by its affirmative exercise of power, has custody over

an individual involuntarily or against his will...."                        Walton, 44

F.3d at 1303.       "Absent this "special relationship,' the state has

no duty to protect nor liability from failing to protect a person

under the due process clause of the Fourteenth Amendment from

violence at the hands of a private actor."                   Id. at 1306.

     In this case, Randolph was not involuntarily confined against

her will when she resided at Pine Hill Apartments.                     The Chancery

Court released Randolph on her own recognizance and only ordered

her to obtain out-patient treatment from Pine Belt.                           Randolph

voluntarily entered into the lease with Pine Belt and became Pine

Belt's tenant.        While Randolph's lease at Pine Hill Apartments

required her to attend various Pine Belt programs, the lease also


                                             5
specifically enabled Randolph to terminate the lease upon thirty

days written notice.            Moreover, Randolph was free to come and go

from Pine Hill Apartments at any time.

     Randolph's          mother     further      contends     that    a      "special

relationship" existed between Randolph and the defendants because

Randolph's     mental          condition    made    Randolph     compliant         with

Cervantes's suggestions and reliant on Cervantes's and Pine Belt's

care and services.         However, the mere fact that Randolph's mental

condition may have made her functionally dependant on Pine Belt and

Cervantes does not transform her voluntary tenancy at Pine Hill

Apartments into an involuntary confinement creating a "special

relationship."          See Monahan v. Dorchester Counseling Ctr., Inc.,

961 F.2d 987, 992 (1st Cir.1992) (finding no special relationship

where the mental patient's dependency on his caretakers resulted

from his own mental condition and where "[h]is helplessness was not

attributable       to    the     state's   having    taken     him   into     custody

involuntarily").

     In this case, the defendants never took the affirmative step

of restraining Randolph's liberty so that she was rendered unable

to   care    for    herself,        and    the   defendants     never       held   her

involuntarily      or     against    her   will.     Accordingly,       a    "special

relationship" did not exist between Randolph and the defendants.

                                           B.

      The state-created danger theory has not been adopted in this

Circuit.     See Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412,

1415 (5th Cir.1997) (en banc);             Piotrowski v. City of Houston, 51


                                           6
F.3d 512, 515 (5th Cir.1995).       However, even if we were to adopt

this theory, Randolph's mother could not recover. To prevail under

the state-created danger theory, "[t]he environment created by the

state actors must be dangerous;         they must know it is dangerous;

and, to be liable, they must have used their authority to create an

opportunity that would not otherwise have existed for the third

party's crime to occur."       Johnson v. Dallas Indep. Sch. Dist., 38

F.3d 198, 201 (5th Cir.1994). "The key to the state-created danger

cases ... lies in the state actors' culpable knowledge and conduct

in affirmatively placing an individual in a position of danger,

effectively stripping a person of her ability to defend herself, or

cutting off potential sources of private aid." Id. (quotations and

citation    omitted).    Viewing    the   evidence   in   the    light    most

favorable    to   Randolph's   mother,    the   defendants      allowed    and

encouraged Randolph to voluntarily reside at Pine Hill Apartments

as a tenant having the right to come and go from the premises at

any time and having the right to cancel her lease.           This will not

trigger a duty under the state-created danger theory, even if we

were to adopt such a theory.

                                   III.

     For the foregoing reasons, the district court's grant of

summary judgment is affirmed.

     AFFIRMED.




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