     Case: 09-41072     Document: 00511252649          Page: 1    Date Filed: 10/04/2010




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

                                                  FILED
                                                                           October 4, 2010

                                       No. 09-41072                         Lyle W. Cayce
                                                                                 Clerk

IDELMA ANA SAENZ; YOLANDA RAMIREZ; GLORIA SAENZ, Individually
and as Next Friend of Diana Figueroa; DIANA FIGUEROA; JESUS HENRY
SAENZ; JESUS SAENZ, Individually and as Administrator of the Estates of
Dominga Saenz and Nelson Saenz,

                                                   Plaintiffs - Appellants
v.

CITY OF MCALLEN; ARMANDO HERNANDEZ; HUMBERTO RESENDEZ;
ORLANDO OLIVAREZ; YASSAR HASSAN,

                                                   Defendants - Appellees




                    Appeal from the United States District Court
                         for the Southern District of Texas


Before JOLLY, D EMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
        Appellants filed suit against the City of McAllen (the City) and the
individual defendants (collectively “Appellees”) for violations of 42 U.S.C. § 1983
and Texas state law, arising from the deaths of Dominga Saenz and Nelson
Saenz. The magistrate judge granted the Appellees’ motions for summary
judgment on the § 1983 claims and motion to dismiss the state law claims.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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Appellants filed this appeal. Because Appellants’ theory of liability supporting
their §1983 claims against the individual police officers is not clearly established
in this circuit, we affirm the magistrate judge’s grant of summary judgment on
the basis of qualified immunity. We also affirm the magistrate judge’s grant of
summary judgment on Appellants’ municipal liability claims against the City
and its dismissal of Appellants’ state law claims.
                                               I.
       Nelson Saenz, Dominga’s son, had a history of serious mental illness and
had murdered his wife years ago.1 In the days leading up to the events in
question, Nelson’s mental health had deteriorated. He had allegedly stopped
taking his medication, acquired a gun, and threatened to kidnap certain
members of his family. On September 3, 2005, Investigator Armando Hernandez,
a 15-year veteran of the City’s police department, and his wife, Linda
Hernandez, went to Nelson’s apartment for the purpose of having him
committed.2 Linda was Dominga’s niece. Armando and Linda knew of Nelson’s
mental illness, history of violence, and deteriorating mental condition. Armando
attempted to get Nelson to come outside but Nelson refused and barricaded
himself in his apartment, telling Armando to “come back next week.” Armando
called for backup and McAllen police officers Olivarez Hassan, Humberto



       1
        Because this case involves an appeal from a grant of summary judgment, we adopt
the Appellants’ version of the facts to the extent supported by the evidence. See Stewart v.
Miss. Transp. Comm’n, 586 F.3d 321, 327 (5th Cir. 2009).
       2
         There is some discrepancy over the circumstances under which the police were
summoned to Nelson’s apartment. In their opening brief, Appellants assert that Armando was
“requested by the family of Nelson Saenz to commit Nelson to a mental health facility,” citing
to Armando’s deposition testimony, because “they knew [Armando] ha[d] been [a] police officer
with the City of McAllen for many years and because . . . Linda [ ] was a relation to the family
with some knowledge of Nelson’s previous mental illness violence, including killing his wife
with an axe.” However, in the Appellants’ Original and Amended Complaints, Appellants
alleged that they had contacted the police department directly and had no prior notice that the
Hernandezes were going to Nelson’s apartment.

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Resendez, and Yassar Hassan eventually arrived. Armando then developed a
“plan of approach” to extract Nelson from his apartment. Dominga would knock
on Nelson’s front door in an attempt to coax her son to come out of his apartment
while the police officers would remain in front of the house but out of Nelson’s
line of sight.
      Armando summoned Dominga to Nelson’s apartment. She arrived with her
daughters Yolanda Ramirez and Idelma Saenz. Armando removed Dominga
from the vehicle and pulled her to Nelson’s front door, staying behind her while
the other officers got in the “ready position.” Yolanda, realizing that Dominga
was being taken to Nelson’s door in order to extract him, yelled for the police to
move Dominga away from the entrance because Nelson had a gun. Nelson began
yelling profanities at the police officers. Dominga attempted to get Nelson to
come out of his apartment, but after no response she knelt down to pray. When
Dominga started to stand, Nelson opened his door and started shooting. The
police officers returned fire. Both Nelson and Dominga were killed in the
exchange. Dominga was shot eleven times. Nelson’s gun held only nine rounds.
Appellants submitted expert testimony evidencing that Dominga was shot at
least four times by the officers’ weapons.
      Appellants filed suit in the United States District Court for the Southern
District of Texas against the individual police officers pursuant to 42 U.S.C. §
1983 under the “state created danger theory,” alleging that the police officers
knowingly created a dangerous environment that would not have existed but for
the officers’ actions. Appellants also filed claims against the City pursuant to 42
U.S.C. § 1983, alleging that the City promoted a “shoot first, ask questions later”
policy within its police department, and filed Texas state law claims against all
Appellees for bystander recovery and violations of the Texas Torts Claims Act.
The parties consented to proceed before a magistrate judge. See 28 U.S.C. §
636(c) (2009); F ED. R. C IV. P. 73(a).

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       The City filed a motion to dismiss, inter alia, Appellants’ state law claims,
which was granted.3 Appellees filed separate motions for summary judgment on
the   various § 1983 claims, both of which were granted. Appellants timely
appealed.
                                             II.
       This court reviews the grant of summary judgment based on qualified
immunity de novo, applying the same standard as the magistrate judge. See
Mongrue v. Monsanto Co., 249 F.3d 422, 428 (5th Cir. 2001); F ED. R. C IV. P. 56.
       Section 1983 provides a cause of action for individuals who have been
“depriv[ed] of any rights, privileges, or immunities secured by the Constitution
and laws” of the United States by a person or entity acting under color of state
law. 42 U.S.C. § 1983 (2003). The doctrine of qualified immunity protects
government officials from liability for civil damages insofar as their conduct (1)
does not violate a constitutional right and (2) was not objectively unreasonable
in light of clearly established law at the time of the violation. Pearson v.
Callahan, 129 S. Ct. 808, 815-16 (2009). This court may address either prong
first. Id. at 818 (overruling in part Saucier v. Katz, 533 U.S. 194 (2001)).
                                             A.
       When determining whether a constitutional right was clearly established,
this court asks whether the right was clearly established at the time of the
conduct, which for this matter is 2005. See Lytle v. Bexar Cnty., Tex., 560 F.3d
404, 417 (5th Cir. 2009). A right is clearly established when “the contours of the
right [are] sufficiently clear [such] that a reasonable official would understand
that what he is doing violates that right.” Wernecke v. Garcia, 591 F.3d 386, 392
(5th Cir. 2009) (quotations and citation omitted). Our inquiry focuses on whether
the officials were on notice that their conduct violates clearly established law

       3
       The magistrate judge also dismissed Appellees’ state law claims against the individual
defendants which has not been appealed.

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and that the state of the law provided fair warning that their conduct was
unconstitutional. See        Hope v. Pelzer, 536 U.S. 730, 740-41 (2002).                  “[A]
defendant’s acts are held to be objectively reasonable unless all reasonable
officials in the defendant’s circumstances would have then known that the
defendant’s conduct violated the United States Constitution or the federal
statute as alleged by the plaintiff.” Thompson v. Upshur Cnty., Tex., 245 F.3d
447, 457 (5th Cir. 2001) (emphasis in original).
       Appellants allege a “state created danger theory” as the basis of liability
for their § 1983 claims against the individual defendants. Generally, “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 Cnty. Dep’t of Soc. Servs., 489 U.S. 189,
197 (1989)). However, the Supreme Court has held that where the state,
“through the affirmative exercise of its powers, acts to restrain an individual’s
freedom . . . ‘through incarceration, institutionalization, or other similar
restraint of personal liberty,’ the state creates a ‘special relationship’ between
the individual and the state which imposes upon the state a constitutional duty
to protect that individual from dangers, including, in certain circumstances,
private violence.” Id. (quoting DeShaney, 489 U.S. at 200). Some circuit courts
have read DeShaney to imply a second exception, the state created danger
theory, to the general rule against state liability for private violence.4 In this


       4
         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 Cnty. Sheriff’s Office, 329 F.3d 1300, 1306-07 (11th Cir.
2003); Ruiz v. McDonnell, 299 F.3d 1173, 1182-84 (10th Cir. 2002); Kallstrom v. City of
Columbus, 136 F.3d 1055, 1066-67 (6th Cir. 1998); Kneipp v. Tedder, 95 F.3d 1199, 1201, 1208
(3d Cir. 1996); Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir. 1993); Freeman v. Ferguson,
911 F.2d 52, 54-55 (8th Cir. 1990); Wood v. Ostrander, 879 F.2d 583, 589-90 (9th Cir. 1989);
Butera v. Dist. of Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001); but see Velez-Diaz v. Vega-
Irizarry, 421 F.3d 71, 80 & n.3 (1st Cir. 2005) (noting that the First Circuit has discussed the
state created danger theory but never found it actionable on the facts alleged) (quotations
omitted); Pinder v. Johnson, 54 F.3d 1169, 1175 (4th Cir. 1995) (finding that the state created

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circuit, the availability of the state created danger theory as the basis of liability
for a § 1983 claim is far less certain. In Leffall v. Dallas Independent School
District, 28 F.3d 521, 530-32 (5th Cir. 1994), this court discussed the state
created danger theory and set forth the elements necessary to establish the
claim as a basis for liability, but ultimately held that even if the state-created
danger theory was constitutionally sound, the plaintiff failed to meet the
necessary elements. Subsequent § 1983 cases predicated on the state created
danger theory similarly pretermit the issue.5
       On two occasions this court explicitly adopted the state created danger
theory but was ultimately reversed. See McClendon, 258 F.3d at 436 (noting that
the Fifth Circuit had “continued to recognize the existence of the theory” and
thus applying the theory), rev’d en banc, 305 F.3d at 325 (holding that “neither
this court nor the Supreme Court has yet determined whether a citizen has a


danger theory did not apply absent a custodial relationship).
       5
          See, e.g., Bustos v. Martini Club, Inc., 599 F.3d 458, 466 (5th Cir. 2010) (“[T]his circuit
has not adopted the state-created danger theory.”); Luevano v. Geyer, 355 F. App’x 834, 836
(5th Cir. 2009) (“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.”); Hale v. Bexar Cnty., Tex., 342
F. App’x 921, 925-27 (5th Cir. 2009) (declining to apply the state created danger theory
because this court had never expressly done so and even if available the plaintiff had not met
the elements of the claim); Lester v. City of College Station, 103 F. App’x. 814, 814-816 (5th Cir.
2004) (“[T]his court has neither adopted nor accepted the state-created-danger theory of
liability.”); Greene v. Plano Indep. Sch. Dist., 103 F. App’x 542, 543-544, & n.3 (5th Cir. 2004)
(“This Court . . . has never held that the state created danger theory is one of the limited
circumstances that would rise to the level of a due process constitutional violation
contemplated in DeShaney.”); Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 249 (5th Cir.
2003) (“We have never recognized state-created danger as a trigger of State affirmative duties
under the Due Process clause . . . .We again decline to do so.”); Piotrowski v. City of Houston,
237 F.3d 567, 584-85 (5th Cir. 2001) (recognizing that the state created danger theory had not
been explicitly adopted by this court and declining to do so in that matter because plaintiff had
not met the elements of the theory); Randolph v. Cervantes, 130 F.3d 727, 731 (5th Cir. 1997)
(same); Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1415 (5th Cir. 1997) (en banc)
(same); see also Walton v. Alexander, 44 F.3d 1297, 1306 (5th Cir. 1995) (holding that absent
a special relationship between the state actor and the individual, 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”) (emphasis added).

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constitutional right to be free from state-created dangers” and because the
plaintiff failed to establish the necessary elements of the theory it would not
apply even if available); Breen v. Tex. A&M Univ., 485 F.3d 325, 337 (5th Cir.
2007) (holding that the state created danger theory was “a valid basis for a claim
on the set of   facts alleged”), rev’d, 494 F.3d 516 (5th Cir. 2007) (granting
rehearing sua sponte and issuing a subsequent opinion omitting discussion of
state created danger theory); see also Rivera v. Houston Indep. Sch. Dist., 349
F.3d 244, 249    n.5 (5th Cir. 2003) (recognizing that the panel’s decision in
McClendon “was vacated and with it our recognition of the [state created danger]
theory”). Thus, this court’s stance on the state created danger theory as a basis
of liability for a § 1983 claim is uncertain.
      Further, we have found that the state created danger theory was not
clearly established for conduct that occurred in 1993. See McClendon, 305 F.3d
at 332-33. More recently this court has held that the state created danger theory
is “not clearly established law within this circuit such that a § 1983 claim based
on this theory could be sustained” for an incident that occurred in 2006. See
Walker v. Livingston, No. 09-20508, 2010 WL 2465035, *2 (5th Cir. June 17,
2010) (unpublished) (citing Morin v. Moore, 309 F.3d 316, 321 (5th Cir. 2002)).
      Although this court may consider the law of other circuits when
determining whether a constitutional right is clearly established, “[t]he
reluctance of this court . . . to embrace some version of the state-created danger
theory despite numerous opportunities to do so suggests that, regardless of the
status of this doctrine in other circuits, a reasonable officer in this circuit would,
even [in 2002], be unclear as to whether there is a right to be free from
‘state-created danger.’” McClendon, 305 F.3d at 332 n.12. “[T]his circuit is
littered with opinions expressing varying levels of skepticism.” Id. This circuit’s
holdings on the viability of the state created danger theory following McClendon
do not make its position any clearer. See, e.g., Rios v. City of Del Rio, Tex., 444

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F.3d 417, 422-23 (5th Cir. 2006) (“[N]either the Supreme Court nor this court
has ever either adopted the state-created danger theory or sustained a recovery
on the basis thereof. We have, however, many times refused to allow recovery
sought to be predicated thereunder.”); Longoria v. Texas, 473 F.3d 586, 593 n.8
(5th Cir. 2006) (“Since [2003], we have explicitly rejected [the state created
danger] theory of liability.”); Hernandez ex rel. Hernandez v. Tex. Dep’t. of
Protective and Regulatory Servs., 380 F.3d 872, 880 n.1 (5th Cir. 2004) (“We
emphasize that our court has not yet determined whether a state official has a
. . . duty to protect individuals from state-created dangers.”) (quotation and
citation omitted); Beltran v. City of El Paso, 367 F.3d 299, 307 (5th Cir. 2004)
(“This court has consistently refused to recognize a ‘state-created danger’ theory
of § 1983 liability even where the question of the theory’s viability has been
squarely presented.”).
       “[Q]ualified immunity should be granted ‘if a reasonable official would be
left uncertain of the law’s application to the facts confronting him.’” McClendon,
305 F.3d at 332 (quoting Salas v. Carpenter, 980 F.2d 299, 311 (5th Cir. 1992)
(citation omitted). The state created danger theory has not been applied in this
circuit with “obvious clarity” to the specific conduct in question such that a
reasonable officer would be aware that his actions were unlawful. See id.
Because the state created danger theory as a basis of liability was not clearly
established at the time the incident occurred, the individual defendants are
entitled to qualified immunity.6




       6
          Appellants asserted in their complaints and appellate briefs, and conceded at oral
argument, that their claim was brought pursuant to DeShaney v. Winnebago Cnty. Dep’t of
Soc. Servs., 489 U.S. 189 (1989). Appellants now allege a second basis for liability under the
“special relationship” theory. Because Appellants raise the “special relationship” theory of
liability for the first time on appeal, this court will not consider them. See Stewart Glass &
Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000) (holding
that this court does not consider claims not raised before the district court).

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                                        B.
      Appellants also appeal the magistrate judge’s grant of summary judgment
to the City on the basis of qualified immunity. A municipality is a “person”
subject to suit under § 1983. See Monell v. Dep’t of Soc. Servs. of the City of New
York, 436 U.S. 658, 690 (1978). “[M]unicipal liability under section 1983 requires
proof of three elements: 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) (citation omitted). “Municipal
liability requires deliberate action attributable to the municipality that is the
direct cause of the alleged constitutional violation.” Zarnow v. City of Wichita
Falls, Tex., — F.3d —, 2010 WL 3093443, *3 (5th Cir. August 9, 2010) (citing
City of Canton, Ohio v. Harris, 489 U.S. 378, 391-92 (1989)).
      Appellants assert that the City “ratified and approved” the actions of the
individual defendants by way of its determination, following a review of the
incident, that the police officers did not “breach[]” any City police department
rules. The magistrate judge held that Appellants’ response to the City’s motion
for summary judgment on this point was “vague,” and because Appellants failed
to establish a causal link between the department’s alleged policy and the
constitutional violation, the City was entitled to qualified immunity.
      “If the authorized policymakers approve a subordinate’s decision and the
basis for it, their ratification would be chargeable to the municipality because
their decision is final.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).
Moreover, “a policymaker who defends conduct that is later shown to be
unlawful does not necessarily incur liability on behalf of the municipality.”
Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 848 (5th Cir. 2009) (citing
Coon v. Ledbetter, 780 F.2d 1158, 1161-62 (5th Cir. 1986)). Appellants have not
established a genuine issue of material fact as to whether the City’s review of the
officers’ conduct violated department rules rises to the level of ratification such

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that the City is liable for the officers’ conduct. Thus, the City is entitled to
qualified immunity.7
                                             III.
       Finally, Appellants assert that the magistrate judge erred in dismissing
their Texas state law claims against the City. This court reviews de novo a Rule
12(b)(6) dismissal. See Lindquist v. City of Pasadena, Tex., 525 F.3d 383, 386
(5th Cir. 2008). The interpretation of a statute is a question of law we also
review de novo. See Motient Corp. v. Dondero, 529 F.3d 532, 535 (5th Cir. 2008).
       Under the doctrine of sovereign immunity, a unit of state government is
immune from suit and liability unless the State has waived immunity. Tooke v.
City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). The magistrate judge properly
dismissed Appellants’ claims for relief pursuant to Texas Civil Practice &
Remedies Code § 71.002, as that statute does not waive governmental immunity.
See T EX. C IV. P RAC. & R EM. C ODE A NN. § 71.001-002 (West 2003) (permitting
liability for “persons,” defined as “an individual, association of individuals,
joint-stock company, or corporation or a trustee or receiver of an individual,
association of individuals, joint-stock company, or corporation.”).8




       7
         Appellants also raised municipal liability claims based on the City’s alleged “shoot
first ask questions later” policy and alleged failure to train its police officers and adopt
department policies on the proper way to handle situations involving mentally ill persons.
Because Appellants failed to raise its claim against the City’s policy on appeal, we deem it
forfeited. See Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983) (“Claims not pressed on
appeal are deemed abandoned.”). Appellants’ allegations that the City failed to train and
adopt appropriate policies were raised for the first time on appeal and are likewise forfeited.
See Stewart Glass & Mirror, 200 F.3d at 316-17.
       8
         Appellants also filed state law claims against the City pursuant to the Texas Tort
Claims Act. Appellants make no argument on appeal as to the magistrate judge’s dismissal
of these claims. As such, they have been forfeited. See Davis, 706 F.2d at 571.

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                                   IV.
     For the foregoing reasons, the magistrate judge’s grant of summary
judgment as to all Appellees and grant of the City’s motion to dismiss is
affirmed.
AFFIRMED.




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