IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-41072

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, DEMOSS, 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.

United States Court of Appeals

Fifth Circuit

F I L E D

October 4, 2010

Lyle W. Cayce

Clerk

 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. In the days leading up to the events in

1

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. Linda was Dominga’s niece. Armando and Linda knew of Nelson’s

2

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

Because this case involves an appeal from a grant of summary judgment, we adopt 1

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).

There is some discrepancy over the circumstances under which the police were 2

summoned to Nelson’s apartment. In their opening brief, Appellants assertthat 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 thatthey 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); FED. R. CIV. P. 73(a).

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The City filed a motion to dismiss, inter alia, Appellants’ state law claims,

which was granted. Appellees filed separate motions for summary judgment on

3

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); FED. R. CIV. 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

The magistrate judge also dismissed Appellees’ state law claims against the individual

3

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. In this

4

See, e.g., Okin v. Village of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 434-35 4

(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. VegaIrizarry, 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). 

See, e.g., Bustos v. Martini Club, Inc., 599 F.3d 458, 466 (5th Cir. 2010) (“[T]his circuit 5

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

Appellants asserted in their complaints and appellate briefs, and conceded at oral 6

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 TEX. CIV. PRAC. & REM. CODE ANN. § 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

Appellants also raised municipal liability claims based on the City’s alleged “shoot 7

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.

Appellants also filed state law claims against the City pursuant to the Texas Tort 8

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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