* District Judge of the Eastern District of Louisiana, sitting by

designation.

 

1 Piotrowski's claim against the Houston Police Department as a

separate defendant was dismissed and is not at issue in this appeal.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 93-2938

_______________

BARBARA PIOTROWSKI,

Plaintiff-Appellant,

versus

CITY OF HOUSTON and the

HOUSTON POLICE DEPARTMENT,

Defendants-Appellees.

_______________________________________________

Appeals from the United States District Court

for the Southern District of Texas

_______________________________________________

(April 21, 1995)

Before SMITH and EMILIO M. GARZA, Circuit Judges, and BERRIGAN,

District Judge.*

EMILIO M. GARZA, Circuit Judge:

Barbra Piotrowski appeals the district court's dismissal of

her civil rights suit against the City of Houston (the "City"),1

which she brought under 42 U.S.C. § 1983 (1988). We modify and

affirm.

I

In 1980, gunmen shot Barbra Piotrowski in an attempt to kill
 

2 Piotrowski alleged that Dudley Bell, who worked for her boyfriend,

Richard Minns, hired the gunmen.

 

3 Piotrowski alleged that Waring worked for Bell.

 

4 Piotrowski also alleged that she had reported previously to the

police that Minns was trying to kill her.

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her.2 According to Piotrowski's complaint, Rick Waring told

officers of the Houston Police Department five weeks prior to the

shooting that Dudley Bell had solicited him to murder Piotrowski.3

The officers allegedly told Waring that they would investigate his

information and instructed him not to warn Piotrowski of the

attempt to solicit her murder. Contrary to their assurances to

Waring, the officers did not proceed to investigate.4

Piotrowski sued the City in 1993, alleging that the officers

had interfered with Waring's attempts to warn her of the danger she

faced and that other officers had aided Bell and the other persons

conspiring to kill her by providing them with a picture of her.

Piotrowski stated that she had not learned of these actions until

January, 1993, when one of the officers revealed the alleged

interference and affirmative assistance in a deposition for a civil

case concerning a book written about Piotrowski. The district

court granted the City's motion to dismiss with prejudice under

Rule 12(b)(6) of the Federal Rules of Civil Procedure on the

grounds that Piotrowski's complaint was time-barred. Piotrowski

appeals that dismissal.

II

Piotrowski contends that the district court erred in

dismissing her suit as time-barred. "We review a Rule 12(b)(6)
 

5 Congress has not provided a statute of limitations in § 1983

cases; therefore, federal courts borrow the forum state's general personal

injury limitations period. See Owens v. Okure, 488 U.S. 235, 249-50, 109 S.

Ct. 573, 581-82, 102 L. Ed. 2d 594 (1989) (equating § 1983 claims with

personal injury actions because both remedy injuries to personal rights). In

Texas, the pertinent limitation period is two years from the day the cause of

action accrues. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon

1986) ("A person must bring suit for . . . personal injury . . . not later

than two years after the day the cause of action accrues."); see also

Rodriguez v. Holmes, 963 F.2d 799, 803 (5th Cir. 1992) (borrowing two-year

statute of limitations from Texas law for § 1983 case).

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dismissal de novo. We must accept all well-pleaded facts as true,

and we review them in the light most favorable to the plaintiff."

Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th Cir. 1994).

In our de novo review, we apply the same standard as those used by

the district court: "[A] claim may not be dismissed unless it

appears certain that the plaintiff cannot prove any set of facts in

support of his claim that would entitle him to relief." Leffall v.

Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994) (citing

Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994); Carney

v. RTC, 19 F.3d 950, 954 (5th Cir. 1994)); see also Green, 27 F.3d

at 1086 ("A dismissal will not be affirmed if the allegations

support relief on any possible theory.").

The district court found that Piotrowski's claim was that the

Police Department violated her civil rights when it failed to

investigate Waring's story and failed to protect her from Bell and

Minns, and decided that such claims accrue at the time of the

injury. Because Piotrowski knew at the time she was shot that the

Police Department had failed to protect her, the district court

held that her claim had accrued in 1980, more than two years before

she filed suit.5 Piotrowski argues, however, that she is making
 

6 Piotrowski also argues that the police officers' actions created a

"special relationship" that required them to protect her. Our recent en banc

decision in Walton v. Alexander, 44 F.3d 1297 (5th Cir. 1994) (en banc),

precludes this argument, however, by requiring "involuntary confine[ment]

against [the plaintiff's] will through affirmative exercise of state power." 

44 F.3d at 1306. Piotrowski has alleged no such confinement.

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more than a failure-to-protect claim. She argues that her

complaint states a § 1983 claim for a violation of her civil rights

that resulted from affirmative acts of the Police Department that

contributed to the danger she faced, and that her claim did not

accrue until she acquired knowledge of these acts in January, 1993.

A

Piotrowski argues that the police officers' affirmative acts

of preventing Waring from warning her and giving the conspirators

her picture support a § 1983 claim of a "state-created danger."6

"To state a claim under § 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,

28 F.3d at 525. Our first inquiry is whether the plaintiff has

alleged a violation of a constitutional right at all. Id.; cf.

Siegert v. Gilley, 500 U.S. 226, ___, 111 S. Ct. 1789, 1793, 114 L.

Ed. 2d 277 (1991) (establishing in qualified immunity context that

first inquiry is existence of constitutional violation).

Generally, "nothing in the language of the Due Process Clause

itself requires the State to protect the life, liberty, and

property of its citizens against invasion by private actors."

DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189,
 

7 In Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992), this Court

stated in dicta that DeShaney's "limited circumstances" could include two

situations. Salas, 980 F.2d at 307. "First, a procedural or substantive due

process violation could occur if a state official causes injury by arbitrarily

abusing governmental power. Second, a substantive due process violation could

occur if uncommon circumstances create a duty for the state to protect a

particular person." Id. Courts have referred to the first situation

identified in Salas as the "state-created danger" theory of § 1983 liability: 

"When state actors knowingly place a person in danger, the due process clause

of the constitution has been held to render them accountable for the

foreseeable injuries that result from their conduct . . . ." Johnson v.

Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994), cert. denied, 63

U.S.L.W. 3583 (U.S. Mar. 20, 1995).

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195, 109 S. Ct. 998, 1003, 103 L. Ed. 2d 249 (1989). "The Due

Process Clause confers protection to the general public against

unwarranted governmental interference, but it does not confer an

entitlement to governmental aid as may be necessary to realize the

advantages of liberty guaranteed by the Clause." Walton, 44 F.3d

at 1302. While "it is true that in certain limited circumstances

the Constitution imposes upon the State affirmative duties of care

and protection with respect to particular individuals," DeShaney,

489 U.S. at 198, 109 S. Ct. at 1004, Piotrowski must show that her

situation fits those "certain limited circumstances." 

Piotrowski contends that her allegations qualify by satisfying

the "state-created danger" theory of § 1983 liability.7 While this

Court has not affirmatively held that this theory is a valid

exception to the DeShaney rule, see Johnson, 38 F.3d at 200

(discussing Fifth and other circuits' uncertainty regarding

theory's validity and commenting that Salas discussed the theory

only in dicta), it has addressed what a plaintiff would have to

demonstrate to qualify for relief under this theory. First, a

plaintiff must show that the state actors increased the danger to
 

8 See Leffall, 28 F.3d at 531 ("[T]he [state-created danger] cases

consistently require a § 1983 plaintiff relying on substantive due process to

show that the state actors are guilty of `deliberate indifference' towards the

victim of the deprivation."). 

Even under the rationale of the cases recognizing a state-created

danger theory of § 1983 liability, it is not enough to show that

the state increased the danger of harm from third persons; the

§ 1983 plaintiff must also show that the state acted with the

requisite culpability in failing to protect the plaintiff from

that danger to make out a constitutional violation.

Id. at 530-31. Deliberate indifference requires the following: "[T]he

environment created by the state actors must be dangerous; they must know it

is dangerous; and . . . 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, 38 F.3d at 201.

 

9 Because we hold that Piotrowski's allegations fail on other

grounds, however, we do not reach the question of whether her allegations

satisfy the Rule 12(b)(6) threshold for alleging a "state-created danger"

theory of § 1983 liability.

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her. Second, a plaintiff must show that the state actors acted

with deliberate indifference.8 In this case, Piotrowski alleges

that the Police prevented Waring from warning her of the threat

against her and assisted the conspirators by giving them a picture

of her.9

B

Before we reach whether a "state-created danger" constitutes

a cognizable § 1983 theory, we determine first whether the district

court correctly held that the statute of limitations would bar such

a claim. Piotrowski contends that her claim accrued in January,

1993, when she discovered the relevant information from the police

officer's deposition.

"Under federal law, the [limitations] period begins to run

`the moment the plaintiff becomes aware that he has suffered an

injury or has sufficient information to know that he has been

injured." Russell v. Board of Trustees, 968 F.2d 489, 493 (5th
 

10 When a § 1983 cause of action accrues is a question of federal

law. Id.

 

11 See also Chapman v. Homco, Inc., 886 F.2d 756, 758 (5th

Cir. 1989) (holding that limitations period on employment

discrimination claim triggered on date of discharge, not on date

of discovery of discriminatory intent), cert. denied, 494 U.S.

1067, 110 S. Ct. 1784, 108 L. Ed. 2d 785 (1990); Longoria v. City

of Bay City, 779 F.2d 1136, 1138 (5th Cir. 1986) (holding that

limitations period began to run when flooding occurred, not when

plaintiffs learned city had been on notice of flooding potential

and had fraudulent motive).

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Cir. 1992) (quoting Helton v. Clements, 832 F.2d 332, 335 (5th Cir.

1987)), cert. denied, ___ U.S. ___, 113 S. Ct. 1266, 122 L. Ed. 2d

662 (1993).10 A plaintiff's awareness encompasses two elements:

(1) The existence of the injury; and (2) causation, that is, the

connection between the injury and the defendant's actions. See

Stewart v. Parish of Jefferson, 951 F.2d 681, 684 (5th Cir.) ("The

statute of limitations period commences once the plaintiff acquires

possession of two critical facts: (1) an injury has occurred; and

(2) the identity of the person who inflicted the injury."), cert.

denied, ___ U.S. ___, 113 S. Ct. 69, 121 L. Ed. 2d 35 (1992). A

plaintiff need not realize that a legal cause of action exists; a

plaintiff need only know the facts that would support a claim. See

Harrison v. United States, 708 F.2d 1023, 1027 (5th Cir. 1983)

("The plaintiff need not have knowledge of fault in the legal sense

for the statute to begin to run, but she must have knowledge of

facts that would lead a reasonable person (a) to conclude that

there was a causal connection . . . or (b) to seek professional

advice, and then, with that advice, to conclude that there was a

causal connection between the [defendant's acts] and injury.").11
 

12 See also Stewart, 951 F.2d at 684 ("The prescriptive

period will not commence prior to the time the plaintiff is or

should be aware of the causal connection between his injury and

the acts of the defendant."); Longoria, 779 F.2d at 1138 ("The

limitations period thus begins to run when the plaintiff either

is or should be aware of both the injury and its connection with

the alleged acts of the defendant."); Lavellee v. Listi, 611 F.2d

1129, 1131 (5th Cir. 1980) (beginning limitations period "when

the plaintiff is, or should be, aware of both the injury and its

connection with the acts of defendant").

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Moreover, a plaintiff need not have actual knowledge if the

circumstances would lead a reasonable person to investigate

further. See Jensen v. Snellings, 841 F.2d 600, 606 (5th Cir.

1988) ("Under federal law, the limitations period commences when

`the aggrieved party has either knowledge of the violation or

notice of facts which, in the exercise of due diligence, would have

led to actual knowledge' thereof." (quoting Vigman v. Community

Nat'l Bank & Trust Co., 635 F.2d 455, 459 (5th Cir. 1981))).12

The City argues that Piotrowski either knew of the facts

underlying her claim at the time of the attack or should have

inquired into the actions of the police officers at that time. In

response, Piotrowski alleges that the police officers took active

steps to suppress any information concerning their prior knowledge

of the threat. When a defendant controls the facts surrounding

causation such that a reasonable person could not obtain the

information even with a diligent investigation, a cause of action

accrues, but the statute of limitations is tolled. See United

States v. Kubrick, 444 U.S. 111, 122, 100 S. Ct. 352, 359, 62 L.

Ed. 2d 259 (1979) (tolling limitations period where "the facts

about causation may be in the control of the putative defendant,
 

13 Nor can we say as a matter of law that the limitations period did

not start until January, 1993, when Piotrowski learned of the police officer's

deposition. Although she acquired actual knowledge of the facts at that time,

the City suggests that she could have obtained that information earlier. The

lawsuit for which the 1993 deposition was taken concerned a libel and slander

suit brought by the police officers against the author of a book written about

Piotrowski's case. The author acknowledges in the book that Piotrowski helped

her develop the book. Alleging that the book discussed at least some of the

relevant actions of the police officers, the City suggests that Piotrowski

either knew or should have known of the police officers' actions prior to the

1991 publication of the book. Determining the validity of the City's

contention, however, would require us to go beyond the pleadings, and we will

not entertain it at this time.

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unavailable to the plaintiff or at least very difficult to

obtain."); Frazier v. Garrison I.S.D., 980 F.2d 1514, 1521-22 (5th

Cir. 1993) (affirming summary judgment on limitations grounds,

stating that: "No facts indicate to us that the alleged

discrimination was either hidden or for some reason not apparent to

a reasonable prudent person," and contrasting to scenario in which

defendant's actions would not lead a reasonably prudent person to

suspect critical facts and investigate further). Consequently, we

cannot say as a matter of law that the limitations period started

in 1980.13 Thus, if Piotrowski's "state-created danger" theory

raises a cognizable constitutional claim under § 1983, the district

court erred in determining that her suit was time-barred.

C

We need not decide, however, whether Piotrowski's "statecreated danger" claim is a cognizable § 1983 theory that is not

time-barred. Even if she has alleged a "state-created danger," she

has failed to allege facts that implicate the City itself. A

municipality does not incur liability under § 1983 "unless action

pursuant to official municipal policy of some nature caused a
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constitutional tort." Monell v. Department of Soc. Servs., 436

U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978); see

also City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197,

1203, 103 L. Ed. 2d 412 (1989) ("[O]ur first inquiry in any case

alleging municipal liability under § 1983 is the question whether

there is a direct causal link between a municipal policy or custom

and the alleged constitutional deprivation."); Leffall, 28 F.3d at

525 (requiring allegation that policy or custom was "a cause in

fact of the deprivation of rights inflicted"); Colle v. Brazos

County, 981 F.2d 237, 244 (5th Cir. 1993) ("[O]nly when the

execution of a county's policies or its customs deprives an

individual of constitutional or federal rights does liability under

§ 1983 result."). 

Piotrowski alleges that the police officers increased the

threat to her life, but she does not allege that the increased

danger resulted from the City's policies. Nowhere in her

substantive due process claim does Piotrowski allege that a causal

link existed between a City policy or custom and the alleged statecreated danger. Rather, she alleges that the increased danger

resulted from the actions of certain police officers. Because the

City cannot be held liable under a respondeat superior theory,

Monell, 436 U.S. at 691, 98 S. Ct. at 2036, Piotrowski has failed

to allege facts supporting a § 1983 claim against the City.

III
 

14 We dismiss without prejudice because we cannot say as a matter of

law that Piotrowski cannot allege any set of facts supporting a causal link

between a City policy and the alleged increased danger; we merely hold that

she has not done so in the complaint filed in this case. See Nat'l Ass'n of

Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 715 (5th Cir. 1994)

(dismissing § 1983 suit without prejudice where no policy alleged but no

limitations bar to amended complaint).

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For the foregoing reasons, we AFFIRM the dismissal of

Piotrowski's suit. We modify the district court's judgment,

however, to dismiss without prejudice to Piotrowski's right to file

an amended complaint.14