* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40227

REGINA KELLEY, Individually and as Guardian and Next of Friend of IMARI

KELLEY and JADEN KELLEY; BYRON HALL,

Plaintiffs-Appellants,

v.

CITY OF WAKE VILLAGE, TEXAS; CHIEF OF POLICE TONY ESTES, In his

Individual and Official Capacity; OFFICER RUSSELL CRAWFORD, In his

Individual and Official Capacity,

Defendants-Appellees.

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 5:04-CV-137

Before GARZA, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

Regina Kelley (“Kelley”) and her brother, Byron Hall, sued the City of

Wake Village, Texas (“the City”), Chief of Police Tony Estes, and Officer Russell

Crawford (collectively “Defendants”) alleging, inter alia, that the West Village

Police Department (“WVPD”) failed to follow state law as well as departmental

policy regarding domestic violence victims, and that, as a result, her rights

United States Court of Appeals

Fifth Circuit

F I L E D

February 1, 2008

Charles R. Fulbruge III

Clerk
No. 07-40227

2

under the EqualProtection Clause ofthe Fourteenth Amendment were violated.

Defendants moved for summary judgment; their motion was granted by the

district court. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

We recite the facts in the light most favorable to Plaintiffs, the party

opposing summary judgment. On November 3, 2002, Officer Russell Crawford

of the Wake Village Police Department (“WVPD”) responded to a dispatch of

possible family violence at the home of Regina and Jerod Kelley, a married

couple who lived in Wake Village, a small community just outside of Texarkana,

Texas. Kelley complained to Officer Crawford that Jerod had physically

assaulted her while her children were present. In her deposition, Kelley testified

Officer Crawford told her to shut up or else her children would be taken away

from her. However, Officer Crawford arrested Jerod that evening based on an

outstanding warrant, although Jerod was released that same night. Two days

later, he was arrested again on an assault charge stemming from the November

3 incident. Shortly thereafter Kelley and Jerod separated, and Hall moved into

the residence. Kelley also alleges that she had a protective order filed against

Jerod.

On January 21, 2003, Kelley contacted the WVPD and reported that Jerod

was sitting outside of her residence in a vehicle, in violation of the protective

order. By the time the police arrived, Jerod was no longer present. Ten days

later, Kelley called the WVPD and reported that Jerod had put sugar in the gas

tank of her car. The WVPD officer who responded advised her that the car was

community property and that no crime had been committed. Kelley called back

later that night, stating that Jerod was unlawfully in front of the house. Pam

Bradley, Kelley’s mother, testified in her affidavit that a WVPD officer told

Kelley that she could either stay in the house with Jerod or take the children

and leave. Bradley also testified that the officer told Kelley that if she did not
No. 07-40227

3

stop calling the police department her children would be taken away from her

by the Department of Human Services. On February 10, 2003, Kelley called the

police after Jerod had pointed his finger in a gun-like manner at her head and

threatened that he was going to shoot her. Susan Kelley, Jerod’s mother,

testified in her affidavit, that the WVPD officer who responded told Kelley that

if she continued calling about domestic violence the Department of Human

Services would take her children away. 

On February 13, 2003, Jerod was arrested for assaults by threat, and that

same day, Justice of the Peace Nancy Tallet issued a temporary emergency

protective order for Kelley against Jerod, which was entered in the Texas Crime

Information Center/National Crime Information Center (“TCIC/NCIC”)

database. However, the WVPD never received a copy of the order, and it is

undisputed that the WVPD computer system does not have access to the

TCIC/NCIC criminal reporting system database.

On February 28, 2003, a WVPD officer responded to a dispatch of criminal

trespass at the Kelleys’ residence. Even though Jerod was not found on the

premises, the officer noted that a temporary protective order had been issued.

On March 22, 2003, Officer Crawford responded to a dispatch that Jerod had

violated the protective order by coming to the residence and harassing Kelley,

although once again, Jerod was not found on the premises.

On April 11, 2003, Judge Leon Pesek, Jr. ofthe Bowie County Courtissued

another protective order for Kelley against Jerod; this ordered was forwarded to

Chief Estes on April 14, 2003. During this time period and over the following

weeks, Kelley made several other phone calls to the WVPD complaining about

Jerod’s threatening and harassing behavior, which was in violation of the

protective orders.

On July 27, 2003, at approximately 11:30 PM, Kelley called the WVPD

explaining that Jerod had come to the residence, grabbed her by the neck, and
No. 07-40227

4

threatened to kill her if she ever left him. Hall fought with Jerod, and Jerod

then leftthe residence. Officer Hadaway searched the immediate area, but could

not locate Jerod. Officer Hadaway told Kelley to stay in the house and call 911

if Jerod returned. He also reported a violation of the protective order before he

began searching for Jerod.

Approximately one hour later, WVPD Officers Hadaway and Shutte were

dispatched back to the residence regarding a call of vandalism in progress.

When they arrived, they found a man, Booker Williams, shot and dead in the

street in front of the house. Kelley had also been shot twice and was wounded,

and the officers discovered that Jerod was in the house and was holding four

children hostage. Chief Estes instructed the officers to contact the Texarkana

Metro SWAT and Hostage Negotiations Team. At 1:23 PM on July 28, 2003, the

SWAT team entered the house and safely retrieved the children; Jerod

committed suicide in front of the children. While Kelley was hospitalized, the

Department of Human Services placed her children in foster care.

Kelley subsequently brought suit against Defendants pursuant to 42

U.S.C. §§ 1983 and 1988, alleging: (1) a substantive due process claim based on

a “special relationship” between her and Defendants, imposing an affirmative

duty to protect; (2) an equal protection claim based on law enforcement policies

and practices towards victims of domestic violence; (3) negligence and gross

negligence claims under theTexas Tort Claims Act; and (4) a claim of intentional

infliction of emotional distress. On March 9, 2005, the district court dismissed

all of Kelley’s claims except her gender-based denial of equal protection against

the City and the two named defendants in their official capacities. Defendants

then moved for summary judgment on the remaining claim. 

Defendants contested Kelley’s argument that the WVPD selectively denied

its police protective services to women who had been victims of domestic

violence, highlighting that no other woman, besides Kelley, complained of
No. 07-40227

1 Specifically, he testified that first the officer must verify the existence of the order.

If there is in fact a protective order and the alleged offender is on the scene, the officer can

arrest him. If the alleged offender is not present, the officer must use reasonable means to

track him down, particularly if the officer is aware of a previous history of family violence. 

Further, he testified that if the officer believes the allegations of the victim the officer

is required to take a report from the victim and get statements and warrants. Officer

Crawford acknowledged that Chief Estes never provided any instruction about how much

effort should be used to locate an alleged offender, and also that he never received any training

regarding the Wake Village family violence policy.

2

In conducting his analysis, Rodriguez only looked at the following offense categories:

assault, criminal mischief, criminal trespass, and family and domestic violence. He received

his data by looking at the police chief’s monthly reports (“PCMRs”).

5

inadequate police protection from family violence during the relevant time

period. Officer Crawford presented deposition testimony where he discussed the

family violence training he had received, and explained the protocolthat officers

are supposed to follow when there is an allegation that a protective order has

been violated.1 He testified that he was aware of the history of domestic violence

between Regina and Jerod Kelley, even though he stated he was not aware ofthe

protective order when he responded to the call on March 22, 2003. Chief Estes

testified that he has always ensured that all of his officers have complied with

the training requirements established by the Texas Commission of Law

Enforcement Officer Standards and Education (“TCLEOSE”). He agreed that

in domestic violence situations, the WVPD is legally required to submit incident

reports to the Department of Public Safety (DPS), whether or not an arrest is

effectuated, and he acknowledged that such reports were not always filed

regarding the Kelleys.

Defendants also presented the expert report of Albert Rodriguez, the

Commander of the Training Academy for the DPS. In his report, Rodriguez

provided statistics thatthe WVPD received 419 calls2from August 2000 through

July 13, 2003, 44 of which were for family violence. 58 people were arrested or

summoned during this period, 24 of which were arrested for family violence.

Rodriguez interpreted the data to indicate that approximately 41% of all arrests
No. 07-40227

6

were for family violence, and approximately 54% of all family violence calls

resulted in arrests. He also stated that all offenders arrested for family violence

were male, all the victims were female, and that 20 of the 48 cases that were

referred for prosecution in the relevant time period were for family violence.

Based on these numbers, he concluded that there was no factual basis for

Kelley’s allegation that the WVPD had any discriminatory customs or policies

towards women who have been victims of family violence. Further, he argued

that even if the procedural violations of Texas law alleged by Kelley were true

and even if she could prove that certain officers failed to enforce the protective

orders, there is no evidence that WVPD had a custom or policy approving or

condoning such behavior.

In response, Kelley argued that the evidence establishes that the WVPD

did not enforce the protective orders which had been issued because not only

should Jerod have been investigated, interviewed, or arrested after he

repeatedly violated the protective orders, but also the WVPD failed to fill out

Family Violence DPS reports, as they were required to do, for many of the

incidents leading up to July 27, 2003. She asserted that this lack of enforcement

indicates a custom, policy, or practice of Defendants to provide less police

protection to victims of domestic assaultthan other victims. Kelley also provided

the expert report and deposition of Sandy Kline, a retired sergeant with the

Houston Police Department. According to Kline, the WVPD repeatedly failed to

follow numerous provisions ofthe then-existing Texas Penal Code,Family Code,

and Code of Criminal Procedure, as well as its own departmental policies

regarding the handling of family violence incidents. After reviewing a number

of offense reports prepared by the WVPD, Kline reported that the WVPD had a

“consistent pattern [of] ignoring or minimizing allegations of family violence,”

and that such a pattern was evident in the reports related to the Kelleys. Kline

also took issue with the data used by Rodriguez, contending that he
No. 07-40227

3 Specifically, she argued that the Uniform Crime Reports (UCRs)that were sent to the

DPS indicate that a larger number of people were arrested, and therefore the actual

percentage of family violence arrests by the WVPD was actually substantially lower.

7

underreported the total number of arrests and calls within the relevant time

period.3 She concluded that the WVPD’s “practices, customs, and unwritten

policy in the disparate treatment of family violence victims has a chilling effect

of denying equal protection of the law to family violence victims.”

The district court granted Defendants’ motion, and ordered all of Kelley’s

claims to be dismissed with prejudice. Kelley timely filed her notice of appeal.

II. DISCUSSION

A. Standard of Review

We review the district court’s grant of Defendants’ motion for

summary judgment de novo. See McKee v. City of Rockwall, 877 F.2d 409, 410

(5th Cir. 1989). Summary judgment is appropriate where “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV.

P. 56(c). “All reasonable doubts and inferences must be resolved in the light

most favorable to the non-movant,” McKee, 877 F.2d at 410 (internal citation

omitted).

B. Municipal Liability

The Supreme Court has explained that official-capacity suits should be

treated as suits against the government entity. Hafer v. Melo, 502 U.S. 21, 25

(1991). In order for municipal liability to be imposed under § 1983 three

elements must be proven: 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) (citing Monell v. Dep’t of

Social Sciences, 436 U.S. 658 (1978). Caselaw has consistently rejected
No. 07-40227

8

municipal liability predicated on respondeat superior, and instead, this Court

has held that “the unconstitutional conduct must be directly attributable to the

municipality through some sort of official action or imprimatur; isolated

unconstitutional actions by municipal employees will almost never trigger

liability.” Id. (internal citations omitted). Because no evidence has been

presented that Officer Crawford was, at any time relevant to this proceeding, a

policymaker in the WVPD, we affirm the district court’s dismissal of the claim

against him in his official capacity.

C. Equal Protection Claims

Before this Court, Kelley presents two arguments for why the district

court’s grant of summary judgment to Defendants was in error. First, she

asserts that the WVPD failed to follow state law regarding domestic violence

victims, and therefore it failed to enforce her protective order against Jerod.

Second, she contends that her right to equal protection as a victim of domestic

violence was violated as a “class of one” and that there was no rational basis for

the treatment. We will examine each argument in turn.

1. 

In DeShaney v. Winnebago County Department of Social Services, 489 U.S.

189, 197 (1989), the Supreme Court held that “a State’s failure to protect an

individual against private violence does not violate the Due Process Clause.” In

that same opinion, however, the Court also recognized that “a State may not, of

course, selectively deny its protective services to certain disfavored minorities

without violating the Equal Protection Clause.” Id. at 197 n.3. While we have

warned that plaintiffs cannot make an “end-run” around DeShaney by simply

attempting to convert their due process claims into equal protection ones,

Beltran v. City of El Paso, 367 F.3d 299, 304 (citing McKee, 877 F.2d at 413), in

Shipp v. McMahon, 234 F.3d 907, 914 (5th Cir. 2000), overruled in part on other

grounds by, McClendon v. City of Columbia, 305 F.3d 323, 328-29 (5th Cir. 2002)
No. 07-40227

9

(en banc), we “acknowledged that certain intentionally discriminatory policies,

practices, and customs of law enforcement with regard to domestic assault and

abuse cases may violate the Equal Protection Clause under the DeShaney

footnote.” Beltran, 367 F.3d at 304. In Shipp, we held that in order for a

plaintiff to sustain a gender-based equal protection claim, she must show: “(1)

the existence of a policy, practice, or custom of law enforcement to provide less

protection to victims of domestic assault than to victims of other assault; (2)that

discrimination against women was a motivating factor; and (3)thatthe plaintiff

was injured by the policy, custom, or practice.” 234 F.3d at 914. 

Accordingly, Kelley was first required to show the existence of a policy,

practice, or custom of law enforcement to provide less protection to victims of

domestic assault than to victims of other assault. To that end, she argues that

the statistics used by Commander Rodriguez, WVPD’s expert, are not only

inaccurate, but also that they present a distorted picture of arrests for domestic

violence, enforcement of protective orders, and the treatment of domestic

violence victims. She encourages this Court to rely on the data offered by her

own expert, Kline, which she contends proves that the WVPD had an unwritten

policy of minimizing allegations of domestic violence. While we are not

convinced that Kelley has proven that women were “systemically shortchanged

or deprived of effective law enforcement response by the City’s policies,” Beltran,

367 F.3d at 305, taking the evidence in a light most favorable to her, Kelley’s

evidence raises a genuine issue of material fact as to whether the WVPD failed

to follow state law regarding domestic violence victims. In reaching this

conclusion, we are swayed by Kline’s report, which asserts that WVPD police

officers consistently failed to generate offense reports, failed to report family

violence to the DPS, and failed to conduct the primary duties of police officers as

mandated by the Family Violence Prevention provisions of the Texas Code of

Criminal Procedure.
No. 07-40227

10

Nevertheless, ultimately we reject Kelley’s claim because she failed to

prove the second element of her gender-based equal protection claim: that

discrimination against women was a motivating factor. The Supreme Court has

defined “discriminatory purpose” as being “more than intent as volition or intent

as aware of consequences. It implies that the decisionmaker . . . selected or

reaffirmed a course of action at least in part ‘because of,’ not merely ‘in spite of’

its adverse effects upon an identifiable group.” Personnel Administrator v.

Feeney, 442 U.S. 256, 279 (1979).

Kelley contends that Kline’s expert report and findings provide evidence

of discriminatory purpose. However, “[i]t is a truism that under current Equal

Protection Clause jurisprudence, a showing of disproportionate impact alone is

not enough to establish a constitutional violation . . . . The mere existence of

disparate treatment—even widely disparate treatment—does not furnish

adequate basis that discrimination was [impermissibly] motivated.” Soto v.

Flores, 103 F.3d 1056, 1067 (1st Cit. 1997) (internal quotation marks and

citations omitted). Even though Kline’s report highlights the various ways in

which the WVPD failed to follow Texas state law regarding domestic violence

victims, nothing she presents demonstrates a desire by the police department to

discriminate against women. Without this showing of “invidious

discrimination,” Shipp, 234 F.3d at 914, Kline’s findings are insufficient to

satisfy the second element of Kelley’s equal protection claim.

Further, although Kelley presented evidence that various police officers

threatened that her children would be taken away from her by the Department

of Human Services if she continued calling, such evidence is also insufficient.

As the district court wrote:

While the comments may be deemed hurtful toward the Plaintiff,

the equal protection claim that is before the Court is based on the

alleged discriminatory impact of a policy or custom of Defendants to

provide less police protection to victims of domestic assault than
No. 07-40227

11

other assault victims. The evidence relied upon by Plaintiff is not

material on the ultimate issue of whether victims of family violence

received less protection than those of other crimes or that

Defendants discriminated purposefully with respect to the service

of protective orders in domestic violence cases.

We agree, and accordingly, hold that Kelley has failed to establish that

discrimination against women was a motivating factor. In light of that, we need

not analyze her claim under the third element, namely whether she was injured

by the policy, custom, or practice.

2.

Next, Kelley asserts that a genuine issue of material fact exists to show

that her constitutional rights to equal protection as a victim of domestic violence

were violated as a “class of one” and that there was no rational basis for that

treatment. We find her argument unpersuasive. 

In Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), the Supreme

Court recognized that equal protection claims can be brought by a “‘class of one,’

where the plaintiff alleges that she has been intentionally treated differently

from others similarly situated and that there is no rational basis for the

difference in treatment.” To prevail on such a cause of action, a plaintiff does not

have to allege membership in a protected class or group. Shipp, 234 F.3d at 916.

However, this Court requires a plaintiff “to present evidence that the defendant

deliberately sought to deprive him of the equal protection ofthe laws for reasons

of a personal nature unrelated to the duties of the defendant’s position.” Id.

(quoting Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000)). 

At most, Kelley has alleged that several WVPD officers made some

inappropriate comments to her; she does not dispute that the WVPD consistently

responded to the calls she made between November 2002 to July 2003, and she

presented no evidence that the WVPD treated her, in any meaningful way,

different than any other domestic violence victim. This case is distinguishable
No. 07-40227

12

from Shipp, where Cherie Shipp made a much stronger showing for her “class

of one” claim. Shipp presented evidence which concretely raised the possibility

that her mother-in-law’s hostility towards her influenced the level of protection

she received from the police department, since her mother-in-law was a deputy

at the department who was “intimately involved” in the situation that led to the

filing of Shipp’s lawsuit. 234 F.3d at 916-17. Here, Kelley’s evidence does not

rise to such a level. Accordingly, she has failed to demonstrate that Defendants

“deliberately sought to deprive [her] of the equal protection of the laws.” 

III. CONCLUSION

While the facts of this case are undeniably tragic, Kelley has failed to

make outthe elements for her equal protection claims. Therefore, the judgment

of the district court is AFFIRMED.