IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41291
Summary Calendar
MARY R. SHEERAN,
Plaintiff-Appellant,
versus
JAMES SCHOEPNER, Chief in his official
capacity as Police Chief; CITY OF
HARLINGEN; JOE HILDRETH, in his official
capacity as police investigator,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-98-CV-20
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September 30, 1999
Before KING, Chief Judge, and JOLLY and BENAVIDES, Circuit Judges.
PER CURIAM:*
Mary R. Sheeran appeals the district court’s dismissal of her
complaint pursuant to Fed. R. Civ. P. 12(b)(6). Her amended
complaint named as defendants Police Chief James Schoepner, Officer
Joe Hildreth, and the City of Harlingen, Texas. She alleged that
in violation of the Fourth and Fourteenth Amendments, Schoepner and
Hildreth unreasonably failed to enforce a protective order she
obtained in response to violence by her ex-husband. She alleged
*
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that this opinion should not be published and is not precedent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.
No. 98-41291
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that the City of Harlingen inadequately trains its police officers
about domestic violence and discriminatorily provides less
protection to victims of domestic assaults compared to victims of
other assaults.
The defendants moved to dismiss the complaint. A magistrate
judge recommended that the motion to dismiss be granted. He
observed that the Due Process Clause of the Fourteenth Amendment
imposes no general duty on government officials to protect
individual citizens from crime. He noted, however, that the
Government may have an affirmative duty to protect persons with
which it has a “special relationship.” Because Sheeran was never
involuntarily confined by the Government, the magistrate determined
that no “special relationship” existed between Sheeran and the
individual defendants. The magistrate recommended that Sheeran’s
claim against the City of Harlingen be dismissed because no due
process violation could be shown.
Sheeran filed objections to the magistrate judge’s
recommendation. She argued that, for purposes of the Due Process
Clause, a “special relationship” with the defendants had been
created by the Violence Against Women Act (VAWA). The district
court disagreed. After conducting a de novo review, it adopted the
magistrate judge’s Report and Recommendation and dismissed
Sheeran’s complaint.
We review de novo a district court’s dismissal of a complaint.
Capital Parks, Inc. v. Southeastern Adver. & Sales Sys., Inc., 30
F.3d 627, 629 (5th Cir. 1994). Such a dismissal will be upheld
“only if it appears that no relief could be granted under any set
No. 98-41291
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of facts that could be proven consistent with the allegations.”
Id. (citation omitted). All well-pleaded facts are accepted as
true and are viewed in the light most favorable to the plaintiff.
Id.
The appellees argue that Sheeran waived her arguments by not
objecting on those bases to the magistrate judge’s recommendation.
The appellees are mistaken. The district court made a “de novo
review of the entire file.” Appellate review is thus preserved.
See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th
Cir. 1996) (en banc) (noting that the court “ordinarily will not
hold that a point reviewed de novo by the district judge was not
objected to before it was so reviewed by that judge”).
Sheeran now argues that the district court erred in dismissing
her complaint because she alleged a viable equal protection
argument that she was treated differently because of her sex. Her
complaint, however, did not indicate that she was pursuing any such
claim. Although the complaint repeatedly referred to the
Fourteenth Amendment and explicitly invoked the Due Process Clause,
it never explicitly invoked the Equal Protection Clause. In
describing how the Fourteenth Amendment was violated, the complaint
referred to the defendants’ “failure to act,” their “unreasonable
conduct,” and their “failure to intervene.” There is no argument
that the defendants treated Sheeran differently from the way they
treated male victims of domestic violence, just an argument that
all victims of domestic violence, including her ex-husband’s
teenage son, received poor treatment from the defendants.
No. 98-41291
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In a case involving a claim that a municipality had a policy
of discouraging arrests in domestic violence cases, we noted that
the Due Process Clause does not make it illegal for a state
official to stand “‘by and [do] nothing when suspicious
circumstances dictate[] a more active role.’” McKee v. City of
Rockwall, Tex., 877 F.2d 409, 413 (5th Cir. 1989) (quoting
DeShaney, 489 U.S. at 203). We held that a due process claim of
this type is not transformed “into an Equal Protection claim via an
allegation that state officers exercised their discretion to act in
one incident but not in another.” McKee, 877 F.2d at 413. To
raise an equal protection claim on such facts, the plaintiff must
allege that a “non-arrest was the result of discrimination against
a protected class.” Id. at 414. Sheeran made no such allegation.
No set of facts that could be proved consistent with the
allegations of the complaint shows an equal protection violation.
The complaint thus failed to state a claim under the Equal
Protection Clause. Capital Parks, 30 F.3d at 629.
Sheeran argues that the district court improperly dismissed
her due process claim. To circumvent the general rule of DeShaney,
that state officials do not ordinarily have an affirmative duty to
protect citizens from third parties, she argues that (i) she was in
the “constructive custody” of the defendants and (ii) the
defendants’ failure to enforce her protective order constituted a
“state-created danger.” See DeShaney, 489 U.S. at 199-200 (noting
an exception to the general rule “when the State takes a person
into its custody and holds him there against his will”).
No. 98-41291
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Nowhere in the complaint did Sheeran invoke the “state-created
danger” theory or argue that the defendants’ conduct, such as
Officer Hildreth’s statement that Sheeran should never have gotten
a gun, amounted to constructive custody. Just as Sheeran failed to
plead any equal protection claim in her complaint, Sheeran failed
to plead the particular due process arguments she presses on
appeal. See Capital Parks, 30 F.3d at 629.
AFFIRMED.