IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40867
Summary Calendar
BETH L MARTIN, Individually and as Next Friend
of Matthew Jordan Martin, a Minor, and as Personal
Representative for the Estate of James F Martin,
Deceased; MATTHEW JORDAN MARTIN, A Minor; JAMES
F MARTIN, Deceased
Plaintiffs-Appellants
v.
CITY OF LEAGUE CITY; WILLIAM SCHULTZ; CHRIS REED;
JAIME CASTRO; JAMES MAYNARD, III; ELISABETH HERNANDEZ;
DONNA HACKER; ALBERT DUNAWAY, III; UNKNOWN EMPLOYEES,
OFFICERS AND/OR AGENTS OF CITY OF LEAGUE CITY; RICHARD JAMES
HERNANDEZ, also known as Rick Hernandez
Defendants-Appellees
--------------------
Appeal from the United States District Court
for the Southern District of Texas, Galveston
USDC No. G-98-CV-266
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June 14, 2000
Before KING, Chief Judge, and DAVIS and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Plaintiffs-appellants appeal the dismissal with prejudice of
their federal claims for “failure to state a claim upon which
relief can be granted.” FED. R. CIV. P. 12(b)(6). For the
following reasons, we affirm.
*
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this opinion should not be published and is not precedent except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.
I. FACTUAL AND PROCEDURAL BACKGROUND
According to the Second Amended Complaint filed in this
case, James Martin had a history of mental difficulties. On
August 22, 1996, James’s wife, Beth Martin, contacted the
Emergency Medical Service (“EMS”) seeking help for her husband,
who was acting irrationally. Before EMS arrived, Defendants-
Appellees William Schultz and Chris Reed, two City of League City
police officers, arrived at the Martin home. They found James
outside in the rain; he appeared disoriented, violent, and
incoherent. EMS technicians arrived shortly thereafter and
evaluated James. In addition to determining that he was mentally
ill, they found signs of intoxication. Schultz and Reed
contacted the on-call representative of the Department of Mental
Health and Mental Retardation (“MHMR”) and spoke to Defendant-
Appellee Jaime Castro,1 who advised them either to file charges
against James or take him into protective custody. Schultz and
Reed did not follow Castro’s suggestion, but instead directed
Beth and her minor son, Matthew Martin, to leave their home.
Beth and Matthew complied with the officers’ direction and left.
Unbeknownst to Beth, the officers and EMS technicians left some
time later, leaving James alone in the Martin home. When Beth
returned home the next day, she discovered that James had
committed suicide.
1
Castro asserts that he was not on call for MHMR but was a
Deputy Sheriff for the County of Galveston.
2
Beth filed suit on her own behalf, on behalf of Matthew, and
as the personal representative of James’s estate (“Appellants”)
against the city of League City, officers Schultz and Reed,
Castro, the EMS technicians, and others, raising federal claims
under 42 U.S.C. § 1983 and various state law claims. The
complaint was amended twice, and in the process the suit was
whittled down, leaving the city, the officers, and Castro as
defendants. Pursuant to Federal Rule of Civil Procedure
12(b)(6), the district court dismissed all federal claims with
prejudice for failure to state a claim upon which relief could be
granted and, additionally, dismissed all state claims without
prejudice. Appellants timely appeal.
II. STANDARD OF REVIEW
We review de novo a dismissal for failure to state a claim,
applying the same standard used by the district court: a claim
may not be dismissed unless it appears certain that no set of
facts can be proved by the plaintiff in support of her claim that
would entitle her to relief. Norman v. Apache Corp., 19 F.3d
1017, 1021 (5th Cir. 1994); Carney v. RTC, 19 F.3d 950, 954 (5th
Cir. 1994). “The complaint must be liberally construed in favor
of the plaintiff, and all facts pleaded in the complaint must be
taken as true.” Shipp v. McMahon, 199 F.3d 256, 260 (5th Cir.
2000).
III. DISCUSSION
3
We note first that Appellants fail to raise an argument
concerning a cause of action against Defendant-Appellee City of
League City. Any claims against the city are therefore deemed
abandoned on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).
Plaintiffs’ federal claims are based upon 42 U.S.C. § 1983.2
“To state a claim under § 1983, a plaintiff must (1) allege a
violation of rights secured by the Constitution . . . and (2)
demonstrate that the alleged deprivation was committed by a
person acting under color of state law.” Leffall v. Dallas
Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994). Appellants
here allege violations of James’s rights under the Fourteenth
Amendment and the Fourth Amendment of the United States
Constitution.3
First, Appellants argue that they pleaded a Fourteenth
Amendment claim based on the theory of state-created danger.
According to Appellants, the individual defendants created a
2
Section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983 (Supp. III 1997).
3
Below, Appellants advanced an additional substantive due
process argument premised on a special relationship. They have
abandoned that argument on appeal.
4
danger by directing Beth and her son to leave their home and then
leaving James alone while he was in a mentally unbalanced state.
We have never recognized liability for a violation of substantive
due process rights premised on the theory of state-created
danger. See Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412,
1415 (5th Cir. 1997) (en banc). Assuming without deciding,
however, that the theory is constitutionally sound, the district
court did not err in determining that the allegations in the
complaint failed to state such a claim. In Doe, we explained
that, in order for a plaintiff to succeed under the state-created
danger theory, “‘[t]he environment created by the state actors
must be dangerous; they must know it is dangerous; and, to be
liable, they must have used their authority to create an
opportunity that would not otherwise have existed for the third
party's crime to occur.’” Id. at 1415 (quoting Johnson v. Dallas
Indep. Sch. Dist., 38 F.3d 198, 201 (5th Cir. 1994)). There is
no indication in the Second Amended Complaint that the officers
knew that leaving James alone in the house created a danger that
he would commit suicide. Merely alleging that he was violent,
incoherent or disoriented is not enough. “The key to the
state-created danger cases . . . lies in the state actors’
culpable knowledge and conduct in affirmatively placing an
individual in a position of danger, effectively stripping a
person of [his] ability to defend [him]self, or cutting off
potential sources of private aid.” Johnson, 38 F.3d at 201
(internal quotation marks omitted). Thus, the officers must have
5
known that James was suicidal before they can be viewed as having
placed him in a position of danger.
Appellants also argue that their complaint stated a Fourth
Amendment claim premised on the officers’ purported unreasonable
release of James. They cite no authority, nor have we found one,
for the proposition that the Fourth Amendment protects an
individual from an unreasonable release by a government agent.
Because Appellants have failed sufficiently to allege a violation
of rights secured by the Constitution, they have failed to state
a claim upon which § 1983 relief can be granted.
IV. CONCLUSION
Based upon the foregoing, the judgment of the district court
dismissing Appellants’ federal claims pursuant to Rule 12(b)(6)
is AFFIRMED.
6