IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20402
Summary Calendar
JUDY BLANDO, Individually, and as
Representative and Administrator of the
Estate of Troy Blando-Deceased and as
next friend for Daniel Blando a minor child;
DANIEL BLANDO, a minor; DELLA BLANDO,
Plaintiffs-Appellants,
versus
LESTER TYRA, Etc.; ET AL,
Defendants,
CITY OF HOUSTON, TEXAS,
Defendant-Appellee.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-1680
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December 16, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Judy and Della Blando appeal the dismissal of their 42
U.S.C. § 1983 claims against the City of Houston, Texas, pursuant
to FED. R. CIV. P. 12(b)(6). This court conducts a de novo review
of a Rule 12(b)(6) dismissal for failure to state a claim. Roark
*
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that this opinion should not be published and is not precedent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. 02-20402
-2-
v. Humana, Inc., 307 F.3d 298, 313 (5th Cir. 2002). All well-
pleaded factual allegations in the complaint are accepted as
true, and the complaint is construed in the light most favorable
to the plaintiffs. Herrmann Holdings, Ltd. v. Lucent
Technologies, Inc., 302 F.3d 552, 557 (5th Cir. 2002).
The Blandos argue that a state-created danger deprived
Officer Troy Blando of his constitutional right to life. This
court has not expressly adopted nor expressly rejected the state-
created-danger theory of recovery under 42 U.S.C. § 1983. Morin
v. Moore, 309 F.3d 316, 321 (5th Cir. 2002); see also McClendon
v. City of Columbia, 305 F.3d 314, passim, (5th Cir. 2002)(en
banc).
The Blandos’ claims were properly dismissed even were this
court to adopt the state-created-danger theory. For a plaintiff
to prevail under the state-created-danger theory, the plaintiff
must show that 1) the environment created by a state actor was
dangerous, 2) the state actor knew of the danger, and 3) the
state actor used his authority to create an opportunity that
otherwise would not have existed for a third-party’s crime to
occur. Randolph v. Cervantes, 130 F.3d 727, 731 (5th Cir. 1997).
The Blandos failed to show that the environment created by the
City of Houston was dangerous. See Salas v. Carpenter, 980 F.2d
at 306-07, 310. Officer Blando was fatally wounded by a gunshot
wound inflicted by a third party. The Due Process Clause of the
Fourteenth Amendment does not generally require the government to
No. 02-20402
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protect its citizens against the acts of private actors.
DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189,
195 (1989). Thus, the plaintiffs did not allege a constitutional
violation for which 42 U.S.C. § 1983 permits recovery.
The Blandos argue that the City of Houston is liable for
Officer Blando’s death. Generally, municipal liability requires
proof of 1) a policymaker, 2) an official policy or custom, and
3) a violation of constitutional rights whose moving force is the
policy or custom. Delano-Pyle v. Victoria County, Tex., 302 F.3d
567, 574 (5th Cir. 2002). Because the plaintiffs failed to
allege the violation of constitutional rights cognizable in an
action under 42 U.S.C. § 1983, the City of Houston was properly
dismissed by the district court. The judgment of the district
court is AFFIRMED.