Piotrowski v. City of Houston

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-21032

BARBRA PIOTROWSKI,

Plaintiff-Appellee-Cross-Appellant,

v.

CITY OF HOUSTON, ET AL.,

Defendants,

CITY OF HOUSTON

Defendant-Appellant-Cross-Appellee.

Appeals from the United States District Court for the
Southern District of Texas

January 17, 2001

Before JONES, BARKSDALE, and DENNIS, Circuit Judges.*

EDITH H. JONES, Circuit Judge:

Barbra Piotrowski (“Piotrowski”) sued the City of Houston

(“City”) for constitutional violations arising from its failure to

prevent her wealthy former boyfriend from attempting to kill her.

Implicated in the boyfriend’s plot was an unsavory private

investigator who had cultivated police and political friendships

and regularly hired off-duty officers to work for him and the

*
Judge Dennis dissents, reserving the right to file a dissenting
opinion at a later date.
boyfriend. In exchange for the detective’s favors, officials in

the Houston Police Department allegedly covered up his and their

coworkers’ misdeeds. Piotrowski persuaded a jury that the City is

liable for her shooting, and she was awarded a judgment of over $20

million. The City has appealed on numerous grounds. This court

finds that despite the misconduct of several City employees, the

evidence does not support municipal liability or liability based on

a state-created danger theory. Additionally, the statute of

limitations ran on Piotrowski’s equal protection claim. We reverse

and render judgment in favor of the City.

I. FACTUAL AND PROCEDURAL BACKGROUND

This is a disturbing case -- both in terms of what

happened to Piotrowski and how members of the Houston Police

Department (“HPD”) conducted themselves before and after the

shooting. Piotrowski was shot and rendered a paraplegic by a hit

man procured by her ex-boyfriend, Richard Minns. The evidence

connected members of the Houston police and fire departments to

Minns and his hired investigator Dudley Bell in acts that harassed

and threatened Piotrowski before the shooting.

Piotrowski first met Minns while on a ski trip in Aspen,

Colorado during the winter of 1976. She was then a twenty-three

year old nursing student from California; Minns was a forty-six

year old married Texas multi-millionaire, and was the founder of

2
President and First Lady health clubs. Minns was in the process of

divorcing his first wife. In the spring of 1977, Minns persuaded

Piotrowski to move to Houston, and the two began living together.

During this period, Piotrowski worked as a business consultant and

model for Minns’s health clubs.

During the roughly three years they lived together, their

relationship deteriorated. According to Piotrowski, Minns started

attending wild parties and taking drugs. He became increasingly

violent toward her, physically abusing her on at least two

occasions. One of his blows broke her nose and hand. In March

1980, the relationship ended. Piotrowski had become pregnant.

Minns, during an argument, began to push her and told her to have

an abortion or move out. Piotrowski packed up her belongings and

left Minns’s Houston apartment.

Minns continued to harass Piotrowski after she left him.

The harassment took a variety of forms -- threatening Piotrowski

and her family, filing frivolous charges against her, vandalizing

her property as well as her attorney’s office, and even placing a

stalling device on her car. But what makes this domestic dispute

especially unusual is that Minns used the services of at least two

members of the HPD as well as one member of the Houston Fire

Department to harass Piotrowski.

Initially, Minns contacted Mickey Brown, a member of the

Houston Arson Department who also taught boxing to Minns’s

3
children, to concoct an arson charge against Piotrowski. Brown, in

turn, contacted Detective “Spider” Fincher of the HPD to discuss

possible theft charges against Piotrowski. Fincher worked off duty

for Dudley Bell, the central figure in Piotrowski’s case. Bell was

a private investigator with his own criminal record.2 Bell

arranged the murder contract on Piotrowski.

Fincher telephoned Piotrowski and told her she would be

arrested for arson and for felony grand theft (relating to items

Piotrowski took with her upon leaving Minns’s apartment) unless she

signed a document releasing Minns from all common law marriage and

paternity claims. Brown threatened her with the arson charge if

she did not sign such an agreement.3

Piotrowski tried to reach a settlement with Minns. But

instead of waiting for her to review a proposed agreement, Minns

and Bell, with help from their contacts at the HPD, decided to put

more pressure on Piotrowski. Minns invited Piotrowski to meet at

his hotel so that the two could work out their differences.

Piotrowski agreed. Once at the hotel, though, Minns summoned the

2
Bell’s criminal history included charges and/or convictions for
arson, wiretapping, federal perjury, and bribing a police officer to mis-file the
criminal records of one of Bell’s clients. In 1972, Bell owned a night club with
the then-Chief of the Fire Department. When the club burned down, the Fire Chief
allegedly had arson charges against Bell dismissed. Bell was also known to have
other friends in the HPD as well as in Houston politics.
3
Brown allegedly claimed that Piotrowski had tried to blow Minns up
by exposing electrical wires in their apartment and (somehow) rigging a toilet
such that methane and other gases would build up in the home. When Minns turned
on the lights, the gases would ignite, killing Minns.

4
police to arrest Piotrowski on the theft charges -- based on an

arrest warrant that Minns had in his possession. Minns invited the

officers at the scene to contact Fincher and HPD Detective Charles

Wells, who also worked part-time for Bell, if the officers doubted

the warrant’s authenticity. Given the unique circumstance that the

complainant possessed the warrant, the surprised officers accepted

Minns’s offer. After receiving assurances of authenticity from

either Fincher or Wells, on duty at HPD, the officers arrested

Piotrowski.

Piotrowski was interrogated at an HPD station by Fincher

and Wells, who produced the settlement agreement and told her that

she could avoid theft charges by signing it. She refused. As a

result, she was fingerprinted, photographed and forced to spend

time in jail before being released.

Shortly after being released, Piotrowski was returning to

her apartment from a friend’s birthday party. Upon arriving at her

residence, she became alarmed that Minns, Bell, Fincher, and Wells

(among others) were gathered outside. Piotrowski attempted to call

her lawyer from a public phone. Officer Wells prevented her from

completing the call and escorted her to her apartment, which he and

Fincher and Minns then searched. Minns directed the men to remove

various items that he claimed were his. Although Wells and Fincher

implied that they had a search warrant, Piotrowski never saw it.

Bell remained in the parking lot during the search and allegedly

5
vandalized and slashed the tires on the cars of Piotrowski and her

attorney.

Toward the end of April 1980, Piotrowski filed a formal

complaint with HPD’s Internal Affairs Division (“IAD”) about the

conduct of Fincher and Wells.4 In fact, Piotrowski and her family

filed several complaints with the HPD about the conduct of Minns,

Bell, Fincher, and Wells in the months after she moved out of

Minns’s apartment. The complaints identified those men as the

perpetrators of harassment and intimidation, and Piotrowski stated

that Minns had threatened her life on several occasions. The HPD

informed Piotrowski that they had investigated the various charges

and found no wrongdoing by the police officers. Thus, despite her

protests, no action was taken to stop the harassment or to

discipline Fincher and Wells.

In May the office of Piotrowski’s attorney was

burglarized and set on fire. Files pertaining to Piotrowski’s case

were removed. At about this time, Minns directed Bell to rent an

apartment below Piotrowski’s in order to keep track of her. From

4
During this time, Minns and his associates also harassed Piotrowski’s
family. Minns and Brown contacted Piotrowski’s father, telling him that his
daughter might go to prison if he did not convince her to work things out with
Minns. A business partner of Minns told Piotrowski’s father that she would get
$20,000 if the father would convince his daughter to leave Texas. On another
occasion, Bell and Wells traveled to California and searched the home of
Piotrowski’s parents, apparently without a warrant. Posing as IRS agents, they
detained Piotrowski’s mother and her guests, searched the house for property
belonging to Minns, and even took a necklace off of the mother’s neck.
Piotrowski’s parents filed IAD complaints following these events. No action was
taken against Wells, and the necklace was never recovered.

6
this apartment, Adrian Franks, who worked for Bell, tapped

Piotrowski’s phone and recorded her calls.5 As Franks also

monitored Piotrowski’s comings and goings, he knew what she looked

like and what car she drove. While Franks was spying on

Piotrowski, Bell offered him $10,000 to kill her. Franks agreed.

Bell supplied Franks with a packet of information on Piotrowski

which included a police-style mug shot of her that could have been

taken when she was interrogated by Fincher and Wells.

Franks installed a kill switch on Piotrowski’s car in

July.6 Fortunately, the device did not function properly.

Piotrowski’s car stalled, but she was not hurt. The police

initially thought the device was a bomb. After determining that it

was a kill switch, HPD investigators turned the matter over to the

burglary and theft division -- the division in which Fincher and

Wells worked. Although Minns was listed as a suspect on at least

one police report, Minns was never questioned about the incident.

Piotrowski knew her life was in danger.

5
Franks began cooperating with the police in 1984 and his testimony
helped to convict Bell of solicitation of capital murder for the attempt on
Piotrowski, for which Bell was sentenced to 38 years in prison. Franks also
confessed to burglarizing the office of Piotrowski’s lawyer but denied starting
a fire in that building. Franks was never charged with any offense related to
Piotrowski’s harassment.
6
Besides placing the kill-switch on Piotrowski’s car, Franks testified
that on another occasion he followed her on his motorcycle with a kitchen knife.
After deciding that he would not kill her himself, Franks tried to “subcontract”
the job to another man in Piotrowski’s apartment complex, known as “Bobby.”
Bobby disguised himself and went to Piotrowski’s apartment with a knife.
Fortunately, Piotrowski was not home at the time, and Bobby did not make another
attempt on her life.

7
 Undeterred by Franks’s failure, Bell shopped the murder

contract to other would-be assassins. Bell spoke to at least three

other people about killing Piotrowski: James Perry Dillard, Rick

Waring, and Robert Jess Anderson. Anderson ultimately hired

Nathaniel Ivery, the gunman, and Patrick Steen, the driver of the

getaway car, to kill Piotrowski. On October 20, 1980, Ivery shot

Piotrowski four times while she was sitting in her parked car

outside a doughnut shop in Houston. The shooting paralyzed

Piotrowski from the chest down. Ivery, Steen, Anderson, and Bell

were all eventually convicted for their roles in the shooting.

Whether HPD was forewarned of the possible shooting was

disputed at trial. Approximately five weeks before the shooting,

Waring told his friend John Liles, an officer in the criminal

intelligence division of the HPD, that Bell had solicited Waring

and others to murder Piotrowski. According to Waring, Liles

responded that the matter was now in police hands and that Waring

should not warn Piotrowski.

Liles testified that he took the tip seriously and

reported it to his supervisor, Lieutenant Reece. According to

Liles, Reece prevented Liles from investigating the tip on his own

and told Liles to submit a report to Captain Adams, the head of the

8
homicide division.7 Adams testified that he first became aware of

the tip when Liles called him the morning after the shooting.

Adams said that he never saw a report from Liles and would have

acted on it had he seen it. Detective Kenneth Ray Williamson, who

headed HPD’s investigation of the shooting, testified that he did

not think that Liles ever wrote a report before the shooting given

Liles’s personal connections with Waring and Bell.

Despite assurances that the HPD was conducting a full

investigation, Piotrowski maintains that the HPD was actually

closing ranks and protecting Minns, Bell, Fincher, and Wells.

Despite the facts that (1) Waring, Anderson, and Dillard all told

Williamson that Bell had offered them $10,000 to kill Piotrowski,

and (2) Bell’s ex-wife turned over a note in Bell’s handwriting

that listed a dollar amount of $10,000 and Piotrowski’s name,

address, and type of vehicle, Bell was not charged with

solicitation of capital murder until Franks offered to assist the

police in 1984. Minns was allowed to leave the country without

ever being interrogated, subpoenaed, or charged in relation to the

shooting of Piotrowski.

7
Although Liles contends that he did write and file such a report, the
only reference to a murder-for-hire tip is an entry in a criminal intelligence
division (“CID”) log that ascribes a CID case number, refers to Liles’s name, and
includes the notation “solicitation of capital murder” with the date “9-8 of
‘80.” No officer, including Liles, was able to produce a copy of the report.

9
 Piotrowski’s suit against the City is based largely on a

deposition given by Liles in early 1993 for another case.8 In that

deposition, Liles charged that the homicide division “dropped the

ball” on his tip by failing to warn Piotrowski. He claimed that

Reece prevented him and another officer from warning Piotrowski and

that the HPD closed ranks to protect the officers involved in the

investigation, especially those who had a close relationship with

Bell.

Not until September 1993, after learning about the

contents of Liles’s deposition, did Piotrowski file her first

lawsuit against the City. Piotrowski alleged that the City

violated 42 U.S.C. § 1983 by depriving her of due process and equal

protection rights under the Constitution. In particular, she

asserted that the City violated substantive due process by

maintaining a custom or policy that affirmatively helped Bell to

carry out the attack on her. She also alleged that the City denied

her equal protection of the laws by discriminating against women in

domestic violence disputes while favoring wealthy men in such

suits.

8
Liles sued Williamson (and others) for libel for statements made in
a book written about Piotrowski’s case, entitled Sleeping with the Devil. As
part of that case, Liles’s deposition was taken. Piotrowski claims that Liles’s
deposition revealed new information to her about the HPD preventing Waring from
warning her and the HPD’s “code of silence” regarding possible mistakes in the
investigation. As discussed below, Piotrowski argues that she could not
establish her § 1983 claim before receiving this information.

10
 The district court granted the City’s motion to dismiss

the case with prejudice under Fed. R. Civ. P. 12(b)(6) on the

ground that Piotrowski’s complaint was time-barred. On appeal,

this court held that fact issues existed on the statute of

limitations, but it also observed that Piotrowski had failed to

“allege that a causal link existed between a City policy or custom

and the alleged state-created danger.” See Piotrowski v. City of

Houston, 51 F.3d 512, 517 (5th Cir. 1995) (“Piotrowski I”). While

her pleading deficiency warranted dismissal, it was possible that

Piotrowski could allege such a causal connection. Hence, this

court modified the judgment to preserve Piotrowski’s right to file

an amended complaint.

Further procedural jockeying in the district court led

Piotrowski to file a second lawsuit against the City in August

1995. In January 1998, a jury found for Piotrowski on her state-

created danger and equal protection claims. The district court

entered a judgment in excess of $26 million, including attorney

fees.

The City timely appealed. Among many issues it has

raised, we need discuss only the statute of limitations verdict and

the questions surrounding municipal liability.

II. ANALYSIS

A. Statute of Limitations

11
 The City first contends that judgment as a matter of law

should have been granted to reverse the jury’s finding that

Piotrowski’s complaint was not time-barred.9 The statute of

limitations for a suit brought under § 1983 is determined by the

general statute of limitations governing personal injuries in the

forum state. See Pete v. Metcalf, 8 F.3d 214, 217 (5th Cir. 1993).

Since Texas has a two year statute of limitations for personal

injury claims, see Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir.

1989),10 Piotrowski had two years to file suit from the date her

claim accrued.

Accrual of a § 1983 claim is governed by federal law:

“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. Bd. of Trustees, 968 F.2d 489, 493 (5th Cir.

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

9
This court reviews a district court’s denial of a motion for judgment
as a matter of law de novo, applying the same standard as the district court.
See Rutherford v. Harris Count, Texas, 197 F.3d 173, 178 (5th Cir. 1999). The
district court properly grants a motion for judgment as a matter of law only if
the facts and inferences point so strongly in favor of one party that reasonable
minds could not disagree. See id. at 179. “In ruling on a rule 50 motion based
upon the sufficiency of the evidence, we ‘consider all of the evidence -- not
just that evidence which supports the non-mover’s case -- but in the light and
with all reasonable inferences most favorable to the party opposed to the
motion.’” Information Communication Corp. v. Unisys Corp., 181 F.3d 629, 633
(5th Cir. 1999)(quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.
1969)(en banc)).

10
See also Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon Supp.
1998).

12
1987)), cert. denied, 507 U.S. 914, 113 S.Ct. 1266 (1993). 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.” Piotrowski I, 51 F.3d at

516. A plaintiff need not know that she has a legal cause of

action; she need know only the facts that would ultimately support

a claim. See Harrison v. United States, 708 F.2d 1023, 1027 (5th

Cir. 1983). Actual knowledge is not required “if the circumstances

would lead a reasonable person to investigate further.” Piotrowski

I, 51 F.3d at 516.11

The City argues that Piotrowski either knew of the facts

underlying her claims at the time of the attack in 1980 or should

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

With respect to the state-created danger theory, Piotrowski

responds that the HPD’s “code of silence” precluded her from

knowing pertinent facts until January 1993, when Liles was deposed

in relation to his pending libel suit against Williamson and

others. From that deposition, Piotrowski alleges that she learned

for the first time that the HPD took affirmative steps to suppress

11
See also 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 and Trust Co., 635 F..2d 455, 459 (5th Cir. 1981)))

13
any information concerning their investigation and the HPD’s prior

knowledge of the Waring tip.12

At trial, the City did not object to the form of the jury

interrogatory that asked whether the plaintiff knew or should have

known of the causal connection between her injuries and “the

defendant’s actions creating a state-created danger” on or before

September 27, 1991 (two years before suit was filed). The jury

decided that Piotrowski should not have known about the facts

concerning causation before this time.13

There is sufficient evidence for the jury to have

concluded that Piotrowski could not make a case for the City’s

possible affirmative involvement in the contract on her life until

Liles’s 1993 deposition. Only after the deposition could

Piotrowski suspect that the City, as opposed to individual

officers, had actively protected and/or assisted Bell. The

12
The City contends that Piotrowski had all the information relevant
to her § 1983 claims shortly after she was shot. According to the City,
Piotrowski knew the police (1) had received a tip (the book, Sleeping with the
Devil, published in 1991, discussed this tip), (2) had not advised her of the
tip, and (3) failed to prevent the attack on her. Piotrowski maintains that she
did not know until after Liles’s deposition that the City itself, as opposed to
individual officers, had a policy of assisting Bell and keeping information from
Piotrowski.
13
In cases where fraudulent concealment is involved, the statute of
limitations does not begin to run until the relevant facts, which are in the
control of the defendant, become known to the plaintiff: “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.” Piotrowski I, 51 F.3d at
517. See also United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 359
(1979); Frazier v. Garrison Indep. Sch. Dist., 980 F.2d 1514, 1521-22 (5th Cir.
1993).

14
deposition revealed that: (1) Waring and Liles were deterred from

warning her, (2) Franks had received a police mug shot of

Piotrowski from Bell, and (3) the police had a “code of silence”

with respect to the investigation into her shooting. (Whether such

facts, if proved, were sufficient to sustain a claim is another

matter, discussed infra.) Thus, Piotrowski’s first action was

timely filed, within eight months of her learning of the ostensible

causal connection in January 1993.14

However, the same is not true for Piotrowski’s equal

protection claim, a claim not predicated on any facts learned from

Liles’s 1993 deposition. Piotrowski testified that, in 1980, she

“didn’t feel as if [she and Minns] were being treated equally,” and

that she “didn’t feel as if [she] was being treated in the same

manner that Richard Minns was being treated in response to [his]

complaints.” In fact, in an interview with an officer

investigating one of her IAD complaints against Fincher and Wells,

Piotrowski asked the officer “[w]hy all their protection is on

14
The doctrine of equitable tolling protects her second suit, filed in
1995, from untimeliness. When the applicable statute of limitations is borrowed
from the state, that state’s tolling provisions are to be the “primary guide” for
the courts. FDIC v. Dawson, 4 F.3d 1303, 1312 (5th Cir.), cert. denied, 512 U.S.
1205, 114 S. Ct. 2673 (1993). Under Texas law, “where a person is prevented from
exercising his legal remedy by the pendency of legal proceedings, the time during
which he is thus prevented should not be counted against him in determining
whether limitations have barred his right.” Jackson v. Johnson, 950 F.2d 263,
265 (5th Cir. 1992)(citing Weisz v. Spindletop Oil and Gas Co., 664 S.W.2d 423,
425 (Tex. App.–Corpus Christi 1983, no writ)). Piotrowski was prevented from
filing suit because the trial court had initially dismissed her claim with
prejudice, a disability not removed until the decision of this court in
Piotrowski I.

15
[Minns’s] side.” Piotrowski thus fails to explain what information

in Liles’s deposition was not known or could not have been

discovered through due diligence. Although the deposition may have

revealed information concerning the HPD’s custom or policy of

protecting and assisting Bell, the information is unrelated to

Piotrowski’s equal protection claim.15 As a result, the equal

protection claim is time-barred, and the judgment on that claim

cannot be sustained.

B. The City’s Liability

1. Municipal Policy and Culpability

Under the decisions of the Supreme Court and this court,

municipal liability under section 1983 requires proof of three

elements: a policymaker; an official policy; and a violation of

constitutional rights whose “moving force” is the policy or custom.

Monell v. Dep’t. Of Social Sciences, 436 U.S. 658, 694, 98 S.Ct.

2018, 2037 (1978).16 Monell and later decisions reject municipal

15
The equal protection clause requires that all persons similarly
situated be treated alike. See City of Cleburne, Texas v. Cleburne Living
Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254 (1989). In order to
establish a violation of equal protection, a plaintiff must show “‘the existence
of purposeful discrimination’ motivating the state action which caused the
complained-of injury.” Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir.
1997)(quoting McClesky v. Kemp, 481 U.S. 279, 292-93, 107 S. Ct. 1756, 1767
(1987)). Piotrowski relies on Liles’s deposition to establish that the HPD had
a policy of protecting Bell and/or other members of the HPD. But Liles’s
deposition simply does not speak to intentional discrimination against Piotrowski
based on an impermissible classification (be it wealth or gender).
16
The municipal policy must cause the violation of another’s rights:

[Section 1983] imposes liability on a government that,
under color of some official policy, “causes” an

16
liability predicated on respondeat superior, because the text of

section 1983 will not bear such a reading. Bd. of Comm’rs of Bryan

County v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 1388 (1997).

Consequently, the unconstitutional conduct must be directly

attributable to the municipality through some sort of official

action or imprimatur;17 isolated unconstitutional actions by

municipal employees will almost never trigger liability. Bennett

v. City of Slidell, 728 F.2d 762, 768 n.3 (5th. Cir. 1984), cert.

denied, 472 U.S. 1016 (1985); McKee v. City of Rockwall, 877 F.2d

409, 415 (5th Cir. 1989), cert. denied, 493 U.S. 1023 (1990).18 The

three attribution principles identified here – a policymaker, an

official policy and the “moving force” of the policy – are

necessary to distinguish individual violations perpetrated by local

employee to violate another’s constitutional rights ...
Indeed, the fact that Congress did specifically provide
that A’s tort became B’s liability if B “causes” A to
subject another to a tort suggests that Congress did not
intend § 1983 liability to attach where such causation
was absent.

Monell, 436 U.S. at 692, 98 S.Ct. at 2036.
17
Another way to put this is that there must be both municipal
culpability and causation. See Snyder v. Trepagnier, 142 F.3d 791, 796 (5th Cir.
1998) (no liability for a city where a police officer shot a § 1983 plaintiff).
Culpability includes both the involvement of a municipal policymaker and
affirmative municipal action.
18
Compare Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985).
This case is often mis-read as suggesting that municipal liability may be imposed
for individual unconstitutional acts of lower-level employees. Grandstaff
recognized that isolated instances of police misbehavior do not prove
acquiescence by a city policymaker in that conduct. The court affirmed municipal
liability, however, because the sheriff’s actions after a police shooting
essentially ratified the officers’ use of excessive force.

17
government employees from those that can be fairly identified as

actions of the government itself. Mistakes in analyzing section

1983 municipal liability cases frequently begin with a failure to

separate the three attribution principles and to consider each in

light of relevant case law.

Here, for instance, the City never insisted that

Piotrowski identify a municipal policymaker who could be held

responsible, through actual or constructive knowledge, for

enforcing a policy that caused Piotrowski’s injuries. This is not

an opaque requirement: several Supreme Court cases have discussed

the policymaker criterion for municipal liability.19 This court’s

seminal decision on municipal section 1983 liability emphasized

that:

Actual or constructive knowledge of [a] custom
must be attributable to the governing body of
the municipality or to an official to whom
that body has delegated policy-making
authority.

Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984) (en
banc).20

Webster identified the Mayor, City Council and Chief of Police as

Houston’s presumptive policymakers for the police, and stated that

19
See, e.g., Jett v. Dallas Independent School District, 491 U.S. 701,
737 (1989); St. Louis v. Prapotnik, 485 U.S. 112, 126 (1988); Pembaur v. City
of Cincinnati, 475 U.S. 469, 482-83 (1986).
20
Plainly, if a violation is caused by an unconstitutional ordinance
or regulation officially adopted and promulgated by the municipality’s lawmaking
officers or by an official who has been delegated policymaking authority, those
individuals are the policymakers. Webster, 735 F.2d at 841.

18
without proof, it was inconceivable that any officers subordinate

to the Chief “even possibly could have occupied the role of a city

policymaker.” Webster, 735 F.2d at 842. Since the City chose not

to pursue this angle of defense, no more need be said of it.

Instead, the City rests on the other two attribution

principles, those of official policy and moving force, contending

that insufficient evidence supports the verdict on these issues and

that the jury charge was inadequate. To examine these contentions,

it is necessary to sketch the rules governing municipal policy and

causation of constitutional injuries and then to apply those rules

to each of the policies subsumed by Piotrowski’s claim.

Municipal liability for section 1983 violations results

if a deprivation of constitutional rights was inflicted pursuant to

official custom or policy. Official policy is ordinarily contained

in duly promulgated policy statements, ordinances or regulations.

But a policy may also be evidenced by custom, that is:

(2). . . . a persistent, widespread practice
of City officials or employees, which,
although not authorized by officially adopted
and promulgated policy, is so common and well-
settled as to constitute a custom that fairly
represents municipal policy. . . Actions of
officers or employees of a municipality do not
render the municipality liable under section
1983 unless they execute official policy as
above defined.

Webster, 735 F.2d at 841; See also Bryan County, 520 U.S. at 405-
07, 117 S.Ct. at 1387.

19
 While an unconstitutional official policy renders a

municipality culpable under § 1983,21 even a facially innocuous

policy will support liability if it was promulgated with deliberate

indifference to the “known or obvious consequences” that

constitutional violations would result. Bryan County, 520 U.S. at

407, 117 S.Ct. at 1389, 1390.22 Deliberate indifference of this

sort is a stringent test, and “a showing of simple or even

heightened negligence will not suffice” to prove municipal

culpability. See id. It follows that each and any policy which

allegedly caused constitutional violations must be specifically

identified by a plaintiff, and it must be determined whether each

one is facially constitutional or unconstitutional.

In addition to culpability, there must be a direct causal

link between the municipal policy and the constitutional

deprivation. Monell describes the high threshold of proof by

stating that the policy must be the “moving force” behind the

violation. Monell, 436 U.S. at 694, 98 S.Ct. at 2037-2038. See

21
See n.18, supra; see also City of Newport v. Fact Concerts, 453 U.S.
247 (1981).
22
“[A] plaintiff seeking to establish municipal liability on the theory
that a facially lawful municipal action has led an employee to violate a
plaintiff’s rights must demonstrate that the municipal action was taken with
‘deliberate indifference’ to its known or obvious consequences.” Bryan County,
520 U.S. at 407, 117 S.Ct. at 1390 (citing Canton v. Harris, 489 U.S. 378, 388
(1989).

20
also Canton, 489 U.S. at 389. This court summed up the relevant

standards as follows:

Bryan County underscores the need for Monell
plaintiffs to establish both the causal link
(“moving force”) and the City’s degree of
culpability (“deliberate indifference” to
federally protected rights). These
requirements must not be diluted, for “[w]here
a court fails to adhere to rigorous
requirements of culpability and causation,
municipal liability collapses into respondeat
superior liability.”

Snyder v. Trepagnier, 142 F.3d at 796, citing Bryan County, 520
U.S. at 410, 117 S.Ct. at 1394.

Unfortunately, Piotrowski’s specification of the policies

she challenges has been vague, and she has hardly addressed their

constitutionality.23 The City denies that any policy or custom is

at all tied to Piotrowski’s injuries and instead tries to lay the

blame on the misconduct of rogue officers. The jury charge did

nothing to sort out the policies or the requirement of deliberate

indifference or to connect each policy as the moving force behind

23
Piotrowski’s reliance on a Title VII retaliation case, Sharp v. City
of Houston, 164 F.3d 923 (5th Cir. 1999), to prove the existence of a municipal
custom or policy in this case is misplaced.

21
a constitutional violation.24 Our task in analyzing the sufficiency

of evidence on appeal is immensely more complex than it should be.25

What we glean from Piotrowski’s briefs and the record are

several alleged customary policies:

(1) The City’s acquiescence in off-duty
employment of Officers Fincher, Wells and
others by Dudley Bell, a known criminal, and
Richard Minns;26

(2) the City’s failure to investigate properly
or discipline Fincher and Wells based on
Piotrowski’s complaints of their improper acts
in California; threats of prosecution;
pressure to sign an agreement with Minns;
irregular search of her apartment; and false
arrest;

(3) the City’s failure to charge Bell or Minns
for their offenses against Piotrowski,
including illegal searches, baseless
prosecutions, arson, wiretapping, the
installation of the kill switch on her car,
vandalism and theft; and

(4) the City’s affirmative assistance to the
attempted murder of Piotrowski by not
investigating the kill switch incident,
handing out her mug shot, and suppressing

24
Instead, the jury was asked to find only whether “as a result of a
custom, policy or practice, the [City] violated the Plaintiff’s civil rights by
creating a “state created danger,” which resulted in injury to the Plaintiff.”
No specific custom, policy or practice was identified in the charge or
interrogatories.
25
The test that we apply for reviewing the sufficiency of the evidence
is the Boeing standard in n.7 supra.
26
The City persists in asserting that such off-duty employment violated
HPD policies, but that position is belied by the evidence that many people in the
Department were aware of these officers’ connection with Dudley Bell and with
Bell’s hiring of other HPD officers.

22
 Waring’s and Liles’s attempts to warn her and
investigate the hit contract.27

The reason the policies or customs must be disaggregated

should be clear. Taken together, they express no single municipal

policy but only a series of adversarial conclusions by Piotrowski

(e.g., “the Houston Police Department was up for sale in 1980")

relating to her individual case. “Isolated violations are not the

persistent, often repeated, constant violations, that constitute

custom and policy as required for municipal section 1983

liability.” Bennett v. City of Slidell, 728 F.2d 762, 768 n.3 (5th

Cir. 1984), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476 (1985). A

customary municipal policy cannot ordinarily be inferred from

single constitutional violations. See, e.g., Webster, 375 F.2d at

851. Further, each of the cited customs concerns a discrete police

department program or area of decision-making, and each invokes

separate aspects of the policy issue. Finally, each alleged policy

may have had a distinct impact as the moving force of her state-

created danger claim. In Bryan County, for example, the Court

carefully distinguished between municipal liability for failure to

27
None of these “policies” was specifically distinguished in the jury
charge or interrogatories, and because Piotrowski’s closing arguments were
colloquial, the policies were not carefully articulated there either. With one
exception, the City did not insist upon greater clarity. It is imperative that
the policies for which municipal section 1983 liability is sought be specified
in the trial court. Otherwise, the line between respondeat superior liability
and truly unconstitutional municipal conduct quickly blurs, and the intent of
section 1983 is forsaken. See Snyder, 142 F.3d at 796.

23
train and liability for a single negligent hiring decision. See

Bryan County, 520 U.S. at 398, 117 S.Ct. at 1391.

Turning first to the City’s acquiescence in police

officers’ moonlighting for Dudley Bell, a policy appears to have

been proven. As the touchstone for establishing customary policy

is a persistent and widespread practice, see Webster, 735 F.2d at

841, the evidence suggested that Bell had hired off-duty policemen,

not just Fincher and Wells, for many years notwithstanding official

police department policy that would have discouraged their

employment by any man with a criminal record. This customary

policy represented the height of poor judgment, inasmuch as it

invited conflicts of interest if and when the police department

should have to investigate Bell, his employees, or the clients of

his private investigation firm. Poor judgment is not, however,

facially unconstitutional. The City could only be liable for

Fincher’s and Wells’s moonlighting if it was deliberately

indifferent to known consequences such as the likelihood that the

officers would assist Bell in committing crimes. The City failed

to insist upon proof of deliberate indifference, however, so that

standard is waived.

Assuming, then, that the moonlighting policy did

demonstrate deliberate indifference, the evidence is nevertheless

insufficient to establish that it was the moving force that caused

24
Piotrowski to be shot, or that it resulted in a “state created

danger” to her life. None of Dudley Bell’s previous misdeeds were

contract killings. As a private investigator and bodyguard,

surveillance and protective duties could be expected of his

employees. Abuses of these services could foreseeably result in

the wiretapping, vandalism, and false charges to which Piotrowski

was exposed. But there is no evidence that the City could have

been deliberately indifferent to the likelihood that officers

moonlighting for Bell would get involved in murder for hire, and

there is also no evidence that Fincher or Wells knew of or had any

role in Bell’s attempt to have Piotrowski killed. The municipal

policy allowing improper moonlighting employment may have been

culpable, but causation was not established.

The second alleged policy resides in the City’s failure

to investigate and discipline Fincher and Wells when Piotrowski and

her family made several IAD complaints about them. On the facts of

this case, no unconstitutional municipal custom or policy was

proven. Self-evidently, a City policy of inadequate officer

discipline could be unconstitutional if it was pursued with

deliberate indifference toward the constitutional rights of

citizens. The question is how to prove the existence of such a

policy. One indication might be a purely formalistic investigation

in which little evidence was taken, the file was bare, and the

conclusions of the investigator were perfunctory. No such

25
deficiency appears on the record before us. The IAD investigator

responded to lengthy complaints by or on behalf of Piotrowski,

received nearly as lengthy responses from Fincher and Wells, and

reviewed relevant police department records like the search

warrant. Regardless whether one agrees or disagrees with the IAD

conclusions exonerating Fincher and Wells, the IAD file reveals no

systematic inattention to the complaints.

A more fundamental point is that the failure to

discipline arises only from this plaintiff’s and her associates’

allegations against the officers. Piotrowski did not offer

evidence of any other IAD complaints made against Fincher and

Wells. There is no pattern of complaints by other citizens. As is

the case with allegations of failure to adequately screen

prospective police officers, it is nearly impossible to impute lax

disciplinary policy to the City without showing a pattern of abuses

that transcends the error made in a single case. See Bryan County,

520 U.S. at 410-11, 117 S.Ct. at 1391. A pattern could evidence

not only the existence of a policy but also official deliberate

indifference.

The City did preserve error to the jury charge on this

policy, as it requested a deliberate indifference instruction if

the jury was instructed that it could find liability for the City’s

failure to act to prevent the misdeeds of its police officers.

26
Consequently, even if we concluded that an unconstitutional policy

of inadequate discipline was sufficiently proved, we would have to

reverse any judgment predicated on this theory because of the

court’s error in omitting the deliberate indifference charge. This

asserted policy fails, however, for lack of proof of a pattern of

unremedied abuses of citizens’ rights by Fincher and Wells.

The third alleged policy is that the police failed to

bring charges against Bell or Minns at Piotrowski’s urging. At one

point, she implied to the jury that her tormentors would have been

locked up and would not have been free to plan her murder had the

police taken action in the first half of 1980. Tragic though it is

in hindsight when the police fail to enforce the law strictly

against wrongdoers, decisions not to prosecute cannot be the

subject of policy determinations for purposes of section 1983

liability. See generally Pinder v. Johnson, 54 F.3d 1169 (4th Cir.

1995) (en banc). The DeShaney decision absolves public officials

of individual section 1983 liability for failure to protect

citizens absent a “special relationship” such as official custody

of the victim. See DeShaney v. Winnebago Cty. Dep’t of Social

Servs., 489 U.S. 189, 201 (1989); Walton v. Alexander, 44 F.3d

1297, 1298 (5th Cir. 1995) (en banc). A city cannot be liable to

a member of the public for failing to prosecute a known wrongdoer

27
if no individual City employee could be liable constitutionally for

the same neglect.28

Finally, Piotrowski charged that City policy extended

even to the unthinkable -- its affirmative assistance of Bell’s

carrying out a murder contract on her life. This appears to be the

essence of what the jury charge described as a City custom or

policy which created a state-created danger. There is no evidence,

however, that any action of any individual City employee, much less

official custom or policy of the City, so assisted Bell.

The existence of this alleged policy turns on two facts.

First, Franks testified that Bell gave him a police mug shot to use

in identifying Piotrowski. Where the mug shot came from, who gave

it to Bell and for what purpose it might have been given to him,

are left unexplained by the record. Hence there is no evidence on

which to base an adverse inference about the City’s custom or

policy.

Second, the jury evidently believed Officer Liles’s

testimony that he reported the threat of a hit contract both to

Lieutenant Reece and to the homicide division. Lieutenant Reece

told him not to get involved personally, and the homicide division

lost Liles’s report. Piotrowski was not officially warned of the

28
As stated in DeShaney of course, a different situation might result
from the wholesale failure to protect a class of people, e.g. minorities, 489
U.S. at 197, n.3, 109 S.Ct. at 1004 n.3.

28
murder contract, and no investigation took place before the

homicide attempt. But again, there is no record evidence of any

connection between Lieutenant Reece or members of the homicide

division and Minns or Bell. On the contrary, the only evidence of

police misconduct involved Fincher and Wells, who intervened

against Piotrowski repeatedly -- short of participating in the

murder contract -- as they provided inside-the-HPD assistance to

their off-duty employer Bell when he harassed Piotrowski. Even as

to Fincher and Wells, there is no evidence that they knew of or

assisted in the attempted murder.

Piotrowski made a compelling case that Bell cultivated

friendships in Houston’s political community, among police and fire

department officials, and even with judges, and that some of these

relationships may have contributed to his avoiding or minimizing

prosecution for some illegal acts. But pinning affirmative

involvement by the City in Piotrowski’s attempted murder is beyond

the inferences afforded in this record.29

29
In her brief, Piotrowski also asserts that the “cooperation between
HPD and Bell” led the department to (a)advise Bell that his kill-switch plan had
been thwarted; (b) stop any investigation of the kill-switch; (c) stop Waring
from warning Piotrowski of her danger; and (d) deliberately refuse to pursue
leads against Minns and Bell. None of these charges adds to the case for a City
policy related to the hit contract. First, Bell did not need to be tipped off
to the kill-switch plan -- Piotrowski had obviously survived it. Second, Fincher
and Wells apparently diverted the kill-switch investigation to their division,
but there is no evidence of involvement by other police officers in this act.
Third, it was Liles who told Waring not to warn Piotrowski – Liles was no pawn
of an allegedly corrupt police department. Fourth, failure to pursue leads
against Minns and Bell is unsustained on this record (prior to the shooting)
apart from the proven inaction of Fincher and Wells. These facts suggest
misconduct by Fincher and Wells, not a general custom or widespread policy within

29
 After considering all four of the policies that

Piotrowski alluded to at trial, we must conclude that none of them

furnishes a basis for finding that the City maintained a wide-

spread custom or policy that caused Piotrowski’s injuries. No one

could fail to be moved by the suffering that she has endured or

would hesitate to condemn the police department’s unwillingness to

keep its officers from compromising off-duty employment. Difficult

as these facts are, however, they do not suffice to carry the heavy

burden that a plaintiff must bear in establishing municipal

culpability and causation.

2. State created danger theory

Piotrowski persuaded the jury that unspecified customs or

policies of the City effected a “state-created danger,” causing her

to be injured by third parties. For purposes of this discussion,

we assume arguendo that “the City” could have been the

unconstitutional actor. Even assuming such an

anthropomorphization, however, Piotrowski’s evidence was fatally

deficient.

In general, local governments are under no duty to

provide protective services: “[T]he Due Process Clauses generally

confer no affirmative right to governmental aid, even where such

aid may be necessary to secure life, liberty, or property interests

the police department.

30
of which the government itself may not deprive the individual ...

[Thus,] a State’s failure to protect an individual against private

violence simply does not constitute a violation of the Due Process

Clause.” DeShaney v. Winnebago County Dep’t of Social Servs., 489

U.S. 189, 196-97, 109 S.Ct. 998, 1003-04 (1989).30 The Constitution

imposes a duty on the state to protect particular individuals only

in “certain limited circumstances.” Id., 489 U.S. at 198, 109

S.Ct. at 1004. Courts have recognized at most two such limited

circumstances -- when the state has a special relationship with the

person or when the state exposes a person to a danger of its own

creation.31

Piotrowski argues that the City violated the Due Process

Clause by failing to protect her from a danger that it created by

affirmatively assisting Bell. Although this court has discussed

the contours of the “state-created danger” theory on several

occasions, we have never adopted that theory. See Randolph v.

Cervantes, 130 F.3d 727, 731 (5th Cir. 1997), cert. denied, 525

U.S. 822, 119 S.Ct. 65 (1998); Doe v. Hillsboro Indep. Sch. Dist.,

30
See also Walton v. Alexander, 44 F.3d 1297, 1302 (5th Cir. 1995)(en
banc): “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.”
31
This court’s decision in Walton precludes Piotrowski from arguing
that the HPD’s actions created a special relationship that required the police
to protect her. Under Walton, a special relationship exists only if the
plaintiff is “involuntarily confine[d] against [the plaintiff’s] will through
affirmative exercise of state power.” 44 F.3d at 1306.

31
113 F.3d 1412, 1415 (5th Cir. 1997)(en banc); Piotrowski I, 51 F.3d

at 515. We need not do so here, since, even if we were to adopt

it, Piotrowski could not recover.

In Piotrowski I, this court set out the basic

requirements of the state-created danger theory: “First, a

plaintiff must show that the state actors increased the danger to

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

with deliberate indifference.” 51 F.3d at 515.

Piotrowski alleged that the City created a danger by

allowing its employees to affirmatively assist Bell in carrying out

the attack on her. The facts have been summarized. The initial

problem is that no matter what official protection Bell received,

the City actors did not create the danger she faced. See Armijo v.

Wagon Mound Public Schools, 159 F.3d 1253, 1263 n.7 (10th Cir.

1998) (”[i]f the danger to the plaintiff existed prior to the

state’s intervention, then even if the state put the plaintiff back

in that same danger, the state would not be liable because it could

not have created a danger that already existed.”). During her

relationship with Minns, Minns became more violent and started

using drugs. Minns had physically abused her at least twice while

they lived together, breaking her nose and hand on one such

occasion. Piotrowski also testified that Minns asked her to help

him kill his first wife. Shortly after moving out of Minns’s

32
apartment, Piotrowski knew that her life was in danger. The record

clearly demonstrates that Piotrowski was aware of Minns’s

propensity for violence given the various threats and acts of

vandalism directed at Piotrowski, her attorney, and her family.

According to a police report she filed, Minns had threatened her

life on several occasions. And after the kill-switch incident,

Piotrowski knew that Minns was trying to kill her.32 Unlike other

cases in which government officials placed persons in danger, the

City at most left her in an already dangerous position.

Depending on the facts, some cases interpret the state-

created danger theory to result in § 1983 liability if government

actors increase the danger of harm to a private citizen by third

parties. Measured by this standard, the assistance provided to

Bell consisted of furnishing Piotrowski’s mug shot and failing to

warn her of Waring’s tip. Neither of these circumstances, however,

actually increased the danger to her. The kill switch incident

plainly signaled Minns’s intentions and determination. And in the

summer of 1980, before Waring’s tip to Liles, Piotrowski’s attorney

had arranged bodyguard protection for her.

Moreover, the City did not act with deliberate

indifference. To establish deliberate indifference, “[t]he

32
After the kill-switch was discovered, Piotrowski told investigators
that she believed Minns was responsible for this attempt on her life. The police
report even listed Minns as a suspect.

33
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 v. Dallas

Indep. Sch. Dist., 38 F.3d 198, 201 (5th Cir. 1994). “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 her ability to defend herself, or cutting off potential sources

of private aid.” Id. (quotations and citations omitted). As has

been discussed, there is no evidence that City actors knew of or

participated in the murder contract, and they did nothing to

prevent her from protecting herself.33

For all these reasons, Piotrowski was the shooting victim

of Richard Minns and Dudley Bell, not of circumstances created by

the City actors.

33
Piotrowski’s case is, therefore, markedly different from cases in
other jurisdictions in which the municipal employees created the dangerous
situation and precluded the plaintiff from protecting herself. See, e.g., Wood
v. Ostrander, 879 F.2d 583 (9th Cir. 1989), cert. denied, 498 U.S. 938, 111 S.Ct.
341 (1990)(woman raped after police arrested the drunk driver of the vehicle she
was in and left her alone at night in a high crime area); Cornelius v. Town of
Highland Lake, 880 F.2d 348 (11th Cir. 1989), cert. denied, 494 U.S. 1066, 110
S.Ct. 1784 (1990)(female city employee abducted by prisoner with a violent
criminal history who was placed in an inmate work program at the town hall where
she worked); White v. Rochford, 592 F.2d 381 (7th Cir. 1979)(children left by
police officers alone in car on busy road after arresting driver).

34
 IV. CONCLUSION

Because Piotrowski failed to establish the grounds for

municipal § 1983 liability and the state-created danger theory of

substantive due process violation, and because her equal protection

claim was time-barred, we must reverse and render the judgment.

Nothing in this opinion should be taken as excusing or condoning

any involvement by policemen or firefighters with men like Dudley

Bell and Richard Minns.

REVERSED and RENDERED.

35