UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-20467 Summary Calendar
GLORIA SWIDRISKI, as Representative of the Estate of Marc Kajs, Deceased
Plaintiff - Appellant,
VERSUS
CITY OF HOUSTON
Defendant - Appellee.
Appeal from the United States District Court for the Southern District of Texas (No. H-00-CV-1074)
December 12, 2001 Before DeMOSS, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Gloria Swidriski brings this suit on
behalf of her deceased son Marc Kajs, alleging that the City of
Houston police department’s refusal to intervene in an abusive
relationship involving Kajs and his partner, Ilhan Yilmaz,
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. resulted in Kajs’s death. The suit is brought under 42 U.S.C. §
1983, Appellant alleging that the City violated Kajs’s right to
be free from state-created danger and irrational disparate
treatment. The district court granted the City’s motion to
dismiss, concluding that the state-created danger theory was not
yet viable in this circuit and that Kajs was not entitled to
equal protection because he was not a member of a suspect class.
We affirm in part, reverse in part, and remand.
BACKGROUND
The material facts are undisputed. Yilmaz shot and killed
Kajs and then himself one Sunday afternoon outside the restaurant
where Kajs worked. For some eight months before, the two had
been in an abusive relationship, with Yilmaz doing the abusing.
Kajs several times sought protection from the City police
department but to no avail. Kajs in July 1997 moved out of the
apartment he and Yilmaz were sharing, shortly after which
Yilmaz’s threats intensified. In the days that followed, Kajs
reported three incidents of threatening conduct by Yilmaz to
police.
Sometime before Yilmaz had received a permit to carry a
concealed handgun. In December 1997 Yilmaz purchased two guns at
a retail outlet, the police department having approved the sale
despite the complaints that had been lodged against him.
Yilmaz’s threatening conduct apparently subsided until March
-2- 1998. About that time, Yilmaz showed up at Kajs’s place of work
with a silhouette target with holes shot through and told Kajs he
was next. Kajs twice more sought the help of City police but
again to no avail. Yilmaz killed Kajs the same month.
DISCUSSION
We review the district court’s ruling on a motion to dismiss
de novo. See Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d
278, 284 (5th Cir. 1993). When deciding a motion to dismiss
under Fed. R. Civ. P. 12(b)(6), the district court must accept
the plaintiff's factual allegations as true and resolve doubts as
to the sufficiency of the claim in the plaintiff’s favor. See
id. The complaint should not be dismissed unless it appears
“beyond a doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Id. at
284-85 (quoting Conley v. Gibson, 355 U.S. 41 (1957))(emphasis in
original).
I.
We expressly adopted the state-created danger theory in
McClendon v. City of Columbia, 258 F.3d 432, 436 (5th Cir.
2001).1 To succeed on such a claim, plaintiff must show that
1 We note that a petition for rehearing en banc has been filed in McClendon, and that the Court requested a response, which has been on file as of August 30, 2001. No action has since been taken on the petition. Because we conclude that Appellant has failed to state a claim under the state-created danger theory, we need not await McClendon’s resolution before filing this opinion.
-3- defendants created a dangerous environment; that they knew it was
dangerous; and that they were deliberately indifferent to
plaintiff’s plight. See id. at 438. Appellant here has not made
out the first element. In a case much like the one at bar, one
in which the City of Houston was also a defendant, we held that
certain police officers’ having protected plaintiff’s assailant
did not make the City liable, the City not having created the
abusive relationship between plaintiff and her assailant. See
Piotrowski v. City of Houston, 237 F.3d 567, 584 (5th Cir. 2001).
By way of comparison, in McClendon we held that evidence of a
police officer’s having given a gun to plaintiff’s assailant, an
individual known to be on the brink of violence and who could not
otherwise obtain a firearm, was sufficient to survive a summary
judgment motion. 258 F.3d at 438. Having liberally construed
Plaintiff’s amended complaint, we do not see any suggestion that
City officials created the situation that led to Kajs’s death.
Indeed, Appellant plainly states that Yilmaz’s abusing Kajs
predated Kajs’s first complaint to the police department. And
nowhere is there any suggestion that the conduct of City
officials somehow enabled Yilmaz to commit the act of violence he
did whereas before he could do no worse than physically assault
Kajs.
We also conclude that the police department’s failure to
inhibit Yilmaz’s purchase of the murder weapon does not subject
-4- the City to liability. It does not follow that the breakdown of
the background screening process itself was responsible for
creating the dangerous environment where handguns were made
available to persons with a violent propensity. That condition
obviously preexisted any City involvement. Cf. Johnson v. Dallas
Indep. Sch. Dist., 35 F.3d 198, 201 (5th Cir. 1994)(holding that
school district was not liable for shooter’s having entered
school without I.D. or not having gone through metal detector).
Further, we are not inclined to assign liability where to do so
would discourage the taking of preventive safety measures. Here,
holding the City responsible for a lapse in its background
screening process would run contrary to that policy.
Though we conclude that Appellant has failed to state a
claim for state-created danger, we are not unmindful of her
request that she be permitted to file a second amended complaint.
The usual custom upon granting a motion to dismiss is to allow an
opportunity to replead. See Waste Control Spec., L.L.C. v.
Envirocare of Tex., Inc., 199 F.3d 781, 786 (5th Cir. 2000). But
leave need not be granted where it appears that plaintiff has
made his “best case.” See Jones v. Greninger, 188 F.3d 322, 327
(5th Cir. 1999). Appellant here twice asked the district court
for permission to amend, and she has asked us for leave as well.
Appellant’s burden under her theory of recovery was well known.
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-20467 Summary Calendar
GLORIA SWIDRISKI, as Representative of the Estate of Marc Kajs, Deceased
Plaintiff - Appellant,
VERSUS
CITY OF HOUSTON
Defendant - Appellee.
Appeal from the United States District Court for the Southern District of Texas (No. H-00-CV-1074)
December 12, 2001 Before DeMOSS, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Gloria Swidriski brings this suit on
behalf of her deceased son Marc Kajs, alleging that the City of
Houston police department’s refusal to intervene in an abusive
relationship involving Kajs and his partner, Ilhan Yilmaz,
* 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. resulted in Kajs’s death. The suit is brought under 42 U.S.C. §
1983, Appellant alleging that the City violated Kajs’s right to
be free from state-created danger and irrational disparate
treatment. The district court granted the City’s motion to
dismiss, concluding that the state-created danger theory was not
yet viable in this circuit and that Kajs was not entitled to
equal protection because he was not a member of a suspect class.
We affirm in part, reverse in part, and remand.
BACKGROUND
The material facts are undisputed. Yilmaz shot and killed
Kajs and then himself one Sunday afternoon outside the restaurant
where Kajs worked. For some eight months before, the two had
been in an abusive relationship, with Yilmaz doing the abusing.
Kajs several times sought protection from the City police
department but to no avail. Kajs in July 1997 moved out of the
apartment he and Yilmaz were sharing, shortly after which
Yilmaz’s threats intensified. In the days that followed, Kajs
reported three incidents of threatening conduct by Yilmaz to
police.
Sometime before Yilmaz had received a permit to carry a
concealed handgun. In December 1997 Yilmaz purchased two guns at
a retail outlet, the police department having approved the sale
despite the complaints that had been lodged against him.
Yilmaz’s threatening conduct apparently subsided until March
-2- 1998. About that time, Yilmaz showed up at Kajs’s place of work
with a silhouette target with holes shot through and told Kajs he
was next. Kajs twice more sought the help of City police but
again to no avail. Yilmaz killed Kajs the same month.
DISCUSSION
We review the district court’s ruling on a motion to dismiss
de novo. See Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d
278, 284 (5th Cir. 1993). When deciding a motion to dismiss
under Fed. R. Civ. P. 12(b)(6), the district court must accept
the plaintiff's factual allegations as true and resolve doubts as
to the sufficiency of the claim in the plaintiff’s favor. See
id. The complaint should not be dismissed unless it appears
“beyond a doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Id. at
284-85 (quoting Conley v. Gibson, 355 U.S. 41 (1957))(emphasis in
original).
I.
We expressly adopted the state-created danger theory in
McClendon v. City of Columbia, 258 F.3d 432, 436 (5th Cir.
2001).1 To succeed on such a claim, plaintiff must show that
1 We note that a petition for rehearing en banc has been filed in McClendon, and that the Court requested a response, which has been on file as of August 30, 2001. No action has since been taken on the petition. Because we conclude that Appellant has failed to state a claim under the state-created danger theory, we need not await McClendon’s resolution before filing this opinion.
-3- defendants created a dangerous environment; that they knew it was
dangerous; and that they were deliberately indifferent to
plaintiff’s plight. See id. at 438. Appellant here has not made
out the first element. In a case much like the one at bar, one
in which the City of Houston was also a defendant, we held that
certain police officers’ having protected plaintiff’s assailant
did not make the City liable, the City not having created the
abusive relationship between plaintiff and her assailant. See
Piotrowski v. City of Houston, 237 F.3d 567, 584 (5th Cir. 2001).
By way of comparison, in McClendon we held that evidence of a
police officer’s having given a gun to plaintiff’s assailant, an
individual known to be on the brink of violence and who could not
otherwise obtain a firearm, was sufficient to survive a summary
judgment motion. 258 F.3d at 438. Having liberally construed
Plaintiff’s amended complaint, we do not see any suggestion that
City officials created the situation that led to Kajs’s death.
Indeed, Appellant plainly states that Yilmaz’s abusing Kajs
predated Kajs’s first complaint to the police department. And
nowhere is there any suggestion that the conduct of City
officials somehow enabled Yilmaz to commit the act of violence he
did whereas before he could do no worse than physically assault
Kajs.
We also conclude that the police department’s failure to
inhibit Yilmaz’s purchase of the murder weapon does not subject
-4- the City to liability. It does not follow that the breakdown of
the background screening process itself was responsible for
creating the dangerous environment where handguns were made
available to persons with a violent propensity. That condition
obviously preexisted any City involvement. Cf. Johnson v. Dallas
Indep. Sch. Dist., 35 F.3d 198, 201 (5th Cir. 1994)(holding that
school district was not liable for shooter’s having entered
school without I.D. or not having gone through metal detector).
Further, we are not inclined to assign liability where to do so
would discourage the taking of preventive safety measures. Here,
holding the City responsible for a lapse in its background
screening process would run contrary to that policy.
Though we conclude that Appellant has failed to state a
claim for state-created danger, we are not unmindful of her
request that she be permitted to file a second amended complaint.
The usual custom upon granting a motion to dismiss is to allow an
opportunity to replead. See Waste Control Spec., L.L.C. v.
Envirocare of Tex., Inc., 199 F.3d 781, 786 (5th Cir. 2000). But
leave need not be granted where it appears that plaintiff has
made his “best case.” See Jones v. Greninger, 188 F.3d 322, 327
(5th Cir. 1999). Appellant here twice asked the district court
for permission to amend, and she has asked us for leave as well.
Appellant’s burden under her theory of recovery was well known.
Since she asserted state-created danger in her first complaint,
-5- Appellant knew that at a minimum she would have to allege that
the City was responsible for the danger that led to Kajs’s death.
Appellant has tried to meet this charge only by pointing to the
police department’s repeated refusals to intervene between Kajs
and Yilmax. But this kind of inaction cannot create danger, as
we noted above. Believing that Appellant would have urged that
the City officials’ positive conduct caused Kajs’s death if in
fact it had, we conclude that permitting further amendment is not
warranted.
II.
The district court’s dismissal of Appellant’s equal
protection claim was error, however. The Fourteenth Amendment
guarantees that states treat similarly situated individuals
alike. Certain kinds of state actions have a long history of
being particularly invidious, so with respect to such actions we
afford states little deference. But simply because a state has
not historically treated certain persons differently than others
does not mean it can discriminate without at least offering a
rational basis for its actions. See Hilliard v. Ferguson, 30
F.3d 649, 652 (5th Cir. 1994). Here, the district court
concluded that because Kajs was not a member of a suspect class
he was not entitled to equal treatment as a matter of law.
Plaintiff alleges that it was the police department’s policy to
afford less protection to a victim of domestic violence in a
homosexual relationship; that animus was at least a motivating
-6- factor for the department’s disparate treatment; and that Kajs
was injured by this conduct. That is sufficient to state an
equal protection claim. See Shipp v. McMahon, 234 F.3d 907, 914
(5th Cir. 2000).
CONCLUSION
For the foregoing reasons, we affirm the district court’s
dismissal of Appellant’s claim for state-created danger, but we
reverse dismissal of the equal protection claim and remand for
further proceedings.
-7-