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 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 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
Initially, Minns contacted Mickey Brown, a member of the Houston Arson Department who also taught boxing to Minns's 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.
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.
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 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 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.
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 this apartment, Adrian Franks, who worked for Bell, tapped Piotrowski's phone and recorded her calls.
Franks installed a kill switch on Piotrowski's car in July.
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
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 homicide division.
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.
Piotrowski's suit against the City is based largely on a deposition given by Liles in early 1993 for another case.
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.
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").
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.
A. Statute of Limitations
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.
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.1987)), cert. denied, 507 U.S. 914, 113 S.Ct. 1266, 122 L.Ed.2d 662 (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.
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
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.
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 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.
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 [Minns's] side." Piotrowski thus fails to explain what information in Liles's deposition was not known or could not have been discovered through
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 Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978).
Here, for instance, the City never insisted that Piotrowski identify a municipal policymaker who could be held responsible, through actual or constructive
Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir.1984) (en banc).
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:
Webster, 735 F.2d at 841; See also Bryan County, 520 U.S. at 405-07, 117 S.Ct. at 1387.
While an unconstitutional official policy renders a municipality culpable under § 1983,
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 also Canton, 489 U.S. at 389, 109 S.Ct. 1197. This court summed up the relevant standards as follows:
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.
What we glean from Piotrowski's briefs and the record are several alleged customary policies:
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 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
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. 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, 109 S.Ct. 998, 103 L.Ed.2d 249 (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 if no individual City employee could be liable constitutionally for the same neglect.
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
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 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.
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 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
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, 142 L.Ed.2d 51 (1998); Doe v. Hillsboro Indep. Sch. Dist., 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 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.
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,
Moreover, the City did not act with deliberate indifference. To establish deliberate indifference, "[t]he 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.
For all these reasons, Piotrowski was the shooting victim of Richard Minns and Dudley Bell, not of circumstances created by the City actors.
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.
Monell, 436 U.S. at 692, 98 S.Ct. at 2036.